Greer v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 175/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LEONARD GREER of Hamilton Appellant (Appeal No. DCA 96/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS The issue in this appeal is whether the respondent was correct when it advised the appellant that his entitlement to weekly compensation would cease on 26 April 1998 pursuant to s.142 of the Accident Rehabilitation and Compensation Insurance Act 1992. The facts which give rise to the appeal are that the appellant injured his lower back on 21 June 1989 as a result of which earnings related compensation was paid from 26 May 1989. On 29 September 1992 the respondent notified the appellant that the new legislation would make alterations to the upper age limits for receiving weekly compensation. It noted that weekly compensation would terminate from the age upon which the appellant became entitled to national superannuateon. The letter stated that if the appellant was receiving weekly compensation when he reached the national superannuateon qualification age the respondent would write to him giving him the option to receive either weekly compensation or national superannuateon. The letter then went on to note that if the appellant chose to continue to receive weekly compensation in respect of national superannuateon those payments would 2 continue until he reached the age of 65, being the age he would be eligible to claim national superannuateon. On 28 July 1993 the respondent wrote to the appellant again advising that an amendment to the Act became effective on 1 July 1993 with the result: "These changes mean that you may be entitled to receive both weekly compensation and national superannuateon for up to 12 months from the date that you attain the national superannuateon qualifying age. This is subject to you providing medical certification of your continued incapacity. To receive weekly compensation beyond 27 April 1999 you will need to make an election before that date. Should you elect weekly compensation, this may continue to 27 October 1999. If no election is received, your weekly compensation will cease on 27 April 1999. We will write to you with more information before an election is required." On 13 November 1997 the respondent wrote to the appellant advising that the previous information it had given was incorrect and that in accordance with s.52 of the Act the appellant's entitlement to weekly compensation would cease on his reaching the New Zealand Superannuateon qualification age and that as he was born on 27 October 1934 his entitlement would cease on 27 April 1998. The appellant applied for a review of that decision. The appellant gave evidence at the review hearing which was unsuccessful. It is against that decision which the appellant now appeals. The appellant submits: 1. That as he suffered his injury prior to the start of the 1992 Act his entitlements follow from the transitional provisions of that Act. 2. That as the appellant had not reached the national superannuateon qualification age before 30 June 1997 he was entitled to continue to receive earnings related compensation pursuant to s.142(1). 3. That s.142(2)(a) does not apply to the appellant as he had not reached the superannuateon qualification age before 1 July 1993. 4. That as the appellant filed an election to receive weekly earnings rather than the national superannuateon he is entitled under s.142(2)(b) to continue to receive weekly compensation until he reaches 65, the date provided in the 1982 Act. 5. That the respondent provided misleading advice in relation to the changes to payment of weekly compensation. That the appellant had understood that he would be given an opportunity to make an election to receive weekly compensation in preference to national superannuateon, but no such 3 opportunity was given to him. That he was not aware of the upper age limits until the respondent's letter to him of 13 November 1997. The respondent has submitted: 1. That while the appellant became entitled to earnings related compensation under the 1982 Act that Act was revoked by the 1992 Act and the appellant's entitlement was carried over by virtue of the transitional provisions of the 1992 Act. 2. That while the appellant was entitled under the 1982 Act to receive weekly compensation until he turned 65, s.5 of the 1992 Act provides that entitlement ceases upon the appellant attaining the national superannuateon qualification age. 3. That s.142 of the 1992 Act permits the appellant to continue to receive weekly compensation until either the 30th day of June 1997 or the age upon which he attains 65, whichever first occurred. 4. That by virtue of s.142 the 30th day of June 1997 was fixed as the close-off date for a transitional claimant who had not reached the age of 65 prior to that date. That as the appellant qualified for national superannuateon on 27 April 1998 he did not attain that qualification age until after the close-off date provided under s.142(1). 5 . That there have been a number of decisions regarding the provisions of s.142(1) and in particular McMullen 26/98; Terzaghi 38/98; Gielen 101/98 and Cortesi 107/98). The issue falls to be decided under ss.142 and 52(1) of the Act which provides respectively: "142. Cessation of earnings related compensation on account of age - (1) Subject to this section, where any person is receiving payments by virtue of section 138 of this Act, that compensation shall not cease to be payable, on account of age, until the close of the 30th day of June 1997, or at the age at which it would have ceased to be payable under the Accident Compensation Act 1972 or the Accident Compensation Act 1982, whichever first occurs. (2) No compensation shall be payable under this section to any person - (a) After the 30th day of June 1994, where the person attains the national superannuateon qualification age before the Ist day of July 1993, unless that person has made an election not to receive national superannuateon in respect of any period commencing after the 30th day of June 1994; or b) Where that person attains the national superannuateon qualification age on or after the Ist day of July 1993, unless that person has made an election not to receive national superannuateon in respect of any period commencing after the expiry of 12 months from the date of attaining the national superannuateon qualification age. 4 (3) Any election under subsection (2) of this section must be made - (a) Before the Ist day of October 1993; or (b) Within 13 months after the commencement of the incapacity in respect of which the compensation is payable; or (c) At any time not later than 1 month before the attainment by the person of the national superannuateon qualification age, - whichever last occurs. (4) Any election under subsection (2) of this section may be exercised or reversed outside the period specified in subsection (3 of this section only if the Corporation is satisfied that the circumstances of the person have changed significantly since the expiry of that period. (5) Nothing in subsection (2) of this section shall entitle any person to compensation under this section in respect of any period for which that person is not otherwise entitled by virtue of this Act." Section 52(1) of the Act states: "52. Age limits - (1) 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." Unfortunately there have been a number of similar appeals in which the appellants have been advised when awarded earnings related compensation under the 1982 Act that it would continue to be payable until they attain 65, being the date on which they became entitled at that time to national superannuateon. However, with the revocation of the 1982 Act the provisions of the 1992 Act apply and the particular section is s.142. In the case of this appellant he was a person in receipt of earnings related compensation so that by virtue of s.138 of the 1992 Act that payment was not to cease to be payable on account of age until the 30th day of June 1997, or at the age of 65 as fixed by the 1982 Act whichever first occurs (emphasis mine). The requirement of s.142 is quite specific and allows for no other interpretation. As the 30 June 1997 date occurred before the date he attained 65, that is the date upon which entitlement to receive the compensation ceased. The issue came before Judge Beattie in Gielen to which I have referred when he found: "The appellant was not a person to whom section 142 applied as his statutory entitlement under the 1992 Act continued past the close-off date of section 142(1). The close-off date applicable to the appellant was that which applied generally to all other persons receiving compensation, whether it had commenced under the 1982 Act or the 1992 Act. That provision is section 52 which states that compensation ceases when a person attains the national superannuateon qualification age." I consider that this appellant is in exactly the same position as the appellant in Gielen and I adopt Judge Beattie's observations in that appeal. I consider that the review officer in this case correctly interpreted the legislation and her decision should not be disturbed. 5 While the appellant expressed concern as to the information he was given, the blame cannot be attached to the respondent. While the age of 65 was originally designated as the qualification age for national superannuateon that provision was altered by s.3 of the Social Welfare (Transitional Provisions) Act 1990 by which the appellant qualified for entitlement to national superannuateon on 27 April 1998. The appeal is dismissed. DATED at WELLINGTON this 315+ day of July 1998 A W Middleton District Court Judge dca9698.doc(rd)