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Accident Compensation Cases

University of Otago v Jennings (EMC, 24/08/94)

Judgment Text

INTERLOCUTORY JUDGMENT OF PALMER J 
Palmer J
Introductory 
The University of Otago has formally applied to this Court for the ordered removal to the Employment Court of the grievance proceedings brought against it by Ms Karla Jennings. The university's application is made pursuant to section 94(3) of the Employment Contracts Act. 
The application is based upon the following contended grounds, namely: 
1.
That an important question of law is likely to arise in the matter, namely whether a claim against an employer for compensation in respect of occupational overuse syndrome is precluded by Section 14 of the Accident Rehabilitation & Compensation Insurance Act 1992. 
2.
That the question of law arises other than incidentally, because the major part of the Applicant's claim relates to compensation in respect of occupational overuse syndrome. 
3.
That the said question of law has not previously been determined by the [E]mployment Court, and is the question likely to arise in a substantial number of cases in the future. 
4.
That the Employment Tribunal which decided to refuse an application to remove proceedings into the Employment Court [through the Tribunal's decision delivered on 8 June 1994] formed a view on the merits of the question without hearing either of the parties to the proceeding, and is therefore an inappropriate forum for the resolution of this question. 
The University of Otago's application for special leave to formally remove the pending grievance proceedings to this Court is supported by the affidavit of Mr Andrew Beck, a senior law lecturer employed by the applicant wherein he has particularised why, in his opinion, the proceedings should appropriately be so removed. In short, in his affidavit - and for reasons I shall subsequently enlarge upon - Mr Beck explains why in his view “an important question of law is likely to arise in the matter [that is to say the proceedings] other than incidentally” (paragraph 2 of his affidavit refers). 
The university's application to remove the proceedings to the Court is formally opposed by Ms Jennings. 
The Nature of Ms Jennings' Claim 
In her initial statement of claim filed herein on 19 April 1994, Ms Jennings contends that her employment as a cashier which she had commenced at the University of Otago during March 1991 significantly changed in February 1992. She alleges that during “the initial stages of her employment the functions she was required to undertake were carried out manually with a lot of writing and the use of a calculator”. From February 1992, however, Ms Jennings contends that the core functions of her employment “became computerised”, as all information “was receipted by keying data into the computer (data entry)”. According to Ms Jennings “No advice on health and safety issues involved in the use of new technology was ever given”. Furthermore, the respondent alleged that there was “No analysis of the ergonomic requirements for individuals ... ever undertaken” by the University of Otago. Ms Jennings contends that she critically “brought to the attention of her manager the unsuitability of the siting of the computer at the front counter”. Because Ms Jennings is “short in stature”, she alleges that the particular computer sited at her work station at the front counter of the cashier's office was “far too high” for her usage in a sitting position, requiring her to “stand up to use this computer”. Ms Jennings alleges that the use of the available stool was impractical because the printer and the cash drawer on each side of the computer impeded her recourse to the stool. According to the respondent no action was ever taken by Ms Jennings' superiors “regarding the unsuitable set up of this particular computer” (paragraph 2.6 of the respondent's initial statement of claim refers). 
Ms Jennings further contends that a cashier colleague was granted five weeks annual leave during October 1992 thereby requiring Ms Jennings to assume the work functions of her absent colleague additionally to her own work. Ms Jennings contends that her supervisor had agreed “that the cashiers would pick up [at this particular time] the extra functions of regalia hire and Graduation Association work”. The respondent alleges that this “unilateral decision by the supervisor ... turned October into a very busy month”, although October normally was “a quiet month” for cashiers. 
In her initial statement of claim the respondent contended in subparagraphs 2.9, 2.10 and the immediately succeeding summary that: 
“2.9
As a result of the inappropriate adjustment of work stations, lack of ergonomics, lack of training and extra work Ms Jennings was required to carry out, she sustained a Repetitive Strain Injury. 
2.10
To date the injury has not responded to any treatment and has made it impossible for Ms Jennings to carry out the functions of her position which has resulted in her dismissal. 
Summary 
(a)
Ms Jennings commenced work for the University of Otago as a fit and well person able to perform her assigned duties. 
(b)
New technology was introduced without correct ergonomic positioning, staff training and discussion of health and safety issues for safe operation which is a breach of Clause F 3.3. of Ms Jennings' then individual employment contract. 
(c)
Ms Jennings was unilaterally required to undertake extra functions in addition to her own, as well as the functions of the other full time cashier who was on annual leave. 
(d)
Ms Jennings sustained an injury as a result of the above which has not been resolved. She has subsequently been dismissed. 
(e)
The Association contends that the University has failed to prevent harm to an employee by minimising the risks for Ms Jennings. Such action is unjustifiable, rendering her dismissal unjustifiable. ”
Following her “Summary” the respondent, under the heading “Remedy”, then contended that: 
“In view of the fact that Ms Jennings is unable to work and has no future prospects in her current state of health, compensation of $20,000 is sought for unjustifiable action and dismissal. ”
The cited respondent in Ms Jennings' original statement of claim was Mr D W Girvan, the registrar of the University of Otago, rather than the university itself. 
In support of her formal referral of her contended personal grievance to the Tribunal Ms Jennings, additionally to her initial statement of claim, filed copies of her particularised grievance dated 11 February 1994 as formally notifed to the University of Otago; the university's formal response to the notification of grievance dated 25 February; a detailed medical evaluation dated 15 July 1993 which was undertaken by Mr B S McMillan, orthopaedic surgeon, Dunedin, concerning Ms Jennings' contended occupational overuse condition/syndrome affecting her right arm and, more particularly, her right wrist and hand, and a copy of subclause G3.3 of the award/collective employment contract allegedly governing the respondent's employment. This particular subclause was incorporated within the New Zealand Universities General Staff Award. This particular subclause which is concerned, as the heading to G3 confirms, with “NEW TECHNOLOGY” provides: 
“G3.3
When new technology is introduced into a workplace, it will be the responsibility of management to provide appropriate training to the staff directly affected. Such training will include any health and safety implications or information that will enable staff to operate the equipment without discomfort and will help maintain their general well-being. ”
I digress to comment that the award materially governing Ms Jennings' employment was the New Zealand Universities General Staff Composite Award registered on 4 July 1991, in which the relevant “New Technology” subclause is F3.3. 
Significantly, the university's formal response to Ms Jennings' notification of grievance through her union (the Public Service Association) was as follows: 
“25 February 1994 
Ms W. Kazianis, 
New Zealand Public Service Association, 
P.O. Box 544 
DUNEDIN. 
Dear Ms Kazianis, 
I refer to your letter of 11 February 1994 regarding Ms K. Jennings. 
The Association's claim seems to be directed towards seeking damages for what you see is the University's actions which you believe contributed to Ms Jennings' medical condition. Since 1974, with the introduction of Accident Compensation legislation, it has not been possible to obtain damages for personal injury. Ms Jennings has been receiving compensation pursuant to the Accident Compensation scheme since November 1992 in recognition of her condition. It is therefore not permissible for you to put forward a claim on this basis in a personal grievance setting. 
We also note that there are a number of factual inaccuracies in your letter: 
1.
The introduction of the new receipting system did not alter the function of the office staff to data entry. 
2.
The leave for Ms Jennings' colleague was planned to coincide with a period of normal low work volume. Ms Jennings was not expected to undertake an unreasonable workload. 
3.
Implementation of and training in the use of the new system was a gradual process over a period of several months. 
4.
A number of courses in Health and Safety for Keyboard Operators were available for Ms Jennings to attend. Availability of courses was widely known by means of Staff Newsletters. Ms Jennings chose not to avail herself of these opportunities. 
5.
Ms Jennings was made aware of the need to check the adjustment of her work station. We note that Ms Jennings had to stand for long periods at the counter. This is something that she chose to do herself. Ms Jennings had the opportunity to do the cheque receipting work sitting down at another work station. We also note that Ms Jennings did not use the special gas operated stool made available for staff working at the counter. Complaints made by Ms Jennings to her Supervisor concerning the installation of the counter work station subsequently resulted in modifications being made. 
We do not accept that Ms Jennings has been unjustifiably dismissed and believe that the University has taken all reasonable steps in the circumstances. 
Yours sincerely, 
D.W. Girvan, 
REGISTRAR. ”
I simply stress at this point that the university, in its formal response to the PSA, contended that it was not jurisdictionally competent for Ms Jennings to formulate a claim for contended “damages for personal injury” in a personal grievance setting for the reasons it particularised. Subsequently Mr Churchman wrote to the Tribunal on 9 May 1994 inviting it to refer the proceedings to the Employment Court pursuant to section 93 of the Employment Contracts Act on the question “whether it is permissible in personal grievance proceedings to claim damages to compensate for personal injury by accident”. Mr Churchman - as the Tribunal referred at p 2 of its decision concerning the university's application - also “invited the Tribunal to remove the whole proceedings to the Court pursuant to s.94 of the Employment Contracts Act”. I have not seen counsel's letter of 9 May because it has not been included in the Tribunal file made available to me. Nevertheless, in reliance upon the Tribunal's decision, I accept that counsel for the University of Otago proceeded in substance, through his letter of 9 May, as the Tribunal has confirmed in its decision delivered on 8 June 1994. 
Ms Jennings, through her advocate (Mr Topham), filed an amended statement of claim on 29 July. I accept, as Mr Churchman has submitted in paragraph 3.3 of counsel's synopsis of argument, that: 
“3.3
The Applicant in the personal grievance proceedings has filed a ‘re-amended’ Statement of Claim [amended statement of claim] attempting to re-focus the proceedings away from a claim for compensation for the direct consequences of personal injury by accident. However, although paragraph 15 of the ‘re-amended’ Statement of Claim refers to an alleged breach of contract the Applicant seeks no relief for that alleged breach but solely seeks relief for the loss of employment which occurred as a direct consequence of the personal injury by accident. ”
I further accept, as Mr Churchman has submitted in paragraphs 3.4 and 3.5 of counsel's synopsis of argument, that: 
“3.4
The issue raised is whether or not the Applicant is seeking damages in these proceedings for a consequence ‘arising directly or indirectly out of personal injury covered by this Act’ as prohibited by section 14(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 (ARCI Act). 
3.5
A Further issue of the construction of section 14(3) of the ARCI Act also arises as to whether what the Applicant is in reality seeking is compensation for personal injury covered by the ARCI Act or personal injury by accident covered by the Accident Compensation Acts 1972 or 1982. ”
In her amended statement of claim, in which Ms Jennings correctly cites the University of Otago as her employer rather than Mr Girvan the registrar, the respondent (then the applicant) materially contends in paragraphs 6-17 (inclusive) that: 
“6.
THE other two computers in the office were also unsuitably positioned. Because the applicant was given no training in health and safety with new equipment, she experienced a situation of having to cope with office equipment such as these two computers, which were badly positioned because they were too high for her operational requirements. The new equipment was installed in January 1992, and by the end of October 1992, the applicant suffered such pain in her right arm, that she could barely continue her employment. 
7.
THE applicant's situation continued to deteriorate, and by early November 1992, she had no option but to leave her employment and go on sick leave. She has been on Accident Rehabilitation and Compensation Insurance earnings related compensation since early November 1992, and received the twenty percent employers contribution until 3 December 1993. 
8.
THE applicant's working situation was made worse by the fact that her colleague, a fellow cashier, was granted five weeks annual leave in October 1992. This meant that the applicant had to take on double her normal workload. Despite this, the respondent did not hire temporary help to cope with the situation. In this situation, the applicant had no alternative but to work without breaks. 
9.
THE applicant commenced her employment with the respondent in March 1991. She was a fit person able to perform her assigned duties until the new technology referred to in paragraph 3 of this Statement of Claim was introduced. This technology was brought into the office without correct ergonomic positioning, staff training or discussion of health and safety issues. This was a breach of clause F 3.3 of the applicant's individual employment contract. 
10.
THE respondent failed to take action to alleviate the situation in early October 1992, when the applicant complained to the Chief Cashier of pain in her right arm. If action had been taken at this stage, the applicant's situation may not have deteriorated as badly as it did. It was only by the end of October 1992 when the applicant's right arm was bandaged and in a very serious condition, that the respondent brought in temporary assistance for several hours per day. However, even then, the applicant's workload was not greatly alleviated. 
11.
WHILST the applicant was on sick leave, the respondent sent her a letter in early March 1993 explaining that she had six months to recover, otherwise her employment would be terminated. By 3 September 1993, the applicant had not recovered sufficiently to go back to work, and she was then given three months notice of termination by the respondent. 
12.
THE Accident Rehabilitation and Compensation Insurance Corporation has informed the applicant that her earnings related compensation will cease on 6 January 1995. 
13.
DUE to the nature of the injury sustained by the applicant whilst employed by the respondent, it is unlikely that the applicant will be able to work with computers in the foreseeable future. Because of this it means that she is now in a position where she must re-train to equip herself for other employment. 
14.
THE applicant is unmarried and expecting a child, so her need to find employment is extremely important. 
15.
THE actions of the respondent in not complying with the applicant's employment contract in terms of not providing training in health and safety as is required by clause F3.3 of the New Zealand Universities General Staff Composite Award, has produced a situation whereby the applicant had her employment seriously disadvantaged, and constitutes unjustifiable action by the her [sic] employer, the respondent, in terms of section 27 (1) (b) of the Employment Contracts Act 1991. 
16.
THE actions of the respondent in failing to alleviate the applicant's employment situation early in October 1992 when she had to cope with a double workload, and had brought to the attention of the Chief Cashier of the respondent that she was suffering pains in her right arm, seriously affected the applicant's employment to her disadvantage, and constitutes unjustifiable action by the employer, the respondent, in terms of section 27 (1) (b) of the Employment Contracts Act 1991. 
17.
THE actions of the respondent as outlined in clauses 12 and 13 of this Statement of Claim caused a situation whereby the applicant lost her job and has suffered a high degree of stress and loss of dignity. ”
In her amended statement of claim Ms Jennings seeks: 
“1.
COMPENSATION of $25,000 for loss of her employment in accordance with section 40 (1) (c) (ii) of the Employment Contracts Act 1991. 
2.
COMPENSATION of $10,000 for stress, humiliation and loss of dignity, in accordance with section 40 (1) (c) (i) of the Employment Contracts Act 1991. ”
Essentially I conclude, while the focus of Ms Jennings' pleaded claim was changed, contrasted with the content of her initial statement of claim, the primary issues germane to the claim are - as Mr Churchman has submitted - unaltered. Indeed, it was this feature of the pending proceedings which caused Mr Andrew Beck to contend, in his affidavit filed in support of the university's application to transfer the pending proceedings to the Employment Court, that “in my opinion an important question of law is likely to arise in the matter other than incidentally” because: 
“3.
... 
(a)
The Applicant has claimed compensation of $25,000 under s 27(1)(b) of the Employment Contracts Act 1991. This represents approximately 80% of the total claimed by the Applicant, and must therefore be seen as the main substance of the Applicant's claim. 
(b)
Section 27(1)(b) of the Act permits a claim where employment has been affected to the employee's disadvantage by some unjustifiable action by the employer. The Applicant claims that the unjustifiable action giving rise to complaint is the failure to prevent harm to the Applicant by minimising the risks relating to the introduction of equipment for data entry. 
(c)
It appears from the Statement of Claim that the substance of the Applicant's claim is not what was done by the employer, but personal injury suffered by the Applicant. As a result, a legal question arises as to whether such a claim is permissible by virtue of s 14 of the Accident Rehabilitation & Compensation Insurance Act 1992. 
(d)
As this issue has not previously been resolved by the Court, and is an issue which has the potential to arise in a large number of employment claims, it has an importance going beyond the ambit of this particular instance. 
(e)
I have read the decision of the Employment Tribunal declining the Respondent's application to remove the proceeding into the Employment Court. Although that decision was reached without hearing the parties, it is clear from the decision that a substantial legal issue was recognised by the Tribunal. As the Tribunal has already formed a view on the merits of legal issue, consideration of the issue by the Court would seem appropriate. ”
I conclude there is compelling force in Mr Beck's particularised views which Mr Churchman developed during his argument in support of the formal removal of the proceedings to the Employment Court pursuant to section 94(3) of the Employment Contracts Act. 
The Tribunal's Approach 
The Employment Tribunal (Mr Walter R Grills) delivered its decision on 8 June “on the papers” only, that is to say without hearing argument from Mr Churchman and Mr Topham upon the removal of the proceedings to the Employment Court which the University of Otago, through counsel, had sought pursuant to section 94 of the Act. Through this particular approach the Adjudicator arrived at his decision without the assistance of counsel and the advocate for the parties. Unfortunately, in my clear view, the Tribunal thereby disabled itself from the advantages which such argument would plainly have afforded to it. The Adjudicator declined the application for removal of the proceedings to the Employment Court which was made by the University of Otago, notwithstanding the qualified form in which his decision was expressed. 
The Tribunal - within the context of its decision - expressly relied upon two judgments of the Labour Court and a prior decision of the Employment Tribunal in support of its then concluded view that it should, within its exercisable discretion, decline “at this time” to remove the proceedings to the Employment Court upon the university's application. The two judgments of the Labour Court comprised the judgments respectively delivered in Canterbury Clerical Workers IUOW v Printing & Packaging Corporation Ltd [1988] NZILR 1213Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , and Northern Distribution Union v Sherildee Holdings Ltd (t/a New World Titirangi) [1991] 2 ERNZ 675Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . The Tribunal decision relied upon by the Adjudicator comprised his own decision delivered in Murphy v Allied Press Ltd unreported, 21 February 1994, CT 29/94. The Tribunal went so far as to observe at p 2 of its present decision that: 
“There have also been previous cases in which the interplay between both the 1982 Accident Compensation Corporation Act and the 1992 ARCI Act [Accident Rehabilitation and Compensation Insurance Act] and employment contracts have been considered: see for instance Northern Distribution Union v Sherildee Holdings Ltd [1991] 2 ERNZ 675Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . ”
With great respect to the Tribunal - as I hold Mr Churchman has correctly submitted during counsel's argument in the present hearing - a consideration of the judgment delivered by the Labour Court in Sherildee Holdings Ltd simply does not support this expressed view of the Tribunal. I need scarcely emphasise that this particular judgment was delivered on 26 August 1991 when the Accident Rehabilitation and Compensation Insurance Act 1992 was not even “a twinkle in the legislative eye”, as it were. The “ interplay” alluded to by the Tribunal in very express terms and which I have immediately cited simply could not and did not arise. I unreservedly accept Mr Churchman's developed submissions in this setting which are particularised in paragraphs 6.1 to 6.3 (inclusive) of counsel's synopsis of argument during the present hearing. 
In its decision the Tribunal did not expressly determine whether, in its opinion - within the context of section 94(2)(a) of the Act - “An important question of law is likely to arise in the matter other than incidentally”. I conclude the Tribunal was, however, impliedly of this view. 
The question of law, I now re-emphasise, primarily identified by Mr Churchman in paragraph 3.1 of his synopsis of argument was and is: 
“as to whether a claim against an employer for compensation in respect of occupational overuse syndrome is precluded by section 14 of the Accident Rehabilitation and Compensation Insurance Act 1992. ”
I accept that there is compelling force in counsel's submissions in this particular setting, notwithstanding Mr Topham's submitted argument to the contrary. 
The Tribunal seemed, with respect, to adopt a “wait and see” approach. Inherent in this approach, I conclude, was the Tribunal's view that upon the material - but in relevant aspects opposing - facts in contention between the parties the legal principles to be applied were arguably sufficiently well-established to enable the application for a removal of the proceedings to the Employment Court to be appropriately declined at that point. With great respect to the Tribunal, I do not share this particular view. In declining to remove the proceedings to this Court, the Tribunal expressly qualified its then refusal by emphasising that that refusal was “at this time” (p 3 of its decision refers). Earlier the Tribunal had held, within the context of its decision at p 3, that: 
“At this point of time, and on the facts currently before the Tribunal I am of the view that: 
(a)
the background to the grievance claim, being an allegedly work related accident, does not prevent the claim being determined by the Tribunal; 
(b)
the Tribunal has previously determined a personal grievance claim involving RSI; 
(c)
any relief which the Tribunal may grant if the grievance is upheld must be subject to the express provisions of the ARCI Act, and especially the proviso to s.14 (3) of that Act, 
(d)
as the existence of personal injury by accident in terms of the ARCI Act is, or may be, in dispute, it would be appropriate, in the event the matter proceeds to adjudication on its substance, to direct service of the proceedings on the Accident Compensation Corporation so that it has the opportunity to be heard on the matter. 
(e)
the Tribunal should proceed to determine the matters before it, while reserving the right at some future point to refer a question of law to the Court under s.93 of the Employment Contracts Act. 
(The emphasis is mine.) ”
Subsequently - and consonant with what I have described as the Tribunal's “wait and see” approach - it further qualified, under the heading “DECISION” at pp 3 and 4 of its decision, its refusal to remove the proceedings then to the Employment Court thus: 
“2.
For the reasons expressed above, the Tribunal is disinclined to make a referral to the Court pursuant to s.94 of the Employment Contracts Act. The parties are entitled to be heard by the Tribunal on this matter pursuant to Regulation 24 (a) of the Employment Tribunal Regulations. Should either party wish to be heard on the matter they should so advise the Tribunal not later than 14 days following the date of issue of this decision. Should neither party so advise the Tribunal within that time of it's desire to be heard on the question of a s.94 referral, the request for referral shall without further action be declined. 
3.
For the reasons expressed above, the Tribunal is disinclined to grant the application to strike out the proceedings in this matter. The Tribunal is however prepared to offer the parties the opportunity to be heard on the application. Should either party wish to be heard on the matter they should so advise the Tribunal not later than 14 days following the date of issue of this decision. Should neither party so advise the Tribunal within that time of it's desire to be heard on the application to strike out the proceedings, the application to strike out shall without further action be declined. 
4.
Should neither party advise the Tribunal of a desire to be heard pursuant to either 2 or 3 above, the matter will proceed to adjudication on its substance. ”
The Opposing Submissions of Counsel and the Advocate 
Before I engrossed this judgment I considered with exacting care the developed arguments of Mr Churchman and Mr Topham. I have already confirmed that I accept, in major outline, the argument of counsel, notwithstanding Mr Topham's submitted view that I should uphold the decision/ruling of the Tribunal of 8 June. The advocate's argument essentially was and is that the Tribunal, in declining to order the transfer of the proceedings to the Court, exercised its discretion after correctly taking into account all factors germane to that discretion. I do not accept this argument. 
My Concluded View 
It is trite to observe that in declining to order the removal of the proceedings to the Employment Court the Tribunal has exercised, for particularised reasons, its discretion provided for by section 94(2)(a) of the Act. I would not simply substitute my discretionary view for that of the Tribunal unless I concluded that the Tribunal had erred in principle, and/or had inappropriately brought to account an irrelevant factor or factors germane to its discretion in the particular circumstances of this case, and/or had failed to bring to appropriate account a relevant factor or factors materially impacting upon an appropriate exercise of its discretion. Indeed, upon an application for special leave to the Employment Court in this immediate setting, the Court is enjoined by Parliament in unmistakably plain terms through section 94(3) of the Act to “apply the criteria that governed the Tribunal's decision under subsection (2) of this section”. I have proceeded accordingly. 
I firmly conclude, with respect to the Tribunal, that an overwhelming case exists for the removal of these proceedings now from the Tribunal to the Employment Court because a very “important question of law is likely to arise in the matter other than incidentally”. Indeed, I would go further and say that this very important question of law will certainly arise. Without wishing to engage in wearisome repetition I simply now reiterate my acceptance in essential outline of Mr Churchman's developed argument. In declining to order the removal of the proceedings to the Court the Tribunal, I hold, erred in principle in the exercise of its discretion. Furthermore, in my view the Tribunal materially misappreciated, as its “interplay” observation confirms, the Sherildee Holdings judgment which simply was not concerned at all with section 14 of the Accident Rehabilitation and Compensation Insurance Act 1992. It is appropriate that I should cite section 14 of this Act, with particular emphasis upon subsection (3)(c), namely: 
“14.
Application of Act excludes other rights - (1) No proceedings for damages arising directly or indirectly out of personal injury covered by this Act or personal injury by accident covered by the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is suffered by any person shall be brought in any Court in New Zealand independently of this Act, whether by that person or any other person, and whether under any rule of law or any enactment. 
(2)
For the avoidance of doubt, it is hereby declared that nothing in this section shall be affected by - 
(a)
The failure or refusal of any person to lodge a claim for any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act or those Acts; or 
(b)
Any purported denial or surrender by any person of any rights under this Act or those Acts; or 

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