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Total Declinature Of Claim / Alan Thomas Allegations of working while incapacitated

#18081 User is offline   Hemi 

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Posted 09 July 2018 - 11:26 PM

View Postanonymousey, on 09 July 2018 - 08:02 PM, said:

Criminal trial material

2.28 Dr Wilcox was questioned about his knowledge of the appellant's involvement In the businesses described above and asked whether he would have certified the appellant unfit had he been aware of such activities. Dr Wilcox stated at page 366:
"It was my interpretation he felt unfit to work at that time . .. so I had to go on the patient's description of how he was managing.
Q. Would you have declared Mr Thomas unfit for any type of work and thus entitling him to ACC if you understood him to beinvolved in managerial and consultancy work to be attending an office 5 days a week and employing staff?
A. No ....
Did he ever tell you that he had helped set up companies, employment consultancy type companies?
A. .No, in fact he may possibly have purely from memory refe"ed to the possibility of looking into possible types of businesses. But Iwouldn't have gone into it in any more detail than that.

2.34 As stated above, the appellant did not inform the Corporation of his roles and activities with the businesses. As is evident from the evidence from Dr Wilcox at the criminal hearing, he did not inform his General Practitioner either.


August 1992 Surgery

[320]There is no medical evidence to support the appellant's assertion that his wrist injury has been worse since the surgery in August 1992.

[321] Contrary to the appellant's assertion, none of the medical specialists have subsequently suggested that the 1992 surgery made his condition worse. Some simply note that the surgery was not successful in improving the wrist condition (although Mr Rees himself in his contemporaneous medical notes following the surgery indicated that there had been improvement).

[338] Mr Rees proposed surgery to provide greater stability to the wrist. He proceeded to state at pages 2 and 3:
"... I tend to agree that at present this man's hand is flexible and has a good range of movement for light work but obviously is not suited to heavy work. Because of this man's wrist joint instability he gets a lot of aching and discomfort in the wrist and he tells me that even with doing light work like using a computer keyboard or a mouse that this aching discomfort precludes him from using it except for very short periods of about half an hour or so. Clearly this is inadequate if he is to pursue using his computer and keyboard for a living. He does have a normal left hand...

[339]Significantly, Mr Rees concurred with Mr Nicholson's findings entirely, opining that the appellant was fit for light duties, but not for heavy physical work. With respect to the appellant's restrictions in relation to use of the computer keyboard and mouse, clearly Mr Rees relied entirely on the appellant's self-reporting of his restrictions.

[346] Leaving aside the appellant's self-reporting, Mr Rees was of the view that the appellant was able to use his right hand and wrist for light duties which included using the keyboard, mouse and writing. He accepted Mr Nicholson's findings and only watered down aspects of his initial report (regarding the appellant's restrictions) when he received contrary self-reporting information from the appellant.

[349] Mr Rees' post-operative findings in fact suggested that the appellant's condition had improved. He wrote to the Corporation on 4 September and 12 November 1992 [F9 and 10 of respondent's bundle]. On 12 November 1992 Mr Rees stated:
"He is going to start looking for a job now he is better able to use his right hand following his operation on 28/8/92. Once he has found himself a job he will let you and me know and we can write a final certificate ..."


"Q. Once Mr Thomas had recovered from the operation, would you have expected him to have benefit for light work?

A. Yes. Light work to me is, say, lifting less than 5kg and doing writing, computer work, that sort of work. I would have expected him to be able to do that sort of thing for a reasonable period."

[352] Mr Tonkin mooted the possibility of reconstruction to improve the situation and noted that improvement was only possible but a normal outcome was not expected. He opined:
"Regardless of whether or not a reconstruction is performed, Mr Thomas will not have a normal wrist. His ability to perform his activities as a mechanical design engineer will be limited. He has indicated the need to preserve find dexterity skills rather than the need to perform heavy manual work."

[353] Mr Tonkin's opinion, regarding the appellant's ability to perform the activities of a design engineer, was based on information from the appellant.


Mr Tim Tasman-Jones - Hand and Upper Limb Surgeon reported on 18 November 1996,

<< [366] Mr Tasman-Jones set out his findings on examination at page 6, which included:

"Specific Examination of the Hand

The hand was normal to examination with no swelling, scarring or deformity present. There was no tenderness present over the CNC joints, metacarpals, MCP joints, and phalanges, PIP joints, DIP joints of the fingers or IP and DIP joints of the thumb. There was a full range of movement in the fingers and thumb (1-12). Power, sensation and circulation normal. Provocative test for median nerve, ulna nerve and radial nerve compression were all negative."


I am referring to this extremely damaging statement by you in an email which was made on 16 October 1996 to Ms Maio Lin

[Document D27e of Respondent's Bundle]


"... Yes I have been very busy. My staff continues to grow which means I have
continually shown people what to do. We are enjoying a lot of success ...

I am now reaching a stage where some of my staff are almost ready to take management responsibility which will reduce my workload. A good manager just makes sure that everybody else is working that all the clients want me to personally look after their case which is not possible of course. ... I am still able to supervise every case personally but it is still not possible for me to work on any case unless there is some difficulty. The only cases that I am currently working on personally are the invitations for your clients ...

I am in good health even though I'm working long hours."



appears that thomas lives in a land of his own delusional la la's
his voice machine would appear to have problems in transcribe mode of written material to voice animated Hal 9000 chattalk
quite noticeable that thomas denies what is in front of him SHOWING HE is TELLING LIES TO ALL OUT HERE preferring to revert to wordsmithng to blame everyone else but himself

thomas states that he never told anyone about himself or his ability and it was all the medicals wordings on documetations he presented to the acc

BOLLOCKS TIME there thomas


pp

hey thomas
were you wearing your business suit when you emailed ms Lin about how hard you were working and in great health Posted Image/>
0

#18082 User is offline   doppelganger 

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Posted 10 July 2018 - 02:23 PM

Here is a decision from 2004 on the same matter

Thomas v Accident Compensation Corporation [2004] NZACC 330 (19 October 2004)

IN THE DISTRICT COURT
HELD AT WELLINGTON


Decision No. 330/2004


UNDER The Injury Prevention, Rehabilitation,

and Compensation Act 2001


AND


IN THE MATTER of an appeal pursuant to Section 149

of the Act


BETWEEN ALAN THOMAS of Auckland


Appellant


(Appeal No. AI 519/01)


AND ACCIDENT COMPENSATION

CORPORATION a body corporate

duly constituted under the provisions of the said Act


Respondent


HEARING at AUCKLAND on 15,16 July 2004, and 20, 21, 22, 23, 24 September

2004

APPEARANCES/COUNSEL


Appellant in person

D. Tuiqereqere for respondent


RESERVED JUDGMENT OF JUDGE J. CADENHEAD


The Issues

[1] In my view the issues are narrow: whether the decision by the respondent dated 11 April 2001 declining the appellant’s application for weekly assistance for weekly compensation and vocational rehabilitation was correct?

[2] The issues centre around whether the appellant was an ‘earner’ for the purposes of the legislation at the time that he made his claim for incapacity on 26 March 2001; what the effects of the earlier cancellation of his entitlements have on his present application for weekly and surgical entitlements; and what effect a conviction for an offence of dishonesty, in respect of the entitlements provided by the respondent, has in relation to his present claim for entitlements.
Course of the Hearing

[3] Mr Thomas appeared for himself. He had prepared extensive submissions running to some 169 pages and 726 paragraphs, and prepared a bundle of exhibits of over 600 pages.
[4] It was apparent from reading the file, that there are two appeals, and that this appeal, in my opinion, should have been dealt with either before, or at least alongside the other appeal. The other appeal is against a review decision against a decision dated 18 August 1997 of the respondent cancelling his continuing entitlements pursuant to section 73 of the Accident Compensation and Rehabilitation Insurance Act 1992 on the grounds that he was working while in receipt of full weekly compensation.
[5] This decision was reviewed on 5 January 1998 and a review decision was made on 25 February 1998 dismissing the review application. The findings of that review decision have a substantial impact on the decision in this case, and as the appeal in that regard has not been concluded those findings are binding upon me.
[6] On the first morning I emphasised the importance of this earlier review finding to Mr Thomas and that it was in his interests to have both appeals heard together, or the other appeal heard first, followed by the present appeal. Mr Thomas did not desire this course, and insisted that this appeal be heard first. I pointed out to him that narrow legal issues may ultimately determine the fate of the present appeal. The appellant would not be deterred on his errand of examining in painstaking detail the entire background of his claim and amplifying orally his submissions and bundle of documents.
[7] Counsel for the respondent agreed that it was in Mr Thomas’ interest to have both appeals heard together. However, from the respondent’s situation it was quite prepared to go on with the present appeal, as obviously it put the respondent in a more favourable position.
[8] I was advised by Mr Thomas that the appeal would require at least eight hours hearing time, and that through his health constraints, he could only sit for two hours per day, with a gap of two days in between time. The hearing took approximately double that time. I agreed to that timetable, and sat again on the next alternative day in July. However, I did not have any further hearing time available until September, and this fact was pointed out to Mr Thomas. I commenced sitting again the week of 20 September 2004 and the case was completed that week. Mr Thomas said that he could sit on each of the successive days, but the hearing time was essentially limited to 2 hours, or slightly longer with the assent of Mr Thomas. I record that I consulted Mr Thomas in respect to these arrangements and would not have sat had he said that he could not proceed. The appeal hearing time took much longer than 8 hours, and the respondent would not have taken one hour. Every effort was made to meet his convenience.
[9] The anatomy of a normal appeal hearing is a presentation of written submissions that essentially deal with the gist of the argument and brief oral submissions amplifying and highlighting the main points of the written submissions. In this appeal, it is no exaggeration, to say that the Court was presented with an overload of information. The written submissions were discursive and repetitive, and the oral submissions even more so. The Court was lectured by the appellant at tedious length. Initially, I endeavoured to persuade the appellant to concentrate and focus on the essential ingredients of his appeal, but gentle persuasion was in vain. The appellant was undeterred and any attempts, by either myself or counsel for the respondent, were met by statements: that the point being made was relevant; or that the appellant was a lay person; or that his concentration powers were diminished, and that the repetition of detail would have to be endured. While the appellant was courteous, the submissions were made against a background of veiled threats of further appeals and legal proceedings and that earlier Courts had not treated him justly. Despite his protestations of mental impairment, the appellant presented as a clever and manipulative person.
[10] I preface my decision with these comments, as I have found it extremely difficult to accurately and precisely summarise the arguments of the appellant. It is unfortunate that the appellant lectured the Court with an avalanche of detail, as buried in this detail were some valid legal issues that must be confronted. These legal issues could have been dealt with in one to two hours, and to a certain extent they have been obfuscated. I have endeavoured, as best I can to extract and deal with those issues.
[11] It took the appellant, at least, three hearings to deal with the background of facts. Much of the background of facts contained a collateral attack upon earlier decisions, and in particular the conviction of the appellant by the District Court and the upholding of that conviction by the Court of Appeal. There was, also, a concerted attack on the findings of the 1998 review decision, which upheld the respondent's primary decision to cancel the appellant's entitlements. I repeat in this decision that I am bound by those earlier decisions until they are set aside. At the end of the day after the first hearing I retreated into the traditional defensive role of the diplomat: studied courtesy and silence.
[12] It is necessary to deal with an objection by the respondent as to the use of the appellant of two documents, exhibits 95 and 148 that were clearly the subject of solicitor client privilege. I indicated at the hearing that I would view the documents and make a ruling upon them. First, the documents are irrelevant to this appeal as they are hearsay comments by the author, and it is my decision that is relevant, not that of the writer. Second, the documents are clearly privileged and by some mistake somehow or other they have got into the possession of the appellant. The respondent has always made it clear that its privilege has not been waived. I am of the view, in the face of the objection by the respondent that they should not have been included in any bundle of documents, and to say the least, the use of them was irregular.
Narrative of Facts

[13] I substantially adopt the framework provided by the respondent for my narrative of facts, as it seems to be an effective and reliable summary of the background of facts to this appeal.
[14] The appellant lodged a claim for cover in or about September 1990 for an injury suffered on 27 December 1989. According to the C14 medical certificate completed by Dr Wilcox on 4 September 1990 the appellant was diagnosed as having epicondylitis. It is noted that Dr Wilcox first saw the appellant for the injury on 3 April 1990. He certified the appellant unfit for two weeks.
[15] The Corporation subsequently wrote to the appellant for further information regarding the claim and his prior employment.
[16] According to a file note prepared by a Corporation officer on 21 September 1990, the appellant telephoned the Corporation to advise that he had had a prior claim in 1976 and that he had re-injured his arm on 27 December 1989.
[17] The Corporation subsequently wrote to Trigon Packaging Systems Limited and Herd Park Personnel Limited seeking information regarding the appellant’s employment.
[18] On 26 September 1990 the Corporation received a report from Dr Wilcox advising that he considered the appellant’s prognosis excellent.
[19] A response was received by Trigon Packaging on 3 October 1990 advising that the appellant’s employment had been terminated by mutual agreement on 3 November 1989.
[20] In November 1990 the appellant was referred to Mr Joe Brownlee, 0rthopaedic surgeon, for assessment. Mr Brownlee prepared a report on 1 November 1990 stating that the appellant had tennis elbow symptoms since the accident in 1989. Mr Brownlee opined that the appellant was fit for light work not “including repetitive tasks such as keyboard work, are reported to cause him pain.”
[21] On 21 December 1990 the Corporation wrote to the appellant to advise that his claim for cover had been accepted but he was not entitled to earnings related compensation as the appellant was not an earner at the time his incapacity commenced in March 1990 (being 13 March 1990 when first seen by Dr Wilcox).
[22] On the same date the appellant attended at the Corporation branch. It appears from file notes that the appellant did not accept the explanation from the Case Manager.
[23] Following discussions with the Corporation’s officers it was decided on the same date by the Corporation to pay earnings related compensation to the appellant from 12 April 1990. A request for assistance for surgery was completed on behalf of the appellant by Mr Brownlee on 7 January 1991 for a right tennis elbow release. Despite approval by the Corporation the appellant was subsequently reluctant to undergo surgery. The surgery did not therefore proceed.
[24] The appellant was subsequently referred to Mr Tompkin, orthopaedic surgeon. Again a request for assistance for surgery was completed by Mr Tompkin on behalf of the appellant but the surgery, despite being approved by the Corporation, did not proceed.
[25] In April 1991 ICIL were instructed by the Corporation to investigate the appellant’s circumstances to determine if he was then employed. On 29 April 1991 ICIL advised the Corporation that the appellant had been working at Career Pilot.
[26] A letter was sent to Career Pilot seeking information regarding the appellant’s employment thereat.
[27] Michelle Hyland, Office Manager for Career Pilot, replied to the Corporation on 25 June 1991. Ms Hyland advised that the appellant was not employed by Career Pilot.
[28] In October 1991 it appears that matters came to a head with the appellant. As the Corporation had not received a C15 medical certificate certifying incapacity the Corporation closed its file on 7 October 1991, and suspended its investigation. On the same day the appellant attended at the branch with a C15 medical certificate certifying incapacity. The Corporation sought an interview with the appellant to discuss his employment at Career Pilot. According to a file note dated 8 October 1991 the appellant was reluctant to attend a meeting. The Corporation therefore advised the appellant that his earnings related compensation would be suspended until the appellant attended the meeting.
[29] A further report was prepared by ICIL for the Corporation on 5 November 1991 following further investigations including an interview of the appellant on 18 October 1991.
[30] On 21 November 1991 Mr Nicholson prepared a report assessing the appellant as having a 14.5% permanent disability but noting that the appellant was fit for light work, being the type of work that he had engaged in previously.
[31] On 3 December 1991 the Corporation wrote to the appellant’s barrister to advise that on the basis of Mr Nicholson’s report the appellant was not incapacitated and therefore he was not entitled to earnings related compensation.
[32] The appellant applied for a review of the decision.
[33] In March 1992 a request for assistance for surgery to the right wrist was completed for the appellant by Mr Martin Rees, surgeon.
[34] Following a review decision dated 15 July 1992 it was determined that the appellant was entitled to assistance for the costs of the surgery.
[35] On 24 August 1992 a review hearing, in respect of the ERC decision, was heard. The review officer issued a decision on 7 September 1992 allowing the review on the basis that the appellant was unable to work and therefore entitled to weekly compensation.
[36] In September 1992 the appellant was advised by the Corporation that he was entitled to $6,000 under section 79. An award under section 78 was not made as the appellant’s injury had not yet stabilized. The appellant applied for a review from the section 79 decision.
[37] On 4 September 1992 Mr Rees wrote to the Corporation to advise that he had operated on the appellant’s wrist on 28 August 1992.
[38] On 11 September 1992 the Corporation wrote to the appellant to advise that as a result of its administrative review the Corporation had increased his lump sum to the maximum payable under section 79.
[39] In July 1996 the Corporation prepared a rehabilitation plan for the appellant to consider and sign. In August 1996 the appellant was referred by the Corporation to Cranston-Hunt & Associates for vocational assistance.
[40] In November 1996 the appellant was assessed by Mr Tasman-Jones, orthopaedic surgeon. Mr Tasman-Jones opined that the appellant was fit for light duties. On 21 May 1996, in response to the Corporation’s request, the appellant completed a statutory declaration stating that he was neither working nor receiving an income.
[41] In March 1997 the Corporation commenced a further investigation into the appellant’s circumstances. On 15 April 1997 the appellant was advised by the Corporation that until he signed the earlier IRP his weekly compensation would be suspended. It appears that the IRP was signed on or about 6 May 1997.
[42] As a result of the investigations by the Corporation’s private investigator, the Corporation was satisfied that the appellant had been working whilst in receipt of weekly compensation and not incapacitated. The Corporation accordingly wrote to the appellant on 18 August 1997 to advise that his weekly compensation would be cancelled pursuant to section 73 of the 1992 Act and his claim disentitled.
[43] The appellant applied for a review on 11 November 1997. He stated therein that he had not been working. At or about the same time the appellant made a complaint to the Complaints Investigator.
[44] The evidence from the fraud investigation was provided to the reviewer. The evidence included a number of statements of witnesses, an interview of the appellant, lease documents signed by the appellant on behalf of companies as well as a report from ICIL dated 30 October 1997.
[45] A review hearing proceeded on 5 January 1998. In a decision dated 25 February 1998 the reviewer upheld the Corporation’s decision.
The 1998 Review Decision

[46] The review officer said that Mr Thomas has suffered a traumatic injury to his right arm on 27 December 1989. He first sought treatment in respect of the injury on 3 April 1990, and was certified unfit for work thereafter. The subsequent history of Mr Thomas’s treatment and claim was well recorded on his files, and it would only be referred to in detail if relevant to the issue under discussion.
[47] After considering evidence, the review officer came to a decision that Mr Thomas had worked quite extensively in various businesses. The review officer came to the conclusion that Mr Thomas was working for the purposes of pecuniary gain or profit.
[48] The review officer thought that the statutory declaration made by Mr Thomas was fatal to his claim, as it was clearly at variance with his statements at the hearing, and the available information and evidence surrounding his work activities.
[49] I set out the conclusions of the review officer at p.12 of the review decision hereunder:
“Clearly, and from Mr Thomas’ own evidence, he was working in the natural sense of the word. Furthermore, the available evidence indicates he was working for the purposes of pecuniary gain or profit. That he may not have had some pecuniary gain or profit as a consequence of that work because of unfortunate business setbacks, is peripheral to the fact that he worked. It is also evident that he worked quite extensively in the various businesses.

Furthermore, I believe Mr Thomas has clearly avoided informing ACC concerning his other business activities, apart from those that were legitimately recognised by ACC.

I also believe that his statutory declaration is quite fatal to his claim, as it is quite clearly at variance with his statements at the hearing and the available information and evidence surrounding his work activities.

The history of the file records the claimant’s involvement in setting up a number of companies (without ACC’s knowledge) under the aegis of self-rehabilitation, all of which were clearly set up to generate income, which they clearly did.

Mr Thomas sees his own rehabilitation initiatives, such as setting up various companies, signing lease agreements and also employing various staff for the purposes of generating income, is again clearly at variance with the notion that he was not working.

On a balance of probabilities, the available evidence including that of the claimant, establishes that he was working for a considerable period of time without ACC’s knowledge. I do not accept Mr Thomas’ statements that the activities he was obviously involved in are really just a self-rehabilitation programme and not work at all. He appears to justify this by semantic legerdemain in respect of the definition of work.

In conclusion, and in the face of overwhelming evidence, I cannot be persuaded that Mr Thomas’ claim has any merit whatsoever. I believe ACC’s decision is sound and should not be disturbed.

The review is therefore unsuccessful, and ACC’s decision is confirmed.”

[50] This review hearing confirmed the decision of the respondent of 18 August 1997 to cancel the continuing entitlements and disentitle the appellant’s claim pursuant to section 73 of the Accident Compensation and Rehabilitation Insurance Act 1992. The ground given was that the respondent believed that the appellant was working, while in receipt of full weekly compensation.
[51] A notice of appeal was filed on behalf of the appellant on or about 25 March 1998. The appeal was initially pending the outcome of criminal proceedings brought against the appellant arising out of the same set of facts. Although the criminal prosecution has now been concluded the appeal still remains pending and these findings still stand.
Criminal Proceedings Before His Honour Judge B.N. Morris

[52] Twenty five counts under section 229A of the Crimes Act 1961 were laid against the appellant, covering a period from 10 September 1990 to 11 August 1997. The counts alleged that the appellant, with intent to defraud, used medical certificates to obtain a pecuniary advantage whilst working.
[53] The criminal proceedings were heard before Morris DCJ, Judge alone in the jury jurisdiction, at various dates from 4 October to 17 November 1999. A large number of witnesses were called by the prosecution including a number of medical practitioners. In a decision dated 10 December 1999 the appellant was found guilty and convicted on 24 of the 25 counts. The appellant was sentenced to imprisonment for three years.
[54] Judge Morris made the following comments in his verdict dated 10 December 1999:
“I reject the notion that the accused had no intention to defraud. In my view he clearly established a pattern of deception where he purposefully chose not to fulfil his obligation to fully inform ACC of his activities. He clearly had the dishonest intention of obtaining and using the medical certificates. He clearly obtained an advantage, namely the ongoing financial support of the earning related compensation from which he firmly states he devoted $100,000 to his business interest and the balance he lived on.”

The Court of Appeal

[55] The appellant appealed to the Court of Appeal against conviction. The same was heard on 29 March 2001. In a decision dated 7 June 2001 the Court of Appeal dismissed the appeal.
[56] The Court of Appeal (CA71/00 judgment of Court, McGrath J, 7 June 2001) made the following comments:
“[28] An entitlement to earnings related compensation under accident compensation legislation is a contingent rather than an absolute right. The entitlement at all times depends on the recipient’s continuing incapacity and may be terminated by the Corporation now pursuant to the 1992 Act, if the recipient is no longer incapacitated. The Corporation is expressly required to suspend or cancel payment of compensation if it is not satisfied, on the basis of information in its possession, that a person is entitled to continue to receive compensation (s73(1)). As well, on unreasonable refusal or failure of any person to comply with a requirement made under the Act, the Corporation must decline to make payments for which there is otherwise an entitlement. (s73(2)).

[29] In those circumstances, if a recipient of earnings related compensation withholds from the Corporation relevant information which the recipient has been required to provide, the withholding will often advance the economic interests of the recipient. That is because the Corporation may, in consequence, fail to act under s73(1) or (2) or otherwise to put in train steps, such as reappraisal of incapacity, which could terminate the flow of compensation payments. Where the withholding of required information is coupled with the use or attempted use of a document for the purpose of advancing the recipient’s economic interests in this way, that will be use with intent to defraud under s229A if the recipient’s dishonest intention, or immediate purpose, is to create the situation which the recipient realises would or might deceive the Corporation into so failing to act. Wait Yu-Tsang v R [1992] 1 AC 269 P.C. Arguably that use may also be for the purpose of obtaining a pecuniary advantage without any need to go on to prove the absence of any entitlement to what was claimed, but it is not necessary in this case to decide that question.

[30] Accident compensation fraud charges under s229A which are based on failure to disclose information in breach of requirements made under the Act differ from invoice cases, such as Firth, where the Crown must disprove entitlement. They differ also from cases where no question of entitlement arises such as the unauthorised loan refinancing case of Hawkins discussed in Firth. Cases such as the present form a separate category in which there is an entitlement in a sense but it is contingent, in particular, on the continuing incapacity of the recipient. For that reason to treat the medical certificates which are the basis for continuing claims for compensation as on all fours with invoices, as was done in Brown, in our view was in error although on the facts of that case the ultimate decision of the High Court was correct.

[31] To the extent that the absence of entitlement forms a necessary element of pecuniary advantage in such cases it can be established by proving as a fact that the contingency has ended the entitlement, that is, in the previous context, that the incapacity of the recipient of compensation has ended. We do not accept, as Mr Dacre argued, that the entitlement does not end until it is established though the Corporation’s own procedures under the Act that the recipient is no longer incapacitated.

[32] In the present case the trial judge correctly recorded that the Crown had to prove, beyond reasonable doubt, that each medical certificate was capable of and actually used for the purpose of obtaining a pecuniary advantage. He was plainly satisfied that the defendant, despite his injury, was able to and did work on a day to day or periodic basis to an extent that proved his incapacity had ended at all times covered by the 24 counts in the indictment on which he was convicted. In each case the actual use for pecuniary advantage of a document capable of being so used, was accordingly proved to the Judge’s satisfaction having applied the correct legal test.”

[57] As the Court of Appeal states an entitlement to earnings related compensation under accident compensation legislation is a contingent rather than an absolute right. The entitlement at all times depends on the recipient’s continuing incapacity and could be terminated by the Corporation pursuant to the provisions of the 1992 Act, if the recipient is no longer incapacitated.
[58] The respondent had effectively cancelled the entitlements from the date of its primary decision of 18 August 1997.
Events from March 2001

[59] On 26 March 2001 Dr Belowski certified that the appellant had limitations arising from the 1989 accident and was only able to do two hours per day computer work. It was noted therein that the appellant was a Project Manager at the date of his injury in 1989.
[60] On the same date the appellant completed a request for assistance form seeking assistance for earnings related compensation and medical/social/vocational rehabilitation.
[61] A meeting was conducted between the appellant and Corporation officers at the Manukau Branch on 26 March 2001.
[62] On 11 April 2001 the Corporation wrote to the appellant to advise that he was not entitled to weekly compensation as he was not incapacitated or an earner immediately before the alleged incapacity. The appellant was advised that the previous decision ceasing the appellant’s entitlements still stood. With respect to vocational rehabilitation, the appellant was advised that he was not entitled thereto as he was not eligible for weekly compensation.
[63] During this period and up to July 2001 the appellant entered into extensive and voluminous emails with the Corporation.
[64] An ARC18 medical certificate was prepared on 15 June 2001, again recording limitations for the appellant. It was noted by the general practitioner that the date of the first consultation with the appellant was 26 March 2001.
[65] On 24 June 2001 the appellant applied for a review of the Corporation’s decision of 11 April 2001. The appellant claimed therein that he had “not had any capacity in any occupation from 1989”.
The Review Decision of 19 September 2001

[66] A review hearing was conducted on 19 September 2001. Both the appellant and the Corporation were represented by counsel. The reviewer issued a decision on 12 October 2001 upholding the Corporation’s decision.
[67] The reviewer set out the arguments for both parties and proceeded at page 10 to determine as follows:-
“My decision making in this matter starts with my confirmation that I do have jurisdiction. ACC issued a decision on 11 April 2001 to Mr Thomas that he does not have an entitlement to weekly compensation and vocational rehabilitation. An application for review was lodged within 3 months of that decision. I have been appointed on a Contract for Service according to section 142(2) of the Accident Insurance Act 1998. I confirm that I do have jurisdiction to proceed and make a decision.

At the review hearing, Mr Minchin submitted that Mr Thomas was a worker and an earner at the time of injury. The injury caused incapacity, and as ACC has not followed section 85 of the (current) Act, ACC has no basis on which to deny Mr Thomas this entitlement.

In contrast, Mr Tui submitted that, concerning incapacity, this matter was considered at review, and is presently pending determination in the District Court on Appeal. As a result, the decision stands and is binding on Mr Thomas.

In addition, Mr Tui submitted that there is no evidence to demonstrate that Mr Thomas’ condition in March 2001 had deteriorated since 1997, and also that Mr Thomas was not an earner immediately before the incapacity certified in March 2001.

Having considered all the information available made to me by way of Mr Thomas’ ACC files, the submissions made, and evidence given at the review hearing, I accept Mr Tui’s submissions on both counts.

I find that the decision concerning incapacity previously made at review and pending determination in District Court on Appeal is binding on Mr Thomas.

No evidence has been presented to demonstrate Mr Thomas’ condition in March 2001 has deteriorated since 1997, and there is no evidence to suggest that Mr Thomas was an earner immediately before 26 March 2001.

In my view, ACC have correctly determined that Mr Thomas does not have an entitlement to weekly compensation. As a result, he is also not entitled to vocational rehabilitation.

At the review hearing, Mr Tui said that Mr Thomas still has cover. The transitional provisions of both the 1992 and 1998 Acts provide continuation of Mr Thomas’ cover. However, he is currently not entitled to either weekly compensation or vocational rehabilitation. The cited Clauses of Schedule 1 of the current Act confirm this.

The review dismisses the application.”

[68] A notice of appeal was completed on behalf of the appellant on 7 November 2001 from the reviewer’s decision.
The Legislation

[69] Section 73 of the Accident Rehabilitation and Compensation Insurance Act 1992 provides:
“Suspension, Cancellation, Or Refusal Of Compensation And Rehabilitation

(1) The Corporation shall, [ ] if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment for treatment, service, or related transport, or the payment of compensation, grant, allowance, or provision of rehabilitation. ...

[(2) The Corporation shall, [ ] upon the unreasonable refusal or failure of any person to—

(a) Comply with any requirement made under any provision of this Act relating to any claim; or

(B)/> Undergo medical or surgical treatment in respect of personal injury (irrespective of whether the Corporation [ ] is required or permitted to contribute towards the costs of that treatment); or

© Agree to, or comply with, an individual rehabilitation programme,—

decline to make any payment under this Act.]


[70] Section 79 of the Accident Rehabilitation and Compensation Insurance Act 1992 provides as follows:
Effect Of Decisions Of Corporation


“(1) Every decision of the Corporation shall continue to be of full effect notwithstanding that any review or appeal or other proceeding may have been commenced in respect of that decision.

(2) No obligation to pay any premium or right to receive or recover any premium shall be suspended because any review or appeal or other proceeding may have been commenced in respect of that premium.

(3) No decision of any Court on any matter arising under this Act shall be implemented until any appeal under this Act has been determined or the period for lodging an appeal under this Act has expired and no appeal has been lodged.

[(4) Every decision of the Corporation under this Act in relation to any claim shall be binding on any relevant [funder].

[(5) Every decision under Part 6 of this Act that is binding on the Corporation shall be equally binding on any relevant [funder].]”

[71] It should be noted that section 134 of the Accident Insurance Act 1998 provides that every decision by an insurer on a claim continues to be of full effect even though an applicant has made a review application relating to the decision, and in the case of a review decision, the appellant has filed a notice of appeal. Therefore, under either the 1992 legislation or the 1998 legislation the 1998 review decision continues to have full effect until that decision is set aside: that 1998 decision confirmed the cancellation of the entitlements of the appellant flowing from his injury on 27 December 1989.
[72] Section 82(1)© of the Accident Insurance Act 1998 provides that an insured who has cover for and who lodges a claim for weekly compensation is not entitled to receive it for:
“(i) For any employment that the insurer determines, under section 85, the insured is able to engage in; or

(ii) If the insurer determines that the insured is not incapacitated within the meaning of section 87(2); or

(iii) If the insured is not eligible under clause 7 or clause 22 of Schedule 1 for weekly compensation.”

[73] Pursuant to section 87(2) the question that the insurer must determine is whether the insured is unable, because of his or her personal injury, to engage in work for which he or she is suited by reason of experience, education, or training, or any combination of those things.
[74] Clause 7(1) of Schedule 1 to the Accident Insurance Act 1998 (“the 1998 Act”) reads:
“7. Insurer to pay weekly compensation to insured entitled to it under section 82(1)(a) – (1) The insurer is liable to pay weekly compensation for loss of earnings to an insured who –

(a) Has an incapacity resulting from a personal injury for which he or she has cover; and

(B)/> Was an earner immediately before his or her incapacity commenced.

(2) The insured is entitled to the weekly compensation for each employment for which he or she is incapacitated –

(a) On and from the day after the first week of incapacity ends; and

(B)/> For any period of incapacity, after that first week, resulting from the personal injury for which he or she has cover.

(3) The weekly compensation payable is 80% of the insured’s weekly earnings, as calculated under clauses 8 to 20. This subclause is subject to clauses 21, 24, 25, and 26.

(4) The amount of weekly compensation payable to the insured must be adjusted in the manner provided in section 102.”

[75] Schedule 7(1) requires the following two conditions to be met before a claimant is entitled to weekly compensation:-
[a] The claimant has an incapacity resulting from his or her personal injury for which that claimant has cover, and
[b] The claimant was an earner in the period immediately before his or her incapacity commenced.

[76] The relevant date pursuant to the clause is the date of incapacity, not necessarily the injury, and that the claimant was an earner in the period “immediately” before his or her incapacity commenced. In the case of Newman (AI 132/00) the issue that arose was whether the appellant continued to have an incapacity within the meaning of the Act from the date that the respondent had found that the appellant did not have a continuing incapacity. His Honour said at paragraph 17:
“It must be the case that the appellant must establish that the chain of incapacity is unbroken. Evidence obtained at a later time relating to the fact of incapacity at a later time would not assist the appellant in having weekly compensation reinstated as he would not be regarded as being an earner immediately before that further incapacity arose. It is the case that the appellant had not resumed employment since his weekly compensation had been terminated...”

[77] Similarly, in Scott (17/7/01, Judge Beattie, DC Wellington 199/01) held that section 82 of the Act was the principal provision from which entitlement to weekly compensation must be determined and that the relevant date was that of the incapacity rather than the injury, and that the two events did not necessarily coincide.
[78] The term ‘immediately’ in clause 7(1) has been strictly construed by the District Court on previous occasions. The equivalent provisions to those detailed above, contained in the Accident Rehabilitation and Compensation Insurance Act 1992 (“the 1992 Act”), were considered by the District Court in Vasquez (146/96) and Chamberlain (115/98).
[79] In Vasquez (146/96) and Chamberlain (115/98) the term "immediately before his or her incapacity" was considered. Vasque was a case concerning a claimant, who had been injured while on paternity leave, but whose status as an employee was protected by the Parental Leave and Employment Act 1987. Chamberlain was the case of a claimant, who had sustained a severe head injury as a freezing worker in the off season at the freezing works. His employer said that he was covered by a collective employment agreement. He was regarded by his employer as an employee at the time of the accident and would have been taken on again at the beginning of the season with his seniority in place. In both cases this Court held that "immediately before" meant just that and the claimants were not entitled to weekly entitlements of compensation.
[80] Similar decisions have affirmed the principle of "immediately before his or her incapacity" namely Lynch (43/99), Te Wake (10/2) and Hardie (256/02). More recently I have considered the issue in Ryan (646/03) with the same result.
Incapacity and No Break in the Chain of Causation

[81] It necessary to deal with those category of cases, where there has been no break in the chain of causation between the initial injury and the subsequent onset of an incapacity. In the case of Keil (DCA 126/97, Judge Middleton – 16 December 1997) was confronted with a situation where the appellant was employed as a welder when he suffered a serious back injury on 27 September 1987. In addition to the back injury, he also suffered noise induced hearing loss as a result of his employment, and in respect of both injuries he receive lump sum compensation. The appellant received earnings related compensation under the Accident Compensation Act 1982.
[82] In January 1992 he made an arrangement with the respondent whereby the respondent would contribute $5,000 to assist him to return to Western Samoa with his family, where he hoped to be able to obtain employment. It was also agreed that he would receive weekly compensation for two weeks following his departure from New Zealand.
[83] It was held that this particular arrangement could not legally be entered into, and therefore for the purposes of his decision, Judge Middleton did not take the agreement into account.
[84] When the appellant arrived in Western Samoa at the beginning of March 1992, he did some work in his mother’s store, for which he received no wages. It was found that the position with his mother was unsatisfactory, and the appellant then endeavoured to work in the local fish market, but was unable to cope with the heavy work because of his back condition. The appellant and his wife then started a pre-school establishment in rented premises, which continued for approximately one year. When the lease of the premises lapsed, the landlord refused to renew the tenancy, and the appellant and his wife then decided to return to New Zealand.
[85] On 10 September 1996, the appellant requested the respondent to reinstate his weekly compensation, and provided a medical certificate to that effect.
[86] On 23 October 1996, the respondent advised the appellant that he was not entitled to weekly compensation because he had not been an earner within fourteen days of the commencement of his incapacity. He applied for a review of that decision.
[87] Judge Middleton found that the injury sustained in the accident in 1987 precluded the appellant continuing his work with Mitsubishi Motors because of the heavy nature of the work. The appellant and his wife had returned to Western Samoa and possibly obtained suitable work there. It appears the appellant and his wife ran a pre-school establishment for about one year and this did not appear to have produced any serious earnings.
[88] After numerous attempts to obtain work in Western Samoa, the appellant decided to return to New Zealand, which he did in March 1996. He then endeavoured to find work again, which was unsuccessful, and a doctor provided him with a certificate as being to enable him to apply for reinstatement of weekly earnings.
[89] Judge Middleton considered that the appellant’s evidence provided an unbroken chain which could be accepted on the balance of probabilities as establishing that the same back problem had continued to effect the appellant from the date of his accident down to the present time.
[90] This decision parallels the reasoning of Robertson J in Wicks v Accident Rehabilitation and Compensation Insurance Corporation (HC, 50/93, 22 March 1995). In this case the appellant in 1984 was involved in a serious motor accident in which he suffered multiple injuries including eye damage.
[91] Following the 1984 accident the appellant made a remarkable recovery. There were some changes in his area of employment achieved after major retraining.
[92] In July 1989, along with other people, he was made redundant. He then secured new employment as a help desk manager where he remained until May 1991. In that month he became unemployable, and initially received earnings related compensation. After a review of his file, the Corporation advised that it would not continue paying earnings related compensation, as it had come to a conclusion that the loss of earnings could no longer be considered to be a direct result of personal injury by accident, but rather to the economic climate which the accident compensation legislation was not responsible for.
[93] Robertson J thought that there had been an error of law demonstrated, because the authority had failed to address the critical issue, namely, whether on 1 April 1992, the appellant was suffering a temporary loss of earning capacity as a result of personal injury by accident. He was satisfied that the thrust of the decision appealed against manifested a wrong approach to this pivotal enquiry. The issue was not a determination of the reasons for the termination of the employment, but whether at a given date, the loss of earning capacity is as a result of the personal injury. That fundamental issue did not appear to have been addressed. Robertson J was satisfied that there was overwhelming evidence that but for the 97% loss of vision (which resulted from the accident) the appellant would not have had a temporary loss of incapacity.
[94] If a person who had suffered personal injury by accident, manages notwithstanding the disability from time to time, to avoid having an effect upon earning capacity, that did not break the causative link in a final or irrevocable way. Robertson J was satisfied that but for the impairment of vision which resulted from the injury, the appellant would not have had an interference with his earning capacity.
[95] In Courtney (AI 309/03) I was confronted with a causation abatement submission and I dealt with it in a similar way as follows:
“Here, there were very serious injuries, and clearly the appellant’s present incapacity to work relates back to his injury that occurred on 9 April 1977. From that date he had the status of a potential earner, and while it is accepted that he then subsequently was able to engage in employment and make earnings, in my view, those subsequent earnings applied by way of abatement but did not extinguish his original status as a potential earner as at the time of his accident. His subsequent earnings may well be a relevant yardstick as an evidential factor in measuring his entitlement to compensation, but these subsequent earnings did not break the chain of causation, from the date of his original incapacity down to the date of his present incapacity. It was his grievous injuries that are now responsible for the appellant not to be able to work.

It seems clear on the evidence in front of me, that the probability is that there was no break in the chain of causation, and consequently, the status of the appellant on the issue of incapacity remains alive.”

Vocational Rehabilitation

[96] Clause 53 of Schedule 1 provides that a claimant is entitled to vocational rehabilitation if that claimant satisfies one of the three criteria under paragraph (B)/>. Clause 53 reads:
“53. Application of clauses 54 to 57 – Clauses 54 to 57 apply to an insured who –

(a) Has suffered personal injury for which he or she has cover; and

(B)/> Is –

(i) Entitled to weekly compensation; or

(ii) Likely, unless he or she has vocational rehabilitation, to be entitled to weekly compensation; or

(iii) On parental leave under the Parental Leave and Employment Protection Act 1987”.

[97] In McKenzie (AI 416/02) I commented on this clause as follows:
“The statutory condition imposed by section 53 provides that in addition to cover for the personal injury that the applicant must at the date of application be entitled to weekly compensation. Clause 54 of the Schedule provides that the purpose of vocational rehabilitation is to help an applicant maintain employment, or obtain employment or to regain or acquire a capacity to work. These purposes are judged at the date of the application.”

[98] A similar conclusion was reached in Miller (DCA 379/96) by Judge Barber.
The Submissions of the Appellant

[99] The appellant was certified unfit to work from 26 March 2001 following his release from prison. The appellant contends that he is entitled to weekly compensation from that date. The problem that the appellant faces in respect to his application of 26 March 2001 is that “immediately” before that date he was not an earner, and therefore, could not bring himself within provisions of clause 7 of the First Schedule.
[100] The core submission of the appellant was that at the time of his injury he was an earner, and that the grounds of the cancellation only went to the issue of abatement, and he could marry the time of his injury with his subsequent application on 26 March 2001. In support of this submission the appellant relied upon such cases as Wicks (supra) and Keil (supra): that his injury retained its original status of being related to an immediate earner at the time of the injury and survived periods of time, when this did not happen.
[101] The appellant submitted that he was entitled to have his incapacity assessed under the provisions of the 1998 legislation and that a realistic view of the medical evidence would indeed show that he was either incapacitated as a result of the original injury or a deterioration of it.
[102] The appellant attacked the provisions of the 1998 review decision and that of the subsequent fraud convictions: however, those decisions, in my opinion until successfully appealed against cannot be thus attacked.
The Submissions of the Respondent

[103] The respondent submits that pursuant to clause 7 of Schedule 1 in order for the appellant to be entitled to weekly compensation he must demonstrate that:
[a] He was incapacitated from 26 March 2001, and
[b] Immediately before that date he was an earner.

[104] The Corporation determined on 11 April 2001 that the appellant satisfied neither criteria and as a result was not entitled to weekly compensation.
[105] The appellant was not an earner immediately before 26 March 2001. Any argument, then, regarding the appellant’s alleged incapacity before that date is academic.
[106] “Earner” is defined in section 13 of the 1998 Act as “a natural person who engages in employment”. “Employment” is also defined in Section 13, and means, “work engaged in or carried out for the purposes of pecuniary gain or profit”.
[107] The appellant’s first alleged date of incapacity in this case was 26 March 2001. Immediately prior to 26 March 2001 the appellant was not engaged in work for the purposes of pecuniary gain or profit.
[108] In August 1997 the Corporation suspended the appellant’s weekly compensation on the basis that the appellant was then not incapacitated. That decision was upheld at review and it is presently pending determination on appeal in separate proceedings.
[109] At present the decision stands and is binding on the appellant. Accordingly, the appellant is not entitled to weekly compensation unless he can show that at some point in time after 18 August 1997 his condition deteriorated resulting in a fresh period of incapacity and that immediately before that date he was an earner. On the basis of Dr Belowski’s medical certificate dated 26 March 2001 the appellant claims that he has been incapacitated from that date, but the fact that he was not an earner immediately before that date is fatal to his claim.
Decision

[110] In my view the date that is relevant to the determination of this appeal is the date of the alleged fresh incapacitation or deterioration: 26 March 2001. It is the date of incapacity married to being immediately an “earner” prior to that date, which gives rise to an entitlement pursuant to clause 7 of the First Schedule. It is only, where the chain of causation has not been broken from the date of injury that a claimant can use the his status as an “earner” at the date of injury to surmount the statutory prescription of clause 7.
[111] In this case the chain of causation was broken in that:
[a] The appellant was found not to be incapacitated by the decision of 18 August 1997, and that decision was upheld by a subsequent review decision.
[b] The appellant by the decision of 18 August 1997 had his contingent right to entitlements cancelled by the respondent.
[c] After the decision of the respondent the appellant was found to have committed crimes of dishonesty against the respondent in respect of receipt of his entitlements.
In my view, all these three factors break any chain of causation and distinguish this case from that of Wicks, Keil, and Courtney (supra). The appellant at the relevant time was not an earner immediately before his disability for the purposes of entitlements to weekly compensation or vocational rehabilitation.

[112] While not necessary to my decision I would have held that the convictions for crimes of dishonesty committed against the respondent in respect to the entitlements received arising from the present injury would prevent a further claim to entitlement in respect to the same or substantially same injury. As McGrath J observes it is not an absolute right to an entitlement, but a contingent one: a claimant is under a duty of honesty in respect to the receipt of an entitlement. The structure of the legislation imposes this duty upon a claimant. Section 329 of the Accident Insurance Act 1998 expressly gives the Corporation such powers as are necessary or expedient to perform its duties of functions. In my view the Corporation has the power to cancel an entitlement, because a fraud was being committed upon it in respect to such entitlement: this power is necessary for the Corporation in order that the Corporation may fulfil its statutory function.
[113] A statutory body or Court has an implied power to do what is necessary to perform its statutory functions (McMenamin v A.G. [1985] 2 NZLR 274). In this case that power is express. I have had regard to the observations of the Court of Appeal, in respect to public policy in respect to compensation payments for an injury sustained in the course of a criminal activity, made in ACC v Curtis [1994] 2 NZLR519. I am of the opinion that the type of activity there is fundamentally different from the present situation, where a fraud is committed against what is similar to a statutory insurance scheme. This type of case is more closely aligned to cases such as R v Secretary of State ex parte Puttick [1981] QB 1 and Reg v Chief National Insurance Commissioner, Ex parte Connor [1981] QB 758. The principles to be obtained from those cases is that statutory duties, which are in terms absolute may nevertheless be subject to limitations of public policy accepted by the Courts at the time, when the Act was passed.
[114] For the reasons that I have given I would dismiss the appeal. I have thought long and hard whether I should award costs against appellant in this case. The reason for this is that, in my view, this case was unduly prolonged, as the appellant would not concentrate upon the essential issues. It is noted that in Raimona (M 820-M01, Auckland, High Court, 19 December 2001) Harrison J awarded solicitor/client costs to the ACC upon an appeal application that was misconceived. However, he was unrepresented and the appeal was not entirely devoid of merit. I should signal that the Court in future may not be so lenient to litigants that substantially unnecessarily prolong the course of the hearing. I make no order as to costs.
DATED at WELLINGTON this ......19th..... day of ......October....... 2004


(J. Cadenhead)
District Court Judge
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#18083 User is offline   doppelganger 

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Posted 12 July 2018 - 05:34 PM

This is the relevant section for the decision in the previous post.

32 Corporation to pay weekly compensation for loss of earnings to claimant
who was earner
(1) The Corporation is liable to pay weekly compensation for loss of earnings to a
claimant who—
(a) has an incapacity resulting from a personal injury for which he or she
has cover; and
(B)/> was an earner immediately before his or her incapacity commenced.
(2) The claimant is entitled to weekly compensation for loss of earnings—
(a) on and from the day after the first week of incapacity ends; and
(B)/> for any period of incapacity, after that first week, resulting from the personal
injury for which he or she has cover.
(3) The weekly compensation payable is 80% of the claimant’s weekly earnings, as
calculated under clauses 33 to 45 and 48.
(4) Subclause (3) is subject to clauses 46, 51, 52, and 53.
(5) The amount of weekly compensation payable to the claimant must be adjusted
in the manner provided in section 115.
(6) In this clause, earner includes a person who has purchased weekly compensation
under section 223.
Compare: 1998 No 114 Schedule 1 cl 7

this was also in the 1992 and 1998 Act and hadn't changed.

Take note that Alan was attempting to gain compensation claiming that his incapacity commenced the day he left prison.
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