Fenemor v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 156/2005 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN JAMES LEONARD FENEMOR of Porirua Appellant (Appeal No. AI 496/03) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE J. CADENHEAD ON LEAVE TO APPEAL TO THE HIGH COURT [1] This is an application for leave to appeal against the decision of Judge D.A. Ongley delivered on 6 September 2004. [2] The issue in this case is whether a percentage disability for lump sum compensation already paid should be deducted from a combined whole person impairment assessment under s.441 of the Accident Insurance Act 1998, or only from the whole person impairment assessed in relation to the particular injury for which lump sum compensation had been paid. Brief Narrative of Facts [3] In 1990 the appellant injured his back and received a ten percent lump sum. [4] In 1998 he fractured his left leg resulting in a below the knee amputation. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2005/156- 2005.doc AE [5] In February 2003 he applied for an independence allowance. [6] Dr Antoniadis assessed him as having a five percent whole person impairment for his back injury, and a 28% whole person impairment for his left below the knee amputation. The combined whole person impairment was 32%, and the Corporation deducted the ten percent lump sum from the total, rather than adjusting only the five percent back injury impairment back to zero. The Decision [7] Judge Ongley considered the provisions of s.442 of the Accident Insurance Act 1998 and s.441 of the same Act. [8] As Judge Ongley said, the question in the appeal was whether each injury was to be the subject of its own separate calculation. The use of the article “any” in subsection (2)(a) of s.442 could support an interpretation permitting the deduction for prior lump sum payment to be adjusted against all components of the assessed whole person impairment. [9] After having considered the decisions of Leach (188/03) and Fisher (330/03) Judge Ongley said: “[31] While there is considerable attraction in the appellant’s argument, I consider that the intention of s442, according to the plain language of the section, was for a simple deduction from the combined whole-person impairment. [32] Sections 441 an 442 should be read together. Where s442 refers to a ‘whole-person impairment assessed under clause 60 of Schedule 1’ it naturally refers to the same expression in s441(3)(c) – that is to say an ‘assessment .. on the basis of whole-person impairment for the combined effect of all his or her personal injuries covered by the former Acts.’ [33] The combined whole-person impairment is restricted to injuries covered by the former Acts. Other injuries are assessed separately under the new provisions of the 1998 Act, without adjustment for lump sum payments. That is why Ms Rice submitted that the decision in Leach was based on different provisions, dealing as it did with personal injury suffered in 2001 from which an earlier lump sum assessment would not fall to be deducted. [34] For those reasons the appeal is allowed and the original decision of the Corporation is confirmed. No order is made for costs.” 156-2005 2 The Appellant’s Submissions in Support of Leave [10] The appellant submits that this is a proper case for the granting of leave as it involves a consideration of the interpretation of ss.441 and 442 of the Accident Insurance Act 1998. The appellant says that the issue to be stated should be whether a previous lump sum payment for a specific injury should be deducted from the independence allowance for a combined whole person impairment of two or more injuries – (or rather) from the percentage of a whole person impairment for the injury which corresponds to the previous lump sum award. Decision [11] The respondent, in my view, properly does neither consent to nor oppose this application. It is clear that a substantial question of statutory legal interpretation is involved, and there have been a series of decisions concerning these particular sections decided in this Court, namely, Leach (188/03), Fisher (330/03) and since this appeal the decision of Judge Beattie Flay (AI 411/04). [12] In the latest decision Flay (supra) Judge Beattie follows the decision under appeal, and sets out a comprehensive discussion of the history of the legislation and canvasses the relevant case law. [13] In my view, there are important legal questions to be answered in this appeal of a legal nature. A decision from the High Court would be welcomed. [14] I accordingly grant leave to the appellant to apply to the High Court and state as a question of law the following question: Was the learned Judge correct in his interpretation of ss.442 and 441 of the Accident Insurance Act 1998 in deducting the ten percent lump sum from the combined whole person impairment, rather than deducting the previous ten percent lump sum only from the five percent back injury impairment? [15] I find this point of law is capable of bona fide and serious argument, and is fit for determination by the High Court. 156-2005 3 [16] I accordingly grant leave to appeal to the High Court. DATED at … WELLINGTON … this … 16th … day of … May ... 2005 (J. Cadenhead) District Court Judge 156-2005 4