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Accident Compensation Cases

Reckin v Accident Compensation Corporation (DC, 15/02/08)

Judgment Text

Judge M J Beattie
On 23 January 2003, the appellant lodged a Notice of Appeal with the Appeals Registry in relation to a Review decision dated 23 December 2002. 
That Review considered two primary decisions of the respondent dated 4 and 21 December 2001 respectively, which were decisions in relation to the appellant's Independence Allowance entitlement. 
Whilst those two primary decisions had fixed two different Whole Person Impairment percentages, each decision incorporated the fact that the appellant had received a Lump Sum Payment under the provisions of the Accident Compensation Act 1982 of 40%, and which percentage was in each case deducted from the Whole Person Impairment. 
At the Review hearing the appellant raised the issue of the lump sum payment, he contending that he had no recollection of having received same. This was an issue which the Reviewer did not consider his jurisdiction extended to within the framework of the decisions under review. 
It is the case, however, that at that Review hearing the appellant, through his Advocate, accepted a degree of impairment of 57%. 
In his decision the Reviewer summarised his determination as follows: 
“In summary, therefore, ACC's decisions dated 4 December and 21 December 2001 are modified to incorporate the impairment calculations as set out in the letter dated 5 December 2002. Mr Reckin's assessed degree of impairment is confirmed at 57%. If he has in fact received previous lump sum compensation based on a 40% disability his whole person impairment for the Independence Allowance will be 17%. If he has not received previous lump sum compensation the whole person impairment for the payment of Independence Allowance will be 57%. 
After ACC has completed its further investigation as to whether or not there has been a previous lump sum compensation payment to Mr Reckin, a new decision must be issued concerning the issue of the backdating of the Independence Allowance. ”
In furtherance of that Review decision the respondent again considered all matters pertaining to the appellant's Independence Allowance entitlement and on 2 June 2006, it issued a fresh decision. 
In that decision the respondent advised that it had investigated the question of the payment or not of the lump sum to the appellant and that it was satisfied that such a payment had been made. It therefore determined that the appellant's independence allowance would be on the basis of his assessed Whole Person Impairment of 57%, less 40% in respect of the lump sum paid. It also determined that the Independence Allowance would be paid as from the date he first applied for it, namely 11 May 2001. 
It is the case that the appellant sought a review of that decision and as of the date of the hearing of this appeal, that review had not taken place but was scheduled to be heard on 18 February 2008. 
As I indicated to the parties at the hearing, I take the view that the respondent's decision of 2 June 2006 has overtaken any matters that may have been alive from the Review Decision of 23 December 2002, and in fact the respondent's decision of 2 June 2006 was a direct consequence of the main provision in that review decision, namely that the respondent re-investigate the matter and issue a fresh decision and with the earlier decisions of the respondent, which had been the subject of that review, now modified to that effect. 
The issues which the appellant seeks to have further determined are: 
His percentage of Whole Person Impairment (possibly). 
The question of whether he did or did not receive a lump sum payment based on a 40% disability by way of two payments in 1993. 
The date of commencement of any Independence Allowance to which it is determined that the appellant is entitled. 
As earlier noted, those issues are currently for determination at a review hearing scheduled for 18 February 2008, and that is clearly the correct forum for the canvassing of the issues referred to above. 
There is therefore no live issue arising from the Review decision sought to be appealed in this present appeal and accordingly, for the reasons given above, this appeal is dismissed. 

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