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Accident Compensation Cases

Jones v Accident Compensation Corporation (DC, 19/07/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
The issue in this appeal is whether the respondent was correct to rule that the appellant's entitlement to weekly compensation ceased upon him attaining the National Superannuation Qualification Age (NSQA) rather than when he attained the age of 65 years. 
The determination of the issue in this appeal requires the Court to make a finding of fact as to whether this appellant was in receipt of weekly compensation, formally known as Earnings Related Compensation, pursuant to section 59 of the 1982 Accident Compensation Act or section 60 of that same Act. It is agreed by counsel for the parties that if the finding of fact determines that the appellant was a recipient of compensation pursuant to section 59 then the Corporation's decision to cease payment of same on the appellant's NSQA date was correct, whereas if it be determined that the appellant was in receipt of weekly compensation granted pursuant to section 60 of the 1982 Act, then in accordance with the decision of the Court of Appeal in ACC v Watton (CA 277/99) this appellant falls into a special category of persons in respect of whom entitlement to weekly compensation until age 65 still applied. 
The background facts, which are not in dispute, are as follows. 
The appellant was born on 10 February 1935. On 13 September 1990 the appellant suffered a twisted left ankle when he slipped whilst out walking. The appellant was a Prison Officer by occupation and was initially certified as being unfit for work for a period of two weeks following that injury. His claim for cover under the 1982 Act was duly accepted and he began to receive earning related compensation. 
Successive medical certificates certifying his unfitness for work were issued indicating that he was “improving slowly”
Further medical certificates were issued from time to time certifying that the appellant was still unfit for any type of work and this situation still pertained in July 1991 when the respondent sought advice from Duthie Mills, Orthopaedic Surgeon. 
Mr Mills was requested to provide a medical report and that request was forwarded on an ACC form known as an FLC 9 form. That form indicated that the Corporation requested that Mr Mills provide a report to assist the Corporation's consideration of sections 78 and 79 of the Act, being assessment for lump sum entitlement. 
Mr Mills duly reported to the Corporation on 10 July 1991 and in his opinion Mr Mills stated as follows: 
“Mr Jones suffers from diffuse pain about the left ankle following a lateral malleolar fracture and also some pain about the head of the fibula on the left. Mr Jones injured his leg when he slipped at the edge of a stream near his home on 13/9/90. The ankle fracture was treated conservatively with cast immobilisation and union of the lateral malleolar fracture has been obtained with no significant residual deformity. However, clinical examination demonstrates limitation of ankle movement and trivial wasting of the left calf. 
The cause of Mr Jones' continuing complaints of pain about the head of the fibula on the left is unclear. No radiologic abnormality is present and no clinical abnormality is noted in respect of the left knee. An arthroscopy of the left knee was entirely normal. 
However, Mr Jones must be accounted as being unfit to continue his work as a prison officer taking into account his inability to walk for prolonged distances, his limp and difficulty he has with climbing and descending stairs. 
He is clearly fit to carry out sedentary alternative work but I believe it is important that he does not resume his previous work as a prison work while his present symptoms persist. 
In terms of Section 78 of the Accident Compensation Act he suffers from a minor residual disability and in my opinion this does not exceed 10% of loss of function of the left lower leg. ”
On 19 November 1991 the respondent gave its decisions on the appellant's entitlements under sections 78 and 79 of the 1982 Act and in line with Duthie Mill's report awarded the appellant the sum of $1,700.00 for the 10% disability under section 78 and a further sum of $6,000 for loss of enjoyment of life etc. under section 79. 
Throughout this time and following, the appellant continued to be certified to be unfit for work by his GP, Dr Mayhew, at regular intervals. The Corporation's file discloses that the pattern over the next few years down to July 1998 was for an ARC 18 certificate to be issued by Dr Mayhew every three months certifying the appellant as unfit to resume any duties at work. This situation continued until September 1998 when the Corporation wrote to the appellant advising him that the provisions of section 52 of the 1992 Act applied to his entitlement to weekly compensation and that as he would attain NSQA on 10 November 1998 it would be on that date that his weekly compensation would cease. 
It was that decision which the appellant sought to review and a review hearing took place on 19 November 1998. 
It is to be noted that at the time of that review hearing the Court of Appeal decision in Watton was not in existence, rather the District Court decision in that appeal was noted and the Review Officer followed the reasoning in that decision and ruled that the appellant's compensation was correctly stopped at the point of his attaining NSQA. For that same reason therefore, the Review Officer did not embark on any inquiry as to whether the appellant's weekly compensation was being paid pursuant to the provisions of sections 59 or 60 of the 1982 Act as of the date that the 1982 Act was repealed. 
The matters advanced by Mr Hucker as supporting the contention that the appellant was receiving earnings related compensation pursuant to section 60 of 1982 Act, immediately prior to that Act being repealed, are as follows: 
1.
Dr Wong's report 
In November 1992 an NFLC 9 Form, being a request for a medical report, was forwarded to Dr Peter Wong, Orthopaedic Surgeon, requesting Mr Wong to provide a report. The form provided three options (a) a report to consider section 78, (b) a report to consider section 79 and (c) a report to consider section 60. That report was requested in respect of a back injury which the appellant had suffered on 18 March 1985. That form shows that options (b) and (c) have been circled. In his report dated 9 February 1993 Dr Wong gives advice in relation to section 78 and 79 of the Act and then insofar as section 60 of the Act he states as follows: 
“Section 60 of the Act: 
1.
Medical: This is the first time I have evaluated your client and therefore I cannot compare current findings with previous ones. 
2.
Rehabilitation and retraining. 
3.
Present employment limitations. 
4.
Present work abilities. 
Since the claimant has now retired, these three sections do not apply to him. 
5.
Prognosis: There is a potential for further deterioration which if it occurs, the claimant can exercise his rights under section 78 of the Accident Compensation Act and request the re-appraisal of his clinical status. ”
Mr Hucker submitted that because section 135(1A) of the 1992 Act required all section 60 assessments to be completed by 1 October 1992, it can be presumed that the Corporation was complying with that section and seeking a reassessment. He said there would be no point in the Corporation seeking a report under section 60 if in fact a new assessment could not be made. He submitted that the only basis upon which there could be any point in obtaining a section 60 assessment would be to assess the extent to which there had been any deterioration and that any readjustment ought to be made to the compensation in terms of section 135(2). 
2.
Internal Review of 2 April 1992 
The file discloses that the Corporation had received the report from Duthie Mills indicating that the appellant's ankle injury would prevent him from returning to his former employment as a Prison Officer and that on 2 April the appellant's client officer made a memorandum which stated as follows: 
“(i)
Please change code to 3206 as client is fit for selective duties 
(ii)
Please reassess R/E (Relevant Earnings) over long term 52 weeks $776.92 
(iii)
Client's entitlement to section 78 was overpaid, paid on 10% should have been 7.5%. ”
Mr Hucker submits that this is more consistent than not with an assessment under section 60, rather than simply an assessment of temporary loss of earning capacity to be ascertained on a week by week basis. 
3.
Increase in Earnings Related Compensation in accordance with Order in Council 
On 3 June 1992 the appellant's weekly compensation was increased from $622.15 to $628.37 in accordance with an Order in Council. 
Mr Hucker refers to section 60(7) of the 1982 Act which makes specific provision for the Governor General by Order in Council to increase any earnings related compensation. Counsel submitted that there was no similar provision for increases in earnings related compensation by Order in Council under section 59. 
Mr Hucker submits that payment under section 60 is consistent with the various medical certificates that were issued by his GP showing no definite fit to return to work date. 
Finally, Mr Hucker submitted that the Corporation must be presumed to be complying with its governing statute and be presumed to have a reason for its requests. He submitted that if reports under sections 78 and 79 were sought then it must be presumed that the appellant's medical condition had stabilised and that therefore, it was appropriate that he be assessed under section 60. 
Mr Tui, counsel for the respondent, submitted that it was important to identify the distinction between disability and incapacity in relation to this appellant. Section 60 is to do with assessment of permanent incapacity. That section says that the Corporation shall review his case and make an assessment in writing of the nature and extent of his permanent incapacity and whether that permanent incapacity has resulted in a permanent loss or diminution of his capacity to earn and the percentage which that permanent loss or diminution bears to permanent total loss of capacity to work. 
Counsel submitted that the assessments sought from Dr Wong and Mr Mills were both for permanent disability, the assessment by Dr Wong being for the appellant's back injury suffered in 1985 and in respect of which there was no incapacitating features as the appellant had continued on in his employment until the ankle injury in 1990. 
Counsel submitted that the FLC 9 form circled option (c) in error and in any event no section 60 assessment was made. 
Counsel further identified that the FLC 9 form forwarded to Mr Mills for his report circled only (a) and (b) and yet it was the ankle injury which was the injury which was preventing the appellant from returning to his pre-accident employment. Counsel noted that the appellant was fit to carry out sedentary alternative work and that this advice was not consistent with there being a determination under section 60 of a permanent incapacity. 
Counsel submitted that the file in relation to the ankle injury has no record of any assessment having been sought pursuant to section 60 and there is nothing on the file to determine whether the appellant's condition had resulted in any permanent loss or diminution of his capacity to earn. 
Counsel further identified the fact that for the appellant to be entitled to earnings related compensation he was required to provide medical certificates on a regular basis right down to the date when the Corporation ceased payment of ERC when he obtained NSQA and that this was inconsistent with an assessment under section 60 having been undertaken and that payment of ERC being made pursuant to section 60. 
Finally, counsel identified that it was not just section 60 recipients of ERC who could obtain increases by Order in Council and that the provisions of sections 53(1), (6) and (7) and section 59(1) and (2) determine that the Governor General may from time to time by Order in Council specify an increase in the amount of weekly compensation. 
Decision 
It is relevant for the purposes of this appeal to note the distinctions between sections 59 and 60 of the 1982 Act. Section 59 is the provision which permits payment of earnings related compensation to an earner who suffers any temporary loss of earning capacity. The amount of that compensation is to be determined by a consideration of his relevant earnings. The determination of relevant earnings is provided for in section 53 of the Act. 
Section 60 has as its head note “Assessment Of Permanent Incapacity” and provides for the situation where an earner who suffers personal injury and does not completely recover from his incapacity due to the accident and when his medical condition is stabilised the Corporation is required to review his case and make an assessment in writing of the nature and extent of his permanent incapacity and whether that permanent incapacity has resulted in a permanent loss or diminution of his capacity to earn
Thus the Corporation is required to carry out an assessment in writing and of course it must advise the claimant of that assessment and any such assessment would have attached to it rights of review. 
In the case of this appellant, he had suffered an injury to his back in 1985 which the medical evidence establishes did cause him a small disability but it was not an injury which caused any incapacity as he continued to carry out his normal duties as a Prison Officer. The respondent's file in relation to that claim shows no consideration being made at any time to an entitlement to earnings related compensation either under section 59 or section 60 of the 1982 Act. 
The position of the appellant's back injury has to be put into its context in relation to the proposed repeal of the 1982 Act which had as one of its consequences the abolishing of entitlement to lump sum payment for disability. Under the transitional provisions of the 1992 Act a limited period of time was allowed to persons who had suffered personal injury prior to 1 April 1992 to avail themselves of the lump sum provisions of the 1982 Act after that Act was repealed. I find that the evidence from the documents relating to the appellant's back claim established beyond doubt that Dr Wong was being asked to consider the appellant from the perspective only of an assessment under sections 78 and 79 of the 1982 Act and that the circling of option (c) — consideration of section 60, was an error on the part of the respondent's employee initiating that FLC 9 form. 
It is to be noted on that form that insofar as the back injury is concerned it shows that the appellant was not in receipt of earnings related compensation and thus, in respect of the back injury there could have been no suggestion that any entitlement to a section 60 award or even assessment was appropriate. 
For the foregoing reasons therefore, I cannot accept Mr Hucker's submission that the FLC 9 form directed at Dr Wong can assist the appellant in his contention that he was receiving or being assessed for the purposes of receiving ERC pursuant to section 60 of the 1982 Act. 
The converse situation applies to the FLC 9 form which was initiated by the Corporation to Duthie Mills, Orthopaedic Surgeon, for the ankle injury which was the injury which was accepted by the Corporation as the incapacitating injury insofar as his Prison Officer work was concerned. That FLC 9 form discloses that Mr Mills' opinion was being sought solely for assessment of lump sum entitlements under sections 78 and 79 and of course the actual report itself reflects that. 
The report makes no mention of section 60, nor does it give any consideration to the criteria that would be necessary to be present for section 60 to apply. In fact the opposite is the case, in that Mr Mills states that the appellant is clearly fit to carry out sedentary alternative work and that it was important he did not resume his previous work as a Prison Officer whilst his present symptoms persist. It was in line with that advice that the Corporation changed the appellant's status somewhat to a person who was fit for selected duties. 
I find that the memorandum of 2 April 1992 which initiates a reassessment of the appellant's relevant earnings over long term 52 weeks is not in any way indicative of it being for the purposes of section 60, as the term relevant earnings is also used for section 59 and when that section is read in conjunction with section 53 then there is nothing sinister but that it is simply the most accurate calculation to determine his entitlement by taking the relevant earnings over that period rather than some shorter period. 
The next item of evidence that has been put forward by both counsel is the medical certificates that were issued by the appellant's GP at regular intervals over the years. These certificates I find were certainly a requirement of the Corporation for it to continue to pay the appellant weekly compensation and the file discloses that those certificates were issued right down to the time when the Corporation determined to cease the appellant's weekly compensation when he attained his NSQA. 
I find that that circumstance does not fit with the appellant at that point receiving weekly compensation pursuant to section 60 as if that had been the case there would not have been the need to provide such certificates as the appellant would be regarded as being permanently incapacitated. In those circumstances no certificate is required. The fact that ARC 18 certificates were issued as required indicates that the Corporation still regarded the appellant as being temporally incapacitated. 
Finally, I find that the fact that the appellant's ERC was increased by an Order in Council in June 1993 does not assist in establishing the type of ERC that he was receiving as it is clear that all types of compensation could be subject to percentage increases by Order in Council. 
All the foregoing factors persuade me that this appellant was receiving earnings related compensation pursuant to section 59 of the 1982 Act at the time that Act was repealed and that it was compensation under that provision that continued on pursuant to the transitional provisions of the 1992 Act and which gave rise to the position where that weekly compensation became subject to the provisions of section 52 of the 1992 Act and that this appellant did cease to have an entitlement to weekly compensation upon him attaining the NSQA. 
For those reasons therefore, the respondent was correct when it did cease the appellant's weekly compensation at that time and accordingly, this appeal is dismissed. 

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