Judge backs ACC decision

Penny Hoare has been fighting ACC over care for her severely disabled son and has won some battles but she has lost the most recent.

A judge has upheld ACC’s interpretation of earlier law changes that prevent Hoare’s son, Kurtis Larkin, receiving backdated accident compensation for most of the first 10 years of his life.

Larkin was left severely disabled when the decision to deliver him by caesarean section was delayed and he was deprived of oxygen. He is now in his mid-20s and has cerebral palsy, quadriplegia, and epilepsy.

Larkin is now entitled to funding for 24-hour care based on the treatment injury he suffered at birth but the law did not allow for it to be backdated to between 1993 to 2002, a judge has decided.

The law covering accident compensation has changed several times, each time with different ‘‘transitional provisions’’.

ACC is only able to pay compensation if the law covering its functions allows it.

In 2005, an application was made on Larkin’s behalf for ACC.

ACC began providing attendant care in May 2011.

Later in 2011, ACC agreed to backdate compensation for attendant care to April 2002 when a new law came into force but it said it could not legally go back to the period involved in the current case.

However, both sides agreed he was entitled to compensation from his birth in 1992 until the middle of 1993, when there was a law change.

In a decision from the High Court in Wellington, Justice Karen Clark agreed with ACC that in the disputed period the law clearly distinguished between the people who were receiving compensation and those who were entitled to receive compensation, with the result Larkin was not included.

For the period at issue, Parliament had decided on a scheme where compensation was only payable when an application was made for cover and particular entitlements.

An application for Kurtis was not made until 2005.

The judge said ACC’s lawyer had emphasised it recognised the seriousness of Larkin’s injuries and the dedicated care his family had given him.

‘‘ACC’s understanding of its powers, nevertheless, is correct. There is no legislative oversight. All of the compensation available to be paid during, and prior to, the 2001 act has been and continues to be paid,’’ the judge said.