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Accident Compensation Cases

van Kleef v Accident Compensation Corporation (DC, 31/03/15)

Judgment Text

RESERVED JUDGMENT OF JUDGE L G POWELL 
Judge L G Powell
[1]
At issue in this appeal is whether the appellant, Jonathan van Kleef, was overpaid an amount of weekly compensation and, if so, whether that overpayment should be repaid. Mr van Kleef also seeks payment of costs that were denied at review. 
[2]
In particular the present appeal involves consideration of a three week period between 30 July 2012 and 19 August 2012 when Mr van Kleef recommenced work for a company called Slink Skins Limited. After Mr van Kleef failed to appraise the Corporation of the position with regard to his recommencing work, following inquiries made by the Corporation, the company confirmed that Mr van Kleef had in fact started work on 30 July 2012 and over the next three weeks had earned as follows: 
• 
Week 30 July 2012 to 5 August 2012 
$194.67 
• 
Week 6 August 2012 to 12 August 2012 
$2,452.41 
• 
Week 13 August 2012 to 19 August 2012 
$2,387.52 
[3]
Mr van Kleef's weekly compensation was stopped as a result, following which the Corporation undertook a calculation to determine what weekly compensation Mr van Kleef would have been entitled to had the earnings he received been taken into account. This determined that Mr van Kleef had in fact been overpaid in each of the weeks, calculated as follows: 
• 
Week 30 July 2012 to 5 August 2012 
$10.68 
• 
Week 6 August 2012 to 12 August 2012 
$605.30 
• 
Week 13 August 2012 to 19 August 2012 
$251.34 
Total overpayment 
$867.32 
[4]
By decision dated 28 September 2012 the Corporation requested repayment of this amount. Mr van Kleef sought a review. At review the reviewer, Vicky Thomson, quashed the Corporation's decision and instead determined: 
“•
ACC was correct to determine that Mr van Kleef had been overpaid $867.32 from 30 July 2012 to 15 August 2012. 
ACC failed to properly consider the criteria in section 251(2) so ACC must make a new decision on whether to require repayment. ”
[5]
The reviewer also declined to award costs on review on the basis that the costs sought by Mr van Kleef related to an invoice from a solicitor who Mr van Kleef himself confirmed “had not been representing him on this review”. Given that position the reviewer concluded that representation costs were by definition not appropriate. 
[6]
Mr van Kleef appealed the first review (ACR 125/13). In the meantime the Corporation undertook further investigations and on 14 March 2013 issued a further decision specifying the overpayment was not made in error but rather “because subsequent earnings details were received after [Mr van Kleef] had been paid for weekly compensation for the [relevant] period”
[7]
Mr van Kleef sought a review of this second decision. At the second review the reviewer, Dale Todd, determined that she was bound by the determination in the first review that the sum of $867.321
| X |Footnote: 1
I note that there is a transcription error in the review decision and the sum of $876.32 is referred to but it is clear from the decision as a whole that the reviewer confirms that $867.32 is outstanding. 
was outstanding, and found no basis for the Corporation not recovering the overpayment from Mr van Kleef. 
[8]
The issues to be determined are therefore: 
[a]
Was there an overpayment of $867.32? 
[b]
Is there any basis for the Corporation not to recover this overpayment from Mr van Kleef? 
[c]
In any event is Mr van Kleef entitled to the payment of costs on the first review? 
The Case for Mr Van Kleef 
[9]
Although Mr van Kleef filed submissions in support of his appeals these were focused, not on the issues set out above, but issues of procedural unfairness at review, namely the late filing of submissions by the Corporation and how this issue was dealt with by the reviewer. With respect to Mr van Kleef, the issues he has raised are not relevant to the issues before me. Instead, as I have set out on several occasions, the legislation is clear that appeals of decisions of reviewers to this Court are by way of rehearing. Matters relating to procedure at the review hearing will in general have no bearing on the outcome of appeals. Instead, on appeal, judges in this Court considered the substantive issues afresh on a basis of the evidence presented at review and any other evidence subsequently admitted in the course of hearing the appeal. As a result I now turn to the substantive issues before me. 
Was there an overpayment of $867.32? 
[10]
As noted, the submissions filed by Mr van Kleef did not address this question. At review however, Mr van Kleef had submitted the Corporation's calculations were incorrect. In his view the calculation should have taken into account the fact that payment for the work that he carried out was always made a week after the work had been completed. It is difficult to see the basis for Mr van Kleef's submission. The issue is what Mr van Kleef was earning for each of the weeks in question. There is in fact no dispute that the figures used by the Corporation accurately reflected the work carried out by Mr van Kleef during the relevant period, and therefore constitute what he earned for each of the weeks in question. The fact that payment for the work occurred at a different time, in this case being paid a week in arrears, is immaterial, as it would also have been if Mr van Kleef had been paid fortnightly, or indeed monthly for the work carried out. 
[11]
I am accordingly satisfied that there has been no error with regard to the calculation of Mr van Kleef's earnings, and I am therefore satisfied that the sum of $867.32 was overpaid to Mr van Kleef. 
Is there any basis for the Corporation not to recover the overpayment? 
[12]
As with the first issue Mr van Kleef did not address this issue in his submissions filed with the Court, while at review he merely argued that “he had received the money in good faith because, by his own calculation at that time, he did not believe that there was any overpayment”.2
| X |Footnote: 2
Second review decision page 4 
 
[13]
The relevant statutory provision covering recovery of payments is s 251(2) of the Accident Compensation Act 2001. This section provides: 
“251
Recovery of payments 
(2)
The Corporation may not recover any part of a payment in respect of entitlements that was paid as a result of an error not intentionally contributed to by the recipient if the recipient— 
(a)
received the payment in good faith; and 
(b)
has so altered his or her position in reliance on the validity of the payment that it would be inequitable to require repayment. ”
[14]
With regard to the present case it was Mr Light's submission: 
“4.7
The first question is whether the error in payment was intentionally contributed to by Mr van Kleef. In this case Mr van Kleef was aware of his need to advise ACC of earnings. He was familiar with the abatement procedure from his previous experience with ACC. It was inevitable that his failure to advise ACC of his earnings would lead to the overpayment. As Mr van Kleef was aware of his requirement to advise ACC of his earnings, and the effect of this on his compensation, it can be said that he intentionally contributed to it and there is a clear question as to whether the payments were received in good faith. 
4.8
In any event there is no evidence to show that Mr van Kleef altered his position in reliance on the validity of the payment such that it would be inequitable for ACC to require repayment. Accordingly, it is submitted that ACC is entitled to recover the payments erroneously made. ”
[15]
It is clear from various emails that Mr van Kleef had previously worked for Slink Skins Limited and that he was aware that abatement of his weekly compensation was an issue if information about his earnings from the company was not provided to the Corporation. I accordingly conclude that Mr van Kleef intentionally contributed to the overpayment by not keeping the Corporation informed that he had started work with Slink Skins Limited for the new season. In any event, as submitted by Mr Light, there is simply no evidence put before me to indicate that Mr van Kleef in any way altered his position so as to fulfil the requirements of s 251(2)(b). 
[16]
Taking these matters together I have no hesitation in concluding that there is no basis for the Corporation not to recover payment from Mr van Kleef. 
Was Mr Van Kleef entitled to costs on first review? 
[17]
There is an element of confusion around exactly what Mr van Kleef was seeking with regard to costs, but in his Notice of Appeal he indicated that he wished the Court to look at whether or not the costs sought in the first review were in fact payable. I have accordingly done so. 
[18]
As noted in [5] above the costs the Mr van Kleef sought to be paid in the first review were for a solicitor who, despite rendering an invoice to Mr van Kleef, was specifically not representing Mr van Kleef at the review. From the information available it appears that the invoice related to time incurred by the solicitor advising both the reviewer and Mr van Kleef that he was not in fact acting on the review. In such circumstances, when Mr van Kleef was at all times formally unrepresented, the reviewer was clearly correct in not awarding representation costs to Mr van Kleef. 
[19]
That said, at the hearing Mr Light observed that although Mr van Kleef was not entitled to representation costs, he should have been paid travel disbursements on the first review, as he was indeed paid at the second review. This was to cover the round trip undertaken by Mr van Kleef between Waimate and Timaru, a distance of 100 kilometres. Mr Light requested that the first review decision be modified accordingly, and I am satisfied that this is appropriate. 
Decision 
[20]
For the reasons set out above: 
[a]
In relation to ACC 125/13 the appeal is allowed in part and the review decision dated 28 February 2013 is modified so as to provide for travel costs for a 100 kilometre round trip from Waimate to Timaru and return. The review decision is otherwise confirmed. 
[b]
In relation to ACR 438/13 the appeal is dismissed. 
[21]
There is no issue as to costs on either of the appeals. 


I note that there is a transcription error in the review decision and the sum of $876.32 is referred to but it is clear from the decision as a whole that the reviewer confirms that $867.32 is outstanding. 
Second review decision page 4 

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