Bourke v Accident Rehabilitation and Compensation Insurance Corporation
Section 54(14) must be applied literally: an assessed permanent disability for entitlement to an independence allowance is reduced by the percentage(s) underlying any prior lump sum awards under the specified provisions; where the reduced assessment is less than the prior award percentage, the claimant is not...
Source-derived case information.
- Citation
- [1997] NZACC 39
- Parties
- Appellant: Thomas Owen Bourke; Respondent: Accident Rehabilitation and Compensation Insurance Corporation
- Court
- District Court
- Jurisdiction
- New Zealand
- Judgment Date
- 26 March 1997
- Procedural Posture
- Appeal Under S.91 of the Accident Rehabilitation and Compensation Insurance Act 1992 / Hearing and Decision in the District Court
- Outcome
- Appeal dismissed
- Legal Topics
- Independence Allowance, Reduction for Prior Lump Sum Awards, Permanent Impairment Assessment
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Owen Bourke
Appellant
Accident Rehabilitation and Compensation Insurance Corporation
Respondent
Procedural Posture
Appeal Under S.91 of the Accident Rehabilitation and Compensation Insurance Act 1992 / Hearing and Decision in the District Court
Legal Issues
- 1 Whether s.54(14) permits reduction of assessed disability by prior lump sum awards based on unrelated injuries
- 2 Whether the appellant qualified for an Independence Allowance where assessed disability (14%) was less than a prior s.78 lump sum assessment (21%)
Ratio Decidendi
Section 54(14) must be applied literally: an assessed permanent disability for entitlement to an independence allowance is reduced by the percentage(s) underlying any prior lump sum awards under the specified provisions; where the reduced assessment is less than the prior award percentage, the claimant is not entitled to an independence allowance and the court has no discretion to alter that outcome.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed; claimant not entitled to an Independence Allowance under s.54(14)
Full Case Text
Judgment text and source record
1 paragraphs
IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 39/ 9 7 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN THOMAS OWEN BOURKE of Huntly Appellant (Appeal No. DCA 263/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of March 1997 APPEARANCES Appellant in person Ms G S Hancock for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the interpretation of s.54(14) of the Accident Rehabilitation and Compensation Insurance Act 1992 The appellant lodged a claim with the respondent on 12 July 1994 after he had received a serious injury to his right hand in a circular saw accident. On 14 February 1995 the appellant applied for an Independence Allowance under s.54 of the Act. The respondent was referred for the assessment of his permanent disability which was made in accordance with the regulations under the Act. He was assessed as having a 14 percent permanent disability. As the respondent's records showed that in May 1983 the appellant had received a lump sum award under s.78 of the 2 Accident Compensation Act 1982 based on a 21 percent assessment of permanent loss or impairment resulting from industrial deafness, it declined to award an Independence Allowance pursuant to s.54(14) of the 1992 Act. Section 54(14) states: "(14 Where any person who has received a payment under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982 is assessed for the purposes of establishing an entitlement to an independence allowance, the person's disability assessed under subsection (5) of this section shall be reduced by the percentage or percentages of permanent loss or impairment of bodily function upon which any payment or payments under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982 were based." The appellant was concerned that as his previous lump sum assessment was made in respect of serious industrial deafness arising out of his previous occupation as a mine worker it had no relationship to the injury to his thumb. As I explained to him the section makes no differentiation between the nature of the particular injury for which the award is made. This section simply requires the respondent to have the assessment of permanent disability made and if it is less than the assessment of a permanent disability for which he has already received an award under either the 1972 or 1982 Acts, then he does not qualify for a further award under the 1992 Act. While, in the circumstances, this may appear to be harsh that is the clear interpretation of the section and the respondent and this Court are bound to apply it in that way. I explained to the appellant that I sympathise with him in his position, but I have absolutely no discretion in this matter and the appeal must be dismissed. DATED at WELLINGTON this 26th day of March 1997 queunadula A W Middleton District Court Judge dc26395.doc(rd)