Category: Resources

ACC v Vandy (Incapacitated while Unemployed)

Accident Compensation Corporation (ACC) v Dominique Vandy
High Court Wellington November 2010

Ms Vandy, injured her hip in 2003 at the age of 12 when she fell from a horse. After leaving school she entered employment. While in this employment Ms Vandy suffered an aggravation of her earlier injury. The injury incapacitated Ms Vandy from further employment.

ACC declined Ms Vandy’s application for weekly compensation because she was not in employment at the time of injury in 2003 and therefore did not fulfil s. 103 of the act. It was ACC’s belief that for a claimant to be paid weekly compensation under the Accident Compensation Act, they must have been in employment at the time of their original incapacitation.

Decision: Gendall J, stated, that s.100 of the Accident Compensation Act is a cumulative section; For a claimant to receive weekly entitlements they must also be covered by s.103(2) and clause 32 schedule 1 of the Act. s.100 outlines who is entitled under the Act and that they must be incapacitated (“unable to engage in employment”) within the meaning of s.103 (2) of the act (“in which he or she was employed when he or she suffered personal injury”).

In light of these provisions someone may be unemployed but factually incapacitated yet they would not come within the terms of the Act. Gendall J, noted that there was unfairness in this legislation however he noted that s 37 was amended in 1993, and that at this time, including non-earners who were later incapacitated was considered as a policy option but it was not adopted.

Conclusion: Based on the legislation, the judge believed that weekly payments could not be claimed for unless the claimant had been in employment at the time of their incapacitation. The judge stated that in reading the provisions “the meaning of the statutory provisions can be interpreted in only one direction, despite understandable notions of what might be ‘fair’ in an individual case, the remedy if there is one has to be provided by parliament.

Cases Referred to: Giltrap v Accident Compensation Corporation DC Wellington 141/2006, 9 June 2006. Gendall J, affirmed this case stating that the requirements in s100 (10(a) are clearly cumulative. One is that the claimant was incapacitated within the meaning of s. 103(2). The other is eligibility under cl 32.


Bonsor v ACC

Bonsor v ACC
Wellington District Court 2010

On 1 September 2008, 67 year old Mr Garnett Bonsor tripped and fell, falling heavily on his left arm and shoulder, immediately experiencing pain in his shoulder. ACC granted cover for a left rotator cuff sprain, although the symptoms of pain and limited function continued despite treatment. It was recommended he undergo surgery, which ACC declined to fund on 17 April 2009 based on the decision of ACC’s Clinical Advisory Panel, which stated “the most likely cause for the client’s condition requiring surgery is a long standing pre-existing outlet impingement syndrome with a probable contribution from age-related intrinsic tendon degeneration”. Mr Bonsor was unsuccessful in his review of ACC’s decision, and he appealed to the District Court.

Judge Beattie found the following points persuasive:

  • The writer of the report of the Clinical Advisory Panel had not personally examined Mr Bonsor, nor had he personally examined Mr Bonsor’s x-rays.
  • Mr Bonsor had no history of pain prior to the accident, which would have been evident had there been a “long standing pre-existing outlet impingement syndrome”.
  • Mr Swan’s, Orthopaedic Surgeon, opinion the fact there was some degeneration in Mr Bonsor’s shoulder is quite normal for a shoulder of that age, which would not require surgery. There is good evidence that these kinds of changes are not necessarily symptomatic or functionally limiting.

Judge Beattie allowed the appeal, on the strength of Mr Swan’s evidence, that there was a causal link between the injury and the need for surgery, which was requested to relieve Mr Bonsor’s symptoms and repair the tear.

His honour concludes that “the Court has now heard and considered a significant number of cases on appeal where the respondent’s decision to decline to fund surgery is based essentially on the fact that the claimant’s shoulder is displaying aspects of degeneration commensurate with age.” He further states that ACC is “very quick to seize on that identified state of affairs and use it as a reason for declinature”.

As a side note, Judge Beattie also comments on the original claim for cover; although the claim was for a “left rotator cuff sprain”, His Honour concludes that GP’s are often only able to give a general diagnosis, and it is not until after an investigation examination following radiological input that a detailed identification of the injury can be established. On that basis, Judge Beattie concludes that it is open to the Court to identify, based on the medical evidence, precisely what the nature and extent of the injury suffered was. The Court is not bound to the description of the injury in the original claim.