[Alan Thomas]

This is a landmark case and a victory to Peter Sara

The appellant was a spray painter by occupation and, in May 1995, he obtained cover for work-related personal Injuries, In particular solvent neurotoxicity and occupational asthma. He was subsequently Identified as having multiple chemical sensitivity syndrome.
.
The appellant was accepted as being incapacitated from his pre-Injury employment and began receiving weekly compensation.
.
From October 2000 until July 2004 the appellant was engaged In various forms of employment as a driver and a labourer, for which he received remuneration.
.
The appellant failed to disclose this post-Injury employment and continued to receive the full amount of weekly compensation during that period.
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The appellant was subsequently prosecuted by ACC on 15 charges of . using a document for pecuniary advantage, to which he pleaded guilty


the problem is ACC had no right to cancel ERC but could only carry out an abatement of earnings calculation.

ERC is reinstated and ACC must do the calculation.


...[17] It is also the case, I find, that the appellant has continued to have a weekly compensation entitlement despite the fact of his conviction and, if that entitlement has been stopped, then It has been so without proper process and I direct that any calculation of any sum claimed to be owing by the appellant to the respondent must take account of the appellant's ongoing weekly compensation entitlement, measured again by any ongoing income that he may have received from employment In the period.






IN THE DISTRICT COURT
HELD AT DUNEDIN




Decision No: 210/2007


UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001


IN THE MATTER of an appeal pursuant to s 149 of the Act


BETWEEN BARRIE MARK BURNETT
(AI 452/06)
Appellant



AND ACCIDENT COMPENSATION CORPORATION
Respondent



HEARING at DUNEDIN on 9 August 2007

APPEARANCES/COUNSEL

Mr P Sara for Appellant
Mr I Hunt for Respondent




RESERVED JUDGMENT OF JUDGE M J BEATTIE


Introduction

[1] The issue in this appeal concerns the correctness of the respondent's decision of 1 December 2005 whereby it recorded an outstanding debt of $87,665.82 as being owing by the appellant, and requiring him to make repayment of same.

[2] In this case, the appellant, through counsel, Is challenging the basis of the debt claimed, that is challenging the amount of the overpayment said to have been made. In making that challenge, counsel is not contending that there may be no sum due to the respondent but, rather, the calculation of any overpayment has not been carried out on the statutory principles applicable under the Act.

[3] The background facts are not In dispute and may be stated as follows:

• The appellant was a spray painter by occupation and, in May 1995, he obtained cover for work-related personal Injuries, In particular solvent neurotoxicity and occupational asthma. He was subsequently Identified as having multiple chemical sensitivity syndrome.

• The appellant was accepted as being incapacitated from his pre-Injury employment and began receiving weekly compensation.

• From October 2000 until July 2004 the appellant was engaged In various forms of employment as a driver and a laborer, for which he received remuneration.

• The appellant failed to disclose this post-Injury employment and continued to receive the full amount of weekly compensation during that period.

• The appellant was subsequently prosecuted by ACC on 15 charges of . using a document for pecuniary advantage, to which he pleaded guilty and for which he was sentenced on 2 September 2005.

• The appellant was sentenced to 15 months imprisonment, with leave to apply for home detention. No order for reparation was made.

• The amount of weekly compensation paid to the appellant during the period covered by his fraudulent actions was $87,665.82.

• . Subsequent to the appellant being sentenced for fraud, the respondent issued its decision of 1 December 2005 establishing a debt of $87,665.82 and requiring repayment of same.
• The appellant sought a review of that decision. Rather than considering whether the debt sought to be recovered was properly constituted, the Reviewer concentrated on the provisions of s 251(2) of the Act, which might be described as the "equitable remission of debt provision", and which, not unsurprlslngly, the Reviewer found not to apply on the facts of the case.

[4] The Court received extensive written and oral submissions from counsel for the parties in this appeal but, having considered those submissions, I find the matter to be fairly straightforward and simple. In addition to the background facts set out above, I find the following facts to be established:

(i)The respondent has made no determination that the appellant was no longer incapacitated, In accordance with s 104 of the Act.

(ii)The respondent has made no determination of the appellant having attained vocational independence, pursuant to s 107 of the Act.

(iii)The amount of the debt sought to be recovered represents the net amount of weekly compensation paid to the appellant between 20 October 2000 and 18 July 2004 without any abatement of compensation assessment carried out in accordance with the formula provided in cl 51 of Schedule 1 to the Act.

[5] Mr Hunt, for the respondent, referred to a number of medical reports from occupational medicine specialists which indicated that the appellant was capable of full-time employment providing he wasn't exposed to particular solvents In any workplace he may be engaged In. Further, counsel Indicated that the very fact of the appellant's employment would indicate his capabilities.

[6] Mr Hunt's submission was wholly based on the premise that the evidence entitled the respondent to find that the appellant was not incapacitated during the relevant period, i.e. between October 2000 and July 2004, and therefore there was no entitlement to weekly compensation for that period; therefore the whole of the amount was recoverable.

[7] Mr Sara, on the other hand, submitted that the respondent had made no determination of the appellant as no longer being Incapacitated and, secondly, that the respondent had not had reference to any abatement principles when assessing the amount of overpayment.

Decision

[8] The respondent contends, by the decision It made which is now the subject of this appeal, that it is entitled to have repaid to it the full amount of weekly compensation paid to the appellant between October 2000 and July 2004, being the period when It contends the appellant was engaged in remunerative employment and, therefore, ought not to have been receiving weekly compensation.

[9] In support of that contention, Mr Hunt has referred the Court to evidence that was presented at the prosecution of the appellant, which clearly Identified that he was engaged In remunerative employment In that period; and, secondly, counsel has referred to the opinion of Professor Des Gorman, Occupational Medicine Specialist, who considers that the appellant is fit to rejoin the workforce in occupations that do not Involve exposure to solvents. Counsel also referred to the fact that Professor Gorman considered that the appellant could return to his former employment providing there was a proper spray painting booth and there was proper personal protective equipment provided by the employer.

[10] Those medical reports have gone no further than being reports and have never been acted upon by the respondent either in terms of making a determination under s104 that the appellant is no longer incapacitated or by it initiating vocational independence assessment in accordance with s107 of the Act.

[11] Without either of those two procedures being implemented and decisions made, I find, as a matter of law, that the appellant must be taken as still being incapacitated within the meaning of the Act and thereby prima facie entitled to receive the weekly compensation that was assessed as being his entitlement back in 1995.

[12] The fact that the appellant has been engaged in remunerative employment I find, as a matter of law, only affects the amount of the weekly compensation to which the appellant is entitled. The situation of a claimant In receipt of weekly compensation receiving earnings during that same period is specifically provided for in cls 49 and 51 of Schedule 1 to the Act and it Is the case that the respondent can abate the amount of weekly compensation payable In accordance with the formula provided for in cl 51 of Schedule 1 to the Act.

[13] The respondent has not carried out such an exercise and, therefore, prima facie the amount which it seeks to recover, and which is the subject of the decision under appeal, must be considered questionable and it could not be considered the correct amount unless the appropriate calculation, using the abatement formula, was made.

[14] The fact that the appellant committed criminal offences In the course of continuing to receive weekly compensation, I find Is wholly Irrelevant to the Issue in this appeal. The offence committed by the appellant, which he acknowledged, was that he knowingly failed to advise the respondent of his income at the time he signed the various ARC 18's on which he declared that he was not receiving any remuneration.

[15] The criminal act, and the appellant's acknowledgement of it, does not in any way impinge upon what might be his ultimate liability under Accident Compensation legislation.

[16] In summary, therefore, I find that the respondent's decision of 1 December 2005 cannot be sustained and it is hereby quashed. The quashing of that decision does not mean that the appellant does not have any obligation of repayment to the respondent for any amount of weekly compensation paid to him In the period October 2000 to July 2004, it simply means that the way in which that sum was calculated was not in accordance with the requirements of the Act, and any sum due by the appellant to the respondent can only be the amount calculated after applying the abatement principles contained In the Act.

[17] It is also the case, I find, that the appellant has continued to have a weekly compensation entitlement despite the fact of his conviction and, if that entitlement has been stopped, then It has been so without proper process and I direct that any calculation of any sum claimed to be owing by the appellant to the respondent must take account of the appellant's ongoing weekly compensation entitlement, measured again by any ongoing income that he may have received from employment In the period.

[18] The appellant being successful, I allow costs in the sum of $2,000.


Dated this 4th day of September 2007



M J Beattie
District Court Judge

Attached File(s)

•  Burnett_v_ACC_452_06.pdf (126.94K)
  Number of downloads: 9

[Alan Thomas]

The case law are now supports the legislation. Judge Beattie has ruled that the information gathered by private investigators and decisions made by the fraud unit and even criminal court judges does not outweigh the legislated procedure to determine ongoing incapacity to earn or vocational independence.

Of course we will never know, and judges will never admit, the influence of the accform.org, the vast behind-the-scenes work carried out by Warren Forster and various others that have generated a significant enquiry into the activities and processes of the ACC Fraud Unit and ACC Legal Services Unit who have sought to usurp the authority of legislation by accident treachery against invalids.

It goes without saying that the decision of judge Beattie will form the cornerstone of the Hayes appeal to the Supreme Court.

The combined effect of the negative publicity against the ACC fraud unit, the fruitage of the fraud unit and decision-making processes of the Corporation when set against the legislation as described by judge Beattie and the outcome of the Supreme Court we will see profound change its to the way that the ACC conducts business. They will not be able to keep doing what they are doing without the certainty of criminal prosecution against themselves as they will no longer be able to claim ignorance, even if they could have claimed ignorance until now.

[Huggy]

This topic is already running in another thread Alan your a bit slow tonight lol

[Alan Thomas]

NEWSFLASH

The ACC are appealing the Barnett case.

The ACC are appealing to the High Court on a point of law. I have not particularised what their grounds yet but it will be about whether or not ERC can continue once they had achieved a criminal conviction that there has been an overpayment. It seems that the ACC feel that they can make decisions based on assumption rather than make determinations as prescribed by legislation which necessitate a procedural approach with all of the actual ingredients applied into the legislated formula.

It would appear that the ACC think it is good enough to make assumptions Based on what appears to them to be obvious as an alternative to being obedient to legislation. they have been running criminal prosecution after criminal prosecution for many years in this way many times not even making an appealable decision denying the claimant the opportunity to appeal the ownership of the entitlement forcing the criminal court to rely upon the authority of the ACC instead leaving the claimant with absolutely no chance of challenging the ACCs alleged facts.

[Spacecadet]

Alan

The last post only contains one fact - which is yet to be verified - that ACC are appealing the Burnett case.

This I believe is a good thing. It will resolve the issue once and for all. The only grounds for appeal can be a point of law. The rest of your post is speculation and rambling by you and only serves to cloud the issue. You should take heed of the legal argument in the Burnett case. It is a beacon of light in the fog in the legal system, created mainly by you and your inept interpretation of law and legal defence.

I suggest you stop offering your "quasi" legal opinions and speculation about ACC's position on the case, and take a back seat and observe while others sort out the legal mess created by you and your convictions. There comes a time when you must take responsibility for your own actions which resulted in your predicament.

To use one of your own quotes "We can't solve problems by using the same kind of thinking we used when we created them."

The more you argue - the bigger the hole you dig for yourself.

[fairgo]

I suspected ACC might take that course of action if only to save face..... If ACC lose then of course the decision on ACC entitlement and fraud takes a much stronger stance.

Interesting times.........

[Alan Thomas]

The question of law is quite simple.

Can the ACC make decisions without making a determination?

A decision can be made on the basis of an assumption.

A determination requires a prescribed procedure, in this case S103, S107 and the formula found in clause 51 of schedule 1.

The point of law that the ACC had argued is that they are above the law.

It is always useful to look at the worst possible scenario so as to properly understand a point of law.

In the case of Barnett he was an industrial spray painter. This means he would have had the experience and skill of someone with that least three or four years of training (tradesperson). Post injury he was working as a truck driver which is equivalent to three months training.

ACC had assumed that as he was driving trucks for a number of years he was vocationally independent. The worst-case scenario is that the cause of his brain injury he has a lapse of concentration drives his big rig into a bus and killed everybody but lives. If he should not have been driving because of his injury would he go to jail for manslaughter? Had the ACC " determined" that he was vocationally independent as a truck driver.

Judge Beattie has made a ruling that ACC are not entitled to make a decision without a determination, the absence of the legislated procedure. Essentially Beattie J has said that the end does not justify the means. in law we have protected from bureaucrats going down that road because of the potential of mistakes. As invalids we have already had some of our rights taken away from us naturally we do not want this right taken away from us, innocent until proven guilty.

Because the ACC are appealing on a point of law can only be concluded that the ACC I want them to have the unfettered discretion of making decisions without determinations based on "the commonsense approach".I would be confident that the ACC would have said something like the decision letter is devoid of rational grounds, without reference to the legal basis for the alleged deadheading being stated, or factual basis relying upon a technicality and devoid of substantive merit because they are relying upon a criminal conviction of fraud rather than legislated procedure set down to protect the community against unqualified and wrong assumption.

While the ACC might be wishing to save face, which I am sure they are, I am seeing a floodgate bursting open. It is possible thatreason why the ACC did not ask for reparations at the sentencing hearing, as most of these cases, is that to do so they would have had to knowinglly commit perjury.

Interesting Times...............

The question of law is quite simple.

Can the ACC make decisions without making a determination?

A decision can be made on the basis of an assumption.

A determination requires a prescribed procedure, in this case S103, S107 and the formula found in clause 51 of schedule 1.

The point of law that the ACC had argued is that they are above the law.

It is always useful to look at the worst possible scenario so as to properly understand a point of law.

In the case of Barnett he was an industrial spray painter. This means he would have had the experience and skill of someone with that least three or four years of training (tradesperson). Post injury he was working as a truck driver which is equivalent to three months training.

ACC had assumed that as he was driving trucks for a number of years he was vocationally independent. The worst-case scenario is that the cause of his brain injury he has a lapse of concentration drives his big rig into a bus and killed everybody but lives. If he should not have been driving because of his injury would he go to jail for manslaughter? Had the ACC " determined" that he was vocationally independent as a truck driver.

Judge Beattie has made a ruling that ACC are not entitled to make a decision without a determination, the absence of the legislated procedure.

Because the ACC are appealing on a point of law can only be concluded that the ACC I want them to have the unfettered discretion of making decisions without determinations based on "the commonsense approach".I would be confident that the ACC would have said something like the decision letter is devoid of rational grounds, without reference to the legal basis for the alleged deadheading being stated, or factual basis relying upon a technicality and devoid of substantive merit because they are relying upon a criminal conviction of fraud rather than legislated procedure set down to protect the community against unqualified andwrong assumption.

[Spacecadet]

A lot of words Alan but you are still missing the point, which is why you are in a hole.

Fairgo - yes ACC had to appeal this one. The High Court decision will be interesting - and needed!

[waddie]

I would be very surprised if ACC were successful. From my understanding the the consensus of medical opinion is the claimant could not return to his pre-injury employment due to chemical toxicity. Therefore, the only other way is to determine that he has attained vocational independence.

ACC did not issue a decision on either s.103 or 107. Thats the legislation - game over - the statutory entitlement remains.

[Alan Thomas]

Yes Waddie that is the consensus of legal opinion of which is now caselaw. Nevertheless the ACC applying for an appeal to the High Court and I am sure that they will not be wanting to increase the clarity of Beattie J decision. It can only be concluded that they wish to expand upon their submissions concerning the point of law that they had in mind already presented to the district court. ACC believe that they can make a decision without a determination iin accordance with legislation based on their feelings.

Spacecadet Yes I am still in a hole that I am in a whole because ACC have made decisionns about feelings rather than being subservient to legislation. This is not something that is in my control that can only be resolved with legal mind such as Peter Sara as it goes without saying that nobody is going to listen to brain-damaged invalids like me no matter how well I state the obvious.

[Alan Thomas]

QUESTIONS THAT I DO NOT KNOW THE ANSWER TO

Doppelgänger raised the issue:

if the ACC loose in the high court the ACC may have to go through all of those claims that they used the Private Investigators information to remove entitlements to reinstate those entitlements.

Is the ACC required to go through all of these of claims right now already?
Why would they need to have a High Court decision before they were required to do this?

My impression is that the law has already been described to the ACC.

[Spacecadet]

waddie, on Sep 25 2007, 01:56 PM, said:

I would be very surprised if ACC were successful. From my understanding the the consensus of medical opinion is the claimant could not return to his pre-injury employment due to chemical toxicity. Therefore, the only other way is to determine that he has attained vocational independence.

ACC did not issue a decision on either s.103 or 107. Thats the legislation - game over - the statutory entitlement remains.

Wadie
ACC can only appeal on a point of law - not the facts. Thus not being able to return to his previous occupation may not be a consideration. As you said it looks like game over.

Alan - it is abundantly clear from your verbose ramblings that you have no yet comprehended the law in relation to this judgement. This judgement does not become case law until it has been appealed to the High Court. An ACC appeal decision does not overrule a District Court decision.

[Alan Thomas]

Spacecadet I hear you but I am confused as to why district court decisions are relied upon in court if they do not establish caselaw. Because I am not legally trained I have no idea as to why you suggest something is not caselaw unless it goes to the High Court.

In this case it looks like the ACC want to establish caselaw that they can make decisions without limiting themselves to the legislated procedures to make determinations. Please Illuminate

[fairgo]

My understanding is this....District court decisions CAN be considered when making further court decisions on other cases. High Court decisions MUST be considered and therefore take precedent.

This is why the Ramsay case usurped the Powell case when it came to ACC assessors and their assessments being sacrosanct. Ramsay was High Court. Powell was District Court. A bit like being trumped.

[Alan Thomas]

While there exists a district court decision where it clearly states it the ACC does not carry out the legislated procedure the entitlement remains the property of the claimant, irrespective of whether or not the claimant was working and earning, what is the legal precedent for the ACC not reimbursing Mr Bennett all his ERC up until the present?

What is the legitimate expectation that Mr Bennett receive a cheque in the mail from the ACC together with the abatement of earnings calculation requesting that he give some of the ERC back?

What is the expectation that the ACC go to the criminal court and say oops we got it wrong as by way of a technicality Mr Bennett still owns his ERC and therefore could not have stolen it yet?

Because Mr Bennett told the ACC that he had started working part-time as a truck driver and was increasing his hours, was working off and on and did not know about abatement of earnings calculations, at what stage should Mr Bennett have "forced" the ACC to address the issues of the ERC while he was earning money in a job. Once he found out about it he panicked and did not know what to do so did nothing while waiting for the that day when the ACC would come knocking on his door.

[waddie]

The Ramsey decision defines ACC's archilles heal. The focus goes back onto the process, which is often flawed. ioa-ima-irp-vr-via.

Hanmore v ACC (99/2006) where the Judge Cadenhead held that;
[62] In my view, one of the important starting aspects of considering whether or not the appellant has received comprehensive vocational rehabilitation is to consider the initial occupational assessments and initial medical assessments. The reason for that is that the contents of those documents should form part of the core purposes of the IRP.

and one of my babies...
Tuffery v ACC 6/4/05, Judge Ongley, DC Wellington 107/05. The Court found that the purpose in Section 107(3) of ensuring reasonable completion of comprehensive vocational rehabilitation as identified in the appellant’s individual rehabilitation plan had not been achieved.

Hence why the person with the same name as me has overturn 85% of the VIA decision they have handled.

So either claimants can try and get comprehensive rehab before exiting, then you probably need assistance from someone experienced in such matters to assist in the IRP preparation, or leave it up to ACC to run you along the conveyor belt and hope that someone can get them back on after getting shafted, or end up on the scrap heap and no closer to being vocationally independent. IMHO

oops off topic.

[MG]

I heard about this appeal yesterday from P Sara himself. It will be interesting indeed to see what points of law ACC believes the District Court got wrong and that requires the correction of the High Court. I suspect though, that if they don't get what they want from the Courts, a law change will be rushed through early next year along with the "improvements" to weekly compensation.

[fairgo]

Yes there is always that possibility MG but I believe the 'changes' have already been circulated and it may not be that easy to squeeze another 'minor modification' in..... I know the eternal optomist!!

[Spacecadet]

Mini, on Sep 26 2007, 10:56 AM, said:

Hi all

When in the High Court, trying to use an Appeal Court decision (not mine) as caselaw, to aid me, in my percarious fight, the High Court Judge gave me one of those looks that only HC Judges can do, and said (Along these lines), "I am not much interested in what a Appeal Court decided, we are now deciding the matter in the High Court".

Like, 'you are in a completely different system now'.

So be careful out there to get the facts straight etc.

I was only there to get my own way and that happened, so am not complaining about the Judge.

Good luck at High Court Barrie.

Cheers
Mini

An ACC Appeal in the District Court is a decision of an inferior Court, and is not even contenplated inthe High Court. Case law it that which is decided in the High Court, and the District Court are bound to follow these decisions, as they have be made strictly on a point of law, without regard to factual matters.