Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Wells v Accident Compensation Corporation (ACAA, 28/05/13)

Judgment Text

DECISION 
Robyn Bedford Member
[1]
The appeal is brought by way of an application for leave to appeal out of time against the review decision dated 7 July 1986 (the 1986 review decision), which upheld the Corporation's decision setting the appellant's relevant earnings (RE) at the date of his second incapacity in 1985 as a self employed person, rather than on his higher RE as an employee at the date of his injury in 1982 as previously used. 
[2]
The application was prompted by a related review decision issued on 24 March 2010 (the 2010 review decision), which concerned Mr Well's application for weekly compensation to be backdated to when his earnings related compensation (ERC) ceased in 1988, which ultimately resulted in his RE for payment of the backdated weekly compensation being based on his earnings at the date of subsequent incapacity in 1985. 
The application 
[3]
The notice of appeal identifies the ground for appeal as being that the Review Officer failed to properly apply s 104(10A) of the Accident Compensation Act 1972 and s 53(9) of the Accident Compensation Act 1982, and seeks a recalculation of Mr Wells' weekly compensation and the earnings upon which it should be based. 
[4]
The grounds for the late application are stated as “extenuating circumstances”, being that Mr Wells' suffered pain and depression over the years, which was said to prevent him from taking the necessary steps to appeal within time and that he had made various attempts over the years to have his compensation reinstated, primarily from 2008 and the application that gave rise to the 2010 review. 
[5]
The Corporation opposes the application on the grounds of the length of the delay, the lack of explanation for the delay and the fact that Mr Wells was represented at the 1986 review hearing. The Corporation also claims prejudice to its ability to investigate why Mr Wells left his employment to set up his own business and in relation to the general difficulty in deciding the merits of the original decision, some 29 years after the event. 
Issue 
[6]
The question in the substantive appeal is whether the Corporation's decision of 21 January 1986 to fix Mr Well's RE on his earnings as a self employed person at the time of his incapacity in 1985, was a proper exercise of its available discretion under s 104(10 of the Accident Compensation Act 1972, being the Act under which Mr Wells has cover. 
Background 
[7]
In August 1982, Mr Wells suffered a whiplash injury to his neck and fractured his nose in a motor vehicle accident; he also has cover for chronic pain and depression as mental consequences of his injury. At the time of the accident Mr Wells was a driver of a HIAB truck for the Christchurch City Council (CCC); he was paid ERC for a short period immediately after his accident which was based on his pre-accident earnings. Following a further injury to his neck caused by pulling out a stabiliser leg on the HIAB, Mr Wells received ERC for 12 and 13 May 1983 and then 30 May to 5 June 1983, fixed at RE of $234.33 per week.1
| X |Footnote: 1
This is taken from the ACC file payment history. 
 
[8]
Mr Wells left his employment with CCC in August 1983 and commenced business on his own account as a car dismantler. The reason Mr Wells left CCC will be dealt with below, but suffice to say that in May 1985, Mr Wells again applied for ERC. The Corporation accepted that he was incapacitated because of his covered injuries and he again received ERC for a period. Mr Wells also sold his business. 
[9]
In December 1985, Mr Wells again applied for ERC and payment was again made based on his earnings with CCC. On 21 January 1986, following the recommendation of the Claims Supervisor to reduce Mr Wells' RE and reassess him on his self employed income for the tax year ended 31 March 1985, the Corporation reduced Mr Wells' RE to the prescribed self-employed minimum rate of $90.00 per week as his pre-incapacity earnings were so low, and backdated the reduction to 15 January 1986. Mr Wells applied to review the decision and his application reads as follows: 
“(1)
At time of accident, I was employed by the Christchurch City Council as the driver of a Hiab truck. 
(2)
Although I continued in this employment for 11 months, matters became increasingly difficult, as the injury to my neck became very painful. 
(3)
For the reasons set out above, I terminated my employment with the Council in about 27/7/83 & commenced business on my own account as a vehicle dismantler. Once again, I found that my injuries interfered with my employment & it became difficult to work beneath vehicles. This in turn affected the profitability of my business and I was obliged to leave it by May 1985. 
(4)
Once again I attempted a driving job, but I found it impossible to continue as my injuries resulted in a great deal of pain. 
(5)
I consider that, if it had not been for the injuries resulting from the accident, I would still be employed as a driver for the Council. I therefore consider that the earnings related compensation should be based on the earnings I would have received had I still been employed by the Council. ”
The 1986 review decision 
[10]
The Review Officer, Mr Ayton, recorded that Mr Wells suffered an injury in 1982, which did not incapacitate him until 1985 and that he had been receiving ERC since December 1985. He said that the evidence was that Mr Wells had been a driver and HIAB operator for CCC and that he continued to work until July 1983, however he found that the constant looking up and jarring in the truck caused problems with his neck and he was forced to leave. Mr Wells then purchased his own business as a car wrecker, but considered that the problems of manipulating himself around the vehicles affected his business and forced a sale. 
[11]
Mr Ayton made two important findings of fact, namely that the Corporation clearly accepted responsibility for the payment of ERC as a result of the 1982 accident, and that, on the basis of the medical evidence (the Walton report dated 12/5/86 obtained by ACC), Mr Wells' decision to leave CCC and establish his own business was clearly a decision based on the fact that he was having some problems with his neck. 
[12]
Mr Ayton rejected Mr Well's solicitor's submission that s 53(9) allowed the corporation to base its RE calculation on his earnings at CCC and not his subsequent earnings, which it was submitted was only fair in light of the medical evidence, because Mr Ayton considered that s 53(9) imposed a responsibility on the Corporation to consider his actual earnings at the time of incapacity. The income from CCC would not fairly and reasonably represent Mr Wells' earnings at the time of the incapacity as he had been running his business for 18 months and making an income, and this gave a more appropriate indication of his earnings at the date of incapacity. Mr Ayton said that the question of why Mr Wells left CCC was not a relevant consideration under s 53(9), but on the basis of the medical evidence he suggested that Mr Wells should seek medical certification to support ongoing incapacity from May 1985. 
[13]
Mr Wells did not appeal the review decision but he did obtain the recommended certification that he was unable to carry on with his business from May 1985 because of his 1982 injuries. On 13 August 1986, the Corporation accepted Mr Ayton's advice and backdated Mr Wells' ERC to May 1985, again fixing his RE at 90% of $100.00 per week under s 61 of the 1982 Act. 
[14]
Mr Wells was also assessed for lump sum compensation in 1986 and he applied to review that award. He gave evidence at the hearing in December 1986 concerning his reasons for leaving his employment with CCC, which the Review Officer recorded in detail in his decision dated 3 February 1987 (the 1987 review decision). Like Mr Ayton, Mr Scragg accepted Mr Wells' evidence that he had left CCC because he could not sustain the work because of his 1982 injuries and the medical evidence that he could not return to his employment at the date of accident because of his injuries. 
[15]
Mr Wells provided his last medical certificate in July 1988 and returned to work for a short period. He instructed a lawyer in October 1988 who inquired about his compensation, but he took no further action until May 1993, when he applied for treatment expenses and an independence allowance. Mr Wells applied unsuccessfully to review the independence allowance decision. 
[16]
In 2008, Mr Wells asked the Corporation to revisit his compensation and sought payment backdated to when it ceased in July 1988, but the application was declined because there was no evidence of continuous incapacity. Mr Wells applied to review the decision and the review was (wrongly) held under the 2001 Act. The Reviewer quashed the decision and directed the Corporation to obtain further medical evidence. The Corporation did so, and confirmed the necessary incapacity by July 2010. Weekly compensation was then backdated to 1988, based on the RE of $90.00 per week, as fixed for the 1985 incapacity. 
The legislation:Accident Compensation Act 1972 
104(1)
… for the purpose of paying any amount of earnings related compensation payable during or after the period of short term incapacity (as defined in s 2(1) of this Act) to an earner who suffers personal injury by accident in respect of which he has cover under this Act … the amount of his relevant earnings shall be such amount as, in the opinion of the Commission, would, at the time of the accident, fairly and reasonably represent his normal average weekly earnings, having regard to such information as the Commission may obtain regarding his earnings at the time of the accident and to his work history and the period of his residence in New Zealand before the time of the accident. 
104(10)(A)
Where any period of incapacity for work does not commence on the date of the accident, and the Corporation is of the opinion that relevant earnings ascertained in accordance with the foregoing provisions of the section do not fairly and reasonably represent the earner's normal average weekly earnings at the commencement of the period of incapacity for work, the Corporation may, notwithstanding the forgoing provisions of this section, in its discretion determine an amount which in its opinion would fairly and reasonably represent his normal average weekly earnings at the time of the commencement of the period of incapacity for work, having regard to such information as it may obtain regarding his earnings before the time of the incapacity and his earnings at the time of the commencement of that period, and to his work history and the period of his residence in New Zealand before the time of the period of incapacity for work; and any amount so determined shall be treated as if it was his relevant earnings for the purpose of assessing earnings related compensation during the particular period of incapacity for work. ”
[17]
Section 53(9) of the 1982 Act is substantially similar to s 104(10) and contains the same factors for the Corporation to consider in the exercise of its discretion. 
Out of time applications 
[18]
The leading case under the 1982 Act is the High Court decision of McDougall v Accident Compensation Corporation2
| X |Footnote: 2
M Dougall v Accident Compensation Corporation NZACR 677 (1983; NZAR 85 
, which related to an application for leave to apply for a review out of time, and the Appeal authority has consistently applied that case to applications for leave to appeal out of time. The factors are: 
[a]
Length of delay beyond the time allowed. 
[b]
Reasons for the delay. 
[c]
Strengths or merits of the case; and 
[d]
Prejudice to the Corporation if the extension is granted. 
[19]
Overall, however, as Mr Cartwright stated in Ellis v ACC3
| X |Footnote: 3
Ellis v ACC Decision No.12/2004 at [15] 
, “the Appeal Authority must ask itself whether it would be just to grant the extension sought. Justice must be considered not only from the viewpoint of the appellant, but also from the viewpoint of the respondent.” 
Length of delay and the reasons for it 
[20]
In this case, the delay is some 26 years and no cogent reasons for the delay have been provided. Mr Wells was able to understand and act on the 1986 review decision to arrange for the further medical certification within roughly the same period allowed for filing an appeal under the 1972 or 1982 Acts, and the 2010 review decision demonstrates that Mr Wells had no difficulty pursing other claims against the Corporation within the related time limits. He was also legally represented. 
[21]
Mr Miller said somewhat ambiguously in his submissions that it was realised after the 2010 back payment was made that it was not based on Mr Wells' earnings as a truck driver with CCC, but on his self-employed income as a car dismantler in 1985. I cannot accept that this “realisation” applies to Mr Wells, as the application for review that Mr Wells personally lodged in 1986 is founded on his claim that his compensation should not be based on his earnings in 1985 at the date of his incapacity and the review was run entirely on this issue. 
[22]
And to the extent that the delay is attributable to Mr Miller's own realisation of the true situation in 2010, with respect, this can only account for two of the 26 years it took Mr Wells to file his appeal. While the Authority has allowed late appeals involving similar periods,4
| X |Footnote: 4
See e.g. Lineham v Accident Compensation Corporation Decision No. 13/2004, where the Authority allowed an appeal that was 24 years out of time because the appellant was not aware of that his compensation was not properly assessed under the 1972 Act, until he was legally represented for the first time for the late application. 
the circumstances of this application would require the balancing effect of the merits and lack of prejudice to the Corporation, for the extension to be granted. 
Strengths or merits of the case 
[23]
Mr Miller followed the approach taken on Mr Wells' behalf by Mr Perry at the 1986 review hearing, and submitted that the medical evidence supported Mr Wells having left his employment at CCC as a result of incapacity caused by his 1982 injuries. The reason for leaving CCC was the real issue, and the Review Officer had found in Mr Wells' favour on this point. 
[24]
Mr Miller also submitted that incapacity was confirmed by the comments made by Dr Mike Causer dated 21 May 2010, as he stated that there were medical reports from 1984 to 1988 indicating ongoing incapacity as a result of the 1982 neck symptoms, and the medical certificates, reports and letters in the partial copy of the ACC file he had located from 1983 to 1988 also supported this. In Mr Miller's view it was only fair and reasonable to use Mr Wells' earnings at the date of accident instead of his self-employed earnings in 1985, as all his periods of incapacity were attributable to his 1982 injuries; there was no new intervening injury, and Mr Wells left CCC because he could not continue driving the HIAB truck any more. 
[25]
Mr Barnett said that there was no dispute that Mr Wells' 1982 injuries caused his incapacity in 1985, but there was no evidence Mr Wells was incapacitated from his employment when he left CCC in August 1983. The letter to ACC from his GP Dr Slassor dated 3 October 1983 did not suggest this and the letter from CCC to ACC dated 21 May 1986 did not say that Mr Wells had left CCC for health reasons. It was quite possible that he had left for lifestyle reasons not related to his injury and Mr Ayton's finding that Mr Wells had left his employment with CCC because of his 1982 injuries should not be given any weight, because Mr Ayton did not think this was relevant and therefore did not seriously turn his mind to the issue. Furthermore, Mr Wells went to employment of a similar heavy nature and Dr Causer's 2010 report indicates that he remained fit for his CCC work and that his subsequent work caused a subsequent incapacity. 
[26]
Mr Barnett argued that as it was not established that Mr Wells was incapacitated for his employment at CCC when he suffered the much later incapacity in 1985 and could not continue in his then employment, this was a delayed incapacity and the Corporation was correct to apply s 53(9) of the 1982 Act. The section provides the Corporation with the discretion to determine RE having regard to, among other things, the normal average weekly earnings at the time of the commencement of the incapacity, and the section may apply where the later earnings are more or less than pre-accident earnings. 
[27]
Mr Barnett submitted that the decision of the Corporation must be upheld unless it exercised its discretion improperly. It was Mr Wells' decision to leave CCC and take up self employment in a job that was no less physically demanding than his work for CCC, and the evidence demonstrated that it was this work which he was later unable to sustain, although by then he may have also become unfit for his original work for CCC. This meant that the earnings he had at the date of incapacity from being a car wrecker were entirely appropriate for the Corporation to use to determine his RE on the basis of his self employed income. 
Discussion 
[28]
I think that despite Mr Barnett's misgivings, Mr Ayton's findings on the first two questions must be accepted. Mr Ayton had the same evidence before him that Mr Barnett has relied upon, but he also had the benefit of hearing evidence from Mr Wells and he had the full ACC file on which to base his findings. I note also that although the letter from CCC said that as far as they could tell, Mr Wells had not left for health reasons, the letter goes on to say that because of changes in staff it was not possible to check if there was a health problem that caused the change of employment. 
[29]
Mr Ayton made a clear finding on the basis of the medical and other evidence before him, that Mr Wells' decision to leave CCC was based on the fact that he was having problems with his neck working at CCC as a result of his 1982 injuries. This finding was supported by the 1987 review decision and in my view, nothing in Dr Causer's retrospective medical report 22 years after the event is able to disturb this finding, or reasonably cast doubt upon it and it is accepted in law that contemporaneous reports and evidence are able to be given more weight. 
[30]
Further, Mr Barnett's challenge to Mr Ayton's finding on this point is not obviously open to the Corporation on an appeal under Part 9 of the 1982 Act. There is no right of appeal reserved to the Corporation against a review decision, and even if an appellant puts a particular fact in issue, an appeal must proceed on the findings of fact that the Review Officer has made, unless they can be shown to be wrong in law, or contrary to the evidence. The only possible such findings in this case are Mr Ayton's statements that Mr Wells' reasons for leaving CCC were not relevant, and that the Corporation has a responsibility to consider actual earnings at the time of incapacity under s 59(9), both of which are inconsistent with the Corporation's present case. 
[31]
Mr Barnett argued that the reasons for a change of employment are essential for fixing the RE date in respect of periods of incapacity after the change, and he referred me to Battaglene v ACC Decision No. 157/87, a decision of Willis DCJ under s 53(9) of the 1982 Act. Here, the appellant was injured while working in Geraldine for an Auckland company; he was off work for a short period and was paid ERC based on RE fixed at his pre-accident rate. When the job finished, he chose to remain in the area because it was where he had grown up and he refused the offer of a job at Auckland with the same company at the same rate of pay, in favour of local work at a lower rate. When he was next incapacitated because of his injury, the Corporation assessed his RE at his pre-incapacity earnings. 
[32]
Willis DCJ upheld the Corporation's decision because while in the majority of cases make-up pay would be assessed at the pre-accident rate, the subsection provides a different method for assessing RE. It would be unjust, if, for example, an employee continued working for a period but at an increased rate of pay, he were not compensated at the date of incapacity. But the converse must also be true. And the complicating factor of the move to Auckland meant that the appellants' make-up pay was correctly assessed at the date of incapacity. As the Corporation took into account all the factors mentioned in s 53(9), it could not be considered to have exercised its discretion incorrectly. 
[33]
This case confirms that Mr Ayton was incorrect in law to dismiss the reason for Mr Wells leaving CCC as irrelevant to his decision, but it in no way upsets his finding of fact as to the reason itself. It also brings into doubt the correctness of the Corporation's use of its discretion to fix Mr Wells' RE at the time of his incapacity in 1985, because it highlights the discretionary nature of the decision, as opposed to the apparently mandatory approach taken by the Corporation and upheld by Mr Ayton. As for the Corporations' reasons for making the decision to cease using Mr Wells' pre-accident earnings and instead use his earnings for the tax year ended 31 March 1985 and the factors considered, the ACC copy file discloses the following: 
ACC memorandum 21 January 1986 
“RE: Rate of Relevant Earnings 
I/P is presently off work as a result of injury 21-8-82. Rate of Relevant Earnings to be determined. 
I/P had a short period of incapacity at the time of his accident and ERC was based on figures from his pre-accident employment with CCC. 
Since then Mr Wells bought a car wrecking business and has worked in ‘self-employed’ capacity (since Aug 83 approx). 
Earnings details for financial years Mr Wells self-employed are on file. 
I recommend that assessment is based on his pre-incapacity earnings and is reduced from the figure of the interim payment made. 
Reply: Reduced from pre-accident relevant earnings of $283.955
| X |Footnote: 5
There is no explanation or support for this figure on the ACC file. 
to pre-incapacity relevant earnings of $90.00. 
28.1.86 
Agreed — reduce ERC to pre-incapacity. ”
ACC memorandum dated 28 January 1986 
“An irate Mr Wells phoned re reduced ERC and how can a man live on this amount? 
I explained assessment was based on info from I.R.D. showing net profit y.e. 31.3.85 = $395,00 and as he had paid acc min levy $52 we were able to pay him minimum based on $100 per week. 
He insists his accounts show $395.00 + another $8000 + which is Capital (unintelligible). I suggested he clarify this matter with his accountant so that he understands what capital represents & how it is separate from NP. 
Invited him to appeal. ”
ACC memorandum 23/8/86 
“Mr Ayton review officer advises that if medical evidence is provided Mr Wells' ERC can be backdated to May 1985. This has now been brought in. 
ERC was re-instated from 11-12-85 at $234.336
| X |Footnote: 6
This is the RE figure that supports the calculation of ERC as at May 1983 in the ACC records. The 1985 records are missing. 
which is based on pre-accident earnings. 
From 15-1-86 the decision of RE was changed & based on the $5,200.00, section 61. 
The arrears from May 85 to 10 —12-85 should be based on s 61 $5,200.00 pa.7
| X |Footnote: 7
The assessment dated 15/1/86 is on file. 
 ”
[34]
I was not referred to any case law apart from Battaglene, but there is a recent Authority decision under s 53(9), Stewart v Accident Compensation Corporation8
| X |Footnote: 8
Stewart v ACC [2012] NZACA 14 
, in which Mr Barnett also acted for the Corporation, where the appellant had reduced his work hours between his date of accident and his subsequent incapacity. In that appeal I applied the Authority's decision in Wood9
| X |Footnote: 9
Wood (50/99) 
, which is on point here in respect of both the interpretation of s 53(9) and the exercise of the Corporation's discretion. 
[35]
Wood concerned delayed incapacity where the Corporation chose the appellant's lower average weekly earnings prior to incapacity over the higher average weekly earnings at the date of accident. Mr Cartwright described the purpose of ERC as being: 
“ … to cushion the effect of the loss of earnings of an injured person, and thus the calculation should reflect the actual loss whether at the date of accident, or at the date of the period of subsequent incapacity, whichever is most appropriate.10
| X |Footnote: 10
This is consistent with Blair J's decision in Kennett (1981) NZACR 235, where he quoted from Dragicevich v ACC (1981) NZAR 59, that ‘the purpose of section 104 is to even out anomalous earnings results’ and that s 53 is the counterpart of s 104. 
 ”
[36]
Regarding the exercise of the Corporation's discretion, Mr Cartwright said, in relation to the reason given for the decision in the decision letter that according to the 1982 Act, where a person is incapacitated after the accident, ERC must be considered under s 53(9) if there is a significant difference in pre-accident and pre-incapacity earnings11
| X |Footnote: 11
This is only relevant to s 53(4), where the Corporation is required to consider any significant difference in pre-accident and pre-incapacity earnings after short-term incapacity and may use the lower amount for that period; it is not mandatory anywhere in s 104 or s 53. The emphasis is in the letter quoted by Mr Cartwright. 
“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. ”
[37]
Mr Cartwright overturned the Corporation's decision in Wood because its discretion had been exercised on the mistaken impression that the application of s 53(9) was mandatory and as Mr Cartwright was satisfied on the balance of probabilities that the appellant changed his employment because of his injuries, his ERC should be based on his earnings prior to the accident, and not prior to his going back on ERC. 
[38]
Another case discussed in Stewart is Morgan v Accident Compensation Corporation,12
| X |Footnote: 12
Morgan v ACC [2010] NZACA 10Has Litigation History which is not known to be negative[Blue]  
where Mr Cartwright quoted with approval the passage in Wootten v Central Land Board,13
| X |Footnote: 13
Wootten v Central Land Board [1957] ALL ER 441 
to the effect that the court is not competent to interfere in a discretion unless it can be a shown clearly that the tribunal appealed from has in some material and substantial respect exercised its discretion wrongly or unjudicially, or erroneously directed itself. 
[39]
I think it is reasonable to assume that in the present case, the Corporation did not turn its mind to any serious consideration of the relevant factors when it decided to change Mr Wells' RE in January 1986 from his pre-accident earnings which had been used for the very short periods of previous incapacity in 1985, to his pre-incapacity earnings on the longer term calculation. This would not necessarily render the decision incorrect, as if Mr Wells had made a lifestyle choice to change occupations, then he would have to bear the consequences, not the Corporation. 
[40]
However, as the Corporation had been paying Mr Wells based on his pre-accident earnings, if the Corporation thought that fixing Mr Wells' RE under s 104(1)/s 53(9) was no longer appropriate, then the first question it had to resolve was why Mr Wells had left his employment with CCC, because this would identify the time of incapacity for the purpose of fixing his ongoing RE. Following Battaglene, Stewart and Wood, if Mr Wells left CCC because he was incapacitated from that employment, this preserved the date of accident as the date of incapacity; s 104(1) s 53(1) would then continue to apply and his RE should have stayed the same. If not, and the decision to leave CCC was a life style choice, then the Corporation was justified in making the change. 
[41]
The Corporation did not make this inquiry until three months after it had made the decision, so it is clear that, like Mr Ayton, it incorrectly thought that Mr Wells' reasons for leaving his employment with CCC were not relevant. The response from CCC could not establish the reasons either way and Mr Ayton noted that the issue was still in dispute in the 1986 review decision, but when the Corporation implemented Mr Ayton's suggestion in August 1986 to backdate ERC to May 1985, it had the benefit of his finding that on the medical evidence and Mr Wells' own evidence, Mr Wells had clearly left his employment with CCC because of his 1982 injuries. 
[42]
I am satisfied on the balance of probabilities, that Mr Wells left his employment with CCC because he was incapacitated from this work by his 1982 injuries. It follows that I prefer the contemporaneous medical evidence from 1983 to 1988 that confirms Mr Wells' incapacity to work following his 1982 injury was caused by that injury and not by his self-employed occupation, and that I consider, in light of his work history, that the Corporation should have continued to use the RE figure that was fixed on his pre-accident earnings, rather than changing it to reflect his much reduced 1985 pre-incapacity earnings. 
[43]
Even if the reasons Mr Wells left his employment at CCC were not sufficiently clear when the decision was made in January 1986, if the Corporation had applied its discretion properly, it should have revoked the decision of 21 January 1986 when it reconsidered his incapacity and RE in August 1986, and reverted to the previous RE figure. 
Prejudice to the Corporation 
[44]
I cannot see that there is any prejudice to the Corporation as argued by Mr Barnett. The only relevant factor that Mr Barnett identified was the lack of evidence that Mr Wells left his employment with CCC because of his 1982 injuries. To the extent that this remained in dispute in January 1986, the issue was settled by the 1986 review decision findings on the point, and confirmed by the similar evidence accepted in the 1987 review decision. 
[45]
Nor is there any prejudice to the Corporation's ability to calculate Mr Well's RE if the decision of 21 January 1986 is reversed, as the RE figures simply remains fixed at the $234.33 that was used to pay compensation prior to the decision being made. 
[46]
Whether or not that figure is correct has not been put in issue by Mr Wells at any time. For the record, I wish to make it very clear that Mr Wells would have an uphill battle should he contemplate challenging this figure in subsequent litigation as happened after the 2010 review decision. 
[47]
The delay would be inexcusable, given the opportunity to mount this challenge in the present application, and there would be real prejudice to the Corporation if it were required to re-visit the original RE calculations, as it would be impossible to obtain the necessary earnings information from CCC. 
Decision 
[48]
The application for leave to appeal out of time is successful. 
[49]
The appeal is successful. 
[50]
The decision of 21 May 1986 is reversed and RE will remain fixed at $234.33 per week. 
[51]
The Corporation is directed to re-calculate and pay Mr Wells' compensation from 6 June 1985, being the day after the last date of payment at the correct RE rate, as updated by the applicable Orders in Council. The resulting decision is to be issued under the Accident Compensation Act 1982 and the right of review is to be given under Part 9 of the Act. 
Costs 
[52]
The Corporation's conduct of its opposition to the application and appeal has been proper and reasonable and it has not unnecessarily added to the appellant's costs. I leave it to the parties to agree to costs with this in mind. 
[53]
Further directions can be sought if agreement is not possible. 


This is taken from the ACC file payment history. 
M Dougall v Accident Compensation Corporation NZACR 677 (1983; NZAR 85 
Ellis v ACC Decision No.12/2004 at [15] 
See e.g. Lineham v Accident Compensation Corporation Decision No. 13/2004, where the Authority allowed an appeal that was 24 years out of time because the appellant was not aware of that his compensation was not properly assessed under the 1972 Act, until he was legally represented for the first time for the late application. 

From Accident Compensation Cases

Table of Contents