Thomas v Accident Compensation Corporation - [2012] NZHC 3206

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-002458 [2012] NZHC 3206

UNDER The Accident Rehabilitation and
Compensation Insurance Act 1992

IN THE MATTER OF an appeal on questions of law from a decision of the District Court

BETWEEN ALAN THOMAS Appellant

ANDACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 12 September 2012

Appearances: D G Hayes for the Appellant
D K L Tuiqereqere and E Bergin for the Respondent

Judgment: 30 November 2012

JUDGMENT OF GILBERT J

This judgment was delivered by me on 30 November 2012 at 4.00 pm
Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:………………

Counsel: D K L Tuiqereqere, Auckland: danetui@medicolaw.co.nz
D G Hayes, Auckland: david@taxlaw.co.nz

THOMAS V ACCIDENT COMPENSATION CORPORATION HC AK CIV 2011-404-002458 [30 November
2012]

Introduction

[1] Mr Thomas claimed to have suffered a wrist injury in December 1989 while sailing in the Marlborough Sounds. At that time he was employed as a project manager for the design and construction of a sealing machine. This employment was not physically demanding but required him to use a computer. Mr Thomas claimed that as a result of his injury he was unable to work and he received weekly compensation for loss of income from 1990 to 1997. However, throughout this time Mr Thomas worked full-time managing 15 or more companies that he established during this period. Mr Thomas did not disclose this to the Accident Compensation Corporation or to his medical practitioners.

[2] The Corporation commenced a fraud investigation into Mr Thomas’ work activities in 1996. Following this investigation, the Corporation concluded that Mr Thomas’ work activities showed that he was not incapacitated.[1] It accordingly wrote to Mr Thomas on 18 August 1997 advising him that it had cancelled all future payments. It relied on s 73(1) of the legislation then in force, the Accident Rehabilitation and Compensation Insurance Act 1992 (the ARCI Act). Criminal
charges were laid against Mr Thomas for defrauding the Corporation. He was convicted and sentenced in 2000 to three years’ imprisonment.

[1] Thomas v Accident Rehabilitation Compensation Insurance Corporation DC Auckland DCA 129/98,

21 April 2010 at [16] and [63].

[3] Mr Thomas applied for a review of the Corporation’s decision. The review was heard on 5 January 1998. Mr Thomas claimed that he established his companies for the purpose of “self-rehabilitation”, that he did not make any money, and that the Corporation was wrong to have concluded that he was working. The reviewer considered the evidence available to the Corporation from the fraud investigation. In a decision released on 25 February 1998, the reviewer rejected Mr Thomas’ claim about self-rehabilitation. The reviewer found that Mr Thomas established the companies to generate income and that some of them did so. In upholding the Corporation’s decision, the reviewer found that Mr Thomas had been working extensively in these various businesses throughout the time he claimed to have been
incapacitated.

[4] After Mr Thomas was released from prison he was given leave to appeal the reviewer’s decision to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 3206
Decision Date: 30 November 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Thomas v Accident Compensation Corporation involved a claim by Mr. Thomas, who alleged that he suffered a wrist injury in 1989, which subsequently led to his incapacity for work. He received weekly compensation for loss of income until 1997. However, evidence showed that Mr. Thomas was managing multiple companies during the same period, without disclosing this to the Accident Compensation Corporation or his medical practitioners. The Corporation cancelled his weekly compensation payments based on its findings that he was not incapacitated, as he was actively working. Mr. Thomas appealed this decision, arguing that his companies were part of a self-rehabilitation process, and he was not making any profit from them.

The legal issues before the court were whether the District Court erred in its approach to determining the correctness of the Corporation's decision, if section 73 of the Accident Rehabilitation and Compensation Insurance Act 1992 allows for the cancellation of entitlements for "working," if sections 37 and 37A of the Act invoke section 73, and if the application of sections 37 and 37A requires an occupational medical assessment by a qualified person.

The court found that the District Court did not err in its approach to determining the correctness of the Corporation's decision, as it was necessary to address the question of incapacity under sections 37 and 37A to determine whether the Corporation was correct in cancelling weekly compensation payments to Mr. Thomas under section 73. Section 73 of the Act does allow the cancellation of entitlements for "working," depending on the information in the Corporation's possession relating to the work being undertaken and whether it is no longer satisfied that the person is incapacitated. The application of sections 37 and 37A of the Act does invoke section 73, as a determination under these sections that a person is no longer incapacitated triggers an obligation on the Corporation under section 73 to cancel or suspend payments. Lastly, the application of sections 37 and 37A of the Act does not require an occupational medical assessment by a qualified person, as it depends on the circumstances.

In conclusion, the court found that the District Court Judge did not err in respect of any of the questions of law posed on this appeal, and the appeal was dismissed.

Orders