Watton v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 138 198 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 MAUREEN JOAN WATTON DCA 64/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of June 1998 APPEARANCES: Mr J M Miller for appellant Mr A D Barnett for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant's entitlement to earnings related compensation pursuant to section 60 of the 1982 Act is subject to the age cessation limits provided for in the 1982 Act or in the 1992 Act. N BACKGROUND FACTS In October 1986 the appellant suffered personal injury by accident to her wrist and thereby became entitled to earnings related compensation pursuant to the provisions of the 1982 Act. In February 1991 the Corporation carried out an assessment of weekly compensation for permanent incapacity in accordance with section 60 of the 1982 Act and thereafter the appellant continued to receive weekly compensation pursuant to section 60 of the 1982 Act. The letter of advice granting section 60 compensation stated "This assessment is effective from 9 February 1991 and will continue during your lifetime until you attain the statutory age limit for payment of earnings related compensation." In September 1992 the Corporation wrote to the appellant advising her of changes consequent upon the 1992 Act coming into force. That letter advised inter alia: "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." On the 8th August 1997 the Corporation wrote to the appellant referring to the change of legislation with the 1992 Act coming into force and stated inter alia: "A letter was sent to you on 22/9/92 which informed of the changes to permanent pensions and upper age limits. This letter stated that in general 3 terms weekly compensation would terminate from the age from which National Superannuateon entitlement starts. I wish to apologise if this letter was not as clear as it could have been in informing you of any specific changes affecting you. ... From 1 July 1997 the cessation of earnings related compensation on account of age is governed by section 52 of the 1992 Act. Section 52(1) of the 1992 Act states that a person who has attained the National Superannuateon age shall not be entitled to any compensation for loss of earnings under this Act. In your case we have determined that you will qualify for National Superannuateon on 6/4/98 and therefore payment of your earnings related compensation will cease on 5/4/98 in accordance with section 52(1) of the 1992 Act." The appellant's date of birth is 6th October 1934 and she therefore attains the age of 65 years on 6th October 1999 and it is to that date that she contends she is entitled to receive the weekly compensation granted to her under section 60 of the 1982 Act. A determination of the issue in this appeal requires consideration of the transitional provisions of the 1992 Act set out in Part VIII of the Act. The relevant provisions identified by counsel are as follows: "135. Relationship of this Act and former Acts - (1) 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. (2) Nothing in subsection (1) of this section shall apply if it is subsequently determined that the person had not suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982. (3) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the Ist day of July 1992 and who has lodged a 4 claim with the Corporation in respect of that personal injury by accident before the Ist day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed. (4) Where subsection (3) of this section applies, the continued entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts, as appropriate, but subject to this Part of this Act. (5) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts, and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the Ist day of October 1992, shall have cover under this Act only if that personal injury by accident is also personal injury that [would be covered by this Act had it occurred on or after the Ist day of July 1992]. 138. Weekly compensation - (1) Where any person, is immediately before the Ist day of July 1992, in receipt of would have been entitled to be in receipt of compensation calculated under any of the provisions 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. 139. Cessation of compensation - The continued eligibility of any person to receive compensation continued by virtue of section 138 of this Act shall be determined in accordance with this Act, except that section 51 of this Act does not apply if the Corporation is satisfied that the determination is unlikely to find that the person has a capacity for work. 141. Special provision for certain payments made under former Acts - (1) Nothing in section 139 or section 140 of this Act shall apply to payments 5 calculated under section 114 of the Accident Compensation Act 1972 or section 60 of the Accident Compensation Act 1982. (2) Where the Corporation is not satisfied that payments under the Acts referred to in subsection (1) of this section are an accurate reflection of the person's capacity to earn, the Corporation shall reassess those payments under section 49 of this Act; and for that purpose the provisions of sections 49, 50, and 51 of this Act shall apply notwithstanding the provisions of section 114 of the Accident Compensation Act 1972 and section 60 of the Accident Compensation Act 1982. (3) Where any person was, immediately before the Ist day of July 1992, in receipt of a payment pursuant to section 114 of the Accident Compensation Act 1972 or section 60 of the Accident Compensation Act 1982 and that payment is continued by virtue of section 138 of this Act, and that person suffers a personal injury covered by this Act that results in loss of earnings, the weekly compensation payable to that person shall be the greater of - (a) The weekly compensation calculated under Part IV of this Act; or (b) The amount paid pursuant to section 138 of this Act. 142. Cessation of earnings related compensation on account of age - (1) Subject to subsections (2) and (3) of 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 of June 1997, or at the age at which it would have ceased to be payable under the ... Accident Compensation Act 1982, whichever first occurs." In addition to the above transitional provisions section 52 of the 1992 Act states: "Except as provided in this section a person who has attained the National Superannuateon qualifying age shall not be entitled to any compensation for loss or earnings or loss of potential earning capacity under this Act. " The corresponding provision relevant to this appellant under the 1982 Act was section 66 which stated that earnings related compensation would cease on attaining the age of 65 years. Mr Miller, counsel for the appellant, submitted that claimants who had an entitlement under section 60 of the 1982 Act were in a special category, both at the time when that Act was in force, and continuing on under the 1992 Act. Persons with an entitlement under section 60 could not have their compensation affected even if their ability to earn improved. Thus he said the entitlement to compensation was fixed until age 65. This category was to be contrasted with the normal provision of section 59 which provided for earnings related compensation and which was always subject to review, depending on a person's capacity to earn. Counsel submitted that clear words would be required to deprive a section 60 claimant from the entitlements that were guaranteed her under the 1982 Act and that the 1992 Act does not contain such clear wording as would be necessary. Counsel submits that section 138(1) does not affect the nature of the appellant's entitlement. He submits it is simply a "number crunching" section, using as it does the word "calculated". It makes no reference to cessation simplicitor or cessation on account of age. Counsel further submits that the provisions of section 135(4) continues to apply for the benefit of this appellant and that thereby section 66 of the 1982 Act remains. Counsel submits that no other provisions contained in Part VIII of the 1992 Act deal with the matter of cessation on account of age so that there is no provision in Part VIII to which section 135(4) can be subject in the context of cessation on account of age. He specifically points to section 142 as not applying in the present circumstances and section 139 is specifically excluded by section 141(1). In summary counsel submits that a person who has an entitlement under section 60 of the 1982 Act has continued eligibility to receive that compensation by virtue of section 138 but that it will not be determined in accordance with the 1992 Act but through the 1982 Act, as preserved by section 135(4). Therefore the age limit of 65 remains for this appellant. Mr Barnett, counsel for the respondent, submits that section 138(1) is the prime transitional provision relating to weekly compensation where the entitlement to same has been established under the 1972 or 1982 Acts. He submits that it is the main provision for the continued payment of weekly compensation and he refers to the provisions of sections 139, 141(3), 142(1) amongst others where section 138 is said to be the section by which a person is continuing to receive payments of weekly compensation. Mr Barnett further submits that section 138 does not preserve section 66 of the 1982 Act, nor indeed is it said to be preserved in any other of the transitional provisions. Counsel further submits that the provisions of sections 139 and 141 of the 1992 Act do not include considerations of age eligibility but only to incapacity. He submits that if it were to include cessation of compensation on account of age it would require clear words. He notes that section 60 claimants can be reassessed under section 141(2) and (3) and therefore cannot be said to maintain a guarantee of entitlement as counsel for the appellant contended. Mr Barnett finally submitted that under the 1982 Act both section 59 and section 60 claimants were dealt with in exactly the same way as far as cessation on account of age was concerned. There is no dispute that claimants under section 59 are subject to the cessation provisions of section 52 of the 1992 Act and therefore for consistency it must be expected that that would apply also for section 60 claimants. 8 DECISION It is axiomatic that the provisions of the 1982 Act were repealed by the 1992 Act from the Ist July 1992. The only savings of the 1982 Act are those contained in the transitional provisions of Part VIII of the 1992 Act. A person who has had a claim accepted under the 1982 Act is deemed to have cover under the 1992 Act (section 135(1). Weekly compensation for a person who is in receipt of same calculated under section 60 of the 1982 Act continues to have that entitlement to compensation paid to them as if it had been calculated under the 1992 Act (section 138(1)). This is the only transitional provision by which a person whose entitlement arose under an Act now repealed continues to be entitled to receive that payment. I agree with Mr Barnett's submission that this view is reinforced when one looks at other transitional provisions such as section 142 where it says "where any person is receiving payments by virtue of section 138 of this Act, that compensation shall not cease to be payable ... " For the sake of clarity I agree with Mr Miller's submission that the provisions of section 142 are not applicable to this appellant and in fact the provisions of that section are now in reality spent as it was only intended to apply to transitional compensation recipients who were approaching the National Superannuateon qualifying age at the time of the repeal of the 1982 Act. That category of persons was given special consideration of having their weekly compensation continued until age 65 or 30th June 1997 whichever first occurred. Whilst the provisions do not apply in the present case, I note that the provisions of section 142 are a specific amelioration of what would otherwise have been considered a harsh consequence of the repeal of section 66 of the 1982 Act which would have provided a much earlier cut-off date for those in that age band where qualifying for national super was considerably earlier than their 65th birthday. 9 I take the view that this category of persons was given special consideration because of the financial implications that a sooner than 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. Save for a mention in section 146, section 66(2) of the 1982 Act is not referred to at all as still being in force, and in that provision it is only being used as a yardstick. The cornerstone of Mr Miller's principal submission rests on the provisions of section 135(4) of the 1992 Act. That section is applicable only to subsection (3) and I find that it is clear that subsection (3) only applies to persons who have suffered personal injury by accident before the Ist July 1992 and who have lodged a claim in respect of that personal injury before 1st October 1992. It is that category of person who will have the acceptability determined under the 1982 Act as if it had not been repealed. In other words the provisions of the 1982 Act were to continue to apply for a limited period of time to determine acceptability for entitlements under the Act using 1982 Act criteria. The corollary of that provision is subsection (5) where if a claim is not lodged by Ist October 1992 cover for such an injury can only be had if the 1992 Act so permits. Accordingly then I find that section 66 does not survive by virtue of section 135(4) and as there is no other provision in Part VIII which states that it does survive then it must be that it has been repealed and replaced by section 52 of the 1992 Act. 10 It must be remembered that Part VIII is only transitional and the provisions of it are not intended to create a continuing regime under an otherwise repealed statute. The provisions of those repealed statutes were given a short "afterlife" no doubt in the interests of fairness but there is nothing in those transitional provisions which preserve the 1982 Act past that short period. If it were otherwise and if this appellant had been say 20 years of age at the time of her accident, the provisions of section 66 would effectively still be alive for her some 40 years after it had been repealed. Such a situation I find would require very clear and express terms and such are not to be found in Part VIII of the 1992 Act. The position therefore is that I find that the Corporation were correct to rule that the appellant's compensation entitlements were required to cease on her attaining the National Superannuateon qualifying age rather than the later date of her 65th birthday. Having said that I do concur with both counsel that the provisions of section 138 could have been better expressed because at first glance and without considerable analysis it could be said that Mr Miller's submission that it was simply a number crunching section, dealing only with calculation of the amount of entitlement, does have merit. However the implication that the 1992 Act in general does apply to such claimants is overwhelming. Having determined that the Corporation's decision was correct this appeal is dismissed. DATED at WELLINGTON on this 30th day of June 1998 The M J Beattie District Court Judge Watton.doc KD