ACCforum: Wood V Acc 50 99 Aca 2 99 - ACCforum

Decision No 50 /99

IN THE MATTER
of the Accident Compensation Act 1982

AND
IN THE MATTER
of an appeal pursuant to section 107 of the Act

BETWEEN
GRAHAM ERNEST WOOD
of OAMARU
(Reference ACA 2/99)
Appellant

AND
ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act
Respondent

BEFORE THE ACCIDENT COMPENSATION APPEAL AUTHORITY
P J Cartwright

DECISION ON THE PAPERS

At the request of the parties this decision is made on the papers. In so doing the Authority has taken into account all relevant materials on four volumes of files, including several medical reports., together with written submissions made by the appellant on his own behalf, and by Ms S L Scott on behalf of the respondent.

The issue in the appeal is the respondent's decision of 29 October 1998 in which it revised its determination of the appellant's earnings under section 53(9) of the Accident Compensation Act 1982.

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The inaccuracy is that section 53(9) is discretionary, not mandatory, and therefore a discretion remains to assess ERC by reference to relevant earnings at the date of the accident.
The Authority is satisfied to the required standard, the balance of probabilities, that the appellant's ERC should be based on his earnings prior to the accident,, and not what he was earning prior to his going back on ERC.

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The appeal is therefore allowed. Accordingly the file should be returned to the respondent to re-instate ERC at the appropriate level, payment of arrears and remission of deemed over payments as a result of the discretion wrongly exercised under section 53(9) of the Act.