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Nz Law Society - Acc Committee Report 13/09/04

#1 User is offline   ernie 

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Posted 19 October 2004 - 02:46 PM

ACC Committee report - 13 September 2004

The Injury Prevention, Rehabilitation and Compensation Amendment Bill (No 3) was introduced on 2 August and has been referred to the Health Committee. The proposed legislation is designed to remove the fault requirement from ACC’s medical misadventure provisions.
The ACC Committee supports amendment to the existing provisions providing cover and entitlements for people who have suffered medical misadventure. The new provisions relating to "treatment injuries" will operate more fairly and will bring personal injury from "medical accidents" into line with other accidental injuries covered by the ACC scheme. However, the committee will be making submissions on the wording of some of the bill’s provisions.

The committee believes the bill will result in litigation because it fails to define with sufficient clarity the elements needed to determine a claim. These elements include "accident, treatment and treatment injury". For example:

Clause 10(1)(iii) – Accident
The proposal to include the expression "involves a twisting movement of the body" demonstrates the futility of attempting to define "accident" in an all-inclusive way. It is not clear whether the expression includes twisting of part of the body (eg, rotating a limb or digit) or whether it relates only to twisting the head, neck, torso or pelvis (ie, the body)). Limiting cover to "twisting movements" raises the issue of why other types of movement should be excluded from cover (eg, the dislocation of a vertebra by an internal force such as sneezing or coughing). If a sneeze or cough caused a twisting movement of the body, would a consequent injury be covered?

The committee considers it would be preferable if s25 of the principal act was repealed and the common law definition of "accident" (namely "an unlooked-for mishap or an untoward event that was not expected or designed") was adopted as the statutory definition. Such a definition, which has been in the common law for over 100 years, is unlikely to lead to a significant increase in the number of claims.

The committee recently wrote to the ACC requesting advice on its policy in cases where a person who has cover for personal injury (which may be a gradual process injury) has been diagnosed with a terminal condition.
The committee was concerned that the person may be entitled to an independence allowance or a lump sum payment but in either case the statute refers to an assessment being made by the corporation once the condition has "stabilised". Stabilised usually means that the condition is unchanging but in some cases that would not occur until the patient dies. The committee’s concern is that a claimant could be denied entitlement when a condition has been diagnosed as fatal and has not "stabilised".

The ACC responded saying that where the condition is terminal the corporation uses a different approach, making an assessment where the condition is "unlikely to improve in the next 12 months".

The ACC has produced guidelines for assessors that are consistent with the committee’s views. These guidelines are available from the ACC’s website providers/resources/ under the ACC User Handbook heading.

The committee also sees a problem where a claimant has died before an assessment has been made and proposes to take this issue up with the ACC and, if necessary, with the Minister.

Sustainable earnings
The committee has contacted the Department of Labour and the Ministry of Social Development for further information on a research project being undertaken between ACC, the department and the ministry. The project is looking at whether former ACC claimants return to work or go on to receive a benefit after they leave the accident compensation scheme.

The Department of Labour has, in conjunction with other agencies, been working over the last year on a project with the broad title "Return to Sustainable Earnings", which is designed to find out more about employment and other related outcomes for ACC claimants.

There are three main elements to the project. The first is a review of programmes and strategies used in different jurisdictions to assist injured people into work. A report, Strategies to Return Injured Workers to Sustainable Earnings – an International Literature Review (July 2003) is available on the Department of Labour’s website at under publications (research).

The Department of Labour is working with the ACC and the Ministry of Social Development to improve information and services for claimants who are moving from the ACC scheme onto a benefit. It is also undertaking a review and analysis of current information sources on outcomes for ACC claimants, with the aim of identifying gaps and potential improvements or enhancements to existing data instruments.

The committee has asked to be kept informed of progress and has offered its services to provide input and feedback.

Hilary Unwin

NZLS Secretariat

#2 User is offline   jocko 

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Posted 19 October 2004 - 09:51 PM

The Department of Labour is working with the ACC and the Ministry of Social Development to improve information and services for claimants who are moving from the ACC scheme onto a benefit. ??????????????????????

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Posted 20 October 2004 - 09:40 AM

going back thru the years, some inteesting bits turn up.

when the 1992 act changes were introduced, it was "promoted" by the
law society in conjunction with the Bank of NZ....

type into search engines the names of ACC management, interesting items pop up.

while acc have diverted your attention to steve longford, what else are they up to in the background.

one begins to ponder just how much of a tangled web of deals may have been done when we can see that the Privacy Commissioner is fobbing off genuine complaints, NZ Human Rights are not properly enshrined into law, ACC issues being exposed year after year, OSH being shown for what it is - useless

highly paid public servants saying they need to be paid a lot more, and over the years theres been a lot of public servants walk away with very nice golden handdshakes while you all pay the social price for it.

of all the former and current politicians, how many are/were lawyers?

#4 User is offline   ernie 

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Posted 25 October 2004 - 12:36 PM

Here is what the Law Society had to say in its Code of ACC Claimants' Rights submission - essentially they predicted it would be the toothless tiger we now know it is.

Submissions on the Draft Code of ACC Claimants' Rights

The Accident Compensation Committee of the Society (the committee) welcomes the opportunity to make submissions on the Draft Code of ACC Claimants’ Rights (the Code).

General Comments

The committee has a number of concerns about the draft Code. In particular, these concerns relate to the Code’s status and the lack of financial remedies available to claimants where the ACC is in breach of its obligations.

It is imperative to determine at the outset the status, functions, powers and accountability of the proposed complaints service in relation to the operational arm of ACC and in relation to ACC agents and third party providers.

The purpose of the Code is to give claimants an opportunity to have their reasonable expectations as to how the ACC should deal with their claim considered by an independent authority. If the complaints service is merely part of the operational arm of ACC it will mean that the ACC is acting as investigator, judge and jury in relation to complaints. This defeats the main purpose of the Code.

Until the confusion about the status, functions and powers of the complaints service are addressed, it is difficult to discuss the appropriateness of the Code.

The committee is also concerned that the Code fails to provide for any form of monetary compensation or sanctions for breach. The "rights" enunciated in the Code appear to be "lip service" and do not extend beyond what is presently enjoined upon the Corporation by law. There is little in the Code that is not already implicit in the present complaints investigative system.

For every right, there is a correlative duty. If losses flow from a breach of a duty, then those losses must be made good by the person or body responsible for such losses. Pecuniary loss must be made good.

The Code provides no adequate remedy for breaches of obligations occasioning loss of any kind. The reasons for non-provision of financial remedies, as stated in Part 4, are not convincing. Unless financial remedies are to be provided for breaches occasioning loss, the Code will constitute a wholly ineffective instrument for the provision of proper redress for wrongs, leaving complainants to seek such rights as they may have at common law or statute.

Section 40(1) of the Injury Prevention, Rehabilitation and Compensation Act 2001 (the Act) provides that one of the purposes of the Code is to provide the procedure for lodging and dealing with complaints about breaches and to provide "for the consequences of and remedies for, a breach of the Code by the Corporation".

The Code does not make adequate provision for the "consequences of and remedies for" breach by the Corporation. It is therefore incomplete. The committee considers it unacceptable that the Corporation may seek to rely on the commentary under Part 4, which states "Financial remedies may act against the spirit of the Code by shifting the focus from how parties can resolve issues to seeking a financial remedy".

If a claimant has suffered a pecuniary or non-pecuniary loss as a result of a breach of an obligation owed to that claimant by the Corporation, then the letter and spirit of section 40 command a remedy, namely monetary compensation. Proven losses may only be remedies by the making good of such losses. The only "issue" to be "resolved" is how the losses flowing from the breach are to be made good.

The committee considers it regrettable that no provision has been made for payment of costs or out-of-pocket expenses incurred by claimants. At the least, interest should be payable on money wrongly withheld.

Specific Comments

Part 1 – Preamble

It should be stated clearly in the Preamble that while a complaint cannot be made under the Code in relation to dealings the ACC had with claimants prior to the date the Code comes into effect, the Code applies from the date it comes into effect to all dealings the ACC has thereafter with claimants whether under the Act or under prior Acts. (See comments on Application of Code, which refers to the ACC in all its dealings with claimants).

Part 2 - Rights and Obligations of this Code

While this Part sets out a number of rights which the claimant is given, it does not set out the obligations of the ACC. The Code merely states a series of expectations which are not expressed in the form of legal obligations on the ACC to perform in a way which will implement the claimant’s right. The committee makes the following recommendations:

Right 1
The right of the claimant has been expressed in the statement "What you can expect from us:". It is recommended that this be changed to:

The Corporation will:

treat you with honesty and courtesy;
treat you with dignity; and
listen to you and consider your views.
The same approach should be adopted in relation to each of the Rights given in the Code – there should be a positive obligation imposed on the ACC to take action to implement the Right. It is the failure of the ACC to meet its legal obligation under the Code which will form the basis of a complaint.

Right 2
The obligations of the ACC under this right only extend to issues which arise after the claim for both cover and entitlements has been accepted.

It is most important that fairness in dealing with the claimant applies to the actual handling of the claim for cover and entitlements and not only to the provision of services, response to disability and sensitivity to the claimant’s physical and emotional problems. The obligations imposed on the ACC should include a statement that the ACC will act fairly in:

receiving and considering any claim for cover and/or entitlements;
requiring the claimant to undergo any examination or treatment in relation to a claim; and
requiring the claimant to provide information relating to a claim.

Right 3
This right relates to all culture values and beliefs. The committee questions the need to specifically refer to Maori values and beliefs which could be regarded as more important than other cultural values and beliefs.

Right 4
It should be made clear that the right to a support person applies to all contact between the claimant and the ACC, including the making of a claim for cover and entitlements as well as representation in respect of any issue between the claimant and ACC.

Right 5
It is not clear what "openly" means in relation to "effective" communication. The right should state that the ACC must communicate with the claimant in the most effective way having regard to the claimant’s background circumstances, education, injuries and location. For example, the most effective communication with a brain-damaged claimant may be through his or her family or medical/legal adviser. Communication may be more effective by telephone or email than by post if the person is in a remote location where mail is not delivered regularly. It is recommended that the ACC obligation state:

The ACC will communicate with the claimant in the most effective way having regard to his/her:

background including ethnic background;
injuries; and

Right 6
The ACC should be under an obligation to inform fully a claimant of all his or her rights regarding cover and entitlements and to provide the claimant with correct information. The committee refers the Corporation to a recent decision of the English Court of Appeal Merrett v Babb 15/02/01 where Aldous and May LJJ and Wilson J held that an employee was personally liable for providing incorrect information.

Right 7
The ACC (and its agents and third party providers) should be under an obligation to provide an environment where the claimant’s privacy will be maintained. Too often claimants’ affairs are discussed in a place where they can be overheard and where privacy cannot be maintained. The ACC (and its agents and third party providers) should also be under an obligation to ensure that no confidential private information of the claimant’s condition or affairs is communicated to any unauthorised person or organisation.

Right 8
This right should include a right to an environment which will protect the claimant’s privacy. (see comments, Right 7.)

Part 3 - Lodging and dealing with complaints

Dealing with a complaint
Reference is made under this sub-heading to the "complaints service". The committee notes that there is no mechanism for the establishment of such a service in the Code or in the Act. It is recommended that the Corporation clarify the following in relation to the proposed complaints service:

What is the function of the complaints service?
What is its status within the structure of ACC?
Where does it sit in relation to the operational arm of ACC?
What powers does it have in relation to ACC agents or third party administrators?
To whom is it accountable - the CEO of ACC or the Board of ACC?
Making a decision
The Code provides that the complaints service "will issue a decision". However the committee questions where the power to issue decisions has been derived from. It is noted that s134 of the Act provides that a right of review exists only in relation to decisions of the Corporation.

Clarification of the functions and powers of the complaints service is recommended:

Is the complaints service subject to s54 of the Act? (ie decisions are to be made by the Corporation on reasonable grounds and in a timely manner.)
Can the claimant make representations or provide further evidence?
Who will make/issue decisions?
Where does the complaints service derive its power to direct the ACC (or its agents and third party providers) to provide an apology or to take any particular action? (see Code Part 4 Remedies).
Is the complaints service replicating the review process?
Is it merely another administrative function of the ACC claims management system?
Either the Code or the Act should include provision for spelling out in detail the status, functions, powers, management and accountability of the complaints service. Section 46 of the Act provides that the Code is a regulation, therefore there is a requirement for the position of the complaints service within ACC to be clearly stated. The committee is of the view that it is implicit in the draft Code that the complaints service stands outside the normal operational arm of ACC. This is by no means clear and should be considered further.

Part 6 Claimant’s Right of Review

This Part refers to the right of a claimant to apply for a review of a decision made by the ACC, however Part 3 refers to the complaints service issuing a decision. There does not appear to be provision for a claimant to seek a review of a decision of the complaints service. This should be expressly stated under Part 6.

There is no right of appeal to a District Court against a review decision on a decision by the Corporation under the Code on a complaint (s149(3)). This should be made clear in Part 6. It is also essential that there is nothing in the Code which reduces or interferes with rights of review and appeal already contained in the Act. It is therefore recommended that the following be added to Part 6:

There is no right of appeal to a District Court on a review decision on a decision by the Corporation under the Code on a complaint. Nothing in this Code shall be construed as taking away rights of review and appeal that are contained in the Act.

David Carden

#5 User is offline   hukildaspida 

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Posted 04 December 2012 - 01:06 AM


#6 User is offline   hukildaspida 

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Posted 03 July 2014 - 01:27 PM

This is the same David Carden that was party to ACC Code of Claimant Rights documentation as above in ernie's post #4.

Note he has spent four (4) decades in the arbitration and mediation fields and has a three (3) year appointment so one can assume it is a winding down to retirement role as he will be into his 60's and close to retirement.

New chair of disciplinary tribunal appointed


Regular news from the New Zealand Doctor newsroom

HPDT deputy chair David Carden replaces Judge Bruce Corkill as HPDT chair today

Ruth [email protected] 19 June 2014, 10:27AM

The Health Practitioners Disciplinary Tribunal gets a new chair as of today.

Deputy chair David Carden starts a three-year term, replacing Judge Bruce Corkill QC who has been appointed a judge of the Employment Court.

A trained barrister, Mr Carden has over four decades of experience in arbitration and mediation, health minister Tony Ryall said in a media release.


New Health Practitioners Disciplinary Tribunal chair

Media release from minister of health Tony Ryall: Health Minister Tony Ryall has announced the appointment of Mr David Carden, as the new chair of the Health Practitioners Disciplinary Tribunal

Health minister Tony Ryall Thursday 19 June 2014, 8:33AM


Media release from minister of health Tony Ryall

Health Minister Tony Ryall has announced the appointment of Mr David Carden, as the new chair of the Health Practitioners Disciplinary Tribunal.

“A barrister by training, Mr Carden has over four decades of experience in arbitration and mediation” says Mr Ryall.

“He has already provided excellent service in his role as deputy chair of the Tribunal and I am pleased to have Mr Carden continue that work in his new capacity”.

Mr Carden
has served as a Deputy Chair of the Tribunal since 2010 and replaces Judge Bruce Corkill QC, who has been recently appointed as a judge of the Employment Court.

He will begin his three year term tomorrow.

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