Accident Insurance Act 1998
Accident Insurance Act 1998
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Accident Insurance Act 1998
Accident Insurance Act 1998
Public Act |
1998 No 114 |
|
Date of assent |
18 December 1998 |
|
Contents
An Act to maintain a no fault, comprehensive, insurance-based scheme to rehabilitate and compensate in an equitable and financially affordable manner those persons who suffer personal injury and to provide opportunities for the scheme to be managed and delivered in different ways
BE IT ENACTED by the Parliament of New Zealand as follows:
1 Short Title and commencement
(1)
This Act may be cited as the Accident Insurance Act 1998.
(2)
Sections 171, 177, 182, 184 to 194, Part 8, Part 9 (except sections 262 to 264 and 266 to 273), sections 370, 399 to 412, 416, 475, 476, 480, and 481 come into force on the day after the date on which this Act receives the Royal assent.
(3)
Sections 265, 463, 466 to 474, 477, 478(1), and 479 come into force on 1 April 1999.
(4)
The rest of this Act comes into force on 1 July 1999.
2 Purposes
The purposes of this Act are to—
(a)
Ensure that entitlements continue to be available—
(i)
For persons who have cover for their personal injuries; or
(ii)
For the spouses, children, or other dependants of such persons, if the personal injury for which the persons have cover is death or is physical injuries from which they die:
(b)
Require all employers to purchase accident insurance for work-related personal injuries suffered by their employees:
(c)
Enable self-employed persons to purchase accident insurance from insurers other than the Corporation for both work-related personal injuries and non-work injuries other than motor vehicle injuries:
(d)
Restructure the Accident Rehabilitation and Compensation Insurance Corporation to—
(i)
Manage the non-competitive accounts; and
(ii)
Remove the underwriting role of the Corporation in respect of work-related personal injuries and in relation to certain self-employed persons; and
(iii)
Provide claims management and network services to the non-competitive accounts and those and other services to other insurers on a commercial basis:
(e)
Allow insurance companies to compete to manage claims and underwrite accident insurance for all work-related personal injuries, and for non-work injuries (other than motor vehicle injuries) to self-employed persons, suffered on and after 1 July 1999.
3 Act to bind the Crown
This Act binds the Crown.
Part 1 Outline of Scheme
4 Purpose of this Part
This Part is intended—
(a)
To give a general indication of what this Act is about:
(b)
To indicate how this Act is arranged:
(c)
To assist readers to identify the provisions that are relevant to them.
5 Status of this Part
This Part is intended only as a guide to the general scheme and effect of this Act.
6 How this Act is arranged
(1)
This Act is arranged in Parts as follows:
(a)
Part 1—Outline of Scheme:
(b)
Part 2—Interpretation (definitions):
(c)
Part 3—Cover (what personal injury is covered):
(d)
Part 4—Claims for Cover and Statutory Entitlements (how to make claims):
(e)
Part 5—First Week Compensation and Statutory Entitlements (what the entitlements are):
(f)
Part 6—Dispute Resolution (how to resolve disputes about claims):
(g)
Part 7—Competitive Provision of Accident Insurance (mainly in relation to employers and certain self-employed persons):
(h)
Part 8—Registration and Prudential Supervision of Insurers:
(i)
Part 9—Insolvent Insurers Fund and Non-Compliers Fund:
(j)
Part 10—Non-Competitive Provision of Accident Insurance:
(k)
Part 11—Accident Compensation Corporation:
(l)
Part 12—Miscellaneous Provisions:
(m)
Part 13—Transitional Provisions.
(2)
The Act also has several schedules, the most important of which is Schedule 1, which sets out the detail of the entitlements under Part 5.
(3)
The other provisions of this Part summarise the main components of the scheme established by this Act.
7 General nature of scheme
(1)
This Act continues a “no fault”
accident compensation scheme to provide statutory entitlements for all persons—
(a)
Who suffer personal injury for which they have cover under this Act; or
(b)
Who are the spouses, children, or other dependants of persons whose cover under this Act is for death or for physical injuries from which they die.
(2)
This Act also continues the existing restrictions on any such person seeking to obtain compensatory damages for the personal injury through any proceedings in a New Zealand court.
8 Establishment of entitlements
(1)
Persons who suffer personal injuries covered by the scheme must receive from their insurers entitlements for which they are eligible from the range of statutory entitlements detailed in Schedule 1.
(2)
The range of entitlements available to persons covered by the scheme comprises—
(a)
Treatment as provided for in Part 1 of Schedule 1:
(b)
Weekly compensation as provided for in Part 2 of Schedule 1:
(c)
Rehabilitation as provided for in Part 3 of Schedule 1, including—
(i)
An individual rehabilitation plan:
(ii)
Social rehabilitation:
(iii)
Vocational rehabilitation:
(d)
An independence allowance as provided for in Part 4 of Schedule 1:
(e)
Entitlements arising from fatal injuries as provided for in Part 5 of Schedule 1.
(3)
Part 6 provides a dispute resolution process for persons who are dissatisfied with insurers’ decisions about their cover or entitlements. The process involves the parties going through some or all of the following stages:
(a)
A review by a reviewer allocated by the insurer:
(b)
An appeal to a District Court:
(c)
An appeal to the High Court on a question of law:
(d)
An appeal to the Court of Appeal on a question of law.
9 Competitive delivery of elements of scheme
(1)
Parts 7 to 9 deal with the delivery of the scheme in the competitive insurance market to persons with work-related personal injuries and to self-employed persons who choose to insure with a competing insurer.
(2)
The Parts create a regulatory regime and set out rules for the delivery of the scheme by any insurer that is able to meet the requirements of the competitive accident insurance market set out in those Parts.
(3)
Those Parts—
(a)
Create a prudential regime to manage the particular risks associated with this insurance market, including entry to and exit from that market by insurers:
(b)
Create an environment to ensure that persons with cover receive their entitlements in the event of a failure to insure or in the event of insurer insolvency:
(c)
Identify the regulatory roles required:
(d)
Ensure that all those who seek accident insurance are able to obtain it.
10 Government delivery of other elements of scheme
(1)
Part 10 sets out the details of how the elements of the scheme that are not open to competition are to be managed by the Corporation, and how they are to be funded.
(2)
The Part identifies those non-competitive elements of the scheme which will be delivered by a Government-owned insurer as being those dealing with—
(a)
Work-related personal injuries to self-employed persons who do not insure privately; and
(b)
Non-work injuries to earners (other than self-employed persons who insure privately); and
(c)
Injuries to non-earners; and
(d)
Motor vehicle injuries; and
(e)
Medical misadventure (other than arising from treatment of a work-related personal injury).
11 Accident Compensation Corporation
(1)
Part 11 establishes the Accident Compensation Corporation as the successor of the Accident Rehabilitation and Compensation Insurance Corporation, and the new Corporation is the Government-owned statutory corporation that will primarily be responsible for delivery of the non-competitive elements of the scheme.
(2)
The new Corporation will have at least 1 separate subsidiary (as a limited liability company) to own and operate the claims management and network services in relation to those elements of the scheme.
(3)
Any subsidiary company will also be able to contract with insurers in the competitive accident insurance market for the provision of claims management services and other services related to the scheme.
12 Transitional issues
Part 13 deals with issues relating to the transition from the scheme in force immediately before the commencement of this Act to the scheme established by this Act.
Part 2 Interpretation
13 Interpretation
(1)
In this Act, unless the context otherwise requires,—
“Accepted interests” has the meaning set out in section 139:
“Accident” has the meaning set out in section 28:
“Accident insurance contract”—
(a)
Means, subject to section 278, a contract entered into under section 169 or section 176 or section 180 to provide statutory entitlements when a person suffers personal injury for which he or she has cover; but
(b)
Where an accident insurance contract forms part of a contract of insurance—
(i)
Which provides for cover or entitlements in respect of accident insurance that are greater than or additional to cover provided for under Part 3 or statutory entitlements; or
(ii)
Which provides for cover and benefits in respect of any other kind of insurance,—
includes the parts of the contra’ that provide for statutory entitlements but does not include the parts of the contract that provide for the greater or additional cover or entitlements or the other kind of insurance:
“Accounts” means the Accounts required to be maintained and operated under section 281:
“Acupuncturist” means a member of the New Zealand Register of Acupuncturists Incorporated:
“Acute treatment” has the meaning set out in section 14(1):
“Administrator”, in relation to an insolvent insurer, means a statutory manager or receiver or a liquidator or interim liquidator or a prudential supervisor or a judicial manager appointed under the Life Insurance Act 1908 of the insolvent insurer; and “administration”
, when used in relation to an insolvent insurer, has a corresponding meaning:
“Appeal” means an appeal under Part 6:
“Appellant” means a person who files a notice of appeal under section 154:
“Applicant” means a person who makes a review application:
“Arms length”, without limiting the ordinary meaning of the expression, includes having relationships, dealings, and transactions which—
(a)
Do not include elements that parties in their respective positions would usually omit; or
(b)
Do not omit elements that parties in their respective positions would usually include,—
if the parties were—
(c)
Connected or related only by the transaction or dealing in question; and
(d)
Acting independently; and
(e)
Each acting in its own best interests:
“Associated costs” includes the costs of—
(a)
Receiving a claim; and
(b)
Determining whether the insured has cover, if the claim is made under section 54(a) or (b); and
(c)
Transferring the claim, if that is necessary; and
(d)
Doing any other thing necessary to manage the claim:
“Audiologist”—
(a)
Means a member of the New Zealand Audiological Society; but
(b)
Does not include a member when he or she is acting in the course of employment by a supplier of hearing aids:
“Board” means the Board of the Corporation:
“Capacity for work” has the meaning set out in section 15:
“Child”, in relation to a deceased insured,—
(a)
Means his or her natural child; and
(b)
Includes any other child who would ordinarily be regarded as his or her child because he or she—
(i)
Was the spouse of 1 of the child’s parents; and
(ii)
Acted as a parent of the child:
“Child care” means personal care or supervisory care of a child in New Zealand:
“Chiropractor” means a person who holds a current annual practising certificate issued by the Chiropractic Board:
“Claim” means a claim under section 54:
“Claim file” means all information held by an insurer about an insured’s claim:
“Claims management and network services” has the meaning set out in section 327:
“Close company” has the same meaning as in section OB 1 of the Income Tax Act 1994:
“Commencement of this Act” means 1 July 1999:
“Commissioner” means the Commissioner of Inland Revenue, and has the same meaning as in section 3(1) of the Tax Administration Act 1994:
“Contributing insurer” has the meanings set out in sections 107, 109, and 112:
“Corporation” means the Accident Compensation Corporation established by section 328:
“Counsellor” means a counsellor of a type described in regulations made under this Act:
“Cover” has the meaning set out in section 16:
“Deceased insured” means an insured, as defined in section 22(1), who dies and whose cover under section 39 or section 41 is for death or for physical injuries from which he or she dies:
“Decision” or “insurer’s decision” means all or any of the following decisions by an insurer on a claim:
(a)
A decision whether or not an insured has cover:
(b)
A decision whether or not the insurer will provide any entitlements to an insured:
(c)
A decision about which entitlements the insurer will provide to an insured:
(d)
A decision about the level of any entitlements to be provided:
(e)
Any decision necessary to enable the making of a decision described in any of paragraphs (a) to (d):
“Dental technician” has the same meaning as in section 2 of the Dental Act 1988:
“Dentist” has the same meaning as in section 2 of the Dental Act 1988:
“Department” means, subject to any enactment, the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act:
“Disability”, unless otherwise defined in regulations made under section 399, means, in relation to any person, any restriction or lack of ability to perform an activity in the manner or within the range considered normal for the person, if the restriction or lack results from impairment:
“Earner”—
(a)
Means, subject to section 278, a natural person who engages in employment, whether or not as an employee; and
(b)
Includes a person to whom clause 19 of Schedule 1 applies:
“Earners’ Account” means the Account described in section 282:
“Earners’ Account levy” means the levy payable under section 283(2):
“Earnings” means—
(a)
Earnings as an employee:
(b)
Earnings as a self-employed person:
(c)
Earnings as a shareholder-employee:
“Earnings as an employee” has the meaning set out in sections 17 to 19:
“Earnings as a self-employed person” has the meaning set out in section 20:
“Earnings as a shareholder-employee” has the meaning set out in section 21:
“Employee” means a natural person who receives, or is entitled to receive,—
(a)
Any amount that is treated as income from employment as defined in the Income Tax Act 1994; or
(b)
Any salary, wages, or other gross income to which section OB 2(2) of the Income Tax Act 1994 applies:
“Employer” means a person who pays, or is liable to pay,—
(a)
Any amount that, in relation to any other person, is treated as income from employment, as defined in paragraph (a) of the definition of “income from employment”
in section OB 1 of the Income Tax Act 1994; and
(b)
Any salary, wages, or other gross income to which section OB 2(2) of the Income Tax Act 1994 applies;—
but does not include, for the purpose of Part 7, a person who is an employer solely by reason of any of paragraphs (f), (g), (h), or (i) of the definition of “salary or wages”
in section OB 1 of the Income Tax Act 1994:
“Employment”—
(a)
Means work engaged in or carried out for the purposes of pecuniary gain or profit; and
(b)
In the case of an employee, includes a period of paid leave, other than paid leave on the termination of employment:
“Entitlement” means—
(a)
A statutory entitlement:
(b)
An entitlement under Part 13:
“Financial year” means a period of 12 months ending with 30 June:
“First week compensation” means compensation payable under section 76:
“First week of incapacity” means the period—
(a)
Starting on the day on which an incapacity resulting from a personal injury first commences; and
(b)
Ending with the close of the sixth day after that day:
“Former Acts” means the Accident Rehabilitation and Compensation Insurance Act 1992, the Accident Compensation Act 1982, and the Accident Compensation Act 1972:
“Former Corporation” has the meaning set out in section 418:
“Full-time employment”, in relation to an earner, means employment in the 4 weeks immediately before his or her incapacity commenced, for either—
(a)
An average of at least 30 hours per week; or
(b)
A lesser number of hours, if the lesser number of hours are defined as full-time employment in the employment contract under which the earner was employed, because of the particular nature of that employment:
“Full-time study” means a course of study recognised as full-time by the place of education that administers it:
“Fully funded”, in relation to claims, means that the amount of the outstanding claims liability in respect of the claims is matched by the reserves held to fund the cost of those claims:
“Funder” has the same meaning as in section 20 of the Health and Disability Services Act 1993:
“Funding agreement” means an agreement made under section 361:
“Hospital and health service” has the same meaning as in section 2 of the Health and Disability Services Act 1993:
“Impairment”, unless otherwise defined in regulations made under section 399, means any loss or abnormality of psychological, physiological, or anatomical structure or function:
“Incapacity”—
(a)
Means incapacity for employment; and
(b)
Includes absence from employment in order to get treatment for personal injury covered by this Act, if the treatment—
(i)
Is necessary for the injury; and
(ii)
Is treatment of a type that the insurer is liable to provide under Part 1 of Schedule 1, whether or not the insurer provides any treatment in the particular case:
“Income year”, in relation to any person, has the same meaning as in section OB 1 of the Income Tax Act 1994 for the purposes of furnishing a return of income under the Tax Administration Act 1994:
“Individual rehabilitation plan”—
(a)
Means a plan under Part 3 of Schedule 1 that provides rehabilitation to an insured to enable him or her to lead as normal a life as possible, having regard to the consequences of his or her personal injury; and
(b)
Includes an individual rehabilitation programme entered into under the Accident Rehabilitation and Compensation Insurance Act 1992:
“Insolvent insurer” means an insurer declared to be an insolvent insurer under section 237:
“Insolvent insurer’s accident insurance contract” means an accident insurance contract under which an insolvent insurer is liable to provide statutory entitlements, regardless of when and by whom the contract was entered into:
“Insurance certificate” means a valid and current certificate of insurance issued by an insurer, in the prescribed form, as proof of purchase of an accident insurance contract:
“Insurance number”,—
(a)
In relation to an employer, means a unique identifier number determined by the Regulator as applicable to that person:
(b)
In relation to a self-employed person or a private domestic worker, means a unique identifier number determined by the manager as applicable to that person:
“Insured” has the meaning set out in section 22:
“Insurer”—
(a)
Means an insurer registered under section 201, while that registration continues under section 204:
(b)
Includes the manager (in relation to an insured for whom the manager is required to provide entitlements), except for the purposes of Parts 7 to 9 and the provisions in Part 12 associated with those Parts:
(c)
For the purposes of Part 4, has the extended meaning set out in section 47:
(d)
For the purposes of Part 5, has the extended meaning set out in section 75:
(e)
For the purposes of Part 6, has the extended meaning set out in section 133:
(f)
For the purposes of Part 12, has the extended meaning set out in section 356:
“Laboratory technician” means a person registered with the Medical Laboratory Technologists Board as a medical laboratory technologist:
“Liable to provide”, in sections 48 and 104 to 108, means liable to provide an entitlement under an accident insurance contract or under this Act, regardless of whether or not a claim has yet been made:
“Manager” has the meaning set out in section 278:
“Managing insurer” has the meaning set out in section 48:
“Medical error” has the meaning set out in section 36:
“Medical Misadventure Account” means the Account described in section 296:
“Medical mishap” has the meaning set out in section 37:
“Mental injury” has the meaning set out in section 30:
“Minister” means, subject to any enactment, the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act:
“Motor vehicle” has the same meaning as in section 2(1) of the Transport (Vehicle and Driver Registration and Licensing) Act 1986:
“Motor Vehicle Account” means the Account described in section 291:
“Motor Vehicle Account levy” means the levy payable under section 292(3):
“Motor vehicle injury” has the meaning set out in section 38:
“New Zealand” has the meaning set out in section 23:
“New Zealand register” has the same meaning as in section 2(1) of the Companies Act 1993:
“New Zealand superannuation qualification age” means, in relation to any person, the age specified in section 3 of the Social Welfare (Transitional Provisions) Act 1990 as the age at which persons of that person’s age generally qualify for New Zealand superannuation, irrespective of whether or not the particular person qualifies for New Zealand superannuation at that or any other age:
“Non-earner” means a natural person who is not an earner:
“Non-Earners’ Account” means the Account described in section 290:
“Non-work injury” has the meaning set out in section 278:
“Nurse” means a person who holds a current annual practising certificate issued by the Nursing Council of New Zealand:
“Occupational therapist” means a person who holds a current annual practising certificate issued by the Occupational Therapy Board:
“Optometrist” means an optometrist registered with the Opticians Board who holds a current annual practising certificate issued by the Opticians Board:
“Ordinarily resident in New Zealand” has the meaning set out in section 24:
“Osteopath” means a member of the New Zealand Register of Osteopaths Incorporated:
“Other dependant” means a person who has all the following characteristics immediately before a deceased insured’s death:
(a)
Because of his or her physical or mental condition, he or she is financially dependent on the deceased insured:
(b)
He or she is deriving annual earnings not exceeding $14,560:
(c)
He or she is not the deceased insured’s spouse:
(d)
He or she is—
(i)
Not a child under 18 years; and
(ii)
Not a child of the deceased insured:
“Outstanding claims liability” means, in relation to a particular date, the present value of expected future costs of claims under this Act or any of the former Acts, which claims are—
(a)
Claims notified to, and accepted by, the relevant insurer before that date, but the costs of which are not fully met at that date; and
(b)
Claims that relate to events that have already occurred, but that have not been notified to, or accepted by, the relevant insurer as at that date:
“Overpayment” means an overpayment of the type described in section 320(1)(a):
“Personal injury” has the meaning set out in section 29:
“Personal injury caused by a work-related gradual process, disease, or infection” has the meaning set out in section 33:
“Personal injury caused by medical misadventure” has the meaning set out in section 35:
“Personal injury covered by the former Acts” means—
(a)
Personal injury covered by the Accident Rehabilitation and Compensation Insurance Act 1992:
(b)
Personal injury by accident covered by the Accident Compensation Act 1982 or the Accident Compensation Act 1972:
“Physiotherapist” means a person who holds a current annual practising certificate issued by the Physiotherapy Board:
“Place of education”—
(a)
Means a community college (within the meaning of the Education Act 1964), composite school, secondary school, teachers’ college, technical institute, or Lincoln University, Massey University, University of Auckland, University of Canterbury, University of Otago, University of Waikato, or Victoria University of Wellington; and
(b)
Includes any other prescribed place of education:
“Place of employment” means any premises or place—
(a)
Occupied for the purposes of employment; or
(b)
To which a person has access because of his or her employment; or
(c)
Attended by a person for a course of education or training for the purposes of his or her current employment, if he or she receives earnings from that employment for his or her attendance:
“Podiatrist” means a person registered with the Podiatrists Board:
“Potential earner” means an insured who—
(a)
Either—
(i)
Suffered personal injury before turning 18 years; or
(ii)
Suffered personal injury while engaged in full-time study or training that began before the insured turned 18 years and continued uninterrupted until after the insured turned 18 years; and
(b)
Is 18 years or over; and
(c)
Is incapacitated by the personal injury; and
(d)
Is not engaged in full-time study or training; and
(e)
If aged—
(i)
Under 20 years, does not have weekly earnings in excess of $216.47; or
(ii)
20 years or over, does not have weekly earnings in excess of $280.00:
“Private domestic worker” means a person—
(a)
Who is employed by any other person where—
(i)
The employer is the occupier or one of the occupiers of a dwellinghouse or other premises used exclusively for residential purposes; and
(ii)
The employment is for the performance of work in or about the dwellinghouse or premises or the garden or grounds belonging to the dwellinghouse or premises; and
(iii)
The employment is not in relation to any business carried on by the employer or to any occupation or calling of the employer; and
(iv)
The employment is not regular full-time employment; and
(b)
To whom section NC 16 of the Income Tax Act 1994 (obligation to make own tax deductions) applies;—
and “private domestic work”
has a corresponding meaning:
“Public health acute service” has the meaning set out in section 14(2):
“Public notice” means notice published in a daily newspaper circulating in each of the cities of Auckland, Hamilton, Wellington, Christchurch, and Dunedin:
“Receiver” has the same meaning as in section 2(1) of the Receiverships Act 1993:
“Receiving insurer” has the meaning set out in section 49:
“Registered health professional” means—
(a)
A registered medical practitioner; or
(b)
A person who holds a current annual practising certificate issued by the Chiropractic Board, the Dental Council of New Zealand, the Dental Technicians Board, the Nursing Council of New Zealand, the Occupational Therapy Board, the Pharmaceutical Society of New Zealand, or the Physiotherapy Board; or
(c)
A person registered with the Medical Laboratory Technologists Board, the Medical Radiation Technologists Board, or the Podiatrists Board; or
(d)
An optometrist registered with the Opticians Board:
“Registered medical practitioner” means a person entitled to practise medicine under the title of medical practitioner under the Medical Practitioners Act 1995:
“Registrar” means the Registrar of Companies:
“Regulator” means the chief executive of the department of State that, with the authority of the Prime Minister, is for the time being responsible for the functions referred to in section 198:
“Rehabilitation” means assistance that aims to help a person who has suffered personal injury regain, or acquire, or use the skills necessary for that degree of mental, physical, social, and vocational function that will enable the person to lead as normal a life as possible, having regard to the consequences of the person’s personal injury:
“Residual Claims Account” means the Account described in section 303:
“Residual Claims levy” means the levy payable under section 304(1):
“Review” means a review under Part 6:
“Review application” means a review application given to an insurer under section 136:
“Review decision” means a decision made under section 148 or section 149:
“Reviewer” means a person allocated, under section 138(2), to conduct a review:
“Road” has the same meaning as in section 2(1) of the Transport Act 1962:
“Self-employed person” means a person who has earnings as a self-employed person:
“Self-Employed Work Account” means the Account described in section 299:
“Shareholder-employee” means a person who is a shareholder in, and an employee of, a close company:
“Source deduction payment” has the same meaning as in section OB 2(1) of the Income Tax Act 1994:
“Specified insolvency date”, in relation to an insurer, means the date that the Regulator specifies as the date on which the declaration of an insurer as an insolvent insurer takes effect under section 237:
“Speech therapist” means a member of the New Zealand Speech Language Therapists Association (Incorporated):
“Spouse” has the meaning set out in section 25:
“Statutory entitlement” means any of the following:
(a)
Treatment as provided for in Part 1 of Schedule 1:
(b)
Weekly compensation as provided for in Part 2 of Schedule 1:
(c)
Rehabilitation as provided for in Part 3 of Schedule 1, including—
(i)
An individual rehabilitation plan:
(ii)
Social rehabilitation:
(iii)
Vocational rehabilitation:
(d)
An independence allowance as provided for in Part 4 of Schedule 1:
(e)
Each entitlement arising from fatal injuries as provided for in Part 5 of Schedule 1:
“Suffers” is affected in its interpretation by—
(a)
Section 44, when it is used in relation to mental injury suffered in the circumstances described in section 40:
(b)
Section 45, when it is used in relation to personal injury caused by a work-related gradual process, disease, or infection:
(c)
Section 46, when it is used in relation to personal injury caused by medical misadventure:
“Total gross premiums” means the gross income attributable to premiums in respect of the provision of statutory entitlements under accident insurance contracts, where gross income—
(a)
Is determined in accordance with any regulations made under this Act prescribing what is or is not included within the term; and
(b)
Subject to any such regulations, means income after deducting any rebates or refunds allowed or paid to persons insured, but without making any allowance or deduction for reinsurances, commissions, or other agency charges, or for reserves for unexpired risks at the beginning or end of the relevant year:
“Trade plate” means a trade plate issued under section 22 of the Transport Act 1962 or section 34 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986:
“Treatment” includes—
(a)
Physical rehabilitation:
(b)
Cognitive rehabilitation:
(c)
A certificate required by the insurer:
“Treatment provider”—
(a)
Means an acupuncturist, audiologist, chiropractor, counsellor, dentist, laboratory technician, nurse, occupational therapist, optometrist, osteopath, physiotherapist, podiatrist, registered medical practitioner, or speech therapist; and
(b)
Includes a member of any occupational group included in the definition of “treatment provider”
by regulations made under section 399:
“Trustee company” means a trustee company as defined in section 2 of the Trustee Companies Act 1967:
“Weekly compensation” means—
(a)
The compensation payable by an insurer under any of clauses 7, 22, 67, 70, or 71 of Schedule 1; or
(b)
The compensation payable by the manager under section 286 or Part 13:
“Weekly earnings”, in relation to an earner, means the weekly earnings of that earner determined in accordance with Part 2 of Schedule 1:
“Work-related personal injury” has the meaning set out in section 32:
“Working day” means any day of the week other than—
(a)
Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and
(b)
A day in the period beginning on 25 December in any year and ending with 2 January in the following year.
(2)
An example used in this Act is only illustrative of the provision it relates to. It does not limit the provision.
Compare: 1992, No. 13, s. 3
14 “Acute treatment”
and “public health acute service”
(1)
“Acute treatment”
, in relation to an insured, means—
(a)
The first visit to a treatment provider for treatment for a personal injury for which the insured has cover; and
(b)
The following treatments, if, in the treatment provider’s reasonable clinical judgment, the need for the treatment is urgent (given the likely clinical effect on the insured of any delay in treatment):
(i)
Any subsequent visit to that treatment provider for the injury referred to in paragraph (a); and
(ii)
Any referral by that treatment provider to any other treatment provider for the injury referred to in paragraph (a).
(2)
“Public health acute service”
, in relation to treatment of an insured for a personal injury for which he or she has cover, means any of the following personal health services when those services are provided by a hospital and health service:
(a)
Services provided as part of—
(i)
An unplanned admission; or
(ii)
A planned admission, if the admission date is less than 7 days after the date on which the decision to admit was made:
(b)
Services provided as part of an unplanned emergency department presentation, and any subsequent services provided by the emergency department within 7 days of that presentation:
(c)
Outpatient services (not including services not provided by registered medical practitioners or nurses, such as, for example, services provided by audiologists, physiotherapists, and occupational therapists) that are associated with services—
(i)
Provided under paragraph (a) within 6 weeks of the day of discharge; or
(ii)
Provided under paragraph (b) within 6 weeks of the day of treatment:
(d)
Services not associated with services provided under paragraph (a) or paragraph (b) that are provided by a registered medical practitioner less than 7 days after the date an insured is referred for those services by another registered medical practitioner.
(3)
In subsection (2), “personal health services”
and “services”
have the same meaning as “personal health services”
in section 2 of the Health and Disability Services Act 1993.
15 “Capacity for work”
(1)
“Capacity for work”
, in relation to an insured, means the insured’s capacity, having regard to the consequences of his or her personal injury, to engage in employment—
(a)
For which he or she is suited by reason of experience, education, or training, or any combination of those things; and
(b)
For 30 hours or more a week.
(2)
In determining whether an insured has capacity for work, an insurer is not required to take into account—
(a)
Any condition suffered by the insured that is not related to his or her personal injury; or
(b)
Whether or not there are any employment opportunities existing in any employment for which the insured is then suited.
Compare: 1992, No. 13, ss. 50(6), 51(2)
16 “Cover”
(1)
When this Act says an insured “has cover”
, it means that the insured has cover for a personal injury—
(a)
Under any of sections 39, 40, or 41, for a personal injury suffered on or after 1 July 1999; or
(b)
Under any of sections 421 to 423, for a personal injury suffered before that date.
(2)
When this Act says that an injury is “covered by this Act”
, it means that the injury is a personal injury for which an insured has cover.
17 “Earnings as an employee”
: what it means
(1)
“Earnings as an employee”
, in relation to any person and any income year, means all source deduction payments of the person for the income year.
(2)
This section is subject to sections 18 and 19.
Compare: S.R. 1992/64, r. 2
18 “Earnings as an employee”
: payments to spouse
(1)
“Earnings as an employee”
, in relation to any person and any income year, does not include any amount paid to the person (“person A”
) for services he or she performs for his or her spouse (“person B”
), as person B’s employee or otherwise.
(2)
However, subsection (1) does not apply if person B, in order to calculate his or her income for the purposes of the Income Tax Act 1994, has made a written application for, and obtained, the Commissioner’s consent to a deduction being made for any amounts paid by person B to person A for the services person A performs.
(3)
If subsection (2) applies, account must be taken of the following in determining person A’s weekly earnings, for as long as the Commissioner’s consent relates to the services and to the amounts paid:
(a)
The services performed by person A after the date on which the Commissioner receives person B’s application; and
(b)
Any amounts paid after the date on which the Commissioner receives person B’s application.
(4)
The manager may accept that there has been sufficient compliance with subsection (2), and premiums are payable accordingly, if—
(a)
Person A provides services to person B; and
(b)
Person B submits or has submitted a return of income to the Commissioner; and
(c)
Person B shows the amounts paid to person A for such services in the return as an expense incurred in the production of assessable income for the purposes of the Income Tax Act 1994; and
(d)
Person A includes the amounts paid to him or her by person B for such services in a return of income submitted to the Commissioner; and
(e)
Person A pays or has paid tax (if appropriate) on such amounts.
Compare: S.R. 1992/64, r. 11
19 “Earnings as an employee”
: what it does not include
(1)
“Earnings as an employee”
, in relation to any person and any income year, does not include—
(a)
Any income-tested benefit, veteran’s pension, New Zealand superannuation, living alone payment, or withholding payment; or
(b)
Any student allowance established in accordance with regulations made under section 303 of the Education Act 1989; or
(c)
Any amount allocated to a person or persons other than the person who is the employee in question under section GD 3 of the Income Tax Act 1994; or
(d)
Any amount deemed to be a dividend paid by any person to the person who is the employee in question under section GD 5 of the Income Tax Act 1994; or
(e)
Any redundancy payment; or
(f)
Any retiring allowance; or
(g)
Any pension from a superannuation scheme or pension fund not registered under the Superannuation Schemes Act 1989.
(2)
In this section, “income-tested benefit”
, “veteran’s pension”
, “New Zealand superannuation”
, “living alone payment”
, and “withholding payment”
have the same meanings as in section OB 1 of the Income Tax Act 1994.
(3)
For the purpose of determining the amount of any premium payable under Part 10, but for no other purpose, “earnings as an employee”
does not include any payment by an employer under section 76 or any payment by an insurer under Part 2 of Schedule 1.
20 “Earnings as a self-employed person”
(1)
“Earnings as a self-employed person”
, in relation to any person and any income year,—
(a)
Means A minus B, A being the amount described in subsection (2) and B being the amount described in subsection (3); and
(b)
Does not include any earnings as an employee or earnings as a shareholder-employee.
(2)
A is the amount of assessable income (if any)—
(a)
That the person derives in the income year for the purposes of the Income Tax 1994; and
(b)
That is dependent on the person’s personal exertions.
(3)
B is all amounts allowable as deductions to the person for the purposes of the Income Tax Act 1994 because of the person deriving the income described in subsection (2).
Compare: S.R. 1992/64, r. 2
21 “Earnings as a shareholder-employee”
(1)
“Earnings as a shareholder-employee”
, in relation to a person who is a shareholder-employee and any income year, means—
(a)
The amount described in subsection (2) (“the subsection (2) amount”
); or
(b)
The amount described in subsection (3) (“the subsection (3) amount”
), if the insurer decides that the subsection (2) amount is not a reasonable representation of the person’s earnings as a shareholder-employee in the income year.
(2)
The subsection (2) amount is—
(a)
All source deduction payments of the person for the income year derived from a company in which the person is a shareholder-employee; and
(b)
All income of the person that is deemed to be income derived otherwise than from source deduction payments under section OB 2(2) of the Income Tax Act 1994.
(3)
The subsection (3) amount is an amount determined by the insurer in the following way:
(a)
First, determine each of the following amounts:
(i)
An amount that represents reasonable remuneration for the services that the person provides to the company as an employee of the company in the income year; and
(ii)
An amount that represents reasonable remuneration for the services that the person provides as a director of the company in the income year; and
(b)
Second, add the amounts described in paragraph (a)(i) and (ii). The result is the subsection (3) amount.
(4)
The earnings as an employee of the person as an employee of the company are the amount described in subsection (3)(a)(i).
(5)
The director’s fees of the person as a director of the company are the amount described in subsection (3)(a)(ii).
(6)
The dividend of the person as a shareholder of the company is determined by the insurer in the following way:
(a)
First, determine the total amount the company pays or provides to the person in any capacity in the income year; and
(b)
Second, deduct the subsection (3) amount from that total amount. The result is the dividend of the person as a shareholder of the company and is not earnings of the person.
Compare: S.R. 1992/64, r. 10
22 “Insured”
(1)
“Insured”
means—
(a)
An employee of an employer:
(b)
A person who is a self-employed person:
(c)
A person who is a private domestic worker:
(d)
A person to whom section 279 applies:
(e)
A person to whom entitlements must be provided under Part 13.
(2)
In their application to a situation described in subsection (3), references to the “insured”
in sections 47 to 167 and the associated sections in Part 12—
(a)
Mean the person who has died, if the section concerns cover:
(b)
Mean the representative of the person’s estate or his or her spouse, child, or other dependant, if the section concerns entitlements or review or appeal.
Sections 47 to 167 and the associated sections in Part 12 must, accordingly, be read with all necessary modifications.
(3)
Subsection (2) applies to the following situations:
(a)
A person suffers physical injuries and dies from them, and his or her cover is established before death:
(b)
A person suffers physical injuries in circumstances in which he or she potentially has cover under this Act and dies from the injuries, and his or her cover is not established before death:
(c)
A person dies in circumstances in which he or she potentially has cover under this Act.
23 “New Zealand”
(1)
“New Zealand” means—
(a)
The North Island, the South Island, Stewart Island, the Chatham Islands, and all other land territories, islands, and islets lying between the 162nd degree of east longitude and the 173rd degree of west longitude and between the 33rd and 53rd parallels of south latitude; and
(b)
Those islands situated in the South Pacific Ocean lying between the 177th and 180th degrees of west longitude and between the 29th and 32nd parallels of south latitude, commonly known as the Kermadec Group; and
(c)
Those parts of the internal waters of New Zealand (as defined by section 4 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977) adjacent to the land territories, islands, and islets referred to in paragraphs (a) and (b); and
(d)
Those parts of the territorial sea of New Zealand (as defined by section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977) adjacent to the land territories, islands, and islets referred to in paragraphs (a) and (b); and
(e)
Any installation or drilling rig that—
(i)
Is constructed, erected, placed, or used in, on, or above those parts of the continental shelf adjacent to the land territories, islands, and islets referred to in paragraphs (a) and (b); and
(ii)
Has the purpose of the exploration of the continental shelf or the exploitation of the mineral or other natural non-living resources of the continental shelf.
(2)
In subsection (1)(e),—
(a)
“Continental shelf”
has the meaning given to it in section (1) of the Continental Shelf Act 1964:
(b)
“Installation”
and “drilling rig”
include—
(i)
Any installation or drilling rig, whether permanent or temporary:
(ii)
Any aircraft, floating platform, ship, or other device that is for the time being in, on, or above the continental shelf and is being used in connection with any installation or drilling rig.
(3)
A person remains in New Zealand when he or she—
(a)
Embarks in New Zealand on an aircraft or ship or some other means of conveyance by air or sea—
(i)
To travel from one place in New Zealand to another place in New Zealand; or
(ii)
To return to his or her place of embarkation without disembarking at any other place; and
(b)
Does not go beyond a Emit of 300 nautical miles from any point or points in New Zealand.
Compare: 1992, No. 13, ss. 3, 13
24 “Ordinarily resident in New Zealand”
(1)
A person is “ordinarily resident in New Zealand”
if he or she—
(a)
Has New Zealand as his or her permanent place of residence, whether or not he or she also has a place of residence outside New Zealand; and
(b)
Is in 1 of the following categories:
(i)
A New Zealand citizen:
(ii)
A holder of a residence permit granted under the Immigration Act 1987:
(iii)
A holder of a returning resident’s visa or residence visa issued under the Immigration Act 1987 allowing the person to lawfully return to New Zealand or come to New Zealand for the purposes of residence:
(iv)
A person who is exempt from any requirement to hold a permit under the Immigration Act 1987:
(v)
A person who is a spouse, child, or other dependant of any person referred to in any of subparagraphs (i) to (iv), and who generally accompanies the person referred to in the subparagraph.
(2)
A person does not have a permanent place of residence in New Zealand if he or she has been and remains absent from New Zealand for more than 6 months or intends to be absent from New Zealand for more than 6 months This subsection overrides subsection (3) but is subject to subsection (4).
(3)
A person has a permanent place of residence in New Zealand if he or she, although absent from New Zealand, has been personally present in New Zealand for a period or periods exceeding in the aggregate 183 days in the 12-month period immediately before last becoming absent from New Zealand. (A person personally present in New Zealand for part of a day is deemed to be personally present in New Zealand for the whole of that day).
(4)
A person does not cease to have a permanent place of residence in New Zealand because he or she is absent from New Zealand primarily in connection with the duties of his or her employment, the remuneration for which is treated as income derived in New Zealand for New Zealand income tax purposes, or for 6 months following the completion of the period of employment outside New Zealand, so long as he or she intends to resume a place of residence in New Zealand.
(5)
A person is not ordinarily resident in New Zealand if he or she is in New Zealand unlawfully within the meaning of the Immigration Act 1987. Any period during which a person is in New Zealand unlawfully is not counted as time spent in New Zealand for the purposes of subsection (3).
Compare: S.R. 1992/156, r. 3
25 “Spouse”
, in relation to deceased insured
(1)
“Spouse”
, in relation to a deceased insured, means a person (“person A”
)—
(a)
To whom the deceased insured was legally married immediately before his or her death; or
(b)
With whom the deceased insured was in a relationship in the nature of marriage immediately before his or her death (whether person A and the deceased insured were of opposite genders or the same gender).
(2)
However, person A is not the spouse of a deceased insured if, at the time of the deceased insured’s death,—
(a)
Person A and the deceased insured were living apart; and
(b)
The deceased insured was not contributing financially to person A’s welfare.
(3)
Subsection (2) does not apply if the circumstances set out in the subsection occurred principally because of the health, imprisonment, or employment obligations of either person A or the deceased insured.
Compare: 1992, No. 13, s. 3
Part 3 Cover
26 Arrangement of this Part
(1)
Sections 39, 40, and 41 set out the personal injuries for which insureds have cover.
(2)
Those sections use terms that are defined in sections 28 to 30, 33, and 35 to 37.
(3)
Sections 42 and 43 set out exclusions from cover.
(4)
Sections 32 and 38 categorise some personal injuries as work-related personal injuries, and others as motor vehicle injuries, for the purposes of other provisions in this Act.
(5)
Sections 44 to 46 specify the dates on which certain kinds of personal injury are suffered.
Key Terms Relating to Injuries
27 Key terms relating to injuries
The key terms defined in the following 3 sections are:
(a)
“Accident”
, which is defined in section 28:
(b)
“Mental injury”
, which is defined in section 30:
(c)
“Personal injury”
, which is defined in section 29.
28 “Accident”
(1)
“Accident”
, as defined in this section, is used in section 39(2)(a).
(2)
“Accident”
means any of the following kinds of occurrences:
(a)
A specific event, or a series of events, that—
(i)
Involves the application of a force or resistance external to the human body; and
(ii)
Is not a gradual process:
(b)
The inhalation or oral ingestion of any solid, liquid, gas, or foreign object on a specific occasion. This kind of occurrence does not include the inhalation or ingestion of a virus, bacterium, protozoa, or fungi, unless that inhalation or ingestion is the result of the criminal act of a person other than the insured:
(c)
A bum, or exposure to radiation or rays of any kind, on a specific occasion. This kind of occurrence does not include a bum or exposure caused by exposure to the elements:
(d)
The absorption of any chemical through the skin within a defined period of time not exceeding 1 month:
(e)
Any exposure to the elements, or to extremes of temperature or environment, within a defined period of time not exceeding 1 month, that causes—
(i)
Disability lasting for a continuous period exceeding 1 month; or
(ii)
Death.
(3)
However, “accident”
does not mean any of those kinds of occurrences, if the occurrence is treatment given,—
(a)
In New Zealand, by or at the direction of a registered health professional; or
(b)
Outside New Zealand, by or at the direction of a person who has qualifications equivalent to those of a registered health professional.
(4)
The fact that an insured has suffered a personal injury is not of itself to be construed as an indication or presumption that it was caused by an accident.
Compare: 1992, No. 13, s. 3
29 “Personal injury”
(1)
“Personal injury”
means—
(a)
The death of an insured; or
(b)
Physical injuries suffered by an insured, including, for example, a strain or a sprain; or
(c)
Mental injury suffered by an insured because of physical injuries suffered by the insured; or
(d)
Mental injury suffered by an insured in the circumstances described in section 40.
(2)
“Personal injury” does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 39(2)(d), (e), (f), or (g).
(3)
“Personal injury”
does not include a cardio-vascular or cerebro-vascular episode unless it is personal injury of a kind described in section 39(2)(h) or (i).
(4)
“Personal injury”
does not include—
(a)
Personal injury caused wholly or substantially by the ageing process; or
(b)
Personal injury to teeth caused by the natural use of those teeth.
Compare: 1992, No. 13, s. 4
30 “Mental injury”
“Mental injury”
means a clinically significant behavioural, cognitive, or psychological dysfunction.
Compare: 1992, No. 13, s. 3
Terms Relating to Injuries Suffered At Work
31 Terms relating to injuries suffered at work
The terms defined in the following 2 sections are:
(a)
“Personal injury caused by a work-related gradual process, disease, or infection”
, which is defined in section 33:
(b)
“Work-related personal injury”
, which is defined in section 32.
32 “Work-related personal injury”
(1)
A “work-related personal injury”
is a personal injury that the insured suffers—
(a)
While he or she is at any place for the purposes of his or her employment, including, for example, a place that itself moves or a place to or through which the insured moves; or
(b)
While he or she is having a break from work for a meal or rest or refreshment at his or her place of employment; or
(c)
While he or she is travelling to or from his or her place of employment at the start or finish of his or her day’s work, if he or she is an employee and if the transport—
(i)
Is provided by the employer; and
(ii)
Is provided for the purpose of transporting employees; and
(iii)
Is driven by the employer or, at the direction of the employer, by another employee of the employer or of a related or associated employer; or
(d)
While he or she is travelling, by the most direct practicable route, between his or her place of employment and another place for the purposes of getting treatment for a work-related personal injury, if the treatment—
(i)
Is necessary for the injury; and
(ii)
Is treatment of a type that the insurer is liable to provide under Part 1 of Schedule 1, whether or not the insurer provides any treatment in the particular case.
“Most direct practicable route”
does not include those parts of a route that deviate from, or interrupt, a journey for purposes unrelated to the employment or the treatment.
(2)
“Work-related personal injury”
includes a cardio-vascular or cerebro-vascular episode suffered by the insured, if the episode is caused by physical effort or physical strain—
(a)
That occurs in any of the circumstances described in subsection (1); and
(b)
That is abnormal in application or excessive in intensity for the insured.
(3)
“Work-related personal injury”
includes personal injury that is of a kind described in the first column of Schedule 2, and is suffered by an insured who is or has been employed in 1 of the corresponding trades, industries, or processes listed in the second column of the schedule, unless the insurer is able to decline, under section 68, a claim for cover lodged by the insured.
(4)
An injury is a work-related personal injury, and is not a motor vehicle injury, if it—
(a)
Falls within the definitions of both “work-related personal injury”
and “motor vehicle injury”
; but
(b)
Is suffered in the circumstances described in subsection (1)(c) or (d).
(5)
“Work-related personal injury”
includes personal injury caused by a work-related gradual process, disease, or infection.
(6)
“Work-related personal injury”
includes personal injury suffered by an insured resulting from treatment for a work-related personal injury as defined in subsections (1) to (5), whether or not the injury is a personal injury caused by medical misadventure.
(7)
“Work-related personal injury”
does not include personal injury suffered by an insured when all the following conditions exist:
(a)
The personal injury is suffered in any of the circumstances described in subsection (1); and
(b)
The personal injury is suffered in the circumstances described in section 40; and
(c)
The insured elects to have the personal injury regarded as a non-work injury. If the insured so elects, that personal injury is a non-work injury.
(8)
It is irrelevant to the decision whether the insured suffered work-related personal injury that, when the event causing the injury occurred, he or she—
(a)
May have been acting in contravention of any Act or regulations applicable to the employment, or in contravention of any instructions, or in the absence of instructions; or
(b)
May have been working under an illegal contract; or
(c)
May have been indulging in, or may have been the victim of, misconduct, skylarking, or negligence; or
(d)
May have been the victim of a force of nature.
Compare: 1992, No. 13, ss. 3, 6
33 “Personal injury caused by a work-related gradual process, disease, or infection”
(1)
“Personal injury caused by a work-related gradual process, disease, or infection”
means personal injury—
(a)
Suffered by an insured; and
(b)
Caused by a gradual process, disease, or infection; and
(c)
Caused in the circumstances described in subsection (2).
(2)
The circumstances are—
(a)
The insured—
(i)
Performs an employment task that has a particular property or characteristic; or
(ii)
Works in an environment that has a particular property or characteristic; and
(b)
The particular property or characteristic—
(i)
Causes or contributes to the personal injury; and
(ii)
Is not found to any material extent in the non-employment activities or environment of the insured; and
(iii)
May or may not be present throughout the whole of the insured’s employment; and
(c)
The risk of suffering the personal injury—
(i)
Is significantly greater for persons who perform the employment task than for persons who do not perform it; or
(ii)
Is significantly greater for persons who work in that environment than for persons who do not work in it.
(3)
“Personal injury caused by a work-related gradual process, disease, or infection”
does not include—
(a)
Personal injury attributable to air-conditioning systems; or
(b)
Personal injury attributable to passive smoking; or
(c)
Personal injury related to non-physical stress; or
(d)
Any degree of deafness for which compensation has been paid under the Workers’ Compensation Act 1956.
(4)
The fact that an insured—
(a)
Performed an employment task that had a particular property or characteristic; or
(b)
Worked in an environment that had a particular property or characteristic—
before 1 April 1974 does not prevent his or her personal injury from being personal injury caused by a work-related gradual process, disease, or infection, but he or she does not have cover for it if section 43 or section 424 applies to him or her.
Compare: 1992, No. 13, ss 7(1), (3), (4), 11(1)
Terms Relating to Injuries Suffered Through Medical Treatment
34 Terms relating to injuries suffered through medical treatment
The terms defined in the following 3 sections are:
(a)
“Medical error”
, which is defined in section 36:
(b)
“Medical mishap”
, which is defined in section 37:
(c)
“Personal injury caused by medical misadventure”
, which is defined in section 35.
35 “Personal injury caused by medical misadventure”
: defined in this section and in section 357
(1)
“Personal injury caused by medical misadventure”
means personal injury caused by medical error or medical mishap.
(2)
“Personal injury caused by medical misadventure”
includes personal injury caused by—
(a)
The insured’s abnormal reaction to treatment given to him or her; or
(b)
A complication the insured suffers later because of the treatment given to him or her,—
but only if medical error or medical mishap occurs at the time of the treatment.
(3)
“Personal injury caused by medical misadventure”
includes personal injury an insured suffers as a result of medical error or medical mishap in anything done or omitted as part of a clinical trial, but only if subsection (4) or subsection (5) applies.
(4)
This subsection applies if the insured did not agree, in writing, to participate in the trial.
(5)
This subsection applies if—
(a)
An ethics committee—
(i)
Approved the trial; and
(ii)
Certified that it was satisfied that the trial was not to be conducted principally for the benefit of the manufacturer or distributor of the medicine or item being trialled; and
(b)
The ethics committee was approved by the Health Research Council or the Director-General of Health at the time it gave its approval and certificate.
Compare: 1992, No. 13, s. 5(1), (6)–(8)
36 “Medical error”
(1)
“Medical error”
means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.
(2)
Such a failure includes a registered health professional’s negligent failure to, for example,—
(a)
Obtain informed consent to treatment from—
(i)
The insured to whom the treatment is given; or
(ii)
The insured’s parent, legal guardian, or welfare guardian, as appropriate, if the insured does not have legal capacity; or
(b)
Diagnose correctly an insured’s medical condition; or
(c)
Give the insured treatment.
(3)
Medical error does not exist solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results.
Compare: 1992, No. 13, s. 5(1)
37 “Medical mishap”
(1)
“Medical mishap”
means an adverse consequence of treatment, when—
(a)
The treatment is given to an insured, is given properly, and is given by or at the direction of a registered health professional; and
(b)
The adverse consequence is suffered by the insured; and
(c)
The adverse consequence is severe (as defined in subsection (2)); and
(d)
The likelihood that treatment of the kind that was given would have the adverse consequence is rare (as defined in subsections (3) and (4)).
(2)
The adverse consequence is severe only if it results in the insured—
(a)
Dying; or
(b)
Being hospitalised as an inpatient for more than 14 days; or
(c)
Suffering significant disability lasting more than 28 days in total.
(3)
The likelihood that treatment of the kind that was given would have the adverse consequence is rare only if the probability is that the adverse consequence would not occur in more than 1% of cases in which that treatment is given.
(4)
If the likelihood that treatment of the kind that was given would have the adverse consequence is rare in the ordinary course, but is not rare having regard to the circumstances of the insured, medical mishap does not exist if the greater risk to the insured—
(a)
Was known to the insured before the treatment; or
(b)
Was known to the insured’s parent, legal guardian, or welfare guardian, as appropriate, before the treatment, if the insured does not have legal capacity.
Compare: 1992, No. 13, s. 5(1)–(4)
Term Relating to Injuries Suffered Through Motor Vehicles
38 “Motor vehicle injury”
(1)
“Motor vehicle injury”
means—
(a)
A personal injury suffered because of the movement of a motor vehicle; or
(b)
A personal injury suffered because of a stationary motor vehicle being struck by another motor vehicle or some other means of conveyance.
(2)
However, “motor vehicle injury”
does not include a personal injury suffered—
(a)
In the course of loading, unloading, repairing, or servicing a motor vehicle; or
(b)
In the course of any use of a motor vehicle other than as a means of conveyance; or
(c)
In the course of off-road use of a motor vehicle. “Off-road use”
does not include use that is off-road as a direct result of the motor vehicle being out of control or having been involved in an accident.
(3)
An injury is a motor vehicle injury, and is not a work-related personal injury, if it—
(a)
Falls within the definitions of both “motor vehicle injury”
and “work-related personal injury”
; but
(b)
Is suffered in the circumstances described in section 32(1)(a) or (b).
Compare: 1992, No. 13, s. 3
Principles
39 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts)
(1)
An insured has cover for a personal injury if—
(a)
He or she suffers the personal injury in New Zealand on or after 1 July 1999; and
(b)
The personal injury is any of the kinds of injuries described in section 29(1)(a), (b), or (c); and
(c)
The personal injury is described in any of the paragraphs in subsection (2).
(2)
Subsection (1)(c) applies to—
(a)
Personal injury caused by an accident to the insured; or
(b)
Personal injury caused by medical misadventure suffered by the insured; or
(c)
Personal injury caused by treatment given to the insured for personal injury for which the insured has cover; or
(d)
Personal injury caused by a work-related gradual process, disease, or infection suffered by the insured; or
(e)
Personal injury caused by a gradual process, disease, or infection that is personal injury caused by medical misadventure suffered by the insured; or
(f)
Personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the insured for which the insured has cover; or
(g)
Personal injury caused by a gradual process, disease, or infection consequential on treatment given to the insured for personal injury for which the insured has cover; or
(h)
Personal injury that is a cardio-vascular or cerebro-vascular episode that is personal injury caused by medical misadventure suffered by the insured; or
(i)
Personal injury that is a cardio-vascular or cerebro-vascular episode that is a personal injury suffered by the insured to which section 32(2) applies.
(3)
Subsections (1) and (2) are subject to the following qualifications:
(a)
Section 42 denies cover to some insureds otherwise potentially within the scope of subsection (1):
(b)
Section 43 denies cover to some insureds otherwise potentially within the scope of subsections (1) and (2)(d).
(4)
An insured who suffers personal injury of the kind described in section 29(1)(d) does not have cover under this section, but under section 40.
Compare: 1992, No. 13, ss 8(1), (2), 10(1)
40 Cover for mental injury caused by certain criminal acts
(1)
An insured has cover for a personal injury that is a mental injury if—
(a)
He or she suffers the mental injury inside or outside New Zealand on or after 1 July 1999; and
(b)
The mental injury is caused by an act performed by another person; and
(c)
The act is of a kind described in subsection (2).
(2)
Subsection (1)(c) applies to an act that—
(a)
Is performed on, with, or in relation to the insured; and
(b)
Is performed—
(i)
In New Zealand; or
(ii)
Outside New Zealand on, with, or in relation to an insured who is ordinarily resident in New Zealand when the act is performed; and
(c)
Is within the description of an offence listed in Schedule 3.
(3)
For the purposes of this section, it is irrelevant whether or not the insured is ordinarily resident in New Zealand on the date on which he or she suffers the mental injury. (The date is described in section 44.)
(4)
For the purposes of this section, it is irrelevant that—
(a)
No person can be, or has been, charged with or convicted of the offence; or
(b)
The alleged offender is incapable of forming criminal intent.
Compare: 1992, No. 13, s. 8(3), (4)
41 Cover for personal injury suffered outside New Zealand (except mental injury caused by certain criminal acts)
(1)
An insured has cover for a personal injury if—
(a)
He or she suffers the personal injury outside New Zealand on or after 1 July 1999; and
(b)
The personal injury is any of the kinds of injuries described in section 29(1)(a), (b), or (c); and
(c)
The insured is ordinarily resident in New Zealand when he or she suffers the personal injury; and
(d)
The personal injury is one for which the insured would have cover if he or she had suffered it in New Zealand,—
but this subsection is subject to subsection (2).
(2)
An insured has cover for personal injury caused by medical misadventure if he or she suffers the personal injury on or after 1 July 1999 as a result of medical treatment given to him or her while outside New Zealand, but only if the circumstances described in subsection (3) exist.
(3)
The circumstances are—
(a)
The treatment is given by a person who has qualifications equivalent to those of a registered health professional; and
(b)
The personal injury would be personal injury caused by medical misadventure if the insured had suffered it in New Zealand; and
(c)
The insured is ordinarily resident in New Zealand when the treatment is given (whether or not he or she is ordinarily resident in New Zealand on the date on which he or she suffers the personal injury. The date is described in section 46).
(4)
An insured who suffers personal injury of the kind described in section 29(1)(d) outside New Zealand does not have cover for the personal injury under this section, but under section 40.
Compare: 1992, No. 13, s. 9
42 Cover for personal injury suffered by persons not ordinarily resident in New Zealand: exclusions while travelling to, around, and from New Zealand
(1)
A person not ordinarily resident in New Zealand does not have cover for a personal injury if he or she suffers it while he or she—
(a)
Is on board a ship or aircraft or other means of conveyance described in subsection (2); or
(b)
Is embarking or disembarking from any such ship or aircraft or conveyance.
(2)
Subsection (1)(a) relates to the ship, aircraft, or conveyance on which the person—
(a)
Comes to New Zealand; or
(b)
Leaves New Zealand; or
(c)
Comes to New Zealand, is carried and accommodated in the course of visiting New Zealand, and leaves New Zealand.
(3)
For the purposes of subsection (1)(b),—
(a)
Embarking begins as soon as a person is on a gangway, air bridge, or other thing attached to or laid against a ship, aircraft, or other conveyance and available for use in embarking:
(b)
Disembarking finishes as soon as a person has left any gangway, air bridge, or other thing attached to or laid against a ship, aircraft, or other conveyance and available for use in disembarking.
Compare: 1992, No. 13, s. 12
43 Cover for personal injury caused by a work-related gradual process, disease, or infection: exclusion for events occurring outside New Zealand before 1 April 1974
An insured does not have cover for personal injury caused by a work-related gradual process, disease, or infection if—
(a)
He or she suffers the personal injury because, before April 1974, he or she performed a task, or worked in an environment, in the circumstances described in section 33(2); and
(b)
He or she performed the task, or worked in the environment, outside New Zealand; and
(c)
He or she was not ordinarily resident in New Zealand when he or she performed the task or worked in the environment (whether or not he or she is ordinarily resident in New Zealand on the date on which he or she suffers the personal injury. The date is described in section 45).
Compare: 1992, No. 13, s. 11(1), (5)
Dates on which Insureds Suffer Certain Kinds of Personal Injury
44 Date on which insured suffers mental injury caused by certain criminal acts
(1)
The date on which the insured suffers mental injury in the circumstances described in section 40 is the date on which the insured first receives treatment for that mental injury as that mental injury.
(2)
In subsection (1), “treatment”
means treatment of a type that the insurer is liable to provide under Part 1 of Schedule 1, whether or not the insurer provides any treatment in the particular case.
Compare: 1992, No. 13, s. 63(3)
45 Date on which insured suffers personal injury caused by a work-related gradual process, disease, or infection
(1)
The date on which the insured suffers personal injury caused by a work-related gradual process, disease, or infection is the earlier of the following dates:
(a)
The date on which the insured first receives treatment from a registered medical practitioner for that personal injury as that personal injury:
(b)
The date on which the personal injury first results in the insured’s incapacity,—
but this subsection is subject to subsection (2).
(2)
An insured suffers his or her personal injury on the date specified in subsection (3) if he or she suffers the personal injury because, before 1 April 1974, he or she performed a task, or worked in an environment, in the circumstances described in section 33(2).
(3)
An insured to whom subsection (2) applies is deemed to have suffered his or her personal injury on 1 July 1992, unless he or she actually suffers it on a date later than 1 July 1992 determined under subsection (1).
Compare: 1992, No. 13, s. 7(5)
46 Date on which insured suffers personal injury caused by medical misadventure
(1)
The date on which the insured suffers personal injury caused by medical misadventure is the date on which the insured first receives treatment for that personal injury as that personal injury.
(2)
In subsection (1), “treatment”
means treatment of a type that the insurer is liable to provide under Part 1 of Schedule 1, whether or not the insurer provides any treatment in the particular case.
Compare: 1992, No. 13, s. 63(3)
Part 4 Claims for Cover and Statutory Entitlements
Who Relevant Insurers Are and Relationships Between Them
47 “Insurer”
In this Part, “insurer”
means an insurer registered under section 201, while that registration continues under section 204, and includes—
(a)
The manager (in relation to an insured for whom the manager is required to provide entitlements):
(b)
An employer who, because of a risk sharing agreement with an insurer, is responsible for providing claims management services in relation to cover and statutory entitlements for the employer’s employees:
(c)
The administrator of an insurer, in the administrator’s role under Part 9:
(d)
The Regulator, in the Regulator’s role of meeting obligations of an insolvent insurer under Part 9:
(e)
The Regulator, in the Regulator’s role of applying the Non-Compliers Fund under section 268.
48 “Managing insurer”
“Managing insurer”
,—
(a)
In relation to—
(i)
An insured as defined in section 105, means a managing insurer as defined in that section:
(ii)
An insured as defined in section 107, means a managing insurer as defined in that section:
(iii)
An insured as defined in section 109, means a managing insurer as defined in that section:
(iv)
An insured as defined in section 112, means a managing insurer as defined in that section:
(b)
In relation to any other insured, means the insurer that is liable to provide the insured with entitlements.
49 “Receiving insurer”
“Receiving insurer”
means the insurer with which an insured lodges a claim under section 55.
50 Relationship between contributing insurers, managing insurers, and receiving insurers
(1)
A receiving insurer may be an insured’s managing insurer, or 2 different insurers may be an insured’s receiving insurer and managing insurer.
(2)
The insured’s receiving insurer is initially liable to provide the insured with entitlements (under section 51(1)(b)(ii)), but may be able to transfer the claim to the insured’s managing insurer before or after starting to provide the entitlements (under section 52).
(3)
A managing insurer is ultimately liable to provide the insured with entitlements It may have to reimburse the receiving insurer under section 104 or it may be entitled to recover a proportion of its costs from contributing insurers under one of sections 108, 110, 111, or 113 or from the manager under section 451.
51 Receiving insurer’s initial liability
(1)
On receiving a claim under section 55, a receiving insurer must—
(a)
Decide whether or not the insured has cover; and
(b)
If the insured has cover,—
(i)
Decide which statutory entitlements the insured is entitled to; and
(ii)
Start to provide those statutory entitlements This subsection describes a receiving insurer’s initial liability.
(2)
An insurer that, without reasonable excuse, fails to comply with any duty imposed on it by subsection (1) commits an offence and is liable on conviction to a fine of up to $10,000.
52 Receiving insurer to identify, and transfer claim to, managing insurer
(1)
This section applies if an insured lodges a claim under section 54(a) or (b) with a receiving insurer that is not his or her managing insurer.
(2)
A receiving insurer does not have to comply with section 51 if—
(a)
The insured agrees that the receiving insurer may transfer the claim without complying with that section; or
(b)
Another insurer agrees that it is the insured’s managing insurer and that the receiving insurer may transfer the claim without complying with that section.
(3)
If a receiving insurer is not excused by subsection (2) from complying with section 51, it must, having complied with it,—
(a)
Decide which insurer is the insured’s managing insurer; and
(b)
Transfer the claim to an insurer that agrees it is the insured’s managing insurer.
(4)
When a receiving insurer transfers a claim, it must—
(a)
Transfer the claim file to the managing insurer; and
(b)
Tell the insured about the transfer, unless the insured has already agreed to it.
(5)
An insurer that agrees with the receiving insurer that it is the insured’s managing insurer must accept the transfer of a claim from the receiving insurer.
53 Responsibilities of managing insurer
(1)
An insured’s managing insurer manages the insured’s claim.
(2)
A managing insurer that is also an insured’s receiving insurer is liable, having started to provide an insured with statutory entitlements under section 51(1)(b)(ii), to continue to provide the insured with any statutory entitlement to which the insured is entitled.
(3)
An insurer that becomes an insured’s managing insurer through the operation of section 52 or Part 6 is liable to provide the insured with any statutory entitlement to which the insured is entitled.
(4)
The insured’s managing insurer is responsible on behalf of all contributing insurers for providing all statutory entitlements to which the insured is entitled.
Claims Process
54 What insured may claim for
An insured may claim against an insurer for—
(a)
Cover for his or her personal injury; or
(b)
Cover, and a specified entitlement, for his or her personal injury; or
(c)
A specified entitlement for his or her personal injury, once an insurer has accepted cover for the personal injury.
55 Insurer with which to lodge claim involving cover
(1)
An insured who wishes to claim under section 54(a) or (b) must lodge the claim with one insurer, and that insurer must be the insurer that the insured believes is his or her managing insurer.
(2)
In deciding which insurer is his or her managing insurer, the insured may be guided by the table in Schedule 4.
(3)
An insured’s eligibility for cover or for any specified entitlement is not affected by whether or not the insurer with which the claim is lodged is in fact the insured’s managing insurer.
56 Insurer with which to lodge claim for entitlement
An insured who wishes to lodge a claim under section 54(c) must lodge the claim with—
(a)
The receiving insurer of the insured’s previous claim under section 54(a) or (b); or
(b)
If the receiving insurer has transferred the claim, the insurer to which it has been transferred.
57 Treatment provider lodging claim on behalf of insured
A treatment provider lodging a claim on behalf of an insured must—
(a)
Assist the insured to decide which insurer the claim should be lodged with; and
(b)
Lodge the claim promptly after the insured has authorised its being lodged.
58 When claim lodged and received
(1)
For all the purposes of this Act, a claim under section 54(a) or (b) is lodged and received on the date on which the receiving insurer receives a claim lodged in accordance with this Part.
(2)
For all the purposes of this Act, a claim under section 54(c) is lodged and received on the date on which the insurer with which it is lodged receives a claim lodged in accordance with this Part.
(3)
The date on which a claim is lodged is not affected by the transfer of a claim from a receiving insurer to a managing insurer.
59 “Insurer”
in sections 60 to 73
In sections 60 to 73, “insurer”
means the insurer that is, for the time being, responsible for actioning the claim.
60 Manner of making claim
(1)
The insured must lodge the claim with the insurer in a manner specified by the insurer.
(2)
The insurer must specify a manner that it is reasonable to expect the insured to comply with.
(3)
The insurer may impose reasonable requirements on the insured, such as, for example, requiring the insured to lodge a written claim.
61 Time for making claim
(1)
The insured must lodge the claim with the insurer within the time limit specified in this section.
(2)
An insurer must not decline a claim lodged after the time limit specified in this section on the ground that the claim was lodged late, unless the claim’s lateness prejudices the insurer in its ability to make decisions.
(3)
An insured must lodge a claim under section 54(a) or (b) within 12 months after the date on which he or she suffers the personal injury.
(4)
An insured must lodge a claim under section 54(c) within the time limit specified by the insurer.
(5)
An insurer must not specify a time Emit for the purposes of subsection (4) that is shorter than 12 months after the date on which the insured becomes aware, or could reasonably be expected to have become aware, that he or she needs the statutory entitlement.
(6)
Nothing in section 9 of the Insurance Law Reform Act 1977 applies to the time limits specified in this section.
Compare: 1992, No. 13, s. 63(2), (2a)
62 Responsibility of insurer to make reasonable decisions
An insurer must make every decision on a claim on reasonable grounds.
63 Responsibilities of insured to assist in establishment of cover and entitlements
(1)
Every insured who lodges a claim under section 54 must, when reasonably required to do so by the insurer,—
(a)
Give the insurer a certificate by a registered health professional that deals with the matters, and contains the information, that the insurer requires:
(b)
Give the insurer any other relevant information that the insurer requires:
(c)
Authorise the insurer to obtain medical and other records that are or may be relevant to the claim:
(d)
Undergo examination by a registered health professional specified by the insurer, at the insurer’s expense:
(e)
Undergo assessment at the insurer’s expense.
(2)
Every such insured must give the insurer a statement in writing about any matters relating to the insured’s entitlement, or continuing entitlement, to a statutory entitlement that the insurer specifies, and must do so whenever the insurer requires such a statement.
(3)
If the insurer requires the insured to do so, the insured must make the statement referred to in subsection (2) as a statutory declaration or in a form supplied by the insurer.
Compare: 1992, No. 13, s. 64
64 Steps insurer takes to action claims
(1)
This section applies to a claim that is not a claim described in section 65(1).
(2)
The insurer must take the following steps as soon as practicable, and no later than 21 days, after the claim is lodged:
(a)
Investigate the claim—
(i)
At its own expense; and
(ii)
To the extent reasonably necessary to enable it to take the following steps in this subsection; and
(b)
Either—
(i)
Make its decision on the claim and give notice of it under section 72; or
(ii)
Decide that it cannot make its decision on the claim, or any other decision, without additional information, and ask the insured to agree to an extension of time of a particular length.
(3)
If the insured does not agree to any extension, the insurer must make its decision within 21 days after the claim was lodged.
(4)
If the insured agrees to the proposed extension, the insurer must take the following steps as soon as practicable, and no later than the expiry of the extension:
(a)
Make a reasonable request to the insured, or decide to make a request to another person, for the additional information; and
(b)
If the insurer makes a request to another person for the additional information, tell the insured about the making of the request and its nature; and
(c)
Make its decision on the claim and give notice of it under section 72.
(5)
The insurer and the insured may agree to further extensions after the extension referred to in subsection (4), and that subsection applies to any further extension, but the insurer’s decision on the claim must be made within 4 months of the claim being lodged.
65 Steps insurer takes to action complicated claims
(1)
This section applies to—
(a)
A claim for personal injury caused by a work-related gradual process, disease, or infection:
(b)
A claim for personal injury caused by medical misadventure:
(c)
A claim to which section 61(2) applies that is not declined on the ground of lateness.
(2)
The insurer must take the following steps as soon as practicable, and no later than 2 months, after the claim is lodged:
(a)
Investigate the claim—
(i)
At its own expense; and
(ii)
To the extent reasonably necessary to enable it to take the following steps in this subsection; and
(b)
Either—
(i)
Make its decision on the claim and give notice of it under section 72; or
(ii)
Decide that it cannot make its decision on the claim, or any other decision, without additional information, and tell the insured of the extension, which must not exceed 2 months, that will be required.
(3)
The insurer must take the following steps as soon as practicable, and no later than the expiry of the extension:
(a)
Make a reasonable request to the insured, or decide to make a request to another person, for the additional information; and
(b)
If the insurer proposes to make a request to another person for the additional information, tell the insured about the making of the request and its nature; and
(c)
Make its decision on the claim and give notice of it under section 72.
(4)
The insurer and the insured may agree to further extensions after the extension referred to in subsection (3), and that subsection applies to any further extension, but the insurer’s decision on the claim must be made within 9 months of the claim being lodged.
66 Failure to meet time limits, or to decide, is decision to accept
(1)
At the time when an insurer fails to comply with a time limit under section 64 or section 65, whichever applies, the insured has a decision that the insurer has accepted the claim.
(2)
An insurer to which subsection (1) applies must tell the insured—
(a)
That the time limit has expired without the insurer having made a decision; and
(b)
That the effect is that the insured has a decision that the insurer has accepted the claim.
Decisions on Cover and Entitlements
67 Decision on cover independent of acceptance of premium
(1)
The fact that an insurer accepts a premium does not of itself decide the question of whether or not an insured has cover.
(2)
The question of whether or not an insured has cover is determined by the provisions of this Act.
Compare: 1992, No. 13, s. 69
68 Decision on claim for ILO schedule injury
An insurer may decline a claim that a personal injury is a work-related personal injury of a kind described in section 32(3) only if the insurer establishes that—
(a)
The insured is not suffering from a personal injury of a kind described in the first column of Schedule 2; or
(b)
The insured’s personal injury has a cause other than his or her employment in 1 of the corresponding trades, industries, or processes listed in the second column of the schedule.
69 Decision on claim for deafness as personal injury caused by a work-related gradual process
An insurer actioning a claim for deafness as a personal injury caused by a work-related gradual process must assess the degree of deafness according to the prescribed conditions and test.
Compare: 1992, No. 13, s. 7(9)
70 Decision on claim for personal injury caused by medical misadventure
An insurer must obtain and have regard to independent advice from a suitably qualified person when actioning a claim for cover for personal injury caused by medical misadventure.
Compare: 1992, No. 13, ss. 5(9), 66(3)
71 Insurer must tell insured about review and appeal rights
The insurer must tell the insured that he or she has the right to apply for a review of any of the insurer’s decisions on the claim, including a decision under section 66, and must do so at a time appropriate to enable the insured to exercise the right.
72 Insurer must give notice of decisions
(1)
An insurer must give notice of its decision on a claim to the insured.
(2)
In the case of a claim for cover for a work-related personal injury to an employee (other than a private domestic worker), the insurer must give notice of its decision on the claim for cover under section 54(a) or (b) to the employer of the insured with whom the insurer has an accident insurance contract.
(3)
In the case of a claim for personal injury caused by medical error, the insurer must give notice of its decision on the claim for cover under section 54(a) or (b) to every registered health professional whose action or inaction was the ground of the claim.
(4)
Every notice given under this section must—
(a)
Be written; and
(b)
Contain the reasons for the decision; and
(c)
Give the insured general information about his or her rights to apply for a review or to appeal.
Compare: 1992, No. 13, s. 67(2)
73 Insurer may revise decisions
(1)
An insurer that considers it made a decision in error may revise the decision at any time, whatever the reason for the error.
(2)
A revision may—
(a)
Amend the original decision; or
(b)
Revoke the original decision and substitute a new decision.
(3)
Every amendment to a decision, and every substituted decision, is a fresh decision.
(4)
For the purposes of this section, every decision of the insured’s receiving insurer on the insured’s claim is a decision of the insured’s managing insurer.
Compare: 1992, No. 13, s. 67a
74 Managing insurer must keep claims files
Every managing insurer must keep every claim file for at least 10 years after the date of the latest action the insurer has recorded on the claim.
Part 5 First Week Compensation and Statutory Entitlements
75 “Insurer”
In this Part, “insurer”
means an insurer registered under section 201, while that registration continues under section 204, and includes—
(a)
The manager (in relation to an insured for whom the manager is required to provide entitlements):
(b)
An employer who, because of a risk sharing agreement with an insurer, is responsible for providing claims management services in relation to cover and statutory entitlements for the employer’s employees:
(c)
The administrator of an insurer, in the administrator’s role under Part 9:
(d)
The Regulator, in the Regulator’s role of meeting obligations of an insolvent insurer under Part 9:
(e)
The Regulator, in the Regulator’s role of applying the Non-Compliers Fund under section 268.
Employer’s Duty, Outside Accident Insurance Contract, to Pay First Week Compensation
76 Employee’s right to receive first week compensation
(1)
Compensation for loss of earnings is payable under this section to an insured who—
(a)
Has an incapacity resulting from a work-related personal injury for which he or she has cover; and
(b)
Was an employee immediately before his or her incapacity commenced.
(2)
The compensation payable is 80% of the amount of earnings as an employee lost by the employee, as a result of the incapacity, during the first week of incapacity.
(3)
For the purposes of this section, there is a presumption that the earnings the insured loses as a result of the incapacity is the difference between—
(a)
The insured’s earnings in the 7 days before his or her incapacity commenced; and
(b)
The insured’s earnings in the first week of incapacity. The presumption can be rebutted by proof to the contrary.
(4)
In this section, “earnings as an employee”
includes earnings as a shareholder-employee.
Compare: 1992, No. 13, s. 38(1)–(3)
77 Employer’s duty to pay first week compensation
(1)
The employer in whose employment the insured suffered the work-related personal injury is liable to pay all the first week compensation to which the insured is entitled.
(2)
Before paying first week compensation, the employer may require the employee to meet reasonable requirements as to the production of evidence of the personal injury such as, for example, the production of a certificate by a registered health professional nominated and paid by the employer.
(3)
An employer who fails to comply with subsection (1) commits an offence.
Compare: 1992, No. 13, s. 38(5), (6)
78 First week compensation is salary or wages for certain purposes
First week compensation is salary or wages payable to the employee for the purposes of—
(a)
Section 48 of the Employment Contracts Act 1991:
(b)
The Income Tax Act 1994:
(c)
The Tax Administration Act 1994:
(d)
This Act:
(e)
The laws relating to insolvency, receivership, and the winding up of companies.
Compare: 1992, No. 13, s. 38(4)
Entitlement to Statutory Entitlements
79 Who is entitled to statutory entitlements
(1)
An insured who has suffered a personal injury is entitled to 1 or more statutory entitlements if he or she—
(a)
Has cover for the personal injury; and
(b)
Is eligible under Schedule 1 for the entitlement or entitlements; and
(c)
Is one of the persons listed in subsection (2).
(2)
Subsection (1)(c) refers to—
(a)
A person to whom the manager is liable to provide 1 or more statutory entitlements under Part 10:
(b)
A person to whom the insurer is liable to provide statutory entitlements under an accident insurance contract with—
(i)
An employer under section 169; or
(ii)
A self-employed person under section 176; or
(iii)
A private domestic worker under section 180:
(c)
A person to whom an employer is liable to provide statutory entitlements, if the employer is, because of a risk sharing agreement with an insurer, responsible for providing claims management services in relation to cover and statutory entitlements for the employer’s employees:
(d)
A person to whom the insurer is liable to provide statutory entitlements under a contract with the Regulator under sections 254 or 272:
(e)
A person to whom the Regulator is liable to provide statutory entitlements under sections 252 or 268.
Treatment
80 Payment of treatment providers for acute treatment
(1)
In this section,—
“Insured”
means an insured who receives treatment for a personal injury from a treatment provider, who assesses the insured as likely to have cover for the personal injury:
“Treatment”
means treatment that—
(a)
Is treatment of a type that the insurer is liable to provide under Part 1 of Schedule 1; and
(b)
Is acute treatment; and
(c)
Is not a public health acute service.
(2)
An insured is not liable to pay that part of the treatment provider’s fee that is a statutory entitlement.
(3)
A treatment provider who wishes to seek payment of the part of the fee that is a statutory entitlement must seek it—
(a)
From the person specified in arrangements the treatment provider has made for being paid for treating people suffering personal injury covered by this Act; or
(b)
If the treatment provider has not made any such arrangements, from the insured’s receiving insurer.
(4)
A treatment provider seeking payment under subsection (3) must comply with the requirements of regulations, if any, made under section 400.
81 Limits on treatment providers in decisions on acute treatment
(1)
A treatment provider to whom an insured presents for treatment may exercise the clinical judgment described in section 14(1)(b) as to the urgency of the need for the treatment only if he or she is a treatment provider of a type appropriately qualified to make a clinical judgment of that kind.
(2)
A treatment provider qualified as required by subsection (1) who makes a clinical judgment that the treatment required is treatment of a type described in section 14(2)(a)(ii) must—
(a)
Ensure that the treatment is provided by a hospital and health service, wherever practicable; or
(b)
Have the insurer’s agreement to the treatment being provided in another way.
(3)
A treatment provider who is not qualified as required by subsection (1) must refer the insured to a treatment provider who is so qualified, and the visit to that treatment provider, on referral, is also regarded, for the purposes of section 14(1)(a), as the first visit to a treatment provider.
Weekly Compensation
82 Entitlement to weekly compensation depends on insured’s incapacity for employment and capacity for work
(1)
An insured who has cover and who lodges a claim for weekly compensation—
(a)
Is entitled to receive it for each employment for which the insurer determines the insured to be incapacitated within the meaning of section 85(2) to (5), if the insured is eligible under clause 7 of Schedule 1 for weekly compensation:
(b)
Is entitled to receive it if the insurer determines that the insured is incapacitated within the meaning of section 87(2) and if the insured is eligible under clause 22 of Schedule 1 for weekly compensation:
(c)
Is not entitled to receive it—
(i)
For any employment that the insurer determines, under section 85, the insured is able to engage in; or
(ii)
If the insurer determines that the insured is not incapacitated within the meaning of section 87(2); or
(iii)
If the insured is not eligible under clause 7 or clause 22 of Schedule 1 for weekly compensation.
(2)
While an insured is receiving weekly compensation,—
(a)
Section 85 or section 87, as the case may be, continues to apply to the insured; and
(b)
The insurer may from time to time determine the insured’s incapacity under section 85 or section 87, as the case may require; and
(c)
Section 89 also applies to the insured; and
(d)
The insurer may from time to time determine the insured’s capacity for work under section 89.
(3)
The insured may lose his or her entitlement to weekly compensation through the operation of sections 85 to 90.
Compare: 1992, No. 13, s. 37
83 Procedures for determining incapacity for employment and capacity for work
(1)
An insurer required or allowed by this Act to determine an insured’s incapacity for employment must do so under section 85 or section 87.
(2)
An insurer required or allowed by this Act to determine an insured’s capacity for work must do so under sections 89 to 100.
Incapacity for Employment
84 Insurer’s procedure in determining incapacity under section 85 or section 87
(1)
The insurer may determine any question under section 85 or section 87 from time to time.
(2)
In determining any such question, the insurer—
(a)
Must consider an assessment undertaken by a registered Medical practitioner; and
(b)
May obtain any professional, technical, specialised, or other advice from any person it considers appropriate.
85 Insurer to determine incapacity of insured who, at time of incapacity, was earner
(1)
The insurer must determine under this section the incapacity of an insured who was an earner at the time he or she suffered the personal injury.
(2)
The question that the insurer must determine is whether the insured is unable, because of his or her personal injury, to engage in every part of every employment in which he or she was employed when he or she suffered the personal injury.
(3)
If the answer under subsection (2) is that the insured is unable to engage in every part of every such employment, the insured is incapacitated for every such employment.
(4)
If the answer under subsection (2) is that the insured is unable to engage in 1 or more of the employments, the insured is incapacitated for every employment he or she is unable to engage in.
(5)
If the answer under subsection (2) is that the insured is unable to engage in a part of an employment, the insured is incapacitated for that employment.
Compare: 1992, No. 13, s. 37a
86 Effect of determination under section 85 on entitlement to weekly compensation
(1)
If the insurer determines under section 85(2) that the insured is incapacitated for any of the employments in which he or she was engaged when he or she suffered the personal injury, subsection (2) applies in relation to any employment that the insured is incapacitated for, and subsection (3) applies in relation to any employment that the insured is able to engage in.
(2)
An insured—
(a)
Who is receiving weekly compensation for any employment that he or she is incapacitated for is entitled to continue receiving it for that employment or those employments:
(b)
Who is not receiving weekly compensation for any employment that he or she is incapacitated for is entitled to begin receiving it for that employment or those employments.
(3)
An insured—
(a)
Who is receiving weekly compensation for loss of earnings from 1 or more employments that he or she is able to engage in—
(i)
Loses that entitlement immediately; and
(ii)
Cannot be subject to a determination under section 89 in respect of that employment or those employments:
(b)
Who is not receiving weekly compensation for loss of earnings from that or those employments is not entitled to begin receiving it for that employment or those employments.
Compare: 1992, No. 13, s. 37a
87 Insurer to determine incapacity of insured who, at time of incapacity, had ceased to be an employee, was a potential earner, or had made election under section 286
(1)
The insurer must determine under this section the incapacity of an insured who—
(a)
Is deemed under clause 19 of Schedule 1 to continue to be an employee; or
(b)
Is a potential earner; or
(c)
Has made an election under section 286.
(2)
The question that the insurer must determine is whether the insured is unable, because of his or her personal injury, to engage in work for which he or she is suited by reason of experience, education, or training, or any combination of those things.
Compare: 1992, No. 13, s. 37b
88 Effect of determination under section 87 on entitlement to weekly compensation
If the insurer determines under section 87(2) that the insured is able to engage in work for which he or she is suited by reason of experience, education, or training, or any combination of those things,—
(a)
An insured who is receiving weekly compensation—
(i)
Loses that entitlement immediately; and
(ii)
Cannot be subject to a determination under section 89:
(b)
An insured who is not receiving weekly compensation is not entitled to begin receiving it.
Compare: 1992, No. 13, s. 37b
Capacity for Work
89 Insurer to determine capacity for work
(1)
The insurer may determine the capacity for work of—
(a)
An insured who is receiving weekly compensation:
(b)
An insured who may have an entitlement to weekly compensation:
(c)
An insured who is receiving, or may have an entitlement to receive, weekly compensation under clause 71 of Schedule 1.
(2)
The insurer determines an insured’s capacity for work by requiring the insured to participate in an assessment carried out—
(a)
In accordance with sections 93 to 100; and
(b)
At the insurer’s expense.
(3)
The insurer may require the insured to participate in such an assessment at any time that the insurer considers appropriate after the insured has completed any vocational rehabilitation that the insurer was liable to provide under his or her individual rehabilitation plan.
(4)
The insurer may determine the insured’s capacity for work at such reasonable intervals as the insurer considers appropriate.
(5)
However, the insurer must determine the insured’s capacity for work again if—
(a)
The insurer has previously determined that the insured had a capacity for work, either under—
(i)
This section; or
(ii)
Section 51 of the Accident Rehabilitation and Compensation and Insurance Act 1992; and
(b)
The insurer believes, or should reasonably believe, that the insured’s capacity for work may have deteriorated since the previous determination.
(6)
The insured may give the insurer information to assist the insurer to reach a belief under subsection (5)(b).
Compare: 1992, No. 13, s. 51(4), (5), (6)
90 How determination that insured has capacity for work is to be regarded
If the insurer determines under section 89 that an insured has a capacity for work, the determination is to be regarded as—
(a)
A determination under section 85 that the insured is able to engage in every part of every employment in which he or she was employed when he or she suffered the personal injury, in relation to an insured to whom that section applies, but section 91 applies instead of section 86(3)(a)(i); or
(b)
A determination under section 8 7 that the insured is able to engage in work for which he or she is suited by reason of experience, education, or training, or any combination of those things, in relation to an insured to whom that section applies, but section 91 applies instead of section 88(a)(i).
Compare: 1992, No. 13, s. 51(7)
91 Insured with capacity for work loses entitlement to weekly compensation
If the insurer determines under section 89 that an insured has a capacity for work, the insured loses his or her entitlement to weekly compensation 3 months after the date on which he or she is notified of the determination.
Compare: 1992, No. 13, s. 49
92 Insured who no longer has capacity for work regains entitlement to weekly compensation
1)
If the insurer determines under section 89(5) that an insured no longer has a capacity for work, the insured regains his or her entitlement to weekly compensation, and the regained entitlement starts from the date of the determination or an earlier date determined by the insurer.
(2)
On regaining entitlement to weekly compensation, the insured is entitled to it at the higher of the following rates:
(a)
The rate of compensation to which the insured was entitled when he or she lost the entitlement, adjusted for the intervening period in the manner provided in section 102; or
(b)
The rate of compensation to which the insured is entitled under Part 2 of Schedule 1, calculated at the time that he or she regains the entitlement.
Compare: 1992, No. 13, s. 51(6)(b)
Process for Assessment of Capacity for Work
93 Notice to insured in relation to assessment of capacity for work
(1)
The insurer must give written notice to an insured required by the insurer to participate in an assessment of his or her capacity for work.
(2)
The notice must—
(a)
State the purpose, nature, and effect of the assessment; and
(b)
State that the insured is required to participate in the assessment; and
(c)
State the consequences of not doing so; and
(d)
State the insured’s right to be accompanied by another person during the assessment.
94 Conduct of assessment of capacity for work
(1)
An assessment of an insured’s capacity for work must consist of—
(a)
An occupational assessment; and
(b)
A medical assessment.
(2)
The purpose of an occupational assessment is to identify types of employment that are suitable for the insured because they match the skills that the insured has gained through education, training, or experience.
(3)
The purpose of a medical assessment is to provide an opinion for the insurer as to whether, having regard to the insured’s personal injury, the insured has the capacity to undertake any type of employment identified in the occupational assessment.
95 Occupational assessor
An occupational assessment must be undertaken by an assessor who has the appropriate qualifications and experience to do the assessment required in the particular case.
96 Conduct of occupational assessment
An occupational assessor undertaking an occupational assessment must—
(a)
Take into account any information provided by the insurer and the insured; and
(b)
Discuss with the insured all the types of employment that the assessor identifies as suitable for the insured; and
(c)
Consider any comments the insured makes to the assessor about those types of employment.
97 Report on occupational assessment
(1)
The occupational assessor must prepare a report on the occupational assessment specifying—
(a)
The insured’s work experience; and
(b)
The insured’s education, including any incomplete formal qualifications; and
(c)
Any work-related training in which the insured has participated; and
(d)
All skills that the assessor has identified the insured as having; and
(e)
All types of employment identified as suitable for the insured; and
(f)
In relation to each type of employment, the requirements of that type of employment.
(2)
The occupational assessor must give a copy of the report to the insurer, the insured, and the medical assessor.
98 Medical assessor
(1)
A medical assessment must be undertaken by a registered medical practitioner who—
(a)
Holds vocational registration under the Medical Practitioners Act 1995; and
(b)
Is described in subsection (2) or subsection (3).
(2)
A person who holds vocational registration in general practice must also—
(a)
Have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and
(b)
Have at least 5 years experience in general practice; and
(c)
Meet at least 1 of the following criteria:
(i)
Be a fellow of the Royal New Zealand College of General Practitioners or hold an equivalent qualification:
(ii)
Be undertaking training towards attaining fellowship of the Royal New Zealand College of General Practitioners or an equivalent qualification:
(iii)
Have undertaken relevant advanced training.
(3)
A person who holds vocational registration in another branch or sub-branch of medicine must also—
(a)
Have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and
(b)
Be a member of a recognised college.
99 Conduct of medical assessment
A medical assessor undertaking a medical assessment must take into account—
(a)
Any information provided to the assessor by the insurer; and
(b)
Any individual rehabilitation plan prepared for the insured; and
(c)
Any of the following medical reports provided to the assessor:
(i)
Medical reports requested by an insurer before the individual rehabilitation plan was prepared:
(ii)
Medical reports received during the insured’s rehabilitation; and
(d)
The report of the occupational assessor; and
(e)
The medical assessor’s clinical examination of the insured; and
(f)
Any other information or comments that the insured requests the medical assessor to take into account and that the medical assessor decides are relevant.
100 Report on medical assessment
(1)
The medical assessor must prepare a report on the medical assessment specifying—
(a)
Relevant details about the insured, including details of the insured’s injury; and
(b)
Relevant details about the clinical examination of the insured undertaken by the assessor, including the methods used and the assessor’s Endings from the examination; and
(c)
The results of any additional assessments of the insured’s condition; and
(d)
The assessor’s opinion of the insured’s capacity for work for each of the types of employment identified in the occupational assessor’s report; and
(e)
Any comments made by the insured to the assessor relating to the insured’s injury and capacity for work in the types of employment identified in the occupational assessor’s report.
(2)
The report must also identify any conditions that—
(a)
Prevent the insured from having a capacity for work; and
(b)
Are not related to the insured’s injury.
(3)
The medical assessor must give a copy of the report to the insurer and the insured.
Interest on Late Payments of Weekly Compensation
101 Payment of interest when insurer makes late payment of weekly compensation
(1)
The insurer is liable to pay interest on any payment of weekly compensation to which the insured is entitled, if the insurer has not made the payment within 1 month after the insurer has received all information necessary to enable the insurer to calculate and make the payment.
(2)
The insurer is liable to pay the interest—
(a)
At the rate for the time being prescribed by, or for the purposes of, section 87 of the Judicature Act 1908; and
(b)
From the date on which payment should have been made to the date on which it is made.
Compare: 1992, No. 13, s. 72
Indexation of Weekly Compensation and Related Amounts
102 Indexation of weekly compensation and related amounts
(1)
The insurer must adjust the following amounts in the manner specified in subsection (2):
(a)
The amount of weekly compensation:
(b)
The amount specified in paragraph (b) of the definition of the term “other dependant”
in section 13:
(c)
The amounts specified in paragraph (e) of the definition of the term “potential earner”
in section 13:
(d)
The amounts specified in clauses 13, 15, 18, 21, 22, 24, and 71 of Schedule 1.
(2)
Any adjustments required by subsection (1) must—
(a)
Be in accordance with a prescribed formula or prescribed formulas relating to movements in average weekly earnings; and
(b)
Have effect from the prescribed date.
Compare: 1992, No. 13, s. 70
Indexation of Other Statutory Entitlements
103 Indexation of independence allowance, funeral grant, and survivor’s grant
(1)
The insurer must adjust the amounts specified in clauses 62, 65, and 66 of Schedule 1 in the manner specified in subsection (2).
(2)
Any adjustments required by subsection (1) must—
(a)
Be in accordance with a prescribed formula or prescribed formulas relating to movements in the Consumer Price Index; and
(b)
Have effect from the prescribed date.
Compare: 1992, No. 13, s. 71
When Managing Insurer Reimburses Receiving Insurer
104 Receiving insurer with only initial liability entitled to reimbursement
The insured’s managing insurer must reimburse the receiving insurer for any statutory entitlement provided to the insured that the managing insurer is liable to provide, and any associated costs, if the receiving insurer is entitled to reimbursement because its liability to the insured is only its initial liability (as described in section 51(1)).
Which Insurer Provides Statutory Entitlements When Insured Suffers a Work-related Personal Injury and Has Earnings From More Than 1 Source
105 “Insured”
and “managing insurer”
in this section and sections 106 and 114
(1)
In this section and sections 106 and 114, “insured”
means a person described in subsection (2) or subsection (3).
(2)
This subsection applies to a person—
(a)
Who suffers a work-related personal injury for which he or she has cover (other than a work-related personal injury to which any of sections 109 to 113 applies); and
(b)
Who, at the time he or she suffered the work-related personal injury, was receiving earnings from 2 or more sources of the following kinds:
(i)
An employer:
(ii)
The insured’s work as a self-employed person:
(iii)
The insured’s work as a private domestic worker:
(iv)
Weekly compensation.
(3)
This subsection applies to a person—
(a)
Who suffers a work-related personal injury for which he or she has cover (other than a work-related personal injury to which any of sections 109 to 113 applies); and
(b)
Who, at the time he or she suffered the work-related personal injury, was receiving earnings from 1 or more sources of the following kinds:
(i)
An employer:
(ii)
The insured’s work as a self-employed person:
(iii)
The insured’s work as a private domestic worker:
(iv)
Weekly compensation; and
(c)
Who, at the time he or she suffered the work-related personal injury, was a potential earner.
(4)
In this section and sections 106 and 114, “managing insurer”
means—
(a)
The insurer under the employer’s accident insurance contract, if the insured suffered the work-related personal injury while employed by that employer; or
(b)
The insured’s insurer, if the insured suffered the work-related personal injury in any other circumstances.
106 Managing insurer not entitled to contributions
The insured’s managing insurer is not entitled to a contribution from any other insurer towards the provision of statutory entitlements to the insured for the work-related personal injury.
Which Insurers Provide or Contribute to Statutory Entitlements When Insured Suffers a Non-work Injury and Has Earnings as an Employee and Is a Self-employed Person with an Accident Insurance Contract
107 “Contributing insurer”
, “insured”
, and “managing insurer”
in this section and sections 108 and 114
In this section and sections 108 and 114,—
“Contributing insurer” means an insurer that is liable to provide any statutory entitlement to the insured for the non-work injury:
“Insured” means a person—
(a)
Who suffers a non-work injury for which he or she has cover; and
(b)
Who has earnings as an employee; and
(c)
Who is a self-employed person who has an accident insurance contract:
“Managing insurer” means the insurer that, at the time when an insured’s weekly compensation is first determined, is liable to provide the greatest amount of weekly compensation to the insured for the non-work injury.
108 Managing insurer entitled to contributions
(1)
The managing insurer is entitled to recover a proportion of the costs of providing statutory entitlements to the insured, and any associated costs, from each contributing insurer.
(2)
Each insurer’s proportion of the costs is calculated using the following formula:
a ÷ b
where
a
is the amount of that insurer’s liability to provide weekly compensation to the insured
b
is the total amount of liability of all the insured’s insurers to provide weekly compensation to the insured.
Which Insurers Provide or Contribute to Statutory Entitlements for Personal Injury Caused by a Work-related Gradual Process, Disease, or Infection
109 “Contributing insurer”
, “insured”
, and “managing insurer”
in this section and sections 110, 111, and 114
In this section and sections 110, 111, and 114,—
“Contributing insurer” means each of the following insurers that is not the managing insurer:
(a)
The insurer of every employer in whose employment the insured performed a task, or worked in an environment, in the circumstances described in section 33(2), if that task or environment contributed to the insured’s personal injury; or
(b)
The insured’s insurer if, when the insured was a self-employed person or private domestic worker, he or she performed a task, or worked in an environment, in the circumstances described in section 33(2), if that task or environment contributed to the insured’s personal injury; or
(c)
The manager, if the insured suffered the personal injury before 1 July 1999 as a result of performing a task, or working in an environment, in the circumstances described in section 33(2):
“Insured” means an insured who suffers personal injury caused by a work-related gradual process, disease, or infection for which he or she has cover:
“Managing insurer” means—
(a)
The insurer under the employer’s accident insurance contract at the time the insured suffers the injury; or
(b)
The insurer of the insured, if the insured is a self-employed person or private domestic worker at the time he or she suffers the injury; or
(c)
The manager, if the insured has ceased to be an earner.
110 Managing insurer entitled to contributions on duration basis when Residual Claims Account involved
(1)
This section applies if a contributing insurer is the manager in its role as manager of the Residual Claims Account.
(2)
The managing insurer is entitled to recover a proportion of the costs of providing entitlements to the insured, and any associated costs, from each contributing insurer equivalent to the periods of time the insured spent in employment with each employer, or in self-employment, or as a private domestic worker, as the case may be.
111 Managing insurer entitled to contributions on contribution to injury basis when Residual Claims Account not involved
(1)
This section applies if the manager in its role as manager of the Residual Claims Account is not a contributing insurer.
(2)
The managing insurer is entitled to recover a proportion of the costs of providing entitlements to the insured, and any associated costs, from each contributing insurer equivalent to the contribution that employment with each employer, or in self-employment, or as a private domestic worker, as the case may be, made to the insured’s personal injury.
Which Insurers Contribute to Statutory Entitlements for Subsequent Injury
112 “Contributing insurer”
, “insured”
, “managing insurer”
, “previous personal injury”
, and “subsequent injury”
in this section and in sections 113 and 114
In this section and in sections 113 and 114,—
“Contributing insurer” means—
(a)
The insurer under the employer’s accident insurance contract at the time that the insured suffered the previous personal injury, if the insured’s previous personal injury was a work-related personal injury he or she suffered as an employee; or
(b)
The insurer that insured the insured for the injury, if the insured suffered the previous personal injury while a self-employed person with an accident insurance contract; or
(c)
The insurer that insured the insured for the injury, if the insured suffered the previous personal injury while a private domestic worker with an accident insurance contract; or
(d)
The manager, if the insured’s previous personal injury was not an injury insured under an accident insurance contract:
“Insured” means an insured who suffers a subsequent injury:
“Managing insurer” means—
(a)
The insurer under the employer’s accident insurance contract at the time that the insured suffers the subsequent injury, if the insured’s subsequent injury is a work-related personal injury he or she suffers as an employee; or
(b)
The insurer that insured the insured for the injury, if the insured suffers the subsequent injury while a self-employed person with an accident insurance contract; or
(c)
The insurer that insured the insured for the injury, if the insured suffers the subsequent injury while a private domestic worker with an accident insurance contract; or
(d)
The manager, if the insured’s subsequent injury is not an injury insured under an accident insurance contract:
“Previous personal injury” means a personal injury suffered on or after 1 July 1999 and before a subsequent injury:
“Recurrence”, in relation to a previous personal injury, means a recurrence of the effects of the injury, if the recurrence is—
(a)
Directly attributable to the previous personal injury; or
(b)
Not directly attributable to an intervening incident:
“Subsequent injury” means a personal injury that—
(a)
Is suffered on or after 1 July 1999 by an insured who, before suffering it, had been incapacitated by a previous personal injury; and
(b)
Causes an incapacity that is substantially greater than that which would have resulted from the subsequent injury alone, because of the combined effects of the previous personal injury and the subsequent injury; and “subsequent injury”
also includes a recurrence of a previous personal injury if the recurrence occurs on or after 1 July 1999.
113 Managing insurer entitled to contributions
(1)
A managing insurer who provides statutory entitlements to an insured for a subsequent injury is entitled to recover a proportion of the costs of providing the statutory entitlements, and any associated costs from a contributing insurer.
(2)
The proportion corresponds to the contribution of the previous personal injury to the effect of the subsequent injury.
114 Insured’s cover and entitlements not affected by sections 104 to 113
Nothing in sections 104 to 113 affects an insured’s cover or statutory entitlements.
Responsibilities of Insured
115 Responsibilities of insured who receives statutory entitlement
(1)
An insured who receives any statutory entitlement must, when reasonably required to do so by the insurer,—
(a)
Give the insurer a certificate by a registered health professional that deals with the matters, and contains the information, that the insurer requires:
(b)
Give the insurer any other relevant information that the insurer requires:
(c)
Authorise the insurer to obtain medical and other records that are or may be relevant to the claim:
(d)
Undergo assessment by a registered health professional specified by the insurer, at the insurer’s expense:
(e)
Undergo assessment, at the insurer’s expense:
(f)
Co-operate with the insurer in the development and implementation of an individual rehabilitation plan:
(g)
Undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the insurer’s expense:
(h)
Participate in rehabilitation in order to endeavour to terminate or reduce the extent of any disability, impairment, or incapacity.
(2)
Every such insured must give the insurer a statement in writing about any matters relating to the insured’s entitlement, or continuing entitlement, to a statutory entitlement that the insurer specifies, and must do so whenever the insurer requires such a statement.
(3)
If the insurer requires the insured to do so, the insured must make the statement referred to in subsection (2) as a statutory declaration or in a form supplied by the insurer.
Compare: 1992, No. 13, s. 64
Powers of Insurer
116 Insurer may suspend or decline statutory entitlements
(1)
An insurer may suspend a statutory entitlement if it is not satisfied, on the basis of the information in its possession, that an insured is entitled to continue to receive the statutory entitlement.
(2)
The insurer must give the insured written notice of the proposed suspension within a reasonable period before the proposed starting date.
(3)
An insurer may decline to provide any statutory entitlement for as long as an insured unreasonably refuses or unreasonably fails to—
(a)
Comply with any requirement of this Act relating to the insured’s claim; or
(b)
Undergo medical or surgical treatment, to be provided by the insurer, for his or her personal injury; or
(c)
Agree to, or comply with, an individual rehabilitation plan.
Compare: 1992, No. 13, s. 73
Disentitlements
117 Disentitlement for refusing hearing test: personal injury caused by a work-related gradual process
An insurer is not liable to provide an insured with statutory entitlements for deafness caused by a work-related gradual process suffered during his or her employment in a prescribed industry or place of employment, if—
(a)
The insured has refused to undergo the prescribed baseline hearing test; and
(b)
The insured had, at the time of refusing, written notice from his or her employer of the consequences of refusing.
Compare: 1992, No. 13, s. 7(11), (12)
118 Disentitlement for misrepresentation: personal injury caused by a work-related gradual process, disease, or infection
(1)
An insurer is not liable to provide an insured with statutory entitlements for personal injury caused by a work-related gradual process, disease, or infection, if—
(a)
The insured made the representation described in subsection (2) in writing to the employer before starting employment; and
(b)
The insured made the representation in response to a request by the employer for information about whether the insured was then suffering, or had ever suffered, from—
(i)
A specified type of personal injury caused by a work-related gradual process, disease, or infection; or
(ii)
A specified type of condition likely to contribute materially to that type of personal injury caused by a work-related gradual process, disease, or infection; and
(c)
The insured made the representation knowing it to be untrue.
(2)
The representation is that the insured was not suffering, and had not suffered, from the specified type of personal injury or the specified type of condition.
(3)
This section does not excuse an insurer from liability to provide an insured with statutory entitlements if the information requested by the employer was not reasonably relevant to the employment referred to in subsection (1)(a).
Compare: 1992, No. 13, s. 7(6)
119 Disentitlement because proceedings brought: personal injury caused by a work-related gradual process, disease, or infection
(1)
An insurer is not liable to provide an insured with statutory entitlements for personal injury caused by a work-related gradual process, disease, or infection, if—
(a)
Subsections (2) and (3) apply to the insured; or
(b)
Subsections (2) and (4) apply to the insured; or
(c)
Subsections (2) and (5) apply to the insured.
(2)
This subsection applies to an insured who suffered the personal injury because, before 1 April 1974, he or she performed a task, or worked in an environment, in the circumstances described in section 33(2).
(3)
This subsection applies to an insured who—
(a)
Commenced, before 1 April 1993, any proceedings relating to his or her personal injury, other than under this Act; and
(b)
Has received or is entitled to receive a sum of money, irrespective of the amount, as a result of the proceedings.
(4)
This subsection applies to an insured who has received, other than under subsection (3), a sum of money, irrespective of the amount, by way of damages, compensation, or settlement of any claim for his or her personal injury, other than under this Act.
(5)
This subsection applies to an insured who—
(a)
Commenced, before 1 April 1993, any proceedings relating to his or her personal injury, other than under this Act; and
(b)
Has not discontinued the proceedings; and Is entitled, because of section 395(3), to complete the proceedings.
Compare: 1992, No. 13, ss. 11(1)–(3), 14, 17
120 Disentitlement for wilfully self-inflicted personal injuries and suicide
(1)
An insurer is not liable to provide any statutory entitlement under any of Parts 2 to 5 of Schedule 1 for—
(a)
A personal injury that an insured wilfully inflicts on himself or herself, or, with intent to injure himself or herself, causes to be inflicted upon himself or herself; or
(b)
The death of an insured due to an injury inflicted in the circumstances described in paragraph (a); or
(c)
The death of an insured due to suicide.
(2)
This section does not excuse an insurer from liability to provide an insured with statutory entitlements if the personal injury or death was the result of mental injury for which the insured had cover.
Compare: 1992, No. 13, s. 81
121 Disentitlement for conviction for murder
(1)
An insurer is not liable to provide any statutory entitlement under Part 5 of Schedule 1 to an insured, as defined in section 22(2)(b), if the insured has been convicted of the murder of the deceased insured.
(2)
An insurer must suspend any statutory entitlement that the insurer is liable to provide under Part 5 of Schedule 1 to the insured because of the death of the deceased insured, if the insured has been charged with the murder of the deceased insured. The suspension lasts until the proceedings in respect of the charge are finally determined or the charge is withdrawn.
(3)
A statutory entitlement provided to an insured under Part 5 of Schedule 1 becomes a debt due to the insurer, and may be recovered in any court of competent jurisdiction, if—
(a)
The insurer has provided the statutory entitlement because of the death of the deceased insured; and
(b)
The insured has been convicted by a court in any country of the murder of the deceased insured.
(4)
In this section, “murder”
—
(a)
Means murder within the meaning of the Crimes Act 1961; and
(b)
Includes any killing of a person outside New Zealand that would, if done in New Zealand, have amounted to murder.
Compare: 1992, No. 13, s. 82
122 Disentitlement during imprisonment
An insurer is not liable to provide any statutory entitlements under any of Parts 2, 4, or 5 of Schedule 1 to an insured in respect of any period during which the insured is an inmate in any penal institution (“inmate”
and “penal institution”
being defined in the Penal Institutions Act 1954).
Compare: 1992, No. 13, s. 83
123 Court may deny statutory entitlements to previously imprisoned offender
(1)
An insurer may apply to a District Court in the following circumstances:
(a)
An insured suffers personal injury in the course of committing an offence; and
(b)
The insured is sentenced to imprisonment for committing the offence; and
(c)
The insurer would, but for this section, be liable to provide statutory entitlements to the insured for the personal injury; and
(d)
The insurer is aware of the insured’s sentence.
(2)
The application must ask for a determination, in relation to the statutory entitlements that the insurer is liable to provide to the insured, that either—
(a)
The insurer must provide them all when the insured is released from a penal institution (as defined in the Penal Institutions Act 1954); or
(b)
The insurer must not provide 1 or more specified statutory entitlements, either wholly or partly, at any time because it would be repugnant to justice for the insured to receive it or them.
(3)
In determining whether it would be repugnant to justice for the insured to receive a specified statutory entitlement, the court must have regard, without limitation, to the following matters:
(a)
The harm caused by the insured’s offence; and
(b)
The gravity of the offence; and
(c)
The insured’s personal culpability for the offence; and
(d)
The extent of other penalties the insured has already suffered because of the offence; and
(e)
The insured’s personal circumstances; and
(f)
The nature of the statutory entitlement; and
(g)
The strength of the insured’s need for the statutory entitlement; and
(h)
The resources the insured has to meet that need.
(4)
The insurer is liable to provide the statutory entitlements until the court makes a determination to the contrary under subsection (2)(b), if the insured is no longer imprisoned and no determination has been made under subsection (2)(b).
(5)
Every application to a District Court under this section must be made by originating application.
Compare: 1992, No. 13, s. 84
General Provisions
124 Entitlements inalienable
(1)
All statutory entitlements are absolutely inalienable, whether by way of, or in accordance with, a sale, assignment, charge, execution, bankruptcy, or otherwise.
(2)
This section does not affect—
(a)
Any right of any insurer to recover any amounts under this Act or to make any deductions authorised by this Act from any entitlements that the insurer is liable to provide; or
(b)
An independence allowance that is assigned for a period of not more than 5 years to—
(i)
An insurer; or
(ii)
A company within the meaning of the Life Insurance Act 1908; or
(c)
Sections 4 and 5 of the Maori Housing Act 1935; or
(d)
Sections 84f to 84m of the District Courts Act 1947; or
(e)
Sections 87(1)(b), 88(3)(a), 103, 104, 105, 106, 106a, and 106b of the Summary Proceedings Act 1957; or
(f)
Section 27y of the Social Security Act 1964 (as saved by section 256(1) of the Child Support Act 1991) or sections 71 and 86a of the Social Security Act 1964; or
(g)
Sections 105, 110, 118, and 121 of the Family Proceedings Act 1980 (as saved by section 259(1) of the Child Support Act 1991); or
(h)
The Child Support Act 1991; or
(i)
Part II or section 46 of the Student Loan Scheme Act 1992; or
(j)
Section 157 of the Tax Administration Act 1994.
Compare: 1992, No. 13, s. 86
125 Statutory entitlements to be provided to insured only
(1)
An insurer must provide statutory entitlements only to the insured to whom the insurer is liable to provide the entitlements.
(2)
Subsection (1) does not apply—
(a)
To payments made by the insurer directly to a person for delivering statutory entitlements to the insured; or
(b)
To payments authorised by regulations to be made to any other person; or
(c)
To an independence allowance that is assigned for a period of not more than 5 years to—
(i)
An insurer; or
(ii)
A company within the meaning of the Life Insurance Act 1908; or
(d)
To payments made under section 126 or section 127.
Compare: 1992, No. 13, s. 87
126 Insurer to pay amount for child to caregiver or financially responsible person
(1)
This section applies if a statutory entitlement (other than weekly compensation payable under clause 7 of Schedule 1) provided to an insured who is not yet 16 years old is solely a payment of money.
(2)
The insurer must make the payment—
(a)
To a person who is caring for the insured; or
(b)
If the insurer considers that it would not be appropriate to make the payment to such a person, to another person or to trustees who, in either case, the insurer considers will apply the payment as required by subsection (3).
(3)
A person to whom a payment is made under subsection (2) must apply it for the maintenance, education, advancement, or benefit of the insured.
(4)
The insurer is not under an obligation to see to the application of any money paid under this section, and is not liable to the insured in respect of any such payment.
127 Insurer to pay amount to insured’s estate
(1)
This section applies to any statutory entitlement that is a payment that an insurer—
(a)
Is liable to make to an insured, but that has accrued and is unpaid at the date of the insured’s death; or
(b)
Would have been liable to make to the insured, if he or she had lodged a claim for it.
(2)
The insurer must pay any amount to which this section applies to the insured’s estate, if the estate applies for it within 3 years after the date of the insured’s death.
Compare: 1992, No. 13, s. 85
128 Payment of weekly compensation or independence allowance to insured outside New Zealand
(1)
An insurer is not liable to pay weekly compensation to an insured who suffered personal injury outside New Zealand for which he or she has cover, and who is not for the time being in New Zealand, unless he or she—
(a)
Had earnings while absent from New Zealand before suffering the personal injury; or
(b)
Had earnings within the period of 6 months immediately before leaving New Zealand.
(2)
An insurer is not liable to pay weekly compensation to an insured outside New Zealand, if his or her entitlement to it is based on earnings in employment in New Zealand that, under the Immigration Act 1987, he or she was not lawfully entitled to undertake.
(3)
An insurer is not liable to pay any weekly compensation or independence allowance to an insured outside New Zealand unless his or her condition has been assessed for the purposes of this Act by a person approved for the purpose by the insurer.
(4)
If weekly compensation or an independence allowance is payable outside New Zealand and the insured’s continuing right to receive that compensation or allowance is to be assessed, the insurer is not liable to meet—
(a)
Any costs incurred by the insured overseas; or
(b)
Any costs relating to the return of the insured to New Zealand for assessment in excess of the costs that the insurer would be liable to meet if the insured had remained in New Zealand.
Compare: 1992, No. 13, s. 88(3)–(6)
129 Payment for treatment or rehabilitation to insured outside New Zealand
An insurer is not liable to pay for costs incurred outside New Zealand for any treatment or rehabilitation, unless section 130 applies or regulations made under this Act require such a payment.
Compare: 1992, No. 13, s. 88(2)
130 Payment for attendant care to insured outside New Zealand
(1)
An insurer is liable to pay for attendant care for an insured who is entitled to receive attendant care and who is outside New Zealand.
(2)
The insurer is not liable to pay for attendant care for longer than 28 days in each period during which the insured is outside New Zealand.
(3)
The insurer is liable to pay the amount that the insured would have received if he or she had been in New Zealand during the period he or she is outside New Zealand.
131 Payment of survivor’s grant to insured outside New Zealand
An insurer is liable to pay a survivor’s grant to an insured who is entitled to receive it and who is outside New Zealand.
Compare: 1992, No. 13, s. 88(1)
132 Payment to insured outside New Zealand may be in New Zealand dollars to New Zealand bank account
(1)
An insurer may make any payment to an insured outside New Zealand in New Zealand dollars to a New Zealand bank account.
(2)
The insurer may open an account at a New Zealand bank in the insured’s name, and at his or her expense, for that purpose.
Compare: 1992, No. 13, s. 88(7)
Part 6 Dispute Resolution
Preliminary Provisions
133 “Insurer”
In this Part, “insurer”
means an insurer registered under section 201, while that registration continues under section 204, and includes—
(a)
The manager (in relation to an insured for whom the manager is required to provide entitlements):
(b)
The administrator of an insurer, in the administrator’s role under Part 9:
(c)
The Regulator, in the Regulator’s role of meeting obligations of an insolvent insurer under Part 9:
(d)
The Regulator, in the Regulator’s role of applying the Non-Compliers Fund under section 268.
134 Effect of review or appeal on decisions
(1)
Every decision by an insurer on a claim continues to be of full effect even though—
(a)
An applicant has made a review application relating to the decision; or
(b)
Any other proceeding relating to the decision has been commenced.
(2)
Every review decision continues to be of full effect, unless subsection (3) applies, even though—
(a)
An appellant has filed a notice of appeal relating to the review decision; or
(b)
Any other proceeding relating to the review decision has been commenced.
(3)
A review decision ceases to be of full effect if both parties to the review application agree to a variation of it for the benefit of the insured.
(4)
If a person has a right to apply for a review or appeal about a matter, the person has no other remedy in relation to the matter, whether in any court, the Employment Tribunal, the Disputes Tribunal, or otherwise.
Compare: 1992, No. 13, s. 79; s. 89(7)
Reviews
135 Who may apply for review
(1)
The insured may apply to the insurer for a review of any of its decisions on the claim.
(2)
An employer may apply to the insurer for a review of its decision that an insured’s injury—
(a)
Is a work-related personal injury suffered during employment with that employer; or
(b)
Is attributable to that employer.
(3)
An employer may not apply to the insurer for a review of a decision about the entitlements to be provided to an insured who has cover for a work-related personal injury.
(4)
A registered health professional may apply to the insurer for a review of its decision that the registered health professional contributed to personal injury caused by medical error.
(5)
A premium payer may apply to the manager for a review under section 310.
(6)
An insurer may apply for a review of another insurer’s decision, to that other insurer, if the decision is about—
(a)
Whether an insurer is an insured’s managing insurer:
(b)
Whether an insurer is a contributing insurer:
(c)
The amount a managing insurer is liable to reimburse a receiving insurer under section 104:
(d)
The amount a contributing insurer is liable to contribute to the managing insurer under any of sections 108, 110, 111, or 113:
(e)
The amount the manager is liable to contribute to an insurer under section 451.
136 How to apply for review
(1)
A review application is made by giving an application that complies with subsection (2) to the insurer.
(2)
The application must—
(a)
Be written:
(b)
Be made on the form provided by the insurer for the purpose, if the insurer provides such a form:
(c)
Identify the decision or decisions in respect of which it is made:
(d)
State the grounds on which it is made:
(e)
Be made within 3 months of—
(i)
The date on which the insured has a decision under section 66; or
(ii)
The date on which the insurer gives notice under section 72.
Compare: 1992, No. 13, s. 89(5)
137 Insurer to acknowledge receipt of review application
An insurer who receives a review application must send the applicant an acknowledgement—
(a)
Indicating when the review application was made; and
(b)
Containing an explanation of the effect of sections 149 and 150.
138 Insurer to engage and allocate reviewers
(1)
Every insurer must engage at least 1 person, and as many additional persons as it considers necessary, to be a reviewer under this Part.
(2)
The insurer must—
(a)
Arrange for the allocation of each review to a reviewer; and
(b)
Arrange for the allocation of a new reviewer to a review that an existing reviewer is, for any reason, unable to finish.
Compare: 1992, No. 13, s. 90(1), (2)
139 “Accepted interests”
“Accepted interests”
means—
(a)
The interest that a reviewer has in an insurer because the insurer is responsible for paying the reviewer; and
(b)
The interest that a reviewer has in an insurer because the insurer is responsible for meeting all the costs incurred by the reviewer in conducting a review.
140 Reviewer’s duty to act independently
(1)
A reviewer must act independently when conducting a review.
(2)
The fact that accepted interests exist does not mean that the reviewer is not independent of the insurer.
141 Reviewer must disclose interests and previous involvement
(1)
A person asked by an insurer to become a reviewer must disclose to the insurer every interest that the person has in the insurer, other than the accepted interests.
(2)
A reviewer to whom an insurer proposes to allocate a review must disclose to the insurer any previous involvement that the reviewer has had in the claim other than as a reviewer.
Compare: 1992, No. 13, s. 90(2), (6)
142 Insurer’s duties to secure independence of reviewer
(1)
An insurer must not engage as a reviewer—
(a)
A person employed or engaged by the insurer to make decisions on claims in a capacity other than that of reviewer; or
(b)
A person who discloses to the insurer any interest in the insurer other than the accepted interests.
(2)
An insurer must engage reviewers on contracts for services.
(3)
An insurer must not include in the reviewer’s contract any term or condition that could have the effect, directly or indirectly, of influencing the reviewer, when conducting a review, in favour of the insurer.
(4)
An insurer must not allocate a claim to a reviewer who discloses to the insurer any previous involvement in the claim other than as a reviewer.
Compare: 1992, No. 13, s. 90(2), (6)
143 Conduct of review: general principles
The reviewer may conduct the review in any manner he or she thinks fit, but he or she must—
(a)
Comply with section 140; and
(b)
Comply with any other relevant provision of this Act and any regulations made under this Act; and
(c)
Comply with the principles of natural justice; and
(d)
Act in a timely manner.
144 Conduct of review: hearing to be held
(1)
In the course of conducting a review the reviewer must hold a hearing unless—
(a)
The applicant withdraws the review application; or
(b)
The applicant, the insurer, and all persons who would be entitled to be present and heard at the hearing agree not to have a hearing.
(2)
The reviewer must hold the hearing at a time and place that are—
(a)
Agreed to by the applicant, the insurer, and the reviewer; or
(b)
Decided on by the reviewer, if those persons do not agree.
(3)
The reviewer must take all practicable steps to ensure that notice of the time and place of the hearing is given—
(a)
To every person entitled to be present and heard at it; and
(b)
At least 7 days before the date of the hearing.
(4)
The reviewer may admit any relevant evidence at the hearing from any person who is entitled to be present and be heard at it, whether or not the evidence would be admissible in a court.
Compare: 1992, No. 13, s. 90
145 Persons entitled to be present and heard at hearing
The following persons are entitled to be present at the hearing, with a representative, if they wish, and to be heard at it, either personally or by a representative:
(a)
On every review, the applicant and the insurer:
(b)
If the applicant is a registered health professional, the insured:
(c)
If the review relates to a decision to accept or decline cover for personal injury caused by medical error, any registered health professional whose action or inaction was the ground of the claim:
(d)
If the review relates to a decision to accept or decline cover for a work-related personal injury,—
(i)
The insured; and
(ii)
The insured’s employer; and
(iii)
Any employer or insurer whose name the reviewer receives from the insured or from the insured’s employer or from the insurer so that notice can be given under section 144(3), if the name is that of any other employer of the insured, any former employer of the insured, or the insurer of any such employer; and
(iv)
The manager.
Compare: 1992, No. 13, s. 90
146 Record of hearing
(1)
The reviewer must ensure that an accurate record of the evidence given at the hearing is taken and provided to the insurer.
(2)
The insurer must keep the record for at least 2 years.
Compare: 1992, No. 13, s. 90
147 Review decisions: formalities
(1)
The reviewer must make a review decision within 28 days after—
(a)
The day on which the hearing of the review finishes; or
(b)
If there is no hearing,—
(i)
The day that the applicant, the insurer, and all persons who would be entitled to be present and heard at the hearing specify for the purposes of this section in their agreement not to have a hearing; or
(ii)
If those persons do not specify a day, the day on which those persons agree not to have a hearing.
(2)
A review decision must—
(a)
Be written; and
(b)
Contain the reasons for the decision; and
(c)
Contain information about the right of appeal.
(3)
As soon as practicable after making a review decision under subsection (1), the reviewer must give a copy of the decision to—
(a)
The applicant and the insurer; and
(b)
Every other person who was entitled to be present and heard at the hearing and who was present at it.
(4)
The reviewer must give a copy of the decision to a person who was entitled to be present and heard at the hearing, but who was not present at it, if that person asks the reviewer for a copy.
(5)
An insurer whose decision is the subject of a review must supply a copy of the review decision to any person who asks for a copy, but must ensure that the copy supplied contains no information that may identify any individual. The insurer may charge a fee for supplying the copy, which must be no greater than the cost of preparing the copy for supply and supplying it.
148 Review decisions: substance
(1)
In making a decision on the review, the reviewer must—
(a)
Put aside the insurer’s decision and look at the matter afresh on the basis of the information provided at the review; and
(b)
Put aside the policy and procedure followed by the insurer and decide the matter only on the basis of its substantive merits.
(2)
The reviewer must—
(a)
Dismiss the application; or
(b)
Modify the insurer’s decision; or
(c)
Quash the insurer’s decision.
(3)
If the reviewer quashes the insurer’s decision, the reviewer must—
(a)
Substitute the reviewer’s decision for that of the insurer; or
(b)
Require the insurer to make the decision again in accordance with directions the reviewer gives.
(4)
The reviewer may make a decision even though a person entitled to be present and heard at the hearing did not attend it unless, before the reviewer makes the decision,—
(a)
The person gives the reviewer a reasonable excuse for the person’s non-attendance; and
(b)
The reviewer considers that a decision should not be made until the person has been heard.
Compare: 1992, No. 13, s. 90(5)
149 Deemed review decisions
(1)
The reviewer is deemed to have made a decision on the review in favour of the applicant if—
(a)
The date for the hearing has not been set within 3 months after the review application is made to the insurer; and
(b)
The applicant did not cause, or contribute to, the delay.
(2)
The date of the deemed decision is 3 months after the review application is made.
Compare: 1992, No. 13, s. 90(8), (9)
150 Effect of review decisions
(1)
A review decision is binding on—
(a)
The applicant and the insurer; and
(b)
Any person who has a responsibility under this Act that is invoked in the decision,—
but this subsection is subject to subsections (2) and (3).
(2)
An insurer is not liable under this Act to provide entitlements other than statutory entitlements as a result of a deemed review decision under section 149.
(3)
An insured who is not an applicant cannot lose his or her cover as the result of a deemed review decision under section 149, unless he or she caused or contributed to the delay.
Compare: 1992, No. 13, s. 90(3)
151 Costs on review
(1)
The insurer that allocates a reviewer is responsible for meeting all the costs incurred by the reviewer in conducting a review.
(2)
Whether or not there is a hearing, the reviewer—
(a)
Must award the applicant costs and expenses, if the reviewer makes a review decision fully or partly in favour of the applicant:
(b)
May award the applicant costs and expenses, if the reviewer does not make a review decision in favour of the applicant but considers that the applicant acted reasonably in applying for the review:
(c)
May award any other person costs and expenses if the reviewer makes a review decision in favour of the person.
(3)
The reviewer must award costs and expenses under this section in accordance with regulations made for the purpose.
(4)
An insurer against which costs and expenses are awarded under this section must pay them within 28 days of the decision to award them.
Compare: 1992, No. 13, s. 90(10)
Appeals
152 Who may appeal against review decision
(1)
The insured may appeal to a District Court against—
(a)
A review decision; or
(b)
A decision as to an award of costs and expenses under section 151.
(2)
An insurer may appeal to a District Court against—
(a)
A review decision; or
(b)
A decision as to an award of costs and expenses under section 151.
(3)
The employer may appeal to a District Court against a review decision that an injury is a work-related personal injury.
(4)
A registered health professional may appeal to a District Court against a review decision that the registered health professional contributed to personal injury caused by medical error.
(5)
A person who had a right to be present and to be heard at a hearing because of section 145(d) may appeal to a District Court against a review decision that an injury is a work-related personal injury.
(6)
The manager may appeal to a District Court against a review decision that an injury is not a work-related personal injury.
(7)
Any affected person may appeal to a District Court against a decision on the award of costs and expenses under section 151.
Compare: 1992, No. 13, s. 91(1), (2)
153 District Courts Rules 1992 and this Act apply to appeal
An appeal under section 152 is dealt with in accordance with the District Courts Rules 1992, as modified by this Act and any regulations made under it.
Compare: 1992, No. 13, s. 91(4)
154 Manner of bringing appeal
(1)
An appellant brings an appeal by filing a notice of appeal in a District Court.
(2)
The notice must be in the prescribed form.
(3)
The notice must be filed—
(a)
Within 28 days after the date on which the reviewer gives a copy of the review decision to the appellant; or
(b)
In the case of a deemed review decision under section 149, within 28 days of the date specified in section 149(2); or
(c)
Within any longer time allowed by the court.
Compare: 1992, No. 13, s. 91(3)
155 Insurer to provide names of persons entitled to be heard
(1)
As soon as practicable after receiving the notice of appeal, the Registrar of the court must notify the insurer that an appeal has been lodged and request the information described in subsection (2).
(2)
The information is the names and contact details of any person who had a right to be present and heard at the hearing of the review (other than the appellant).
(3)
The insurer must provide the Registrar with the information within 7 days of receiving the request from the Registrar.
156 Notice of hearing date
(1)
The hearing of an appeal must be at a time and place fixed by the Registrar of the court.
(2)
The Registrar must notify the appellant of the time and place.
(3)
The Registrar must also notify the following persons of the time and place, and give them a copy of the notice of appeal:
(a)
Any person who had a right to be present and heard at the hearing of the review (other than the appellant):
(b)
The reviewer.
157 Insurer’s duty to make record available
(1)
On receiving a copy of the notice of appeal, the insurer must provide to the Registrar of the court any of the following that exist:
(a)
A copy of the decision appealed against; and
(b)
The record of the review hearing; and
(c)
Any application, document, written submission, statement, report, or any other paper lodged with, received by, or prepared for the reviewer and relating to the decision appealed against; and
(d)
A copy of any notes made by, or by direction of, the reviewer relating to the hearing of the review; and
(e)
Any exhibits in the custody of the reviewer or the insurer.
(2)
The insurer must subsequently provide any of the items described in subsection (1) that exist to any of the following persons who request any of the items:
(a)
Any person who had a right to be present and heard at the hearing of the review:
(b)
The reviewer.
Compare: 1992, No. 13, s. 91(7)
158 Hearing of appeal
(1)
The following persons are entitled to appear at the hearing of the appeal and to be heard at it, either personally or by a representative:
(a)
The appellant:
(b)
Any other person who had a right to be present and heard at the hearing of the review.
(2)
An appeal is a rehearing, but evidence about a question of fact may be brought before the court under section 159(2).
Compare: 1992, No. 13, s. 91(6); s. 92(1)
159 Evidence at appeal
(1)
The court may hear any evidence that it thinks fit, whether or not the evidence would be otherwise admissible in a court of law.
(2)
If a question of fact is involved in an appeal, the evidence taken before or received by the reviewer about the question may be brought before the court under any of subsections (3) to (5), subject to any order of the court.
(3)
Evidence given orally about a question of fact may be brought before the court by the production of a copy of—
(a)
The notes of the reviewer; or
(b)
A written statement read by a witness; or
(c)
Any other material that the court thinks expedient.
(4)
Evidence taken by affidavit about a question of fact may be brought before the court by the production of any of the affidavits that have been forwarded to the Registrar of the court.
(5)
Exhibits relating to a question of fact may be brought before the court by—
(a)
The production of any of the exhibits that have been forwarded to the Registrar of the court; or
(b)
The production by the parties to the appeal of any exhibits in their custody.
Compare: 1992, No. 13, s. 92(1), (2)
160 Appointment of assessor
(1)
A judge hearing an appeal may appoint a person to be an assessor for the purposes of the appeal if the judge considers that—
(a)
The appeal involves consideration of matters of a professional, technical, or specialised nature; and
(b)
It would be desirable to appoint as an assessor a person with expert knowledge of those matters.
(2)
The judge must consult the parties on the person to be appointed, and must—
(a)
Appoint the person whom the judge and the parties agree to be suitable; or
(b)
Appoint a person the judge thinks suitable, if the judge and the parties are unable to agree on a suitable person.
(3)
The Department for Courts must pay assessors the remuneration and allowances determined for assessors from time to time by the Minister of the Crown who is responsible for the Department for Courts.
(4)
An appointment of an assessor may not be called in question, in any proceedings, on the grounds that the occasion for the appointment had not arisen or had ceased.
Compare: 1992, No. 13, s. 93(1), (2), (4), (5)
161 Involvement of assessor
(1)
The duties of an assessor are to—
(a)
Sit with the court; and
(b)
Act in all respects as an extra member of the court for the hearing of the appeal; and
(c)
Act as an extra member of the court to assist in the determination of the appeal, but the Judge alone determines the appeal.
(2)
Before starting his or her duties, an assessor must take an oath before a District Court Judge that the assessor will faithfully and impartially perform the duties.
(3)
The failure of an assessor to perform his or her duties does not prevent the Judge from making a decision on the appeal without the input of the assessor.
(4)
A Judge who is satisfied that it is appropriate to do so may revoke the appointment of an assessor and may—
(a)
Conduct the hearing, or the rest of it, without an assessor; or
(b)
Appoint a substitute assessor in accordance with section 160.
Compare: 1992, No. 13, s. 93(3), (7)
162 Court may make order as to persons who may be present
(1)
The court may order that the only persons who may be present during the hearing of an appeal are—
(a)
The Judge; and
(b)
Any assessor; and
(c)
Officers of the court; and
(d)
The parties and their representatives; and
(e)
Any other person who is entitled to appear and be heard, and his or her representative; and
(f)
Witnesses; and
(g)
Any other person whom the Judge permits to be present.
(2)
The court may make such an order—
(a)
On its own initiative or on the application of a party or any other person who is entitled to appear and be heard; and
(b)
If it considers it necessary and appropriate to do so to protect the privacy of a party or any other person who is entitled to appear and be heard, but the court may not make the order to protect the insurer.
Compare: 1992, No. 13, s. 95
163 Court may make order prohibiting publication
(1)
The court may make—
(a)
An order forbidding publication of any report or account of the whole or part of—
(i)
The evidence adduced; or
(ii)
The submissions made:
(b)
An order forbidding the publication of the name, address, or occupation, or particulars likely to lead to the identification, of—
(i)
A party to the appeal; or
(ii)
A person who is entitled to appear and be heard; or
(iii)
A witness.
(2)
The court may make such an order if it is of the opinion that it is necessary and appropriate to do so to protect the privacy of a person referred to in subsection (1)(b), but the court may not make the order to protect the insurer.
(3)
An order under subsection (1)—
(a)
May be made for a limited period or permanently; and
(b)
If made for a limited period, may be renewed for a further period or periods; and
(c)
If made permanently, may be reviewed at any time.
(4)
Every person who commits a breach of any order made under subsection (1) or evades or attempts to evade any such order commits an offence and is liable on conviction,—
(a)
In the case of an individual, to a fine not exceeding $1,000:
(b)
In the case of a body corporate, to a fine not exceeding $5,000.
Compare: 1992, No. 13, s. 96
164 Decisions on appeal
(1)
The court must determine an appeal by—
(a)
Dismissing the appeal; or
(b)
Modifying the review decision; or
(c)
Quashing the review decision.
(2)
If the court quashes the review decision, it must indicate the effect clearly. The effect may be, for example, to—
(a)
Endorse the insurer’s decision; or
(b)
Require the insurer to take the action the court specifies in relation to the insurer’s decision; or
(c)
Require another review, to be conducted in accordance with directions the court gives.
Compare: 1992, No. 13, s. 91(8)
Further Appeals
165 Appeal to High Court on question of law
(1)
A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.
(2)
The leave of the District Court must be sought under Part V of the District Courts Act 1947 and within 21 days after the District Court’s decision.
(3)
If the District Court refuses to grant leave, the High Court may grant special leave to appeal.
(4)
The special leave of the High Court must be sought under Part V of the District Courts Act 1947 and within 21 days of the District Court’s refusing leave.
(5)
Sections 72 to 78a of the District Courts Act 1947 apply, with any necessary modifications, to an appeal to the High Court under this section.
Compare: 1992, No. 13, s. 97
166 Appeal to Court of Appeal on question of law
(1)
A party to an appeal before the High Court under section 165 who is dissatisfied with any determination or decision of the court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.
(2)
If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(3)
An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.
(4)
The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.
Compare: 1992, No. 13, s. 98
Recovery of Costs of Appeals
167 Recovery of costs of appeals
(1)
In this section,—
“Appeals” means appeals to District Courts under section 152:
“Completed”, in relation to an appeal, means that the appeal has come on for a hearing, whether or not the decision has been delivered.
(2)
The Minister for Courts and the Minister determine the figure for item a of the formula in subsection (5).
(3)
The Department for Courts determines the figures for items b, c, and e of the formulas in subsection (5).
(4)
Every insurer must pay an amount towards the costs, incurred by the Department for Courts in administering appeals that have been completed in a financial year, that the parties to the appeals have not met at the end of that financial year.
(5)
The amount each insurer must pay is calculated in the following way:
(a)
First, calculate the flat rate, using the following formula:
a − b ÷ c = d
where—
a
is the cost of all appeals in the financial year
b
is the costs that the parties to the appeals have met
c
is the number of all appeals completed in the financial year
d
is the flat rate
(b)
Second, calculate the amount each insurer must pay, using the following formula:
d × e
where—
d
is the flat rate
e
is the number of completed appeals in which the insurer was the original decision maker.
(6)
Each insurer liable to pay an amount under this section must pay it to the Department for Courts when the Department asks it to do so.
(7)
Every amount payable under this section is recoverable as a debt due to the Crown in any court of competent jurisdiction.
Part 7 Competitive Provision of Accident Insurance
168 Purpose of Parts 7 to 9
The purpose of Parts 7 to 9 is—
(a)
To require employers to enter into, and maintain in force, accident insurance contracts in respect of all work-related personal injuries covered by this Act:
(b)
To allow self-employed persons to choose to enter into, and maintain in force, accident insurance contracts in respect of all personal injury covered by this Act, other than motor vehicle injury:
(c)
To allow private domestic workers to choose to enter into, and maintain in force, accident insurance contracts in respect of all work-related personal injuries covered by this Act:
(d)
To impose ancillary obligations on employers, self-employed persons, private domestic workers, and insurers relating to those contracts:
(e)
To allow the parties to an accident insurance contract (being employers, self-employed persons, private domestic workers, as the case may be, and insurers) to enter into contractual arrangements to complement the delivery of statutory entitlements:
(f)
To allow risk sharing between insurers and employers, self-employed persons, and private domestic workers, subject to conditions:
(g)
To require insurers to offer accident insurance contracts:
(h)
To prohibit the avoidance of accident insurance contracts, while providing alternative remedies for insurers:
(i)
To provide for the registration and prudential supervision of insurers to ensure that insurers maintain sufficient accessible assets to meet their obligations to provide statutory entitlements under accident insurance contracts:
(j)
To guarantee that statutory entitlements are paid in the event of an insurer having insufficient assets to meet its obligations under accident insurance contracts:
(k)
To guarantee that statutory entitlements are paid where there is a failure by an employer to enter into, or maintain in force, an accident insurance contract.
Obligations of Employers
169 Employers required to insure
(1)
Every employer must enter into, and maintain in force, a single accident insurance contract with an insurer in respect of work-related personal injury suffered by the employer’s employees in that employment.
(2)
The penalty and offence provisions in sections 383 to 393 apply to a failure to comply with this section.
(3)
An employer of a private domestic worker need not comply with this section in respect of the worker.
170 Implied terms of employer accident insurance contracts
(1)
An accident insurance contract entered into by an employer has the following implied terms:
(a)
The contract applies to every employee of the insured employer; and
(b)
The contract applies to every work-related personal injury suffered by the employer’s employee in that employment or in relation to that employment; and
(c)
The contract provides for the receipt and determination of claims in accordance with Part 4; and
(d)
The contract provides no less than the statutory entitlements; and
(e)
All employees to whom the contract applies, and all other persons who have a statutory entitlement under the contract, may enforce the contract as if a party to the contract; and
(f)
Every dispute about cover and statutory entitlements under the contract is determinable in accordance with Part 6 to the extent that that Part applies; and
(g)
The Regulator or the prudential supervisor may transfer, in accordance with Part 8 or Part 9, the insurer’s rights and obligations under the contract to another insurer without any requirement for the consent of the employer or any other person; and
(h)
The contract continues in force until it is terminated in accordance with section 174 or section 189; and
(i)
The obligations of the insurer under the contract in respect of personal injury suffered while the contract was in force continue after termination, regardless of whether or not a claim has yet been made.
(2)
The implied terms apply despite anything in the contract.
171 Employers must disclose terms of accident insurance contract to employees
(1)
Every employer must give to each employee, without charge, a written statement that complies with this section.
(2)
The written statement must be given to each employee—
(a)
Within 5 working days after an accident insurance contract comes into force:
(b)
Within 5 working days after the employee first commences his or her duties as an employee of the employer:
(c)
Within 5 working days after any information required to be in the statement changes.
(3)
The statement must—
(a)
Specify the name and address of the insurer under its accident insurance contract; and
(b)
State that the contract applies only to work-related personal injury; and
(c)
Specify the procedures and requirements under the contract in relation to the lodging of claims, the provision of treatment, the handling of claims, assessment of incapacity, assessment of capacity for work, and dispute resolution; and
(d)
Be accompanied by a copy of the insurance certificate in respect of the contract.
(4)
Every employer must ensure that each employee has access, on request and without charge, to—
(a)
The latest statement and a copy of the insurance certificate; and
(b)
A copy of its accident insurance contract.
(5)
An employer commits an offence, and is liable to a fine not exceeding $10,000, who fails to comply with any requirement of this section.
172 Employers must not require contributions from employees
(1)
An employer must not require an employee to contribute towards the cost of any premium in respect of an accident insurance contract.
(2)
An employer must not reduce sick leave entitlement or any other right of an employee because of the liability of an employer to make a payment under an accident insurance contract or under this Act.
(3)
An employer commits an offence, and is liable to a fine not exceeding $10,000, who fails to comply with any requirement of this section.
Compare: 1992, No. 13, s. 16(2)
173 Employees of insurer
(1)
An insurer may elect to insure its own employees.
(2)
In that case, the insurer has all the obligations of both an insurer and also of an employer under this Act, as if the insurer had entered into an accident insurance contract with itself.
174 Termination of accident insurance contract by employer
(1)
An employer cannot terminate an accident insurance contract unless the employer has—
(a)
Entered into a new accident insurance contract that has effect from a date that is no later than the date of termination, in which case the notice of termination to the insurer must be accompanied by an insurance certificate in respect of the new contract; or
(b)
Ceased to be an employer, in which case the notice of termination to the insurer must be accompanied by a declaration by the employer, in the prescribed form (if any), to that effect.
(2)
A termination is not effective unless a certificate or declaration of the type required by subsection (1) accompanies the notice of termination.
(3)
The insurer must forward to the Regulator a copy of a declaration received under subsection (1)(b) within such time as may be prescribed.
(4)
An employer commits an offence, and is liable to a fine not exceeding $50,000, who wilfully provides a document under subsection (1) that is false or misleading.
(5)
An insurer commits an offence, and is liable to a fine not exceeding $50,000, who fails to comply with subsection (3).
175 Employer to notify employees of proposed termination of accident insurance contract
(1)
An employer must take such steps as the employer considers practicable to notify employees of the proposed termination of an accident insurance contract, at least 10 working days before the termination is due to take effect.
(2)
The notification must be given in such a way that the employer considers is likely to inform employees about the proposed termination and the employer’s proposals (in general terms) for a new accident insurance contract.
(3)
Failure to give notification under this section does not make a termination ineffective.
(4)
Every employer commits an offence, and is liable to a fine not exceeding $10,000 who fails to give notification under this section.
Self-Employed Persons
176 Self-employed may enter into accident insurance contracts
(1)
A self-employed person may enter into an accident insurance contract with an insurer in respect of every personal injury covered by this Act suffered by that person, other than work-related personal injury suffered as an employee or motor vehicle injury.
(2)
A self-employed person must not be a party to more than 1 contract under this section.
(3)
This section applies whether or not the person is also an employee.
(4)
If a self-employed person enters into an accident insurance contract, the person must maintain the contract in force except as provided under section 179 or section 189.
177 Rules for self-employed entering accident insurance contracts
(1)
The following provisions apply if a self-employed person chooses to enter into an accident insurance contract:
(a)
The person must obtain an insurance number from the manager, then give the insurance number to the insurer, then enter into the accident insurance contract; and
(b)
Part 10 does not apply to an injury suffered by the person after the contract comes into force (other than motor vehicle injury); and
(c)
The insurer must send the manager notice of the contract and the date it comes into force, and the person’s insurance number, within 5 working days of entering into the contract.
(2)
The notice of the contract sent to the manager must be in the prescribed form (if any).
178 Implied terms of self-employed accident insurance contracts
(1)
An accident insurance contract entered into by a self-employed person has the following implied terms:
(a)
The contract applies to the insured person; and
(b)
The contract applies to every personal injury covered by this Act, other than work-related personal injury suffered as an employee or motor vehicle injury; and
(c)
The contract provides for the receipt and determination of claims in accordance with Part 4; and
(d)
The contract provides no less than the statutory entitlements; and
(e)
All persons who have a statutory entitlement under the contract may enforce the contract as if a party to the contract; and
(f)
Every dispute about cover and statutory entitlements under the contract is determinable in accordance with Part 6 to the extent that that Part applies; and
(g)
The Regulator or the prudential supervisor may transfer, in accordance with Part 8 or Part 9, the insurer’s rights and obligations under the contract to another insurer without any requirement for the consent of the self-employed person or any other person; and
(h)
The contract continues in force until it is terminated in accordance with section 179 or section 189; and
(i)
The obligations of the insurer under the contract in respect of personal injury suffered while the contract was in force continue after termination, regardless of whether or not a claim has yet been made.
(2)
The implied terms apply despite anything in the contract.
179 Termination of accident insurance contract by self-employed person
(1)
A self-employed person cannot terminate an accident insurance contract unless the person has—
(a)
Entered into a new accident insurance contract that has effect from a date that is no later than the date of termination, in which case the notice of termination to the insurer must be accompanied by an insurance certificate in respect of the new contract; or
(b)
Ceased to be a self-employed person, in which case the notice of termination to the insurer must be accompanied by a declaration by the person, in the prescribed form (if any), to that effect; or
(c)
Notified the manager in the prescribed form of his or her election to terminate private accident insurance cover, in which case the notice of termination to the insurer must be accompanied by the manager’s acknowledgment of receipt of the notification sent under this paragraph.
(2)
A termination is not effective unless a certificate, declaration, or acknowledgment of the type required by subsection (1) accompanies the notice of termination.
(3)
The following rules apply where a self-employed person elects to terminate private accident insurance cover:
(a)
The manager must promptly acknowledge receipt of the notification sent under subsection (1)(c):
(b)
The acknowledgment must specify the date on which Part 10 will apply, which date must be no later than 20 working days after the notification under subsection (1)(c):
(c)
The accident insurance contract terminates as at the beginning of that date.
(4)
The insurer must forward to the manager a copy of a declaration received under subsection (1)(b) within such time as may be prescribed.
(5)
A person commits an offence, and is liable to a fine not exceeding $50,000, who wilfully provides a document under subsection (1) that is false or misleading.
(6)
An insurer commits an offence, and is liable to a fine not exceeding $50,000, who fails to comply with subsection (4).
Obligations of Private Domestic Workers
180 Private domestic workers may enter into accident insurance contracts
(1)
A private domestic worker may enter into an accident insurance contract with an insurer in respect of every work-related personal injury covered by this Act suffered by that person in private domestic work.
(2)
A private domestic worker must not be a party to more than 1 contract under this section.
(3)
If a private domestic worker enters into an accident insurance contract, the worker must maintain the contract in force except as provided under section 183 or section 189.
181 Implied terms of private domestic worker accident insurance contracts
(1)
An accident insurance contract entered into by a private domestic worker has the following implied terms:
(a)
The contract applies to the insured person; and
(b)
The contract applies to every work-related personal injury covered by this Act related to that private domestic work; and
(c)
The contract provides for the receipt and determination of claims in accordance with Part 4; and
(d)
The contract provides no less than the statutory entitlements; and
(e)
All persons who have a statutory entitlement under the contract may enforce the contract as if a party to the contract; and
(f)
Every dispute about cover and statutory entitlements under the contract is determinable in accordance with Part 6 to the extent that that Part applies; and
(g)
The Regulator or the prudential supervisor may transfer, in accordance with Part 8 or Part 9, the insurer’s rights and obligations under the contract to another insurer without any requirement for the consent of the private domestic worker or any other person; and
(h)
The contract continues in force until it is terminated in accordance with section 183 or section 189; and
(i)
The obligations of the insurer under the contract in respect of personal injury suffered while the contract was in force continue after termination, regardless of whether or not a claim has yet been made.
(2)
The implied terms apply despite anything in the contract.
182 Rules for private domestic workers entering accident insurance contracts
(1)
The following provisions apply if a private domestic worker chooses to enter into an accident insurance contract:
(a)
The person must obtain an insurance number from the manager, then give the insurance number to the insurer, then enter into the accident insurance contract; and
(b)
Part 10 does not apply to a work-related personal injury suffered by the person in the private domestic work after the contract comes into force; and
(c)
The insurer must send the manager notice of the contract and the date it comes into force, and the person’s insurance number, within 5 working days of entering into the contract.
(2)
The notice of the contract sent to the manager must be in the prescribed form (if any).
183 Termination of accident insurance contract by private domestic worker
Section 179 applies to the termination of an accident insurance contract by a private domestic worker in all respects as if the worker were a self-employed person.
Creation of Contract
184 Creation of accident insurance contract
There is an accident insurance contract as soon as the person to whom the contract is offered has—
(a)
Accepted the terms and conditions offered by the insurer; and
(b)
Paid any premium that the insurer specified must be paid as part of the acceptance; and
(c)
Provided the insurer with the person’s insurance number.
Risk Sharing
185 Risk sharing
(1)
An employer or a self-employed person or a private domestic worker may agree with an insurer that the employer, self-employed person, or private domestic worker will carry out certain obligations of the insurer under an accident insurance contract with that person.
(2)
The risk sharing agreement must specify which obligations may be so carried out (which must not include the insurer’s obligations under Part 6 in relation to disputes).
(3)
The agreement does not affect the liability of the insurer to provide cover and statutory entitlements, if the obligations specified in the risk sharing agreement are not carried out.
Obligations of Insurers
186 Obligation to provide insurance
(1)
An insurer must offer to enter into an accident insurance contract with an employer, self-employed person, or private domestic worker on terms and conditions (including premium) determined by the insurer.
(2)
The offer must be made within 10 working days after receiving a request for accident insurance that is accompanied by all information reasonably necessary to enable the insurer to assess the request.
(3)
However, an insurer need not make a second or further offer during any period specified in the insurer’s first or earlier offer as the period for which the offer is open.
(4)
This section does not apply to a captive insurer, being an insurer that is established to provide accident insurance solely to its employees (which may include the employees of a company that is a related company of the insurer within the meaning of section 2 of the Companies Act 1993).
(5)
This section does not apply before 1 July 2000 in respect of a self-employed person or private domestic worker.
(6)
An insurer commits an offence, and is liable to a fine not exceeding $50,000, who fails to comply with subsection (1).
187 Obligations relating to contracts
(1)
An insurer who is a party to an accident insurance contract must—
(a)
Notify the Regulator, as and when required under section 222, of the names and insurance numbers of the persons with whom it has accident insurance contracts; and
(b)
Ensure that any information supplied to the Regulator or the manager under this Act in respect of an accident insurance contract specifies the insurance number of the other party to the contract; and
(c)
Send to the other party an insurance certificate in respect of the contract, within 5 working days of entering into the contract; and
(d)
Send to the Regulator any returns of information required under section 194; and
(e)
Comply with all other obligations imposed by this Act or regulations made under this Act.
(2)
An insurer commits an offence, and is liable to a fine not exceeding $50,000, who fails to comply with paragraph (a) of subsection (1).
(3)
An insurer commits an offence, and is liable to a fine not exceeding $10,000, who fails to comply with any of paragraphs (b) to (d) of subsection (1).
188 Information relating to statutory entitlements must be set out in top-up or bundled contracts
(1)
An accident insurance contract may form part of a contract of insurance—
(a)
Which provides for cover or entitlements in respect of accident insurance that are greater than or additional to cover provided for under Part 3 or statutory entitlements; or
(b)
Which provides for cover and benefits in respect of any other kind of insurance.
(2)
Where subsection (1) applies, the contract—
(a)
Must specify the insurer’s obligations to provide cover and statutory entitlements separately from its obligations in respect of the additional or, as the case may be, greater entitlements; and
(b)
Must specify the premium attributable to the obligation to provide statutory entitlements separately from the premium attributable to the additional or, as the case may be, greater entitlements; and
(c)
Must specify the insurer’s obligations to provide statutory entitlements, and the premium attributable to those entitlements, separately from the insurer’s obligations to provide cover and benefits in respect of any other type of insurance.
(3)
Subsection (1) does not apply to a transitional accident insurance contract, to the extent provided in any regulations made under section 411.
(4)
An insurer commits an offence, and is liable to a fine not exceeding $10,000, who fails to comply with subsection (2).
189 Termination of accident insurance contract by insurer
(1)
An insurer must do all the following things to terminate an accident insurance contract:
(a)
The insurer must give a written notice of termination to the other party to the contract no more than 40 working days and no less than 20 working days before the termination will take effect; and
(b)
In the case of a contract with an employer, the insurer must give a copy of the notice to the Regulator as soon as possible after it is given to the employer; and
(c)
In the case of a contract with a self-employed person or a private domestic worker, the insurer must give a copy of the notice to the manager as soon as possible after it is given to the other party to the contract; and
(d)
The notice must state the other party’s insurance number.
(2)
This section does not give an insurer any right to terminate a contract that is additional to the termination rights in the contract; it just sets out a minimum termination procedure that must be followed for accident insurance contracts.
(3)
A termination of an accident insurance contract has no effect—
(a)
If notice of intention to terminate is not given in accordance with this section:
(b)
In relation to anything that occurred before the termination takes effect.
(4)
If an insurer terminates an accident insurance contract in respect of a self-employed person or a private domestic worker, Part 10 then applies to a personal injury covered by this Act unless the person enters into a new accident insurance contract that has effect from a date that is no later than the date of termination.
(5)
This section does not limit section 186.
190 Accident insurance contracts not avoided for misrepresentation or non-disclosure
(1)
An insurer may not avoid an accident insurance contract because of a misrepresentation or a failure to disclose by any person.
(2)
This section applies despite any other enactment or rule of law.
(3)
This section does not limit any right to damages under any other enactment or rule of law arising from a misrepresentation or a failure to disclose by any person.
191 Damages for non-disclosure
(1)
An employer, self-employed person, or private domestic worker is liable to an insurer in damages for a material non-disclosure.
(2)
A material non-disclosure is one in respect of which the court is satisfied that—
(a)
A person knew a fact and failed, before entering into an accident insurance contract, to disclose that fact to the insurer; and
(b)
The person knew, or in the circumstances a reasonable person could have been expected to know, that disclosure of the undisclosed fact would have influenced the judgment of a prudent insurer in setting the terms of the contract.
(3)
The damages payable under this section may be an amount not exceeding 3 times the amount of any loss or damage suffered by the insurer as a result of the nondisclosure.
(4)
This section does not limit any other right to damages under any other enactment or rule of law.
192 Other rights to cancel or amend
(1)
Nothing in any other enactment or rule of law or in any contract entitles a party to an accident insurance contract, or a court,—
(a)
To cancel the contract otherwise than in accordance with this Act; or
(b)
To vary the contract in a way that would defeat the provisions of this Act; or
(c)
To grant relief in respect of the contract in a way that is incompatible with this Act.
(2)
This section applies to all powers of cancellation, recission, avoidance, repudiation, variation, or modification, however described, that would have an effect of a type referred to in subsection (1).
(3)
This section does not limit any right to damages under any other enactment or rule of law.
193 Retrospective accident insurance contracts
(1)
An insurer must not offer to enter into an accident insurance contract that provides that it comes into force before the time at which it is entered into.
(2)
An insurer commits an offence, and is liable to a fine not exceeding $50,000, who fails to comply with this section.
(3)
A contract entered into in contravention of this section is not an illegal contract within the meaning of section 3 of the Illegal Contracts Act 1970.
Obligation for Insurers to Provide Returns to Regulator
194 Insurers to provide returns to Regulator
(1)
Every insurer, including the manager, must provide to the Regulator returns containing such information as may be prescribed for the following purposes:
(a)
Ensuring that insurers, employers, self-employed persons, and private domestic workers comply with this Act:
(b)
Maintaining a schedule of average premiums charged by insurers in relation to statutory entitlements under accident insurance contracts, for the purpose of setting penalties for non-compliance:
(c)
Determining insurers’ contributions and levies to the Insolvent Insurers Fund and the Non-Compliers Fund and the levy to fund the Regulator:
(d)
Determining other contributions to the Insolvent Insurers Fund:
(e)
Collecting information to facilitate the monitoring of the operation of this Act and the evaluation of the outcome of competition:
(f)
Collecting information needed by the accident insurance market to set prices and establish experience rating:
(g)
Collecting comprehensive personal injury statistics and other information to establish and maintain a complete claims database:
(h)
Determining the extent to which arrangements for risk sharing have been entered into under section 185.
(2)
The returns must provide the information according to any classifications or categories that may be prescribed.
(3)
The returns must be supplied in the prescribed manner (if any) and at the prescribed time.
(4)
The Regulator may require the manager to provide the Regulator with information relating to past claims and claims against the Accounts.
(5)
The manager must comply with any requirement under subsection (4).
(6)
The Regulator may publish aggregate information based on any information received under this section.
(7)
Information prescribed for the purpose of subsection (1)(g) must include information about the circumstances of the personal injury, the nature and severity of the personal injury, any known consequences of the personal injury, and the nature and severity of any known consequences of the personal injury.
(8)
The Regulator must publish annual summaries in aggregate form of information received under subsection (1)(g).
(9)
An insurer commits an offence, and is liable to a fine not exceeding $10,000, who fails to comply with a requirement of the Regulator made under this section.
195 Regulator must pass on information about work-related injuries
(1)
The Regulator must pass on to the chief executive of the department for the time being responsible for the administration of the Health and Safety in Employment Act 1992 any information provided to the Regulator under section 194 that relates to claims for work-related personal injury.
(2)
That chief executive must use the information only for 1 or more of the following purposes:
(a)
Developing a body of statistical data relating to work-related personal injury:
(b)
Determining trends in the incidence of such injury:
(c)
Developing and implementing programmes relating to the prevention of such injury:
(d)
Reviewing the effectiveness of that Act and its administration.
(3)
The Regulator must provide the information in accordance with an agreement with the chief executive.
Compare: 1992, No. 96, s. 60
196 Position of employees of foreign representatives
(1)
Section 169 (employers required to insure) does not apply to foreign representatives.
(2)
Part 10 applies to employees of foreign representatives in respect of work-related personal injuries covered by this Act, so that the costs of those employees’ statutory entitlements in respect of those injuries are paid out of the Non-Earners’ Account.
(3)
“Foreign representative”
means any person who is not a permanent resident of New Zealand and who is present in New Zealand for the sole purpose of performing the person’s duties—
(a)
Either as a member of the staff of a diplomatic mission of any State (within the meaning of the Diplomatic Privileges and Immunities Act 1968) or as a member of a consular post of any State (within the meaning of the Consular Privileges and Immunities Act 1971); or
(b)
As a representative or officer or employee of the Government of any country other than New Zealand; or
(c)
As a representative or officer or employee of any international organisation or of the Commonwealth Secretariat or of any organ of an international organisation or the Commonwealth Secretariat; or
(d)
As a representative at any conference convened in New Zealand by an international organisation or by the Commonwealth Secretariat.
Compare: S.R. 1992/64, r. 2
Part 8 Registration and Prudential Supervision of Insurers
Registrar and Regulator
197 Functions of Registrar
The functions of the Registrar are—
(a)
To keep and maintain a register of insurers; and
(b)
To register insurers; and
(c)
To cancel the registration of an insurer under section 205 or remove the name of any insurer from the register under section 206; and
(d)
To perform any other functions conferred on the Registrar by this Act.
Compare: 1964, No. 134, s. 38r; 1986, No. 131, s. 10
198 Functions of Regulator
The functions of the Regulator are—
(a)
To enforce the obligations of employers, self-employed persons, and private domestic workers under Part 7 and this Part; and
(b)
To enforce the obligations of insurers under Part 4, Part 6, Part 7, and this Part; and
(c)
To ensure that statutory entitlements are met without interruption in the case of persons whose insurer has insufficient assets to meet its obligations under accident insurance contracts and, for that purpose, to undertake the responsibilities conferred on the Regulator in respect of the Insolvent Insurers Fund; and
(d)
To ensure that statutory entitlements are paid where an employer has failed to enter into, or maintain in force, an accident insurance contract, and, for that purpose, to undertake the responsibilities conferred on the Regulator in respect of the Non-Compliers Fund; and
(e)
To perform any other functions conferred on the Regulator by this Act.
Registration of Insurers
199 Requirement to register
(1)
A person must be registered as an insurer in order to—
(a)
Enter into, or be a party to, an accident insurance contract as an insurer:
(b)
Use any name, title, style, or designation or use any description which represents or implies that the person is an insurer.
(2)
A person must not negotiate, or attempt to negotiate, or hold himself or herself out as having authority to negotiate, an accident insurance contract unless a person who is registered as an insurer will be a party to that contract, or will be so registered when the contract takes effect.
(3)
Subsection (2) does not apply to a person acting as, or on behalf of, the party seeking insurance.
(4)
Every person commits an offence who fails to comply with subsection (1) or subsection (2), and is liable,—
(a)
In the case of an individual, to a fine not exceeding $100,000; and
(b)
In the case of a body corporate, to a fine not exceeding $300,000.
200 Application for registration
(1)
Any person may apply to the Registrar to be registered as an insurer.
(2)
An application must—
(a)
Be given in the prescribed manner, if any; and
(b)
Contain the documents or information required by section 201; and
(c)
Contain such information as may be prescribed; and
(d)
Be accompanied by the prescribed fee, if any.
Compare: 1989, No. 157, s. 70
Requirements for Registration
201 Criteria for registration as insurer
(1)
The Registrar must register a person as an insurer as soon as the Registrar is satisfied that—
(a)
The person is a company incorporated under the Companies Act 1993 and registered on the New Zealand register; and
(b)
The person has a current rating in accordance with the Insurance Companies (Ratings and Inspections) Act 1994 or the person’s prudential supervisor has certified that the person is a captive insurer in terms of section 186(4); and
(c)
The person has appointed a prudential supervisor, and the prudential supervisor has certified that the trust deed for that insurer complies with section 214; and
(d)
A copy of that trust deed has been received for registration under section 216; and
(e)
The prudential supervisor has certified that the insurer has a designated reviewer in accordance with section 138(1).
(2)
Upon registration, the Registrar must provide an insurer with a certificate of registration.
Provisions Relating to Register and Registrar
202 Register
(1)
The Registrar must ensure that a register of insurers is kept in New Zealand and that all matters required by this Act to be registered or recorded by the Registrar are so registered or recorded.
(2)
The register may be kept in such manner as the Registrar thinks fit including, either wholly or partly, by means of a device or facility—
(a)
That receives, records, or stores information electronically or by other means; and
(b)
That permits the information so received or recorded or stored to be readily inspected or reproduced in usable form.
(3)
A person may, on payment of any fees that are prescribed, require the Registrar to give or certify—
(a)
A copy of a certificate of registration of an insurer; or
(b)
A copy of, or extract from, a document that constitutes part of the register; or
(c)
Particulars of any registered document that has been entered in any device or facility referred to in subsection (2); or
(d)
A copy of, or extract from, a registered document particulars of which have been entered in any such device or facility.
(4)
A copy of, or extract from, a registered document—
(a)
That constitutes part of the register; or
(b)
Particulars of which have been entered in any device or facility referred to in subsection (2),—
certified to be a true copy or extract by the Registrar is admissible in evidence in legal proceedings to the same extent as the original document.
(5)
An extract certified by the Registrar as containing particulars of a registered document that have been entered in any device or facility referred to in subsection (2) is, in the absence of proof to the contrary, conclusive evidence of the entry of those particulars.
203 Inspection of register
A person may, on payment of any fees that are prescribed, inspect—
(a)
Any document that constitutes part of the register:
(b)
Particulars of any registered document that have been entered on any device or facility referred to in section 202:
(c)
Any registered document particulars of which have been entered in the device or facility—
during the hours when the register is open for inspection.
Compare: 1993, No. 105, s. 363(1)
Removal from Register
204 Continuing conditions of registration
Continuation of registration as an insurer is subject to the following conditions:
(a)
That the insurer continues to be a company incorporated under the Companies Act 1993 and registered on the New Zealand register; and
(b)
That the insurer has a current rating in accordance with the Insurance Companies (Ratings and Inspections) Act 1994 or, in the case of an insurer that does not have a current rating, that the insurer continues to be a captive insurer in terms of section 186(4); and
(c)
That the insurer continues to be a party to a trust deed with a prudential supervisor that is registered under section 216; and
(d)
Where the provisions of the trust deed have been amended, that a copy of the instrument amending the deed has been registered by the Registrar under section 217; and
(e)
That the insurer has a designated reviewer in accordance with section 138(1); and
(f)
That the insurer assumes any obligations imposed under section 255.
205 Cancellation of registration
(1)
The only ground for cancellation of the registration of an insurer is a failure to comply with an obligation under section 204.
(2)
The process for cancellation is as follows:
(a)
The Registrar must give the insurer and the insurer’s prudential supervisor notice in writing of the Registrar’s intention to cancel the registration of the insurer; and
(b)
The notice must contain or be accompanied by a statement of the Registrar’s reasons; and
(c)
The Registrar must consult with the insurer about whether there is a breach of a condition of registration, and, if so, when the breach will be rectified; and
(d)
The Registrar must decide to cancel the registration if, after that consultation, the Registrar is satisfied that the insurer is in breach of a condition of registration and that the breach will not be rectified within a reasonable time; and
(e)
The Registrar must, as soon as practicable after the decision to cancel the registration, give notice in writing to the insurer (and to the Regulator) stating the ground on which the Registrar decided to cancel the insurer’s registration and the date of cancellation; and
(f)
The Registrar, as soon as practicable, must give public notice of the cancellation and publish a notice of the cancellation in the Gazette.
(3)
The cancellation takes effect on a date specified by the Registrar in the notice of cancellation, which must be a date after the date of the notice.
206 Voluntary removal from register
(1)
An insurer may apply to the Registrar for the removal of the insurer’s name from the register on a date specified in the application.
(2)
The date specified in the application may not be earlier than 20 working days after the date the notice is given.
(3)
The application must contain a certificate signed by the insurer’s prudential supervisor that the insurer has transferred to another insurer the insurer’s obligations under the insurer’s existing accident insurance contracts, or will so transfer on or before the date specified in the application as the date of removal from the register.
(4)
The insurer must, within 5 working days of making the application, give public notice of the fact that it has made the application.
(5)
If the requirements of this section are met, the Registrar must remove the name of the insurer from the register on the date specified in the application.
(6)
The Registrar must give public notice of the removal and publish a notice of the removal in the Gazette.
(7)
Every application under subsection (1) must be given in the prescribed manner, if any, and accompanied by the prescribed fee, if any.
207 Suspension of obligation to enter new insurance contracts
(1)
An application may be made to the Registrar for the suspension of an insurer’s obligations under section 186.
(2)
The application may be made by the insurer or by an administrator of an insolvent insurer.
(3)
If made by the insurer, the application must be accompanied by—
(a)
A certificate from the insurer that it has given, or intends to give, a notice under section 206; and
(b)
A certificate from the insurer’s prudential supervisor that the insurer is taking steps to withdraw from acting as an insurer.
(4)
The application must be accompanied by the prescribed fee, if any.
(5)
The Registrar must register each properly made application as soon as he or she receives it.
(6)
From the time that the Registrar registers the application, the insurer—
(a)
Must not enter into any new accident insurance contract as an insurer; and
(b)
Is not required to comply with section 186; and
(c)
Must, as soon as practicable, inform a person who requests accident insurance that the request cannot be considered because of the suspension.
(7)
A person who made an application under subsection (1) may give notice to the Registrar withdrawing the application.
(8)
The Registrar must register a notice under subsection (7) as soon as he or she receives it.
(9)
Subsection (6) ceases to apply to the insurer from the time that the Registrar registers that notice.
(10)
An insurer commits an offence, and is liable to a fine not exceeding $10,000, who enters into any new accident insurance contract as an insurer at any time when subsection (6) applies.
(11)
Every person commits an offence, and is liable to a fine not exceeding $10,000, who wilfully provides a certificate under subsection (3) that is false or misleading.
Prudential Supervisors
208 Persons who may act as prudential supervisors
(1)
No person may accept appointment or act as a prudential supervisor of an insurer other than—
(a)
A trustee company or the Public Trust; or
(b)
A person to whom an Order in Council made under subsection (2) applies.
(2)
The Governor-General may from time to time, by Order in Council, authorise a specified person, or any specified class or classes of person, to act as a prudential supervisor subject to any terms and conditions as may be set out in the Order.
209 Conflict of interest
(1)
A person must not accept appointment as a prudential supervisor of an insurer—
(a)
If the person and the insurer—
(i)
Are related companies within the meaning of section 2 of the Companies Act 1993; or
(ii)
Are, or would be deemed under section OD 1 of the Income Tax Act 1994 to be, under the control of substantially the same persons or to consist of substantially the same shareholders; or
(iii)
Are the same person; or
(b)
If the person and the insurer have any other relationship that is likely to materially conflict with the exercise of the duties of a prudential supervisor under this Act.
(2)
A prudential supervisor and the insurer must—
(a)
Use reasonable diligence and care to ensure that no relationship referred to in subsection (1)(a) or (b) arises; and
(b)
If such a relationship does arise, terminate as soon as practicable either that relationship or the appointment as a prudential supervisor in accordance with section 212.
(3)
References in this section to related companies apply with necessary modifications to corporate bodies.
210 Duties of prudential supervisors
(1)
A prudential supervisor of an insurer must use reasonable diligence and care—
(a)
To establish obligations, and hold powers, (financial and otherwise) under the trust deed requiring the insurer to comply with—
(i)
A prudent solvency margin; and
(ii)
Other prudent covenants relating to the insurer’s operations; and
(b)
To monitor the solvency of the insurer and to identify any material risk that the insurer will become insolvent; and
(c)
To establish obligations on the insurer, and to hold powers, to ensure that the assets of the insurer are accessible when required to meet the insurer’s current, future, and potential obligations under its accident insurance contracts; and
(d)
To take enforcement action under the trust deed; and
(e)
To monitor compliance with the conditions of registration as an insurer under section 204 and, as soon as practicable after becoming aware of a breach, to inform the Registrar; and
(f)
To inform the Regulator if the assets of the insurer are, or are likely to be, insufficient to meet its obligations under accident insurance contracts; and
(g)
To ensure, if the insurer is declared to be an insolvent insurer, that the responsibility in section 238 is met; and
(h)
If the insurer’s registration as an insurer is cancelled, to ensure, as soon as reasonably practicable,—
(i)
That arrangements are in place to ensure that the obligations of the insurer under accident insurance contracts are met without interruption; and
(ii)
That the insurer’s accident insurance contracts are terminated under section 189 or transferred to another insurer, or that a better way of managing the insurer’s exit from the accident insurance market is found and implemented; and
(i)
To inform the Regulator (in a situation where the insurer’s obligations under section 186 are suspended under section 207) if the insurer is not taking steps to withdraw from acting as an insurer.
(2)
The duties under subsection (1) are duties of a trustee.
(3)
The persons to whom the prudential supervisor of an insurer owes the duties under subsection (1) include the Minister of Finance on behalf of the Crown, the Regulator, and a person who has become a contributor to the Insolvent Insurers Fund in respect of the insurer.
211 Liability of prudential supervisors
(1)
A provision of a deed or contract is void to the extent that it would have the effect of exempting a prudential supervisor from liability for breach of the duty to use reasonable diligence and care in section 210.
(2)
For the avoidance of doubt, the persons who have standing to commence proceedings against a prudential supervisor of an insurer for a breach of its duties include the Minister of Finance on behalf of the Crown, the Regulator, and a person who has become a contributor to the Insolvent Insurers Fund in respect of the insurer.
Compare: 1978, No. 103, s. 62(1)
212 Termination of appointment as prudential supervisor
(1)
No prudential supervisor may retire or be removed from office, and no appointment as a prudential supervisor may otherwise terminate, unless—
(a)
The insurer has appointed another person as a prudential supervisor, and the insurer and that other person have signed a trust deed relating to the insurance business that complies with section 214; or
(b)
The insurer has transferred the insurer’s obligations under all of the insurer’s existing accident insurance contracts to another insurer; or
(c)
The consent of the court is obtained.
(2)
This section does not apply if section 240(2) applies.
213 Saving of liability under general law
Nothing in this Act Emits or diminishes any liability that any person may have under any rule of law or enactment other than this Act.
Compare: 1978, No. 103, s. 65
Trust Deeds
214 Contents of trust deeds
(1)
A trust deed required under this Act—
(a)
Must create a first charge over assets of the insurer in favour of the prudential supervisor of the insurer in accordance with section 215; and
(b)
Must impose obligations on the insurer that allow the prudential supervisor to perform its duties under section 210; and
(c)
Must contain provisions (including provisions as to the appointment of a receiver) necessary for the effective enforcement of the mandatory charge and the obligations under the trust deed; and
(d)
Must ensure that the prudential supervisor and its appointed receiver have all the necessary powers for administration upon default by the insurer for the purpose of carrying out the duties under section 210(1)(g) and (h); and
(e)
Must contain all information and other matters required by regulations made under this Act; and
(f)
Is deemed to contain all implied terms that may be prescribed in that respect in regulations made under this Act.
(2)
A trust deed has no effect to the extent that it contravenes, or is inconsistent with, subsection (1).
215 Special provisions relating to charge
(1)
The mandatory charge created in the trust deed must secure, in order of priority,—
(a)
The costs of enforcement of the charge, including the realisation of assets and distribution of proceeds under the charge; and
(b)
The costs of ensuring that the obligations of the insurer under accident insurance contracts are met without interruption; and
(c)
The cost of reimbursing the Insolvent Insurers Fund for payments made out of the Fund in respect of the insurer.
(2)
The mandatory charge is a statutory first charge that has priority over all mortgages, charges, and encumbrances, however created.
(3)
The amounts secured by the mandatory charge rank for payment ahead of any other claims, regardless of whether those claims are secured, preferential, or unsecured, and regardless of whether the mandatory charge is a fixed or a floating charge.
(4)
The prudential supervisor must be reasonably satisfied that the mandatory charge—
(a)
Is fixed or floating as is appropriate to each type of asset and to the circumstances; and
(b)
Extends over the assets that would under ordinary prudent banking practice be charged by a first ranking bank debenture taken from a company for which the bank was the principal source of funds, other than assets in respect of which the benefit obtained from the charge is likely to be less than the cost (including inconvenience) of obtaining or maintaining the charge; and
(c)
Contains appropriate conditions for release and other matters necessary to the convenient administration of the insurer,—
having regard in each case to all the circumstances of the insurer affecting its creditworthiness and reliability and the nature and enforceability of covenants under the trust deed so that all reasonable precautions are taken to perfect and maintain the security to be conferred by the mandatory charge.
(5)
For the purpose of subsection (3), the application (if relevant) of section 312 of the Companies Act 1993 (preferential payments) and section 30 of the Receiverships Act 1993 (preferential claims) to the assets of an insurer is deferred until the amounts secured by the mandatory first charge have been paid, or provision has been made for such payment to the satisfaction of the prudential supervisor.
(6)
The charge must be registered under any enactment providing for the registration of charges, as if it were not a statutory charge, but failure to register does not affect the validity or priority of the charge.
(7)
The trust deed may secure payments or costs other than those referred to in subsection (1), but that security is not part of the statutory first charge.
216 Registration of trust deeds
(1)
The insurer must deliver to the Registrar a certified copy of the trust deed for registration.
(2)
The prudential supervisor must certify that the trust deed complies with this Act.
(3)
The Registrar must register every copy of a trust deed that is so delivered and certified, except that the Registrar may refuse to register a trust deed if it contains any matter that is not clearly legible.
(4)
Upon registration of a copy of a deed, the Registrar must give the insurer a certificate of that registration, which may be part of the certificate of registration issued under section 201(2).
(5)
The certificate is conclusive evidence that the deed has been registered.
Compare: 1978, No. 103, s. 46
217 Amendment of registered trust deed
(1)
Where a registered trust deed has been lawfully amended, the insurer must deliver to the Registrar, as soon as practicable after the amendment is made,—
(a)
A copy of the instrument by which the amendment to the deed was made; and
(b)
A certificate by the prudential supervisor that the amendment has lawfully been made and that the trust deed as amended complies with this Act; and
(c)
If the Registrar so requires, a copy of the deed as amended.
(2)
The Registrar must register every copy of an instrument amending a deed that is so delivered and certified, except that the Registrar may refuse to register a copy of an instrument amending a deed if—
(a)
The deed as amended contains any matter that is not clearly legible; or
(b)
The prescribed registration fee is not paid.
(3)
Upon registration of the amendment, the Registrar must give a certificate as to the registration of a copy of the instrument.
(4)
The certificate is conclusive evidence that the copy has been registered.
Compare: 1978, No. 103, s. 47
Disclosure of Information
218 Disclosure of information to prudential supervisor
(1)
Every person—
(a)
Who is an actuary or auditor of an insurer; and
(b)
Who forms an opinion in the course of, or in connection with, the performance of the functions of that office that there is a serious problem with the insurer,—
must disclose to the prudential supervisor of the insurer information relating to the affairs of the insurer obtained in the course of performing that role.
(2)
For the purposes of this section, “a serious problem”
means—
(a)
The insurer is not operating in accordance with this Act, or any regulations made under this Act, or fails to meet any requirements of this Act or any such regulations, in a material respect; or
(b)
There is reason for doubt as to whether the financial position of the insurer, or the management of the affairs of the insurer, is adequate to ensure that it will comply with its trust deed.
(3)
For the avoidance of doubt, subsection (1) does not require any person who is an actuary or auditor of an insurer to carry out functions additional to those functions that he or she would ordinarily carry out in the course of performing that role, other than to disclose to the prudential supervisor information relating to the affairs of the insurer.
(4)
The disclosure must be made as soon as practicable after the actuary or auditor forms the relevant opinion.
(5)
This section applies despite any enactment, rule of law, or any provision of a contract.
Compare: 1989, No. 10, s. 18a
219 Protection of actuaries and auditors
(1)
No civil, criminal, or disciplinary proceedings lie against any actuary or auditor arising from the disclosure in good faith of information to the prudential supervisor under section 218.
(2)
No person may remove from office, or terminate the contract of appointment of, any actuary or auditor by reason of the disclosure in good faith of information to the prudential supervisor under section 218.
(3)
No tribunal, body, or authority having jurisdiction in respect of the professional conduct of any actuary or auditor may make any order against, or do any act in relation to, that person in respect of the fact of such disclosure.
(4)
No information received by the prudential supervisor under section 218 is admissible as evidence in any proceedings against the actuary or auditor concerned.
(5)
Nothing in subsection (4) limits the admissibility of any information obtained in any other way.
Compare: 1989, No. 10, s. 18b
220 Regulator to provide insurance numbers to employers
(1)
The Regulator must provide every employer with an insurance number by the earlier of—
(a)
As soon as practicable (and at least within 5 working days) after the person asks the Regulator for an insurance number or informs the Regulator that the person has become an employer; or
(b)
20 working days after the person is first named on a list of employers provided from time to time by the Commissioner.
(2)
The Regulator may require a person to provide their tax file number before dealing with the request.
(3)
The Regulator must ensure, when providing an insurance number to a person, that information is available to the person about the requirements about entering into, and maintaining in force, an accident insurance contract.
(4)
The Regulator may provide a provisional insurance number and change that number if need be.
(5)
The Regulator may rely on the address provided by the Commissioner, when sending out insurance numbers, unless the Regulator knows it is incorrect.
(6)
This section does not apply before 1 February 1999.
221 Manager to provide insurance numbers to others
(1)
The manager must provide an insurance number to every self-employed person or private domestic worker who asks for one—
(a)
As soon as practicable (and at least within 20 working days) if the person asks before 1 July 1999; or
(b)
Within 5 working days if the person asks on or after 1 July 1999.
(2)
The manager may provide a provisional insurance number and change that number if need be.
222 Regulator’s powers of verification
(1)
The Regulator may from time to time require an employer, self-employed person, or private domestic worker to verify that he or she is a party to an accident insurance contract (by sending the Regulator a copy of its insurance certificate or otherwise) and has provided his or her insurance number to the insurer in respect of the contract.
(2)
The Regulator may from time to time require an insurer—
(a)
To provide the names and insurance numbers of the persons with whom it has an accident insurance contract; and
(b)
To verify that the insurer has been provided with an insurance number in respect of all or any of those contracts; and
(c)
To confirm that the insurer has used the correct insurance number in relation to that or those contracts and in supplying information to the Regulator under this Act.
Ancillary Powers of Regulator
223 Regulator’s powers of inspection
(1)
The powers in this section may be used if, in the Regulator’s opinion, it is necessary for the purpose of—
(a)
Ascertaining whether a person is complying, or has complied, with this Act; or
(b)
Detecting contraventions of this Act.
(2)
The Regulator, or an employee or officer of the Regulator or a person authorised by the Regulator, may—
(a)
Require a person, including a person carrying on the business of banking, to produce for inspection, relevant documents within that person’s possession or control; or
(b)
Inspect and take copies of relevant documents; or
(c)
Take possession of relevant documents and remove them from the place where they are kept and retain them for a reasonable time, for the purpose of taking copies; or
(d)
Retain relevant documents for a period which is, in all the circumstances reasonable, if there are reasonable grounds for believing that they are evidence of the commission of an offence.
(3)
This section does not limit or affect the Tax Administration Act 1994 or the Statistics Act 1975.
Compare: 1993, No. 105, s. 365
224 Regulator’s entry to premises restricted
(1)
Despite section 223, the Regulator, or any person authorised by the Regulator, may not enter and search any place except—
(a)
With the consent of the occupier of that place; or
(b)
In accordance with this section and sections 225 to 229.
(2)
The Regulator may, from time to time, authorise an employee or appointed officer of the Regulator to apply for a search warrant in respect of a place.
(3)
The application must be made on oath.
(4)
A District Court Judge may, by warrant, authorise the Regulator or a person referred to in subsection (2) to search a place specified in the warrant, if satisfied that there are reasonable grounds to believe that it is necessary for a purpose set out in section 223 for the place to be searched.
(5)
A person who applies for a warrant must, having made reasonable enquiries, disclose—
(a)
Details of every previous application for a warrant to search the place that the person knows has been made within the preceding 20 working days; and
(b)
The result of the application.
Compare: 1986, No. 5, s. 98a
225 Powers conferred by warrant
(1)
A warrant issued under section 224 authorises the person named in it—
(a)
To enter and search the place specified in the warrant on 1 occasion within 20 working days of the date of issue of the warrant at a time that is reasonable in the circumstances:
(b)
To use such assistance as is reasonable in the circumstances:
(c)
To use such force for gaining entry and for breaking open any article or thing as is reasonable in the circumstances:
(d)
To search for and remove documents or any article or thing that the person executing the warrant believes on reasonable grounds may be relevant:
(e)
When necessary, to take copies of documents, or extracts from documents, that the person executing the warrant believes on reasonable grounds may be relevant:
(f)
Where necessary, to require a person to reproduce, or assist any person executing the warrant to reproduce in usable form, information recorded or stored in a document.
(2)
A person assisting the person executing the warrant also has the powers referred to in paragraphs (c), (d) and (e) of subsection (1).
(3)
The warrant must be executed in accordance with such reasonable conditions as may be specified in the warrant when it is issued.
Compare: 1986, No. 5, s. 98b
226 Warrant to be produced
A person executing a warrant issued under section 224—
(a)
Must have the warrant with him or her; and
(b)
Must produce it on initial entry and, if requested, at any subsequent time; and
(c)
Must identify himself or herself to the owner or occupier or person in charge of the place if that person is present; and
(d)
Must produce evidence of his or her identity.
Compare: 1986, No. 5, s. 98c
227 Other duties of person who executes warrant
(1)
A person who executes a warrant issued under section 224 must, before completing the search, leave in a prominent place at the place searched,—
(a)
In the case of a search carried out at a time when the owner or occupier was not present, a written notice stating,—
(i)
The date and time when the warrant was executed; and
(ii)
The name of the person who executed the warrant; and
(b)
In the case of a search where a document or article or thing was removed from the place being searched, a schedule of documents or articles or things that were removed during the search.
(2)
If it is not practicable to prepare a schedule before completing the search, or if the owner or occupier of the place being searched consents, the person executing the warrant—
(a)
May, instead of leaving a schedule, leave a notice stating that documents or articles or things have been removed during the search and that, within 5 working days of the search, a schedule will be delivered, left, or sent stating what documents, articles, or things have been removed; and
(b)
Must, within 5 working days of the search,—
(i)
Deliver a schedule to the owner or occupier; or
(ii)
Leave a schedule in a prominent position at the place searched; or
(iii)
Send a schedule by mail to the owner or occupier of the place searched.
(3)
Every schedule must state—
(a)
The documents, articles, and things that have been removed; and
(b)
The location from where they were removed; and
(c)
The location where they are being held.
Compare: 1986, No. 5, s. 98d
228 Duty to assist
The occupier or person in charge of the place that a person authorised pursuant to a warrant issued under section 224 enters for the purpose of searching must provide that person with all reasonable facilities and assistance in executing the warrant.
Compare: 1986, No. 5, s. 98e
229 Power to inspect and take copies of documents, etc, obtained under warrant
The Regulator, or any person authorised by the Regulator for the purpose, may inspect and take copies of any documents or extracts from them obtained pursuant to a warrant issued under section 224.
Compare: 1986, No. 5, s. 98f
230 Disposal of things seized
(1)
This section applies with respect to anything seized under a search warrant.
(2)
In any proceedings for an offence relating to anything seized under a search warrant, the court may order, either at the trial or hearing or on an application, that the thing be delivered to the person appearing to the court to be entitled to it, or that it be otherwise disposed of in such manner as the court thinks fit.
(3)
The Regulator may at any time, unless an order has been made under subsection (2), return the thing to the person from whom it was seized, or apply to a District Court Judge for an order as to its disposal. On any such application, the District Court Judge may make any order that a court may make under subsection (2).
(4)
If proceedings for an offence relating to the thing are not brought within a period of 3 months of seizure, any person claiming to be entitled to the thing may, after the expiration of that period, apply to a District Court Judge for an order that it be delivered to him or her. On any such application, the District Court Judge may adjourn the application, on such terms as he or she thinks fit, for proceedings to be brought, or may make any order that a court may make under subsection (2).
(5)
Where any person is convicted in any proceedings for an offence relating to anything in respect of which a search warrant has been issued enabling seizure, and any order is made under this section, the operation of the order is suspended,—
(a)
In any case until the expiration of the time prescribed by the Summary Proceedings Act 1957 or, as the case may require, the time prescribed by the Crimes Act 1961 for the filing of notice of appeal or an application for leave to appeal; and
(b)
Where notice of appeal is filed within the time so prescribed, until the determination of the appeal; and
(c)
Where application for leave to appeal is filed within the time so prescribed, until the application is determined and, where leave to appeal is granted, until the determination of the appeal.
(6)
Where the operation of any such order is suspended until the determination of the appeal, the court determining the appeal may, by order, cancel or vary the order.
Compare: 1996, No. 9, s. 51; 1993, No. 94, s. 118
231 Exercise of powers under warrant not affected by application to court
(1)
Where a person applies to the court in relation to an act or decision of the Regulator, or a person authorised by the Regulator under section 224(2), the Regulator or the authorised person may continue to exercise the powers under sections 224 to 229 until a decision on an application is given, as if no application had been made.
(2)
No person is excused from fulfilling an obligation under any of those sections by reason of any such application.
(3)
Subsections (1) and (2) apply despite any Act or any rule of law.
(4)
If the application is granted, no information acquired under those sections in relation to that act or decision is admissible in evidence in any proceedings unless the court hearing the proceedings in which it is sought to adduce the evidence is satisfied it was not obtained unfairly.
Compare: 1993, No. 105, s. 371
232 Offences
A person commits an offence, and is liable to a fine not exceeding $25,000, who—
(a)
Fails to comply with a requirement under section 223(2)(a); or
(b)
Fails to carry out his or her duty under section 228; or
(c)
Obstructs, delays, hinders, or deceives, or causes to be obstructed, delayed, hindered or deceived, the Regulator, any employee or officer of the Regulator, or a person authorised by the Regulator, while exercising a power conferred by section 223 or acting pursuant to a warrant issued under section 224.
Compare: 1993, No. 105, s. 365(4), (5)
233 False or misleading statements to Regulator
A person commits an offence, and is liable to a fine not exceeding $25,000, who—
(a)
Makes a statement to the Regulator knowing it to be false in a material particular; or
(b)
Wilfully does or says anything or omits to do or say anything for the purpose of misleading or attempting to mislead the Regulator.
234 Restriction on disclosure by authorised persons
(1)
The Regulator, or an employee, officer, or person authorised by the Regulator, who has—
(a)
Obtained a document or information in the course of making an inspection under section 223; or
(b)
Prepared a report in relation to an inspection under section 223—
must not disclose that document, information, or report, except—
(c)
In accordance with this Act; or
(d)
Subject to the approval of the Regulator, with the consent of the person to whom it relates; or
(e)
Subject to the approval of the Regulator, for the purposes of this Act or in connection with the exercise of powers conferred by this Act; or
(f)
To the extent that the information, or information contained in the document or report, is available under any Act or in a public document; or
(g)
In the course of criminal proceedings; or
(h)
Subject to the approval of the Regulator, for the purpose of detecting offences against any Act.
(2)
A person who fails to comply with this section commits an offence and is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding $15,000.
Compare: 1993, No. 105, s. 366(3), (4)
Operations of Offices of Registrar and Regulator Privileged
235 Proceedings privileged
(1)
No proceedings, civil or criminal, lie against—
(a)
The Registrar; or
(b)
The Regulator; or
(c)
Any employee or officer of the Registrar or Regulator—
for anything that person may do or say in the course of the operations of the Registrar, or, as the case may be, the Regulator, unless it is shown that the Regulator or Registrar or employee or officer acted in bad faith.
(2)
Subsection (1) does not apply in respect of proceedings for—
(a)
An offence against section 78 or section 78a or section 105 or section 105a of the Crimes Act 1961; or
(b)
An offence of conspiring, or attempting, to commit an offence against any of those sections; or
(c)
The offence of disclosure of information under section 234.
Compare: 1986, No. 5, s. 106
Funding Levy
236 Funding of Regulator
(1)
The purpose of this section is to provide for the recovery of the cost to the Crown of the performance of the Regulator’s functions under this Act.
(2)
Every insurer must pay, on the amount of total gross earnings of the persons covered by the insurer’s accident insurance contracts in the immediately preceding calendar year as determined by the Regulator, a levy at a rate or rates prescribed by regulations made under this Act to meet the costs of the Regulator under this Act in the previous financial year.
(3)
The levy must be paid to the Regulator, at such time as may be prescribed.
(4)
The Regulator must pay the levy into the Crown Bank Account.
(5)
A levy is recoverable as a debt due to the Regulator in any court of competent jurisdiction together with any interest on that amount that may be prescribed.
(6)
In any proceedings under this section, a certificate signed by the Regulator as to the amount of the levy payable, and as to the time within which the levy was required to be paid, is, without proof of signature by the Regulator, admissible in any proceedings and is evidence of the facts stated in the certificate.
Part 9 Insolvent Insurers Fund and Non-Compliers Fund
Insolvent Insurers Fund
237 Declaration of insolvent insurer
(1)
The Regulator must declare that an insurer is an insolvent insurer for the purposes of sections 238 to 261 —
(a)
If satisfied that—
(i)
A receiver has been appointed in respect of the insurer; or
(ii)
The insurer is subject to statutory management under Part III of the Corporations (Investigation and Management) Act 1989; or
(iii)
A liquidator or interim liquidator has been appointed in respect of the insurer under Part XVI of the Companies Act 1993; or
(iv)
The insurer has been removed from the New Zealand register; and
(b)
If the prudential supervisor or administrator of the insurer has informed the Regulator that the assets of the insurer are, or are likely to be, insufficient to meet its obligations under accident insurance contracts.
(2)
The Regulator must publish the declaration in the Gazette.
(3)
The declaration of an insurer as an insolvent insurer takes effect on a date specified by the Regulator in the declaration, which must be a date after the date of the declaration.
238 Primary responsibility in relation to insolvent insurer
(1)
After an insurer is declared to be an insolvent insurer, the prudential supervisor, the administrator, the insurer, and the Regulator each has, in the performance of its duties, a primary responsibility, to the extent practicable,—
(a)
To ensure that obligations under the insolvent insurer’s accident insurance contracts are met without interruption; and
(b)
To minimise the extent to which the costs of meeting those obligations fall on the Insolvent Insurers Fund.
(2)
That responsibility includes a responsibility to minimise the extent to which the costs of meeting obligations in respect of future accidents will fall on the Fund, either by ensuring—
(a)
That the insurer’s accident insurance contracts are promptly terminated under section 189; or
(b)
That the insurer’s accident insurance contracts are promptly transferred to another insurer; or
(c)
That a better way of meeting that responsibility is promptly found and implemented.
239 Role of Regulator in respect of insolvent insurer
If an insurer is declared to be an insolvent insurer, the Regulator—
(a)
Must monitor whether, or to what extent, the obligations under the insolvent insurer’s accident insurance contracts are being met without interruption (whether by the administrator out of the insurer’s assets or otherwise), and the assistance (if any) needed under this Part; and
(b)
Must estimate, from time to time, the amount by which the assets of the insurer are, or are likely to be, insufficient to meet its obligations under accident insurance contracts (the “shortfall”
); and
(c)
Must activate the Insolvent Insurers Fund in respect of the insurer when the Regulator estimates that the shortfall requires it; and
(d)
Must manage the Fund to meet the responsibility in section 238; and
(e)
May exercise any of the powers in this Part in relation to the insolvent insurer to the extent necessary or desirable to meet those responsibilities.
240 Role of administrator of insolvent insurer
(1)
For the avoidance of doubt, the role of an administrator of the insurer continues, subject to the responsibility in section 238, despite a declaration that the insurer is an insolvent insurer or the activation of the Fund in respect of the insurer.
(2)
However, the Regulator may, as a last resort power if the Regulator is satisfied that it is necessary to do so to meet the responsibility in section 238, terminate or suspend the appointment of the insurer’s prudential supervisor and assume the prudential supervisor’s powers under the trust deed.
241 Insolvent Insurers Fund
There is established a fund to be called the Insolvent Insurers Fund.
242 Money payable into Insolvent Insurers Fund
There must from time to time be paid into the Fund—
(a)
Crown advances under section 244 and section 245:
(b)
Contributions under section 246:
(c)
Insurers’ contributions under section 247:
(d)
All income accruing from the investment or re-investment of money in the Fund or otherwise accruing to the Fund:
(e)
All interest required to be paid under section 248(2):
(f)
All other money that is lawfully payable into the Fund.
243 Initial Crown advance
The purpose of an initial Crown advance to the Insolvent Insurers Fund is to ensure that, in the period immediately following the declaration that an insurer is an insolvent insurer, money is available to provide without interruption statutory entitlements under accident insurance contracts with the insolvent insurer, where the assets of the insolvent insurer are, or are likely to be, insufficient to continue to provide those entitlements, and no other money is for the time being available for that purpose.
244 Regulator must estimate amount of initial Crown advance to Insolvent Insurers Fund
(1)
As soon as practicable after activating the Fund, the Regulator must estimate the amount of initial Crown advance necessary to ensure that statutory entitlements under the insolvent insurer’s accident insurance contracts are provided without interruption.
(2)
In making that estimate, the Regulator must have regard to—
(a)
The estimate of the outstanding claims liability in relation to the insolvent insurer as at that date; and
(b)
The known assets of the insolvent insurer and their availability for realisation; and
(c)
The costs incurred or likely to be incurred by the Regulator in carrying out the Regulator’s functions under sections 237 to 261 in relation to the insolvent insurer; and
(d)
The amount that persons who have accident insurance contracts with the insolvent insurer will be required to contribute under section 246, and the time at which the Regulator anticipates receiving those contributions; and
(e)
The amount that insurers will be required to contribute to the Fund in respect of the insolvent insurer under section 247, and the time at which the Regulator anticipates receiving those contributions; and
(f)
Any information provided to the Regulator by the administrator of the insolvent insurer under this Act.
(3)
The Regulator must give a copy of the estimate to the Minister of Finance, as soon as practicable after making it.
(4)
The Minister of Finance must, within 5 working days of receiving the estimate, advise the Regulator whether the Minister agrees or disagrees with the estimate.
(5)
If the Minister advises the Regulator that he or she disagrees with the estimate, the Regulator must revise the estimate having regard to any comments that the Minister gives the Regulator in relation to it.
(6)
Subsections (3) to (5) apply to a revised estimate.
(7)
The Regulator must publish an estimate or revised estimate in the Gazette as soon as practicable after being notified of the Minister’s agreement to it.
(8)
The amount of the estimate or revised estimate must be paid from the Crown Bank Account to the Fund, without further appropriation than this section, as soon as practicable after the publication in the Gazette.
245 Further Crown advances
(1)
The Regulator may from time to time make an estimate of the amount of further Crown advance necessary to ensure that statutory entitlements under the insolvent insurer’s accident insurance contracts are provided without interruption.
(2)
Section 244 applies to the estimate as if it were an estimate made under that section.
246 One-off contribution to Insolvent Insurers Fund by employers, etc
(1)
This section applies to every employer, self-employed person, and private domestic worker who was a party to any of the insolvent insurer’s accident insurance contracts that was in effect at any time during the last year.
(2)
The “last year”
is the period of 12 calendar months ending with the day immediately before the specified insolvency date.
(3)
Every such person must pay a single contribution to the Fund equal to the amount of annual premium that was payable to the insolvent insurer in respect of the person’s accident insurance contract.
(4)
The Regulator may allow all contributors to pay a lower contribution than that required under subsection (3) if the total amount of contributions payable under that subsection would otherwise be greater than the amount necessary to enable the responsibility in section 238 to be met, at such time as may be prescribed.
(5)
A lower contribution under subsection (4) must be calculated pro rata, so that all persons to whom this section applies pay the same proportion of the total contribution that they would have paid under subsection (3).
(6)
The contributions must be paid to the Regulator, for payment into the Fund.
247 Annual insurers’ contributions to Insolvent Insurers Fund
(1)
Every insurer must contribute to the Insolvent Insurers Fund in respect of each insolvent insurer in accordance with this section.
(2)
The total amount payable by all insurers is the amount that the Regulator estimates will be necessary to meet all the liabilities of the Fund in respect of the insurer under this Act, after deducting the total amount of the contributions payable to the Fund by employers, self-employed persons, and private domestic workers under section 246.
(3)
The amount in subsection (2) is to be determined—
(a)
In each calendar year after the Fund is activated in respect of the insurer:
(b)
In respect of the previous financial year.
(4)
Every insurer must pay a contribution calculated in accordance with the following formula—
a ÷ b × c
where—
a
is the amount of the total gross premiums in respect of all of the insurer’s accident insurance contracts in the immediately preceding calendar year, as determined by the Regulator
b
is the amount of the total gross premiums in respect of all insurers’ accident insurance contracts in the immediately preceding calendar year, as determined by the Regulator, minus the total gross premiums in respect of any insolvent insurer in that year
c
is the amount determined under subsection (2).
(5)
The maximum annual contribution payable by all insurers under subsection (2) in respect of each insolvent insurer is an amount representing 2%, or such other percentage as may be prescribed on the recommendation of the Minister, of the amount of the total gross premiums payable to all insurers under all accident insurance contracts in the immediately preceding calendar year, minus the gross premiums payable in that year to any insolvent insurer or to an insurer whose name has been removed from the register.
(6)
The Minister must not make a recommendation under subsection (5) unless the Minister has consulted with insurers and prudential supervisors in relation to the recommendation.
(7)
The contributions must be paid to the Regulator, for payment into the Fund.
(8)
In this section, “insurer”
includes a person who was a registered insurer at any time during the relevant period but is no longer a registered insurer, unless the Regulator decides that no practicable purpose is to be served by the inclusion.
248 Payment of contributions by employers and insurers
(1)
A contribution payable under section 246 or section 247 is payable at such times as may be determined by the Regulator.
(2)
An amount payable under section 246 or section 247 is recoverable as a debt due to the Regulator in any court of competent jurisdiction together with any interest on that amount that may be prescribed.
(3)
In any proceedings under this section, a certificate signed by the Regulator as to the amount of the appropriate contribution payable, and as to the time within which the contribution was required to be paid, is, without proof of signature by the Regulator, admissible in any proceedings and is evidence of the facts stated in the certificate.
249 Refunds of Crown advance
(1)
The Regulator must make repayments of Crown advance as soon as the Insolvent Insurers Fund becomes sufficiently in credit to ensure that statutory entitlements under the insolvent insurer’s accident insurance contracts can be provided without interruption and without needing to use that part, or all, of the Crown advance.
(2)
The Regulator must make the repayment as soon as practicable.
250 Refunds of insurers’ contributions
(1)
This section applies when all of the Crown advance has been repaid from the Insolvent Insurers Fund.
(2)
The Regulator must refund all or part of the contributions made by insurers under section 247 if the Insolvent Insurers Fund becomes sufficiently in credit to ensure that statutory entitlements under the insolvent insurer’s accident insurance contracts can be provided without interruption and without needing to use all or that part of those contributions.
(3)
A refund under this section must be calculated pro rata, so that the end result is that all persons to whom section 247 applies pay the same proportion of the total contribution that is required by that section.
251 Refunds of other contributions
(1)
This section applies when all of the Crown advance, and all of the contributions made by insurers under section 247, have been repaid from the Insolvent Insurers Fund.
(2)
The Regulator must refund all or part of the contributions made by employers, self-employed persons, and private domestic workers under section 246 if the Insolvent Insurers Fund becomes sufficiently in credit to ensure that statutory entitlements under the insolvent insurer’s accident insurance contracts can be provided without interruption and without needing to use all or that part of those contributions.
(3)
A refund under this section must be calculated pro rata, so that the end result is that all persons to whom section 246 applies pay the same proportion of the total contribution that is required by that section.
(4)
This section does not require the Regulator to pay any amount less than $100 to a person.
252 Payments out of Insolvent Insurers Fund
(1)
The Regulator may meet the following costs from the Fund, and may pay the following payments out of the Fund, without further appropriation than this section:
(a)
A payment to a person in consideration of the person contracting with the Regulator to meet all or part of the total cost of statutory entitlements under the insolvent insurer’s accident insurance contracts:
(b)
The amount of a statutory entitlement under any of the insolvent insurer’s accident insurance contracts or any other payment that this Act requires the Fund to meet:
(c)
An amount of Crown advance that is repayable under section 249 or interest on that advance under section 276:
(d)
A refund that is payable under section 250 or section 251:
(e)
The cost of administration of the Fund (including any legal or other costs connected with the declaration of an insurer as an insolvent insurer or with the transfer of the Regulator’s obligations):
(f)
Such other amounts as the Regulator from time to time determines to allocate for any of the purposes for which the Fund may be applied.
(2)
The Regulator is entitled to be indemnified by the Fund in respect of all payments made by the Regulator and all costs and expenses incurred in or in connection with the exercise of his or her functions in respect of the Fund under this Part.
(3)
A payment under subsection (1) may be subject to such terms and conditions as the Regulator thinks fit, including conditions to ensure that the person to whom the payment is made is obliged to account for the use of the funds so allocated.
253 Administrator to provide information to Regulator
(1)
The administrator of an insolvent insurer must, on request by the Regulator, provide a statement to the Regulator disclosing each of the following matters that are known to the administrator:
(a)
Details of the insolvent insurer’s accident insurance contracts; and
(b)
The amount of the insolvent insurer’s current, future, and potential obligations to provide statutory entitlements under accident insurance contracts; and
(c)
The difference between that amount and the expected proceeds of realisation of the assets of the insolvent insurer.
(2)
The administrator of an insolvent insurer must, on request by the Regulator, provide the Regulator with all documents relating to the insolvent insurer’s accident insurance contracts.
(3)
The administrator of an insolvent insurer must, on request by the Regulator, supply to the Regulator all additional information in the administrator’s possession relating to any such contracts or to any claims under them.
(4)
The administrator must comply with a request under this section within a period to be set by the Regulator.
(5)
The Regulator may request, and the administrator must disclose, information required by this section even if it includes personal information.
254 Regulator may contract out management or liabilities of Insolvent Insurers Fund
(1)
The Regulator may enter into contracts with 1 or more persons—
(a)
To undertake 1 or more of the Regulator’s responsibilities for management of the Insolvent Insurers Fund:
(b)
To manage the provision of all or any statutory entitlements for which the Fund is responsible:
(c)
To reinsure the liabilities of the Fund:
(d)
To meet all or part of the total cost of statutory entitlements for which the Fund is responsible.
(2)
The person contracted with must be an insurer if the contract provides for the Regulator to cease to have any liability for the provision of the statutory entitlements.
255 Transfer of liabilities
(1)
The Regulator may direct 1 or more insurers to enter into a contract of the type referred to in section 254(1)(d), in return for a payment determined by the Regulator to be the amount that is, at the time of the transfer, the outstanding claims liability in relation to the accident insurance contracts which are transferred.
(2)
The Regulator may give such a direction only if the Regulator has been unable to enter into a contract under section 254 and is satisfied that it is necessary to give a direction to enable the responsibility in section 238 to be met.
(3)
An insurer to whom a direction is given under subsection (1) may appeal to the District Court against the amount determined by the Regulator, if the insurer considers the amount does not represent that outstanding claims liability.
256 Provisions relating to contracting out
(1)
For the purpose of a contract under section 254 or section 255, the Regulator may—
(a)
Make payments out of the Insolvent Insurers Fund to a person in consideration of the person entering into the contract:
(b)
Declare and direct that all rights vested in, and all obligations imposed on, the insolvent insurer are vested in or imposed on an insurer with whom the contract is entered into, on a date specified in the declaration, if the rights or obligations—
(i)
Arise from or relate to the insolvent insurer’s accident insurance contracts; and
(ii)
Are necessary to deal with and finalise any claim against the insolvent insurer for the provision of statutory entitlements.
(2)
A contract under section 254 or section 255 is not an accident insurance contract.
257 Regulator may assume rights and obligations
(1)
This section enables the Regulator to assume certain rights and obligations if the Regulator—
(a)
Is satisfied that it is necessary to do so to meet the responsibility in section 238; and
(b)
Has consulted with the administrator of an insolvent insurer; and
(c)
Has considered whether or not it is appropriate to exercise the powers in section 254.
(2)
The Regulator may declare that all rights vested in, and all obligations imposed on, an insolvent insurer—
(a)
That arise from or relate to an accident insurance contract with the insolvent insurer; and
(b)
That are necessary to deal with and finalise a claim against the insolvent insurer for the provision of statutory entitlements—
are vested in or imposed on the Regulator.
(3)
Neither the insolvent insurer nor the administrator of the insolvent insurer is entitled, without the consent of the Regulator, to exercise the rights, or discharge the obligations, vested in or imposed on the Regulator.
(4)
This Act applies to the exercise by the Regulator of the rights or obligations vested in or imposed on the Regulator as if the Regulator were an insurer.
(5)
The Regulator must, as soon as practicable after becoming liable to provide statutory entitlements under this section,—
(a)
Take reasonable steps to ensure that every person who is a party to the insolvent insurer’s accident insurance contracts, and every person to whom the Regulator becomes liable to provide statutory entitlements, is advised of the declaration and the procedures for dealing with the Regulator (including claiming statutory entitlements) under the insolvent insurer’s accident insurance contracts:
(b)
Terminate the accident insurance contract under section 189, so that no obligations arise under the contract in respect of future accidents.
(6)
The Regulator stands in the place of the management or board of the insurer, or in the place of the administrator of the insurer, with all their powers, for the purpose of—
(a)
Assuming the rights and obligations under this section; and
(b)
Enforcing a risk sharing or other agreement entered into by the insurer.
258 Regulator as insurer
When the operation of the Insolvent Insurers Fund so requires, the Regulator is to be treated as an insurer under this Act for the purpose of enabling the Regulator to meet obligations to pay statutory entitlements for which the Fund is responsible.
259 Regulator may intervene in certain legal proceedings
(1)
The Regulator may intervene at any stage of any proceedings before a court if—
(a)
The administrator of an insolvent insurer applies to a court for directions in relation to a matter arising from the administration of an insurer; or
(b)
The exercise by the administrator of an insolvent insurer of any of the administrator’s functions is challenged, reviewed, or called into question in proceedings before a court; or
(c)
Any other matter that concerns or may affect the operation of sections 237 to 261 is raised in proceedings before a court.
(2)
In that case, the Regulator has all the rights of a party to the proceedings, including the right to appeal against an order, judgment, or direction of the court.
(3)
The Regulator is entitled to be paid, out of the Fund, all of his or her costs of taking action under this section.
260 Regulator may recover proceeds of realisation of insolvent insurer’s assets
(1)
The Regulator may recover from the administrator of an insolvent insurer any proceeds of the realisation of the insurer’s assets—
(a)
That have been incorrectly paid out by the administrator; and
(b)
That are required to defray the cost to the Fund of providing statutory entitlements under the insolvent insurer’s accident insurance contracts.
(2)
“Incorrectly paid out”
means a payment made for a purpose that has a lower priority than claims secured by the mandatory first charge under section 215.
(3)
The entitlement to payment in subsection (1) has priority over the claim of any other person (other than in respect of the cost of the realisation of the insolvent insurer’s assets).
(4)
An amount payable under subsection (1) is recoverable as a debt due to the Regulator in any court of competent jurisdiction together with any interest on that amount that may be prescribed.
261 Termination of insolvent insurer status
(1)
The Regulator may revoke a declaration made under section 237 that an insurer is an insolvent insurer if the prudential supervisor satisfies the Regulator that the assets of the insurer are, or are likely to be, sufficient to meet its obligations under accident insurance contracts.
(2)
The Regulator must publish notice of the revocation in the Gazette.
(3)
The revocation may be made on such terms and conditions as the Regulator may determine.
(4)
The insurer remains liable, despite the revocation, to reimburse any payments made out of the Fund in respect of it.
(5)
Any such reimbursement must be paid to the Regulator for payment into the Fund and for refunding in accordance with sections 249 to 251 if they apply.
Non-Compliers Fund
262 Non-Compliers Fund
(1)
There is established a fund to be called the Non-Compliers Fund.
(2)
The purpose of the Fund is to guarantee—
(a)
The provision of statutory entitlements to a person who, but for the breach of an obligation by an employer under section 169(1), would have been entitled to those entitlements; and
(b)
The meeting of the costs of any claims properly lodged with the Fund under Part 4 or any contributions or reimbursements payable under sections 104 to 114.
263 Money payable into Non-Compliers Fund
There must from time to time be paid into the Fund—
(a)
Crown advances under section 265:
(b)
All penalties imposed in respect of a failure by an employer to comply with section 169(1):
(c)
Annual levies payable by insurers under section 266:
(d)
All income accruing from the investment or re-investment of money in the Fund or otherwise accruing to the Fund:
(e)
All other money that is lawfully payable into the Fund.
264 Crown advance to Non-Compliers Fund
The purpose of Crown advances to the Non-Compliers Fund is to ensure the earliest practicable provision of money for entitlements for which the Fund is responsible.
265 Regulator must estimate amount of Crown advance to Non-Compliers Fund
(1)
Before the beginning of each financial year, the Regulator must estimate the amount of money that will be necessary to be paid into the Non-Compliers Fund for the purposes of the Fund.
(2)
In making that estimate, the Regulator must have regard to—
(a)
Any amount of money in the Fund other than amounts paid into the Fund under this section; and
(b)
The Regulator’s estimate of penalties likely to be paid into the Fund in respect of a failure by an employer to comply with section 169(1) in the financial year; and
(c)
The Regulator’s estimate of the timing and rate of payment of any annual levy imposed on insurers under section 266.
(3)
The Regulator must give a copy of the estimate to the Minister of Finance, as soon as practicable after making it.
(4)
The Minister of Finance must, within 5 working days of receiving the estimate, advise the Regulator whether he or she agrees or disagrees with the estimate.
(5)
If the Minister of Finance advises the Regulator that he or she disagrees with the estimate, the Regulator must revise the estimate having regard to any comments that the Minister of Finance gives the Regulator in relation to it.
(6)
Subsections (3) to (5) apply to a revised estimate.
(7)
The Regulator must publish an estimate or revised estimate in the Gazette as soon as practicable after being notified of the Minister’s agreement to it.
(8)
The amount of the estimate or revised estimate must be paid from the Crown Bank Account to the Fund, without further appropriation than this section, as soon as practicable after the publication in the Gazette.
266 Annual insurers’ levy
(1)
Every insurer must pay an annual levy to the Non-Compliers Fund of an amount determined in accordance with this section.
(2)
The Regulator must, at the end of each financial year after the commencement of this Act, determine the total amount to be levied on insurers to the Fund in respect of that year.
(3)
That amount is the amount by which the penalty payments payable to the Fund for that year are less than the sum of—
(a)
The outstanding claims liability as at the end of the financial year for the Non-Compliers Fund; and
(b)
The costs of the Regulator in administering the Fund in that financial year.
(4)
Every insurer must pay a levy calculated in accordance with the following formula:
a ÷ b × c
where—
a
is the amount of the total gross premiums in respect of all of the insurer’s accident insurance contracts in the immediately preceding calendar year, as determined by Regulator
b
is the amount of the total gross premiums in respect of all insurers’ accident insurance contracts in the immediately preceding calendar year, as determined by the Regulator, minus the total gross premiums in respect of any insolvent insurer in that year
c
is the amount determined under subsection (2).
(5)
The levies must be paid to the Regulator for payment into the Fund.
(6)
In this section, “insurer”
includes a person who was a registered insurer at any time during the relevant period but is no longer a registered insurer, unless the Regulator decides that no practicable purpose is to be served by the inclusion.
267 Payment of levy by insurers
(1)
A levy payable by an insurer under section 266 is payable at such times as may be determined by the Regulator.
(2)
Any such levy is recoverable as a debt due to the Regulator in any court of competent jurisdiction together with any interest on the amount of the levy that may be prescribed.
(3)
In any proceedings under this section, a certificate signed by the Regulator as to the amount of the appropriate levy payable, and as to the time within which the levy was required to be paid, is, without proof of signature by the Regulator, admissible in any proceedings and is evidence of the facts stated in the certificate.
268 Payments out of Non-Compliers Fund
(1)
The Regulator may meet the following costs from the Fund, and pay the following payments out of the Fund, without further appropriation than this section:
(a)
A payment to a person in consideration of the person contracting with the Regulator to meet all or part of the total cost of statutory entitlements for which the Fund is responsible:
(b)
The statutory entitlements of a person who, but for the breach of an obligation by an employer under section 169, would have been entitled to entitlements or any other payment that this Act requires the Fund to meet:
(c)
An amount of Crown advance that is repayable under section 271 or interest on that advance under section 276:
(d)
The cost of administration of the Fund:
(e)
Such other amounts as the Regulator from time to time determines to allocate for any of the purposes for which the Fund may be applied.
(2)
The Regulator is entitled to be indemnified by the Fund in respect of all payments made by the Regulator and all costs and expenses incurred in or in connection with the exercise of his or her functions in respect of the Fund under this Part.
269 Applications to Non-Compliers Fund
A person eligible for cover or a statutory entitlement for which the Non-Compliers Fund is responsible may claim in accordance with Part 4.
270 Regulator as insurer
When the operation of the Non-Compliers Fund so requires, the Regulator is to be treated as an insurer under this Act for the purpose of enabling the Regulator to meet obligations to pay statutory entitlements for which the Fund is responsible.
271 Repayment of Crown advance
(1)
Crown advances to the Non-Compliers Fund must be repaid to the Crown Bank Account by the end of the financial year following the year in which it was paid.
(2)
If the Regulator considers that the amount for the time being in the Fund is insufficient to meet the obligations to make payments from the Fund, the Regulator may extend the time for repayment of the Crown appropriation until the end of the next financial year.
(3)
The Regulator must take all practicable steps to ensure that any amount required to be repaid to the Crown Bank Account is repaid as soon as possible.
272 Regulator may contract out management or liabilities of Non-Compliers Fund
(1)
The Regulator may enter into contracts with 1 or more persons—
(a)
To undertake 1 or more of the Regulator’s responsibilities for management of the Non-Compliers Fund under this Act:
(b)
To manage the provision of all or any statutory entitlements guaranteed by the Fund:
(c)
To reinsure the liabilities of the Fund:
(d)
To meet all or part of the total cost of statutory entitlements for which the Fund is responsible.
(2)
The person contracted with must be an insurer if the contract provides for the Regulator to cease to have any liability for the provision of the statutory entitlements.
273 Provisions relating to contracting out
(1)
For the purpose of a contract under section 272, the Regulator may make payments out of the Non-Compliers Fund to a person in consideration of the person entering into the contract.
(2)
A contract under section 272 is not an accident insurance contract.
Miscellaneous Provisions Relating to Insolvent Insurers Fund and Non-Compliers Fund
274 Management of Funds
The Insolvent Insurers Fund and the Non-Compliers Fund are under the direction, control, and management of the Regulator except to the extent provided for in any contract entered into under section 254 or section 255 or section 272.
275 Investment of Funds
(1)
The Regulator must invest, in the same manner as if he or she were a trustee, all money that forms part of the Insolvent Insurers Fund or the Non-Compliers Fund that is not immediately required for expenditure.
(2)
The Regulator’s power to invest is subject to any direction that may be given to the Regulator from time to time by the Minister.
(3)
The Funds are not subject to income tax.
276 Interest on Crown advances
Interest must be paid from the Insolvent Insurers Fund and from the Non-Compliers Fund to the Crown Bank Account on the balance of any Crown advance held in the Fund, in the prescribed manner and at a rate to be determined by the Minister of Finance and notified in the Gazette.
277 Accounting
(1)
All monies paid into the Non-Compliers Fund and the Insolvent Insurers Fund are public money as defined in section 2(1) of the Public Finance Act 1989.
(2)
The Regulator must prepare a set of financial statements reflecting the results of the operations, cash flows, and financial position of the Regulator incorporating and separately disclosing the operations, cash flows, and financial position of the Non-Compliers Fund and the Insolvent Insurers Fund.
(3)
The financial statements must separately disclose the operations, cash flows, and financial position of the Insolvent Insurers Fund in respect of each insolvent insurer.
(4)
The financial statements must comply with generally accepted accounting practice as defined in section 2(1) of the Public Finance Act 1989.
(5)
The financial statements are necessary additional financial statements of the department as required under section 35(k) of the Public Finance Act 1989 and are subject to the requirements of Part IV of the Public Finance Act 1989.
Part 10 Non-Competitive Provision of Accident Insurance
Preliminary Provisions
278 Definitions
In this Part, unless the context otherwise requires,—
“Accident insurance contract”, in relation to a person who is self-employed or a private domestic worker, means an accident insurance contract that the person has entered into after complying with section 177 or section 182:
“Earner” has the same meaning as in section 13; but does not include a self-employed person who has an accident contract, except to the extent that the person is also an employee:
“Manager” means the Corporation:
“Non-earner”, despite the special definition of the term “earner”
in this section, has the same meaning as in section 13:
“Non-work injury” means a personal injury covered by this Act other than—
(a)
A work-related personal injury; or
(b)
A motor vehicle injury; or
(c)
A personal injury caused by medical misadventure.
279 Application of this Part
(1)
This Part applies to the provision of cover for, and the delivery of entitlements to,—
(a)
Non-earners, employees, and private domestic workers, in respect of non-work injuries; and
(b)
Self-employed persons who do not have an accident insurance contract, in respect of work-related personal injury (other than as an employee) and non-work injury; and
(c)
Private domestic workers who do not have an accident insurance contract, in respect of work-related personal injury in that private domestic work; and
(d)
All persons, in respect of motor vehicle injury; and
(e)
Persons who have cover or an entitlement in accordance with Part 13, in respect of personal injury suffered while any former Act was in force.
(2)
To avoid any doubt, this section applies to a person not ordinarily resident in New Zealand who is not excluded from cover by section 42.
280 Duty of manager
(1)
The manager has a duty to—
(a)
Determine cover for persons to whom this Part applies; and
(b)
Provide statutory entitlements, if required in accordance with the provisions of this Act, to every person who—
(i)
Suffers a personal injury in respect of which cover applies under Part 3; and
(ii)
Is a person to whom this Part applies because of the kind of injury which the person has suffered; and
(c)
Provide entitlements required by Part 13 to be provided to any person; and
(d)
Carry out the functions of a receiving insurer under Part 4; and
(e)
Manage the Accounts required by this Part to be maintained and operated; and
(f)
Collect premiums and levies under this Part; and
(g)
Administer Part 6 in relation to persons to whom this Part applies.
(2)
The manager may, in respect of persons who lodge claims with the manager as a receiving insurer under Part 4, choose which Account to provide the entitlement from, and must repay to that Account any amount later received from another insurer in respect of the provision of that entitlement.
Financial Management
281 Separate Accounts
(1)
The manager must maintain and operate—
(a)
An Earners’ Account for the purpose set out in section 282:
(b)
A Non-Earners’ Account for the purpose set out in section 290:
(c)
A Motor Vehicle Account for the purpose set out in section 291:
(d)
A Medical Misadventure Account for the purpose set out in section 296:
(e)
A Self-Employed Work Account for the purpose set out in section 299:
(f)
A Residual Claims Account for the purpose set out in section 303.
(2)
Part 11 applies in respect of the management of the Accounts.
Compare: 1992, No. 13, ss. 108(2), 113(2), 120(2), 122(2), 126, 127, 133
Earners’ Account
282 Application and source of funds
(1)
The purpose of the Earners’ Account is to finance entitlements provided under this Act in respect of personal injury to earners who suffer personal injury that is a non-work injury.
(2)
The funds for the Earners’ Account are to be derived from—
(a)
Premiums payable under section 283(1) (including premiums payable by virtue of Part 13); and
(b)
The prescribed Earners’ Account levy payable under section 283(2); and
(c)
Premiums payable by persons under section 286.
(3)
The funds in the Earners’ Account must be applied to meet the costs of—
(a)
Statutory entitlements of any earner who has cover in respect of personal injury that is a non-work injury; and
(b)
Statutory entitlements required to be funded in accordance with section 296(2)(b); and
(c)
Weekly compensation required to be provided to a person covered by section 286; and
(d)
Entitlements that are required to be provided in accordance with Part 13 in respect of persons whose entitlements would have been provided from the Earners’ Account under the Accident Rehabilitation and Compensation Insurance Act 1992; and
(e)
Administering the Account; and
(f)
Any other expenditure authorised by this Act.
(4)
The purpose of the Earners’ Account levy under subsection (2)(b) is to fund the claims referred to in subsection (3)(d).
Compare: 1992, No. 13, s. 113
283 Earners to pay premiums and levy
(1)
Every earner must pay, in accordance with this Act and regulations made under it, premiums to fund the Earners’ Account.
(2)
Every earner, and every self-employed person (whether or not they have an accident insurance contract) must pay, in accordance with this Act and regulations made under it, the prescribed Earners’ Account levy.
(3)
Regulations made under this Act for the purposes of this section may prescribe, for example, the amount of the premium or levy and the manner of payment.
Compare: 1992, No. 13, s. 114
284 Rate of premiums and experience rating
(1)
Premiums must be paid under section 283 at a rate or rates prescribed by regulations made under this Act and must be related in whole or in part to the level of earnings derived or deemed by regulation to be derived by the earner.
(2)
The extent of funds to be derived from premiums under section 283 is to be calculated to achieve the following:
(a)
The outstanding claims liability of the Earners’ Account as at 30 June 1999, as recognised by the manager from time to time, is to be fully funded no later than 30 June 2014 by the prescribed Earners’ Account levy:
(b)
The cost of all other claims under the Earners’ Account is to be fully funded by premiums.
(3)
The regulations may establish a system for the experience rating of earners in relation to premium rates, and any such system may include no-claim bonuses, higher or lower premiums, and claim thresholds.
Compare: 1992, No. 13, ss. 114, 116
285 Collection of premiums by deduction from employee earnings
(1)
For the purpose of enabling the collection of the premiums payable under section 283 by instalments, when an employer makes a payment to an employee that is included in the earnings of the person as an employee of the employer, the employer must, at the time of making that payment, make a deduction in accordance with this section from that amount on account of the premium payable.
(2)
Schedule 5 applies to any deduction under subsection (1).
Compare: 1992, No. 13, s. 115
Non-Earners Who Elect to be Earners
286 Purchase of weekly compensation by non-earners
(1)
A person who is or has been an earner may elect on the prescribed form to purchase from the manager the right to receive weekly compensation.
(2)
The election may be made only by a person who—
(a)
Has had at least 12 months continuous employment; and
(b)
Makes the election while still in that employment or within 1 month after ceasing that employment; and
(c)
Pays the premium when required to do so.
(3)
The election must specify—
(a)
The date on which the right to receive weekly compensation will start, which may be the date on which the election is made or any later date; and
(b)
The period for which the election is applicable, which may not be less than 3 months nor more than 2 years; and
(c)
An amount which is to be treated as the earnings of the person for the purpose of the election, which may not exceed the weekly earnings of the person calculated under clause 9 of Schedule 1 as if the person were in permanent employment and as if the incapacity of the person commenced more than 5 weeks before the date of the election.
(4)
The election has no effect in respect of any personal injury suffered before the election is made.
(5)
A person who is on parental leave within the meaning of the Parental Leave and Employment Protection Act 1987, or who has had an application for parental leave approved under that Act, is treated for the purpose of this section as having had at least 12 months continuous employment.
Compare: 1992, No. 13, s. 45(1), (2), (3), (4), (5), (6)
287 Compensation for non-earners who purchase weekly compensation
(1)
A person who has made an election under section 286 is entitled to weekly compensation for loss of potential earning capacity as if that person had earnings at the rate specified in the election—
(a)
If the person suffers incapacity resulting from personal injury during the period for which the election is applicable; and
(b)
If the person has cover for the personal injury under Part 3.
(2)
Weekly compensation for loss of potential earning capacity under this section is payable for not more than 5 years after the date on which incapacity first commenced.
(3)
Subsection (1) is subject to section 289 (resumption of employment)
Compare: 1992, No. 13, s. 45(7), (8)
288 Premiums for non-earners who purchase weekly compensation
(1)
Premiums collected under section 286(2) are to be used to fund the Earners’ Account.
(2)
The premium payable may be prescribed in regulations made under this Act and must be assessed by the manager in any case where no premium is so prescribed.
(3)
Premiums are to be prescribed or assessed with the aim of their being sufficient to fully fund the costs arising from the elections in that year.
Compare: 1992, No. 13, s. 45(9), (10)
289 Resumption of employment by non-earner who purchased weekly compensation
(1)
This section applies where a person who has made an election under section 286 resumes employment and the election is still applicable.
(2)
The person may elect to terminate the election, on application to the manager, in which case the person is entitled to receive a refund of the premium paid in respect of the period between the date of the application and the date on which the election terminates (so long as that period is greater than 3 months).
(3)
If no application to terminate the election is made, the election is converted into a right to receive a top-up from the manager if the person becomes entitled to weekly compensation.
(4)
The amount of the top-up is the amount (if any) by which the weekly compensation payable to the person calculated as if no election had been made is less than the amount that would have been payable under the election if the person had not resumed employment.
Compare: 1992, No. 13, s. 45(11), (12)
Non-Earners’ Account
290 Application and source of funds
(1)
The purpose of the Non-Earners’ Account is to finance entitlements provided under this Act in respect of personal injury (other than motor vehicle injury or medical misadventure injury) to non-earners.
(2)
The funds for the Non-Earners’ Account are to be derived from appropriations by Parliament to the Non-Earners’ Account.
(3)
The funds in the Non-Earners’ Account must be applied to meet the costs of—
(a)
Statutory entitlements of any non-earner who has cover in respect of personal injury (other than motor vehicle injury or medical misadventure injury); and
(b)
Statutory entitlements required to be funded in accordance with section 296(2)(b); and
(c)
Entitlements that are required to be provided in accordance with Part 13 in respect of persons whose entitlements would have been provided from the Non-Earner’s Account under the Accident Rehabilitation and Compensation Insurance Act 1992; and
(d)
Administering the Account; and
(e)
The payment referred to in subsection (4); and
(f)
Any other expenditure authorised by this Act.
(4)
The manager must pay out of the Non-Earners’ Account an amount for education-related support for children requiring special assistance as a result of personal injury covered by this Act to enable the children to receive education.
(5)
The amount referred to in subsection (4)—
(a)
Must be the amount specified in a policy direction given under section 339; and
(b)
Must be paid to the persons specified in the policy direction (which may include the Crown); and
(c)
Must be paid in the manner specified in the policy direction.
(6)
The manager may, from time to time, repay to the Crown in accordance with the Public Finance Act 1989 any funds held in the Non-Earners’ Account.
Compare: 1992, No. 13, s. 120
Motor Vehicle Account
291 Application and source of funds
(1)
The purpose of the Motor Vehicle Account is to finance entitlements provided under this Act in respect of motor vehicle injuries.
(2)
The funds for the Motor Vehicle Account are to be derived from—
(a)
Premiums to be paid by every owner of a motor vehicle; and
(b)
Premiums to be paid by every person who holds a licence in respect of trade plates; and
(c)
An amount (in respect of premiums, levy, or both) to be calculated at a rate of 2 cents per litre (or such other rate as may be determined by the Governor-General by Order in Council), in respect of each year ending with 30 June, for every litre of motor spirits (or any category of motor spirits that is specified in the Order) in respect of which duty is payable under the Customs and Excise Act 1996; and
(d)
The prescribed Motor Vehicle Account levy; and
(e)
Premiums payable by virtue of Part 13.
(3)
The amount under subsection (2)(c) is to be paid from the Crown Bank Account to the manager, at the times that the Minister of Finance determines, without further appropriation than this section.
(4)
An Order in Council made under subsection (2)(c) is a regulation for the purposes of the Regulations (Disallowance) Act 1989.
(5)
The funds in the Motor Vehicle Account must be applied to meet the costs of—
(a)
Statutory entitlements of any person who has cover in respect of a personal injury that is a motor vehicle injury; and
(b)
Entitlements that are required to be provided in accordance with Part 13 in respect of persons whose entitlements would have been provided from the Motor Vehicle Account under the Accident Rehabilitation and Compensation Insurance Act 1992; and
(c)
Administering the Account; and
(d)
Any other expenditure authorised by this Act.
(6)
The purpose of the Motor Vehicle Account levy under subsection (2)(d) is to fund the claims referred to in subsection (5)(b).
Compare: 1992, No. 13, ss. 108, 109
292 Rate of premiums and levy
(1)
Every owner of a motor vehicle must pay premiums at an annual or other rate or rates prescribed in regulations made under this Act.
(2)
Every person who holds a licence in respect of trade plates must pay premiums at an annual or other rate or rates prescribed in regulations made under this Act.
(3)
Every owner of a motor vehicle and every person who holds a licence in respect of trade plates must pay, in accordance with this Act and regulations made under it, the prescribed Motor Vehicle Account levy.
293 Basis on which funds to be calculated
The extent of funds to be derived under section 291(2) is to be calculated to achieve the following:
(a)
The outstanding claims liability for the Motor Vehicle Account as at 30 June 1999, as recognised by the manager from time to time, is to be fully funded no later than 30 June 2014 by the prescribed Motor Vehicle Account levy:
(b)
The cost of all other claims under the Motor Vehicle Account is to be fully funded.
294 Experience rating
Regulations made under this Act may establish a system for the experience rating of the owners of motor vehicles and the holders of trade plate licences, which may include no-claims bonuses, higher or lower premiums, or claim thresholds.
Compare: 1992, No. 13, s. 111
295 Collection of premiums
(1)
The premiums payable under section 292(1) or (2) are payable in conjunction with the registration and annual licensing of the vehicle or the issue of the trade plate licence (as the case may require) or in any other prescribed manner.
(2)
The amount payable under section 291(2)(c) is payable in equal quarterly instalments in each financial year.
(3)
Any amount payable under section 292(3) is payable in the prescribed manner.
(4)
Any person who receives any payment of any motor vehicle premium payable to the manager must pay that premium to the manager not later than the end of the month after the month in which that premium is received.
(5)
Where any motor vehicle premium is not paid within 2 months of the date on which it was due, the owner of the motor vehicle or the holder of the licence is liable to pay 3 times the amount of the premium to the manager (or such lesser penalty as may be prescribed by regulations made under this Act) together with the amount of the unpaid premium.
(6)
The manager may recover any premium or penalty as a debt due, or deduct the outstanding amount from any payment due to be made by or on behalf of the manager to the owner of the motor vehicle or the holder of the licence.
(7)
No penalty is payable under subsection (5) if the person satisfies the manager that the motor vehicle was not used on a road during the period for which the premium was due but not paid.
Compare: 1992, No. 13, ss. 109(2), 110, 112
Medical Misadventure Account
296 Application and source of funds
(1)
The purpose of the Medical Misadventure Account is to finance statutory entitlements provided under this Act in respect of personal injury that is medical misadventure (other than the excluded kinds of medical misadventure specified in subsection (3)).
(2)
The funds for the Medical Misadventure Account are to be derived from—
(a)
Any premiums payable by registered health professionals or by registered health professionals of a prescribed class; and
(b)
Where there is no such premium, from the Earners’ Account (in the case of an earner) or the Non-Earners’ Account (in the case of a non-earner).
(3)
The excluded kinds of medical misadventure are—
(a)
Medical misadventure that is consequential on treatment for a work-related personal injury:
(b)
Medical misadventure suffered by a self-employed person who has an accident insurance contract.
(4)
For the purposes of this section, regulations made under this Act may—
(a)
Prescribe classes of registered health professionals who are liable to pay premiums under this section:
(b)
Define those classes according to the profession concerned, the nature of the employment of the professional, any areas of specialisation, any areas in which the person does not practise, or on any other basis specified in the regulations.
(5)
The funds in the Medical Misadventure Account must be applied to meet the costs of—
(a)
Statutory entitlements of any person who has cover in respect of a personal injury that is a medical misadventure injury (other than the excluded kinds of medical misadventure specified in subsection (3)); and
(b)
Administering the Account; and
(c)
Any other expenditure authorised by this Act.
(6)
For the purposes of sections 282(3)(d) and 290(3)(d), claims that would have been paid from the Earners’ Account or the Non-Earner’s Account under the Accident Rehabilitation and Compensation Insurance Act 1992 if those Accounts still existed include claims for medical misadventure which would have been funded from those Accounts.
Compare: 1992, No. 13, s. 122
297 Rate of premiums and experience rating
(1)
Premiums are payable by such registered health professionals as may be specified for the purpose by regulations made under this Act and those premiums are payable at a rate or rates prescribed by the regulations.
(2)
If premiums are so payable, the premiums must be calculated so that the cost of all claims under the Medical Misadventure Account is to be fully funded.
(3)
The regulations may establish a system for the experience rating of persons liable to pay the premiums for medical misadventure, and the system may include no-claims bonuses, lower or higher premiums, or claim thresholds.
Compare: 1992, No. 13, ss. 123(1), 124
298 Collection of premiums
(1)
Premiums payable by registered health professionals are payable to the manager in a prescribed manner, which may be linked to the payment of annual practising fees or involve any other method of payment.
(2)
Any person who receives any payment of a medical misadventure premium payable to the manager must pay that premium to the manager not later than the end of the month after the month in which that premium is received.
(3)
Where any medical misadventure premium is not paid when due or is not paid over to the manager when due to be paid to it under subsection (2), the manager may recover the amount as a debt due, or deduct the amount from any payment due to be made by or on behalf of the manager to the person concerned.
Compare: 1992, No. 13, s. 123(2), (3), (4)
Self-Employed Work Account
299 Application and source of funds
(1)
The purpose of the Self-Employed Work Account is to finance statutory entitlements provided under this Act in respect of—
(a)
Self-employed persons who suffer work-related personal injuries in their self-employment on or after 1 July 1999 and who do not have an accident insurance contract; and
(b)
Private domestic workers who suffer work-related personal injuries in their private domestic work on or after 1 July 1999 and who do not have an accident insurance contract.
(2)
The funds for the Self-Employed Work Account are to be derived from premiums payable by those self-employed persons and private domestic workers under section 300.
(3)
The funds in the Self-Employed Work Account must be applied to meet the costs of—
(a)
Statutory entitlements of any self-employed person (other than a self-employed person who has an accident insurance contract) who has cover in respect of a work-related personal injury suffered in that person’s self-employment; and
(b)
Statutory entitlements of any private domestic worker (other than a private domestic worker who has an accident insurance contract) who has cover in respect of a work-related personal injury suffered in their private domestic work; and
(c)
Administering the Account; and
(d)
Any other expenditure authorised by this Act.
(4)
The funds collected under section 301(2)(b) are to be paid to the Crown on an annual basis.
300 Self-employed persons to pay premiums
(1)
A self-employed person or a private domestic worker who does not have an accident insurance contract must pay, in accordance with this Act and regulations made under it, premiums to fund the Self-Employed Work Account.
(2)
The premiums are to be collected in arrears, or in advance, as may be specified in the regulations.
301 Rate of premiums and experience rating
(1)
Premiums must be paid under section 300 at a rate or rates prescribed from time to time in regulations made under this Act, and must be related in whole or in part to the level of earnings (other than earnings as an employee) derived or deemed by regulation to be derived by the self-employed person or private domestic worker.
(2)
The extent of funds to be derived from premiums under subsection (1) is to be calculated on the following basis:
(a)
The cost of all claims under the Self-Employed Work Account is to be fully funded from premiums:
(b)
An amount calculated using the method specified in a direction given under section 339 for the purpose of achieving, to the satisfaction of the Minister, competitive neutrality with other insurers in relation to accident insurance contracts for self-employed persons and private domestic workers is also to be funded from premiums.
(3)
Premiums collected in respect of any period before 1 July 2000 must not include an amount calculated under subsection (2)(b).
(4)
The regulations may establish a system for the experience rating of self-employed persons and private domestic workers in relation to premium rates, and any such system may include no-claim bonuses, higher or lower premiums, and claim thresholds.
302 Classification of industries or risk
(1)
Self-employed persons and private domestic workers must be classified into industry or risk classes defined in regulations made under this Act for the purposes of setting premiums payable under section 300.
(2)
Premiums set under section 300 must be determined for each industry or risk class defined under subsection (1).
(3)
Subject to this Act, the manager must decide which classification of industry or risk is appropriate in relation to any self-employed person or private domestic worker by whom a premium is payable.
(4)
Separate account must be kept of the amounts collected from each industry or risk class under section 300 and the amounts expended for the purposes of section 299 in respect of self-employed persons and private domestic workers within each industry or risk class.
Compare: 1992, No. 13, s. 103
Residual Claims Account
303 Application and source of funds
(1)
The purpose of the Residual Claims Account is to finance entitlements provided under this Act in respect of—
(a)
Work injuries (as defined in the Accident Rehabilitation and Compensation Insurance Act 1992) suffered before 1 July 1999; and
(b)
Non-work injuries suffered before 1 July 1992,—
which entitlements are required to be provided in accordance with Part 13 in respect of persons whose entitlements would have been provided from the Employers’ Account under the Accident Rehabilitation and Compensation Insurance Act 1992.
(2)
The purpose of the Residual Claims Account is also to pay the costs relating to the injuries referred to in subsection (4)(c).
(3)
The funds for the Residual Claims Account are to be derived from—
(a)
Premiums paid or payable under section 101 of the Accident Rehabilitation and Compensation Insurance Act 1992, to the extent continued by Part 13; and
(b)
Premiums paid or payable under section 102 of that Act, to the extent continued by Part 13; and
(c)
Premiums paid or payable under section 154 of that Act, to the extent continued by Part 13; and
(d)
The prescribed Residual Claims levy in relation to a prescribed period.
(4)
The funds in the Residual Claims Account must be applied to meet the costs of—
(a)
Entitlements of any earner who suffered a work injury (within the meaning of the Accident Rehabilitation and Compensation Insurance Act 1992) before 1 July 1999; and
(b)
Entitlements of any earner who suffered a non-work injury before 1 July 1992; and
(c)
Contributions to entitlements of any person who suffered an injury on or after 1 July 1999 that is attributed to the Corporation in accordance with the cost allocation provisions in sections 107 to 113 and 451 because the injury was caused, or contributed to, before 1 July 1999; and
(d)
Administering the Account; and
(e)
Any other expenditure authorised by this Act.
304 Liability to pay Residual Claims levy
(1)
Every employer and every self-employed person and every private domestic worker must pay to the manager, in accordance with this Act and regulations under it, a levy for the purpose of fully funding no later than 30 June 2014 the outstanding claims liability as at 30 June 1999 for the Residual Claims Account, as recognised by the manager from time to time.
(2)
Regulations relating to the levy may prescribe methods of calculating the levy where a payment relates to a period of less than 1 year.
(3)
The levy is to be collected in arrears, or in advance, as may be specified in the regulations.
(4)
The levy that is first set after the commencement of this section must be calculated to also take account of an amount collected under section 474 relating to the reserves portion of the relevant 3 month premiums, as if this section had come into force on 1 April 1999.
305 Rate of levy
The Residual Claims levy must be paid at the rate or rates prescribed by regulations made under this Act.
306 Classification of industries or risk
(1)
Employers and self-employed persons and private domestic workers must be classified into industry or risk classes defined in regulations made under this Act for the purposes of the Residual Claims levy.
(2)
The levy must be determined for each industry or risk class defined under subsection (1).
(3)
Subject to this Act, the manager must decide which classification of industry or risk is appropriate in relation to any employer or self-employed person or private domestic worker by whom a levy is payable.
(4)
Separate account must be kept of the amounts collected from each industry or risk class under section 304 and the amounts expended for the purposes of section 303 in respect of employers or self-employed persons or private domestic workers within each industry or risk class.
Compare: 1992, No. 13, s. 103
307 Promotion of employer involvement
(1)
The manager must take all practicable steps to ensure, in carrying out its duties in relation to the Residual Claims Account, that employers are involved to the extent practicable in the rehabilitation of injured persons covered by the Account.
(2)
“Employers”
in this section means—
(a)
The employer who employed the injured person at the time the personal injury was suffered or occurred; and
(b)
Employers in the same industry class as that employer.
(3)
Any policy direction given by the Minister under section 339 in respect of the manager’s duties in relation to the Residual Claims Account may specify which steps may or should be followed (which may include contracting out some or all of the manager’s duties or functions in relation to that Account).
General Premium Provisions
308 Proportionate premiums
(1)
A person who commences to be or ceases to be an employer, self-employed person, or private domestic worker (as the case may be) during a premium year is liable to pay premiums under this Part that are proportionate to the period of time during that year that the person was an employer or a self-employed person or a private domestic worker.
(2)
A self-employed person or private domestic worker who takes out or terminates an accident insurance contract during a premium year is liable to pay premiums under this Part that are proportionate to the period of time during that year that they did not have an accident insurance contract.
309 Levies to be treated as premiums
In this Act, the following levies, namely—
(a)
The Earners’ Account levy; and
(b)
The Motor Vehicle Account levy; and
(c)
The Residual Claims levy,—
are to be treated for all purposes as if they were premiums payable to the manager under this Act, and the provisions relating to premiums apply to those levies accordingly.
310 Challenges to premiums
(1)
Any person who is dissatisfied with any decision of the manager in respect of any premium paid or payable or claimed to be payable under this Part by that person may seek a review by the manager of that decision within 60 working days after the person is notified of the decision; but no such right of review exists under this Act in respect of the calculation for the purposes of the Income Tax Act 1994 of the taxable income of any person.
(2)
The entitlements that have been given or are to be given to any person under this Act may not be challenged in any review under subsection (1).
(3)
A review brought under subsection (1) must be dealt with by the manager under Part 6, and that Part (including the provisions relating to appeals) applies with any necessary modifications.
311 Manager may revise decisions
(1)
The manager may, at any time, revise a decision about premiums payable by a person that the manager considers was made in error, whatever the reason for the error.
(2)
A revision may—
(a)
Amend the original decision; or
(b)
Revoke the original decision and substitute a new decision.
(3)
Every amendment to a decision, and every substituted decision, is a fresh decision.
Compare: 1992, No. 13, s. 67a
312 Effect of review or appeal about premium
No obligation to pay any premium, and no right to receive or recover any premium, is suspended because—
(a)
An applicant has made a review application relating to the premium in accordance with section 310; or
(b)
An appellant has filed a notice of appeal relating to the premium in accordance with section 310; or
(c)
Any person has challenged the amount of premium, or the obligation to pay it, in any other proceedings.
313 Deduction of premium from payment due to defaulters
(1)
Where a person has made a default in the payment of any premium or any penalty assessed by the manager under this Act (other than one referred to in subsection (6)), the manager may from time to time, by notice in writing, require any person—
(a)
To deduct from any amount payable or becoming payable by that person to the defaulter such sum as may be specified in the notice; and
(b)
To pay every sum so deducted to the manager to the credit of the defaulter within such time as may be specified in the notice.
(2)
A notice of amount to be deducted or extracted issued under subsection (1) may include a daily amount of interest as well as the amount required to be deducted or extracted.
(3)
The daily amount of interest at the rate prescribed under the Judicature Act 1908, as notified under subsection (2), is calculated for each day during the period commencing on the date of the notice and ending on the day on which the sum required by the notice is deducted or extracted.
(4)
The manager must give the defaulter a copy of the notice given under subsection (1).
(5)
Whenever, under a notice given under this section, any deductions are made from any amount payable to a defaulter, he or she is entitled to receive from the debtor a statement in writing of the fact of the deduction and the purpose for which it was made.
(6)
This section does not apply to a premium that is payable to the Commissioner as part of a combined tax and earner premium deduction within the meaning of section OB 1 of the Income Tax Act 1994 or to any penalty imposed in respect of such a deduction.
(7)
Every person commits an offence, and is liable to a fine not exceeding $500, who fails to comply with a notice given under this section.
Compare: 1992, No. 13, s. 130(1) to (3)
314 Power to assess premiums
(1)
The manager may assess the amount of premium which ought to be or to have been paid in any case where—
(a)
An accurate statement of the matters required to be stated in relation to earnings under this Act or regulations made under this Act has not been made; or
(b)
The manager is not satisfied with the statement; or
(c)
The manager is not satisfied that the proper premium has been paid.
(2)
Subject to subsection (3), the manager may at any time alter or add to the assessment made under subsection (1) if such action is necessary to ensure its correctness.
(3)
Where a statement has been delivered in respect of any period and a premium has been paid in respect of that period, the manager has no power,—
(a)
Where an assessment has not been made, to make an assessment; or
(b)
Where an assessment has been made, to alter the assessment so as to increase the amount payable—
after the expiration of 4 years beginning on the close of the income year in which the statement was made unless that statement was, in the opinion of the manager, fraudulent or wilfully misleading.
(4)
The manager must give written notice of the assessment or alteration of the assessment under this section to the person or persons to whom it applies and that person or persons are liable to pay the assessed or altered premium, and any specified penalty, on the date specified in the notice of assessment.
Compare: 1992, No. 13, s. 131
315 Power in respect of small amounts of premiums
Despite the other provisions of this Act, where the amount of any premium payable does not exceed $20 (or such other amount as the Governor-General may, by Order in Council, declare for the purposes of this section),—
(a)
No person is liable to pay the amount of the premium; and
(b)
No person is liable to pay any penalties under this Act in respect of non-payment of the premium to which this section applies.
Compare: 1992, No. 13, s. 132
316 Agent to whom premiums may be paid
(1)
If the manager so requires, a person must pay premiums (or any part of any premium) payable under this Act to the Commissioner as agent for the manager.
(2)
The Commissioner must, after deducting any agreed collection fee, pay the balance of premiums to the manager not later than the end of the month following the month in which those premiums are received.
(3)
The Commissioner must, after deducting any agreed collection fee, pay to the manager at intervals agreed between the Commissioner and the manager penalties payable in respect of combined tax and earner premium deductions as is estimated by the Commissioner to be attributable to earner premium deductions.
(4)
Where the Commissioner is acting as agent for the manager under this section, the provisions of the Tax Administration Act 1994, so far as they are applicable, apply as if this Act were 1 of the Inland Revenue Acts and the premium were a tax or duty under 1 of the Inland Revenue Acts, and as if every offence under the Tax Administration Act 1994 were an offence against this Act.
(5)
This section does not prevent the manager from using any other agent for the purposes of premium collection.
General Administration
317 Advances of compensation and grants
(1)
Except as provided in this section and section 124(2)(b), the manager must not pay any compensation, grant, or allowance in advance.
(2)
The manager may pay any compensation based on weekly earnings or a survivor’s grant without the full details necessary to support the relevant claim if—
(a)
Details of earnings of any person are not available, and their unavailability is not due to the fault of that person; or
(b)
A person is missing and the manager is satisfied—
(i)
That the person is probably dead; and
(ii)
That the presumed death occurred in circumstances in which the person is likely to have cover under this Act.
(3)
If any compensation or grant is paid under this section in circumstances in which it is subsequently found that it was not properly payable, sections 320 and 372 apply to any amount not properly paid.
(4)
Where compensation based on weekly earnings is paid in advance under this section, the maximum amount that may be paid as weekly compensation is the amount that would be payable if the person on whose earnings the compensation is to be based had weekly earnings as specified in clause 18(2) of Schedule 1.
Compare: 1992, No. 13, s. 74
318 Adjustment of payments for part periods
Where any amount is payable by the manager under this Act on a weekly basis and the entitlement to that payment ceases other than at the end of a week, an appropriate adjustment may be made.
Compare: 1992, No. 13, s. 75
319 Transfers of claim costs between certain accounts
Where any person is receiving any entitlement payable out of any Account and, because of a further personal injury that extends the incapacity, that person becomes entitled to any payment out of any other Account, then so long as the incapacity resulting from the further personal injury remains, all payments under Parts 2 and 5 of Schedule 1 that are made in respect of periods after that further personal injury must be made out of the Account that relates to the further personal injury until that further personal injury has no effect on incapacity.
Compare: 1992, No. 13, s. 133
320 Recovery of debts by manager
(1)
The following are a debt due to the manager:
(a)
A sum of money paid by the manager to a person that is in excess of the amount to which the person is entitled under this Act (an “overpayment”
):
(b)
An amount of premium payable under this Act that remains unpaid after the last day for payment:
(c)
A penalty payable under this Act in respect of an overpayment or an unpaid premium.
(2)
The manager may—
(a)
Recover the debt by way of proceedings; or
(b)
Deduct all or part of the debt from any amount payable to that person by the manager (whether or not in respect of the same personal injury).
(3)
This section is subject to sections 372 and 374.
Compare: 1992, No. 13, s. 77
321 Penalties due to manager in respect of overpayments
(1)
The following penalties are payable to the manager by a person who receives an overpayment from the manager:
(a)
A penalty of 10% of an overpayment if the overpayment is made as a result of a failure by the person to inform the manager of any matter which the person ought to have known was relevant to the payment:
(b)
A penalty of 3 times the overpayment if the overpayment is made as a result of an incorrect statement knowingly made by the person on any matter relevant to the payment for the purpose of receiving a payment to which the person was not entitled.
(2)
The liability to pay the penalty is in addition to a liability to repay the overpayment.
Compare: 1992, No. 13, s. 77(2)
322 Penalties due to manager in respect of unpaid premiums
(1)
This section applies if any premium payable under this Act is unpaid within 2 months of the date on which it was due.
(2)
The person who owes the premium to the manager is liable to pay to the manager a penalty of 3 times the amount of the unpaid premium (or such lesser penalty as may be prescribed by regulations made under this Act).
(3)
This section does not apply to a premium payable to the Commissioner as part of a combined tax and earner premium deduction within the meaning of section OB 1 of the Income Tax Act 1994.
(4)
The liability to pay the penalty is in addition to a liability to pay the premium.
(5)
This section does not limit section 295(7).
Compare: 1992, No. 13, s. 77(2)
323 Limitation period
(1)
Despite any other enactment, an action or remedy for the recovery of any premium or penalty by the manager may be taken until the expiry of 10 years beginning on the close of the date on which the premium or penalty became payable.
(2)
This section also applies to a premium or penalty payable under any of the former Acts by virtue of this Act.
Compare: 1992, No. 13, s. 77(8)
324 Write-offs
The manager may write off any amount recoverable under this Act (whether or not any steps to recover the same have been taken) if, in the opinion of the manager, the amount is irrecoverable or cannot without disproportionate expense be recovered.
Compare: 1992, No. 13, s. 77(9)
325 Application of sections 320 to 324 to third parties
Sections 320 to 324 apply in respect of any sum of money paid or applied under an agreement or contract or arrangement between the manager and a third party (who is a person other than the person who suffered the personal injury concerned) to provide treatment or other entitlement in respect of personal injury covered by this Act as if that sum were a sum of money received from the manager by the person who suffered that personal injury.
Compare: 1992, No. 13, s. 77(10)
326 Production of documents
(1)
The production of any document under the seal of the manager, or under the hand of any person authorised for the purpose by the manager or an agent of the manager, purporting to be a copy of or extract from any statement relating to earnings or from any assessment or amended assessment of premiums under this Part, is in all courts and all proceedings (including reviews or appeals conducted under this Act) sufficient evidence of the original, and the production of the original is not necessary.
(2)
All courts and persons conducting reviews or appeals under this Act must, in all proceedings, take judicial notice of the seal of the manager, and of the signature of any officer or agent of the manager duly authorised for the purpose, either to the original or to any such copy or extract.
Compare: 1992, No. 13, s. 163
Part 11 Accident Compensation Corporation
Preliminary Provisions
327 Meaning of “claims management and network services”
In this Act, “claims management and network services”
means the following services of an insurer and the associated functions and obligations:
(a)
Receiving and determining claims under Parts 3 and 4:
(b)
The provision of statutory entitlements in accordance with Part 5:
(c)
The provision of entitlements in accordance with Part 13:
(d)
Performing an insurer’s duties under Parts 4 and 6:
(e)
Recovering, in accordance with this Act, any money owing to an insurer.
The Corporation
328 Accident Compensation Corporation
(1)
The Accident Compensation Corporation is established and is the successor of the Accident Rehabilitation and Compensation Insurance Corporation.
(2)
The Corporation is a body corporate with perpetual succession and a common seal.
(3)
The common seal of the Corporation must be judicially noticed in all courts and for all purposes.
(4)
The Corporation—
(a)
Is a Crown entity for the purposes of the Public Finance Act 1989; and
(b)
Is a local authority for the purposes of section 73 of that Act.
(5)
The Corporation is exempt from income tax.
Compare: 1992, No. 13, s. 155
329 Powers of Corporation
(1)
Subject to any direction given by the Minister under section 339, the Corporation—
(a)
Is capable of acquiring, holding, and disposing of real and personal property, of suing and being sued, and, subject to this Act, of doing and suffering all such acts and things as a company may do and suffer; and
(b)
Has such other powers as are necessary or expedient to enable it to perform its functions and duties.
(2)
Without limiting subsection (1), the Corporation may perform its functions or duties by entering into any contract or arrangement for that purpose with the Crown, any department of State, or any other person or organisation.
(3)
Subject to section 335(2), the Corporation may perform any of its functions or duties through a subsidiary company or companies, and, if it does so,—
(a)
The Corporation must delegate to each subsidiary company the functions and duties to be performed by the subsidiary; and
(b)
The Corporation may authorise the company to perform any of the delegated functions and duties by entering into contracts or arrangements with the Crown, any department of State, or any other person or organisation.
(4)
Where the Corporation forms and registers a subsidiary company under the Companies Act 1993, section 334 applies to the subsidiary.
330 Relationship between Corporation and subsidiaries
Except as otherwise specified in this Act or as required by virtue of any delegation under section 329, a reference in this Act to the Corporation is not to be read as including a reference to any subsidiary company of the Corporation.
Compare: 1992, No. 13, s. 156
331 Functions of Corporation
(1)
The functions of the Corporation are to—
(a)
Carry out the duties referred to in section 280; and
(b)
Promote measures to reduce the incidence and severity of personal injury in accordance with sections 332 and 333; and
(c)
Manage assets, liabilities, and risks in relation to the Accounts, including risk management by means of reinsurance or other means; and
(d)
Carry out such other functions as are conferred on it by this Act, or are ancillary to and consistent with those functions.
(2)
It is not a function of the Corporation to perform functions other than those specified in subsection (1) and, for the avoidance of doubt, it is not a function of the Corporation or any subsidiary to provide insurance or insurance-related services (other than as specified in subsection (1) or section 335 or as permitted under section 333).
(3)
In carrying out its functions, the Corporation must deliver services to insureds and premium payers, as required by this Act,—
(a)
In order to minimise the costs to society of personal injury; and
(b)
In a cost-effective manner.
Compare: 1992, No. 13, s. 157(2)
332 Prevention of personal injury
(1)
To complement its functions, the Corporation must promote measures to reduce the incidence and severity of personal injury in relation to the persons and injuries of the kinds referred to in section 279.
(2)
Without limiting subsection (1), such measures may include research, the provision of information or advice, the publication and dissemination of literature and information, campaigns, exhibitions, and courses.
(3)
The Corporation must undertake or fund such measures only if satisfied that they are likely to result in a cost-effective reduction in actual or projected premium rates set under Part 10 or expenditure from the Non-Earners’ Account under that Part.
(4)
The Corporation may, in its discretion, conduct, participate in, commission, or subsidise research into the reduction of the incidence and severity of accidents and other causes of personal injury which is directed at reducing the cost of compensation and rehabilitation provided under this Act.
(5)
The Corporation must charge expenditure incurred under this section to the Account or Accounts in respect of which the reduction in premium rates or expenditure is expected.
(6)
The Corporation must ensure that such measures are coordinated with similar activities of other agencies of Government to ensure efficiency and avoid duplication.
Compare: 1992, No. 13, s. 34
333 Provision of services to other insurers
(1)
The Corporation may, on a fully commercial basis, but subject to the statement of intent under section 341, to policy directions under section 339, and to service agreements under section 340, provide all or any of the following services to other insurers in relation to their functions and obligations under this Act:
(a)
Services of the kind referred to in section 332 to reduce the incidence and severity of work-related personal injury:
(b)
Claims management and network services in relation to the functions and obligations of other insurers under this Act:
(c)
Such other services as may be specified in a policy direction under section 339.
(2)
In this section, “other insurers”
includes—
(a)
Any employer who, because of a risk sharing agreement with an insurer, is responsible for providing claims management services in relation to cover and entitlements under this Act for the employer’s employees:
(b)
The administrator of an insurer, in the administrator’s role under Part 9:
(c)
The Regulator, in the Regulator’s role of meeting obligations of an insolvent insurer under Part 9:
(d)
The Regulator, in the Regulator’s role of applying the Non-Compliers Fund under section 268.
(3)
Every service provided by the Corporation under this section must be provided wholly by or through a subsidiary company of the Corporation.
(4)
Despite this section, any contract that is in force on 1 January 1999 and that is still in force on 1 July 1999 continues in force after that date, and has effect according to its terms.
334 Provisions relating to subsidiaries
(1)
Every subsidiary company formed by the Corporation must be wholly owned by the Corporation.
(2)
The principal objective of a subsidiary company is to operate as a successful business and, to that extent, to be—
(a)
As profitable and efficient as any comparable business not owned by the Crown; and
(b)
A good employer (as defined in clause 19(2) of Schedule 6).
(3)
A subsidiary company is a Crown entity for the purposes of the Public Finance Act 1989, but is not—
(a)
A local authority for the purposes of section 73 of that Act; or
(b)
Exempt from income tax.
(4)
The Corporation and each subsidiary company must operate on an arms length commercial basis in relation to each other.
(5)
The Corporation must apply the returns generated by the activities of a subsidiary company as follows:
(a)
In relation to services provided to other insurers under section 333, on a basis determined in a policy direction under section 339 or in the statement of intent under section 341:
(b)
In relation to other services, including claims management and network services provided to the Corporation, across some or all of the Accounts on a basis that reasonably represents the relationship of those services to the Accounts.
(6)
When forming a subsidiary to provide services, the Corporation must transfer to the subsidiary all the assets that are owned by the Corporation that will be used predominantly by the subsidiary to provide those services.
335 Company to be formed to provide claims management and network services
(1)
The Corporation must form and register a subsidiary company under the Companies Act 1993 to provide or arrange the provision of claims management and network services.
(2)
The Corporation must obtain all its claims management and network services either—
(a)
From or through the subsidiary company formed under subsection (1); or
(b)
From or through some other provider of such services; or
(c)
Both from or through the subsidiary company and some other provider.
(3)
The primary objective of the subsidiary company is to provide or arrange the provision of claims management and network services to the Corporation to the extent required by the Corporation.
(4)
The subsidiary company may, as a secondary objective, provide or arrange the provision of claims management and network services to other insurers, in which case section 333 applies.
336 Board of Corporation
(1)
The Board of the Corporation consists of not more than 8 members to be appointed by the Minister.
(2)
The initial members of the Board are those members of the Board of the Accident Rehabilitation and Compensation Insurance Corporation who hold office at the close of 30 June 1999 and, subject to this Act, they hold office for the remainder of the terms for which they were appointed as members of the Board of the Accident Rehabilitation and Compensation Insurance Corporation.
(3)
The initial Chairperson and Deputy Chairperson of the Corporation are the Chairperson and Deputy Chairperson, respectively, of the Accident Rehabilitation and Compensation Insurance Corporation who hold those positions at the close of 30 June 1999.
Compare: 1992, No 13, s. 157
337 Protection of name “Accident Compensation Corporation”
and “Accident Rehabilitation and Compensation Insurance Corporation”
(1)
No company or other body may be incorporated or registered under a name that contains the words “Accident Compensation Corporation”
or “Accident Rehabilitation and Compensation Insurance Corporation”
or under any other name that, in the opinion of the Registrar of Companies, or the appropriate registering authority within the meaning of section 2 of the Flags, Emblems, and Names Protection Act 1981, so resembles such a name as to be likely to deceive.
(2)
This section does not apply to the Corporation or to any person who is authorised by the Corporation.
(3)
This section does not prevent the registration of a name only because the name contains the words “accident insurance”
.
Compare: 1992, No. 13, s. 160
Provisions Relating to Corporation’s Operations
338 Further provisions applying to Corporation
The provisions set out in Schedule 6 apply in relation to the Corporation (but, unless specified, not any subsidiary of the Corporation).
Compare: 1992, No. 13, s. 155(9)
339 Corporation to comply with Government policy
(1)
The Minister may from time to time give the Corporation a direction relating to the policy of the Government in relation to the functions, duties, and powers of the Corporation under this Act.
(2)
Where a direction is given to the Corporation under subsection (1), the Minister must, within 10 working days after the giving of the direction,—
(a)
Publish a copy of the direction in the Gazette; and
(b)
Present a copy of the direction to the House of Representatives.
(3)
A policy direction may be annexed to a service agreement entered into under section 340.
(4)
The annexing of a policy direction to a service agreement under subsection (3), and the presentation of the service agreement to the House of Representatives under section 340(6), are sufficient compliance with the obligations contained in subsection (2).
(5)
In the performance and exercise of its functions, duties, and powers, the Corporation and any subsidiary must comply with directions that are given by the Minister under this section that are for the time being in force.
Compare: 1992, No. 13, s. 159
340 Service agreements between Corporation and Minister
(1)
In this section, “year”
means a period of 12 months commencing on 1 July in any year and ending with the close of 30 June in the next year.
(2)
Once a year, the Minister must require the Corporation to enter into with the Minister a service agreement concerning the quality and quantity of services to be purchased or provided by the Corporation (including services delivered through any subsidiary of the Corporation).
(3)
Every service agreement entered into under this section must—
(a)
Revoke any existing service agreement; and
(b)
Be signed by the Minister and the Corporation no later than 30 June in the year before the first year to which it relates; and
(c)
Relate, at least, to the year after the year in which it is signed and to the next 2 following years.
(4)
A service agreement entered into under this section may set out—
(a)
Desired outcomes and objectives in relation to the performance and exercise of the functions, duties, and powers of the Corporation:
(b)
Desired outcomes and objectives in relation to the performance of each Account:
(c)
Desired outcomes and objectives in relation to the management of the funds managed by the Corporation:
(d)
Reporting requirements of the Corporation either in relation to the Accounts or in relation to the Corporation’s functions and powers or in relation to both:
(e)
Such other matters relating to the performance andexercise of the functions, duties, and powers of the Corporation as the parties may agree.
(5)
The Corporation must comply with every serviceagreement it enters into under this section.
(6)
The Minister must, within 10 working days after enteringinto a service agreement with the Corporation, present a copyof the service agreement to the House of Representatives.
Compare: 1992, No. 13, s. 159aa
341 Statement of intent
(1)
The Corporation mustprepare a statement of intent in accordance with this section and Part V of the Public Finance Act 1989.
(2)
In addition to the matters set out in section 41d of the Public Finance Act 1989, the statement of intent must set out—
(a)
Matters relating to the relationship between the Corporation and any subsidiary company:
(b)
Matters relating to the nature and extent of the use of other providers of services (including providers thatare subsidiaries):
(c)
The extent to which the Corporation may form and register subsidiary companies:
(d)
Matters relating to the allocation of any returns generated by any subsidiary:
(e)
Assumptions to be relied on by the Corporation in relation to assessing the cost of capital:
(f)
Matters relating to the provision of services by the Corporation and its subsidiaries on a commercial basis, including forecasts of revenue and expenditure and how it will be allocated among the Accounts:
(g)
The Corporation’s functions and duties in relation to the management of each Account:
(h)
The method by which the costs of claims management and network services are to be determined:
(i)
Procedures, conditions, restrictions, or other provisions to be complied with by the Corporation in the performance of functions or duties in relation to the management of each Account:
(j)
A statement indicating the Corporation’s proposed approach to pricing by its subsidiaries in order to ensure they operate in a manner that does not discriminate either in favour of or against the Corporation:
(k)
Any other matters contemplated by any other provision of this Act.
342 Provision of financial information
(1)
The Minister of Finance may from time to time, by written notice, require the Corporation to supply to that Minister or such other person or class of persons as that Minister specifies, such financial forecasts or other financial information in relation to the amount of money that the Corporation expects to receive from the Crown as that Minister specifies in the notice.
(2)
The Corporation and any subsidiary must comply with requirements made under subsection (1).
Compare: 1992, No. 13, s. 159a
343 Management of Accounts
(1)
The Corporation must ensure that revenue and expenditure relating to each Account is received, applied, and accounted for separately.
(2)
Except as otherwise authorised under this Act and subject to subsections (3) and (4), the Corporation must not use funds from one Account to meet any costs arising under another Account.
(3)
The Corporation must take all reasonable steps to ensure that the administration costs in relation to the management of the Accounts are fairly apportioned among the Accounts.
(4)
Costs incurred by the Corporation in carrying out all the functions, duties, and powers under this Act which cannot be directly attributed to an Account must be apportioned,—
(a)
Where the service agreement for the time being in effect under section 340 provides for the apportionment of those costs, in accordance with the service agreement; or
(b)
Where the service agreement for the time being in effect under section 340 does not provide for the apportionment of those costs, to all Accounts in a way that reasonably represents the relative costs to each Account of the costs in question.
Compare: 1992, No. 13, s. 126
344 Investments
(1)
Subject to policy directions under section 339, the Corporation must invest, in the same manner as if it were a trustee, all money received by it in respect of any Account that is not immediately required for expenditure.
(2)
Any returns on investments must be apportioned across the Accounts in a way that reasonably represents the contribution to the investment of each Account.
(3)
The Minister must consult with the Minister of Finance before making a policy direction under section 339 relating to investment.
Compare: 1992, No. 13, s. 127, Second Schedule, cl. 18
345 Power to borrow, etc
(1)
The Corporation may borrow money, give security, and issue guarantees and indemnities in accordance with procedures approved by the Minister of Finance.
(2)
Without limiting any other purposes for which money borrowed may be applied, the Corporation may pay any money borrowed under subsection (1) into any of the Accounts.
(3)
Where any money borrowed is held in an Account, the Corporation may apply the money so held for any purpose for which money held in that Account may be applied.
(4)
Where any money borrowed is paid into an Account, the Corporation may repay from that Account the money so borrowed and paid in and may pay from that Account not only the interest incurred in respect of the money so borrowed and paid in but also the other costs (including the administrative costs of the Corporation) in borrowing that money.
(5)
Subsections (2) to (4) supplement the provisions of Part 10.
(6)
Nothing in this section prevents the Corporation from apportioning any costs in accordance with section 343.
Compare: 1992, No. 13, Second Schedule, cl. 17
346 Loans and grants to Corporation
(1)
The Minister of Finance may from time to time, out of money appropriated by Parliament for the purpose, advance money to the Corporation by way of loan or grant.
(2)
The Minister of Finance may from time to time, on behalf of the Crown, in respect of any advances made to the Corporation by any other person, give any guarantee or indemnity pursuant to section 59 of the Public Finance Act 1989.
(3)
Every such guarantee or indemnity must be given, and every such advance by way of loan must be made, on and subject to such terms and conditions as the Minister of Finance thinks fit.
Compare: 1992, No. 13, Second Schedule, cl. 31
Reporting Requirements
347 Annual financial reporting
(1)
The Corporation must comply with Part V of the Public Finance Act 1989 in relation to its annual financial statements.
(2)
In addition to, but consistent with, the requirements of Part V, the Corporation must prepare annual financial statements including the operational and financial performance of each of its subsidiary companies and for each Account.
(3)
The financial statements of the Corporation, its subsidiary companies, and the Accounts—
(a)
Must be prepared in accordance with generally accepted accounting principles; and
(b)
Must be audited by the Audit Office, which may exercise all its powers in respect of public money and stores under the Public Finance Act 1977.
Compare: 1992, No. 13, Second Schedule, cl. 29 1992, No. 13, Second Schedule, cl. 30
Provisions Relating to Transfer of Employees
348 Transfer of employees
(1)
In this section, and in sections 349 to 351,—
“Board” means the Board of the former Corporation:
“Chief executive” means the chief executive of the former Corporation:
“Company” means the company formed under section 335:
“Former Corporation” means the Accident Rehabilitation and Compensation Insurance Corporation:
“New Corporation” means the Accident Compensation Corporation:
“New employer”, in relation to a transferred employee, means the body corporate to which the employee is transferred:
“Transferred employee” means a person employed in the former Corporation immediately before 1 July 1999 who is transferred on 1 July 1999 to the new Corporation or to the company.
(2)
A person employed in the former Corporation is transferred on 1 July 1999 from the former Corporation to the new Corporation or the company (as the case may be) if the chief executive determined before that date, in accordance with guidelines issued by the Board, that the transferred employee is to be transferred to that new employer on that date.
(3)
The Board may transfer the chief executive to the new Corporation.
349 Application of employment contracts
(1)
Unless a transferred employee’s employment contract otherwise provides and subject to subsection (2), the transferred employee’s employment contract continues to apply to that employee, on and from the date the employee transfers to the new Corporation or the company, on the same terms and conditions (including the period of the contract)—
(a)
As if it were a contract that had been made in respect of the new employer; and
(b)
As if it were binding on both that employee and on the new employer, and on any other party to that contract.
(2)
If there is a change to an employee’s duties or location arising out of his or her transfer to the new employer, the conditions of employment of that employee may be varied by agreement to reflect that change but the conditions of employment (as so varied) must be no less favourable than those that the employee was entitled to receive under the employment contract applying to the employee at the date of the transfer.
(3)
Subsections (1) and (2) continue to apply to the conditions of employment of each transferred employee to whom this section applies until such time as any of the conditions of employment that apply under the employment contract applying to that employee at the date of the transfer are subsequently varied (otherwise than for the purpose referred to in subsection (2)).
(4)
The conditions of employment of each such transferred employee are, on and from the date of any subsequent variation referred to in subsection (3), to be determined in accordance with the employment contract applying to that employee with the new employer.
(5)
Nothing in subsection (2) or subsection (3) continues to apply to any transferred employee who receives any subsequent appointment, whether within the new employer or any other employer.
350 Employment to be continuous
For the purposes of any provisions of a transferred employee’s employment contract relating to continuity of service, that employee’s transfer from the former Corporation to the new Corporation or the company is insufficient by itself to break his or her employment.
351 No compensation for technical redundancy
(1)
No transferred employee is entitled to any compensation for redundancy or any severance payment solely on the ground that—
(a)
The position held by the person in the former Corporation has ceased to exist; or
(b)
The person has ceased to be an employee of the former Corporation.
(2)
No person who was employed by the former Corporation or the new Corporation and becomes employed by the company named in the direction referred to in section 352 is entitled to any compensation or any severance payment solely on the ground that—
(a)
The position held by the person in the relevant Corporation has ceased to exist; or
(b)
The person has ceased to be an employee of the relevant Corporation.
Transitional Power of Directions
352 Minister may direct Corporation to offer claims management and network services to State enterprise
(1)
In relation to the period commencing on 1 July 1999 and ending with the close of 30 June 2000, or any part of that period, the Minister may direct the company formed under section 335 to enter into an agreement to provide claims management and network services to a company named in the direction (which company must be incorporated under the Companies Act 1993 in accordance with the State-Owned Enterprises Act 1986).
(2)
A direction under subsection (1) must specify the terms and conditions of the agreement.
(3)
The provisions of section 339(2), (3), (4), and (5) apply to a direction given under subsection (1).
Disclosure of Information
353 Disclosure of information to Corporation
(1)
In this section, unless the context otherwise requires, “payment”
means any payment under this Act; and includes any provisions in respect of rehabilitation.
(2)
The purpose of this section is to facilitate the disclosure of information by the Department of Labour, the Department of Corrections, the New Zealand Customs Service, the department for the time being responsible for the administration of the Social Security Act 1964, the Ministry of Health, any funder, and any hospital and health service (in this section each called “the Department”
) to the Corporation for the purposes of verifying—
(a)
The entitlement or eligibility of any person to or for any payment; or
(b)
The amount of any payment to which any person is or was entitled or for which any person is or was eligible.
(3)
For the purpose of this section, the Corporation may from time to time, in accordance with arrangements made from time to time between the Corporation and the Department concerned, request the Department to supply, in respect of persons who are receiving, have received, or have applied to receive any payment—
(a)
Such biographical information as is sufficient to identify those persons, including their addresses; and
(b)
Such details of those persons held by that Department as are necessary for the purposes of this section; and
(c)
Such information and details referred to in paragraphs (a) and (b) as may be necessary for the purposes of this section in respect of persons who are receiving, have received, or have applied to receive any treatment or rehabilitation.
(4)
On receipt of a request made under subsection (3), the Department may supply the information requested to any officer or employee or agent of the Corporation who is authorised in that behalf by the Corporation.
(5)
Information supplied under a request made under subsection (3) may be supplied in such form as is determined by agreement between the Corporation and the Department concerned.
Compare: 1992, No. 13, s. 164
354 Disclosure of information by Corporation
(1)
In this section, unless the context otherwise requires, “benefit”
has the same meaning as in section 3(1) of the Social Security Act 1964; and includes—
(a)
A lump sum payable under any of sections 61db, 61dc, and 61dd of that Act:
(b)
Any special assistance granted out of the Crown Bank Account from money appropriated by Parliament under section 124(1)(d) or (da) of that Act.
(2)
The purpose of this section is to facilitate the disclosure of information by the Corporation to the department for the time being responsible for the administration of the Social Security Act 1964 for the purposes of verifying—
(a)
The entitlement or eligibility of any person to or for any benefit; or
(b)
The amount of any benefit to which any person is or was entitled or to which any person is or was eligible.
(3)
For the purpose of this section, the chief executive of the department for the time being responsible for the administration of the Social Security Act 1964 may from time to time, in accordance with arrangements made from time to time between that chief executive and the Corporation, request the Corporation to supply, in respect of persons who are receiving compensation based on weekly earnings,—
(a)
Such biographical information as is sufficient to identify those persons, including their addresses; and
(b)
Such details of the entitlement of those persons to receive compensation based on weekly earnings as are necessary for the purposes of this section.
(4)
On receipt of a request made under subsection (3), the Corporation may supply the information requested to any officer or employee or agent of the chief executive of the department for the time being responsible for the administration of the Social Security Act 1964 who is authorised in that behalf by that chief executive.
(5)
Information supplied under a request made under subsection (3) may be supplied in such form as is determined by agreement between the Corporation and the chief executive of the department for the time being responsible for the administration of the Social Security Act 1964.
Compare: 1992, No. 13, s. 165
References to Corporation
355 References to Corporation
Every reference to the Accident Rehabilitation and Compensation Insurance Corporation in any enactment or document must, unless the context otherwise requires, be read as a reference to the Accident Compensation Corporation.
Compare: 1992, No. 13, s. 161
Part 12 Miscellaneous Provisions
356 “Insurer”
In this Part, “insurer”
means an insurer registered under section 201, while that registration continues under section 204, and includes—
(a)
The manager (in relation to an insured for whom the manager is required to provide entitlements):
(b)
An employer who, because of a risk sharing agreement with an insurer, is responsible for providing claims management services in relation to cover and statutory entitlements for the employer’s employees:
(c)
The administrator of an insurer, in the administrator’s role under Part 9:
(d)
The Regulator, in the Regulator’s role of meeting obligations of an insolvent insurer under Part 9:
(e)
The Regulator, in the Regulator’s role of applying the Non-Compliers Fund under section 268.
357 “Personal injury caused by medical misadventure”
: addition to section 35
For all the purposes of this Act, “personal injury caused by medical misadventure”
includes personal injury that is an infection suffered by the spouse, child, or other dependant of an insured in the following circumstances:
(a)
The insured suffered a personal injury caused by medical misadventure and the injury is an infection; and
(b)
The insured passed the infection on to his or her spouse, or child or other dependant directly or through his or her spouse.
358 No contracting out of cover or statutory entitlements
This Act has effect despite any provision to the contrary in any contract or agreement.
359 Public interest
In exercising any functions or powers under this Act, the Minister must have regard to the public interest and, in particular, the interests of taxpayers, premium payers, insureds, and potential insureds.
Compare: 1992, No. 13, s. 159ab
Restrictions on Purchase by Insurers of Public Health Acute Services from Hospital and Health Services
360 Insurers not to purchase public health acute services from hospital and health services
An insurer must not make any kind of agreement with a hospital and health service about any public health acute services included in treatment which the insurer may be liable to provide under this Act, whether an agreement for the hospital and health service to provide the services, or for the insurer to pay for the services, or for anything else.
361 Funder with funding agreement may purchase public health acute services from hospital and health services on behalf of insurers
(1)
The Minister of Health, in consultation with the Minister, may from time to time make a funding agreement with a funder.
(2)
A funding agreement made under subsection (1) must—
(a)
Provide for the payment of money to the funder in return for the funder—
(i)
Funding the provision by hospital and health services of public health acute services for insurers; or
(ii)
Arranging the funding of that provision; and
(b)
Provide how the funder’s implementation of the agreement is to be monitored; and
(c)
Contain the terms and conditions that the Minister of Health and the funder agree on.
(3)
The Minister of Health acts on behalf of the Crown.
362 Insurers to contribute to payment under funding agreement
(1)
For the purpose of the payment provided for in a funding agreement, every insurer must pay to the Crown the prescribed amount applicable to it in the prescribed manner.
(2)
Every insurer required to pay a prescribed amount is entitled to a copy of the funding agreement.
(3)
Every amount payable under subsection (1) is recoverable as a debt due to the Crown in any court of competent jurisdiction, together with any prescribed interest on that amount.
(4)
For the purposes of any proceedings under subsection (3), a ministerial certificate is admissible and is evidence of the facts stated in it, without proof of its execution by the Minister of Health.
(5)
A ministerial certificate is one that—
(a)
States the amount the insurer was liable to pay under subsection (1); and
(b)
States the time within which the insurer was required to pay the amount; and
(c)
Is executed by the Minister of Health.
(6)
In this section, “prescribed amount”
means,—
(a)
If an amount is prescribed in regulations made for the purpose, that amount; or
(b)
If a method of calculating an amount is prescribed in regulations made for the purpose, the amount that results from that calculation.
363 Service agreements between funder and hospital and health services
(1)
A funder that is a party to a funding agreement must make, and maintain in force, service agreements with hospital and health services in order to give effect to the funder’s obligations under the funding agreement.
(2)
The funder must ensure that every service agreement contains terms and conditions that—
(a)
Conform with the funding agreement; and
(b)
Provide for the funder to maintain and monitor performance standards, including ethical standards, specified in the agreement; and
(c)
Provide for the funder to provide every insurer that is liable to pay a prescribed amount under section 362 with all information contained in the service agreement that is relevant to the services it funds.
364 Effect of service agreement on insurer’s liability
(1)
The insurer is liable to an insured for acts or omissions of a hospital and health service providing public health acute services under a service agreement only if—
(a)
The liability arises under any Part of this Act except this Part; or
(b)
The liability arises under the accident insurance contract.
(2)
This section applies despite any enactment or rule of law.
365 Decision of others is insurer’s decision in some cases
A decision by a funder or a hospital and health service affecting the entitlement of an insured to the provision of treatment or rehabilitation is deemed to be a decision of the insurer for the purposes of Part 6.
Compare: 1992, No. 13, s. 89a
366 Saving of transactions
(1)
The validity or enforceability of any deed, agreement, right, or obligation made or incurred by the Crown or a Minister or a funder or a hospital and health service is not affected by a failure of the Crown, the Minister, the funder, or the service to comply with—
(a)
Any provision, direction, or requirement referred to in section 49 of the Health and Disability Services Act 1993; or
(b)
Section 361 or section 363.
(2)
Sections 360 to 365 do not limit the power of an insurer and a hospital and health service to make any agreement about the provision of goods or services other than public health acute services.
367 No entitlement to review of certain arrangements
Nothing in this Part or in Part 6 entitles any person to apply for a review of the terms of an agreement or contract or arrangement between—
(a)
An insurer and a funder; or
(b)
An insurer and a hospital and health service; or
(c)
An insurer and any other hospital; or
(d)
A funder and a hospital and health service; or
(e)
A funder and any other hospital; or
(f)
The Minister of Health and a funder under section 361.
Compare: 1992, No. 13, s. 89(6a)
General Notification Provision
368 How documents given or information notified
(1)
This section applies when—
(a)
This Act requires a document to be given to a person; or
(b)
This Act requires a person to be notified of any information, and references in this section to a document being given must be applied accordingly.
(2)
A document that this Act requires to be given to a person must be given by the method in subsection (3) that the person required to give the document considers is most likely to ensure that the document reaches the person.
(3)
The methods by which a document may be given are—
(a)
Personally delivering it to the person; or
(b)
Posting it to a usual address of the person; or
(c)
Sending it to the person by fax or some other electronic means; or
(d)
Providing it to the person in a manner approved by the person.
(4)
A document personally delivered under subsection (3)(a) must, if delivered to a corporate body, be delivered to the corporate body’s offices during working hours.
(5)
A document posted under subsection (3)(b) is deemed to have been delivered to the person at the time it would have been delivered in the ordinary course of post. For the purposes of proving delivery,—
(a)
It is sufficient to prove that the document was properly addressed; and
(b)
The document is presumed, in the absence of proof to the contrary, to have been posted on the day on which it was dated.
(6)
A document sent under subsection (3)(c) is deemed, in the absence of proof to the contrary, to be delivered on the day after the day on which it is sent, and it is sufficient proof of sending that a correct machine-generated acknowledgement of receipt exists.
(7)
This section is subject to section 60 and to any provision of this Act that specifically provides how a document is to be given.
Compare: 1992, No. 13, s. 89; s. 162
Disclosure of Information
369 Disclosure of information by insurer
(1)
The purpose of this section is to facilitate the disclosure of information by the insurer to the Ministry of Health, funders, and hospital and health services for the purposes of verifying—
(a)
Whether or not the insurer is liable to provide treatment:
(b)
The amount of any payment to which any person is or was entitled or for which any person is or was eligible.
(2)
The persons who may request information from the insurer are the Director-General of Health, the chief executive of a funder, and the chief executive of a hospital and health service.
(3)
The persons about whom they may request information are persons (“recipients”
) who have received, are receiving, or have applied to receive any treatment that the insurer is liable to provide.
(4)
The information they may request is—
(a)
Biographical information sufficient to identify the recipients, including their addresses; and
(b)
Details of the recipients’ entitlements to the extent necessary to achieve the purpose of this section.
(5)
A request must be made in accordance with arrangements made from time to time between the insurer and the Director-General, or the insurer and each chief executive.
(6)
The insurer may supply the information requested to, as appropriate,—
(a)
An officer or employee or agent of the Ministry authorised by the Director-General to receive it:
(b)
An officer or employee or agent of the funder authorised by the chief executive to receive it:
(c)
An officer or employee or agent of the hospital and health service authorised by the chief executive to receive it.
(7)
The information may be supplied in such form as is determined by agreement between the insurer and the Director-General, or the insurer and each chief executive.
Compare: 1992, No. 13, s. 165a
370 Information available to Regulator
(1)
The purposes of this section are to enable the Regulator—
(a)
To provide insurance numbers to employers; and
(b)
To identify those employers who are not complying with the obligation under section 169.
(2)
The Regulator, for those purposes, may from time to time request the Commissioner to provide a list of all employers or such category of those persons as the Regulator may specify.
(3)
The list must include the names of the persons, their addresses, their tax file numbers, and the time at which the person became or ceased to be an employer.
(4)
The Regulator may compare the information provided by the Commissioner under this section with information provided by insurers to the Regulator under section 194 in order to determine which of the persons on the list does not have an accident insurance contract.
(5)
Information provided under this section must be provided in accordance with an agreement between the Regulator and the Commissioner which meets the requirements of Part X of the Privacy Act 1993.
(6)
The Regulator may use the information obtained by the comparison of information in order to take enforcement action against non-complying persons under this Act, but before using the information in that way must meet the requirements of section 103 of the Privacy Act 1993.
371 Information available to Regulator to assess sanctions for employers without accident insurance contracts
(1)
This section applies if the Regulator identifies an employer who is not complying with the obligation under section 169.
(2)
The purpose of the section is to enable the Regulator to identify, for the purpose of sections 384 to 391 (sanctions for failing to insure), the premium that would have been payable by the employer.
(3)
The Regulator may from time to time request the Commissioner to provide such information relating to the employer’s industry classification and earnings levels as the Regulator may specify for that purpose.
(4)
This section authorises the Commissioner to comply with the request, but—
(a)
Not in a way that could reasonably be expected to identify the individual employees concerned; and
(b)
To the extent that this section involves an information match, section 370(5) and (6) applies.
Recovery of Payments
372 Recovery of payments
(1)
If a person receives a payment from an insurer in good faith, the insurer may not recover all or part of the payment on the ground only that the decision under which the payment was made has been revised on medical grounds under section 73.
(2)
An insurer may not recover all or part of a payment in respect of statutory entitlements which was paid as a result of an error not intentionally contributed to by the recipient if the recipient—
(a)
Received the payment in good faith; and
(b)
Has so altered his or her position in reliance on the validity of the payment that it would be inequitable to require repayment.
Compare: 1992, No. 13, s. 77(2)
Relationship with Social Security Benefits
373 Relationship with social security benefits: reimbursement by insurers
(1)
This section applies where a person—
(a)
Receives a payment of an income-tested benefit under the Social Security Act 1964 in respect of a period; and
(b)
Establishes a claim to an entitlement from an insurer (including the manager) in respect of all or part of the same period.
(2)
An excess benefit payment is treated as having been paid in respect of that entitlement.
(3)
An excess benefit payment is the part of the benefit payment (up to the amount of the entitlement) that is in excess of the amount of benefit properly payable, having regard to the entitlement under this Act.
(4)
The insurer must refund the excess benefit payment to the department responsible for the administration of the Social Security Act 1964—
(a)
If the insurer knows that this section applies; or
(b)
If requested to do so by the department.
(5)
For the purposes of this section, an excess benefit payment includes a payment of any part of a married rate of benefit that is paid to the spouse of the person who established the claim to the benefit.
Compare: 1992, No. 13, s. 78(2), (3)
374 Relationship with social security benefits: reimbursement to insurers
(1)
This section applies where a person—
(a)
Receives a payment from an insurer (including the manager) in respect of an entitlement that is subsequently determined to have been incorrectly paid under this Act (including a payment under section 317) in respect of a period; and
(b)
Establishes a claim to an income-tested benefit under the Social Security Act 1964 in respect of all or part of the same period.
(2)
The payment from the insurer that has been incorrectly paid (up to the amount of benefit payable during that period) is treated as having been paid in respect of that benefit.
(3)
The department responsible for the administration of the Social Security Act 1964 must refund to the insurer the amount so treated as a payment of benefit—
(a)
If the department knows that this section applies; or
(b)
If requested to do so by the insurer.
(4)
The rest of the payment is a debt due to the insurer from the person to whom the payment was made, which may be recovered by the insurer in accordance with this Act.
Compare: 1992, No. 13, s. 78(1), (2), (4), (5)
Offences and Penalties Generally
375 Offence to mislead insurer
(1)
Every person commits an offence who, for the purpose described in subsection (2) or with the result described in subsection (3),—
(a)
Makes any statement knowing it to be false in any material particular; or
(b)
Wilfully does or says anything, or omits to do or say anything, for the purpose of misleading or attempting to mislead any insurer or any other person concerned in the administration of this Act.
(2)
The purpose is—
(a)
For that person to receive or continue to receive any payment or entitlement; or
(b)
For another person to receive or continue to receive any payment or entitlement.
(3)
The result is—
(a)
That that person receives or continues to receive any payment or entitlement, whether or not entitled to it under this Act; or
(b)
That another person receives or continues to receive any payment or entitlement, whether or not entitled to it under this Act.
(4)
A person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $5,000.
Compare: 1992, No. 13, s. 166(1)
376 Offence not to provide requested information to insurer
(1)
Every—
(a)
Employer or former employer of an insured; or
(b)
Person who has provided any treatment or rehabilitation to an insured; or
(c)
Person who has received any payment in respect of an insured—
commits an offence if, without reasonable excuse, he or she refuses or fails to supply any information or statement to the insurer, when requested to do so by the insurer for the purposes of facilitating the timely and appropriate provision of entitlements or detecting fraud.
(2)
Subsection (1) does not apply unless the insured has authorised the request being made and the person of whom the request is made has notice of that authorisation.
(3)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $2,000.
Compare: 1992, No. 13, s. 166(1a), (1b)
377 Offence not to provide earnings information to insurer
(1)
This section applies to every person who is receiving—
(a)
First week compensation:
(b)
Weekly compensation.
(2)
Every such person commits an offence if he or she fails to advise the insurer as soon as practicable if his or her earnings have increased after he or she began receiving compensation in such a way as to reduce the compensation payable to him or her.
(3)
A person who commits an offence against this section is liable on conviction to a fine not exceeding $5,000.
Compare: 1992, No. 13, s. 166(2)
Liability of Directors, Employees, and Officers
378 Directors, employees, and officers
(1)
A director, employee, agent, or officer of a body corporate commits an offence against this Act if—
(a)
The body corporate commits an offence against this Act (“the principal offence”
); and
(b)
The principal offence was caused by an act done or carried out by, or by an omission of, the director, employee, agent, or officer.
(2)
A director, employee, agent, or officer who does or carries out the act or omission referred to in subsection (1), is liable on conviction for up to the same maximum penalty that could apply to an individual, if an individual had committed the principal offence.
(3)
An employee or officer of a body corporate includes a person who, by reason of the person’s employment with, or position in relation to, the body corporate, is responsible by law, contract, or otherwise for undertaking an action on behalf of the body corporate.
Compare: 1994, No. 166, s. 147
Informations
379 Informations
(1)
Despite anything in section 14 of the Summary Proceedings Act 1957 or in any other Act, any information in respect of any offence against this Act, or against any regulations made under this Act, may be laid at any time within 5 years after the termination of the year in which the offence was committed.
(2)
Any information may charge the defendant with any number of offences against this Act (whether arising under this section or otherwise) or against any regulations made under this Act, if those offences are founded on the same set of facts or form or are part of a series of offences of the same or a similar character.
(3)
If any information charges more than 1 such offence, particulars of each offence charged must be set out separately in the information.
(4)
All such charges must be heard together unless the court, either before or at any time during the hearing, considers it just that any charge should be heard separately and makes an order to that effect.
Compare: 1992, No. 13, s. 166(3), (5), (6), (7)
Summary Conviction
380 Summary conviction
Every offence against this Act is punishable on summary conviction unless the contrary is specified.
General Penalty
381 General penalty for offences
Every person who commits an offence against this Act or any regulations made under it for which no penalty is provided in this Act or its regulations, otherwise than in this section, is liable on conviction to a fine not exceeding $500.
Offences Relating to Earner Premiums
382 Offences in relation to deductions
(1)
Subject to subsection (5), every person commits an offence against this Act who,—
(a)
Being an employer, knowingly does not make a deduction required to be made under section 285; or
(b)
Knowingly applies or permits the application of the amount of a deduction made or deemed made under section 285 for any purpose other than in payment to the manager or an agent of the manager; or
(c)
Knowingly provides altered, false, incomplete, or misleading information to the manager or any other person in respect of any matter or thing affecting a deduction required to be made under section 285; or
(d)
Causes or attempts to cause any employer or other person to refrain from making a deduction required to be made under section 285 or to make a lesser deduction than the deduction required to be made under section 285; or
(e)
Obtains or attempts to obtain for the person’s own advantage or benefit credit with respect to, or a payment of, the whole or any part of the amount of a deduction made in accordance with section 285 from an amount included in the earnings of any other person.
(2)
A person must not be convicted of an offence under subsection (1)(b) if the person satisfies the court that the amount of the deduction required to be made under section 285 has been paid to the manager or an agent of the manager, and that the person’s failure to make payment of the deduction within the prescribed time was due to illness, accident, or other cause beyond the person’s control.
(3)
A person who commits an offence against subsection (b) is liable, on each occasion the person is convicted, to imprisonment for a term not exceeding 5 years or a fine not exceeding $50,000.
(4)
A person who commits an offence against any of paragraphs (a), (c), (d), and (e) of subsection (1) is liable,—
(a)
The first time the person is convicted in relation to a particular type of offence, to a fine not exceeding $25,000:
(b)
On every other occasion the person is convicted for the same type of offence, to a fine not exceeding $50,000.
(5)
No person may be convicted of an offence under this section in respect of any deduction required to be made on account of the premium payable under this Act (in this subsection referred to as “premium deduction”
) if the person is convicted of an offence under section 143a(1) of the Tax Administration Act 1994 in respect of any deduction required to be made under the PAYE rules, being a deduction which, if the premium deduction were a deduction on account of income tax for the purposes of the PAYE rules, would have included the amount of the premium deduction.
Compare: 1992, No. 13, s. 115a
Sanctions for Failing to Insure under Part 7
383 Sanctions for failure to insure
(1)
The purpose of sections 384 to 391 is to impose sanctions if a person fails to comply with section 169 (requirement to enter into, and maintain in force, an accident insurance contract).
(2)
The sanctions are—
(a)
A civil penalty under section 384 of 3.5 times the amount of the premium that would have been payable for that period; or
(b)
A criminal offence under section 391 of knowingly failing to comply with the requirement to insure, with a fine of up to 5 times the amount of the premium that would have been payable for that period.
384 Civil penalty
(1)
This section applies if, in the opinion of the Regulator, a person has contravened section 169 in respect of any period.
(2)
The Regulator may require a person to pay a civil penalty in respect of that contravention.
(3)
The civil penalty so payable is an amount 3.5 times the amount of the premium that would have been payable for that period if the person had complied with the section.
385 Procedure for requiring civil penalty
(1)
A notice requiring payment of a civil penalty must set out—
(a)
The circumstances that, in the opinion of the Regulator, make that person liable to pay the penalty; and
(b)
The amount of the penalty; and
(c)
The person’s right to object to the Regulator’s decision by giving written notice to the Regulator within a period of 20 working days of the Regulator’s notice, and to state the reasons for the objection; and
(d)
The Regulator’s right to recover the penalty as a debt if no objection is made, or an objection is made without a statement of reasons.
(2)
The Regulator, at any time, may withdraw a notice given under subsection (1).
386 Civil penalty where no objection made
A civil penalty under section 384 becomes payable—
(a)
If no objection is made within 20 working days of the Regulator’s notice; or
(b)
If an objection is not accompanied by a statement of reasons; or
(c)
If the person replies and states he or she does not object to the imposition of the penalty.
387 Penalty where objection made
(1)
This section applies if—
(a)
An objection to the recovery of a penalty, accompanied by a statement of reasons, is received from the person within 20 working days of the Regulator’s notice under section 385; and
(b)
The Regulator does not accept the objection.
(2)
The Regulator may make an application to the District Court.
(3)
The District Court must order the person to pay a civil penalty under section 384 if the Regulator establishes on the balance of probabilities that the person has not complied with section 169.
(4)
The court may award costs as if the matter were a criminal matter.
388 Collection of civil penalty
(1)
The Regulator may recover a civil penalty in a court of competent jurisdiction as if the penalty were a debt due to the Regulator.
(2)
In this case, the penalty includes the costs of the court and, if so ordered, the costs of the Regulator, relating to the application.
389 Penalties payable into Non-Compliers Fund
Every civil penalty under section 384, and any costs of the Regulator ordered to be paid under section 387(4) or section 388(2), must be paid into the Non-Compliers Fund.
390 Proof of premium to which penalty linked
(1)
A certificate executed by the Regulator and certifying that a sum specified in the certificate is the amount of premium that would have been payable for the issue of a policy of insurance so specified in respect of a period so specified is (without proof of its execution by the Regulator) admissible in any proceedings in respect of a penalty under this Part and is evidence of the matters specified in the certificate.
(2)
In the absence of information that would enable the Regulator to accurately determine the premium that would have been payable for the issue of a particular accident insurance contract,—
(a)
The Regulator must make an estimate of that premium (based on the information available to the Regulator); and
(b)
The Regulator’s estimate is presumed to be accurate as to the premium that would have been payable and—
(i)
May not be challenged on the basis that insufficient information was available to enable the making of an accurate assessment; but
(ii)
May be challenged by the provision of information that enables a more accurate estimate to be made; and
(c)
If the Regulator’s estimate is successfully challenged and as a result a more accurate estimate is substituted, the proceedings are not open to challenge merely because of the inaccurate estimate and may continue to be heard and be determined on the basis of the substituted assessment.
(3)
For the purposes of making estimates under this section, the Regulator must prepare and keep up to date a schedule of industry average premiums charged by insurers in relation to accident insurance contracts.
(4)
The Regulator must consult with the Government Actuary in preparing a schedule under subsection (3).
391 Offence of knowingly failing to insure
(1)
Every person to whom section 169 applies who knowingly fails to comply with that section in respect of any period commits an offence against this Act and is liable to pay a fine not exceeding 5 times the amount of the premium that would have been payable by the person for that period if the person had complied with that section.
(2)
The costs of the court and, if so ordered, the costs of the Regulator are payable by the defendant.
(3)
The penalty payable under subsection (1), and costs of the Regulator payable under subsection (2), must be paid into the Non-Compliers Fund.
(4)
Section 390(2) and (3) applies to the amount of premium that would have been payable for the issue of a policy of insurance for the purposes of subsection (1).
392 Person not liable for double penalties
A person is not liable to pay a penalty under both section 384 and section 391 in respect of the same period.
393 Defence available under this Act
(1)
Subject to this section, it is a defence in any proceedings for an offence of failing to comply with the requirements of the provisions listed in subsection (2) if the defendant proves that—
(a)
The contravention was due to the act or default of another person, or to some other cause beyond the defendant’s control; and
(b)
The defendant took reasonable precautions and exercised due diligence to avoid the contravention.
(2)
The relevant provisions are sections 171, 172, 174(5), 179(6), 183 (to the extent that it applies section 179(6)), 186(6), 187(2) and (3), 193(2), 194(9), 199(4), 232, and 234(2).
Proceedings
394 Proceedings for personal injury
(1)
No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of—
(a)
Personal injury covered by this Act; or
(b)
Personal injury covered by the former Acts.
(2)
Subsection (1) does not prevent any person bringing proceedings relating to, or arising from,—
(a)
Any damage to property; or
(b)
Any express term of any contract or agreement (other than an accident insurance contract); or
(c)
The unjustifiable dismissal of any person or any other personal grievance arising out of a contract of employment.
However, no court, tribunal, or other body may award compensation in any such proceedings for personal injury of the kinds described in subsection (1).
(3)
Subsection (1) does not prevent any person bringing proceedings under—
(a)
Section 50 or section 51 of the Health and Disability Commissioner Act 1994; or
(b)
Section 83 or section 90 or section 122 or section 123 or section 124 of the Human Rights Act 1993.
(4)
Subsection (1) does not prevent any person bringing proceedings in any court in New Zealand for damages for personal injury of the kinds described in subsection (1), suffered in New Zealand or elsewhere, if the cause of action is the defendant’s liability for damages under the law of New Zealand under any international convention relating to the carriage of passengers.
(5)
Subsection (1) does not affect proceedings to which section 395(3) applies.
(6)
Nothing in this section is affected by—
(a)
The failure or refusal of any person to lodge a claim for personal injury of the kinds described in subsection (1); or
(b)
Any purported denial or surrender by any person of any rights relating to personal injury of the kinds described in subsection (1); or
(c)
The fact that a person who has suffered personal injury of the kinds described in subsection (1) is not entitled to any entitlement under this Act.
Compare: 1992, No. 13, s. 14
395 Proceedings for personal injury caused by a work-related gradual process, disease, or infection
(1)
This section applies to proceedings for damages arising directly or indirectly out of personal injury caused by a work-related gradual process, disease, or infection that is—
(a)
Personal injury covered by this Act; or
(b)
Personal injury covered by the former Acts.
(2)
No person may bring proceedings to which this section applies independently of this Act in any court in New Zealand, whether the proceedings are under any rule of law or any enactment.
(3)
Subsection (2) does not prevent a person who commenced proceedings to which this section applies before 1 April 1993 from completing the proceedings.
(4)
Subsection (2) does not prevent any person bringing proceedings relating to, or arising from,—
(a)
Any damage to property; or
(b)
Any express term of any contract or agreement (other than an accident insurance contract); or
(c)
The unjustifiable dismissal of any person or any other personal grievance arising out of a contract of employment.
However, no court, tribunal, or other body may award compensation in any such proceedings for personal injury of the kinds described in subsection (1).
396 Exemplary damages
(1)
Nothing in this Act, and no rule of law, prevents any person from bringing proceedings in any court in New Zealand for exemplary damages for conduct by the defendant that has resulted in—
(a)
Personal injury covered by this Act; or
(b)
Personal injury covered by the former Acts.
(2)
The court may make an award of exemplary damages for conduct of the kind described in subsection (1) even though—
(a)
The defendant has been charged with, and acquitted or convicted of, an offence involving the conduct concerned in the claim for exemplary damages; or
(b)
The defendant has been charged with such an offence, and has been discharged without conviction under section 19 of the Criminal Justice Act 1985 or convicted and discharged under section 20 of that Act; or
(c)
The defendant has been charged with such an offence and, at the time at which the court is making its decision on the claim for exemplary damages, the charge has not been dealt with; or
(d)
The defendant has not, at the time at which the court is making its decision on the claim for exemplary damages, been charged with such an offence; or
(e)
The limitation period for bringing a charge for such an offence has expired.
(3)
In determining whether to award exemplary damages and, if they are to be awarded, the amount of them, the court may have regard to—
(a)
Whether a penalty has been imposed on the defendant for an offence involving the conduct concerned in the claim for exemplary damages; and
(b)
If so, the nature of the penalty.
397 Insurer to be heard
(1)
This section applies to proceedings in which a question arises as to whether or not a person—
(a)
Has suffered personal injury for which he or she has cover; or
(b)
Has suffered personal injury covered by the former Acts; or
(c)
Has died because of personal injury of a kind described in paragraph (a) or (b).
(2)
The court, tribunal, or other body hearing the proceedings may not make a determination unless the relevant insurer is a party to the proceedings or is given an opportunity to be heard.
(3)
For the purposes of subsection (2), the manager is the relevant insurer in relation to proceedings in which a question arises as to whether or not personal injury is personal injury covered by the former Acts.
Compare: 1992, No. 13, s. 14
398 Powers of insurer when claimant has right to bring proceedings
(1)
Subsection (2) applies when—
(a)
Any entitlement is required to be provided under this Act for personal injury to an insured; and
(b)
The insured has the right to bring proceedings for damages in New Zealand or elsewhere for the personal injury.
(2)
When this subsection applies, the insurer may require an insured to do one of the following things, at the insured’s option and at the insurer’s expense:
(a)
To take all reasonable steps to enforce the right; or
(b)
To assign the right to the insurer, and to do all other things necessary to enable the right to be enforced by the insurer, within a reasonable period.
(3)
Subsection (4) applies when—
(a)
Any entitlement is required to be provided under this Act for personal injury to an insured; and
(b)
The insured has received a sum of money by way of damages, compensation, or settlement of any claim in New Zealand or elsewhere for the personal injury.
(4)
When this subsection applies, the insurer may, as the case requires,—
(a)
Deduct, from the cost of the entitlement required to be provided to an insured, a sum equivalent to the net amount received by way of damages, compensation, or settlement; or
(b)
Recover from the insured, as a debt due, the entitlement provided.
(5)
Nothing in subsection (4) applies to—
(a)
Any money paid on a claim by the insured under an insurance contract (other than an accident insurance contract):
(b)
Any payment from a registered superannuation scheme:
(c)
Any award of compensation under section 28 of the Criminal Justice Act 1985:
(d)
Any damages awarded under any Act.
Compare: 1992, No. 13, s. 15
Regulation-Making Powers
399 Regulations relating to definitions (Part 2)
(1)
For the purposes of Part 2, the Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Defining “disability”
or “impairment”
, for the purposes of this Act, in a manner consistent with internationally accepted standards:
(b)
Adding an occupational group, or part of an occupational group, to the definition of “treatment provider”
in section 13.
(2)
The Minister must not make any recommendation under subsection (1) without first consulting the persons or organisations the Minister considers appropriate, having regard to the subject-matter of the proposed regulations.
400 Regulations relating to claims process (Part 4)
For the purposes of Part 4, the Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations requiring insurers and treatment providers to facilitate the handling of claims by—
(a)
Establishing a process applying to all insurers and treatment providers for billing insurers for treatment:
(b)
Establishing a process applying to all insurers and treatment providers for the receipt and actioning of claims, including the use of standard forms.
401 Regulations relating to tests for deafness (Part 4)
(1)
For the purposes of Part 4, the Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Prescribing the tests to be applied to assess the degree of deafness that is a personal injury caused by a work-related gradual process:
(b)
Prescribing the conditions under which the tests must be carried out:
(c)
Prescribing any other matters relating to the tests.
(2)
The Minister must not make any recommendation under subsection (1) without first consulting the persons or organisations the Minister considers appropriate, having regard to the subject-matter of the proposed regulations.
402 Regulations relating to treatment or rehabilitation (Part 5)
(1)
For the purposes of Part 5 and Schedule 1, the Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Prescribing the costs that an insurer must pay for the entitlements of treatment and rehabilitation:
(b)
Prescribing the circumstances in which, and the method by which, an insurer must make any payment for treatment or rehabilitation:
(c)
Prescribing the circumstances in which, and the method by which, the insurer may make arrangements, and make contributions, for the treatment or rehabilitation:
(d)
Prescribing the persons to whom those payments may be made.
(2)
The Minister must not make any recommendation under subsection (1) without first consulting the persons or organisations the Minister considers appropriate, having regard to the subject-matter of the proposed regulations.
(3)
Without limiting the matters that may be prescribed by regulations, regulations made under subsection (1) may—
(a)
Prescribe—
(i)
A percentage, or different percentages, of the total costs to be paid by an insurer; or
(ii)
A specified amount, or specified amounts, that an insurer must pay in respect of those costs in specified circumstances:
(b)
Provide that an insurer must make payments in respect of costs only to the extent that costs exceed amounts specified in the regulations:
(c)
Provide that an insurer must make payments in respect of treatment or rehabilitation only if a person who is a member of a class prescribed in the regulations—
(i)
Provides treatment or rehabilitation; or
(ii)
Refers an insured to treatment or rehabilitation; or
(iii)
Directly supervises the provision of treatment or rehabilitation:
(d)
Provide that an insurer—
(i)
Must not pay any of the cost of specified treatment or rehabilitation; or
(ii)
Must pay some or all of such costs only if conditions specified in the regulations or by an insurer are met:
(e)
Prescribe—
(i)
An amount that the insured must pay for treatment; or
(ii)
A percentage that the insured must pay of the total amount payable for treatment.
(4)
Without limiting the matters that may be prescribed by regulations, regulations made under subsection (1) may contain different provisions in respect of—
(a)
Payments relating to work-related personal injury and payments relating to other personal injury:
(b)
Payments relating to persons who are entitled to weekly compensation for loss of earnings and payments relating to persons who are entitled to weekly compensation for loss of potential earning capacity:
(c)
Payments relating to persons who have different entitlements to benefits under the Social Security Act 1964.
403 Regulations relating to independence allowance (Part 5)
(1)
For the purposes of Part 5 and Schedule 1, the Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations specifying when an insured’s condition is to be regarded as stabilised for the purposes of clause 59 of Schedule 1.
(2)
The Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations for the purposes of clauses 60 and 61 of Schedule 1 that—
(a)
Refer to, or incorporate by reference, in whole or in part, the American Medical Association Guides to the Evaluation of Permanent Impairment:
(b)
Prescribe guides other than, or in addition to, the American Medical Association Guides to the Evaluation of Permanent Impairment:
(c)
Do any combination of the things referred to in paragraphs (a) and (b).
(3)
Any material referred to or incorporated by reference in regulations under subsection (1) forms part of the regulations for all purposes However, any amendment made to the material after the commencement of the regulations does not have effect until regulations have been made incorporating the amendment into the regulations.
(4)
An insurer must allow an insured to inspect any material referred to or incorporated by reference in regulations under subsection (1). The inspection must be free of charge and take place at one of the insurer’s offices.
404 Regulations relating to indexation (Part 5)
For the purposes of Part 5 and Schedule 1, the Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Prescribing the formula or formulas for indexation under section 102.
(b)
Prescribing the formula or formulas for indexation under section 103.
405 Regulations relating to reviews and appeals (Part 6)
For the purposes of Part 6, the Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Prescribing rules for the conduct of reviews:
(b)
Prescribing rules for the lodging of notices in District Courts relating to appeals:
(c)
Prescribing rules for the conduct of appeals:
(d)
Prescribing a scale of costs for the purposes of section 151.
406 Regulations (Parts 7 to 9)
(1)
For the purposes of Parts 7 to 9, the Governor-General may, from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Prescribing the information that must be contained in returns to be provided to the Regulator under section 194:
(b)
Prescribing, in respect of the trust deed referred to in section 214 (including the charge referred to in section 215),—
(i)
Any information and other matters that are required to be contained in the deed or charge; and
(ii)
Any implied terms that are deemed to be contained in the deed or charge; and
(iii)
Any exceptions or releases to which the charge is subject:
(c)
Prescribing what is or is not included within the term “total gross premiums”
:
(d)
Prescribing a percentage for the purpose of section 247(5):
(e)
Prescribing rates of interest under this Act:
(f)
Providing for the levy referred to in section 236.
(2)
The Minister must not make a recommendation under subsection (1)(c) without first consulting insurers.
407 Regulations (Part 10)
For the purposes of Part 10, the Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Specifying, in relation to premiums, the time of their payment or derivation and prescribing the maximum amounts and deemed minimum amounts of earnings for premium purposes:
(b)
Prescribing the procedures for the return of earnings and the payment of premiums on earnings and refunds on premiums and other related matters:
(c)
Prescribing the rates of premiums (including maximum and minimum premiums):
(d)
Prescribing classifications, and categories of earners, for premium purposes:
(e)
Prescribing the terms and conditions of systems of experience rating of payers of premiums under this Act:
(f)
Prescribing the circumstances in which penalties in respect of unpaid premiums may be less than 3 times the amount of unpaid premium, and the penalties, or the method of calculating the penalties, in such cases.
408 Consultation requirements for regulations relating to classifications, experience rating, or medical misadventure
The Minister may not make any recommendation in respect of regulations made under section 407(d) or (e), or in relation to the Medical Misadventure Account, without first consulting such persons or organisations as the Minister considers appropriate having regard to the subject-matter of the proposed regulations.
409 Consultation requirements for regulations relating to premium setting
(1)
The Minister may not recommend the making of regulations under this Act prescribing the rates of premiums unless the Minister has first received and considered a recommendation from the manager made in accordance with the provisions of this section.
(2)
The manager must consult premium payers before recommending to the Minister that such regulations be made, and that obligation to consult is satisfied if—
(a)
The manager publicly notifies its intention to recommend to the Minister that such regulations be made by publishing in the Gazette, and in a daily newspaper circulating in each of the cities of Auckland, Hamilton, Wellington, Christchurch, and Dunedin, a notice—
(i)
Stating that the manager is proposing to recommend that such regulations be made; and
(ii)
Stating where copies of the proposed regulations may be obtained; and
(iii)
Explaining the manager’s proposal to recommend the making of the proposed regulations, or stating where a copy of that explanation may be obtained; and
(iv)
Explaining the costs and the method for calculating those costs in relation to the self-employed work premium in accordance with the Ministerial policy direction referred to in section 301(2)(b); and
(v)
Stating where copies of any actuarial valuation on which premiums are based may be obtained; and
(vi)
Inviting members of the public to make written submissions on the proposed regulations; and
(vii)
Stating the last date on which the manager will receive written submissions on the proposed regulations (which date must be not less than 28 days after the date of the publication of the notice in the Gazette ); and
(b)
The manager considers all submissions on the proposed regulations that are received by the manager not later than the date stated under paragraph (a)(vii).
(3)
The manager must, before recommending to the Minister the making of regulations under this Act prescribing the rates of premiums, have regard to the funding requirements for the relevant Account and any relevant policy direction given under section 339.
(4)
The manager must, after recommending to the Minister the making of regulations under this Act prescribing the rates of premiums, publish in the Gazette, and in a daily newspaper circulating in each of the cities of Auckland, Hamilton, Wellington, Christchurch, and Dunedin, a notice—
(a)
Stating that such a recommendation has been made; and
(b)
Stating where copies of the recommendation, and any information that accompanied the recommendation, may be obtained.
(5)
Nothing in this section obliges the Minister to accept the manager’s recommendation or prevents the Minister recommending that the regulations prescribe rates of premiums different from the rates recommended by the manager.
(6)
The consultation procedure contained in subsection (2) constitutes a code that sets out all the obligations of the manager in relation to consultation over the process of recommending to the Minister that regulations be made.
410 Regulations relating to public health acute services (Part 12)
(1)
For the purposes of Part 12, the Governor-General may from time to time, on the recommendation of the Minister and the Minister of Health, by Order in Council, make regulations—
(a)
Prescribing—
(i)
The amount to be paid by an insurer under section 362; or
(ii)
A method by which the amount is calculated; and
(b)
Prescribing the person to whom the amount is to be paid; and
(c)
Prescribing the manner in which the amount is to be paid.
(2)
Without limiting the matters that may be prescribed by regulations, regulations made under subsection (1) may—
(a)
Set different amounts to be paid by different classes of insurers:
(b)
Provide for the payment of amounts by instalments.
(3)
The Minister and the Minister of Health must not make any recommendation—
(a)
Under subsection (1)(a) without first consulting every insurer liable to pay the amount; or
(b)
Under any paragraph of subsection (1) without first consulting the persons or organisations the Ministers consider appropriate, having regard to the subject-matter of the proposed regulations.
411 Regulations (transition)
(1)
The Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations providing for an orderly transition to the competitive accident insurance market and, for that purpose, the regulations may direct all employers without accident insurance contracts at a prescribed date to purchase accident insurance contracts from—
(a)
One single insurer which is a State enterprise; or
(b)
One or more insurers to be nominated by the Regulator.
(2)
Without limiting subsection (1), those regulations may, if more than one insurer is to be nominated,—
(a)
Prescribe the process of nominating the insurers:
(b)
Prescribe a method of matching employers with an insurer, including without limitation, matching employers to 2 or more insurers by means of a random ballot.
(3)
Without bruiting subsection (1), those regulations may, in any case,—
(a)
Prescribe a process by which the Regulator provides information to employers who may be affected by the regulations:
(b)
Require an insurer to enter into accident insurance contracts:
(c)
Require employers who have not entered into an accident insurance contract by a specified date to enter into, by a specified date, a single accident insurance contract with a specified insurer:
(d)
To deal with circumstances where the parties so introduced cannot reach agreement about the terms of the contract, authorise the insurer to impose terms and conditions:
(e)
Provide that contracts so created can come into effect on the date specified by the insurer:
(f)
Provide for restrictions on the use of excesses and experience ratings by the insurer in creating the contracts:
(g)
Specify the period for which a transitional insurance contract must remain in force (which period must be no less than 3 months and no more than 6 months):
(h)
Enable any nominated insurer to require employers to provide information that is reasonably required for premium setting purposes:
(i)
Prescribe offences in respect of the contravention of or non-compliance with any regulations made under paragraph (h), and the amount of the fine that may be imposed in respect of the offence, which fine may not exceed $10,000.
(4)
The nomination of an insurer or insurers under subsection (1) is specifically authorised for the purpose of section 43 of the Commerce Act 1986.
(5)
A regulation made under this section that is still in force on 1 January 2000 expires on the close of that day.
412 General power to make regulations
The Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Prescribing forms of applications, notices, and other documents required for the purposes of this Act, and requiring the use of such forms:
(b)
Prescribing—
(i)
The matters in respect of which fees or charges are payable under this Act:
(ii)
The amounts of those fees or charges, or the method or rates by which they are to be assessed:
(iii)
The persons liable for payment of those fees or charges:
(iv)
The circumstances in which the payment of the whole or any part of those fees or charges may be remitted or waived:
(v)
The manner in which the fees or charges are to be paid:
(c)
Providing for such matters as are contemplated by or necessary for giving full effect to this Act and for its due administration.
413 Regulations may confer discretion
No regulation is invalid on the ground that it delegates to, or confers on, any person or body any discretionary authority.
Compare: 1945, No. 40, s. 2
414 Regulations may prescribe offences and penalties
The Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations—
(a)
Prescribing offences in respect of the breach of, or noncompliance with,—
(i)
Any regulations made under this Act; or
(ii)
Any requirement or direction made or given under any such regulations; and
(b)
Prescribing penalties not exceeding $500 in respect of any offences prescribed under this section.
Compare: 1992, No. 13, s. 167(1)(u)
Consequential Amendments, Repeals, and Revocations
415 Consequential amendments
(1)
The Acts specified in Part 1 of Schedule 7 are amended in the manner indicated in that schedule.
(2)
The regulations specified in Part 2 of Schedule 7 are amended in the manner indicated in that schedule.
416 Consequential tax amendments
(1)
The Acts specified in Schedule 8 are amended in the manner indicated in that schedule.
(2)
This section comes into force on the day after the date on which this Act receives the Royal assent.
417 Consequential repeals and revocations
(1)
The enactments listed in Part 1 of Schedule 9 are repealed.
(2)
The orders and regulations listed in Part 2 of Schedule 9 are revoked.
Part 13 Transitional Provisions
Definitions
418 Definitions
In this Part, unless the context otherwise requires, “former Corporation”
means the Corporation acting in its capacity as the Corporation under any of the former Acts, whatever its name at the time it was acting.
419 References to former Acts
A former Act, or a section in a former Act, applied by or under any of sections 420 to 453, applies as if the Act or section had not been repealed.
Purpose of Part
420 Purpose of this Part
The purpose of this Part is to set out—
(a)
How the manager is to determine under this Act whether or not a person has cover for a personal injury suffered before 1 July 1999, which may involve applying a former Act:
(b)
The entitlements which the manager is required to provide under Part 10 for personal injury suffered before 1 July 1999 if such cover is accepted:
(c)
Transitional provisions relating to reviews and appeals arising from decisions under the former Acts:
(d)
Financial provisions that—
(i)
Allocate assets and liabilities to the Accounts from the Accounts established under the former Acts; and
(ii)
Maintain obligations relating to premiums, levies, and other payments due under the former Acts; and
(iii)
Deal with other miscellaneous matters.
Cover for Injury Suffered Before 1 July 1999
421 Claims for cover accepted under former Acts
(1)
A person is deemed to have cover under Part 3, if a claim for cover for that person has been accepted before 1 July 1999 for personal injury covered by the former Acts.
(2)
Subsection (1) does not apply if it is determined on or after 1 July 1999 that the person did not suffer personal injury covered by the former Acts.
Compare: 1992, No. 13, s. 135(1), (2)
422 Claims for cover lodged but not yet determined under former Acts
(1)
Subsection (2) applies to a claim for cover for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982, and a claim for cover for personal injury within the meaning of the Accident Rehabilitation and Compensation Insurance Act 1992, if the claim—
(a)
Is for personal injury suffered before 1 July 1999; and
(b)
Is lodged with the former Corporation before 1 July 1999; and
(c)
Is not determined before 1 July 1999.
(2)
The manager must determine the claim for cover under the Accident Rehabilitation and Compensation Insurance Act 1992, unless subsection (3) applies.
(3)
Subsection (4) applies to a claim for cover for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982, if the claim—
(a)
Is for injury suffered before 1 July 1992; and
(b)
Was lodged with the former Corporation before 1 October 1992; and
(c)
Was not determined before 1 July 1999.
(4)
The manager must determine the claim for cover under the Accident Compensation Act 1982.
Compare: 1992, No. 13, s. 135(3)
423 Claims for cover not lodged under 1992 Act
(1)
Subsection (2) applies to a claim for cover for personal injury within the meaning of the Accident Rehabilitation and Compensation Insurance Act 1992, if the claim—
(a)
Is for injury suffered before 1 July 1999; and
(b)
Is not lodged with the former Corporation before 1 July 1999.
(2)
The manager must determine the claim for cover under this Act as if the injury were suffered on or after 1 July 1999.
(3)
Nothing in subsection (2) confers cover in relation to an injury suffered before 1 April 1974.
Compare: 1992, No. 13, s. 135(5)
424 Exclusion of cover for personal injury caused by a work-related gradual process, disease, or infection if events before 1 April 1974 and death before 1 July 1992
A person does not have cover for personal injury caused by a work-related gradual process, disease, or infection if—
(a)
He or she suffered the personal injury because, before 1 April 1974, he or she performed a task, or worked in an environment, in the circumstances described in section 33(2); and
(b)
He or she died before 1 July 1992.
Compare: 1992, No. 13, s. 11(1), (5)
First Week Compensation for Injury Suffered Before 1 July 1999and Covered By Former Act
425 First week compensation for incapacity before 1 July 1999
(1)
This section applies to a person who—
(a)
Immediately before 1 July 1999 was entitled to compensation under section 38 or section 137 of the Accident Rehabilitation and Compensation Insurance Act 1992; and
(b)
On and after 1 July 1999 would have continued to be so entitled.
(2)
On and after 1 July 1999 such a person continues to be entitled to compensation under whichever of those sections applies to him or her.
Entitlements for Injury Suffered Before 1 July 1999 and Covered By Former Acts or this Act
426 Application of sections 427 to 451
(1)
Sections 427 to 442 provide for entitlements for a person who, having suffered personal injury before 1 July 1999, has cover accepted under any of sections 421 to 423.
(2)
Sections 443 to 449 provide for entitlements for the spouse, children, and other dependants of such a person, if the personal injury for which the person has cover is death or is physical injuries from which he or she dies.
(3)
The manager determines entitlements arising from cover accepted under any of sections 421 to 423 under Part 5 and Schedule 1, unless the effect of any of sections 427 to 450 is to the contrary.
Treatment
427 Treatment
(1)
In this section, “purchased service”
has the meaning set out in section 27 of the Accident Rehabilitation and Compensation Insurance Act 1992.
(2)
If a person had been provided with a purchased service before 1 July 1999 and remained entitled to it on that date, section 27 of the Accident Rehabilitation and Compensation Insurance Act 1992 continues to apply to the purchased service.
Weekly Compensation
428 Weekly compensation due under 1992 Act
(1)
This section applies to a person who,—
(a)
Immediately before 1 July 1999, was entitled to compensation under sections 39 to 46 or 138(3) of the Accident Rehabilitation and Compensation Insurance Act 1992; and
(b)
On and after 1 July 1999, would have continued to be so entitled.
(2)
On and after 1 July 1999 such a person continues to be entitled to compensation under whichever of those sections applies to him or her.
429 Weekly compensation due under 1972 and 1982 Acts
(1)
This section applies to a person who,—
(a)
Immediately before 1 July 1999, was entitled to compensation under section 138(1) of the Accident Rehabilitation and Compensation Insurance Act 1992; and
(b)
On and after 1 July 1999, would have continued to be so entitled.
(2)
On and after 1 July 1999 such a person continues to be entitled to compensation under that subsection.
(3)
However, changes in the calculation of the compensation (apart from changes made under an Order in Council or regulations or under section 430) must be made in accordance with the Accident Compensation Act 1972 or the Accident Compensation Act 1982, whichever applies.
(4)
Subsection (2) applies to an assessment of compensation under section 114 of the Accident Compensation Act 1972 or section 60 of the Accident Compensation Act 1982 only if the assessment—
(a)
Was completed before 1 October 1992; or
(b)
Was completed after 1 October 1992 but only because, before 1 October 1992, an application for review of a decision about the assessment was lodged under Part IX of the Accident Compensation Act 1982.
Compare: 1992, No. 13, s. 138
430 Abatement of compensation
(1)
In this section, “the abatement clause”
means clause 24 of Schedule 1.
(2)
The abatement clause applies to compensation continued under section 428(2) or section 429(2), but this subsection is subject to subsection (3).
(3)
To apply the abatement clause to such compensation, the manager must first determine whether the earnings on which the compensation is based were abated under any of the former Acts and then,—
(a)
If they were not, apply the abatement clause to the compensation; or
(b)
If they were,—
(i)
Determine what the earnings were that were subsequently abated; and
(ii)
Ignore the abatement; and
(iii)
Increase the earnings in accordance with any Order in Council or regulations; and
(iv)
Determine the compensation that would currently be payable on the earnings; and
(v)
Apply the abatement clause to the compensation.
Compare: 1992, No. 13, s. 140
431 Weekly payments for permanent incapacity under 1972 and 1982 Acts: increases
(1)
Sections 430 and 433 do not apply to any payment calculated under section 114 of the Accident Compensation Act 1972 or section 60 of the Accident Compensation Act 1982.
(2)
Subsection (3) applies to a person who—
(a)
Was receiving a payment under section 114 of the Accident Compensation Act 1972 or section 60 of the Accident Compensation Act 1982 immediately before 1 July 1999; and
(b)
Continues to receive it after that date under section 429(2); and
(c)
Suffers a deterioration of his or her condition caused by the injury or another personal injury covered by this Act that results in loss of earnings.
(3)
The weekly payment payable to the person is the greater of—
(a)
The weekly compensation calculated under Part 2 of Schedule 1; or
(b)
The weekly amount payable under section 429(2).
Compare: 1992, No. 13, s. 141
432 Compensation payable to persons outside New Zealand
Compensation continued under section 428(2) or section 429(2) that was, immediately before 1 July 1999, paid to a person outside New Zealand continues to be payable outside New Zealand for as long as the person otherwise remains entitled to the compensation.
Compare: 1992, No. 13, s. 143
433 Cessation of weekly compensation under any former Act because of capacity to work
Sections 83(2) to 100 apply to compensation continued under section 428(2) or section 429(2).
Compare: 1992, No. 13, s. 139
434 Cessation of weekly compensation under any former Act because of receipt of national superannuation
Clause 25 of Schedule 1 applies to compensation continued under section 428(2) or section 429(2).
Compare: 1992, No. 13, s. 139
435 Cessation of weekly compensation under 1972 and 1982 Acts because of age
Section 52 of the Accident Rehabilitation and Compensation Insurance Act 1992 continues to apply to any entitlement to earnings related compensation payable under the Accident Compensation Act 1972 or the Accident Compensation Act 1982 on and after 1 July 1997.
Compare: 1992, No. 13, s. 142
Rehabilitation
436 Individual rehabilitation programmes
(1)
Subsection (2) applies to every individual rehabilitation programme—
(a)
Approved, wholly or partly, by the former Corporation under section 20 of the Accident Rehabilitation and Compensation Insurance Act 1992; and
(b)
Not implemented before 1 July 1999.
(2)
Every such programme is deemed to be an individual rehabilitation plan to which clause 33 of Schedule 1 applies, and clauses 29 to 35 of Schedule 1 apply accordingly.
(3)
Subsection (4) applies to every individual rehabilitation programme—
(a)
Approved, wholly or partly, by the former Corporation under section 20 of the Accident Rehabilitation and Compensation Insurance Act 1992; and
(b)
Implemented before 1 July 1999; and
(c)
In effect immediately before that date.
(4)
Every such programme continues in effect for the purposes of Part 3 of Schedule 1 as if it were an individual rehabilitation plan under that Part.
(5)
Every plan to which subsection (2) or subsection (4) applies—
(a)
Has effect in the form in which it was approved by the former Corporation; and
(b)
Continues to be subject to sections 18, 22, 23, 24, 26, and 26a of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations in force and applicable to the plan on the date of its approval.
(6)
However, the manager and the person may agree to modify the plan under clause 35 of Schedule 1.
(7)
This section does not apply to the social rehabilitation element of an individual rehabilitation programme prepared under the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994, which continues to be subject only to those regulations.
(8)
The Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994 do not cease to be in force because of the repeal of the Accident Rehabilitation and Compensation Insurance Act 1992 or the commencement of this Act.
Compare: 1992, No. 13, s. 136(2)–(3)
437 Compensation for pecuniary loss not related to earnings under 1972 and 1982 Acts: attendant care and household help
(1)
This section applies if—
(a)
A person was receiving compensation at a weekly rate of $350 or more immediately before 1 July 1992; and
(b)
The compensation was paid under section 80 of the Accident Compensation Act 1982 or section 121 of the Accident Compensation Act 1972 and was for—
(i)
Attendant care, meaning personal care and mobility assistance necessary for the injured person; or
(ii)
Household help, meaning provision of assistance for domestic activities that would be performed by the injured person if not injured and that is necessary to enable the person to remain in or take up suitable residence; and
(c)
The compensation was payable because of section 149(3) or (4) of the Accident Rehabilitation and Compensation Insurance Act 1992.
(2)
The sections referred to in subsection (1)(b)—
(a)
Continue to apply to the person and to his or her entitlement to attendant care or household help; and
(b)
Can be used from time to time to reassess the person’s entitlement to attendant care or household help.
(3)
The person—
(a)
Is not entitled to receive attendant care or household help under clauses 36 to 52 of Schedule 1; but
(b)
Is entitled, not more than once in any 12-month period, to elect to be assessed for entitlement to attendant care or household help under clauses 36 to 52 of Schedule 1.
(4)
A person who has had an assessment under subsection (3)(b) may irrevocably elect to have his or her entitlements to attendant care and household help determined from then on under clauses 36 to 52 of Schedule 1, in which case subsection (3) no longer applies to him or her.
(5)
For the purposes of subsection (1), a person was receiving compensation immediately before 1 July 1992 if he or she was entitled to do so because of a decision on review or appeal given on or after that date on an application for review made before 1 October 1992.
Compare: 1992, No. 13, s. 149(3), (4), (5), (10)
438 Compensation payable outside New Zealand for pecuniary loss not related to earnings under 1982 Act: attendant care
(1)
This section applies if,—
(a)
Immediately before 1 July 1992, a person was receiving compensation for attendant care, meaning personal care and mobility assistance necessary for the injured person; and
(b)
The person was receiving the compensation outside New Zealand; and
(c)
The compensation was paid under section 80 of the Accident Compensation Act 1982; and
(d)
The compensation was payable because of section 149(3) of the Accident Rehabilitation and Compensation Insurance Act 1992.
(2)
Such a person is entitled to continue receiving the compensation outside New Zealand for as long as he or she remains entitled to the compensation.
(3)
For the purposes of subsection (1), a person was receiving compensation immediately before 1 July 1992 if he or she was entitled to do so because of a decision on review or appeal given on or after that date on an application for review made before 1 October 1992.
Compare: 1992, No. 13, s. 149(10)
439 Compensation for pecuniary loss not related to earnings under 1972 and 1982 Acts
(1)
Subsection (2) applies if, because of section 149(1) or (2) of the Accident Rehabilitation and Compensation Insurance Act 1992, a person was entitled to receive any compensation on or before 31 December 1992 or 30 June 1993, as the case may be, under—
(a)
Section 121 of the Accident Compensation Act 1972; or
(b)
Section 80 of the Accident Compensation Act 1982.
(2)
Compensation not paid by the former Corporation before those dates under those sections remains payable.
440 Time limit on vocational rehabilitation
In relation to vocational rehabilitation provided to a person before 1 July 1999, the 3-year limitation in clause 56(2) of Schedule 1 runs from the later of—
(a)
2 September 1996; or
(b)
The date on which vocational rehabilitation began to be provided to the person.
Compare: 1992, No. 13, s. 136(4)
Independence Allowance
441 Independence allowance
(1)
Subsection (2) applies to—
(a)
A person to whom section 27(1) of the Accident Rehabilitation and Compensation Insurance Amendment Act (No. 2) 1996 applies and who was not reassessed under section 54a of the Accident Rehabilitation and Compensation Insurance Act 1992 before 1 July 1999:
(b)
A person who, immediately before 1 July 1999, was receiving or was entitled to receive an independence allowance under section 54 of the Accident Rehabilitation and Compensation Insurance Act 1992:
(c)
A person who suffered a personal injury before 1 July 1999 and did not claim an independence allowance.
(2)
Such a person is entitled to receive an independence allowance on and after 1 July 1999 under Part 4 of Schedule 1, as modified by this section.
(3)
The modifications are as follows:
(a)
Such a person may not lodge a claim for an independence allowance under Part 4 of Schedule 1 for any injuries suffered before 1 July 1999:
(b)
A person described in subsection (1)(a) receives the rate of independence allowance payable on 30 June 1997 as adjusted by section 71 of the Accident Rehabilitation and Compensation Insurance Act 1992 or section 460:
(c)
Any assessment under clause 60 of Schedule 1, or reassessment under clause 61 of Schedule 1, must be done on the basis of whole-person impairment for the combined effect of all his or her personal injuries covered by the former Acts, and only 1 independence allowance is payable for all those injuries:
(d)
As soon as practicable after 1 July 1999 the manager must require a person described in subsection (1)(a) to be reassessed in accordance with paragraph (c).
442 Entitlement to independence allowance of persons who received lump sums under former Acts and suffer further impairment
(1)
Subsection (2) applies to a person who—
(a)
Suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before 1 July 1992; and
(b)
Received a payment for the personal injury under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982; and
(c)
On or after 1 July 1992 suffered an increased degree of permanent loss or impairment of bodily function resulting from the personal injury.
(2)
Such a person may apply for an independence allowance under Part 4 of Schedule 1. That Part applies subject to the following modifications:
(a)
The independence allowance must be calculated by deducting, from any whole-person impairment assessed under Part 4 of Schedule 1, any percentage permanent loss or impairment of bodily function for which any payment was made under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982:
(b)
The independence allowance is payable from the date of the application for it.
Compare: 1992, No. 13, s. 148(3)
Entitlements Arising from Fatal Injuries
443 Funeral expenses for death before 1 July 1999
On or after 1 July 1999, a funeral grant is payable under clause 65 of Schedule 1 if—
(a)
A person died before that date as a result of personal injury covered by the former Acts; and
(b)
The former Corporation has not paid a grant for funeral expenses before that date.
Compare: 1992, No. 13, s. 150
444 Lump sum payments to surviving spouses, children, and other dependants for death before 1 July 1999
(1)
On or after 1 July 1999, a survivor’s grant is payable under clause 66 of Schedule 1 if—
(a)
A person died on or after 1 July 1992 and before 1 July 1999 as a result of personal injury covered by the Accident Rehabilitation and Compensation Insurance Act 1992; and
(b)
The former Corporation has not paid a survivor’s grant before 1 July 1999.
(2)
If a person died before 1 July 1992 as a result of personal injury by accident within the meaning of the Accident Compensation Act 1982, section 82 of that Act, and the provisions of that Act on dependency, apply to any spouse, child, or other dependants of the deceased person.
Compare: 1992, No. 13, s. 151
445 Compensation payable to surviving spouses, children, and other dependants for entitlements under 1992 Act
(1)
This section applies if, immediately before 1 July 1999, any spouse, child, or other dependant of a deceased person was receiving, or was entitled to receive, compensation calculated under sections 58 to 62 of the Accident Rehabilitation and Compensation Insurance Act 1992.
(2)
The compensation continues to be payable and to be paid as if it had been calculated under Part 5 of Schedule 1.
(3)
Compensation payable to a surviving spouse ceases on the date it would cease if clause 67 of Schedule 1 applied to the spouse.
(4)
Compensation payable to a child ceases on the date it would cease if clause 70 of Schedule 1 applied to the child.
(5)
Compensation payable to any other dependant ceases on the date it would cease if clause 71 of Schedule 1 applied to the dependant.
446 Compensation payable to surviving spouses under 1972 and 1982 Acts
(1)
This section applies if, immediately before 1 July 1999, the spouse of a deceased person was receiving or was entitled to receive compensation under section 145 of the Accident Rehabilitation and Compensation Insurance Act 1992.
(2)
The compensation continues to be payable and to be paid under that section.
(3)
The compensation ceases when the latest of the following occurs:
(a)
The surviving spouse ceases to have the care of every child of the deceased who was dependent on the deceased at the date of the deceased’s death; or
(b)
Every child of the deceased who was dependent on the deceased at the date of the deceased’s death has turned 18 years old; or
(c)
The surviving spouse ceases to care for any other dependant of the deceased.
This subsection is subject to subsection (4).
(4)
The compensation does not cease if, on the latest of those events occurring, the spouse—
(a)
Is 45 years or older; or
(b)
Would have been entitled to continue to receive compensation under section 123 of the Accident Compensation Act 1972 or section 65 of the Accident Compensation Act 1982.
(5)
The compensation is cancelled 2 years after the first of the following occurs:
(a)
The remarriage of the surviving spouse; or
(b)
The surviving spouse entering into a relationship in the nature of marriage.
(6)
No compensation is payable to a spouse who, at the date on which he or she would otherwise become entitled to it, has already reached an age greater than the age at which he or she would cease to be entitled to it under section 66(2) of the Accident Compensation Act 1982.
Compare: 1992, No. 13, ss. 145, 146
447 Compensation payable to children and other dependants under 1972 and 1982 Acts
(1)
This section applies if, immediately before 1 July 1999, a child or any other dependant of a deceased person was receiving or was entitled to receive compensation under section 145 of the Accident Rehabilitation and Compensation Insurance Act 1992.
(2)
The compensation continues to be payable and to be paid under that section.
(3)
Compensation payable to a child ceases when the later of the following occurs:
(a)
The end of the calendar year in which the child turns 18 years; or
(b)
In the case of a child engaged in full-time study, the cessation or completion of that study or the child turning 21 years, whichever occurs first.
(4)
Compensation payable to any other dependant ceases on the date it would cease if clause 71 of Schedule 1 applied to the dependant.
Compare: 1992, No. 13, s. 145
448 Child care payments for children of deceased persons
Compensation under clause 76 of Schedule 1 continues to be payable to a person who, immediately before 1 July 1999, was entitled to compensation under section 56a of the Accident Rehabilitation and Compensation Insurance Act 1992.
449 Compensation for pecuniary loss not related to earnings under former Acts: child care for child of deceased person
(1)
This section applies if—
(a)
Immediately before 1 July 1992, a person (“person A”
) was receiving compensation for child care that another person (“person B”
), who subsequently died, had been providing on a regular basis for a family or household of which person B was a member; and
(b)
The compensation was payable under section 121 of the Accident Compensation Act 1972 or section 80 of the Accident Compensation Act 1982; and
(c)
The compensation was payable because of section 149(5) of the Accident Rehabilitation and Compensation Insurance Act 1992.
(2)
The sections referred to in subsection (1)(b)—
(a)
Continue to apply to person A and to his or her entitlement to child care, but not other loss of quantifiable service; and
(b)
Can be used from time to time to reassess person A’s entitlement to child care.
(3)
Person A—
(a)
Is not entitled to receive a payment for child care under clause 76 of Schedule 1; but
(b)
Is entitled, not more than once in any 12-month period, to elect to be assessed for entitlement to a payment for child care under clause 76 of Schedule 1.
(4)
A person who has had an assessment under subsection (3)(b) may irrevocably elect to have his or her entitlement to a payment for child care determined from then on under clause 76 of Schedule 1, in which case subsection (3) no longer applies to him or her.
(5)
A person was receiving compensation immediately before 1 July 1992 if he or she was entitled to do so because of a decision on review or appeal given on or after that date on an application for review made before 1 October 1992.
Disentitlements
450 Disentitling sections apply
Sections 117 to 123 apply to persons to whom sections 427 to 449 apply.
Subsequent Work Injury
451 Contributions for statutory entitlements for subsequent work injury
(1)
In this section,—
“Insured” means an insured who suffers a subsequent work injury:
“Previous personal injury” means a personal injury covered by the former Acts suffered before a subsequent work injury:
“Subsequent work injury” means a work-related personal injury that—
(a)
Is suffered on or after 1 July 1999 and before 1 July 2000 by an insured who, before suffering it, had been incapacitated by a previous personal injury for more than 3 continuous months; and
(b)
Causes an incapacity that is substantially greater than that which would have resulted from the subsequent work injury alone, because of the combined effects of the previous personal injury and the subsequent work injury; and
(c)
Is suffered within 12 months after the insured enters or re-enters employment following the previous personal injury.
(2)
An insurer who provides statutory entitlements to an insured for a subsequent work injury is entitled to recover a proportion of the costs of providing the statutory entitlements.
(3)
The proportion corresponds to the contribution of the previous personal injury to the effect of the subsequent work-related personal injury.
(4)
The insurer is entitled to recover the proportion from the manager.
Revision of Decisions
452 Manager may revise decisions
(1)
The manager may revise any decision (including a decision about premiums) made by the former Corporation if it appears to the manager that the decision was made in error, whatever the reason for the error.
(2)
In revising a decision, the manager must apply the Act that applied at the time when the decision being revised was made.
(3)
A revision may—
(a)
Amend the original decision; or
(b)
Revoke the original decision and substitute a new decision.
(4)
Every amendment to a decision, and every substituted decision, is a fresh decision.
(5)
Part 6 applies to every fresh decision made under this section.
Compare: 1992, No. 13, s. 67a
Review and Appeals
453 Review and appeal proceedings for decisions under former Acts
(1)
Part IX of the Accident Compensation Act 1982 continues in force in order to apply to any decision made by the former Corporation or by the manager—
(a)
Under the Accident Compensation Act 1972 or the Accident Compensation Act 1982; or
(b)
Under either of those Acts, as applied by Part VIII of the Accident Rehabilitation and Compensation Insurance Act 1992, or as applied by this Act.
(2)
Part VI of the Accident Rehabilitation and Compensation Insurance Act 1992 continues in force in order to apply to an application for a review or an appeal about a decision made by the former Corporation, if the application was made or the appeal was filed before 1 July 1999.
(3)
Part 6 applies to any decision made by the former Corporation under the Accident Rehabilitation and Compensation Insurance Act 1992 to which subsection (1) or subsection (2) does not apply, as if the manager had made the decision.
(4)
Part 6 applies to any decision made by the manager under this Part, except a decision made under any of subsections (1) to (3).
Compare: 1992, No. 13, s. 152
Financial Provisions
454 Allocation of existing funds
All funds held by the Accident Rehabilitation and Compensation Insurance Corporation in any of the following Accounts under the Accident Rehabilitation and Compensation Insurance Act 1992 at 30 June 1999 are to be allocated to the Accounts as follows:
(a)
Funds in the Employers’ Account under section 100 of that Act are to be allocated to the Residual Claims Account:
(b)
Funds in the Motor Vehicle Account under section 108 of that Act are to be allocated to the Motor Vehicle Account:
(c)
Funds in the Earners’ Account under section 113 of that Act are to be allocated to the Earners’ Account:
(d)
Funds in the Non-Earners’ Account under section 120 of that Act are to be allocated to the Non-Earners’ Account.
(2)
In this section, “funds”
means any assets and liabilities of the relevant Account.
Compare: 1992, No. 13, s. 153
455 Liabilities of Subsequent Work Injury Account
All outstanding liabilities of the Account under the Accident Rehabilitation and Compensation Insurance Act 1992 known as the Subsequent Work Injuries Account are to be allocated by the Corporation to each of the Residual Claims Account, the Motor Vehicle Account, the Earners’ Account, and the Non-Earners’ Account in a manner that the Corporation considers reasonably represents the source of those liabilities, having regard to the purposes of those Accounts under this Act.
456 Recognition of outstanding claims and premium revenue in financial statements of former Corporation on 30 June 1999
(1)
As at 30 June 1999, the annual financial statements of the former Corporation prepared under section 41 of the Public Finance Act 1989 and the annual financial statements of the Crown prepared under section 27 of that Act must recognise—
(a)
The liability of the former Corporation arising from claims (whether lodged or not) and entitlements (whether claimed or not), regardless of the basis of funding of the Accounts; and
(b)
The revenue in respect of premiums under sections 101 and 102 of the Accident Rehabilitation and Compensation Insurance Act 1992 (including revenue relating to base premiums under sections 466 and 468 of this Act) for the reporting period on the basis of salaries, wages, and self-employed income payable to employees or self-employed persons during that reporting period.
(2)
The initial adjustments necessary to give retroactive effect to the changes outlined above must be recognised in the Statement of Movements in Equity in the annual financial statements of the former Corporation and the Crown as an adjustment against equity as at 30 June 1999.
457 Levies, premiums, and other payments under former Acts
(1)
The provisions of Part IV of the Accident Compensation Act 1982, and of every regulation and Order in Council made under that Act relating to levies, that was in force immediately before the commencement of Part VIII of the Accident Rehabilitation and Compensation Insurance Act 1992, and which were continued in force by section 154 of the Accident Rehabilitation and Compensation Insurance Act 1992, continue in force and apply in respect of any period before 1 July 1992 as if section 154 of the Accident Rehabilitation and Compensation Insurance Act 1992 had not been repealed.
(2)
All the provisions of Part VII of the Accident Rehabilitation and Compensation Insurance Act 1992 and of every regulation and Order in Council made under that Act that relate to premiums (including provisions relating to classification of industries and experience rating), that are in force immediately before the commencement of this Act, continue in force and apply in respect of any obligation arising before 1 July 1999 as if that Act and those provisions had not been repealed or revoked, and also continue in force to the extent required to enforce those obligations.
(3)
The manager must exercise the powers of the former Corporation in the administration of the provisions referred to in subsections (1) and (2).
(4)
Section 454 has effect, in relation to any levies, premiums, penalties, or other payments payable or paid, by virtue of subsection (1) or subsection (2), as if all such payments were part of the funds of the Accounts to which those payments related immediately before 1 July 1999.
(5)
This section is subject to sections 464 to 477.
Compare: 1992, No. 13, s. 154
458 Interest on late payments
Despite section 417,—
(a)
Section 72 of the Accident Rehabilitation and Compensation Insurance Act 1992 continues in effect as if that section had not been repealed; but
(b)
Section 7 2 has effect to require the payment of interest only in respect of calculations made under that Act for the period 1 July 1992 to 1 July 1999.
459 Accredited Employers Programme
(1)
If any agreement between the former Corporation and an employer under section 105(2) of the Accident Rehabilitation and Compensation Insurance Act 1992 contains provisions which create any rights or obligations in respect of work injury (within the meaning of that Act) suffered by a person on or after 1 July 1999, those provisions do not apply on and after the commencement of this Act.
(2)
Subsection (1) applies despite any Act or rule of law or any provision of an agreement to which subsection (1) applies.
(3)
This section does not affect any obligations already incurred by any party to any such agreement in relation to work injury suffered before 1 July 1999.
460 Indexation of money entitlements payable under former Acts
(1)
Sections 102 and 103 apply (for indexation required after 1 July 1999) to anything in any of the former Acts to which an equivalent is listed in either of those sections.
(2)
If an amount has been adjusted under section 102 or section 103, the manager must use the adjusted amount in any calculation in which it is relevant.
461 Regulations providing for transitional matters
(1)
Without limiting anything in this Act, the Governor-General may from time to time, by Order in Council, make regulations prescribing transitional and savings provisions required by the coming into force of this Act or provisions of it.
(2)
Regulations made under subsection (1) of this section may not—
(a)
Have retrospective effect; or
(b)
Displace any of the provisions of this Part (but may be additional to any such provisions).
462 Expiry of section 461
Section 461 expires 1 year after this Act receives the Royal assent.
463 Regulator may provide information to insurers or intending insurers
(1)
The Regulator, on a request from an insurer or intending insurer made before 1 January 2000, may provide that person with the name and address of any employer that the Regulator believes not to have an accident insurance contract.
(2)
This section comes into force on 1 April 1999.
Preliminary Provisions About Premiums Payable Under Former Acts
464 Interpretation
In sections 465 to 478,—
“1998/99 premium year” means the 1998/99 income year within the meaning of section OB 1 of the Income Tax Act 1994, and other references to “premium year” have a corresponding meaning:
“3-month premium” means any premium payable (under the Accident Rehabilitation and Compensation Insurance Act 1992, in accordance with this Part) in respect of the 3-month period beginning on 1 April 1999 and ending with the close of 30 June 1999, being an element of the relevant premium payable in respect of the 1999/2000 premium year:
“Base”, in relation to any premium payable under the former Acts (and continuing to be payable under this Part), means that part of the relevant premium that is not the reserves portion of the premium:
“First scheme employer” means an employer who was, on 31 March 1980, in business as an employer and who has continued to be an employer, in relation to that business, until the commencement of this Act:
“First scheme self-employed person” means a self-employed person who, on 30 September 1979, was a self-employed person (as defined in the Accident Compensation Act 1982) and who has continued to be a self-employed person until the commencement of this Act:
“Later schemes employer” means an employer who is not a first scheme employer, and who has been an employer under any of the former Acts and has continued to be an employer until the commencement of this Act:
“Later schemes self-employed person” means a self-employed person who is not a first scheme self-employed person, and who has been a self-employed person under any of the former Acts and has continued to be a self-employed person until the commencement of this Act:
“Reserves portion”, in relation to any premium payable under the former Acts (and continuing to be payable under this Part), means that part of the relevant premium that has been calculated and set in order to accumulate funds in relation to that Account so as to build up reserves beyond an amount required to fund 6 months of claims against that Account.
465 “Clean slate”
purpose
The purpose of sections 466 to 477 is to ensure that at the commencement of this Act all liabilities of employers and self-employed persons to pay premiums under the former Acts (continued otherwise by this Part) are converted into quantifiable debt so that employers and self-employed persons may enter into the new competitive accident insurance environment from 1 July 1999 with known premium obligations.
Employer Base Premiums for 1998/99 Premium Year
466 Employer base premiums for 1998/99 premium year
(1)
This section applies to all later schemes employers.
(2)
Every later schemes employer is liable as at 1 July 1999 to pay to the Corporation (in accordance with section 477) the relevant amount of base premium (payable in respect of the Employers’ Account under section 101 of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations made under it) for the 1998/1999 premium year.
(3)
Subsection (2) applies despite section 117 of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations made under it which would otherwise require any such employer to pay that premium to the Commissioner.
(4)
This section comes into force on 1 April 1999.
467 Employer base premiums in relation to 3-month premium
(1)
This section applies to both first scheme employers and later schemes employers.
(2)
All employers to whom this section applies are liable as at 1 July 1999 to pay to the Corporation (in accordance with section 477) the relevant amount of base 3-month premium (payable in respect of the Employers’ Account under section 101 of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations made under it).
(3)
Subsection (2) applies despite section 117 of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations made under it which would otherwise require any such employer to pay that premium to the Commissioner.
(4)
This section comes into force on 1 April 1999.
468 Self-employed base premiums for 1998/99 premium year
(1)
This section applies to all later schemes self-employed persons.
(2)
Every later schemes self-employed person is liable as at 1 July 1999 to pay to the Corporation (in accordance with section 477) the relevant amount of base premium (payable in respect of the Employers’ Account under section 102 of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations made under it) for the 1998/99 premium year.
(3)
Subsection (2) applies despite section 117 of that Act and any regulations made under it which would otherwise require any such self-employed person to pay that premium to the Commissioner.
(4)
This section comes into force on 1 April 1999.
469 Self-employed base premiums for 1998/99 premium year in relation to Earners’ Account
(1)
This section applies to both first scheme self-employed persons and to later schemes self-employed persons.
(2)
All self-employed persons to whom this section applies are liable as at 1 July 1999 to pay to the Corporation (in accordance with section 477) the relevant amount of base premium (payable in respect of the Earners’ Account under section 114 of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations made under it) for the 1998/99 premium year.
(3)
Subsection (2) applies despite section 117 of that Act and any regulations made under it which would otherwise require any such self-employed person to pay the premium to the Commissioner.
(4)
This section comes into force on 1 April 1999.
470 Self-employed base premiums in relation to 3-month premiums
(1)
This section applies to both first scheme self-employed persons and to later schemes self-employed persons.
(2)
All self-employed persons to whom this section applies are liable as at 1 July 1999 to pay to the Corporation (in accordance with section 477) the relevant amount of base 3-month premium (payable in respect of the Employers’ Account under section 102 of the Accident Rehabilitation and Compensation Insurance Act 1992 and in respect of the Earners’ Account under section 114 of that Act and any regulations made under it).
(3)
Subsection (2) applies despite section 117 of that Act and any regulations made under it which would otherwise require any such self-employed person to pay that premium to the Commissioner.
(4)
This section comes into force on 1 April 1999.
Base 3-Month Premium
471 Calculation of base 3-month premium
(1)
The relevant amount of 3-month premium payable under sections 467 and 470 is to be calculated by using the relevant base premium rate for the 1998/99 premium year for that employer or self-employed person and applying that to one-quarter of the relevant earnings for the 1998/99 premium year.
(2)
Where the employer or self-employed person is not in business for the entire 1998/99 premium year, the calculation under subsection (1) must be adjusted accordingly.
Reserves Portion of Employer Premiums
472 Reserves portion of employer premium for 1998/99 premium year
(1)
This section applies to all first scheme employers and to all later schemes employers.
(2)
Every employer to whom this section applies continues to be liable to pay to the Commissioner as agent for the Corporation (in accordance with section 117 of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations made under it) the relevant amount of reserves portion of the employer premium (payable in respect of the Employers’ Account under section 101 of that Act and any regulations made under it) for the 1998/99 premium year.
(3)
This section comes into force on 1 April 1999.
(4)
Any amount collected under this section prior to 30 June 1999 may also be referred to as a Residual Claims Levy.
473 Reserves portion of employer and earner premium for 1998/99 premium year for all self-employed
(1)
This section applies to all first scheme self-employed persons and to all later schemes self-employed persons.
(2)
Every person to whom this section applies continues to be liable to pay to the Commissioner as agent for the Corporation (in accordance with section 117 of the Accident Rehabilitation and Compensation Insurance Act 1992 and any regulations made under it) the relevant amount of reserves portion of the employer premium (payable in respect of the Employers’ Account under section 102 of that Act and any regulations made under it) for the 1998/99 premium year and the relevant amount of the earner premium (payable in respect of the Earners’ Account under section 114 of that Act and any regulations made under it) for that year.
(3)
This section comes into force on 1 April 1999.
(4)
Any amount collected under this section before 30 June 1999 may also be referred to as a Residual Claims Levy or Earners’ Account Levy, as the case may require.
Reserves Portion of 3-Month Premium
474 Reserves portion of employer and self-employed 3-month premium
(1)
All employers and self-employed persons as at 30 June 1999 are liable to pay the reserves portion of their employer 3-month premium and their reserves portion of earners’ 3-month premium.
(2)
Payment of the reserves portion of those 3-month premiums to meet the liability created by subsection (1) must be in accordance with this section.
(3)
The reserves portions of the 3-month premiums covered by this section are the amounts specified in regulations prior to 1 July 1999 as the reserves portions of the relevant premiums for the 1998/99 premium year.
(4)
The amount liable to be paid by any employer or self-employed person because of this section as the reserves portion of those 3-month premiums must be collected from those persons by the Commissioner after 1 April 2000 as if it were part of the Residual Claims levy required by section 304, or the Earners’ Account levy required by section 283(2), as the case may require, and sections 304 and 283 and regulations relating to the applicable levy apply to the collection and payment of the money.
(5)
Subsection (4) of this section comes into force on 1 April 1999.
(6)
Any money collected by the Commissioner under this section is collected as the agent of the Corporation.
Regulations
475 Regulations describing contents of existing premiums
(1)
For the purposes of sections 464 to 477, regulations made under this Act may specify the base premium and reserve portion components of any premium currently set by regulations in relation to the 1998/99 premium year.
(2)
The regulations may not alter the total rate of premium payable under this Act for that premium year.
(3)
The Corporation is not required to carry out any consultation as required in Part 12 as a precondition of the making of the regulations.
(4)
This section comes into force on the day on which this Act receives the Royal assent.
476 Regulations made under former Acts
(1)
This section applies to regulations made under the Accident Rehabilitation and Compensation Insurance Act 1992 that set premiums in relation to any premium year.
(2)
The regulations may specify the base premium and reserve portion components of any premium set, in which case that split applies for the purposes of this Act for that year.
(3)
This section comes into force on the day after the date on which this Act receives the Royal assent.
Method of Payment
477 Payments of base premiums to Corporation
(1)
Where this Part requires that any base premium owing by an employer or self-employed person is liable to be paid to the Corporation as at 1 July 1999, the payment must be made to the Corporation (or its agent) in a prescribed manner and over a prescribed period.
(2)
Despite any regulations prescribing the manner and duration of base premium payment under this section, the Corporation and any employer or self-employed person may agree to a manner and duration of payment that does not meet the requirements of the regulations.
(3)
This section comes into force on 1 April 1999.
Relationship of HSE Levy and Reserves Portion
478 Collection of HSE levy
(1)
The levy payable by employers and self-employed persons under section 59 of the Health and Safety in Employment Act 1992 (the “HSE levy”
) is payable in respect of any period before the commencement of this Act as if it were the reserves portion of the employers’ premium payable by that person under section 101 or 102 of the Accident Rehabilitation and Compensation Insurance Act 1992 in respect of that period, and for that purpose sections 464 to 477 apply accordingly.
(2)
In respect of any period after the commencement of this Act, the liability to pay the HSE levy and its means of collection are governed by section 59 of the Health and Safety in Employment Act 1992.
(3)
Subsection (1) comes into force on 1 April 1999.
Amendments to Other Acts
479 Amendment to Health and Safety in Employment Act 1992 about funding
(1)
Section 59 of the Health and Safety in Employment Act 1992 is amended by adding the following subsection:
“(9)
From 1 April 1999 the funding levy is to be collected in the same way and at the same time as the reserves portion of the 3-month premium (in section 474 of the Accident Insurance Act 1998) instead of as provided in this section.”
(2)
This section comes into force on 1 April 1999.
480 Amendment to Accident Rehabilitation and Compensation Insurance Act 1992 about married rate of social security benefits
(1)
Section 78 of the Accident Rehabilitation and Compensation Insurance Act 1992 is amended by adding the following subsection:
“(6)
Treatments of a payment or refunds under this section may be made of all of a married rate of benefit, regardless of the fact that part is paid to a spouse, as if it were all payable to the person who established the claim to the benefit.”
(2)
A treatment or refund under section 78 of the Accident Rehabilitation and Compensation Insurance Act 1992 before the commencement of this section is validated, and is lawful and enforceable, as if section 78(6) of the principal Act (as added by subsection (1)) had been in force, and as if the section provided for the treatment or refund, on the date of the treatment or refund.
(3)
Nothing in subsection (2) affects the rights of any party under any judgment of any court, or any decision of the Social Security Appeal Authority, as the result of proceedings filed, or a notice or appeal lodged, as the case may be, before 1 December 1998.
(4)
This section comes into force on the day after the date on which this Act receives the Royal assent.
Transitional Provisions Relating to Corporation
481 Former Corporation in lead-up to commencement of Act
(1)
The former Corporation may, before 1 July 1999, perform any functions and duties of the Corporation, and do anything for the purposes of this Act, so far as may be necessary or expedient for the purpose of giving effect to the provisions of this Act.
(2)
The Minister may, before 1 July 1998, give policy directions to the former Corporation for the purpose of giving effect to the provisions of this Act, as if section 339 were in force.
(3)
This section comes into force on the day after the date on which this Act receives the Royal assent.
482 Carry-over from former Corporation to new Corporation
From the commencement of this Act,—
(a)
All real and personal property of the former Corporation and all rights and liabilities of the former Corporation vest in the Corporation established by this Act; and
(b)
All proceedings pending by or against the former Corporation may be carried on, completed, or enforced by or against the Corporation established by this Act.
Compare: 1991, No. 97, s. 3; 1992, No. 23, s. 3
SCHEDULES
Schedule 1 Statutory Entitlements
Section 13
Contents
Part 1 Treatment
1 Insurer’s liability to pay cost of treatment
(1)
The insurer is liable to pay the cost of the insured’s treatment for personal injury for which the insured has cover if clause 2 applies, but the liability is qualified by subclauses (2) and (3).
(2)
The insurer is liable to pay,—
(a)
If the amount payable for the treatment is prescribed, that amount; or
(b)
If a method of calculating an amount payable for the treatment prescribed, the amount that results from that calculation; or
(c)
If paragraphs (a) and (b) do not apply, the cost of the treatment.
(3)
The insurer’s liability under this clause in respect of a particular treatment is subject to the insured complying with any condition properly imposed under clause 3 in relation to that treatment or that type of treatment, non-compliance with which would unreasonably prejudice the insurer’s ability to effectively manage the claim and any entitlement.
2 Insurer must pay
(1)
The insurer is liable to pay the cost of the insured’s treatment if the treatment is for the purpose of enabling the insured to lead as normal a life as possible, having regard to the consequences of his or her injury, and the treatment—
(a)
Is necessary and appropriate, and of the quality required, for that purpose; and
(b)
Has been, or will be, performed only on the number of occasions necessary for that purpose; and
(c)
Has been, or will be, given at a time appropriate for that purpose; and
(d)
Is of a type normally provided by a treatment provider; and
(e)
Is provided by a treatment provider of a type that normally provides that treatment.
(2)
In deciding whether subclause (1) applies to the insured’s treatment, the insurer must take into account—
(a)
The nature and severity of the injury; and
(b)
The generally accepted means of treatment for such an injury in New Zealand; and
(c)
The other options available in New Zealand for the treatment of such an injury; and
(d)
The cost in New Zealand of the generally accepted means of treatment and of the other options, compared with the benefit that the insured is likely to receive from the treatment.
(3)
The insurer is liable to pay the cost of any service reasonably required as an ancillary service to treatment, such as accommodation, escort for transport for treatment, nursing, pharmaceuticals prescribed by a treatment provider who has statutory authority to prescribe pharmaceuticals, and transport (whether emergency or otherwise), if the service facilitates the treatment.
(4)
The insurer is liable to pay the cost of any emergency transport only if it is provided by a suitably qualified operator.
3 Conditions relating to treatment
(1)
An insurer may impose a condition on an insured that, in relation to treatment that is neither an acute treatment nor a public health acute service, the insured seek the prior agreement of the insurer that—
(a)
The treatment in question is treatment of a type that the insurer is liable to pay for under clause 2; and
(b)
The insurer will pay for that treatment.
(2)
An insurer may also impose reasonable conditions on the insured relating to payment for the insured’s treatment that are not inconsistent with this Act.
(3)
A condition imposed under subclause (2) may, for example, require the insured to—
(a)
Provide any information or declarations that the insurer may require—
(i)
To verify that the insured suffered personal injury for which he or she has cover and that the treatment for which the claim for payment is made was for that personal injury; or
(ii)
To verify the date on which the treatment was provided; or
(iii)
To verify the specific nature of the treatment:
(b)
Meet any requirements imposed under sections 60, 63, or 115.
4 Conditions insurer must not impose
The insurer must not impose the following conditions on treatment:
(a)
A condition that directly or indirectly requires the insured to pay any part of the treatment provider’s fee that is a part that the insurer is liable to pay:
(b)
A condition that the insured must get the treatment from a particular treatment provider, unless the treatment is an assessment required by this Act or a second opinion.
Part 2 Weekly Compensation
Introductory Provisions
5 “Relevant year”
In this Part, “relevant year”
means the most recent income year (as defined in section OB 1 of the Income Tax Act 1994) last ended before the commencement of the period of incapacity.
6 Use of income tax returns in determining earnings
If the manager is determining earnings under this Part in relation to a self-employed person or a shareholder-employee, it must take an income tax return into account, if—
(a)
The insured has given the return to the Commissioner; and
(b)
The manager considers that the return, and any related accounts, have not been unreasonably influenced by—
(i)
The fact of the insured’s incapacity; or
(ii)
The effects or likely effects of the incapacity on the insured’s income or business activities.
Insurer to Pay Weekly Compensation After First Week of Incapacity
7 Insurer to pay weekly compensation to insured entitled to it under section 82(1)(a)
(1)
The insurer is liable to pay weekly compensation for loss of earnings to an insured who—
(a)
Has an incapacity resulting from a personal injury for which he or she has cover; and
(b)
Was an earner immediately before his or her incapacity commenced.
(2)
The insured is entitled to the weekly compensation for each employment for which he or she is incapacitated—
(a)
On and from the day after the first week of incapacity ends; and
(b)
For any period of incapacity, after that first week, resulting from the personal injury for which he or she has cover.
(3)
The weekly compensation payable is 80% of the insured’s weekly earnings, as calculated under clauses 8 to 20. This subclause is subject to clauses 21, 24, 25, and 26.
(4)
The amount of weekly compensation payable to the insured must be adjusted in the manner provided in section 102.
Employee In Permanent Employment
8 Weekly earnings if earner had earnings as an employee in permanent employment before incapacity commenced: application of clause 9
(1)
Clause 9 applies to an insured who—
(a)
Was an earner immediately before his or her incapacity commenced; and
(b)
Was in permanent employment at that time; and
(c)
Had earnings as an employee from that permanent employment at that time.
(2)
If the insured had permanent employment with more than 1 employer at that time, the weekly earnings of the insured, in respect of each permanent employer he or she had at that time, are as calculated separately under clause 9 and aggregated under clause 17.
(3)
For the purposes of this clause and clause 9, an insured is regarded as having been in permanent employment if, in the opinion of the insurer, he or she would have continued to receive earnings from that employment for a continuous period of more than 12 months after the date on which his or her incapacity commenced, if he or she had not suffered the personal injury.
9 Weekly earnings if earner had earnings as an employee in permanent employment before incapacity commenced: calculations
(1)
This subclause applies to each of the 4 weeks after the first week of incapacity. The insured’s weekly earnings for each of the 4 weeks are calculated using the following formula:
a ÷ b
where—
a
is the insured’s earnings as an employee (from that permanent employment) he or she had in the 4 weeks immediately before his or her incapacity commenced
b
is the number of full or part weeks during which the insured earned those earnings as an employee in those 4 weeks.
(2)
This subclause applies to any weekly period of incapacity after the 4 weeks described in subclause (1), if the insured was in permanent employment with the particular employer for less than 52 weeks immediately before his or her incapacity commenced. The insured’s weekly earnings for any such weekly period are calculated using the following formula:
a ÷ b
where—
a
is the insured’s earnings as an employee (from employment with that employer) that he or she had immediately before his or her incapacity commenced
b
is the number of full or part weeks during which the insured earned those earnings as an employee.
(3)
This subclause applies to any weekly period of incapacity after the 4 weeks described in subclause (1), if the insured was in permanent employment with the particular employer for 52 weeks or more immediately before his or her incapacity commenced. The insured’s weekly earnings for any such weekly period are calculated using the following formula:
a ÷ b
where—
a
is the insured’s earnings as an employee (from employment with that employer) that he or she had in the 52 weeks immediately before his or her incapacity commenced
b
is 52 (not including any full or part weeks during which the insured was on unpaid leave).
Employee Not In Permanent Employment
10 Weekly earnings if earner had earnings as an employee not in permanent employment before incapacity commenced: application of clause 11
(1)
Clause 11 applies to an insured who—
(a)
Was an earner immediately before his or her incapacity commenced; and
(b)
Had at that time earnings as an employee (from employment that was not permanent employment).
(2)
For the purposes of this clause and clause 11, employment is not permanent employment if, in the opinion of the insurer, the insured would have not continued to receive earnings from that employment for a continuous period of more than 12 months after the date on which his or her incapacity commenced, if he or she had not suffered the personal injury.
11 Weekly earnings if earner had earnings as an employee not in permanent employment before incapacity commenced: calculations
(1)
This subclause applies to each of the 4 weeks after the first week of incapacity. The insured’s weekly earnings for each of the 4 weeks are calculated using the following formula:
a ÷ b
where—
a
is the insured’s earnings as an employee (from all employment that was not permanent employment) he or she had in the 4 weeks immediately before his or her incapacity commenced
b
is the number of full or part weeks during which the insured earned those earnings as an employee in the 4 weeks immediately before his or her incapacity commenced.
(2)
This subclause applies to any weekly period of incapacity after the 4 weeks described in subclause (1). The insured’s weekly earnings for any such weekly period are calculated using the following formula:
a ÷ b
where—
a
is the insured’s earnings as an employee (from all employment that was not permanent employment) he or she had in the 52 weeks immediately before his or her incapacity commenced
b
is 52.
(3)
For the purposes of this clause, “earnings”
does not include earnings from any employment—
(a)
That the insured had immediately before his or her incapacity commenced; and
(b)
That was not permanent employment; and
(c)
That the insurer determines, under section 85, the insured is able to engage in.
Self-Employed With Accident Insurance Contract
12 Weekly earnings if earner had earnings as a self-employed person before incapacity commenced: insured under accident insurance contract: application of clause 13
(1)
Clause 13 applies to an insured who—
(a)
Is incapacitated by a personal injury other than a motor vehicle injury within the meaning of section 38; and
(b)
Had earnings as a self-employed person immediately before his or her incapacity commenced; and
(c)
Had an accident insurance contract at that time.
(2)
The weekly earnings of such an insured are as calculated under clause 13.
(3)
The amount specified in clause 13(a) must be adjusted in the manner provided in section 102.
13 Weekly earnings if earner had earnings as a self-employed person before incapacity commenced: insured under accident insurance contract: calculations
The weekly earnings of an insured to whom this clause applies are—
(a)
$280.00; or
(b)
Any greater amount agreed for this purpose by the insurer and the insured in their accident insurance contract.
Self-Employed Insured By Manager
14 Weekly earnings if earner had earnings as a self-employed person before incapacity commenced: insured by manager: application of clause 15
(1)
Clause 15 applies to—
(a)
An insured who—
(i)
Had earnings as a self-employed person immediately before his or her incapacity commenced; and
(ii)
Did not have an accident insurance contract at that time:
(b)
An insured who—
(i)
Is incapacitated by a motor vehicle injury; and
(ii)
Had earnings as a self-employed person immediately before his or her incapacity commenced; and
(iii)
Had an accident insurance contract at that time.
(2)
The weekly earnings of such an insured are as calculated under clause 15.
(3)
For the purposes of clause 15, if the insured’s income tax return for the relevant year is not available, the income tax return for the next previous year must be used for the calculation of weekly earnings until the earlier of the following events:
(a)
The first-mentioned income tax return is available; or
(b)
3 months have passed after the incapacity commenced.
(4)
If the manager—
(a)
Applies subclause (3); and
(b)
Pays weekly compensation; and
(c)
Subsequently finds that the weekly compensation it paid is greater than that it would have paid if the insured’s income tax return for the relevant year had been available,—
the manager may recover the difference, either as a debt due to it or by deducting it from any entitlement otherwise payable to the insured (whether or not in respect of the same personal injury).
(5)
The amounts specified in clause 15 must be adjusted in the manner provided in section 102.
15 Weekly earnings if earner had earnings as a self-employed person before incapacity commenced: insured by manager: calculations
(1)
This subclause applies to each of the 4 weeks after the first week of incapacity. The insured’s weekly earnings for each of the 4 weeks are the greater of A and B, as defined respectively in subclauses (2) and (3).
(2)
A is the amount calculated using the following formula:
a ÷ b
where—
a
is the insured’s earnings as a self-employed person in the relevant year
b
is the number of weeks in the relevant year.
(3)
B is—
(a)
$280.00 a week in respect of any period after the insured turns 20 years; or
(b)
$216.47 a week in respect of any period before the insured turns 20 years,—
if, in either case, the insured is in the category of earners liable to pay the minimum premium set in regulations made for the purposes of section 300.
(4)
This subclause applies to any period of incapacity after the 4 weeks described in subclause (1). The insured’s weekly earnings for any such period are the insured’s earnings as a self-employed person in the relevant year, divided by—
(a)
The number of weeks in the relevant year; or
(b)
If the relevant year was the first year during which the insured received earnings as a self-employed person, the greater of—
(i)
13; or
(ii)
The number of weeks that the manager considers fairly and reasonably represents the number of weeks or part weeks in that year during which the insured earned those earnings as a self-employed person.
Shareholder-Employee
16 Weekly earnings if insured had earnings as a shareholder-employee before incapacity commenced
(1)
This clause applies to an insured who had earnings as a shareholder-employee immediately before his or her incapacity commenced.
(2)
The weekly earnings of the insured are the higher of—
(a)
His or her earnings calculated under clause 9 or clause 11, whichever is applicable; and
(b)
His or her earnings calculated under subclause (3) or subclause (4), whichever is applicable.
(3)
This subclause applies to each of the 4 weeks after the first week of incapacity. The insured’s weekly earnings for each of the 4 weeks are calculated using the following formula:
a ÷ b
where—
a
is the insured’s earnings as a shareholder-employee in the 4 weeks immediately before his or her incapacity commenced
b
is the number of full or part weeks during which the insured earned those earnings as a shareholder-employee in those 4 weeks
(4)
This subclause applies to any period of incapacity after the 4 weeks described in subclause (3). The insured’s weekly earnings for any such period are the insured’s earnings as a shareholder-employee in the relevant year, divided by—
(a)
The number of weeks in the relevant year; or
(b)
If the relevant year was the first year during which the insured received earnings as a shareholder-employee, the greater of—
(i)
13; or
(ii)
The number of weeks that the manager considers fairly and reasonably represents the number of weeks or part weeks in that year during which the insured earned those earnings as a shareholder-employee.
Aggregation of Calculations
17 Aggregation of calculations for multiple employment situations
(1)
If an insured would have more than 1 amount of weekly earnings from different employment situations because of the operation of any of clauses 9, 11, 13, 15, or 16, the insured’s weekly earnings are calculated by doing the relevant calculations under those clauses separately and then aggregating the results.
(2)
However, an insured’s weekly earnings calculated under clause 9 or clause 11 must not be aggregated with the insured’s weekly earnings under clause 16, if the insured’s weekly earnings under clause 16 are his or her earnings under clause 9 or clause 11.
(3)
Nothing in subclause (1) affects the obligations of an insurer or the manager to provide any part of the aggregated amounts.
Adjustments for Low Earners
18 Weekly earnings of earners in full-time employment: increase in certain circumstances
(1)
This clause applies to an insured who—
(a)
Was, immediately before his or her incapacity commenced,—
(i)
In the category of earners liable to pay the minimum premium set in regulations made for the purposes of section 300; or
(ii)
An earner in full-time employment; and
(b)
Had earnings calculated under clause 17 or, if that clause does not apply, under any of clauses 9(2), 11(2), 15(4), or 16(4) of—
(i)
Less than $280.00 a week, for an insured aged 20 years or over; or
(ii)
Less than $216.47 a week, for an insured aged under 20 years; and
(c)
Is incapacitated for more than 5 weeks after the incapacity first commenced.
(2)
For the purpose of calculating weekly compensation for loss of earnings payable to the insured for any period after the 5 week period, the insured is deemed to have had the following weekly earnings immediately before his or her incapacity commenced:
(a)
For an insured aged 20 years or over at that time, $280.00:
(b)
For an insured aged under 20 years at that time,—
(i)
$216.47, while under 20 years and incapacitated:
(ii)
$280.00, on turning 20 years while incapacitated.
(3)
Subclause (2) does not apply to any period unless the insurer is satisfied that, but for the incapacity, the insured would have been an earner in full-time employment during that period.
(4)
Subclause (2) does not apply if the insured has an entitlement under any other provision of this schedule to weekly compensation for loss of earnings that is greater than the insured’s entitlement under this clause.
(5)
Nothing in this clause is affected by the insured’s entitlement to any weekly compensation under any of clauses 67, 70, or 71.
(6)
The amounts specified in subclauses (1) and (2) must be adjusted in the manner provided in section 102.
Insured No Longer An Employee
19 Weekly earnings if employee’s employment ended
(1)
Subclause (2) applies to an insured who has ceased to be an employee.
(2)
The insured is deemed to continue to be an employee for the purposes of this schedule for the longer of—
(a)
14 days from the date he or she ceased to be an employee, if he or she—
(i)
Had been an employee within 14 days before his or her incapacity commenced; and
(ii)
Had been an employee for a continuous period of at least 12 months immediately before that 14 day period; and
(iii)
Would have been an employee within 3 months after the date on which his or her incapacity commenced, but for the incapacity; or
(b)
The period for which payments—
(i)
That the insured is entitled to receive on ceasing employment; and
(ii)
On which earner premium is payable—
constitute earnings under subclause (3).
(3)
An insured deemed by subclause (2)(b) to continue to be an employee is deemed to be deriving earnings at the same rate as he or she derived earnings while in employment immediately before he or she ceased to be an employee.
(4)
For the purposes of calculating the insured’s weekly earnings, the date his or her incapacity commenced is deemed to be the last date of employment.
(5)
Depending on the nature of the personal injury, payments under this clause come from the Earners’ Account, the Motor Vehicle Account, or the Medical Misadventure Account.
Estimated Earnings
20 Estimation of weekly earnings that cannot be ascertained
(1)
This clause applies to an insured who, immediately before his or her incapacity commenced,—
(a)
Had earnings as a self-employed person; or
(b)
Had earnings as a shareholder-employee.
(2)
This clause applies when the insurer cannot readily ascertain the insured’s actual earnings during a particular period, whether before incapacity or, for abatement purposes, after incapacity.
(3)
In order to calculate the insured’s weekly earnings under this Part, the insurer may estimate an amount that represents reasonable remuneration for the insured during the period.
(4)
The insurer must have regard to—
(a)
The evidence available of the insured’s earnings; and
(b)
The nature of the insured’s employment immediately before his or her incapacity commenced; and
(c)
Any employment, whatever its nature, that the insured has while suffering the incapacity.
Maximum Compensation
21 Maximum weekly compensation for loss of earnings
(1)
The maximum amount of weekly compensation for loss of earnings that an insurer is liable to pay to an insured is $1,277.18 a week, whatever amount is calculated under this schedule.
(2)
The maximum amount specified in subclause (1) must be adjusted in the manner provided in section 102.
Insurer to Pay Weekly Compensation to Potential Earners
22 Insurer to pay weekly compensation to insured entitled to it under section 82(1)(b)
(1)
The insurer is liable to pay weekly compensation for loss of potential earning capacity to an insured who—
(a)
Has an incapacity resulting from a personal injury; and
(b)
Was a potential earner immediately before his or her incapacity commenced.
(2)
The weekly compensation is payable when the insured has been incapacitated for at least 6 months.
(3)
For the purpose of calculating the insured’s weekly compensation, the insured is deemed to have had the following weekly earnings immediately before his or incapacity commenced:
(a)
For an insured aged 20 years or over at that time, $280.00:
(b)
For an insured aged under 20 years at that time,—
(i)
$224.00, while under 20 years and incapacitated:
(ii)
$280.00, on turning 20 years while incapacitated.
(4)
This clause does not apply if the insured has an entitlement under any other provision of this schedule to weekly compensation for loss of earnings that is greater than the insured’s entitlement under this clause.
(5)
An insured does not have any entitlement to weekly compensation for loss of earnings, if he or she has an entitlement under this clause to weekly compensation for loss of potential earning capacity that is greater than any entitlement he or she has to weekly compensation for loss of earnings under any other provision of this schedule.
(6)
The amounts specified in subclause (3) must be adjusted in the manner provided in section 102.
(7)
This clause is subject to clauses 23 to 26.
Abatement
23 Earnings definitions for purposes of clause 24
(1)
In clause 24(1), (3), and (4), “earnings”
does not include weekly compensation or any other entitlement payable under this schedule.
(2)
“Earnings”
, in those subclauses, includes any payment (other than a payment for work actually undertaken by the insured) made by the insured’s employer or the employer’s insurer during the insured’s incapacity that exceeds the difference between—
(a)
The level of the insured’s actual earnings immediately before his or her incapacity commenced; and
(b)
The level of the insured’s weekly compensation.
(3)
“Earnings”
, in those subclauses, also includes any earnings from employment that the insured is incapacitated for, as determined under section 85, and that he or she continues to engage in after the incapacity commences.
(4)
“Earnings”
, in those subclauses, also includes any earnings from any other employment that the insured was engaged in immediately before his or her incapacity commenced and that he or she continues to engage in after the incapacity commences, but only to the extent calculated using the following formula:
a — b
where
a
is the insured’s weekly earnings from that employment during his or her incapacity
b
is the level that his or her weekly earnings from that employment would be, had those earnings been, first, calculated for that employment at the commencement of the incapacity as if the insured had been incapacitated for that employment for more than 5 weeks and, second, adjusted in the manner provided in section 102.
(5)
In clause 24(2), “earnings”
includes earnings, as calculated under this Part and adjusted in the manner provided in section 102, from every employment in which the insured was engaged immediately before his or her incapacity commenced, whether or not the insured is incapacitated, as determined under section 85, for every such employment.
(6)
In clause 24(1) to (4), “earnings”
includes any payment made on or in respect of the termination of employment (other than as redundancy or superannuation). The insurer must treat such a payment as being received at such weekly rate, and for such period, as the insurer determines, having regard to—
(a)
The period to which the payment relates; and
(b)
The amount of the payment; and
(c)
The nature of the payment; and
(d)
Any other factors the insurer considers relevant.
24 Abatement of compensation (including provision on subsequent injury)
(1)
In calculating weekly compensation under this Part, the insurer may reduce the amount of weekly compensation paid to an insured by—
(a)
24 cents for every $1 of earnings derived during the period of incapacity in excess of $55.25 a week but not in excess of $88.36 a week; and
(b)
56 cents for every $1 of earnings derived during the period of incapacity in excess of $88.36 a week.
(2)
The insurer may also reduce the amount of weekly compensation paid so as to ensure that the total of the insured’s weekly compensation and earnings after his or her incapacity commences does not exceed the insured’s earnings (including weekly compensation) immediately before his or her incapacity commenced.
(3)
Subclause (4) applies to an insured who, while receiving both weekly compensation and earnings, has a subsequent injury within the meaning of section 112.
(4)
Such an insured receives the greater of—
(a)
The weekly compensation to which he or she would currently be entitled for the previous personal injury if he or she had no other earnings; or
(b)
The weekly compensation to which he or she was entitled immediately before the subsequent injury, plus 80% of his or her earnings at the time of the subsequent injury.
(5)
The 3 amounts in the phrase “in excess of $... a week”
in subclause (1) must be adjusted in the manner provided in section 102.
Effect of New Zealand Superannuation
25 Relationship between weekly compensation and New Zealand superannuation
(1)
Subclause (2) applies to an insured who—
(a)
Is entitled to weekly compensation immediately before reaching New Zealand superannuation qualification age; and
(b)
Has been entitled to it for 24 months or longer before reaching that age.
(2)
Such an insured loses his or her entitlement to weekly compensation on reaching that age.
(3)
Subclauses (4) and (5) apply to an insured who becomes entitled to weekly compensation 12 months or more, but less than 24 months, before reaching New Zealand superannuation qualification age.
(4)
Such an insured is entitled to weekly compensation for 24 months from the date of entitlement to the compensation.
(5)
However, the insured’s entitlement to the compensation is dependent on his or her making an election to be entitled, after reaching New Zealand superannuation qualification age, to the compensation, rather than to New Zealand superannuation.
(6)
Subclauses (7) and (8) apply to an insured who becomes entitled to weekly compensation—
(a)
Within 12 months before reaching New Zealand superannuation qualification age; or
(b)
On or after reaching New Zealand superannuation qualification age.
(7)
Such an insured is entitled to the weekly compensation for a period of 12 months following the later of—
(a)
The date of reaching New Zealand superannuation qualification age; or
(b)
The date of entitlement to weekly compensation.
(8)
The insured is then entitled to the weekly compensation for the next 12 months, if he or she makes an election to be entitled, during those 12 months, to the compensation, rather than to New Zealand superannuation.
(9)
Nothing in this clause entitles an insured to weekly compensation if he or she is not otherwise entitled to it under this schedule.
26 Election for purposes of clause 25
(1)
An insured must make an election under clause 25(5) or (8) within the period that is the later of the following:
(a)
Within 1 month before the date on which the election would take effect; or
(b)
Within 1 month after the insured has been notified of the amount of the weekly compensation by the insurer, the reviewer, or a District Court, whichever is applicable in the insured’s case.
(2)
The insurer may allow an insured to exercise or revoke an election under clause 25(5) or (8) after the period specified in subclause (1) has ended, but only if the insurer is satisfied that the insured’s circumstances have changed significantly since the end of the period.
Intervals At Which Weekly Compensation to be Paid
27 Weekly compensation to be paid weekly or at some other specific interval
(1)
An insurer liable to pay weekly compensation must make the compensation payments at weekly intervals or at some other interval agreed with the insured entitled to them. This subclause is subject to subclause (2).
(2)
An employer who, because of a risk sharing agreement with an insurer, is responsible for providing claims management services in relation to cover and statutory entitlements for the employer’s employees, and who is liable to pay weekly compensation to an insured, may make the compensation payments at the same intervals as the employer previously made payments of salary or wages to that insured, or at some other interval agreed with the insured.
Part 3 Rehabilitation
General Provisions
28 Insured’s and insurer’s obligations in relation to rehabilitation
An insured who has suffered personal injury for which he or she has cover—
(a)
Is responsible for his or her own rehabilitation to the extent possible having regard to the consequences of his or her personal injury; but
(b)
Is entitled to be provided by the insurer with rehabilitation, to the extent provided by this Act, to enable the insured to lead as normal a life as possible, having regard to the consequences of his or her personal injury.
29 Provision of rehabilitation before and after individual rehabilitation plan implemented
(1)
Before an individual rehabilitation plan for the insured is implemented by the insurer, the insurer is liable to provide the insured with rehabilitation in accordance with this schedule.
(2)
After an individual rehabilitation plan for the insured is implemented, the insurer is liable to provide the insured with rehabilitation in accordance with the plan and this schedule, but only to the extent that the insurer has specified which services under the plan it will provide.
30 Insurer to determine need for plan
Within 13 weeks after the insurer accepts the insured’s claim for cover, the insurer is liable to—
(a)
Determine whether the insured is likely to need rehabilitation after the weeks have ended; and
(b)
If so, agree an individual rehabilitation plan with the insured.
31 Preparation of plan
(1)
The insurer must provide information to the insured about—
(a)
The rehabilitation to which the insured may be entitled; and
(b)
The plan development process; and
(c)
The insured’s right to have a representative involved in the preparation of the plan; and
(d)
In relation to a plan that will include vocational rehabilitation, the insurer’s right to require the insured to undergo an assessment of his or her capacity to work at the completion of the vocational rehabilitation, and the potential consequences of such an assessment; and
(e)
The consequences of the insured’s agreeing to the plan.
(2)
The insurer may engage a suitably qualified person or organisation to—
(a)
Assist in the preparation and costing of a plan; and
(b)
Provide a link between the insured and the services identified in the plan.
(3)
A plan must—
(a)
Identify the insured’s needs for rehabilitation; and
(b)
Identify services appropriate to those needs, whether or not the insurer is liable to provide any or all of those services.
(4)
The following persons must be given an opportunity to participate in the preparation and costing of the plan to the extent that they are willing and able to do so:
(a)
The insured:
(b)
Any registered health professional providing treatment to the insured:
(c)
Any employer or potential employer of the insured.
(5)
The insurer is liable to meet the costs of preparing the plan, including the costs of any assessment that it has approved as necessary to enable the preparation of a plan.
(6)
In this clause, and clause 32, “services”
includes the key aspects of social rehabilitation, as defined in clause 39(1).
32 Insurer specifies entitlements under plan
(1)
The insurer must specify which of the services identified in the plan it will provide.
(2)
In deciding which of the services it will provide, the insurer must apply clauses 38, 42(1), 44, 45(1), 46(1), 47, 49, 50(1), 54, 55, and 56.
33 Agreement to plan
(1)
The insurer must then ask the insured to agree to the plan prepared for the insured under clause 31.
(2)
When the plan is agreed, the insurer must implement the plan.
(3)
The insurer is liable to fund the provision to the insured of the services it has specified under clause 32(1).
34 Review and appeal rights
(1)
For the purposes of Part 6, in putting a plan to an insured for agreement, the insurer makes a decision.
(2)
The fact that an insured has agreed to a plan does not affect his or her rights to make a review application or bring an appeal under Part 6 with respect to the entitlements provided in the plan.
35 Insurer and insured may agree to modify plan
The insured and the insurer may agree to modify the plan from time to time, and clauses 30 to 34 apply to the process of modification and to the modified plan.
Social Rehabilitation
36 Definitions
In clauses 37 to 52,—
“Activities of daily living”—
(a)
Includes the following general activities:
(i)
Financial management:
(ii)
Health care:
(iii)
Home management:
(iv)
Hygiene care:
(v)
Meal preparation:
(vi)
Mobility:
(vii)
Safety management:
(viii)
Shopping:
(ix)
Use of transport; and
(b)
Includes, if applicable to an insured,—
(i)
Driver’s licence retraining, for an insured who previously had a driver’s licence:
(ii)
Training in using and maintaining aids or appliances, and integrating them into the insured’s daily life, for an insured who needs aids or appliances:
“Aid” or “appliance”—
(a)
Means a manufactured item likely to assist an insured with a disability to undertake the activities of daily living; and
(b)
Includes artificial limbs and prosthetic appliances:
“Attendant care”—
(a)
Means—
(i)
Personal care; and
(ii)
Assistance with cognitive tasks of daily living, such as communication, orientation, planning, and task completion; and
(iii)
Protection of the insured from further injury in his or her ordinary environment; and
(b)
Includes training a person to provide attendant care, if an insurer agrees to fund the training; but
(c)
Does not include child care, general housekeeping, home maintenance, or preparing meals:
“Child” means a child under—
(a)
14 years; or
(b)
21 years, if the child needs child care because of his or her physical or mental condition:
“Communication” means conveying and receiving information by using skills such as attention, language, memory, numeracy, social awareness, speech production and development, and using communications technology:
“Home”—
(a)
Means residential premises in New Zealand in which the insured lives and which are owned, rented, or otherwise lawfully occupied by the insured or his or her parent, guardian, or spouse; and
(b)
Includes residential premises in New Zealand in which the insured proposes to five after they are built and which will be owned, rented, or otherwise lawfully occupied by the insured or his or her parent, guardian, or spouse; but
(c)
Does not include any hospital, hostel, hotel, motel, rest home, or other institution:
“Home help” means the provision, in New Zealand, of services related to cleaning, laundry, and meal preparation:
“Modifications to the home”—
(a)
Means alterations to the insured’s home that—
(i)
Have the purpose of assisting an insured to live as independently as possible, having regard to the limitations caused by his or her injury; and
(ii)
Remove structural barriers or add features fixed to the home; and
(b)
Includes real estate fees, legal fees, removal costs, and the costs of any modifications incurred in relocating an insured to a new home, if the insurer decides that relocation is the most cost effective alternative to modification of the insured’s existing home:
“Personal care” means physical assistance to move around and to take care of basic personal needs such as bathing, dressing, feeding, and toileting:
“Rehabilitation outcome” means a rehabilitation goal, objective, or result that, once the insurer and the insured have agreed on it, is specified in the insured’s individual rehabilitation plan:
“Training for independent living” includes training and coaching an insured in any of the following, in order to maximise his or her independence in daily living:
(a)
Activities of daily living:
(b)
Anger management:
(c)
Assertiveness:
(d)
Communication:
(e)
Motivation:
(f)
Sexuality:
(g)
Social skills:
“Transport for independence” means assistance with the cost of, for example,—
(a)
Escorted travel by car:
(b)
Modifying a vehicle:
(c)
Purchasing a vehicle:
(d)
Travelling by public transport:
(e)
Travelling by taxi.
37 Application of clauses 38 to 52
Clauses 38 to 52 apply to an insured who has suffered personal injury for which he or she has cover and who, as a direct result of the personal injury, needs social rehabilitation.
38 Purpose of social rehabilitation
The purpose of social rehabilitation is to assist the insured to undertake the activities of daily living to the greatest extent possible, having regard to the consequences of his or her personal injury.
39 Insurer’s liability to provide key aspects of social rehabilitation
(1)
In this clause, a “key aspect of social rehabilitation”
means any of the following:
(a)
Aids and appliances:
(b)
Attendant care:
(c)
Child care:
(d)
Home help:
(e)
Modifications to the home:
(f)
Training for independent living:
(g)
Transport for independence.
(2)
An insurer is liable to provide any key aspect of social rehabilitation to the insured if the conditions in subclause (3) are met.
(3)
The conditions are—
(a)
The insured is assessed or reassessed under clause 41 as needing the aspect; and
(b)
The insurer considers that the aspect—
(i)
Is for the purpose set out in clause 38; and
(ii)
Is necessary and appropriate, and of the quality required, for that purpose; and
(iii)
Is of a type normally provided by a rehabilitation provider; and
(c)
The provision of the aspect has been agreed in the insured’s individual rehabilitation plan, if a plan has been agreed.
(4)
If providing a key aspect of social rehabilitation, the insurer must provide it in accordance with whichever of clauses 42 to 51 are relevant.
(5)
This clause is subject to any regulations made under section 402.
40 Insurer’s liability to provide other social rehabilitation
(1)
An insurer is liable to provide any other social rehabilitation if—
(a)
The insured is assessed or reassessed under clause 41 as needing it; and
(b)
The insurer considers that it—
(i)
Is for the purpose set out in clause 38; and
(ii)
Is necessary and appropriate, and of the quality required, for that purpose; and
(iii)
Is of a type normally provided by a rehabilitation provider; and
(c)
Its provision has been agreed in the insured’s individual rehabilitation plan, if a plan has been agreed.
(2)
This clause is subject to any regulations made under section 402.
41 Assessment and reassessment of need for social rehabilitation
(1)
An assessment under this clause assesses the insured’s need for social rehabilitation and identifies the specific social rehabilitation that the insured needs.
(2)
The insurer may itself do assessments and reassessments under this clause or may appoint and pay as many appropriately qualified assessors as it considers necessary to do assessments and reassessments.
(3)
An insured’s need for social rehabilitation—
(a)
May be reassessed from time to time; and
(b)
Must be reassessed if the insurer considers that the insured’s condition or circumstances have changed.
(4)
The matters to be taken into account in an assessment or reassessment are—
(a)
The activities of daily living the insured was able to perform before suffering the personal injury:
(b)
The activities the insured is able to perform after suffering the personal injury:
(c)
The limitations suffered by the insured as a result of the personal injury:
(d)
The kinds of social rehabilitation that are appropriate for the insured to minimise those limitations:
(e)
The rehabilitation outcome that would be achieved by providing particular social rehabilitation:
(f)
The alternatives and options available for providing particular social rehabilitation so as to achieve the relevant rehabilitation outcome in the most cost effective way:
(g)
Any social rehabilitation (not provided as vocational rehabilitation) that may reasonably be provided to enable an insured who is entitled to vocational rehabilitation to participate in employment:
(h)
The geographical location in which the insured lives:
(i)
In the case of a reassessment,—
(i)
Whether any item that the insurer provided for the purposes of social rehabilitation is in such a condition as to need replacing:
(ii)
Changes in the insured’s condition or circumstances since the last assessment was undertaken.
42 Aids and appliances generally
(1)
In deciding whether to provide an aid or appliance, the insurer must have regard to—
(a)
Any rehabilitation outcome that would be achieved by providing it; and
(b)
Whether the insured has a prescription for the aid or appliance from a registered medical practitioner who holds qualifications satisfactory to the insurer.
(2)
The insurer is not liable to provide an artificial aid in the nature of an implant, unless the implant is implanted in the course of a surgical procedure approved by the insurer.
(3)
The insurer is not liable to provide any aid or appliance, if the insured already—
(a)
Owns an aid or appliance that has, at the time at which the insurer is making its decision, a similar function to the aid or appliance for which the insured has lodged a claim; or
(b)
Possesses such an aid or appliance on permanent loan from any person or organisation, including a hospital and health service,—
unless, in either case, the aid or appliance is unsuitable to assist the insured to achieve independence in daily living because of its age or condition.
(4)
The insurer is not liable to provide any aid or appliance, if the insured has, after suffering the personal injury, disposed of an aid or appliance that, at the time of disposal,—
(a)
Had a similar function to the aid or appliance for which the insured has lodged a claim; and
(b)
Was still suitable for that function.
(5)
The insurer is not liable to meet any costs of—
(a)
Maintaining or repairing any aid or appliance; or
(b)
Replacing any consumable items used in association with any aid or appliance,—
if the costs have been incurred because the insured has neglected or abused or misused the aid or appliance.
(6)
The insurer may provide an aid or appliance by way of approving its hire by the insured for a term it approves, if that hire is a cost effective alternative to the purchase of the aid or appliance.
(7)
If the insured pays for any aid or appliance approved by the insurer, the insurer is liable to reimburse the insured but may deduct any subsidy payable by a funder under the Health and Disability Services Act 1993 for that aid or appliance.
43 Aids and appliances: hearing aids
(1)
The insurer is liable to provide a hearing aid if—
(a)
The cost is reasonable; and
(b)
Either subclause (2) or subclause (3) applies.
(2)
This subclause applies to a hearing aid that—
(a)
Is a hearing aid that a funder under the Health and Disability Services Act 1993 would have paid for if the hearing aid had been required for a condition that was not personal injury covered by this Act; and
(b)
Is supplied on the recommendation of an audiologist.
(3)
This subclause applies to a hearing aid that is of the all-in-the-ear type, if the insurer is satisfied, after considering the report of an audiologist, that—
(a)
Free-field “functional gain”
or probe microphone “insertion gain”
measurements demonstrate real-ear performance closely approximating prescriptions based on widely used prescriptive formulas; and
(b)
The aid does not produce sound pressure levels on the ear that create significant loudness discomfort for the wearer; and
(c)
The aid is capable of delivering the preferred listening level of reasonable incoming speech without risk of acoustic feedback.
44 Attendant care
In deciding whether to provide attendant care, the insurer must have regard to—
(a)
Any rehabilitation outcome that would be achieved by providing it; and
(b)
The nature and extent of the insured’s personal injury and the degree to which that injury impairs his or her ability to provide for his or her personal care; and
(c)
The extent to which attendant care is necessary to enable the insured to undertake or continue employment (including agreed vocational training) or to attend a place of education or a primary or intermediate school; and
(d)
The extent to which other household family members or other family members might reasonably be expected to provide attendant care for the insured after the insured’s personal injury; and
(e)
The need to avoid substantial disruption to the employment or other activities of other household family members.
45 Child care
(1)
In deciding whether to provide child care, the insurer must have regard to—
(a)
Any rehabilitation outcome that would be achieved by providing it; and
(b)
The number of the insured’s children, their ages, and their need for child care; and
(c)
The extent to which child care was provided by other household family members before the insured’s personal injury; and
(d)
The extent to which other household family members or other family members might reasonably be expected to provide child care services after the insured’s personal injury; and
(e)
The need to avoid substantial disruption to the employment or other activities of the household family members.
(2)
The insurer is not liable to provide child care under this clause if it provides child care for the child under clause 76.
(3)
The insurer is not liable to provide child care for a child to the extent that the child is being provided with attendant care or training for independent living.
(4)
The insurer is not liable to provide child care, if child care is provided after the insured’s personal injury by a person who lives in the insured’s home or lived in the insured’s home immediately before the date on which the insured suffered his or her personal injury.
46 Home help
(1)
In deciding whether to provide home help, the insurer must have regard to—
(a)
Any rehabilitation outcome that would be achieved by providing it; and
(b)
The extent to which the insured did the cleaning, laundry, and meal preparation before the insured’s personal injury and the extent to which he or she is able to do those things after his or her injury; and
(c)
The number of household family members, their ages and their need for home help; and
(d)
The extent to which the cleaning, laundry, and meal preparation were done by other household family members before the insured’s personal injury; and
(e)
The extent to which other household family members or other family members might reasonably be expected to do the cleaning, laundry, and meal preparation for themselves and for the insured after the insured’s personal injury; and
(f)
The need to avoid substantial disruption to the employment or other activities of the household family members.
(2)
The insurer is not liable to provide home help outside the insured’s home.
(3)
The insurer is not liable to provide home help, if home help is provided after the insured’s personal injury by a person who lives in the insured’s home or lived in the insured’s home immediately before the date on which the insured suffered his or her personal injury.
47 Modifications to the home: matters to which insurer to have regard
(1)
In deciding whether to provide modifications to the home, the insurer must have regard to—
(a)
Any rehabilitation outcome that would be achieved by providing them; and
(b)
The difficulties faced by the insured in doing the following without the proposed modifications:
(i)
Gaining access to his or her home:
(ii)
Enjoying reasonable freedom of movement in his or her home:
(iii)
Living independently in his or her home; and
(c)
The likely duration of the insured’s residence in the home; and
(d)
The cost, and the relevant benefit, to the insured of the proposed modifications; and
(e)
If the home is not owned by the insured, whether the owner agrees to the modifications being done; and
(f)
The likely cost of reasonable alternative living arrangements; and
(g)
The likely duration of the disability arising from the personal injury for which the insured has cover.
(2)
For the purposes of subclause (1)(b)(iii), the assessment of whether an insured is living independently is not affected by whether the insured fives with others.
48 Modifications to the home: rights and responsibilities
(1)
The insurer is responsible for—
(a)
Making a preliminary assessment as to whether the modifications serve the purpose in clause 38; and
(b)
If it considers the proposed modifications serve that purpose, meeting the costs of obtaining local authority approval.
(2)
The insured is responsible for—
(a)
Obtaining the written consent to the modifications to which the insurer has given preliminary approval, from the owner of the home and any lessor or co-tenant or mortgagee; and
(b)
Obtaining any quotes required by the insurer for the proposed modifications.
(3)
The insurer is—
(a)
Not required to be a contracting party at any stage of the modifications:
(b)
Not liable to the insured or any other person for any liability arising from the carrying out of the modifications, other than for payment for those modifications the insurer has approved:
(c)
Not liable—
(i)
To ensure that the insured pays any person that undertakes the modifications; or
(ii)
To pay that person directly, if the insured does not pay:
(d)
Not liable for the cost of insuring the modifications or the home in which the modifications have been installed:
(e)
Not liable to replace any such modifications if the insured continues to reside in the home:
(f)
Not liable for the cost of removing any modifications no longer required:
(g)
Not liable for the cost of returning a home to its former state if the insured no longer occupies it:
(h)
Not liable for any loss of value of any home resulting from any modifications to, or removal of modifications from, the home:
(i)
Not liable to provide modifications to a home to which the insured moves from the modified home, unless the insurer has approved the costs of those modifications.
(4)
The insurer is not entitled to recover any payment made to the insured if—
(a)
The modifications are removed or are no longer required; or
(b)
The insured no longer occupies the home to which the modifications were made.
49 Training for independent living
In deciding whether to provide training for independent living, the insurer must have regard to—
(a)
Any rehabilitation outcome that would be achieved by providing it; and
(b)
The extent to which training for independent living, and the skills and knowledge likely to be acquired from it, are likely to reduce the insured’s dependence on rehabilitation professionals.
50 Transport for independence: matters to which insurer to have regard
(1)
In deciding whether to provide transport for independence, the insurer must have regard to—
(a)
Any rehabilitation outcome that would be achieved by providing it; and
(b)
The cost, and the relevant benefit, to the insured of the transport for independence service for which the insured has lodged a claim; and
(c)
The difficulties faced by the insured in doing the following in relation to the transport used by the insured before his or her personal injury, without the transport for independence service for which he or she has lodged a claim:
(i)
Driving or operating the vehicle:
(ii)
Gaining access to the vehicle:
(iii)
Enjoying freedom and safety of movement in the vehicle:
(iv)
Travelling as a passenger in the vehicle:
(v)
Transporting any essential mobility equipment in the vehicle; and
(d)
The need for the insured to own or have access to a vehicle, having regard to the times at which and the frequency with which the insured is likely to need that form of transport; and
(e)
Alternative means of transport available to the insured; and
(f)
The effect that modifications, or purchase, of a vehicle will have on the likelihood of the insured obtaining and retaining employment; and
(g)
The existing vehicle or vehicles owned or used by the insured; and
(h)
Whether and when the limitations caused by the insured’s personal injury are expected to improve; and
(i)
Any plans and quotes an appropriately qualified person provides for proposed modifications to, or for the purchase of, a vehicle.
(2)
The insurer may require the insured to satisfy the insurer of the matters set out in subsection (3) or subsection (4) before the insurer approves the modification or purchase for which the insured has lodged a claim.
(3)
The insurer may require the insured to satisfy the insurer that a motor vehicle will be modified in such a way that it—
(a)
Will be able to be issued with a warrant of fitness; and
(b)
Will—
(i)
Comply with regulations made under the Transport (Vehicle Standards) Regulations 1990; or
(ii)
Comply with any alternative standards prescribed under regulation 6 of those regulations; or
(iii)
Be issued with an exemption under those regulations.
(4)
If an insured wishes to drive a modified or newly purchased vehicle, the insurer may require the insured to satisfy the insurer that he or she is likely to be physically able to drive the vehicle safely, and be legally permitted to drive it.
51 Transport for independence: rights and responsibilities
(1)
The insurer is not liable to purchase a motor vehicle if the insured, or a person proposing to transport the insured,—
(a)
Owns or part owns or has the use of a vehicle that may be modified in order for the insured to achieve independence in daily living; or
(b)
Disposed of a vehicle, after the insured’s personal injury, that may have been able to be modified in order for the insured to achieve independence in daily living.
(2)
The insurer is—
(a)
Not liable—
(i)
To ensure that the insured pays any person that sells the vehicle or undertakes the modifications; or
(ii)
To pay that person directly, if the insured does not pay:
(b)
Not liable for the cost of maintenance or repair of any vehicle or modification to a vehicle, or for registration, licensing fees, insurance, or other running costs:
(c)
Not liable for the cost of removing any vehicle modifications no longer required or for restoring any vehicle to its former state:
(d)
Not liable for any loss of resale value resulting from modifications to any vehicle:
(e)
Not liable to contribute to the cost of replacing a vehicle for whose purchase or modification the insurer has already contributed, unless the replacement is necessary for the insured to maintain independence in daily living:
(f)
Not liable to contribute to a replacement under paragraph (e) if the insured’s need for a replacement vehicle arises because the insured—
(i)
Has not maintained or insured the existing vehicle; or
(ii)
Has, without a reasonable excuse, disposed of the existing vehicle.
(3)
In determining the amount to be paid for a vehicle, the insurer may take into account the value of any other motor vehicle owned by the insured, if the insured previously used the vehicle on a regular basis.
(4)
The insurer must—
(a)
Make payments for the purchase of, or modification to, a vehicle to the insured, unless the insured requests otherwise; and
(b)
Make the payment by way of an outright grant.
(5)
The insurer is not entitled to recover any payment made to the insured if—
(a)
The insured no longer requires the vehicle modifications; or
(b)
The vehicle is disposed of or destroyed.
52 Insurer not liable to ensure insured pays rehabilitation provider
The insurer is not liable—
(a)
To ensure that the insured pays any rehabilitation provider that delivers a social rehabilitation service to the insured; or
(b)
To pay that provider directly, if the insured does not pay.
Vocational Rehabilitation
53 Application of clauses 54 to 57
Clauses 54 to 57 apply to an insured who—
(a)
Has suffered personal injury for which he or she has cover; and
(b)
Is—
(i)
Entitled to weekly compensation; or
(ii)
Likely, unless he or she has vocational rehabilitation, to be entitled to weekly compensation; or
(iii)
On parental leave under the Parental Leave and Employment Protection Act 1987.
54 Purpose of vocational rehabilitation
The purpose of vocational rehabilitation is to help an insured to, as appropriate,—
(a)
Maintain employment; or
(b)
Obtain employment; or
(c)
Regain or acquire a capacity for work.
55 Hierarchy of considerations
(1)
In deciding whether to provide vocational rehabilitation, the insurer must have regard to the matters in clause 56(1).
(2)
In deciding what vocational rehabilitation is appropriate for the insured to achieve the purpose of vocational rehabilitation under clause 54, the insurer must consider—
(a)
Whether it is reasonably practicable to return the insured to the same employment in which the insured was engaged, and with the employer who was employing the insured, when the insured’s incapacity commenced; and
(b)
If it is not, whether it is reasonably practicable to return the insured to an employment of a different kind with that employer; and
(c)
If it is not, whether it is reasonably practicable to return the insured to the employment in which the insured was engaged when the insured’s incapacity commenced, but with a different employer; and
(d)
If it is not, whether it is reasonably practicable to return the insured to different employment with a different employer, in which the insured is able to use his or her experience, education, or training; and
(e)
If it is not, whether it is reasonably practicable to help the insured use as many of his or her pre-injury skills to obtain employment as possible.
56 Vocational rehabilitation: matters to which insurer to have regard
(1)
In deciding whether to provide vocational rehabilitation, the insurer must have regard to—
(a)
Whether the vocational rehabilitation is likely to achieve its purpose; and
(b)
Whether the vocational rehabilitation is likely to be cost-effective, having regard to the likelihood that costs of entitlements under this schedule will be reduced as a result of the provision of vocational rehabilitation; and
(c)
Whether the vocational rehabilitation is appropriate in the circumstances.
(2)
The insurer is liable to provide the vocational rehabilitation for the minimum period necessary to achieve its purpose, but is not liable to provide any vocational rehabilitation for longer than 3 years, which need not be consecutive.
(3)
This clause is subject to any regulations made under section 402.
57 Vocational rehabilitation may start or resume if circumstances change
(1)
The insurer may, at any time, decide whether or not there has been a change of circumstances affecting the insured’s need for vocational rehabilitation.
(2)
If the insurer decides that there has been such a change, the insurer and the insured may agree to the modification of the insured’s individual rehabilitation plan to reflect the changed circumstances.
(3)
An insurer may resume providing vocational rehabilitation under the insured’s individual rehabilitation plan, with any agreed modifications, to an insured who—
(a)
Had vocational rehabilitation; and
(b)
As a result, obtained employment; but
(c)
Is unable to maintain the employment because of his or her incapacity.
(4)
This clause is subject to clause 56(2) and (3).
Part 4 Independence Allowance
58 Independence allowance
(1)
The insurer is liable to pay the insured an independence allowance at the rate set in clause 62, if—
(a)
The insured has suffered personal injury for which he or she has cover; and
(b)
An assessment carried out under clause 60 establishes that that personal injury, for which the insured lodged the claim for cover, has resulted in a degree of whole-person impairment of 10% or more,—
but this subclause is subject to subclause (2).
(2)
The insurer is not liable to pay the insured any amount of independence allowance in excess of 100% whole-person impairment for mental injuries—
(a)
That he or she has cover for under section 40; but
(b)
That together are over 100% whole-person impairment.
59 Insurer not to assess entitlement until it receives medical certificate as to stability of insured’s condition
(1)
The insurer must not assess the insured’s entitlement to an independence allowance until the earlier of the following:
(a)
The insurer receives a certificate from a registered medical practitioner indicating that—
(i)
The insured’s condition resulting from the personal injury has stabilised; and
(ii)
It is likely that there is impairment resulting from the personal injury; or
(b)
After 52 weeks have passed since the date of the personal injury, the insurer receives a certificate from a registered medical practitioner indicating that—
(i)
The insured’s condition resulting from the personal injury has not stabilised; but
(ii)
It is likely that there is impairment resulting from the personal injury.
(2)
The insurer is liable to pay for the reasonable costs associated with the provision of a certificate under subclause (1).
60 Assessment of entitlement to independence allowance
(1)
The insurer must appoint, and pay, as many assessors as it considers necessary to do assessments under this clause.
(2)
An assessor assesses the insured’s percentage of whole-person impairment arising from each claim that is referred to the assessor for assessment.
(3)
An assessor must do the assessment after the insurer receives a certificate under clause 59(1).
(4)
In doing an assessment under this clause, an assessor must—
(a)
Use the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) (subject to any regulations made under section 403(2)); and
(b)
Exclude from the assessment any impairment that does not result from the personal injury for which the insured lodged the claim for cover.
(5)
The insurer must notify the insured of—
(a)
The assessed degree of whole-person impairment; and
(b)
The rate of independence allowance payable, if any.
(6)
The insurer must pay the reasonable costs associated with the assessment.
61 Reassessment of entitlement to independence allowance
(1)
Clauses 58 to 60 apply to reassessments under this clause.
(2)
The insurer must arrange for an assessor to reassess an insured if—
(a)
The insured was assessed after the insurer received a certificate under clause 59(1)(b) and before the insurer received a certificate under clause 59(1)(a); and
(b)
The insurer then receives a certificate under clause 59(1)(a).
A reassessment under this subclause is not a reassessment for the purposes of subclause (4) or subclause (6).
(3)
The insurer must arrange for an assessor to reassess an insured who produces to the insurer a certificate from a registered medical practitioner indicating that the insured’s impairment may have increased since the date of assessment, but this subclause is subject to subclause (4).
(4)
An insured is not entitled to more than 1 reassessment under subclause (3) in any 12 month period.
(5)
The insurer must arrange for an assessor to reassess an insured if the insurer has a certificate from a registered medical practitioner indicating that the insured’s impairment may have decreased since the date of assessment, but this subclause is subject to subclause (6).
(6)
An insured is not required to undergo more than 1 reassessment under subclause (5) in any 5 year period.
62 Weekly rates of independence allowance
(1)
An independence allowance is payable at the weekly rates set out in the following table:
| Degree of Impairment | Weekly Rate | Degree of Impairment | Weekly Rate |
|---|---|---|---|
| 10% | $10.28 | 46% | $36.71 |
| 11% | $11.01 | 47% | $37.45 |
| 12% | $11.75 | 48% | $38.18 |
| 13% | $12.48 | 49% | $38.92 |
| 14% | $13.22 | 50% | $39.65 |
| 15% | $13.95 | 51% | $40.39 |
| 16% | $14.69 | 52% | $41.12 |
| 17% | $15.42 | 53% | $41.85 |
| 18% | $16.15 | 54% | $42.59 |
| 19% | $16.89 | 55% | $43.32 |
| 20% | $17.62 | 56% | $44.06 |
| 21% | $18.36 | 57% | $44.79 |
| 22% | $19.09 | 58% | $45.53 |
| 23% | $19.83 | 59% | $46.26 |
| 24% | $20.56 | 60% | $46.99 |
| 25% | $21.29 | 61% | $47.73 |
| 26% | $22.03 | 62% | $48.46 |
| 27% | $22.76 | 63% | $49.20 |
| 28% | $23.50 | 64% | $49.93 |
| 29% | $24.23 | 65% | $50.67 |
| 30% | $24.97 | 66% | $51.40 |
| 31% | $25.70 | 67% | $52.13 |
| 32% | $26.43 | 68% | $52.87 |
| 33% | $27.17 | 69% | $53.60 |
| 34% | $27.90 | 70% | $54.34 |
| 35% | $28.64 | 71% | $55.07 |
| 36% | $29.37 | 72% | $55.81 |
| 37% | $30.11 | 73% | $56.54 |
| 38% | $30.84 | 74% | $57.27 |
| 39% | $31.57 | 75% | $58.01 |
| 40% | $32.31 | 76% | $58.74 |
| 41% | $33.04 | 77% | $59.48 |
| 42% | $33.78 | 78% | $60.21 |
| 43% | $34.51 | 79% | $60.95 |
| 44% | $35.25 | 80% and over | $61.68 |
| 45% | $35.98 |
(2)
The amounts specified in subclause (1) must be adjusted in the manner provided in section 103.
63 Payment of independence allowance
The following provisions apply to the payment of an independence allowance:
(a)
The insurer is not liable to pay an independence allowance for any period before 1 July 1992:
(b)
The insurer is liable to pay the independence allowance on and from the date on which the insured lodged the claim for cover for the personal injury from which the impairment results:
(c)
The insurer is liable to pay the independence allowance quarterly in advance for any period after the completion of the assessment of the degree of impairment:
(d)
The insurer must not take any action to recover the whole or any part of a quarterly payment of an independence allowance in respect of a quarter in which—
(i)
The insured’s impairment decreases; or
(ii)
The insured’s entitlement to an independence allowance ceases:
(e)
An adjustment to the level of entitlement of the independence allowance necessitated by a reassessment under clause 61 takes effect on and from the date of the next quarterly payment:
(f)
The insured’s entitlement to an independence allowance he or she was receiving at the date of his or her death ceases on that date.
Part 5 Entitlements Arising from Fatal Injuries
64 Child not born at date of insured’s death
For the purposes of this Part of this schedule, any child of the insured who is born within 12 months after the insured’s death is deemed to be—
(a)
Dependent on the insured at the date of the insured’s death; and
(b)
Under the care of the surviving parent of the child on that date.
65 Funeral grant
(1)
The insurer is liable to pay to a deceased insured’s estate a funeral grant of the lesser of—
(a)
The actual costs of the funeral; or
(b)
$3,145.63.
(2)
The amount specified in subclause (1) must be adjusted in the manner provided in section 103.
66 Survivor’s grant
(1)
The insurer is liable to pay a survivor’s grant for a deceased insured as follows:
(a)
To a surviving spouse of the insured, $4,504.60 but, if there is more than 1 surviving spouse, the insurer must divide that amount equally between them:
(b)
To each child of the insured who has not yet turned 18 years, $2,252.30:
(c)
To any other dependant of the insured, $2,252.30:
(2)
The amounts specified in subclause (1) must be adjusted in the manner provided in section 103.
67 Weekly compensation for surviving spouse
(1)
The insurer is liable to pay weekly compensation to a surviving spouse of a deceased insured.
(2)
Weekly compensation payable under this clause is payable from the date of the insured’s death at the rate of 60% of—
(a)
The weekly compensation for loss of earnings to which the insured would have been entitled at the end of 5 weeks of incapacity, had he or she lived but been totally incapacitated; or
(b)
The weekly compensation for loss of potential earning capacity to which the insured would have been entitled at the end of 6 months of incapacity, had he or she lived but been totally incapacitated.
This subclause is subject to clause 74.
(3)
The insurer must not cancel or suspend the surviving spouse’s weekly compensation—
(a)
Because the spouse remarries; or
(b)
Because the spouse enters into a relationship in the nature of marriage; or
(c)
Because of the age that the insured would have reached if he or she had not died.
(4)
The surviving spouse ceases to be entitled to weekly compensation on the latest of—
(a)
The end of 5 consecutive years from the date on which it first became payable:
(b)
The surviving spouse ceasing to have the care of all children of the insured who were in the surviving spouse’s care:
(c)
The youngest child of the insured of whom the surviving spouse had the care turning 18 years:
(d)
The surviving spouse ceasing to have the care of all other dependants of the insured who were in the surviving spouse’s care.
68 Relationship between surviving spouse’s weekly compensation and New Zealand superannuation
(1)
Subclause (2) applies to a surviving spouse who—
(a)
Is entitled to weekly compensation immediately before reaching New Zealand superannuation qualification age; and
(b)
Has been entitled to it for 12 months or longer before reaching that age.
(2)
Such a surviving spouse is entitled to the weekly compensation if he or she makes an election to be entitled to it, rather than to New Zealand superannuation.
(3)
Subclauses (4) and (5) apply to a surviving spouse who becomes entitled to weekly compensation—
(a)
Within 12 months before reaching New Zealand superannuation qualification age; or
(b)
On or after reaching New Zealand superannuation qualification age.
(4)
Such a surviving spouse is entitled to the weekly compensation for a period of 12 months following the later of—
(a)
The date of reaching New Zealand superannuation qualification age; or
(b)
The date of entitlement to weekly compensation.
(5)
The surviving spouse then continues to be entitled to the weekly compensation if he or she makes an election to be entitled to it, rather than to New Zealand superannuation.
(6)
Nothing in this clause entitles a surviving spouse to weekly compensation if he or she is not otherwise entitled to it under this schedule.
69 Election for purposes of clause 68
(1)
A surviving spouse must make an election under clause 68(2) or (5) within the period that is the latest of the following:
(a)
Within 1 month before the date on which the election would take effect; or
(b)
Within 1 month after the surviving spouse has been notified of the amount of the weekly compensation by the insurer, the reviewer, or a District Court, whichever is applicable in the surviving spouse’s case; or
(c)
Before 1 month before the surviving spouse reaches New Zealand superannuation qualification age.
(2)
The insurer may allow a surviving spouse to exercise or revoke an election under clause 68(2) or (5) after the period specified in subclause (1) has ended, but only if the insurer is satisfied that the surviving spouse’s circumstances have changed significantly since the end of the period.
70 Weekly compensation for child
(1)
The insurer is liable to pay weekly compensation to a child of a deceased insured.
(2)
Compensation payable under this clause is payable from the date of the insured’s death at the rate of 20% of—
(a)
The compensation for loss of earnings to which the insured would have been entitled at the end of 5 weeks of incapacity, had he or she lived but been totally incapacitated; or
(b)
The compensation for loss of potential earning capacity to which the insured would have been entitled at the end of 6 months of incapacity, had he or she lived but been totally incapacitated.
This subclause is subject to clause 74.
(3)
The insurer must not cancel or suspend the child’s weekly compensation because of the age that the insured would have reached if he or she had not died.
(4)
The child ceases to be entitled to weekly compensation on the later of—
(a)
The end of the calendar year in which the child turns 18 years; or
(b)
If the child is in full-time study at a place of education, the earliest of ceasing the study, completing the study, or turning 21 years.
(5)
The insurer must double the compensation payable for each parent if both the child’s parents have died.
71 Weekly compensation for other dependants
(1)
The insurer is liable to pay weekly compensation to any other dependant of a deceased insured.
(2)
Compensation payable under this clause is payable from the date of the insured’s death at the rate of 20% of—
(a)
The compensation for loss of earnings to which the insured would have been entitled at the end of 5 weeks of incapacity, had he or she lived but been totally incapacitated; or
(b)
The compensation for loss of potential earning capacity to which the insured would have been entitled at the end of 6 months of incapacity, had he or she lived but been totally incapacitated.
This subclause is subject to clause 74.
(3)
The insurer must not cancel or suspend the other dependant’s weekly compensation because of the age that the insured would have reached if he or she had not died.
(4)
The other dependant ceases to be entitled to weekly compensation on the earliest of the following:
(a)
The other dependant has annual earnings greater than $14,560.00:
(b)
If section 91 applies to the other dependant, the 3 months ends:
(c)
If clause 72 applies to the other dependant, the event occurs under that clause that ends the other dependant’s entitlement to weekly compensation.
(5)
The amount specified in subclause (4)(a) must be adjusted in the manner provided in section 102.
72 Relationship between other dependant’s weekly compensation and New Zealand superannuation
(1)
Subclause (2) applies to any other dependant who—
(a)
Is entitled to weekly compensation immediately before reaching New Zealand superannuation qualification age; and
(b)
Has been entitled to it for 24 months or longer before reaching that age.
(2)
Such a dependant loses his or her entitlement to weekly compensation on reaching that age.
(3)
Subclauses (4) and (5) apply to any other dependant who becomes entitled to weekly compensation 12 months or more, but less than 24 months, before reaching New Zealand superannuation qualification age.
(4)
Such a dependant is entitled to weekly compensation for 24 months from the date of entitlement to the compensation.
(5)
However, the other dependant’s entitlement to the compensation is dependent on his or her making an election to be entitled to the compensation, rather than to New Zealand superannuation, after reaching New Zealand superannuation qualification age.
(6)
Subclauses (7) and (8) apply to any other dependant who becomes entitled to weekly compensation—
(a)
Within 12 months before reaching New Zealand superannuation qualification age; or
(b)
On or after reaching New Zealand superannuation qualification age.
(7)
Such a dependant is entitled to the weekly compensation for a period of 12 months following the later of—
(a)
The date of reaching New Zealand superannuation qualification age; or
(b)
The date of entitlement to weekly compensation.
(8)
The other dependant is then entitled to the weekly compensation for the next 12 months, if he or she makes an election to be entitled to the compensation, rather than to New Zealand superannuation, for those next 12 months.
(9)
Nothing in this clause entitles any other dependant to weekly compensation if he or she is not otherwise entitled to it under this schedule.
73 Election for purposes of clause 72
(1)
The other dependant must make an election under clause 72(5) or (8) within the period that is the latest of the following:
(a)
Within 1 month before the date on which the election would take effect; or
(b)
Within 1 month after the other dependant has been notified of the amount of the weekly compensation by the insurer, the reviewer, or a District Court, whichever is applicable in the other dependant’s case; or
(c)
Before 1 month before the other dependant reaches New Zealand superannuation qualification age.
(2)
The insurer may allow any other dependant to exercise or revoke an election under clause 72(5) or (8) after the period specified in subclause (1) has ended, but only if the insurer is satisfied that the other dependant’s circumstances have changed significantly since the end of the period.
74 Maximum payments
(1)
The total amount of weekly compensation payable under clauses 67 to 73 must not exceed—
(a)
The weekly compensation for loss of earnings to which the insured would have been entitled at the end of 5 weeks of incapacity, had he or she lived but been totally incapacitated; or
(b)
The weekly compensation for loss of potential earning capacity to which the insured would have been entitled at the end of 6 months of incapacity, had he or she lived but been totally incapacitated.
(2)
The insurer may reduce all weekly compensation calculated under those clauses pro rata, and may readjust it from time to time, if the insurer considers the reduction and readjustment is necessary for the purposes of subclause (1).
75 Spouse status or dependency arising after date of personal injury
(1)
The insurer is liable to provide entitlements to a person who—
(a)
Becomes the spouse or a dependant of the insured after the date on which the insured suffered personal injury; and
(b)
Is the spouse or a dependant of the insured at the date of the insured’s death as a result of personal injury for which he or she has cover.
This subclause is subject to subclause (2).
(2)
The insurer is not liable under subclause (1) if the insurer decides, on reasonable grounds, that the main purpose of the person in becoming a spouse or dependant was to qualify for entitlements.
Child Care Payments
76 Child care payments for children of deceased insured
(1)
The insurer is liable to pay a child of a deceased insured a payment for child care on receiving a written application for it by or on behalf of the child.
(2)
The amount of any weekly entitlement to payment for child care per child is as follows:
(a)
If the number of children of a deceased insured entitled to payment for child care is 1, $100.00; and
(b)
If the number of children of a deceased insured entitled to payment for child care is 2, $60.00; and
(c)
If the number of children of a deceased insured entitled to payment for child care is 3 or more, $140.00 divided by the number of children of the insured for whom payment is being made.
(3)
The insurer is not liable for any administration costs incurred by or on behalf of the child in purchasing child care.
77 Duration of child care payments
(1)
The insurer is liable to make payments for child care on and from the date of death of the deceased insured.
(2)
The child ceases to be entitled to child care payments on the earlier of—
(a)
5 years after the date on which the entitlement started; or
(b)
On the date on which the child turns—
(i)
14 years; or
(ii)
21 years, if the child needs child care because of his or her physical or mental condition.
(3)
A child who, immediately before the deceased insured’s death, was entitled to payments for child care because of the death of another deceased insured has no entitlement for the subsequent death.
(4)
However, the insurer must start counting the 5-year period referred to in subclause (2)(a) at the date of the subsequent death.
(5)
This clause applies despite anything in this schedule.
78 Child care payments made to caregiver
(1)
The insurer must make, on behalf of the child, every payment for child care to a person who is responsible for arranging for the child’s care.
(2)
The insurer is not under an obligation to see to the application of any money paid to any person under subclause (1), and is not liable to the child in respect of any such payment.
Schedule 2 Occupational Diseases (ILO Convention 42)
Section 32(3)
| List of diseases and toxic substances | List of corresponding trades, industries, or processes |
|---|---|
| Poisoning by lead, its alloys or compounds and their sequelae. | Handling of ore containing lead, including fine shot in zinc factories. |
| Casting of old zinc and lead in ingots. | |
| Manufacture of articles made of cast lead or of lead alloys. | |
| Employment in the polygraphic industries. | |
| Manufacture of lead compounds. | |
| Manufacture and repair of electric accumulators. | |
| Preparation and use of enamels containing lead. | |
| Polishing by means of lead files or putty powder with a lead content. | |
| All painting operations involving the preparation and manipulation of coating substances, cements or colouring substances containing lead pigments. | |
| Poisoning by mercury, its amalgams and compounds and their sequelae. | Handling of mercury ore. |
| Manufacture of mercury compounds. | |
| Manufacture of measuring and laboratory apparatus. | |
| Preparation of raw material for the hat-making industry. | |
| Hot gilding. | |
| Use of mercury pumps in the manufacture of incandescent lamps. | |
| Manufacture of fulminate of mercury primers. | |
| Anthrax infection. | Work in connection with animals infected with anthrax. |
| Handling of animal carcasses or parts of such carcasses including hides, hoofs and horns. | |
| Loading and unloading or transport of merchandise. | |
| Silicosis with or without pulmonary tuberculosis, provided that silicosis is an essential factor in causing the resultant incapacity or death. | Industries or processes recognised by national law or regulations as involving exposure to the risk of silicosis. |
| Phosphorus poisoning by phosphorus or its compounds, and its sequelae. | Any process involving the production, liberation or utilisation of phosphorus or its compounds. |
| Arsenic poisoning by arsenic or its compounds, and its sequelae | Any process involving the production, liberation or utilisation of arsenic or its compounds. |
| Poisoning by benzene or its homologues, their nitro- and amido-derivatives, and its sequelae. | Any process involving the production, liberation or utilisation of benzene or its homologues, or their nitro-and amido-derivatives. |
| Poisoning by the halogen derivatives of hydrocarbons of the aliphatic series. | Any process involving the production, liberation or utilisation of halogen derivatives of hydrocarbons of the aliphatic series designated by national laws or regulations. |
| Pathological manifestations due to: (a) radium and other radioactive substances; (b) X-rays. | Any process involving exposure to the action of radium, radio-active substances, or X-rays. |
| Primary epitheliomatous cancer of the skin. | Any process involving the handling or use of tar, pitch, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances. |
Schedule 3 Cover for Mental Injury Caused by Certain Criminal Acts Crimes Act 1961
Section 40
| Section | 128 | —Sexual violation |
| 129 | —Attempt to commit sexual violation | |
| 129a | —Inducing sexual connection by coercion | |
| 130 | —Incest | |
| 131 | —Sexual intercourse with girl under care or protection | |
| 132 | —Sexual intercourse with girl under 12 | |
| 133 | —Indecency with girl under 12 | |
| 134 | —Sexual intercourse or indecency with girl between 12 and 16 | |
| 135 | —Indecent assault on woman or girl | |
| 138 | —Sexual intercourse with severely subnormal woman or girl | |
| 139 | —Indecent act between woman and girl | |
| 140 | —Indecency with boy under 12 | |
| 140a | —Indecency with boy between 12 and 16 | |
| 141 | —Indecent assault on man or boy | |
| 142 | —Anal intercourse | |
| 142a | —Compelling indecent act with animal | |
| 194 | —Assault on a child, or by a male on a female (to the extent that the assault is by a female on a child under 14 years old) | |
| 201 | —Infecting with disease | |
| 204a | —Female genital mutilation | |
| 204a | —Further offences relating to female genital mutilation |
Schedule 4 Managing Insurers
Section 55(2)
| Kind of Personal Injury | Managing Insurer |
|---|---|
| Work-related personal injury | Current insurer of current employer; or |
| If self-employed with an accident insurance contract, the insurer under the contract; or | |
| If self-employed without an accident insurance contract, the manager; or | |
| If a private domestic worker with an accident insurance contract, the insurer under the contract; or | |
| If a private domestic worker without an accident insurance contract, the manager. | |
| Work-related personal injury when employer has no accident insurance contract | The Regulator. |
| Non-work injury that is neither a motor vehicle injury nor a personal injury caused by medical misadventure | The manager; or |
| If self-employed with an accident insurance contract and not also an employee, the insurer under the contract; or | |
| If self-employed with an accident insurance contract and also an employee, either the manager or the insurer under the contract that is liable to provide the greatest amount of weekly compensation. | |
| Motor vehicle injury | The manager. |
| Personal injury caused by medical misadventure that is a non-work injury | The manager. |
Schedule 5 Deductions on Account of Earner Premiums
Section 285(2)
1
Subject to this schedule, the PAYE rules of the Income Tax Act 1994 (“the PAYE rules””
) apply, with all necessary modifications, with respect to—
(a)
Any amount included in the earnings as an employee of an employer as if such amount were a source deduction payment (or, as the case may require, salary or wages) of the employee for the purposes of the PAYE rules; and
(b)
The premium payable by any employee under this Act as if such premium were income tax; and
(c)
The deduction required to be made under section 285(1) as if such deduction were a tax deduction, which tax deduction is—
(i)
On account of income tax; and
(ii)
Made or required to be made for the purposes of the PAYE rules; and
(d)
Any employer under this Act as if such employer were an employer for the purposes of the PAYE rules; and
(e)
Any employee under this Act as if such employee were an employee for the purposes of the PAYE rules;—
and every employer and employee must comply with the requirements of the PAYE rules, to the extent to which the PAYE rules apply by virtue of this schedule.
2
Any deduction made must not be treated as part of or included in any tax deduction made under the PAYE rules on account of income tax.
3
If the earnings of any employee include a benefit to which section AC 4 of the Income Tax Act 1994 applies, that section applies for the purposes of determining the amount of the deduction required to be made from the benefit under this schedule by the employer providing the benefit.
4
If an employer makes a deduction under section 285(1) and fails to deal with the deduction or any part of it in the manner required by this Act, the deduction, to the extent to which the employer has not made payment of the deduction to the manager or an agent of the manager, in the application of the assets of the employer, ranks—
(a)
Equally with the amount of any tax deduction not paid by the employer, as provided for in section 167(2) of the Tax Administration Act 1994; or
(b)
If there are no such unpaid tax deductions, in accordance with section 167(2) of the Tax Administration Act 1994, as if the deduction were a tax deduction not paid by the employer.
5
In relation to an employee who is a private domestic worker, the employer of that employee is not obliged to make any deduction under section 285(1) from amounts paid or provided by the employer in respect of the employment of that employee as a private domestic worker; and section NC 16 of the Income Tax Act 1994 applies to that employee in respect of such amounts.
6
For the purpose of section 285(1), the employer of an irregular payment employee is deemed to make payment to the irregular payment employee of the earnings as an employee for an income year on the date that the employer finally determines the amount of the earnings as an employee of the irregular payment employee for that income year.
7
Every employer who makes an irregular payment must,—
(a)
Within the time within which the employer is required to furnish a return of income under section 33 of the Tax Administration Act 1994, deliver a statement of the total amount of irregular payment employee earnings paid or payable by the employer for the income year to which the return relates; and
(b)
Pay, by the date that income tax not previously due and payable is due and payable by the employer as specified in section MC 1 or section MC 2 of the Income Tax Act 1994, the employer premium payable on such irregular payment employee earnings by virtue of section 304 or Part 13 calculated at the rate prescribed in regulations made under the Act.
8
An employer of any person referred to in section KC 2 of the Income Tax Act 1994 is not obliged to make any deduction under section 285(1) from amounts paid or provided by the employer to that person, unless the employer makes a tax deduction on account of income tax under the PAYE rules from any such amount.
9
Despite clause 1, sections LD 1(2), LD 1(3), NC 2(1), NC 6, NC 7, NC 8, NC 9, NC 13, NC 14, and NC 17 of the Income Tax Act 1994, and section 33a of the Tax Administration Act 1994 do not apply to any such amount required to be deducted.
10
Except to the extent specified in clauses 11 and 12, the following Parts of the Tax Administration Act 1994 (“those provisions”
) apply to earners’ premiums payable under section 283, namely,—
(a)
Part VII—Interest (but subject to section 157a of the Tax Administration Act 1994); and
(b)
Part IX—Insofar as the Part applies to establishing late payment shortfall penalties (but subject to section 157a of the Tax Administration Act 1994); and
(c)
Part X—Recoveries; and
(d)
Part XI—Insofar as the Part provides rights of remission, relief, refunds in respect of interest, and late payment penalties and shortfall penalties,—
and as if they were set out in full in this Act, but with—
(e)
References in those provisions to tax laws being replaced by references to this Act and regulations or determinations of the manager or its agent made under it; and
(f)
References in those provisions to taxpayers being replaced by references to earners; and
(g)
References in those provisions to the Commissioner being replaced by references to the manager or an agent of the manager; and
(h)
References in those provisions to tax positions being replaced by references to positions a person may take under this Act in relation to liabilities to pay an amount of premium or to deduct or withhold an amount of premium; and
(i)
References in those provisions to tax, tax payable, unpaid tax, and overpaid tax being replaced by references to premiums, premiums payable, unpaid premiums, and overpaid premiums; and
(j)
References in those provisions to tax liabilities or obligations to deduct and account for, or pay, amounts of tax being replaced by references to liabilities or obligations to deduct or account for, or pay, amounts of premiums or penalties in respect of premiums under this Act; and
(k)
References in those provisions to penalties in respect of tax obligations being replaced by references to penalties in respect of obligations under this Act; and
(l)
References in those provisions to assessments made under the Tax Administration Act 1994 being replaced by references to determinations made under this Act; and
(m)
The dates by which premiums and penalties are to be paid to the manager or its agent under this Act being the due dates for the purposes of those provisions; and
(n)
Such other changes as are necessary to give effect to this schedule being deemed to have been effected.
11
Part VII of the Tax Administration Act 1994, as applied by clause 10, does not apply to—
(a)
Amendments to premiums as a result of experience rating calculations carried out by the manager; or
(b)
Cessation adjustments under Part III of the Accident Rehabilitation and Compensation Insurance (Earnings Definitions) Regulations 1992.
12
Despite clause 10, section 146 of the Tax Administration Act 1994 is not included in the expression “those provisions”
for the purposes of that clause.
13
A deduction is deemed to have been made under this schedule and under section 285(1) if and when payment is made of the net amount of any amount included in the earnings as an employee, and the amount of the deduction is deemed to have been applied for a purpose other than the payment if the amount of the deduction is not duly paid to the manager or an agent of the manager.
14
In this schedule, the word “deduction”
includes all or part of a deduction required to be made under section 285(1).
15
No person is chargeable with a penalty under this schedule in respect of any deduction or earner premium payable to the Commissioner as part of a combined tax and earner premium deduction.
16
Nothing in clause 15 limits the application of the remission, relief, and refunds component of Part 10.
17
For the purposes of this schedule,—
(a)
The expressions “combined tax and earner premium deduction”
, “Commissioner”
, “employee”
, “employer”
, “income tax”
, “private domestic worker”
, “salary or wages”
, “source deduction payment”
, and “tax deduction”
have the same meanings as in the Income Tax Act 1994; and
(b)
The expression “irregular payment employee”
has the meaning given to it in regulations made under this Act.
Compare: 1992, No. 13, ss. 115(2)–(21), 115b, 115c, 115d, 115e
Schedule 6 Provisions Relating to Corporation
Section 338
Members
1 Chairperson and deputy chairperson
(1)
The Minister must appoint 1 of the members of the Board as the chairperson and another member as the deputy chairperson, and every appointee holds that office until removed from it by the Minister or ceasing to be a member.
(2)
If the chairperson or deputy chairperson vacates office as a member or is removed by the Minister as chairperson or deputy chairperson, the Minister may appoint any existing member or any new member as chairperson or deputy chairperson.
(3)
No person may at the same time hold the position both of chairperson and deputy chairperson.
Compare: 1992, No. 13, Second Schedule, cl. 1
2 Term of office
(1)
Every member of the Board appointed by the Minister is appointed for a specified term of not more than 3 years, and may from time to time be reappointed.
(2)
Every member, unless removed from office by the Minister, continues in office until his or her successor comes into office, despite the term of office having expired.
Compare: 1992, No. 13, Second Schedule, cl. 2
3 Removal from office
Any member appointed by the Minister may be removed from office without compensation at any time by the Minister.
Compare: 1992, No. 13, Second Schedule, cl. 3
4 Resignation from office
Any member appointed by the Minister may at any time resign from office by written notice to the Minister.
Compare: 1992, No. 13, Second Schedule, cl. 4
5 Vacancies in membership
If any member appointed by the Minister dies or resigns or is removed from office, and because of that it is no longer possible to achieve a quorum, the vacancy must, as soon as practicable, be filled by the appointment of another member.
Compare: 1992, No. 13, Second Schedule, cl. 5
6 Remuneration and expenses of Board members
The members appointed by the Minister are to be paid such fees, salaries, and allowances, and such travelling allowances and expenses, as are from time to time agreed between the members and the Minister.
Compare: 1992, No. 13, Second Schedule, cl. 6
Meetings of Board
7 Meetings
(1)
Meetings of the Board are to be held at such times and places as the Board or the chairperson from time to time appoints.
(2)
The contemporaneous linking together by telephone or other means of communication of a number of members, whether or not 1 or more of the members is out of New Zealand, constitutes a meeting of the Board if the following conditions are met:
(a)
Notice has been given to every member for the time being entitled to receive notice of a meeting of the Board and every member is given an opportunity to participate in the meeting:
(b)
The number of members taking part in the meeting by telephone or other means of communication is not less than the quorum provided by clause 10, and each of the members taking part—
(i)
Is linked by telephone or such other means for the purposes of the meeting; and
(ii)
Acknowledges, at the commencement of the meeting, to all the other members taking part, that member’s presence for the purpose of a meeting of the Board; and
(iii)
Is, throughout the meeting, in contact with each of the other members taking part; and
(iv)
On any vote, individually expresses his or her vote to the meeting.
(3)
The following conditions apply to teleconference meetings:
(a)
A member must not leave a meeting held under this clause by disconnecting the member’s telephone or other means of communication unless the member has previously obtained the express consent of the chairperson of the meeting:
(b)
A member is conclusively presumed to have been present, and to have formed part of the quorum, at all times during the meeting by telephone or other means of communication unless the member has previously obtained the express consent of the chairperson to leave the meeting:
(c)
The chairperson must call the roll of members at the end of any meeting conducted in accordance with this clause.
Compare: 1992, No. 13, Second Schedule, cl. 7; 1996, No. 30, First Schedule, cl. 15
8 Chairperson to preside at meetings
(1)
At all meetings of the Board the chairperson presides if he or she is present.
(2)
The deputy chairperson presides if—
(a)
Either—
(i)
The chairperson is not present at a meeting of the Board or has an interest in the deliberation or decision before it; or
(ii)
There is no chairperson for the time being appointed; and
(b)
The deputy chairperson is present, and does not have an interest in the deliberation or decision before the Board.
(3)
The meeting must not proceed until the Minister has appointed another member to preside at the meeting if—
(a)
Either—
(i)
The chairperson is not present at a meeting of the Board or has an interest in the deliberation or decision before it; or
(ii)
There is no chairperson for the time being appointed; and
(b)
Either—
(i)
The deputy chairperson is not present at the meeting or has an interest in the deliberation or decision before it; or
(ii)
There is no deputy chairperson for the time being appointed.
(4)
For the purposes of this clause, a member has an interest in a deliberation or decision if required by clause 9(3)(b) not to take part in it.
Compare: 1992, No. 13, Second Schedule, cl. 8
9 Disclosure of interest
(1)
A member who, otherwise than as a member, taxpayer, employee, or private motorist, has a direct or indirect interest in—
(a)
The Board’s performance of any function or exercise of any power; or
(b)
Any insurer or prudential supervisor; or
(c)
Any arrangement, agreement, or contract, made or entered into, or proposed to be made or entered into, by the Board—
must, as soon as is practicable after the relevant facts have come to the member’s notice, disclose the nature of the interest in accordance with subclause (2).
(2)
A member required to disclose the nature of an interest must disclose it—
(a)
To the Minister, if—
(i)
The person is the Board’s chairperson; or
(ii)
The person is the Board’s deputy chairperson, and for the time being the Board has no chairperson; and
(b)
To the Board’s chairperson or deputy chairperson, in any other case.
(3)
After becoming required to disclose the nature of an interest, a member—
(a)
Must disclose to the members present at any meeting of the Board at which any deliberation or decision of the Board relating to the matter takes place or is made that the member has an interest in the matter; and
(b)
Must not take part in any deliberation or decision of the Board relating to the matter in which the member has the interest.
(4)
A member required to disclose the nature of an interest in any matter must be disregarded in determining whether or not there is a quorum of the Board present for any part of a meeting of the Board during which a deliberation or decision of the Board relating to the matter takes place or is made.
Compare: 1992, No. 13, Second Schedule, cl. 9
10 Quorum
At any meeting of the Board the quorum necessary for the transaction of business is 4 members.
Compare: 1992, No. 13, Second Schedule, cl. 10
11 Decisions
Any decision validly taken at a meeting of the Board is a decision of the Corporation.
Compare: 1992, No. 13, Second Schedule, cl. 11
12 Voting
At any meeting of the Board, the person presiding at the meeting has a deliberative vote and, if the voting is equal, also has a casting vote.
Compare: 1992, No. 13, Second Schedule, cl. 12
13 Resolutions
(1)
A resolution assented to by letter, telegram, telex, fax message, or electronic message by all members of the Board for the time being in New Zealand is as valid and effectual as if it had been passed at a meeting of the Board duly called and constituted.
(2)
Where—
(a)
There is held a telephone or video conference of at least 4 members of the Board; and
(b)
All reasonable efforts have been made to enable every member to participate in the conference; and
(c)
A resolution is assented to by a majority of the members participating in the conference,—
the resolution is as valid and effectual as if it had been passed at a meeting of the Board duly called and constituted.
Compare: 1992, No. 13, Second Schedule, cl. 13
14 Procedure
Subject to this Act, the Board may regulate its procedure in such manner as it thinks fit.
Compare: 1992, No. 13, Second Schedule, cl. 14
15 Committees
(1)
The Board may from time to time appoint and dissolve committees of the Board.
(2)
A committee may include among its membership persons who are not members of the Board, but every committee must at all times have a majority of members who are members of the Board.
Compare: 1992, No. 13, Second Schedule, cl. 15
Documents
16 Execution of documents
(1)
The Board may from time to time, in writing under its common seal and witnessed by 2 members, authorise any 1 or more members or employees of the Corporation to execute any deeds, instruments, contracts, or other documents on behalf of the Corporation, and may at any time in the same manner revoke any such authority.
(2)
Any such authority to any employee of the Corporation may be given to—
(a)
Any specified employee; or
(b)
Any employee of a specified class; or
(c)
The holder for the time being of any specified office or of any office of specified class.
(3)
Every person purporting to execute any documentation on behalf of the Corporation under any such authority, is, in the absence of proof to the contrary, presumed to be acting in accordance with such an authority.
Compare: 1992, No. 13, Second Schedule, cl. 16
Employment
17 Chief executive
(1)
There must be appointed from time to time by the Board, acting after consultation with the Minister, a chief executive of the Corporation.
(2)
The chief executive may not be a member of the Board.
(3)
The remuneration and terms and conditions of employment of the chief executive of the Corporation must be determined from time to time by the Board, acting after consultation with the State Services Commissioner.
Compare: 1992, No. 13, Second Schedule, cl. 19
18 Application of State Sector Act 1988
(1)
Part VI of the State Sector Act 1988, with any necessary modifications, and subject to this Act, applies in relation to the Corporation in the same manner as that Part applies in relation to the Public Service.
(2)
For the purposes of the application of the State Sector Act 1988,—
(a)
Every reference to the chief executive is to be read as a reference to the chief executive of the Corporation; and
(b)
Every reference to a department is to be read as a reference to the Corporation.
(3)
Before entering into any negotiations under Part VI of the State Sector Act 1988 in respect of the conditions of employment of the employees of the Corporation, the Corporation must consult with the State Services Commission over the conditions of employment to be negotiated.
(4)
The Commission may at any time, either before or during the negotiations, indicate to the Corporation that it wishes to participate with the Corporation in the negotiation or continued negotiation of the conditions of employment of employees of the Corporation, and the Corporation must allow the Commission to participate in the negotiations.
Compare: 1992, No. 13, Second Schedule, cl. 20
19 Personnel policy
(1)
The Corporation must operate a personnel policy that complies with the principle of being a good employer.
(2)
For the purposes of this clause, a “good employer”
is an employer who operates a personnel policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring—
(a)
Good and safe working conditions; and
(b)
An equal employment opportunities programme; and
(c)
The impartial selection of suitably qualified persons for appointment; and
(d)
Recognition of—
(i)
The aims and aspirations of Maori; and
(ii)
The employment requirements of Maori; and
(iii)
The need for greater involvement of Maori as employees of the employer operating the personnel policy; and
(e)
Opportunities for the enhancement of the abilities of individual employees; and
(f)
Recognition of the aims and aspirations, and the cultural differences, of ethnic or minority groups; and
(g)
Recognition of the employment requirements of women; and
(h)
Recognition of the employment requirements of persons with disabilities.
Compare: 1992, No. 13, Second Schedule, cl. 21
20 Proper standards
In addition to the requirements specified in clause 19, the Corporation must ensure that all employees maintain proper standards of integrity, conduct, and concern for the public interest.
Compare: 1992, No. 13, Second Schedule, cl. 22
21 Equal employment opportunities
(1)
The Corporation—
(a)
Must in each year develop and publish an equal employment opportunities programme for the Corporation; and
(b)
Must ensure in each year that the equal employment opportunities programme for that year is complied with throughout the Corporation.
(2)
The Corporation must include in the annual report of the Corporation—
(a)
A summary of the equal employment opportunities programme for the year to which the report relates; and
(b)
An account of the extent to which the Corporation was able to meet, during the year to which the report relates, the equal employment opportunities programme for that year.
(3)
For the purposes of this clause and clause 19, an equal employment opportunities programme is a programme that is aimed at the identification and elimination of all aspects of policies, procedures, and other institutional barriers that cause or perpetuate, or tend to cause or perpetuate, inequality in respect of the employment of any person or group of persons.
Compare: 1992, No. 13, Second Schedule, cl. 23
22 Superannuation
The Corporation may subsidise or contribute to any registered superannuation scheme, whether constituted by the Corporation or otherwise, for the purpose of providing benefits for its employees.
Compare: 1992, No. 13, Second Schedule, cl. 24
23 Employees not in service of Crown
No person is deemed to be employed in the service of the Crown for the purposes of the State Sector Act 1988 because of that person’s appointment under this Act as an employee of the Corporation or of any subsidiary of the Corporation.
Compare: 1992, No. 13, Second Schedule, cl. 25
24 Liability of members and employees
No member or employee of the Corporation is personally liable for any liability of the Corporation, or for any act done or omitted by the Corporation or by any member or employee of the Corporation in good faith while carrying out or exercising (or intending to carry out or exercise) the functions, duties, or powers of the Corporation.
Compare: 1992, No. 13, Second Schedule, cl. 26
Delegations
25 Delegations
(1)
The Corporation may, from time to time delegate to any subsidiary of the Corporation, or to any employee, consultant, agent, specialist, or committee, any of its functions, duties, or powers.
(2)
Every delegation must be in writing.
(3)
A delegation may be to any named person or to any person who is for the time being a member of the class of persons appropriately specified in the delegation.
(4)
Where the delegation is to a class of persons, it applies, subject to any express terms of the delegation, to the members of the class for the time being, irrespective of any change in the membership of the class.
(5)
Every person to whom a function, duty, or power of the Corporation is delegated may further delegate the function, duty, or power in accordance with the terms of the delegation.
(6)
Every delegation is revocable at will, and no such delegation prevents the exercise of the function or power by the Corporation or other person granting the delegation.
(7)
The fact that any person purports to exercise or to have exercised any function, duty, or power of the Corporation pursuant to any delegation is, in the absence of proof to the contrary, sufficient evidence of the person’s authority to do so.
(8)
The Corporation is liable for the actions of any delegate or subdelegate as if that person were an employee of the Corporation (whether or not that is the case) and as if any directions given or control exercised by any person over the delegate or sub-delegate in that capacity were directions given or control exercised by the Corporation.
Compare: 1992, No. 13, Second Schedule, cl. 28
Schedule 7 Consequential Amendments
Section 415(1)
Part 1 Acts Amended
| Enactment | Amendment |
|---|---|
| 1908, No. 9—The Judicature Act 1908 (R.S Vol. 22, p. 107) | By omitting paragraph (f) of clause 1 of Form 50 in the Second Schedule, and substituting the following paragraph: “(f)Compensation or damages received (including payments from an insurer under the Accident Insurance Act 1998):”. |
| 1928, No. 18—The Statutory Land Charges Registration Act 1928 (R.S Vol. 11, p. 403) | By repealing paragraph (a) of section 3(2), and substituting the following paragraph: “(a)Charges created in favour of the prudential supervisor of an insurer in accordance with section 215 of the Accident Insurance Act 1998:”. |
| 1947, No. 16—The District Courts Act 1947 (R.S Vol. 28, p. 57) | By repealing paragraph (b) of the definition of the term “(b)The insurer in respect of weekly compensation payable to the judgment debtor under the Accident Insurance Act 1998:”. |
By repealing paragraph (b) of the definition of the term “(b)All payments made under the Accident Insurance Act 1998 by an insurer (within the meaning of section 13 of that Act) of weekly compensation (within the meaning of section 13 of that Act):”. | |
| 1953, No. 50—The Insurance Companies’ Deposits Act 1953 (R.S Vol. 7, p. 475) | By adding to the definition of “(c)Accident insurance business in terms of the Accident Insurance Act 1998:”. |
| 1957, No. 87—The Summary Proceedings Act 1957 (R.S Vol. 9, p. 583) | By repealing paragraph (b) of the definition of the term “(b)All payments made under the Accident Insurance Act 1998 by an insurer (within the meaning of section 13 of that Act) of weekly compensation (within the meaning of section 13 of that Act):”. |
| By repealing so much of Part II of the First Schedule as relates to section 180(1) of the Accident Compensation Act 1972 and section 115a(1)(b) of the Accident Rehabilitation and Compensation Insurance Act 1992. | |
| 1959, No. 98—The Public Bodies Contracts Act 1959 (R.S Vol. 27, p. 795) | By repealing so much of Part II of the First Schedule as relates to the Accident Compensation Corporation, and substituting the following item: “The Accident 1998, No. 114—The Compensation Accident Insurance Corporation Act 1998.” |
| 1964, No. 136—The Social Security Act 1964 (R.S Vol. 32, p. 625) | By omitting from paragraph (c) of the definition of the term “income”in section 3(1), the word “Includes”, and substituting the words “Except where section 71a(2) applies, includes”. |
By adding to paragraph (c) of the definition of the term “(iii)Any payment referred to in subparagraph (i) or subparagraph (ii) which the person would have been entitled to receive under an accident insurance contract within the meaning of section 13 of the Accident Insurance Act 1998 but for the existence of a risk sharing agreement referred to in section 185 of that Act; and”. | |
By adding to paragraph (f)(ix) of the definition of the term “income”in section 3(1) the words “or Part 13 or Part 4 of Schedule 1 of the Accident Insurance Act 1998”. | |
By inserting in section 3(1), after the definition of the term “‘Income-tested benefit’ means any of the following benefits: “(a)A community wage: “(b)A domestic purposes benefit: “(c)An emergency benefit: “(d)An independent youth benefit: “(e)An invalid’s benefit: “(f)New Zealand superannuation or a veteran’s pension payable at the rate in clause 2 of the First Schedule of the Social Welfare (Transitional Provisions) Act 1990: “(g)An orphan’s benefit: “(h)A transitional retirement benefit: “(i)An unsupported child’s benefit: “(j)A widow’s benefit:”. | |
By omitting from section 39d the words “Earnings related compensation within the meaning of section 2 of the Accident Compensation Act 1982”, and substituting the words “Weekly compensation within the meaning of section 13 of the Accident Insurance Act 1998”. | |
By omitting from section 61da the words “Section 81 of the Accident Compensation Act 1982”, and substituting the words “Clause 65 of Schedule 1 of the Accident Insurance Act 1998”. | |
By repealing subsection (4) of section 69c, and substituting the following subsection: “(4) Despite anything to the contrary in this section, the chief executive may, in the chief executive’s discretion, refuse to grant a disability allowance or may terminate a disability allowance already granted or may grant a disability allowance at a reduced rate, if the applicant is in receipt of a war disablement pension under the War Pensions Act 1954, or an entitlement under the Accident Insurance Act 1998, or an overseas pension or periodical allowance which the chief executive deems to be analogous to such war disablement pension or entitlement, in respect of a disability which gives rise to an application for a disability allowance under this section.” | |
By repealing paragraph (a) of the proviso to section 70(1), and substituting the following paragraph: “(a)Compensation for injury or death for which payment could be made under the Accident Insurance Act 1998 if the injury or death had occurred in New Zealand after the commencement of that Act; or”. | |
By repealing section 71a, and substituting the following section: “71a Deduction of weekly compensation from income-tested benefits“(1) Subject to subsection (4), this section applies to a person who is qualified to receive an income-tested benefit (other than New Zealand superannuation or a veteran’s pension) where— “(a)The person is entitled to receive or receives weekly compensation in respect of the person or his or her spouse or a dependent child; or “(b)The person’s spouse receives weekly compensation. “(2) Where this section applies, the rate of the benefit payable to the person must be reduced by the amount of weekly compensation payable to the person. “(3) In this section, ‘weekly compensation’— “(a)Means weekly compensation for loss of earnings or loss of potential earning capacity payable to the person by an insurer under the Accident Insurance Act 1998; and “(b)Includes any additional payment made for such loss by an insurer within the meaning of that Act under a contract of insurance for accident in excess of the statutory entitlement under that Act. “(4) Subsection (2) does not apply where the person— “(a)Was receiving the income-tested benefit immediately before 1 July 1999 and continues to receive that benefit; and “(b)Was receiving compensation for loss of earnings or loss of potential earning capacity under the Accident Rehabilitation Compensation and Insurance Act 1992 immediately before that date; and “(c)Section 71a(2) of this Act (as it was before it was repealed and substituted by the Accident Insurance Act 1998) required the compensation payments to be brought to charge as income in the assessment of the person’s benefit.” | |
By repealing paragraph (a) of section 80D, and substituting the following paragraph: “(a)An insurer pays weekly compensation in respect of a claim made under the Accident Insurance Act 1998; and”. | |
By repealing subsection (1b) of section 86A, and substituting the following subsection: “(1B) A deduction notice may be issued under subsection (1) to an insurer requiring the insurer to deduct the amount due from any weekly compensation in respect of loss of earnings or loss of potential earning capacity that is payable, or becomes payable, to the debtor by the insurer under the Accident Insurance Act 1998.” | |
By omitting from section 126 the words “section 77 of the Accident Compensation Act 1982”, and substituting the words “Part 3 of Schedule 1 of the Accident Insurance Act 1998”. | |
| 1967, No. 35—The Trustee Companies Act 1967 | By adding to section 7(2) the following paragraph: “(u)Prudential supervisor under section 208 of the Accident Insurance Act 1998.” |
| 1967, No. 54—The Insolvency Act 1967 (R.S Vol. 18, p. 289) | By repealing subparagraph (iii) of section 104(1)(e), and substituting the following subparagraph: “(iii)All amounts payable to the Accident Compensation Corporation in accordance with section 115(17) of the Accident Rehabilitation and Compensation Insurance Act 1992 or clause 4 of Schedule 5 of the Accident Insurance Act 1998:”. |
| 1967, No. 151—The Carriage by Air Act 1967 (R.S. Vol. 18, p. 25) | By repealing the proviso to section 22, and substituting the following proviso:
“Provided that such liability does not extend to nor include any passenger who at the time of the accident has cover in respect of the personal injury arising from the accident under Part 3 of the Accident Insurance Act 1998.” |
| 1969, No. 52—The Administration Act 1969 (R.S Vol. 19, p. 1) | By inserting in section 65, after the words “Compensation Corporation,”wherever they appear, the words “or other insurer under the Accident Insurance Act 1998,”. |
| 1971, No. 51—The Stamp and Cheque Duties Act 1971 (R.S Vol. 23, p. 771) | By repealing paragraph (m) of section 11(2), and substituting the following paragraph: “(m)The Accident Insurance Act 1998:”. |
By repealing paragraph (e) of section 80(1), and substituting the following paragraph: “(e)The Accident Compensation Corporation:”. | |
| 1971, No. 53—The Armed Forces Discipline Act 1971 (R.S Vol. 23, p. 33) | By omitting from section 186a(4)(a) the words “Accident Rehabilitation and Compensation Insurance Act 1992”, and substituting the words “Accident Insurance Act 1998”. |
| 1975, No. 9—The Ombudsmen Act 1975 (R.S Vol. 35, p. 469) | By omitting from Part II of the First Schedule the item relating to the Accident Rehabilitation and Compensation Insurance Corporation, and substituting the following item:
“The Accident Compensation Corporation. |
| 1975, No. 42—The Fire Service Act 1975 (R.S Vol. 27, p. 11) | By omitting all the words in section 44(1)(a) after the words “in so far as”, and substituting the words “the Accident Insurance Act 1998 does not apply”. |
| 1975, No. 122—The Disabled Persons Community Welfare Act 1975 (R.S Vol. 26, p. 143) | By repealing paragraph (f) of section 4, and substituting the following paragraph: “(f)To co-operate with any insurer under the Accident Insurance Act 1998 in so far as its responsibilities relate to the promotion of the rehabilitation of persons who suffer personal injury for which they have cover under the Accident Insurance Act 1998:”. |
By repealing subsection (2) of section 5, and substituting the following subsection: “(2) In the case of any such delegation to the Accident Compensation Corporation,— “(a)The Director-General must consult the Chairperson of the Accident Compensation Corporation as to the terms and conditions of the delegation before he or she makes it: “(b)The delegation may authorise the Corporation to subdelegate all or any of the functions and powers delegated to it to any of its agents appointed under clause 25 of Schedule 6 of the Accident Insurance Act 1998 and (subject to the provisions of this Act) the provisions of that clause apply to any such subdelegation as if it were a delegation under that clause.” | |
By repealing subsection (4) of section 26, and substituting the following subsection: “(4) In determining the extent of any financial assistance for disabled persons under subsection (3), the chief executive of the department for the time being responsible for the administration of the Social Security Act 1964 may have regard to any assistance provided under the Accident Insurance Act 1998 or from any other source.” | |
| 1977, No. 52—The Forest and Rural Fires Act 1977 (R.S Vol. 27, p. 331) | By omitting from section 38(6) the words “Accident Rehabilitation and Compensation Insurance Act 1992”, and substituting the words “Accident Insurance Act 1998”. |
| 1977, No. 110—The Higher Salaries Commission Act 1977 (R.S Vol. 35, p. 307) | By omitting from the Fourth Schedule the item relating to the Managing Director and the Deputy Managing Directors of the Accident Compensation Corporation. |
| 1980, No. 94—The Family Proceedings Act 1980 (R.S Vol. 28, p. 545) | By repealing paragraph (b) of the definition of the term “(b)The insurer (within the meaning of the Accident Insurance Act 1998) in relation to weekly compensation payable to the respondent under that Act:”. |
By repealing paragraph (b) of the definition of the term “(b)Weekly compensation under the Accident Insurance Act 1998:”. | |
| 1983, No. 46—The Civil Defence Act 1983 | By repealing paragraph (i) of the definition of the term “(i)The Accident Compensation Corporation established under section 328 of the Accident Insurance Act 1998:”. |
| 1985, No. 120—The Criminal justice Act 1985 | By repealing section 62, and substituting the following section: “62 Application of Accident Insurance Act 1998 to persons serving sentence of community service or periodic detention
When an offender performs any service or does any work for the purposes of a sentence of community service or of periodic detention, the following provisions apply: “(a)If the offender suffers any personal injury for which he or she has cover under the Accident Insurance Act 1998 arising out of and in the course of performing that service or doing that work,— “(i)The personal injury is deemed, for the purposes of section 76 of that Act only, to be a work-related personal injury; and “(ii)The Crown is liable to pay compensation to which the offender is entitled under that section: “(b)The cost of all other entitlements of the offender under that Act must be met from the Earners’ Account in the case of an offender who is an earner and from the Non-Earners’ Account in all other cases.” |
| 1989, No. 11—The Corporations (Investigation and Management) Act 1989 | By inserting, after section 59, the following section: “59a Special considerations where insurer under Accident Insurance Act 1998 is subject to statutory management
A statutory manager of an insurer registered under section 201 of the Accident Insurance Act 1998 must not— “(a)Exercise any power conferred by this Part if to do so would prejudice the need to ensure that arrangements are in place to ensure that the obligations of the insurer under accident insurance contracts to provide statutory entitlements under that Act are met without interruption; or “(b)Enter into a contract of sale under this Part unless a person who is registered as an insurer under section 201 of that Act continues to be liable to provide statutory entitlements under the insurer’s accident insurance contracts.” |
| 1989, No. 44—The Public Finance Act 1989 (R.S Vol. 33, p. 521) | By omitting from the Fourth, Fifth, and Sixth Schedules the item relating to the Accident Rehabilitation and Compensation Insurance Corporation, and substituting in each case the following item: (3) “Accident Compensation Corporation.” |
| 1990, No. 26—The Social Welfare (Transitional Provisions) Act 1990 (R.S Vol. 32, p. 883) | By omitting from section 3(1a) the words “section 53 of the Accident Rehabilitation and Compensation Act 1992”, and substituting the words “clauses 25 and 26 of Schedule 1 of the Accident Insurance Act 1998”. |
By repealing the definition of “‘Earner premium’ means the levy and premium payable under subsections (1) and (2) of section 283 of the Accident Insurance Act 1998:”. | |
| 1992, No. 96—The Health and Safety in Employment Act 1992 | By repealing section 59, and substituting the following section: “59 Funding“(1) In this section,— “‘The applicable Act’ means the Accident Insurance Act 1998: “‘Earner’, ‘earnings’, ‘earnings as a self-employed person’, ‘employer’, and ‘manager’ have the same meanings as in section 13 of the applicable Act: “‘Funding levy’ means the levy required to be paid by subsection (2): “‘Residual Claims levy’ means the levy payable under section 304 of the applicable Act. “(2) For the purpose of recovering the expected cost to the Crown of the administration of this Act, there is payable— “(a)By every employer, on the amount of earnings paid or deemed to have been paid by the employer to the employer’s employees, a levy at a rate or rates prescribed by regulations made, on the recommendation of the Minister, under this Act; and “(b)By every earner who has earnings as a self-employed person, on the amount of earnings as a self-employed person derived or deemed to have been derived by the earner, a levy at a rate or rates prescribed by regulations made, on the recommendation of the Minister, under this Act. “(3) The funding levy must be added to, and is deemed part of, the Residual Claims levy; and— “(a)The funding levy is payable, collected, and remitted, and penalties are payable in respect of it, as if it were the Residual Claims levy; and “(b)The manager and the Commissioner of Inland Revenue have all the powers in respect of the funding levy that they have in respect of the Residual Claims levy; and “(c)The Commissioner of Inland Revenue is not required to refer separately to or account separately for, or identify, any funding levy in performing his or her functions in relation to the Residual Claims levy or the funding levy. “(4) The manager must, by the 20th day of the month after the month in which the manager receives any funding levy from the Commissioner of Inland Revenue, pay that funding levy to the Secretary. “(5) The manager may charge the Secretary a fee for collecting the funding levy. “(6) The Secretary must pay into the Crown Bank Account all of the funding levy the manager pays to the Secretary. “(7) The Minister must not recommend the making of regulations for the purposes of subsection (2) without first consulting the manager. “(8) Subsection (7) does not limit the generality of section 21(2) of this Act.” |
| By repealing section 60. | |
| 1993, No. 4—Te Ture Whenua Maori Act 1993 | By repealing subsection (5) of section 82, and substituting the following subsection: “(5) Nothing in section 124 of the Accident Insurance Act 1988 applies to any charge constituted under this section.” |
| 1993, No. 22—The Health and Disability Services Act 1993 | By repealing subsection (3) of section 33, and substituting the following subsections: “(3) Despite anything in this Act, the Health Funding Authority,— “(a)For the purposes of the Accident Insurance Act 1998, may enter into an agreement or contract or arrangement with any insurer in relation to the purchase of goods, services, or facilities for the purposes of the insurer; and “(b)Must carry out any obligation imposed on it under sections 361 and 363 of the Accident Insurance Act 1998. “(4) In subsection (3), ‘insurer’ has the same meaning as in the Accident Insurance Act 1998.” |
By adding to section 34 the following subsection: “(3) This section does not apply in relation to the carrying out by the Health Funding Authority of its obligations under sections 361 and 363 of the Accident Insurance Act 1998.” | |
| 1993, No. 28—The Privacy Act 1993 | By repealing paragraph (d) of the definition of the term “(d)Any monetary entitlement payable under Part 5 or Part 13 of the Accident Insurance Act 1998:”. |
By repealing paragraph (a) of the definition of the term “(a)The Accident Compensation Corporation: “(aa)The Regulator, as defined in the Accident Insurance Act 1998:”. | |
By omitting from the Third Schedule the item relating to the Accident Rehabilitation and Compensation Insurance Act 1992, and substituting the following item:
“The Accident Sections 353, 354, Insurance Act 1998 370 and 371”. | |
| 1993, No. 82—The Human Rights Act 1993 | By repealing subparagraph (ii) of section 21(1)(k), and substituting the following subparagraph: “(ii)Being a recipient of a benefit under the Social Security Act 1964 or an entitlement under the Accident Insurance Act 1998:”. |
| 1993, No. 106—The Financial Reporting Act 1993 | By adding to section 4(1) the following paragraph: “(d)Every insurer (within the meaning of section 13 of the Accident Insurance Act 1998).” |
| 1994, No. 104—The Maritime Transport Act 1994 | By omitting from section 86(4) the words “the Accident Rehabilitation and Compensation Insurance Act 1992”, and substituting the words “the Accident Insurance Act 1998”. |
By omitting from section 97(7) the words “the Accident Rehabilitation and Compensation Insurance Act 1992”, and substituting the words “the Accident Insurance Act 1998”. | |
| 1995, No. 95—The Medical Practitioners Act 1995 | By repealing paragraph (d) of section 83(3), and substituting the following paragraph: “(d)Any person on behalf of an insurer under the Accident Insurance Act 1998.” |
By repealing paragraph (b) of section 85, and substituting the following paragraph: “(b)An offence against the Health Act 1956, the Misuse of Drugs Act 1975, the Contraception, Sterilisation, and Abortion Act 1977, the Medicines Act 1981, the Coroners Act 1988, the Accident Rehabilitation and Compensation Insurance Act 1992, the Births, Deaths, and Marriages Registration Act 1995, or the Accident Insurance Act 1998—”. | |
By repealing paragraph (d) of section 109(1), and substituting the following paragraph: “(d)Has been convicted of an offence against the Health Act 1956, the Misuse of Drugs Act 1975, the Contraception, Sterilisation, and Abortion Act 1977, the Medicines Act 1981, the Coroners Act 1988, the Accident Rehabilitation and Compensation Insurance Act 1992, the Births, Deaths, and Marriages Registration Act 1995, or the Accident Insurance Act 1998; | |
| 1998, No. 19—The Social Security Amendment Act 1998 | By repealing so much of Schedule 1 as relates to the Accident Rehabilitation and Compensation Insurance Act 1992. |
Part 2 Regulations Amended Section 415(2)
| Regulations | Amendment |
|---|---|
| The District Courts Rules 1992 (S.R. 1992/109) | By omitting paragraph (b) of the definition of the term “(b)All payments made under the Accident Insurance Act 1998 by an insurer (within the meaning of section 13 of that Act) of weekly compensation (within the meaning of section 13 of that Act):”. |
| The Health Entitlement Cards Regulations 1993 (S.R. 1993/169) | By omitting from paragraph (a) of the definition of the term “qualifying medical services”in regulation 17 the words “Accident Rehabilitation and Compensation Insurance Corporation under the Accident Rehabilitation and Compensation Insurance Act 1992”, and substituting the words “Accident Compensation Corporation or an insurer under the Accident Insurance Act 1998”. |
|
By revoking subparagraph (x) of paragraph (b) of the definition of the term “(x)Services necessitated by or arising from personal injury for which cover is available and in respect of which an entitlement is liable to be provided under Part 1 of Schedule 1 of the Accident Insurance Act 1998:”. | |
| The Health and Safety in Employment (Rates of Funding Levy) Regulations 1994 (S.R. 1994/49) | By omitting from regulation 3 the words “other than as an employee”in both places where they occur, and substituting in both places the words “as a self-employed person”. |
Schedule 8 Consequential Tax Amendments
Section 416
| Title of Act | Amendment |
|---|---|
| 1985, No. 141—The Goods and Services Tax Act 1985 (R.S Vol. 27, p. 425) | By repealing paragraph (b) of section 5(13), and substituting the following paragraph: “(b)That payment is in respect of an entitlement for any loss of earnings (being earnings within the meaning of the Accident Compensation Act 1982 or the Accident Rehabilitation and Compensation Insurance Act 1992 or the Accident Insurance Act 1998).” |
By repealing subparagraph (v) of section 20(3)(d), and substituting the following subparagraph: “(v)Does not apply where that payment is made in respect of any entitlement for any loss of earnings (being earnings within the meaning of the Accident Compensation Act 1982 or the Accident Rehabilitation and Compensation Insurance Act 1992 or the Accident Insurance Act 1998); and”. | |
| 1994, No. 164—The Income Tax Act 1994 | By repealing paragraph (a) of section CB 4(1), and substituting the following paragraph: “(a)Any amount derived by a friendly society, except so far as it is derived from— “(i)Business carried on beyond the circle of its membership; or “(ii)Any company which is registered under section 201 of the Accident Insurance Act 1998:”. |
By repealing paragraphs (g) and (h) of section CB 5(1), and substituting the following paragraphs: “(g)Any amount derived by any person, in respect of any period of incapacity for work, from any sick pay or other allowances paid to that person— “(i)Under section 25 of the National Provident Fund Act 1950; or “(ii)By a friendly society, not being compensation of the kinds to which paragraphs (ba) and (bb) of section CC 1 apply; or “(iii)From any sick, accident, or death benefit fund to which that person was a contributor at the date of the commencement of that period of incapacity, not being compensation of the kinds to which paragraphs (ba) and (bb) of section CC 1 apply: “(h)Any amount derived by any person, in respect of any period of incapacity for work, from any payment received by that person by way of a benefit under a personal sickness or accident policy of insurance, or an accident insurance contract (within the meaning of section 13 of the Accident Insurance Act 1998), not being— “(i)Compensation of the kinds to which paragraphs (ba) and (bb) of section CC 1 apply; or “(ii)Any other payment that is calculated according to loss of earnings or profits:. | |
By repealing paragraph (i) of section CB 5(1), and substituting the following paragraph: “(i)Any amount derived by any trustee in trust for any sick, accident, or death benefit fund, not being an amount derived directly or indirectly from— “(i)Any business carried on by or on behalf of or for the benefit of that trustee; or “(ii)Any company which is registered under section 201 of the Accident Insurance Act 1998 and which is under the control of the trustee:”. | |
|
By adding to section CB 6(1) the following paragraph: “(q)Payments made under Part 5 or Part 13 of the Accident Insurance Act 1998 of the following kinds: “(i)A payment to an insured for treatment or rehabilitation: “(ii)An independence allowance: “(iii)A funeral grant: “(iv)A survivor’s grant: “(v)A childcare payment.” | |
By adding to section CB 10(2) the following subparagraphs: “; or “(iv)A dividend derived by a friendly society from a company which is registered under section 201 of the Accident Insurance Act 1998 and which is under the control of the society; or “(v)A dividend derived by a trustee in trust for any sick, accident, or death benefit fund from a company which is registered under section 201 of the Accident Insurance Act 1998 and which is under the control of the trustee of the fund.” | |
By inserting in section CC 1, after paragraph (b), the following paragraphs: “(ba)All payments made, under the Accident Insurance Act 1998, by an insurer (within the meaning of that Act) of weekly compensation (within the meaning of that Act) that are not recovered or recoverable under section 320 of that Act: “(bb)Any other payments made by an insurer, pursuant to any policy of personal accident or sickness insurance to which section 188(1)(a) of the Accident Insurance Act 1998 applies, of compensation for loss of earnings or loss of potential earning capacity in so far as it relates to a work-related personal injury within the meaning of that Act:”. | |
By inserting in section CI 1, after paragraph (j), the following paragraph: “(ja)Any specified insurance premium or any contribution to which paragraph (f) applies, that is a premium or contribution paid by an employer to an insurer in respect of an employee under— “(i)An accident insurance contract within the meaning of section 13 of the Accident Insurance Act 1998; or “(ii)A contract to which section 188(1)(a) of that Act applies in so far as it relates to cover and entitlements for work-related personal injury within the meaning of that Act:”. | |
By inserting, after section DK 4, the following section: “DK 5 General insurers’ reserves for outstanding claims“(1) Where in any income year an insurer has a reserve for outstanding claims in relation to any insurance to which the provisions of the Accident Insurance Act 1998 apply, in calculating the net income or net loss of the insurer for that income year, the insurer must take into account the value of that reserve at the beginning and at the end of that income year. “(2) The value of the reserve at the beginning of the income year is the amount of the closing reserve at the end of the immediately preceding income year. “(3) The value of the reserve at the end of the income year is to be the amount calculated by an actuary and adopted by the insurer for financial reporting purposes. “(4) Where the value of the reserve at the end of an income year has not been determined under subsection (3), it is the amount determined by the Commissioner, who may seek the advice of the Government Actuary or any other actuary in determining this amount. “(5) The value of any reserve for outstanding claims calculated under this section must have regard to— “(a)Generally accepted accounting practice; and “(b)Generally accepted actuarial practice; and “(c)The present value of expected future payments. “(6) The value of the reserve at the end of an income year is an allowable deduction of the insurer for the income year and the value of the reserve at the beginning of an income year is gross income of the insurer for the income year. “(7) In this section, ‘outstanding claims’, in relation to any income year, means the claims made or expected to be made with the insurer in respect of insured events that have occurred on or before the end of that income year and which have not been settled in the income year or in a previous income year; and includes an estimate of claims that have been incurred but not reported to the insurer before the end of that income year. “(8) In this section, ‘insurer’ has the same meaning as in section 13 of the Accident Insurance Act 1998.” | |
By inserting, after section ED 1, the following section: “ED 1a Year in which non-competitive levies and premiums under Accident Insurance Act 1998 payable“(1) For the purposes of calculating the taxable income derived in any income year by a taxpayer, any non-competitive levy or premium under the Accident Insurance Act 1998 that becomes due and payable by an employer or a self-employed person in that income year is deemed to be expenditure incurred by the taxpayer in that income year, and in no other year; and the deduction (if any) allowable in respect of those amounts must be computed accordingly. “(2) The non-competitive levies and premiums for the purpose of this section are— “(a)Premiums to fund the Earners’ Account under section 283(1): “(b)Earners’ Account levy under section 283(2): “(c)Residual Claims levy under section 304: “(d)Base premium under sections 466 to 470: “(e)Contribution to the Insolvent Insurers Fund under sections 246 or 247: “(f)Levy to meet the costs of the Regulator under section 236: “(g)Levies or penalties paid to the Non-Compliers Fund. “(3) In the case of a taxpayer that has a balance date that ends between 1 October and 6 April (inclusive), an amount of non-competitive levy or premium that is due on a date prescribed in Schedule 13, column E is an allowable deduction as if it were due and payable on the date prescribed in Schedule 13, column D. “(4) Notwithstanding subsection (1), where— “(a)Any amount of non-competitive levy or premium has been allowed as a deduction in any income year preceding the income year in which that amount became due and payable by the taxpayer; and “(b)By reason of the time bar or otherwise, the Commissioner cannot lawfully alter the assessment for that income year,— that amount of levy or premium is deemed to be expenditure incurred by the taxpayer in the income year in which it was allowed as a deduction, and not in any other income year.” | |
By inserting in section EH 1(8)(c)(i), after the expression “1992”, the words “or the Accident Insurance Act 1998”. | |
By inserting in section GC 18, after the words “section 115 of the Accident Rehabilitation and Compensation Insurance Act 1992”, the words “or section 285 of the Accident Insurance Act 1998”. | |
By inserting in section GC 18, after the words “section 115”in the second place where they appear, the words “or that section 285”. | |
By inserting in section KC 3(3), after paragraph (a) of the definition of the term “(aa)That person having suffered incapacity due to personal injury (within the meaning of section 13 of the Accident Insurance Act 1998) in respect of which— “(i)Weekly compensation is payable under section 428(2), section 429(2), or Part 2 of Schedule 1 of that Act; or “(ii)Compensation payable under section 445, section 446, section 447, or clause 67, clause 70, or clause 71 of Schedule 1 of that Act has been, is being, or will be paid where, were it not for the death of another person, that person would have been so engaged:”. | |
By adding the following paragraph to section ME 1(2): “; or “(i)A subsidiary company of the Accident Compensation Corporation to which section 334(1) of the Accident Insurance Act 1998 applies.” | |
By inserting in section NC 19, after the words “section 115 of the Accident Rehabilitation and Compensation Insurance Act 1992”, the words “or section 285 of the Accident Insurance Act 1998”. | |
By inserting in subsection (1) and subsection (3) of section NC 20, after the words “section 115 of the Accident Rehabilitation and Compensation Insurance Act 1992”, the words “or section 285 of the Accident Insurance Act 1998”. | |
By inserting in paragraph (b) of the definition of the term “combined tax and earner premium deduction”in section OB 1, after the words “section 115 of the Accident Rehabilitation and Compensation Insurance Act 1992”, the words “or section 285 of the Accident Insurance Act 1998”. | |
By inserting in paragraph (a)(v) of the definition of the term “full-time earner”in section OB 1, after the expression “section 3 of the Accident Rehabilitation and Compensation Insurance Act 1992”, the words “or section 29 of the Accident Insurance Act 1998”. | |
By inserting in that same paragraph, after the words “section 138 of that Act”, the words “, or any weekly compensation within the meaning of section 13 of Accident Insurance Act 1998”. | |
By inserting in paragraph (b)(i) of the definition of the term “income from employment”in section OB 1, after the words “paragraph (i)”, the words “or paragraph (ia)”. | |
By inserting in paragraph (b)(i) of the definition of the term “income from employment”in section OB 1, after the words “Accident Rehabilitation and Compensation Insurance Act 1992,”, the words “or to a self-employed person within the meaning of section 13 of the Accident Insurance Act 1998 in respect of compensation paid under clause 7 of Schedule 1 of that Act”. | |
By inserting in the definition of the term “Policy of personal accident or sickness insurance”in section OB 1, after the words “by the taxpayer”, the words “or by the employer of the taxpayer”. | |
By inserting, after paragraph (i) of the definition of the term “(ia)All payments made, under the Accident Insurance Act 1998, by an insurer (within the meaning of that Act) of weekly compensation (within the meaning of that Act); and “(ib)Any other payments made by an insurer, under any policy of personal accident or sickness insurance to which section 188(1)(a) of the Accident Insurance Act 1998 applies, of compensation for loss of earnings or loss of potential earning capacity in so far as it relates to a work-related personal injury within the meaning of that Act:—”. | |
By omitting from paragraph (e) of the definition of the term “specified payment”in section OB 1 the words “paragraphs (h) and (i)”, and substituting the words “paragraphs (h), (i), and (ia)”. | |
By inserting in paragraph (e) of the definition of the term “specified payment”in section OB 1, after the words “its agent”, the words “or paid by an insurer under the Accident Insurance Act 1998”. | |
By inserting in section OF 2(h)(i), after the expression “EC 1,”, the expression “ED 1(2a), ED 1a(3),”. | |
| 1994, No. 166—The Tax Administration Act 1994 | By inserting in paragraph (d) of the definition of the term “tax law”in section 3, after the words “Accident Rehabilitation and Compensation Insurance Act 1992 or a regulation made under that Act”, the words “or the Accident Insurance Act 1998 or a regulation made under that Act”. |
By inserting in paragraph (a) of section 4A(3), after the words “Accident Rehabilitation and Compensation Insurance Act 1992 or regulations made under that Act”the words “or the Accident Insurance Act 1998 or a regulation made under that Act”. | |
By inserting in the definitions of the terms “corporation”and “weekly compensation”in section 46a(5), after the words “the Accident Rehabilitation and Compensation Insurance Corporation”, in each case the words “or the Accident Compensation Corporation”. | |
By inserting in section 81(1)(a)(ii), after the expression “1992”, the words “or the Accident Insurance Act 1998”. | |
By inserting in section 81(3)(a)(ii), after the expression “1992”, the words “or the Accident Insurance Act 1998”. | |
By omitting from paragraph (f) of section 81(4) the words “Accident Rehabilitation and Compensation Insurance Corporation”wherever they appear. | |
By inserting in paragraph (f)(i) of section 81(4), after the words “Managing Director”, the words “or Chief Executive”. | |
By inserting in section 81(4), after paragraph (f), the following paragraph: “(fa)Communicating to any person, being an officer, employee, or agent of the Regulator for the purposes of the Accident Insurance Act 1998 any information, being information— “(i)Which the person is authorised by the Regulator to receive; and “(ii)Which is communicated to that person for the purposes of section 370 or section 371 of the Accident Insurance Act 1998:”. | |
By inserting in section 82, after the words “Managing Director”in both places where they appear, the words “or Chief Executive”. | |
By adding to the definition of the term “(c)Any weekly compensation payable under the Accident Insurance Act 1998.” | |
By inserting in section 86(1)(b), after the expression “1992”, the words “or the Accident Insurance Act 1998”. | |
By inserting in section 86(1), after the expression “1992”in the second place where it occurs, the words “or the Accident Insurance Act 1998,”. | |
By inserting in section 86(2), after the expression “1992”, the words “or the Accident Insurance Act 1998,”. | |
By inserting in section 86(4)(a), after the words “or the Accident Rehabilitation and Compensation Insurance Corporation”, the words “or the Accident Compensation Corporation”. | |
By inserting in section 86(4), after paragraph (a), the following paragraph: “(aa)Where it contains certificates given by persons mentioned in subsection (5)(aa), be kept by the Regulator; and”. | |
By inserting in section 86(5)(a), after the expression “1992”, the words “or the Accident Compensation Corporation established under the Accident Insurance Act 1998”. | |
By inserting in section 86(5), after paragraph (a), the following paragraph: “(aa)A person who is or has been appointed or employed by the Regulator under the Accident Insurance Act 1998; or”. | |
By inserting in section 86(5)(b), after the expression “1992”, the words “or clause 26 of Schedule 6 of the Accident Insurance Act 1998”. | |
By inserting in section 86(5)(f), after the expression “1992”, the words “or the Accident Insurance Act 1998”. | |
By inserting in section 87(4)(c), after the words “Accident Rehabilitation and Compensation Insurance Corporation”, the words “or the Accident Compensation Corporation”. | |
By inserting in section 139a(1), after the expression “1992”, the words “or any successor to that regulation made under the Accident Insurance Act 1998”. | |
By inserting in section 142(1)(c), after the expression “1992”, the words “or any successor to that regulation made under the Accident Insurance Act 1998”. | |
By inserting in section 156a(2), after the words “under regulation 3 of the Accident Rehabilitation and Compensation Insurance (Earnings Definitions) Regulations 1992 (or any successor to that regulation)”, the words “or under section 457(2) of the Accident Insurance Act 1998 or regulations made under that Act”. | |
By inserting in paragraph (b) of the definition of the term “income tax”in section 157(10), after the words “section 115 of the Accident Rehabilitation and Compensation Insurance Act 1992”, the words “or section 285 of the Accident Insurance Act 1998”. | |
By inserting in section 167(2), after the words “section 115 of the Accident Rehabilitation and Compensation Insurance Act 1992”, the words “or section 285 of the Accident Insurance Act 1998”. | |
By inserting in section 168(1), after the words “section 115 of the Accident Rehabilitation and Compensation Insurance Act 1992”, the words “or section 285 of the Accident Insurance Act 1998”. | |
By inserting in section 169(1), after the words “section 115 of the Accident Rehabilitation and Compensation Insurance Act 1992”. the words “or section 285 of the Accident insurance Act 1998”. | |
By inserting in section 169(1), after the words “that section 115”, the words “or that section 285”. |
Schedule 9 Consequential Repeals and Revocations
Section 417(1)
Part 1 Acts Repealed
1992, No. 13—The Accident Rehabilitation and Compensation Insurance Act 1992.
1992, No. 136—The Accident Rehabilitation and Compensation Insurance Amendment Act (No. 2) 1992.
1993, No. 25—The Accident Rehabilitation and Compensation Insurance Amendment Act 1993.
1993, No. 55—The Accident Rehabilitation and Compensation Insurance Amendment Act (No. 2) 1993.
1993, No. 135—The Accident Rehabilitation and Compensation Insurance Amendment Act (No. 3) 1993.
1995, No. 1—The Accident Rehabilitation and Compensation Insurance Amendment Act 1995.
1996, No. 64—The Accident Rehabilitation and Compensation Amendment Act 1996.
1996, No. 106—The Accident Rehabilitation and Compensation Insurance Amendment Act (No. 2) 1996.
1997, No. 64—The Accident Rehabilitation and Compensation Insurance Amendment Act 1997.
1997, No. 75—The Accident Rehabilitation and Compensation Insurance Amendment Act (No. 2) 1997.
Part 2 Orders and Regulations Revoked
Section 417(2)
| Title | Statutory Regulations Serial Number |
|---|---|
| The Accident Compensation (Specialists Costs) Regulations (No. 2) 1990 | 1990/233 |
| The Accident Compensation (Anaesthetists Costs) Regulations 1990 | 1990/234 |
| The Accident Compensation (Audiologists Costs) Regulations 1990 | 1990/236 |
| The Accident Compensation (Radiologists Costs) Regulations 1990 | 1990/237 |
| The Accident Compensation (Dental Specialists Costs) Regulations (No. 2) 1990 | 1990/238 |
| The Accident Compensation (Dentists Costs) Regulations (No. 2) 1990 | 1990/239 |
| The Accident Compensation (Hyperbaric Oxygen Treatment Costs) Regulations 1990 | 1990/241 |
| The Accident Compensation (Referred Treatments Costs) Regulations 1990 | 1990/242 |
| The Accident Compensation (Pharmaceutical Costs) Regulations 1990 | 1990/243 |
| The Accident Compensation (Prescribed Artificial Limbs, Aids, and Prosthetic Appliances Costs) Regulations 1990 | 1990/244 |
| The Accident Compensation (Referred Treatments Costs) Regulations 1990, Amendment No. 1 | 1990/343 |
| The Accident Compensation (Referred Treatments Costs) Regulations 1990, Amendment No. 2 | 1990/353 |
| The Accident Compensation (Prescribed Amounts for Calculation and Payment of Levies) Order Revocation Order 1991 | 1991/280 |
| The Accident Compensation (Dental Specialists Costs) Regulations (No. 2) 1990, Amendment No. 1 | 1991/283 |
| The Accident Compensation (Dentists Costs) Regulations (No. 2) 1990, Amendment No. 1 | 1991/284 |
| The Accident Compensation (Radiologists Costs) Regulations 1990, Amendment No. 1 | 1991/285 |
| The Accident Compensation (Audiologist Costs) Regulations 1990, Amendment No. 1 | 1991/286 |
| The Accident Compensation (Hyperbaric Oxygen Treatment Costs) Regulations 1990, Amendment No. 1 | 1991/287 |
| The Accident Compensation (Referred Treatments Costs) Regulations 1990, Amendment No. 3 | 1991/288 |
| The Accident Compensation (Anaesthetists Costs) Regulations 1990, Amendment No. 1 | 1992/32 |
| The Accident Compensation (Specialists Costs) Regulations (No. 2) 1990, Amendment No. 1 | 1992/33 |
| The Accident Rehabilitation and Compensation Insurance (Costs Regulations Amendment) Regulations 1992 | 1992/111 |
| The Accident Rehabilitation and Compensation Insurance (Medical Misadventure) Regulations 1992 | 1992/154 |
| The Accident Rehabilitation and Compensation Insurance (Ordinary Residence Definition) Regulations 1992 | 1992/156 |
| The Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, or Physical Rehabilitation) Regulations 1992 | 1992/203 |
| The Accident Compensation (Damaged or Lost Artificial Limbs, Aids, Clothing, and Spectacles Costs) Regulations Revocation Order 1992 | 1992/217 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Child Care) Regulations 1992 | 1992/260 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) Regulations 1992 | 1992/261 |
| The Accident Rehabilitation and Compensation Insurance (Treatment and Related Transport Overseas Costs) Regulations 1992 | 1992/267 |
| The Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992 | 1992/268 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Modifications to Residential Premises) Regulations 1992 | 1992/269 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992 | 1992/270 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992 | 1992/282 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Training for Independent Living) Regulations 1992 | 1992/373 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) Regulations 1992, Amendment No. 1 | 1992/374 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Education Support) Regulations 1993 | 1993/178 |
| The Accident Compensation (Anaesthetists Costs) Regulations 1990, Amendment No. 2 | 1993/196 |
| The Accident Compensation (Audiologists Costs) Regulations 1990, Amendment No. 2 | 1993/197 |
| The Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, or Physical Rehabilitation) Regulations 1992, Amendment No. 1 | 1993/198 |
| The Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992, Amendment No. 1 | 1993/199 |
| The Accident Compensation (Dental Specialists Costs) Regulations (No. 2) 1990, Amendment No. 2 | 1993/200 |
| The Accident Compensation (Dentists Costs) Regulations (No. 2) 1990, Amendment No. 2 | 1993/201 |
| The Accident Rehabilitation and Compensation Insurance (General Practitioners Costs) Regulations 1993 | 1993/202 |
| The Accident Compensation (Hyperbaric Oxygen Treatment Costs) Regulations 1990, Amendment No. 2 | 1993/203 |
| The Accident Compensation (Pharmaceutical Costs) Regulations 1990, Amendment No. 1 | 1993/206 |
| The Accident Compensation (Prescribed Artificial Limbs, Aids, and Prosthetic Appliances Costs) Regulations 1990, Amendment No. 1 | 1993/207 |
| The Accident Compensation (Radiologists Costs) Regulations 1990, Amendment No. 2 | 1993/208 |
| The Accident Compensation (Referred Treatments Costs) Regulations 1990, Amendment No. 4 | 1993/209 |
| The Accident Compensation (Specialists Costs) Regulations (No. 2) 1990, Amendment No. 2 | 1993/210 |
| The Accident Rehabilitation and Compensation Insurance (Treatment and Related Transport Overseas Costs) Regulations 1992, Amendment No. 1 | 1993/212 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992, Amendment No. 1 | 1993/213 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Attendant Care) Regulations 1993 | 1993/214 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Child Care) Regulations 1992, Amendment No. 1 | 1993/215 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) Regulations 1992, Amendment No. 2 | 1993/216 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Modifications to Residential Premises) Regulations 1992, Amendment No. 1 | 1993/217 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992, Amendment No. 1 | 1993/218 |
| The Accident Rehabilitation and Compensation Insurance (Supplementary Treatment Costs) Regulations (No. 2) 1993 | 1993/246 |
| The Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992, Amendment No. 2 | 1993/301 |
| The Accident Rehabilitation and Compensation Insurance (Child Care for Children of Deceased Persons) Regulations 1993 | 1993/396 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Child Care) Regulations 1992, Amendment No. 2 | 1993/397 |
| The Accident Compensation (1aboratory Services Costs) Regulations Revocation Order 1994 | 1994/104 |
| The Accident Rehabilitation and Compensation Insurance (Overseas Visitors Costs) Regulations 1994 | 1994/105 |
| The Accident Rehabilitation and Compensation Insurance (Medical Misadventure) Regulations 1992, Amendment No. 1 | 1995/68 |
| The Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992, Amendment No. 3 | 1995/69 |
| The Accident Compensation (Anaesthetists Costs) Regulations 1990, Amendment No. 3 | 1996/293 |
| The Accident Compensation (Audiologists Costs) Regulations 1990, Amendment No. 3 | 1996/294 |
| The Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992, Amendment No. 4 | 1996/295 |
| The Accident Rehabilitation and Compensation Insurance (General Practitioners Costs) Regulations 1993, Amendment No. 1 | 1996/297 |
| The Accident Compensation (Hyperbaric Oxygen Treatment Costs) Regulations 1990, Amendment No. 3 | 1996/298 |
| The Accident Compensation (Pharmaceutical Costs) Regulations 1990, Amendment No. 2 | 1996/300 |
| The Accident Compensation (Prescribed Artificial Limbs, Aids, and Prosthetic Appliances Costs) Regulations 1990, Amendment No. 2 | 1996/301 |
| The Accident Compensation (Radiologists Costs) Regulations 1990, Amendment No. 3 | 1996/302 |
| The Accident Compensation (Referred Treatments Costs) Regulations 1990, Amendment No. 5 | 1996/303 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Education Support) Regulations 1993, Amendment No. 1 | 1996/305 |
| The Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Training for Independent Living) Regulations 1992, Amendment No.1 | 1996/306 |
| The Accident Compensation (Specialists Costs) Regulations (No. 2) 1990, Amendment No. 3 | 1996/307 |
| The Accident Rehabilitation and Compensation Insurance (Overseas Visitors Costs) Regulations 1994, Amendment No. 1 | 1996/308 |
| The Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 | 1997/85 |
| The Accident Rehabilitation and Compensation Insurance (General Practitioners Costs) Amendment Regulations 1997 | 1997/133 |
This Act is administered in the Department of Labour.
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Versions
Accident Insurance Act 1998
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