Vickery v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 78 199 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN GEORGE VICKERY DCA 349/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of February 1999 APPEARANCES: Mr C J Walshaw advocate for appellant Ms J A Cheyne counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to rule that the appellant's entitlement to weekly compensation would cease on his attaining the national superannuateon qualification age, rather than at age 65 years as was the case under the 1982 Act, when this appellant's entitlement to weekly compensation arose. 2 BACKGROUND FACTS The appellant was born on 20 November 1934. On 27 July 1989 he suffered personal injury by accident and from the date of that injury he has been unable to resume employment. The appellant was assessed and commenced to receive earnings related compensation pursuant to the provisions of section 59 of the Accident Compensation Act 1982. In a letter dated 29 October 1992 from the respondent to the appellant it stated: "This letter is to inform you of the changes to the Accident Compensation Scheme... Some changes have been made to the upper age limits for receiving weekly compensations. In general terms weekly compensation will terminate from the age from which national superannuateon entitlement starts. If you are still receiving weekly compensation when you reach the national superannuateon qualifying age we will write to you giving you an option to receive either weekly compensation or national superannuateon. If you choose to continue to receive weekly compensation instead of national superannuateon such payments can continue to be made only until you reach the age of 65. (At that time you will be eligible to claim for national superannuateon) In the meantime as long as you are unfit for work as a result of your injury by accident you will continue to receive weekly compensation payments." By letter dated 15 October 1997 the respondent again wrote to the appellant and this letter stated inter alia: 'I wish to advise you that your entitlement to weekly compensation will cease on 20 May 1998 as per section 52 of the 1992 Act. This means that your entitlement to weekly compensation ceases once you reach your New Zealand Superannuateon Qualifying age which in you case is 63 years and 26 weeks, therefore payment will cease on 20 May 1998." It is noted that the appellant attains the age of 65 years on 20 November 1999. 3 The appellant sought a review of that hearing and in her decision dated 24 July 1998 the Review Officer confirmed the Corporation's decision stating that the question of cessation was now covered by section 52 of the 1992 Act that the former provision of section 66 of the 1982 Act which provided for compensation to cease on attaining age 65 had been repealed and was no longer applicable. RELEVANT STATUTORY PROVISIONS Section 66 of the Accident Compensation Act 1982 stated: "Earnings related compensation shall cease, on account of age, to be payable under section 59 or section 60 of this Act to an earner who suffers personal injury by accident in respect of which he has cover - (a) On the date on which he attains the age of 65 years The other provisions of section 66 are not relevant for the purposes of this appeal. Section 52 of the ARCI Act 1992 states: "Except as provided in this section, a person who has attained the national superannuateon qualification age shall not be entitled to any compensation for loss of earnings or loss of potential earning capacity under this Act." Section 138(1) of the 1992 Act states: "Where any person is, immediately before the Ist day of July 1992, in receipt of or would have been entitled to be in receipt of compensation calculated under any of the provisions of sections 113,114, 116. 117, and 118 of the Accident Compensation Act 1972 or of sections 59, 60, 61, 62, 63, 64 and 88 of the Accident Compensation Act 1982 , that compensation shall continue to be payable or be paid as if it had been calculated under this Act; and the personal injury by accident suffered by that person shall be deemed to be personal injury within the meaning of this Act. " SUBMISSIONS Mr Walshaw, advocate for appellant, submitted as follows: i) Section 8 of the 1992 Act makes it clear that the 1992 Act provides for cover only in respect of personal injury occurring on or after 1 July 1992. Although it repeals the 1982 Act it necessarily preserves the entitlement to payments under the 1982 Act. 4 ii) Section 52 of the 1992 Act applies only to those persons entitled to compensation under the 1992 Act. iii) Sections 138 and 139 of the 1992 Act by their terms do not affect the entitlement to compensation but provide that the rate of compensation has to be calculated under the 1992 Act. iv) Section 20(e) of the Acts Interpretation Act 1924 provides that the repeal of an Act shall not affect any existing status or capacity or any right already acquired. V ) On principles of statutory interpretation the general principle is that a statute is not to be read as derogating from the rights acquired under a previous Act. Ms Cheyne, counsel for respondent, submitted: Section 52 of the 1992 Act applies to persons who have received cover both under the 1982 and 1992 Acts unless they fall within the "twilight zone" as described in Cortesi (Decision 107/98) in which case the transitional provision of section 142(1) applies. ii) Section 20(e) of the Acts Interpretation Act 1924 does not apply to the 1992 Act. The transitional provisions in the 1992 Act are a substituted enactment adapted to the continuation of a claimant's right to cover under the 1982 Act. The transitional provisions apply to continue the appellant's existing status. ifi) The appellant received compensation pursuant to section 59 of the 1982 Act. There has never been a guarantee that legislation and the benefits they provide would remain the same. iv) If the letter that the appellant received on 29 October 1992 contained an incorrect decision regarding the appellant's future entitlements then the provisions of section 67A apply and the Corporation can revise any erroneous or mistaken decision it may have made. V ) The appellant does not have any entitlement to weekly compensation beyond 20 May 1998. The Corporation must act within the current legislation and it has no discretion or authority to make payment to the appellant after that date. DECISION The 1982 Accident Compensation Act was repealed by the 1992 Act as from 1 July 1992. The 1992 Act contains various transitional provisions intended to provide for various classes of persons whose rights or entitlements might otherwise have ceased by the act of repeal without these transitional provisions. The two broad categories of persons were those who had had their claims accepted and were in receipt of entitlements in one form or another and those who had suffered personal injury prior to 1 July 1992 but who had not by that date made a claim for compensation. The appellant falls into that first category of persons and as a first step the provisions of section 135(1) apply namely, "Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the Ist day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act." It is this provision which I find counters the submission made by Mr Walshaw that because of the provisions of section 8 of the 1992 Act, that Act can only apply to personal injuries suffered after 1" July 1992. That is plainly not the case by a reason of section 135(1). As of the 1" July 1992 the appellant was in receipt of compensation calculated under the provisions of section 59 of the 1982 Act. Therefore by virtue of that provision his entitlement to compensation is said to continue. That section plainly establishes that 6 his entitlement to weekly compensation continues on as if it had been granted under the 1992 Act. Under that transitional framework there is no retention of any of the conditions of entitlement that may have been provided by the 1982 Act, specifically section 66 of that Act does not continue in force after the 1" July 1992 and is replaced by section 52 of the 1992 Act. The only instance where that state of affairs was said not to apply was in respect of the circumstances set out in section 142 where I find there was a specific amelioration from the possible inequities of the impact of section 52 on a certain group of recipients who, under social security legislation, would have qualified for national superannuateon considerably earlier than their 65" birthday and who therefore would have had a sooner than expected cut off for weekly compensation. In the decision of Watton (Decision 138/98) I said: "I take the view that this category of persons was given special consideration because of the financial implications that are sooner then expected cut off may have had on their living and financial arrangements at such short notice as would otherwise have been the case. By implication I take the view that the legislature considered that those persons who were the recipient of weekly compensation under the 1982 Act but who were outside that particular age band were in a position, if properly informed at the time of repeal, to order their affairs and to take account of the new cessation date for them as an individual as provided by section 52 of the 1992 Act. " I adopt and affirm those statements which were made in Watton. It is common ground that the appellant does not fall within that category of persons which are provided for in section 142. I have considered the submission of Mr Walshaw as to the effect of section 20(e)(iii) and his contention that that provision enables the right which the appellant had acquired under the 1982 Act to continue and exist despite the repeal of that Act. Section 20(e)(iii) states: 7 "The repeal of an Act or the revocation of a by-law, rule or regulation at any time shall not effect ... (ifi) Any right, interest or title already acquired, accrued or established, or any remedy or proceeding in respect their of." Having regard to the authorities referred to in Statute Law in New Zealand edited by Professor J F Burrows at page 296, I find that the right which the Courts have held to have continued have been those rights which were created by the statute and which were complete and in existence and not conditional upon or subject to certain criteria continuing to apply, as may be specified in that statute. In the case of the right to weekly compensation, that right is wholly conditional and dependent upon a claimant being able to satisfy the criteria stated in the Act for the time being in force for its continuance. By a reason of the repeal of the 1982 Accident Compensation Act and the transitional provisions of section 135 and 138 of the 1992 Act, the appellant's right to compensation continued but was now said to be subject to the criteria and requirements of the new Act, that is the 1992 Act. Thus, the right, if it can be called that, remains but the conditions for its continuance are those that are contained in the Act to which it is now attached. In broad terms the appellant's right to receive weekly compensation is now dependent upon him satisfying the criteria of incapacity as defined in the 1992 Act. Thus, it is not an absolute right which once granted under the terms of a particular statute, cannot be affected by the repeal of that statute or the terms and provisions of its successor. I find that the provisions of section 138 are wholly transitional rather than saving and as such the appellant's continued entitlement to weekly compensation is stated as being in accordance with the provisions of the 1992 Act. When one considers sections 135(1) and 138(1) together the clear intent is that where a person has cover for personal injury by accident under the 1982 Act it shall be as if that person has suffered injury that is covered by the 1992 Act, and as such the provisions of that 8 Act apply to the continued eligibility of that person to receive entitlement to weekly compensation. For the foregoing reasons therefore, the provisions of section 66 of the 1982 Act ceased to apply from the 1" July 1992 in relation to this appellant and he thereupon became subject to the provisions of section 52 of the 1992 Act insofar as the duration of his entitlement to weekly compensation was concerned. That duration was correctly identified by the respondent when it wrote its letter of 15 October 1997 and the decision to cease payment of weekly compensation on 20 May 1998 was correct. Accordingly this appeal is dismissed. The appellant's advocate made a submission that the appellant be granted costs regardless of the outcome of this appeal. No reasons were given for making such a submission. There is certainly nothing in history of the circumstances of this appeal which would put the appellant in some special category and therefore there is no basis for the Court to depart from its normal course of awarding costs only to a successful appellant. DATED at WELLINGTON this 24 th day of March 1999 M J Beattie District Court Judge Vickery.doc(gm)