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Accident Compensation Cases

Keil v Accident Rehabilitation and Compensation Insurance Corporation (DC, 16/12/97)

Judgment Text

DECISION OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the appellant is entitled to reinstatement of weekly earnings, he having been out of New Zealand in Western Samoa for a period of three years. 
The appellant was employed at Mitsubishi Motors in Porirua 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, has received lump sum compensation. The appellant received earnings related compensation under the Accident Compensation Act 1982 and received some rehabilitation assistance from the respondent which enabled him to pass School Certificate. He also had some training in first aid, keyboard skills and computer skills, all with a view to finding alternative employment. He also obtained a taxi driver's licence but the problems with his back and his impaired hearing made it difficult for him to cope with this job. 
Accordingly, in January 1992 he made an arrangement with the respondent whereby the respondent would contribute $5,000 to assist him to return him 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. The arrangement was confirmed in a document dated 15 January 1992 which appears to be the only rehabilitation agreement signed between the appellant and the respondent. That document states: 
“RE: LOCATION TO WESTERN SAMOA FOR EMPLOYMENT 
This letter contains the Accident Compensation Corporation's decisions with regard to your recent approach for assistance with the above. 
1.
The Corporation will contribute a maximum of $5,000.00 towards the cost of moving yourself and your family to Western Samoa. 
2.
Payment will be made to you once confirmation is provided of a date of departure and evidence of airline tickets being purchased is made available to your Client Officer. 
3.
Your entitlement to weekly compensation will cease two weeks following your department from New Zealand. 
4.
If for any reason you return to New Zealand you will no longer have any entitlement to earnings related compensation paid by the Accident Compensation Corporation relating to your injury. The grant may be recovered if you do not carry out your plans. 
Review rights in relation to this decision are attached. ”
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 fishmarket but was unable to cope with the heavy work because of his back condition. The appellant and his wife then started a preschool establishment in rented premises which continued for approximately one year. When the lease of the premises lapsed the landlord refused to renew the tenancy. The appellant and his wife then decided to return to New Zealand. On 10 September 1996 the appellant requested the respondent to reinstate his weekly compensation and provided a medical certificate from Dr K F Razvi. 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 14 days of the commencement of his incapacity. He applied for a review of that decision. 
The Review Officer heard evidence from the appellant in which he confirmed his return to Western Samoa and the endeavours he made to find work there. As all those endeavours were unsuccessful he decided to return to New Zealand. The Review Officer had before him a letter from Dr Razvi which is dated 1 April 1997 and states: 
“THE ABOVE PERSON IS UNDER MY MEDICAL CARE. HAD BACK INJURY IN 1988 HAS BBEN [sic] UNDER THE CARE OF MR. PALMER ORTHOPAEDIC SURGEON. HE WENT AWAY TO SAMOA IN IN [sic] 1993 AND CAME BACK 1996 AND RE APPLIED FOT [sic] WEEKLY COPENSATION [sic] TO ACC. AS HE WAS NOT WORKING WHEN HE CAME BACK. HE FEELS THAT HIS BACK PAIN IS NO BETTER. I FEEL HE NEEDS REASSESSMENT BY ORTHOPAEDIC SURGEON TO ASSESS HIS DISABILITY AND REHABILITATION. ”
In his decision the Review Officer did not accept Mr Rennie's submission that pursuant to section 16 of the 1992 Act the appellant could not contract out of his rights to weekly compensation as the agreement made between the respondent and the appellant was signed on 15 January 1992 and was therefore made under the provisions of the Accident Compensation Act 1982 which did not contain a similar provision. The Review Officer held that as the appellant did not seek medical attention until September 1996 he was not an earner within 14 days of his incapacity, as the 1992 Act deems the date of incapacity to be the date on which he sought medical treatment. The Review Officer therefore declined the application. It is against that decision which the appellant now appeals. 
Mr Rennie again submitted that by virtue of section 16 of the 1992 Act, the appellant was prohibited from contracting out of the provisions of the Act. He submitted further that there has been only one period for incapacity which commenced when the appellant had his accident in 1987. All the evidence establishes that from that time down to the present time his injuries sustained as a result of his accident have precluded him from returning to the work in which he was engaged at the time of the accident. Mr Rennie further submitted that there has been no evidence that the appellant has suffered a further injury and that he has in fact remained incapacitated from his original injury in 1987. Mr Rennie submitted that section 44, on which the respondent relies, applies where a person has not been an employee immediately preceding the commencement of the incapacity which qualifies that person to receive earnings related compensation. He submitted that the appellant's entitlement to weekly compensation endures so long as his incapacity related to the original injury continues. 
Ms Simms submitted that there has been no medical certification of the appellant's continued disability between the period he was in Western Samoa and the certificate provided by Dr Razvi in support of the claim for reinstatement of weekly compensation. She submitted further that the Review Officer was correct not to apply the provisions of section 16 of the 1992 Act because they were not in force at the time the agreement was signed between the appellant and the respondent. Ms Simms submitted that while the appellant returned to New Zealand in March 1996, he did not consult Dr Razvi until September 1996. She submitted further that while the Review Officer had noted that the appellant had stated that he had been unable to find work since he returned to New Zealand, this implied that the appellant considered himself fit to undertake some work. 
The evidence indicates that the injuries sustained in the accident in 1987 precluded the appellant continuing his work with Mitsubishi Motors because of the heavy nature of that work. The appellant appears to have endeavoured to improve his situation by completing his School Certificate with a view to obtaining alternative employment but that this was unsuccessful. When all avenues of possible employment had been investigated, the appellant indicated to the respondent that he would be able to live with his mother in Western Samoa and possibly obtain suitable work there. He gave evidence that he could not work in his mother's shop because of the problem with his back and received no payment for that. He and his wife ran a preschool establishment for about one year but this does not appear to have produced any serious earnings. After numerous attempts to obtain work in Western Samoa, the appellant decided to return to New Zealand which he did in March 1996. He says that he then endeavoured to find work again which was unsuccessful and he returned to Dr Razvi for a certificate to enable him to apply for reinstatement of weekly earnings. 
While the document which he signed in January 1992 provided in clause 4 that he waived his rights to future compensation but I have to agree with the finding of the Review Officer that as section 16 of the 1992 Act was not then in existence and no similar provision is contained in the 1982 Act, Mr Rennie's submission on that issue cannot be upheld. However, in doing so and having regard to the fact that the 1992 legislation shortly thereafter contained in section 16, the decision would appear to create a serious injustice for this appellant. 
Notwithstanding that, I agree with Mr Rennie's principal submission that this appellant has been incapacitated from carrying out the work, in which he was engaged at the time of his accident, from that time down to the present time. He has at all times been a patient of Dr Razvi whose certificates have been accepted by the respondent up until the time the appellant returned to Western Samoa. On his return, Dr Razvi was prepared to again certify that, in effect, there had been no change in the appellant's back condition. While the respondent has taken issue with the fact that there has been no medical certification during the period the appellant was in Western Samoa, the evidence has to be considered as a whole and the appellant's evidence has been quite clear that while he made endeavours to work, the condition of his back precluded any form of heavy work and that no suitable alternative work was available. I consider that the appellant's evidence taken with the evidence of Dr Razvi provides an unbroken chain which can be accepted on the balance of probabilities as establishing that the same back problem has continued to affect this appellant from the date of his accident down to the present time. 
I have noted from the file that the only assessment of earnings related compensation which is available was one made in October 1987 for which the gross weekly amount was $274.53. The appellant was absent from New Zealand for a period of four years so that during that time he would have been entitled to payment at least at the rate shown on the assessment which would have exceeded the $5,000 advanced before he left New Zealand. 
I consider that notwithstanding the agreement signed by the appellant, the Accident Compensation Scheme is based on the principle that an earner who is unable to work because of personal injury by accident is entitled to weekly earnings so long as the incapacity lasts (subject of course to the time restrictions in the Act). The respondent and the Review Officer have based their respective decisions on the lack of certification of incapacity during the period in question and have not endeavoured to rely on the agreement. 
As I have said, I agree with Mr Rennie's submission that on the balance of probabilities, the appellant has continued to be incapacitated from the date of the accident and that the proposed rehabilitation agreement of 15 January 1992 should not now be permitted to disadvantage him. I consider that in the circumstances, the appellant is entitled to reinstatement of his earnings related compensation as from the date of his return from Western Samoa to New Zealand. There will be costs to Mr Rennie of $900. 

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