Category: Resources

Mr Toomey is a self employed builder who was called upon (or co-opted) by the Fire Service to retrieve the injured from the PGC site in the aftermath of the Feb 2011 earthquakes in Christchurch. He suffered PTSD from that event. The Court did not want to discourage people from assisting the police and fire service during emergencies when their skills were called upon – such as an off duty doctor or police officer- or in the case of Mr Toomey he was a self employed builder and his expertise assisted with the retrieval. The Court held that he was at work because he was under the direction of the fire service and although he was not being paid, he was self employed, and a self employed person is not paid in each and every situation even though they are working. It is notable that he paid his employee to assist in the retrieval as well. Mr Toomey will now be covered by ACC.

ACC law changed on 1 October 2008 to provide ACC cover for workers who suffer mental injury (like PTSD) from an event at work. That a person can get cover for mental injury at work, without having suffered a physical injury, is not well known. It is known that a person who has been assaulted at work during a robbery and is physically injured and also suffers PTSD will be covered for both the physical injury and the mental injury such as PTSD- so long as the PTSD is caused by the physical injuries and the events surrounding them. But in the case of mental injury without physical injury, there have been less than 10 cases before the District Court – don’t know how many claims have been successful- i.e. haven’t had to go to Court. District Court has rejected most cases because the claims have been incremental events that cause mental injury such as bullying at work over a period of time; or the events have not happened at work. District Court have made two very important decisions in 2016, a soldier serving in Afghanistan received cover for the events that occurred there; and the case of Toomey v ACC in April 2017.

A cover decision. Mr Wyatt suffered a general pain sensitisation disorder caused by the cumulative effects of physical injuries.

Double-up the specialist costs at review

The Injury Prevention, Rehabilitation, and Compensation (Review Costs and Appeals) Amendment Regulations 2010 confirms the amount a reviewer may award in relation to specialists report used at review, as follows:

Item: All relevant and reasonably necessary reports for applicant or another person by any registered specialists.

Maximum Award ($): 935.54

• It has long been debated whether the noted cost regulation should be interpreted as allowing a reviewer to award costs for:
  Each and every specialist report. In other words, where four specialists reports are obtained at the individual cost of $1,500.00 per report whether one should then allow $935.54 for each of the four reports, totalling $3,742.16; or
• Whether the regulations only allowed a reviewer to award one payment of $935.54 for all the specialists’ reports collectively.

The District Court in Anderson v ACC [2016] NZACC 164 at [78] has now shed some light on this vexed question noting the following :
… Specifically, pursuant to the Injury Prevention, Rehabilitation, and Compensation (Review Costs and Appeals) Regulations 2002, “All relevant and reasonably necessary reports for applicant … by any registered specialists” are entitled to a maximum award of $935.54. Quite clearly, the maximum award must relate to each report prepared rather than the maximum that the specialist is entitled to with regard to the totality of their involvement in a review…