Perkins v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 62/96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ANDREW HAYES PERKINS of Paekakariki Appellant (Appeal No. DCA 69/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of August 1996 APPEARANCES Appellant in person Mr T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the application of s.41 of the Accident Rehabilitation and Compensation Act 1982 and whether the appellant was entitled to the minimum self-employed weekly compensation pursuant to s.43 of that Act. The facts which give rise to the appeal are that on 20 July 1992 the appellant was in receipt of permanent earnings related compensation at a rate of $469.05 as a result of a decision made under s.60 of the Accident Compensation Act 1982 following a motorcycle accident in April 1981. In March 1995 the appellant suffered a further motorcycle accident after which he endeavoured to rehabilitate himself as a self-employed person inspecting land 2 titles for Housing New Zealand. After his accident in March 1995 the respondent obtained information from New Zealand Land Survey Management Limited which indicated that the appellant had worked for that company between 28 June and 19 August 1995 for which he was paid $2,835 working on average of approximately 25 hours per week. On 21 November 1995 the respondent advised the appellant that his claim for further weekly compensation in respect of his work for New Zealand Land Survey management was declined. That letter stated: "The Corporation has now gathered all the necessary information required to assist in ensuring a correct decision is made regarding this application for entitlement. It is noted that you class yourself as self employed which means under Section 41 of the Accident Rehabilitation & Compensation Insurance Corporation Act 1992 it is a requirement that your entitlement be based on your self employment earnings for the latest financial year. That is the year ending 31st March 1995. It is also a requirement that to be entitled to the self employed minimum under Section 43 of the 1992 Accident Rehabilitation & Compensation Insurance Corporation Act a minimum of 30 hours per week must be worked. This information we have obtained clearly indicates you have worked an average of 25 hours per week for this period and therefore are not eligible for Section 43 self employed minimum weekly compensation. It is therefore with regret, I must inform you that your application for weekly compensation has been declined. If you are not satisfied with this decision, or if there is something you do not understand, you should contract me immediately and discuss your concerns. I will explain the decision and will explain your right to ask that the decision be reviewed. If you do want the decision to be reviewed a request must be made in writing using a special form which is available from our office. The written request for a review must be received within three months from the date of this letter. The file also records that the appellant had spoken with his Case Manager on 22 August 1995 in which he said that he had been working for himself for approximately 4 to 6 weeks and that he normally could not work a full week and rarely managed 30 hours per week. The appellant applied for a review of the respondent's decision. The review hearing took place on 25 January 1996 and in his decision the review officer noted that the appellant had expressed his concern about the nature of the legislation which precluded him from obtaining additional payment. He told the review officer that his hours of work varied and that sometimes he worked for 60 hours in a week and on other occasions did no hours. The review officer 3 concluded that the decision of the respondent was correct and declined the application for review. The appellant submitted that he could have worked 30 hours per week for New Zealand Land Survey Management Limited except that he was required to take time off at least two or three times per week to obtain chiropractic treatment for the injuries he had sustained in his accident in 1987. He said that these visits took at least 11/2 hours and that he should really be compensated for those hours in assessing his hours of work. The appellant raised other issues about his dissatisfaction with the legislation but they are not matters which I can consider in this appeal which only relates to the respondent's decision of 21 November 1995. Mr Cleary submitted that the respondent and the review officer had followed the correct procedure and the review officer's decision should be upheld. Section 41 of the Accident Rehabilitation and Compensation Insurance Act 1992 provides the method by which weekly earnings are to be calculated for self- employed persons. During the 12 months before the commencement of incapacity as the appellant had no earnings in the tax year ended March 1995 which immediately preceded the commencement of his incapacity he has no entitlement to weekly compensation. Furthermore, he is already in receipt of permanent earnings related compensation under s.60 of the Accident Compensation Act 1982 in the amount of $479.76 per week. As the appellant was not working an average of 30 hours per week during the time he was undertaking work for New Zealand Land Survey Management he is not entitled under either s.41 or s.43 to the payment of weekly compensation. Section 43 does not apply because the appellant was not liable to pay the minimum self-employed premium under Regulation 4 of the Accident Rehabilitation and Compensation Insurance (Earner Premiums) Regulations 1994. Under those regulations as his work did not average 30 hours per week he did not come within the definition of "an earner" in full-time employment and so does not qualify under that section. I agree with Mr Cleary's submission that while the appellant claims that travelling time and chiropractor time should be included in his average weekly work hours, as he was not claiming reimbursement from his employer of $15 per hour for those particular times they cannot reasonably be classified as work hours. Mr Cleary submitted that even if the appellant was eligible for an assessment based on his earnings from New Zealand Land Survey Management Limited this would not affect his current entitlement which would greatly exceed any assessment based on the wages he had earned at that time. I agree with this submission and I agree that the decision of the review officer was correct. 4 The appeal is dismissed. DATED at WELLINGTON this 20TH day of AUGUST 1996 A W Middleton District Court Judge dc69-96.doc(rd)