McLaughlin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 2 2 /2000 Appeal No. Al 115/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOSEPH HOHEPA McLAUGHLIN Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD at WELLINGTON on 9 December 1999 DATE OF DECISION: | | February 2000 APPEARANCES Appellant on his own behalf Mr C Richards, counsel for the respondent RESERVED JUDGMENT OF JUDGE P F BARBER The Issue I need to decide whether the appellant is entitled to weekly compensation from 25 January 1996 to the date of his imprisonment on 25 September 1996. Was he incapacitated over that period? 2 Factual Background The appellant received serious facial injuries in an assault on 20 November 1991. He worked as a Bushman at the time of that accident. He filed a claim with the respondent which was accepted, and he became entitled to weekly compensation. In February 1995, while the appellant was still receiving weekly compensation, the respondent received confidential information that the appellant was employed as a Bushman in the Rotorua area under the assumed name of "J Hillman". The respondent engaged a firm of Private Investigators to investigate that information. Evidence was obtained that a logging company had employed a man calling himself Joe Hillman between 11 March and 2 August 1994 and paid that man wages totalling $10,450.40. The proprietor of that logging firm recalled that Mr Hillman had no physical problems coping with the work. That proprietor supplied the Investigator with a copy of the relevant employment contract signed by the man calling himself Joe Hillman. There is little doubt that the signature on that contract is notably similar in style to the appellant's signature. Evidence was given of other relevant inquiries and information obtained by the Investigator. It was ascertained that the man who called himself Joe Hillman also called himself "Jo Jo MacGlow". Inter alia, it became clear that a contracting company in the area had employed the Mr J Hillman as a Cross Cutter between 16 August 1994 and 23 October 1994 and paid him gross wages of $3,111. A proprietor of that employer advised that Mr J Hillman was able to attend to the physical requirements of the job. As a result of the above information, fraud charges were laid by the Police against the appellant and, by letter of 25 January 1996, the respondent suspended the appellant's entitlements. However, in September 1996 the appellant was imprisoned for nine years after being convicted of rape so that the fraud charges against him were withdrawn." By letter of 11 June 1997 the appellant requested that his entitlements be reinstated. He lodged an application for review on 26 November 1998 on the basis that the respondent had not issued a decision within one month of the appellant's request for reinstatement. In a decision, which must have been dated about 31 March 1999, a Review Officer determined that the respondent had not properly considered the matter and directed the respondent to issue a new decision having regard to the provisions of s.37A of the Act. The Review Officer stated: "I am revoking the decision suspending Mr Mclaughlin's entitlements for the period 25 January 1996 to the date in September 1996 when he was imprisoned. This does not bestow on Mr McLaughlin an automatic right to compensation for that time. He will first have to provide evidence of his incapacity. ACC should then issue a fresh decision having given due consideration to section 37A of the Act. If Mr Mclaughlin is unable to provide the necessary evidence, then his claim must fail.' Accordingly, the respondent issued a decision to the appellant on 17 May 1999 to the effect that the appellant was not under an incapacity in terms of s.37A of the Act between 25 January 1996 and the date of his imprisonment, and was therefore not entitled to weekly compensation for that period. 3 The appellant applied for a review of that decision and in a decision dated 20 August 1999 Mr N Ormsby, Review Officer, confirmed the respondent's decision of 17 May 1999 stating (inter alia): "Mr McLaughlin has not provided any new material evidence in respect of his incapacity from the period of 25 January 1996 to the date of his imprisonment in September 1996. Other than a medical practitioner's report of 1 April 1999 which does not comment on whether or not he is fit to return to his pre-injury occupation as a bushman. The further medical evidence provided by Mr Mclaughlin is not relevant as it does not relate to the period from 25 January 1996 to the date of his imprisonment in September 1996. Mr Mclaughlin has not provided evidence of his incapacity prior to ACC issuing their latest decision. Because Mr Mclaughlin is unable to provide the necessary evidence, then his claim must fail." The Law Section 37A of the Act states: " 37A. Determination of incapacity in relation to earners generally--- (1) For the purposes of this Part of this Act, the Corporation shall determine the incapacity of a person (other than a person to whom section 37B of this Act applies) in accordance with this section. (2) The object of a determination of incapacity under this section is to determine whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred. (3) The Corporation may make a determination under this section at any time and from time to time, and, in so doing, the Corporation may obtain such professional, technical, specialised, or other advice from such persons as it considers appropriate. (4) If the Corporation determines under this section that a person is able to engage in employment in which the person was engaged when the personal injury occurred, then, -- (a) If the person is not at that time receiving weekly compensation under this Act for loss of earnings, that person shall not then be eligible to commence receiving weekly compensation for such loss: (b) If the person is at that time receiving weekly compensation under this Act for loss of earnings, that entitlement shall cease immediately and the power to assess the person under section 51 of this Act shall no longer be exercisable. (5) If a person is assessed under section 51 of this Act as having a capacity for work, then, -- (a) For the purposes of this section, that assessment shall be regarded as a determination that the person is able to engage in employment in which the person was engaged when the personal injury occurred; and 4 (b) The person shall cease to be entitled to receive weekly compensation under this Act for loss of earnings (with section 49 of this Act determining the time when the entitlement actually ceases)." The District Court case of Richardson (Decision No. 125/97) has facts very similar to the present case. In that case also, the appellant's weekly compensation had been discontinued after it was found that he had been working without informing the respondent of that fact. In that case, His Honour Judge Middleton upheld the respondent's decision. The Submissions of the Appellant After referring to the essential facts, the appellant maintained that he was producing evidence showing an 80% impairment in terms of his health and injuries between 25 January and 25 September 1996 but no such evidence was in fact produced. He maintained that he had been unable to work over that period because he was then experiencing epileptic fits. He maintained that the information unearthed by the said Investigator was wrong. He said that a particular address in Rotorua was that of his nephews and that the signatures in issue were those of his nephews. He said he did not work as a Bushman at material times and could not have done so due to his epilepsy. The appellant had also previously tendered carefully handwritten submissions but they do not contain any substantive argument. Reasons for Decision In this case also, I weave the submissions from Mr Richards into my reasoning below. The appellant simply has not provided medical certificates, or other convincing evidence, proving incapacity for the period in question. The evidential onus is reposed on the appellant to the standard of the balance of probability. Even if the appellant had been able to provide appropriate certificates, those certificates would need to have been viewed alongside the appellant's having used assumed names at material times as a Bushman as referred to above. There is also the evidence of the two Rotorua employers, referred to above, that the appellant was able to work without any physical impediment at material times. Although the appellant maintains that he and Joe Hillman are not the same person, I find, on the balance of probabilities, that he and Joe Hillman are in fact the same person. There is the similarity in signatures; the fact that Joe Hillman used the same address and telephone number as the appellant at material times; the fact that the appellant used a wages cheque issued by one of the above employers to Joe Hillman to pay his account at a well known retailer in Taupo; and the fact that Joe Hillman also used the alias "Jo Jo MacGlow" and the appellant was known to use the name "Jo Jo". One 5 cannot help but note that there is a ring of similarity between "Joseph McLaughlin" and "Jo Jo MacGlow". I agree with Mr Richards that the onus is on the appellant to show that he was incapacitated, in terms of s.37A of the Act, over the material period 25 January to 25 September 1996. He has not discharged that onus. Further, the evidence is that, at material times, he was working as a Bushman in the Kaingaroa Forest under the said assumed name and that over that period he was quite fit enough to undertake such work. The only evidence to the contrary is the word of the appellant which, in terms of my assessment of his credibility from the material put before me and his statements to me, I could not rely on. For the above reasons, this appeal is hereby dismissed. Judge P F Barber District Court Judge WELLINGTON ai115-99.doc (nr)