Caldwell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No.1 09/95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 48 / 95/ 0208. BETWEEN JOHN LEONARD CALDWELL of Whangarei Appellant (Appeal No. DCA 104/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON THE PAPERS I have received submissions from Mr R J Bowden, counsel for the appellant, and from Ms F M Patterson, counsel for the respondent, with the request that I issue a decision on the papers. The issue is a proper assessment of long term weekly compensation. The appellant suffered an injury on 11 January 1994 when his right hand was amputated by a circular saw. The respondent obtained details of his earnings for the 52 weeks immediately prior to the accident and was advised that he had been employed by his then employer for only 21.4 weeks and that prior to that time had been receiving the unemployment benefit. In order to assess weekly compensation, the respondent used the earnings for the period he was employed at the timber mill divided by 52 weeks. The appellant submitted to the respondent that the divisor should have been the time he had actually worked, being 21.4 weeks. In support of that submission, the pellant referred to the Appeal Authority decision in Tui (198/94). The appellant 2 applied for a review of that decision and the review officer confirmed the respondent's decision as a result of which the appellant has now appealed. Mr Buton has submitted that I should have regard to the decision in ARCIC v Tarr (34/94). In that case the Court had held in relation to a claim under s.41 of the Accident Rehabilitation and Compensation Insurance Act 1992 that the proper divisor in that case was the period for which the appellant had actually worked which was less than 52. Ms Patterson submitted that the applicable law is s.40 (2)(b) and that the decision in Tarr has no relevance because it was a decision made under s.41. The appellant in that case had earnings which were solely earnings other than as an employee during the 12 months before the commencement of incapacity. She referred me to the decision in Mead v ARCIC (65/94) in which the Court held that the unemployment benefit does not constitute earnings under the Act and that the divisor of 52 had to be used in calculating that appellant's weekly compensation. She also referred me to the decision in Van Dalen v ARCIC (19/94) which involved s.40(2)(b)(i) which was the predecessor to s.40(2)(b). In that case the appellant had been away from work for 7 of the 12 months preceding injury, but the Judge held that on the plain meaning of s.40 the correct divisor was 52. Section 40(2)(b) states: "40. Calculation of weekly earnings where earner had earnings solely as an employee during the 12 months before commencement of incapacity --(1) This section applies only to earners who are earners immediately before the commencement of the incapacity and who, during the 12 months immediately preceding the commencement of the period of incapacity, had earnings as an employee and who did not also have earnings other than as an employee. ... (2) The weekly earnings of any person to whom this section applies shall be - - (b) In respect of any weekly period of incapacity after the period referred to in paragraph (a) of this subsection, 1/52nd of the earnings of that person as an employee during the 52 weeks immediately before the commencement of the incapacity." In this case the appellant was clearly an earner who had earnings as an employee during the 12 months before commencement of his incapacity and, as was held in Mead his unemployment benefit cannot be taken into account in assessing weekly compensation. The appellant had no earnings other than as an employee in the period in question and accordingly the decision in Tarr has no application to this appeal. While the correct application of the section may produce a result which is manifestly unjust, I am bound by the words of the section which are quite clear and allow no discretion. I agree that the respondent and the review officer correctly applied the law. 3 The appeal is dismissed. DATED at WELLINGTON this 13" day of September 1995 A W Middleton District Court Judge