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Accident Compensation Cases

Accident Compensation Corporation v Cammell (DC, 12/02/09)

Judgment Text

RESERVED DECISION OF JUDGE J CADENHEAD ON THE PAPERS 
Judge J Cadenhead
The course of the proceedings 
[1]
Both parties have agreed that this appeal may be determined on the papers. 
[2]
This appeal arises as a result of a review decision made on 8 January 2004 concerning an independence allowance entitlement, and in particular, the way in which impairment lump sum compensation paid under the Accident Compensation Act 1972 (the 1972 Act) and the Accident Compensation Act 1982 (the 1982 Act) is to be taken into account. 
[3]
The review decision quashed ACC's decision of 15 May 2003 and held that the respondent was entitled to payment of an independence allowance in relation to her October 1994 injury. It was determined that the respondent was not entitled to any payment of an independence allowance in relation to her January 1983 injury. 
[4]
The Accident Compensation Corporation appealed against this review decision. 
[5]
Determination of the appeal was deferred as the Court of Appeal had to consider the interpretation and application of Sections 441 and 442 of the Accident Insurance Act 1998 in the cases of ACC v Fenemor (CA 107/07) and Mahaki v ACC (CA 104/07). It was agreed that the present appeal could not be heard until the Court of Appeal had made a ruling with respect to these two cases. 
[6]
The Court of Appeal has now issued its decision in both appeals, and they have been determined in favour of the appellant. 
[7]
The Court found in ACC v Fenemor that the independence allowance entitlement for pre 1 July 1999 injuries was to be assessed by combining the injuries and then deducting from the combined total any prior lump sum compensation paid under s 119 of the 1972 Act and s 78 of the 1982 Act. 
[8]
In Mahaki v ACC, [2008] NZCA 240Has Litigation History which is not known to be negative[Blue] , the Court confirmed that the independence allowance entitlement for pre 1 July 1999 injuries was payable from the date that the person applied for the independence allowance if they had previously received lump sum compensation paid under s 119 of the 1972 Act or s 78 of the 1982 Act. 
[9]
The Court of Appeal's decision in Fenemor resolves the issue in this appeal. 
The material facts of the present case are: 
The respondent has cover for two pre 1 July 1999 injuries — a fractured right arm sustained in 1983 (for which she received 8% lump sum compensation), and a lower back injury sustained in 1994. 
In February 2003 she applied for an independence allowance. 
She was assessed as having a 6% Whole Person Impairment for her arm injury, and a 10% Whole Person Impairment for her back injury, and the combined Whole Person Impairment was 15%. 
ACC declined independence allowance entitlement in a decision dated 15 May 2003 as once previous lump sum compensation was deducted, the net impairment was 7% (and therefore less than the 10% minimum threshold). 
[13]
I therefore find on an interim basis that the appeal should be allowed and the review decision dated 8 January 2004 be quashed and the decision of the Accident Compensation Corporation dated 15 May 2003 be reinstated. I make this an interim decision at the present time as I desire that this be shown to both parties. Both parties should then advise me that they concur with my decision and advise the Registrar of that concurrence within 7 days. On receipt of that concurrence I will make this a final decision. 

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