In August 2009 Marjan Hristovski was on holiday in New Zealand when he slipped at McDonald’s and injured his shoulder and elbow. Photo / Getty Images
In August 2009 Marjan Hristovski was on holiday in New Zealand when he slipped at McDonald’s and injured his shoulder and elbow. Photo / Getty Images
A tourist from Macedonia who claimed he was permanently disabled after he slipped and fell at a McDonald’s restaurant in New Zealand has lost his latest bid for compensation, 14 years after the accident.
The District Court has dismissed the appeal by Marjan Hristovski who is seeking compensation for permanent disability he claimed occurred as a result of the fall in 2009.
He says he’s getting worse and can’t afford medical treatment himself, despite having already received partial compensation.
In August 2009 Marjan Hristovski was on holiday in New Zealand when he slipped in McDonald’s and injured his shoulder and elbow.
He received ACC cover for a sprain and contusion to his right shoulder and elbow, but nine years later he went back to ACC, wanting a lump sum for permanent disability, and supplied medical evidence to back his claim he was permanently disabled.
Lump-sum compensation for permanent impairment is a one-off, non-taxable payment on top of other ACC entitlements.
Lump-sum compensation for permanent impairment is a one-off, non-taxable payment on top of other ACC entitlements. Photo / RNZ
ACC laws define impairment as meaning “a loss, loss of use, or derangement of any body part, organ system, or organ function”.
ACC’s deputy chief executive of service delivery, Amanda Malu told NZME a client must be assessed as at least 10 per cent impaired to receive a lump sum payment for permanent impairment.
Rates start at $3902 (for 10 per cent impairment) and go up to $156,106 for a person assessed as having 80 per cent impairment.
ACC’s own assessment in 2018 concluded that Hristovski had an impairment rating of 20 per cent and awarded lump sum compensation on that basis.
Hristovski challenged the decision, so ACC had its decision backed by a peer review.
Not to be deterred, Hristovski tried again but was unsuccessful in both seeking a review of the assessment, and then an appeal of the 20 per cent assessment.
ACC refused to reconsider its earlier decision on the basis that there was no evidence that that decision was wrong and that there was no evidence of any deterioration of Hristovski’s condition since the 2018 assessment.
Hristovski told the court during the appeal that his injuries were getting worse through no fault of his own and that he could not afford treatment.
He said he wanted to get help and a solution in order to continue with his life, but everything was “falling apart”.
The lawyer for ACC acknowledged that Hristovski had problems with anxiety and depression. He also had problems walking, and a problem with his hand, but ACC was limited in what it could do.
Hristovski then sought a review of that refusal, but the application was dismissed, so he filed a second appeal.
He included further medical evidence to show he had deteriorated since 2018, which resulted in ACC agreeing to consider again his whole-person impairment.
But this fresh assessment concluded that the original assessment should remain unchanged, as the deterioration in Hristovski’s condition since 2018 was not accident related.
Hristovski again told the court of his problems and his lack of money, saying: “I just need some help to continue my life as normal as I can.”
The District Court dismissed the appeals in March last year.
Judge Chris McGuire said the latest appeal, dismissed this month, remained the same in substance as the previous, namely the lump sum assessment of 20 per cent-covered impairment was incorrect.
The second reason it failed was because there were no decisions to appeal - the “decision” under appeal was not a reviewable “decision” by law.
In this case, because ACC had accepted cover for the elbow and shoulder injuries, that meant Hristovski was assessed and peer-reviewed as having “20 per cent whole person impairment”.
Judge McGuire said the court had to be careful in deciding the meaning of an ACC “decision” in this context, otherwise, rights of review could accrue on a never-ending basis by an unsuccessful claimant.
“The staff of the respondent [ACC] must be able to say that such a decision will not be reopened without thereby creating fresh rights of review and appeal.
“In other words, litigation must come to an end when proper review and appeal procedures have been followed,” Judge McGuire said.
NZME tried to reach Hristovski for comment via social media.
An earlier version of this story contained outdated figures on the lump sum payments provided by ACC. The error is regretted.
