Penwarden v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 122 /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 RICHARD JOSEPH PENWARDEN of Whangarei Appellant (Appeal No. DCA 86/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS The appellant has appealed against the decision of the respondent to cease the payment of weekly compensation pursuant to s.52 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant injured his back when he slipped on steps in April 1990. As a result he received earnings related compensation and weekly compensation from that date until 24 December 1997. On 5 August 1993 the respondent wrote to the appellant and advised him that in terms of the amendment to the Act effective from 1 July 1993 changes had been made in relation to the upper age limits for receipt of weekly compensation. The letter noted that in so far as the appellant was then concerned he would be entitled to receive both weekly compensation and national superannuateon for up to 12 months from the date that he attained the national superannuateon qualifying age which was 24 December 1997. He was also advised that he could elect to receive weekly compensation beyond 24 December 1998 provided he made an election before that date. The letter stated that if he elected to receive weekly compensation that would continue until 24 September 1999 when he was to turn 65. 2 On 9 September 1997 the respondent again wrote to the appellant and advised him that changes to the legislation meant that thereafter his entitlement to weekly compensation would cease when he reached the qualification age for New Zealand superannuateon which would be on 24 December 1997. That letter also indicated that while the information contained in the letter of 5 August 1993 was correct the law had been changed in the meantime so that the relevant dates had changed. The appellant lodged an application for review of the decision of 9 September 1997. In his decision the review officer held that the appellant was a transitional claimant to whom s.142(1) applied and that consequently his weekly compensation should have ceased on 30 June 1997. The appellant has appealed against that decision. In his notice of appeal the appellant complains that he has been unfairly treated because he had anticipated that the information contained in the letter of 5 August 1993 was correct and he relied on it. He has complained that at no time had he been made aware of a possible entitlement to an independence allowance even though he had been in contact with the respondent's officers. He considered that his compensation would have continued at least until he turned 65 and did not expect a substantial drop in his earnings. He submitted that he should be entitled to at least the continuation of his pension until the age of 65 or an entitlement to an independence allowance. In submissions on behalf of the respondent Mr Condie has submitted that the finding of the review officer that the appellant was a transitional claimant to whom s.142(1) applied was incorrect in that that provision applied only to claimants who turned 65 or reached the New Zealand superannuateon qualification age before 30 June 1997. He submitted that s.142(1) states that a transitional claimant's weekly compensation "shall not cease to be payable on account of age" before a particular date. That the words "account of age" refer to s.52 of the Act which concerns the cessation of weekly compensation on account of age. Mr Condie submitted that s.142(1) has no application to this appellant as 30 June 1997 was the earliest date on which a claimant's weekly compensation could cease on account of age unless the claimant turned 65 before that date. He submitted that as the appellant was born on 23 September 1934 his qualification age for national superannuateon is 63 years and 3 months. Thus the appellant was entitled to receive weekly compensation until 24 December 1997 and the respondent had no power to pay beyond that date. Mr Condie conceded that while the respondent had given the appellant misleading advice that advice was based on the law as it then stood but that unfortunately the statutory provisions had subsequently been changed by Parliament. The relevant law so far as applies to this appeal is ss.3, 52, and 142 of the Act which in so far as they apply to the appeal state: '3. Interpretation - In this Act, unless the context requires otherwise, - New Zealand superannuateon qualification age' means, in relation to any person, the age specified in section 3 of the Welfare (Transitional Provisions) Act 1990 as the age at which persons of that person's age generally qualify for national superannuateon, 3 irrespective of whether or not the particular person qualifies for national superannuateon at that or any other age: 52. Age limits - (1) Except as provided in this section, a person who has attained the New Zealand superannuateon qualification age shall not be entitled to any compensation for loss of earnings or loss of potential earning capacity under this Act. 142. Cessation of earnings relation 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." While the appellant considers he has been unfairly treated the respondent is placed in the position where it has to follow the law and if there are changes in the law then it must also follow them. The Court is in the same position. I agree with Mr Condie that s.142(1) does not apply to this appellant as the 30th June 1997 was the earliest date on which his weekly compensation could cease on account of age unless he turned 65 before that date. It therefore follows that by virtue of s.52, as the appellant was born on 23 September 1934 he attained the New Zealand Superannuateon qualification age of 63 years and 3 months on 24 December 1997. Consequently there is no power under the legislation for the respondent to make payments of weekly compensation to him after that date and the decision of the respondent must be upheld The appeal is dismissed. DATED at WELLINGTON this 5 th day of June 1998 grewnadal A W Middleton District Court Judge dca8698.doc(rd)