Landmark win for asbestos lung cancer claimants

Deanna (right) with her father Phillip (left). Trevarthen would hug her father when he got home from work, unknowingly being exposed to asbestos

A landmark ruling means a small but significant number of Kiwis who have developed terminal lung cancer through secondary exposure to asbestos will now be covered by ACC.

John Miller Law solicitor Beatrix Woodhouse, who had been working on this case for the past three years, said “This case has been my leading interest for a few years, so I am pleased with the result – but this is obviously not about me. There are many wars being waged within the field of asbestos-related conditions, so this is a small win.”

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Family continues fight for asbestos cancer sufferer (2019)

Deanna Trevarthen, who contracted mesothelioma, died in 2016

Deanna Trevarthen, who died in 2016 at the age of 45, was one of New Zealand’s youngest sufferers of mesothelioma, or asbestos-related lung cancer.

However, ACC says cover for the illness is only available for people who inhale asbestos at work, not in other circumstances. Ms Trevarthen’s claim had earlier been turned down by an ACC reviewer and a District Court judge.

Ms Trevarthen’s father worked as an electrician and she was exposed to asbestos as a child, when he came home after work and hugged her and played with her. She also sometimes visited building sites where the toxic material was present.

Her family’s lawyer, Beatrix Woodhouse told Justice Mallon that if ACC had covered Ms Trevarthen it could have helped her live longer.

“One advantage of ACC cover is treatment such as Keytruda and … the effect of this treatment is it can extend one’s life. Therefore, ACC cover potentially equates to prolonging one’s life.”

Ms Woodhouse told the court mesothelioma almost exclusively arises from inhalation of asbestos and the question was could Ms Trevarthen’s exposure to it be classed as an accident under the ACC legislation.

Justice Mallon reserved her decision. We will keep you posted…

Represented by JOHN MILLER LAW

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Successful appeal after ACC dismissed claim linking rape and schizophrenia (2019)

A woman’s appeal against ACC’s decision to decline funding for schizophrenia treatment after she was raped has been upheld.

The woman’s application for help had been turned down in 2016 on the grounds her condition could not substantially be attributed to a sexual assault in 1988 when she was aged 37.

In the Wellington District Court Judge CJ McGuire concluded the rape had meaningfully contributed to her diagnosed schizophrenia.

John Miller, principal for John Miller Law, said the outcome was a “significant” decision and would likely be a ruling his firm would refer back to in future cases. He was hopeful the decision reflected a changing attitude towards mental health cases.

Represented by JOHN MILLER LAW

Read the article here.

Are you paying too much in ACC Levies? (2019)

Every employed person in New Zealand pays levies, yet they are poorly understood. ACC levies effectively call on earners to fund part of the accident compensation scheme. They are calculated according to “business industry classification” codes (BICs) and “classification units” (CUs). The idea is that higher risk industries contribute more to the scheme in levies. You choose your BIC when you register for GST or file a tax return. ACC then assigns you a “classification unit” based on your business’ activity and your level of risk. However, ACC do not always get it right.

John Miller Law can help you by looking at your levies situation and advising you on whether your levy rate is correct. Even if it is, we can look at whether there are ways you can reduce your bill. If we cannot negotiate a change in levies with ACC, we can represent you or your business in challenging the decision through the review process. Since your levy is applied to each $100 of liable earnings, small adjustments in your levy rate can have a significant effect on your overall bill. The ACC legislation has different rules for self-employed persons as well, which can result in the wrong CU being applied when the person’s levies bill is prepared.

Recent case example

A self-employed (NZ) film worker came to us recently for advice on her levies bill. She had previously worked in two roles, the first was as a coordinator looking at what material feature films could legally use. The second was also as a coordinator, but she was managing and outsourcing work for a company. ACC applied the “Creative artists, musicians, writers, and performers” CU to her first role, and the “Motion picture and video production and other motion picture and video activities (not elsewhere classified)” CU to her second. The problem with this was that a self-employed person’s levy should be based on the nature of the work they do (in her case, coordinating), not the business or context in which the work was done (film or creative arts). We advised her to seek a different CU, and she eventually secured a change to an Office Administration CU along with a reduction in her levies bill.  

If you have concerns about your levies, or if you would just like an opinion, get in touch with us for an application pack.   

Woman battered as a baby, by birth mother, successfully receives cover for her mental injury (2018)

Justice David Collins says the District Court needs to reconsider the woman’s case because a legal error was made the first time.

Soon after she was born, the appellant was seriously assaulted and injured by her birth mother. The appellant’s physical injuries were treated and the appellant healed. However, when the appellant was five years old, her adoptive parents told her about the injuries her birth mother had inflicted. From that point onwards, the appellant suffered a pain disorder and developed a number of psychological conditions, which fell within the definition of “mental injury” in s 27 of the Accident Compensation Act 2001 (the Act).

The ACC declined cover for the appellant’s mental injuries on the basis that they were not caused directly by her physical injuries. Instead they were caused by the appellant learning of her injuries and the circumstances in which they were inflicted. This decision was upheld in the District Court.

At the High Court, it was submitted on behalf of the appellant (inter alia) that there was no requirement for direct causation, which had not been drafted into the legislation. It was also submitted that strong policy considerations supported broad mental injury cover, operating in a sensible way.  After all, the appellant shouldn’t have been denied cover because her foster parents were transparent about the injuries she sustained as a baby!

The High Court found that the appellant need not establish direct causal link between her physical injuries and mental injuries in order to qualify for cover under s 26(1)(c) of the Act.  Instead,  the Court held that s 26(1)(c) will require that the claimant’s physical injuries are both a factual and legal cause of his or her mental injuries. These requirements will be satisfied when two tests are met. First (and subject to possible exceptions), the “but for” test must be satisfied. Second, the physical injury must “materially contribute” to the claimant’s mental injury. Material contribution means the physical injury must be the cause of the mental injury in some genuine or meaningful way, rather than in just a trivial or minor way.  The High Court noted that the District Court had erred in law in not applying the appropriate legal test of causation, and it was directed that the appellant’s case be remitted back to District Court for rehearing.

Represented by JOHN MILLER LAW

Reparation for Life Changing Harm (2017)

Victims of offending are now eligible to receive greater awards of reparation following an amendment of the law to allow recovery of consequential loss not covered by ACC. Section 32(5) of the Sentencing Act 2002 now allows reparation to be awarded for the full difference between a victim’s full earnings and the 80% that the injured claimant may receive under ACC. In the decision of WorkSafe NZ v Wai Shing (2017), the victim was a 27 year old harvester with severe spinal injuries, deemed never able to work again. His employer was found guilty of breaching the Health and Safety in Employment Act 1992. He was awarded $452,600, discounted by 50% to take into account to the ethos of ACC. In the end, the court awarded the victim $226,300 with an additional $110,000 for emotional harm.

Faulty Hips v ACC (2017)

Four New Zealanders suffering complications from faulty hip implants have won the chance to appeal against the decision to deny them compensation. After a lengthy legal battle, John Miller Law, representing the four patients, will go to the High Court to argue that the implantation of a defective prosthesis is a physical injury.

“We believe that having a defective implant in your body is a physical injury and, by being defective, that has ACC cover as a treatment injury,” says Brittany Peck of JML. “it is not proper treatment to have a defective device implanted or remain in your body. Some of them are still suffering and have ongoing pain and high levels of metal in their blood.”

Represented by JOHN MILLER LAW
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“Dad’s Deadly Embrace” Asbestos Case (2017)

Simple hugs between a father and a daughter are contributed to the cancer that killed Deamma Trevarthen. Trevarthen, died in 2016, aged 45, was one of the youngest in New Zealand to die from mesothelioma, an aggressive form of cancer directly linked to asbestos exposure. The legal firm taking the case, John Miller Law, aims to pursue the claim as an accident relating to the inhalation of a foreign object, rather than the established route of a work-related accident. The case has the potential to set a legal precedent, possibly allowing hundreds of other mesothelioma sufferers to lodge a claim. Beatrix Woodhouse, the lawyer representing the family, said ACC’s appointment of a Queens Counsel to handle it was unusual at a district court level, and was probably an attempt to “stamp out” the case from the outset. The case is scheduled to begin in Wellington District Court in September.

Represented by JOHN MILLER LAW
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Toomey v ACC (2017)

Bill Toomey described the post-quake scene at the PGC building in February 2011 as “horrific”

In the aftermath of February 2011 earthquakes in Christchurch, Mr Toomey, a self employed builder, courageously drove to the city centre to see whether he could be of any assistance. The Fire Service called upon his building expertise to help them in enter the PGC building and assist in the rescue of those who were trapped and seriously injured. Sometime after these disturbing events, Mr Toomey was diagnosed with PTSD, however ACC declined to cover his mental injury. In the District Court hearing, Ms Newman successfully argued that Mr Toomey was not working as a volunteer, but that he was at work because he was under the direction of the Fire Service, and although he was not being paid, he was self-employed, and a self-employed person is not paid in each and every situation even though they are working. The Court agreed, finding that there should not be a disincentive for someone like Mr Toomey not to co-operate with the Fire Service or the Police during emergencies where their skills were called upon. ACC will now cover his injury as a work related accident.

Represented by JOHN MILLER LAW
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MC v ACC and New Zealand Defence Force (2016)

A veteran who came home from Afghanistan disturbed by what he saw in war as well as in his police career is finally to receive mental injury cover for his PTSD.

In 2009, MC was into his second tour of Afghanistan when his base was subjected to fatal rocket attacks. Amongst other atrocities, he also witnessed the explosion of a military helicopter carrying 16 people. After he returned home, he was diagnosed with PTSD and Depression. ACC and the NZDF (as an ACC accredited employer) declined mental injury cover for our client on the grounds that his PTSD was due to a series of events, not a single event, and that the legislation did not cover a gradual process injury of this type. We argued that an event could encompass a series of discrete events that were all contributory, and that his tour of duty of Afghanistan could be considered an event in itself. The judge questioned the interpretation, agreeing with JML that being on duty on a hostile and dangerous environment did amount to a single incident and that he was entitled to cover because his Afghanistan tour caused him mental injury.

Represented by JOHN MILLER LAW
Veteran’s win against ACC opens the way for others
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Ex-soldier wins ‘watershed’ post-traumatic stress case –