Watson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NEW PLYMOUTH Decision No. 71 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 67/ 93 / 1720 BETWEEN PATRICIA JOAN WATSON of New Plymouth Appellant (Appeal No. DCA 25/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of June 1995 APPEARANCES Appellant in person A D Fawcett for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the decision of the respondent declining to pay weekly compensation following the appellant obtaining the age of entitlement to national superannuateon. The appellant who is now aged 66 was working part-time as a cook/ general assistant in a Resthome when she strained a shoulder muscle on 8 April 1987. There is no argument that she now suffers a chronic problem with the shoulder which prevents her from working. She was aware at the time she lodged her claim with the respondent that under the Accident Compensation Act 1982 she would continue to receive Earnings Related Compensation calculated on her relevant earnings of $154 per week until she attained the age of 65 years. N When the Accident Rehabilitation and Compensation Insurance Act 1992 came into force, the appellant was notified by the respondent on 11 August 1992 that under the new Act she was required to make the choice of receiving either the weekly compensation or national superannuateon. She was further notified that she was required to make her choice by 1 October 1992 or payments of weekly compensation would thereafter stop. On 1 October 1992 the appellant submitted a completed form electing to receive national superannuateon. On that form the appellant had noted: "I object totally as my ACC was committed before this new thing and is totally unfair. Please review". The respondent reported to the appellant that s. 142 of the 1992 Act provided that from 30 September 1994 claimants could no longer receive weekly compensation as well as superannuateon. The appellant applied for a review of that decision on the grounds that she considered she was entitled to receive Earnings Related Compensation until she obtained the age of 65 years. The Review Officer held that as s.142 is clear and precise, there was no discretion to allow the appellant's application. Mr Fawcett submitted that as the appellant was in receipt of Earnings Related Compensation immediately before 1 July 1992 she was entitled pursuant to s.138 of the 1992 Act to continue to receive that compensation as if it had been calculated under the 1992 Act. Section 142 of the 1992 Act provided: "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 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 who has attained the national superannuateon qualification age unless that person has made an irrevocable election not to receive national superannuateon in respect of any period for which that person is entitled to receive compensation under this section. (3) Any election under subsection (2) of this section must be made - (a) Before the Ist day of October 1992; or (b) At any time not later than 1 month before the attainment by the person of the national superannuateon qualification age - whichever last occurs". This section was repealed by s.43 of the Accident Rehabilitation and Compensation Insurance Amendment Act (No. 2) 1993 which substituted the new s.142, which states: 3 "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. (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 versed 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." Mr Fawcett submitted that as the appellant was born on 2 July 1928 she is a person who has attained the age of 60 years and she has attained the national superannuateon qualification age as provided by s.3 of the Social Welfare (Transitional Provisions) Act 1990. He submitted further that s.142 of the Act requires the appellant to make an election to accept either weekly compensation or national superannuateon, but not both. In her election, the appellant elected to receive national superannuateon instead of weekly compensation. Mr Fawcett submitted that s.142 was amended in 1993 to address an unintended result of the requirement to elect between superannuateon and/or entitlement to weekly compensation under the Act, which was the situation that people who were over national superannuateon qualification age, and who were working, could not receive compensation related to earnings, despite being required to pay full ACC premiums, and not being entitled to have the right to sue. He submitted that the amendment provides that claimants are entitled to both weekly compensation and national superannuateon for the period of 12 months either from 1 July 1993 to 30 June 1994 or from 12 months from attaining national superannuateon qualification age (depending upon whether or not the claimant had attained national superannuateon qualification age before 1 July 1993). 4 Mr Fawcett submitted that the amendment to s.142(1) made no changes to the cessation dates and as the amendment was not retrospective in its effect, the appellant only gained a period of entitlement to both weekly compensation and national superannuateon from 1 July 1993 to 2 July 1993 when she attained the age of 65. Mr Fawcett submitted that the words of s.142 are clear and unambiguous and, therefore, that the appellant is not entitled to weekly compensation and national superannuateon after 1 October 1992. While the appellant appeared to accept that the Act provides precisely as Mr Fawcett submitted, her main concern was that she wished to make a public statement that she considered that she had a contract with the respondent following her accident under which she would be entitled to receive Earnings Related Compensation until she attained the age of 65 years in addition to receiving national superannuateon. She submitted that the amendment to the legislation constituted a breach of that contract. She also submitted that at the time of her accident she was fit and considered herself capable of carrying on her work until she attained the age of 65 years, but was denied this opportunity because of the accident. While I sympathise with the appellant in her position, the respondent and this Court are required to apply the provisions of the Act. There is no discretion provided in the Act which would permit the appellant to receive both national superannuateon and weekly compensation. The appeal is dismissed. DATED at WELLINGTON this 127 day of July 1995 A W Middleton District Court Judge dc25-93.doc(mh)