Rogers v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 120 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN PAUL ROGERS of North Shore City Appellant (Appeal No. DCA 97/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on the 15th day of July 1997 APPEARANCE/COUNSEL R A Ilich, advocate for appellant P A McBride for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON As the issue in this appeal was whether the appellant was entitled to the payment of interest for the late payment of arrears of weekly earnings and a similar issue was then before the High Court in the appeal by GPB as the executor of the Estate of SB, I adjourned the appeal pending the issue of the decision of the High Court reserving to both the appellant and the respondent the right to make further submissions. 2 On 23 November 1998 the High Court issued its decision under reference AP 393/97 from the Wellington Registry of the High Court. In that decision the Court held that an appellant who was entitled to the payment of earnings related compensation under the Accident Compensation Act 1982 and the payment of which was delayed until after the inception of the Accident Rehabilitation and Compensation Insurance Act 1992 was entitled to claim interest pursuant to section 72 on the basis that earnings related compensation payable under the 1982 Act equated with the payment of weekly earnings under the 1992 Act. The submission of this appellant is that he had suffered a number of injuries for which he made claims with the respondent. He suffered a further injury in 1984 for which he received earnings related compensation assessed under the 1982 Act. The payment of earnings related compensation was suspended in 1988 for various reasons, including the fact that while in receipt of earnings related compensation he appeared to have received earnings which he had not disclosed. Following a review decision in October 1995 the payment of earnings related compensation was reinstated and backdated from 1988. In the interim the appellant had been in receipt of a sickness benefit. Before the respondent could pay the arrears of weekly compensation it was required to repay to New Zealand Income Support Service the full amount of the sickness benefit paid to the appellant, such payment to be deducted from the arrears of weekly compensation. When the decision in the Estate of SB was received the appellant made submissions regarding the determination to suspend the payment of earnings related compensation in August 1988. He submitted that at that time the respondent had all the information it needed on which to continue the payment of earnings related compensation and that the decision to suspend was a wrongful action on the part of the respondent. The respondent has submitted that until it received notification from New Zealand Income Support Service it was unable to calculate the exact amount of arrears owing to the appellant. I accept that by virtue of the decision of the Estate of SB the appellant would be entitled on the face of it to the payment of interest on arrears of weekly compensation payable to him. The respondent is under an obligation where a person entitled to the payment from New Zealand Income Support Service to reimburse that service for the full amount it has paid before paying the appellant. Section 72 of the Act states: "72. Payment of interest where corporation makes late payment of compensation based on weekly earnings-- Where any payment of compensation based on weekly earnings to which a claimant is entitled is not paid by the Corporation within 1 month after the Corporation has received all information necessary to enable calculation of the payment, interest shall be paid on the amount payable by the Corporation [] at the rate for the time being prescribed by or for the purposes of section 87 of the 3 Judicature Act 1908 from the date on which payment should have been made to the date on which it is made." While the appellant claims that in 1988 the respondent had available to it all the information it required, that information could only relate to the payment of earnings related compensation. Section 72 deals with the situation where payment has been delayed by the respondent and an entitlement arises from the information then required is to ascertain the exact amount due to the appellant. The appellant's actual entitlement to earnings related compensation was not reinstated until October 1995 and until the issues raised in the decision in the Estate of SB were resolved there was doubt as to whether the appellant was entitled to the payment of interest on the amount owed. The record discloses that New Zealand Income Support Service provided details of the amount paid by way of sickness benefit in February 1996. On the basis of that information the appellant was paid the full amount of arrears of earnings related compensation less the amount owing to New Zealand Income Support Service that payment being made on 18 March 1996. The date on which that payment was made amounted to a delay of one month and five days. The record notes that the respondent paid interest for the five day period to the appellant in September 1996. As provided by section 72 that was the appellant's full entitlement. Accordingly there is no further payment to which the appellant is entitled and the appeal is dismissed. DATED at WELLINGTON this |4th day of May 1999 A W Middleton District Court Judge dca97-97.doc (nr)