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Accident Compensation Cases

Jonker v Accident Compensation Corporation (DC, 25/11/03)

Judgment Text

Judge J D Hole
In February 1996, Mr Jonker filed a claim with the Corporation in relation to a back strain suffered on 27 January 1996. 
On 16 December 1996, the Corporation received a request for weekly compensation entitlements from Mr Jonker. He confirmed that he had been employed by the New Brighton Training Centre from 6 May 1996 and the New Brighton Technical Adult Employment Service Trust from 6 November 1995 to 6 May 1996. 
Subsequently a medical certificate was received by the Corporation which certified that Mr Jonker was unfit for work from 18 December 1996. 
The New Brighton Training Centre was placed into liquidation on 13 December 1996. 
The Corporation received advice from the employer to the effect that Mr Jonker was informed that his employment (full time) was to cease on 27 November 1996 and that he would be placed on casual employment. On 9 July 2002, the Corporation advised Mr Jonker that it declined to provide him with an entitlement for weekly compensation as he did not meet the criteria of an “earner” at the time of his incapacity. This decision was reviewed and the review was dismissed. Hence this appeal. 
The Law 
Where a claimant has ceased employment immediately prior to an incapacity, s 44 of the Accident Rehabilitation and Compensation Insurance Act 1992 provides that such a person shall be deemed to continue to be an employee where, immediately before the commencement of the incapacity … that person had been an employee within 14 days … ”. 
There are two issues: 
When did Mr Jonker become incapacitated? 
When did Mr Jonker cease to be an earner? 
In terms of the Act, an earner is a person who engages in employment. 
Date of Incapacity 
Mr Jonker stated that he went on sick leave on 27 November 1996. The innuendo is that he was on sick leave because of the subject matter of the claim. Unfortunately, the only evidence of the commencement of incapacity comes from the medical certificate supplied by his doctor, which indicates that the incapacity started on 18 December 1996. There is some evidence that the incapacity may have started a little earlier as, in the submissions made on behalf of the Corporation, it is conceded that the Corporation received the initial request for weekly compensation on 16 December 1996. Unfortunately, this does not help Mr Jonker. 
In Reid (222/00) Judge Barber commented “This Court has accepted (in various other decisions) that retrospective certification of incapacity will be acceptable in certain circumstances. However, the onus is on the claimant to produce evidence establishing a ‘clear picture’ or strong supporting evidence, other than contemporary medical certificates, of a continuing incapacity over the period in question … . The cases of Allen and Schwalger refer to a requirement for additional and strong supporting evidence in addition to retrospective certification if retrospective incapacity is to be proven to the required standards”
Whilst I accept that Mr Jonker gave evidence to the effect that his incapacity commenced on 27 November 1996, the difficulty which he has is that it seems that it was also on 27 November 1996 that his employer terminated his full time employment. In these circumstances, if Mr Jonker is to succeed, there needs to be some additional evidence which supports his claim that the incapacity commenced at a date earlier than that certified by his medical practitioner. 
Date of Cessation of Employment 
Mr Jonker claims that his employment status continued until 13 December 1996, when the employer went into liquidation. He acknowledges, however, that he has no supporting evidence in this regard. It is clear he has endeavoured to obtain supporting evidence but has been unable to do so. 
The onus is on Mr Jonker to establish that his full time employment continued until 13 December 1996. Regrettably, he does not have the evidence and, in these circumstances, cannot succeed. 
The appeal is dismissed. 

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