Tourist ‘permanently disabled’ in McDonald’s fall loses latest bid for more compensation

By Tracy Neal, reporter for Open Justice NZ Herald

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In August 2009, Marjan Hristovski was on holiday in New Zealand when he slipped at McDonald’s and injured his shoulder and elbow. Archive photo

A tourist from Macedonia who claimed he was permanently disabled after slipping and falling at a McDonald’s restaurant in New Zealand has lost his last claim for compensation 14 years after the accident.

Wellington District Court has dismissed the appeal of Marjan Hristovski, who is seeking compensation for a permanent disability he says arose as a result of the 2009 fall.

He says his condition is getting worse and he cannot afford medical treatment, although he has already received partial compensation.

In August 2009, Marjan Hristovski was on holiday in New Zealand when he slipped at McDonald’s and injured his shoulder and elbow.

He received ACC insurance for a sprain and contusion to his right shoulder and elbow, but nine years later he returned to ACC for a permanent disability lump sum and presented medical evidence to support his claim that he was permanently disabled.

Lump sum permanent disability compensation is a one-time non-taxable payment in addition to other ACC entitlements.

The ACC Laws define impairment as “loss, loss of use, or impairment of a body part, organ system, or organ function.”

Under the current rates, permanent disability lump sums start at just under $3,000 for a 5 percent disability and up to $226,000 for a person who is 85 to 100 percent disabled by injury.

ACC’s own assessment in 2018 concluded that Hristovski had a 20 percent impairment and awarded lump sum compensation on that basis.

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Hristovski challenged the decision, so ACC had its decision peer-reviewed.

Not to be deterred, Hristovski tried again but was unsuccessful when he requested both a review of the rating and an appeal of the 20 percent rating.

ACC refused to reconsider its previous decision because there was no evidence that decision was wrong and there was no evidence of a deterioration in Hristovski’s condition since the 2018 assessment.

Hristovski told the court during appeal that his injuries were worsening through no fault of his own and he could not afford treatment.

He said he wanted help and a solution to get on with his life but everything was “falling apart”.

ACC’s attorney acknowledged that Hristovski had issues with anxiety and depression. He also had trouble walking and a problem with his hand, but ACC was limited in what he could do.

Hristovski then requested a review of that denial, but the request was denied, so he filed a second appeal.

He added more medical evidence to show his condition had worsened since 2018, leading to ACC agreeing to reassess his full-body impairment.

However, this new assessment concluded that since the deterioration in Hristovski’s condition since 2018 was not accident-related, the original assessment should remain unchanged.

Hristovski again told the court about his problems and lack of money, saying, “I just need some help to get on with my life as normally as possible.”

The Wellington District Court dismissed the appeals in March last year.

Judge Chris McGuire said the most recent appeal, dismissed this month, remained essentially the same as the previous one, namely that the blanket assessment of a 20 percent disability coverage was wrong.

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The second reason for failure was that there were no appellate decisions – the “decision” under appeal was not an appealable “decision” under the law.

In this case, it meant that Hristovski was assessed and assessed with a “20 percent impairment of the whole person” because ACC had accepted coverage for the elbow and shoulder injuries.

Judge McGuire said the court must be cautious in deciding the meaning of an ACC “decision” in this context, as otherwise an unsuccessful plaintiff could be entitled to endless review rights.

“Respondent’s staff [ACC] say that such a decision will not be resumed without creating new means of review and redress.

“In other words, the litigation must end when the proper review and appeal procedures have been completed,” Judge McGuire said.

NZME tried to reach Hristovski for comment on social media.

* This story first appeared on the NZ Herald website.


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