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Accident Compensation Cases

O'Connor v Accident Compensation Corporation (DC, 30/03/12)

Judgment Text

DECISION OF JUDGE D A ONGLEY ON LEAVE TO APPEAL TO THE HIGH COURT 
Judge D A Ongley
[1]
This is an application for leave to appeal against a judgment of His Honour Judge P F Barber delivered on 21 April 2011 — O'Connor v ACC [2011] NZACC 124
[2]
The judgment concerned the application of clause 48 of the First Schedule of the Accident Compensation Act 2001, which states: 
“48 Effect of further injury on entitlement to weekly compensation. 
(1)
This clause applies to a claimant who - 
(a)
is already entitled to receive weekly compensation; and 
(b)
suffers incapacity from a further personal injury for which the claimant has cover under this Act. 
(2)
If it is necessary to recalculate the claimant's entitlement to weekly compensation, the claimant's entitlement to weekly compensation in respect of incapacity from both personal injuries is calculated using the weekly earnings assessed when calculating the weekly compensation referred to in subclause (1)(a). 
(3)
Subclause (2) does not apply to any subsequent periods of incapacity. ”
[3]
Mr O'Connor's first relevant injury was in 1991 when he was working at a quarry and was struck on the side of the head by a steel bar. He made a claim for weekly compensation in 2003. His claim was not accepted and he took the decision to review. He wanted to obtain backdated compensation for continuous incapacity for the quarry accident since 1993. 
[4]
By 2007 he was working as a carpenter. While the review was pending, he was injured again. He suffered a shoulder injury in January 2007, aggravated by a further injury to the shoulder in June 2007. He was then unable to continue working as a carpenter and he applied for weekly compensation. His application was accepted on the basis of his earnings before his injury in June 2007 and he began to receive weekly compensation. 
[5]
In 2008, the review of his claim for backdated compensation was successful. The Reviewer found that he was continuously incapacitated from 1993. Mr O'Connor was then paid a lump sum for arrears of weekly compensation up to June 2007. 
[6]
That is where the present problem occurred. Once it was acccepted that Mr O'Connor was continuously incapacitated from 1993 through until the time of his injuries in 2007, the Corporation applied clause 48 of Schedule 1 of the 2001 Act: 
“48 Effect of further injury on entitlement to weekly compensation 
(1)
This clause applies to a claimant who - 
(a)
is already entitled to receive weekly compensation; and 
(b)
suffers incapacity from a further personal injury for which the claimant has cover under this Act. 
(2)
If it is necessary to recalculate the claimant's entitlement to weekly compensation, the claimant's entitlement to weekly compensation in respect of incapacity from both personal injuries is calculated using the weekly earnings assessed when calculating the weekly compensation referred to in subclause (1)(a). 
(3)
Subclause (2) does not apply to any subsequent periods of incapacity. ”
[7]
The review decision had established that Mr O'Connor was already entitled to receive weekly compensation when he suffered incapacity from his injuries in 2007. Under cl 48(2) his entitlement to weekly compensation was to be calculated using the weekly earnings assessed when calculating his weekly compensation for the 1993 incapacity. Payments from 2007 onwards were less than had been assessed for the 2007 injury. 
[8]
The purpose of the introductory words “If it is necessary to recalculate the claimant's entitlement to weekly compensation” is possibly to distinguish cases where a claimant is not an earner at the time of the second incapacity. It would then not be necessary to recalculate. 
[9]
Obviously there are many cases in which the claimant's earnings at the time of the new injury will be less that before the first injury, and cl 48 prevents the weekly compensation being reduced. Here, the appellant seems to have found a job with less (or different) physical demand but higher pay. While he was still incapacitated from working in a quarry he then became incapacitated for working as a carpenter. The new incapacity was not necessarily worse but it was in any event different. Mr Mines for the appellant argued that s 103 applied: 
“103 Corporation to determine incapacity of claimant who, at time of personal injury, was earner or on unpaid parental leave 
(1)
The Corporation must determine under this section the incapacity of- 
(a)
a claimant who was an earner at the time he or she suffered the personal injury: 
(b)
a claimant who was on unpaid parental leave at the time he or she suffered the personal injury. 
(2)
The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury. 
(3)
If the answer under subsection (2) is that the claimant is unable to engage in such employment, the claimant is incapacitated for employment. 
(4)
The references in subsections (1) and (2) to a personal injury are references to a personal injury for which the person has cover under this Act. 
(5)
Subsection (4) is for the avoidance of doubt. ”
[10]
Under s 103(2) the Corporation was required to determine whether the appellant was unable to work as a carpenter. Section 103 is activated by s 100“When the Corporation is required or allowed by this Act to determine a claimant's incapacity for employment”. Those provisions are called into play when clause 32 of Schedule 1 applies: 
“32 Corporation to pay weekly compensation for loss of earnings to claimant who was earner 
(1)
The Corporation is liable to pay weekly compensation for loss of earnings to a claimant who - 
(a)
has an incapacity resulting from a personal injury for which he or she has cover; and 
(b)
was an earner immediately before his or her incapacity commenced. 
(2)
The claimant is entitled to weekly compensation for loss of earnings - 
(a)
on and from the day after the first week of incapacity ends; and 
(b)
for any period of incapacity, after that first week, resulting from the personal injury for which he or she has cover. 
(3)
The weekly compensation payable is 80% of the claimant's weekly earnings, as calculated under clauses 33 to 45 and 48. 
(4)
Subclause (3) is subject to clauses 46, 51, 52, and 53. 
(5)
The amount of weekly compensation payable to the claimant must be adjusted in the manner provided in section 115. 
(6)
In this clause, earner includes a person who has purchased weekly compensation under section 223. ”
[11]
It will be noted that the calculation is 80% of weekly earnings as calculated under various other provisions including cl 48. If cl 48 applies, the weekly earnings are those applied to the calculation for the earlier incapacity. 
[12]
Mr Mines submitted that ss 100 and 103 apply without the need for reference to cl 48. He pointed out that a consequence of applying cl 48 would be that a person whose first incapacity followed very low earnings would be tied to that basis for weekly compensation even if, for example, he suffered a much more disabling incapacity during a later period of highly remunerative employment. 
[13]
Variations on such an outcome would depend on the kind of disability caused by successive accidents, and whether a break in disability occurred in which case the claimant was not “already entitled to receive weekly compensation” at the time of the second incapacity (cl 48(1)(b)). There is certainly a possibility of unfairness in some case. 
[14]
In this case, Mr O'Connor established in his review procedings that his incapacity since 1993 had been continuous. The continuity of his incapacity from 2003 defeated his claim to increased weekly compensation from 2007. 
[15]
Judge Barber referred to Little [2010] NZACC 77, in which a claimant obtained weekly compensation based on incapacity when he was an earner in 2003, but was refused backdated weekly compensation from the time of his first incapacity in 1990. When Mr Little later succeeded in establishing backdated incapacity, he was reassessed and his level of weekly compensation was reduced because his earnings were less before his 1990 incapacity. The judgment in Little stated that it is a core principle of weekly compensation that it is assessed on the basis of earnings received before incapacity commenced. 
[16]
The outcome in Little was decided by applying cl 32. There was one injury and one incapacity, so the basis for weekly compensation was based on earnings in 1990 as required by the 1992 Act. In such cases, ongoing weekly compensation is preserved by transitional provisions under the 1998 and 2001 Act. 
[17]
Clause 48 did not apply to Mr Little because he did not suffer incapacity from a further personal injury. When there is incapacity from a further personal injury, s 103 defines a new and separate incapacity. That would be a basis for a separate calculation of weekly compensation, if permitted by the Act permitted. But that is where cl 48 comes in. 
[18]
Clause 48 applied to Mr O'Connor because he suffered incapacity from a further personal injury whilst being already entitled to receive weekly compensation. Incapacity from both personal injuries was then to be calculated using the weekly earnings assessed when calculating the weekly compensation to which he was “already entitled”. It was only later decided that he had been already entitled, but the timing of the review decision made no difference, it simply established what the circumstances were in order for the legislation to be applied. Mr O'Connor could not be placed in a better position just because he established his right to continued weekly compensation for 1993 incapacity after, and not before, his 2007 incapacity. 
[19]
Mr Mines referred to broad principles and strong legislative purpose of rehabilitation and the need for a generous and unniggardly interpretation. He also argued that the decision did not give proper weight to the law in force at the time of the injury. That submission was not explained with reference to the transitional provisions which preserve weekly compensation and bring it under the new Act, so that references in cl 48 clearly applied to the appellant's ongoing weekly compensation. The decision rested on the law in force at the time of the 2007 incapacity and there does not seem to be any clearly defined question of law concerning the application of a different statute. The conflict is between the application of different sections in the same statute. 
[20]
The possible conflict is between cl 32 and cl 48. Clause 32(3) confers an entitlement to weekly compensation based on 80% of the appellant's earnings before his 2007 incapacity. The structure of cl 32 is first to impose a liability on the Corporation and then to state the method of calculation. If cl 32 stood alone, the references to incapacity could apply to more than one incapacity, that is to say different incapacities relating to different pre-incapacity employment. The method of calculation is stated to follow weekly earnings under various provisions including cl 48. Thus cl 32 is subject to cl 48. Clause 48 requires a calculation based on earnings assessed when calculating the weekly compensation to which the claimant is still entitled. Clause 48 does not reduce the cl 32 entitlement, it is part of the calculation under cl 32. 
[21]
I cannot identify a question of law suitable for determination on appeal to the High Court. The above analysis deals with questions of law and may be capable of argument, but the application for leave does not identify any error of law capable of bona fide and serious argument. Broad concepts of fairness and principle are not enough. The applicant would have to apply those principles to some point in the meaning or interconnection of these statutory provisions. It is not enough to say that s 103 should predominate, because clauses 32 and 48 clearly explain how weekly compensation is to be calculated when there is a new incapacity under s 103. When the meaning of the statute is clear, it is not enough to say that the result is unfair, or that a generous interpretation should prevail. 
[22]
Mr Mines also raises a question about application of the Chief Judge's Practice Note of 1 December 2004. Judge Barber refused an application by the appellant to allow the appeal without a hearing. The application was made on the ground that the respondent had not complied with the practice note. There was an unfortunate altercation between the Judge and Mr Mines who repeatedly refused to accept the Judge's ruling. Counsel or advocates must accept a judge's direction concerning the conduct of a hearing. It is not for counsel or for an advocate to attempt to gain control of a hearing by refusing to accept a judge's ruling. It is not surprising that the Judge became exasperated. 
[23]
Practice notes do not have the force of law. There may well be different views about how strictly the practice note should be enforced, but that matter is ultimately one of judgement for a presiding judge. The decision is always a matter for judicial discretion, having regard to overall justice of the case. If it were otherwise, parties would automatically be deprived of a right for their appeals to be heared as soon as time limits were infringed. 
[24]
The scope of application of the practice note is not a suitable matter for appeal to the High Court. 
[25]
I find that there is no question of law capable of bona fide and serious argument in order for leave to appeal to the High Court. Leave is therefore refused. 

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