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Accident Compensation Cases

Reihana v Accident Compensation Corporation (DC, 13/11/00)

Judgment Text

Judge M J Beattie
The issue in this appeal is whether the appellant should have been considered to have been an earner in full time employment from February 1994 onwards, for the purposes of section 43(1) and (3) of the Act, thereby entitling the appellant to a continuation of the payment of minimum weekly compensation, as provided for in that section. 
Issues relating to the nature of the appellant's employment at the time of his incapacity and subsequent have been to this Court on two previous occasions, the first occasion resulting in a decision dated 24 October 1996 by His Honour Judge Ongley when the issue was whether the weekly compensation for the appellant should be calculated with reference to the appellant's earnings for the four weeks prior to incapacity or for the 52 weeks prior to incapacity. The Court on that occasion found that it was appropriate to use in the calculation income for the 52 weeks prior to incapacity. 
The second appeal was required to determine whether or not the appellant was a permanent employee at the time of incapacity, that finding would also affect entitlements to weekly compensation. In that decision dated 28 April 1998, I found that at the time of his incapacity the appellant was only in temporary or casual employment and could not be said to have been in permanent employment within the meaning of those words in section 40(2A) of the Act. 
Now the matter returns again to this Court to determine whether the appellant was entitled to receive the minimum weekly compensation provided for under section 43 of the Act, or whether for the period after his temporary employment would have finished in any event the appellant was only entitled to weekly compensation calculated on the basis of his earnings for the 52 weeks prior to his incapacity and without the benefit of the ameliorating section for payment of the minimum sum of weekly compensation. 
The facts are well known to the parties and which can be shortly stated that in August 1993 the appellant suffered a crushed left foot in a fork hoist accident. That fork hoist was being driven by another employee and reversed into the appellant, taking him unawares. 
At the time of this accident the appellant was employed by Downer Construction and had gained this employment through an employment agency. In my decision of April 1998 I found that this employment was not permanent and was only for the duration of a particular building project and that the expectation was that that project would finish at about Christmas 1993 and beyond that date the appellant had no certainty of employment. 
The appellant's injury occurred on 30 August 1993 and the appellant had only been working for Downers for some two months as of that date. 
As a consequence of this Court's decision of April 1998 finding that the appellant was not in permanent employment as of the commencement of his incapacity (which was from the date of the accident), the appellant was not able to take advantage of the ameliorating provisions of section 40 of the Act as amended in 1996 which had provided a fairer method of compensating a person who had not worked for a full 52 weeks immediately before the commencement of his incapacity. 
Thus it was that this appellant was required to have his weekly compensation entitlement determined by a calculation of his income for the 52 weeks preceding incapacity and using the divisor of 52 rather than the divisor of the number of weeks actually worked. That calculation determined that the weekly entitlement to the appellant was less than the minimum sum provided for in section 43 and therefore for the period of the appellant's incapacity from its commencement onwards he was determined as having an entitlement to the minimum weekly payment as provided for in section 43. 
Subsequent to this Court's decision determining the temporary nature of the appellant's employment at the time of incapacity, and of the fact that that employment would be coming to an end at Christmas 1993 or soon thereafter, the respondent considered that the appellant did not qualify for that minimum statutory weekly compensation for the period of his incapacity after his employment at Downers would have come to an end but for his incapacity. The respondent determined that from that point in time onwards the appellant could be regarded as being an earner in full time employment as required by section 43(3) of the Act. 
At that time the respondent did a recalculation of the appellant's entitlement, and in so doing it received further information from IRD regarding an earlier period of employment that the appellant had said he had had in the 52 weeks prior to incapacity with Tuwharetoa I Waitaha Inc. The IRD advised that that income had all been earned earlier than within the 12 months pre-incapacity. 
For those reasons therefore, the appellant's quantum of income for division was reduced and the divisor was still 52. This resulted in the appellant being assessed as having an entitlement of $96.70 per week for weekly compensation. 
It is that decision which the appellant now appeals to this Court, the Review Officer having upheld the Corporation's decision. 
The appellant submitted that he was entitled to fair and full compensation, as was contemplated by the Accident Compensation Legislation and he contended that the decisions of the Corporation were depriving him of his rights. He submitted that the fairness and justice of the situation of him being injured in the workplace demanded that he have a greater entitlement than that which was decided by the Corporation. 
The appellant further submitted that whilst his employment at Downers would have come to an end with the end of that construction contract, nevertheless he would have been available for fulltime employment from that time on and that therefore that availability ought to be sufficient to bring him within the provisions of section 43(3). He noted that this provision does not talk of permanent employment but rather a full time employment and he contended that but for his incapacity he would have been able to obtain full time employment, albeit possibly only of a temporary nature. 
Ms Ahern, counsel for the respondent, submitted that the appellant had in fact had the benefit of section 43 until the 1 March 1994 and that it was only from that time onwards that the Corporation could not be satisfied that the appellant would have been an earner in full time employment. 
Counsel submitted that no evidence had been put forward to support the contention that the appellant would have had ongoing full time employment and that the appellant's pre-accident work history certainly did not give any confidence that such would be the case. 
The provisions of the 1992 Act, which are applicable, are those of section 43(1) and (3), which state as follows: 
“Increase in weekly earnings for earners in full-time employment in certain circumstances - — (1) Where any person, being —(a) An earner in full-time employment whose earnings calculated under sections 40 to 42 of this Act are less than $245 [180.00] a week; or (b) An earner who is liable to pay the minimum annual earner premium imposed by regulations made under this Act but whose earnings calculated under sections 40 to 42 by this Act are less than $245 [280.00] a week, — is incapacitated by reason of a personal injury for more than 5 weeks after the incapacity first commercial in respect of that personal injury, the person shall be deemed to have had weekly earnings of $245.00[280.00] for the purpose of calculating compensation for loss of earnings payable in respect of any period after that 5-week period. 
(3) Nothing in this section shall apply in respect of any period unless the Corporation is satisfied that, but for the incapacity, the person would have been an earner in full-time employment during that period. ”
As previously noted this Court has already determined in its decision of 20 April 1998 that the employment of the appellant at the time of his incapacity was only of a temporary or casual nature and that that employment was going to come to an end at about Christmas 1993 or soon thereafter. The Court notes that for the purposes of determining the appellant's entitlement to weekly compensation, the respondent has taken the 1st of March 1994 as the starting point and having regard to the findings of fact which I made in that earlier decision, it is probable that the respondent has been generous on the side of the appellant in fixing that date as being the cut-off date to which he was entitled to minimum weekly compensation under section 43. 
“Full time employment” is defined in section 3 of the Act as meaning: 
“In relation to any earner means employment for an average of no less than 30 hours per week … or a lesser number of hours if such lesser hours are defined as full time employment in an employment contract due to the particular nature of that employment. ”
Thus in the context of section 43(3) for the appellant to qualify for minimum weekly compensation, the Corporation would need to be satisfied that from 1 March 1994 onwards the appellant would have been in full time employment had it not been for his incapacity from the accident. 
The appellant could not look to his employment at the time of incapacity as being employment that would have continued on, as this has already been found to not be the case. In the previous 12 months prior to incapacity the appellant's only employment had been on the Downers contract commencing in June 1993. Previous to that the appellant's last employment had ceased more than 12 months earlier. 
The appellant could not point to any contractual arrangement with any employer which would have established a status of full time employment and I find that the mere fact that the appellant would have been available for work does not satisfy the test, as available for full time employment is not and can never be the same as being in full time employment which are the words of section 43(3). There must be an actuality not just a possibility. 
For these reasons therefore, I find that the respondent was correct to recalculate the appellant's weekly compensation and entitlement as from 1 March 1994 to take account of the fact that from that time he was no longer entitled to be regarded as being in full time employment but for his incapacity, and secondly, that calculation was correct to exclude the earnings from Tuwharetoa I Waitaha Inc as that income had been wholly earned outside the 52 week pre-incapacity period. 
Whilst that decision may seem harsh from the appellant's perspective it is the way the statutory provisions of the Accident Compensation Act apply to persons in his particular situation. His uncertain and intermittent work history was his undoing and the decisions of this Court that have considered the various issues relating to his weekly compensation entitlement have all been declaratory or his rights. He has been deprived of no rights to compensation which the Accident Compensation Legislation would allow. 
This appeal is dismissed. 

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