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Accident Compensation Cases

Mullarkey v Accident Compensation Corporation (DC, 09/02/07)

Judgment Text

Judge M J Beattie
The issue in this appeal arises from the respondent's decision of 20 March 2006, whereby it determined that the appellant did not have an entitlement to weekly compensation as a consequence of his covered personal injury. 
It is contended for by the respondent that the appellant does not qualify for a weekly compensation entitlement as he does not meet the criteria for same as contained in Clauses 38 and 42 of Schedule 1 to the Act which relate to entitlements of self-employed claimants. 
The facts relevant to the determination of this issue may be stated as follows: 
On 14 February 2003 the appellant suffered injury to his neck and back as a consequence of a motor vehicle accident. Cover was granted to him for those injuries. 
The appellant is an American citizen and at the time of the accident was resident in New Zealand on a Visitor's Permit. 
The appellant had arrived in New Zealand on 18 November 2002. 
The nature of the appellant's employment was that of a printing consultant and he had carried on business in the USA under the name and style of Press Pro Inc. 
Following his arrival in New Zealand the appellant sought to engage in consultancy work for the printing industry in New Zealand. 
Prior to his injury the appellant had obtained two periods of work, namely between 18 November and 23 November 2002 consulting to Centurion Print Ltd, and secondly on 28 November and 29 November 2002 with Fair Press. 
The remuneration obtained from those two consultancy appointments were $1588.12 and $595 respectively. 
The respondent accepted that the appellant was incapacitated as a consequence of his injuries and accepts that the period of that incapacity was from 14 February 2003 until 12 May 2004. 
The number of hours worked by the appellant between 18 November 2002 and the date of the accident on 14 February 2003 was approximately 80. 
The respondent accepts that the appellant was to be treated as a self-employed person immediately before the commencement of his incapacity. 
Consequent upon its consideration of the foregoing relevant facts, the respondent determined that the appellant had no entitlement to weekly compensation as he did not qualify for same under Clause 38 of Schedule 1, as he had no income in the relevant year, that is to 31 March 2002. The calculation of entitlement under that Clause was therefore nil. Secondly, he did not qualify under Clause 42 which provides for adjustments for low earners as he could not satisfy the criteria of either: 
being in the category of earners liable to pay the minimum levy set in regulations; or 
that he was an earner in full-time employment. 
The appellant sought a review of that decision and a review hearing took place on 7 June 2006. 
In a decision dated 9 June 2006, the Reviewer determined that the respondent's analysis of the appellant's earner status was correct and that no weekly compensation entitlement could arise under the Act. He therefore confirmed the respondent's primary decision. 
For the purposes of the appeal to this Court, the Court has been provided with copies of the documents upon which the respondent based its decision, which included correspondence with the appellant when it sought particulars. 
In his submissions to the Court, the appellant has sought to invoke various Articles from the International Bill of Human Rights and it is essentially under those provisions which the appellant contends he is entitled to compensation that the Accident Compensation Corporation has hitherto denied him. 
Ms Hodgson, for the Respondent, submitted that the matter must be determined having regard to the relevant provisions of the Injury Prevention, Rehabilitation and Compensation Act 2001, and that an analysis of the relevant provisions of that Act identify the appellant as not being entitled as he cannot come within the criteria for the reasons previously given by the respondent in its primary decision. Counsel's submissions can be taken as being included in my decision. 
Entitlement to weekly compensation is provided for in Section 100 of the Act, Section 100(1)(a) being relevant in this case. That provision states: 
“100 Entitlement to weekly compensation depends on claimant's incapacity for employment and vocational independence — 
A claimant who has cover and who lodges a claim for weekly compensation — 
is entitled to receive it if the Corporation determines that the claimant is incapacitated within the meaning of Section 103(2) and the claimant is eligible under Clause 32 or Clause 44 of Schedule 1 for weekly compensation. ”
Clause 32 states that a claimant is entitled to weekly compensation for the loss of earnings for any period of incapacity, the amount of that weekly compensation being calculated under Clauses 33 to 45 and 48 of Schedule 1 to the Act. 
Clause 30 is also relevant in that it defines “relevant year” which means the most recent income-tax year last ended before the commencement of the period of incapacity. In terms of that definition the relevant year for this appellant was the year-ending 31 March 2002. 
Clause 38 sets out the criteria for the calculation of weekly earnings, from which the weekly compensation entitlement is to be derived, where a claimant had earnings as a self-employed person immediately before incapacity commenced. 
Long-term weekly compensation is stated to be calculated by reference to Clause 38(4) which states that the claimant's weekly earnings are to be those earned as a self-employed person in the relevant year divided by the number of weeks in the relevant year. 
As noted, the relevant year for this appellant was the year-ending 31 March 2002. At this time the appellant was not an earner within New Zealand and therefore his self-employed earnings in the relevant year were nil. It is the case therefore that the formula provided for in Clause 38 would end up with nil weekly earnings and therefore a nil entitlement. 
It is the case that where a person has a nil entitlement or has an entitlement which is calculated as being less than the minimum weekly earnings as determined by Regulations, then Clause 42 provides for a minimum entitlement to weekly compensation to be provided for. 
To qualify under Clause 42 for that low earner entitlement, the appellant would need to satisfy either: 
that he was in the category of earners liable to pay the minimum levy set in Regulations but made for the purposes of Section 202; or 
was an earner in full-time employment and had weekly earnings calculated under Clause 38 of less than the minimum weekly earnings. 
It was the respondent's decision that the appellant was not a person who was required to pay the minimum levy as required by regulations. The relevant regulations are the Injury Prevention, Rehabilitation & Compensation (Self-employed Work Account Levies) Regulations 2002, and where Regulation 10 states: 
This regulation applies to a self-employed person or a private domestic worker who, in an income year, - 
works for more than an average of 30 hours a week as a self-employed person or a private domestic worker; and 
earns less than the specified amount. 
The specified amount is, - 
in the case of a self-employed person or a private domestic worker who is aged 18 or over on the last day of the income year, $16,016.00. ”
Having regard to the criteria contained in those Regulations I find that the appellant cannot be regarded as a person who was liable to pay the minimum levy or that he was in full-time employment at the date of incapacity. 
The facts clearly establish that the appellant could not be regarded as being in full-time employment as defined by the Act, which required employment for an average of at least 30 hours a week. In the case of this appellant the average hours per week that he could be taken as having worked, from the date of commencement of work on 18 November 2002 until date of accident on 14 February 2003, which is approximately a 12-week period, is an average of a little over six hours per week. 
The key to an entitlement under Clause 42 is that the appellant would need to establish that he was in full-time employment prior to incapacity, that is that he was working for an average of 30 or more hours per week. It is that critical criteria which the appellant cannot satisfy and it was this that was identified as the problem by the respondent when it issued its primary decision. 
The appellant has not sought to contradict the facts on which the respondent based its decision and which the Court has taken as being the facts relevant to the issue. 
The New Zealand Accident Compensation Legislation cannot be said to be in conflict with any of the articles of the International Bill of Human Rights, which articles are general in nature and which the laws of New Zealand do not infringe. The right to weekly compensation as a consequence of incapacity is one which is covered by a specific Act of Parliament. The jurisdiction of this Court in an appeal is confined to a determination of all issues within the statutory criteria of that Act and that Act alone. 
For the reason that the appellant cannot bring himself within the qualifying criteria necessary to be eligible for a weekly compensation entitlement, as was determined by the respondent in its primary decision, this appeal must be dismissed. 

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