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Judge Martin Beattie Decision Look who's in bed with whom

#1 User is offline   hukildaspida 

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Posted 05 February 2013 - 01:02 AM

Credit to Judge Martin Beattie where it is due, he can spot potential http://www.acc.co.nz fraudsters several kilometres away...

Some of you may not know whom is associated with whom that are disreputable persons and who have caused ongoing disruptions to http://www.accforum.org
users lives and their personal safety.

Here is a decision that will hopefully shed some light onto things and whom is behind it and why.

Other information about those involved in this decision are readily accessible by putting the names in top right hand search engine of this forum.




http://www.nzlii.org...CC/2010/27.html

McKinney v Accident Compensation Corporation [2010] NZACC 27 (25 February 2010)

IN THE DISTRICT COURT

HELD AT AUCKLAND Decision No. 27/2010

IN THE MATTER of the Injury Prevention, Rehabilitation, and

Compensation Act 2001

AND

IN THE MATTER of an appeal pursuant to Section 149 of the Act

BETWEEN ROBERT EARL McKINNEY

(Al 436/06)

Appellant

AND THE ACCIDENT COMPENSATION

CORPORATION

Respondent

HEARD at AUCKLAND on 28 October 2009

APPEARANCES

Mr D Nottingham, Advocate for Appellant. Mr D Tui, Counsel for Respondent.

RESERVED JUDGMENT OF JUDGE M J BEATTIE

[1] The issue in this appeal arises from the respondent's decision of 28 November 2003, whereby it declined the appellant's application for weekly compensation on the basis that the appellant was not an earner immediately before incapacity.
[2] The respondent's primary decision had been made on the basis of the appellant's claim for cover and weekly compensation sought to commence from 17 September 2003, being the date on which the appellant suffered a back injury at an Auckland ice skating rink.

[3] It does not seem to be in contention that as at 17 September 2003 the appellant was not an earner and that in effect his last employment had ceased on or about 28 June 2003 and that as of the date of the accident of 17 September 2003 he had not commenced the employment which had been intended, being that of a managerial position for a company known as Accident Compensation Claimants Union Ltd, a company being formed to act as advocate for ACC claimants.

[4] The respondent's primary decision was based on the appellant's claim for cover for a back injury, which injury was stated as being suffered on 17 September 2003. Whilst the respondent granted cover to the appellant for that back injury, it declined the claim for weekly compensation on the basis that the appellant was not an earner at the time of the accident on 17 September 2003.
[5] When the matter reached the review stage, the appellant's advocate sought to widen the issue as it were by contending that the appellant had in fact suffered an incapacitating injury on 9 July 2003 at the ice skating rink and had in fact been incapacitated from that time on. It was contended that at the time of that injury the appellant was still considered to be an earner as he had just shortly before that date ceased his employment with Wilson & Horton Limited and for which he had received holiday pay which extended his earner status past 9 July 2003.
[6] The Review hearing, which took place on 4 October 2006, proceeded to hear evidence relating to matters pertaining to the 9 July accident and the treatment obtained by the appellant as a consequence thereof, and issues of injury, incapacity and earner status as of 9 July 2003 were in the mix.
[7] In a decision dated 28 October 2006 the Reviewer found on the facts that the appellant had not established incapacity consequent upon the July injury and therefore the respondent's decision, which related to incapacity from the later accident, was the correct decision and it was confirmed.
[8] The final word in the Review decision was "For the above reasons I am not satisfied that Mr McKinney was incapacitated from injuries he sustained on 9 July 2003. The application is dismissed."
[9] When the matter came on for hearing by way of appeal from that decision, again the matter was approached by Mr Nottingham from the standpoint that he contended that the Reviewer was wrong to find that the appellant was not incapacitated from 9 July 2003 onwards and his submissions and reference to evidence, both written and that given orally at the Review hearing, were presented in support of that contention.

[10] Mr Tui, Counsel for the Respondent, for his part, also addressed the matter from the wider standpoint of considering the 9 July 2003 accident and onwards. In essence his submission was that there was no evidence that the appellant could demonstrate an incapacity commencing from 9 July 2003, and that incapacity could only be established once the appellant obtained the medical treatment of 31 October 2003. His submissions fleshed out that basic submission.
[11] Following the hearing and in respect of which the decision was reserved, I took time to consider the evidence and noted that the appellant was in effect seeking weekly compensation as from 9 July 2003, being the date of the first accident at the ice skating rink and that the subsequent accident of 17 September 2003 was contended as being merely an aggravation of that earlier injury and that therefore the question of weekly compensation entitlement could only be considered by reference to the July 2003 injury.
[12] I noted that the only cover which the appellant had was for a back injury sustained on 17 September 2003, and that no claim for cover had been granted or even lodged in relation to any injury suffered on 9 July 2003.
[13] With that being the position, I considered that it was not open for the Court in its appellate jurisdiction to consider any claim for weekly compensation sought to commence from July 2003, as there was no injury acknowledged or cover granted in respect of the injury claimed to have been suffered on that date.


[14] Consequently, a minute was issued by me to the parties' representatives to comment on the legal situation which the Court had identified.
[15] The Court has now received a memorandum from counsel for the respondent and in which counsel confirmed that no claim for cover for injury allegedly suffered on 9 July 2003 had been lodged. Counsel summarised the respondent's position as follows:

". . . No claim for cover for an injury allegedly suffered on 9 July 2003 has been lodged with the Corporation and certainly no primary decision has been issued thereon.

The Corporation recognises that the absence of an application for cover and a primary decision on the same constitutes an obstacle to the Court considering the role of any such injury in the context of the 2003 primary decision.

Notwithstanding, the Corporation's position in respect to this matter is that, if at all possible, the most practicable and expedient course is for all the issues to be considered and dealt with on appeal. This proceeding is now some six years old and it would be preferable for both parties that there is some finality. The alternative is that these issues are likely to be reargued afresh in new review/appeal proceedings."

[16] The Court also received a memorandum from Mr Nottingham in which he advised that the appellant agreed with the respondent's position in this matter and requested that the Court proceed to issue a decision on the basis proposed by Mr Tui.
[17] The only basis upon which I consider the Court can continue and determine the matter on the wider basis that the parties request, is for the Court to formally make a determination of a grant of cover for a low back injury suffered by the appellant on 9 July 2003, but with the Court reserving until the determination of this appeal the exact nature and extent of that injury.

[18] With that lengthy preamble I now identify the relevant background facts:

On 28 June 2003 the appellant terminated his employment with Wilson & Horton Limited and he received payments on that termination which included holiday pay which extended his employment for the purposes of ACC legislation to 26 July 2003.
As of 9 July 2003 the appellant had not taken up any subsequent employment.
On 9 July 2003 the appellant suffered an injury to his back whilst ice skating at an Auckland ice skating rink, that injury occurring apparently when he was attempting a spin. Further consideration of that injury and its consequences will be dealt with hereafter.
The appellant did not seek any conventional medical treatment for his back injury and did not consult his GP, Dr Bryant, about it.
The appellant was instead referred to a Mr Phillip Bonner, who describes himself as being a QiGong practitioner, then of New Plymouth. Again, details of Mr Bonner's treatment of the appellant will be considered in detail hereafter.
As of 17 September 2003, the appellant had not commenced to be actively involved in the business venture which he had been setting up, namely the Accident Compensation Claimant's Union, a business venture which he was going to be conducting in conjunction with Mr Nottingham.
On 17 September 2003 the appellant was again at the ice skating rink where the earlier injury had occurred and where he again suffered a fall and again injuring his back.
The appellant first sought medical treatment in respect of his back injury on 31 October 2003 when he consulted a Dr Nayar, a medical practitioner at Otahuhu. It was at that attendance on Dr Nayar that a claim for cover was formulated, cover being sought for a lower back injury described as a lumbar sprain, said to have occurred on 17 September 2003 at the Paradise Skating Rink.
Dr Nayar's details in that claim form identified that the appellant was unfit for work and had been unfit from the date of the accident. He assessed that the appellant would be fit to return to work on 7 November 2003.
In late November 2003, the appellant was referred to Mr Alec McAuslan, Orthopaedic Surgeon, by Dr Bryant of Byron Chambers in Takapuna. Dr Bryant was the appellant's usual GP.
Mr McAuslan provided a report to Dr Bryant dated 3 December 2003 in which he advised that X-rays of the appellant's lumbar spine showed some narrowing of L4/5 and L5/S1 discs.
Mr McAuslan indicated that he needed to obtain an MRI scan in order to assess the appellant's injury fully.
An MRI scan was taken of the appellant's lumbar spine on 23 December 2003.
In a follow-up report dated 14 January 2004, Mr McAuslan reported on that MRI scan advising of a moderate sized left paracentral disc protrusion at L4/5 causing some displacement on the L5 nerve root.
The respondent made its primary decision on 28 January 2003, that decision advising that the appellant's claim for weekly compensation was declined as he was not an earner at the date of first incapacity, namely 17 September 2003.
The appellant sought a review of that decision and a review hearing did take place in April 2004 and in a decision dated 16 April 2004, the Reviewer, Mr Dunn, confirmed the respondent's decision.
The appellant then sought to appeal that decision, but at the appeal hearing in July 2006, the parties agreed that the earlier review hearing had been unsatisfactory and that issues of credibility and reliability for witnesses could not be had, and the matter needed to be referred back to review for a full hearing of all relevant evidence.
A second review hearing took place on 4 October 2006, at which the appellant gave evidence and the Reviewer heard evidence by way of telephone hook-up with Mr Bonner and also Dr Bryant. Two persons who had provided affidavits and who were required by Counsel for the Respondent to appear for cross- examination did not so appear.
As earlier noted, after considering the evidence, both oral and written, the Reviewer gave as his conclusion as follows:

"1 find that the contents of the affidavits and the results of the cross examinations at the hearing, indicate clear inconsistencies with the initial medical evidence. Despite the assertions made in those affidavits, there are just no contemporaneous document submitted that support those assertions."

From that finding the Reviewer stated that he was not satisfied that the appellant was incapacitated from injuries he sustained on 9 July 2003, and the application for review was therefore dismissed.

[19] As earlier noted, the appellant gave evidence at the Review Hearing and the Court has been provided with a transcript of all evidence that was presented at that Review Hearing. The main points given by the appellant in evidence, I note to be as follows:

Following the accident of 9 July the appellant experienced extreme pain and could barely walk.
The pain level would be 8 out of 10 for the first couple of weeks.
His condition fluctuated and some days the pain level was lower.
Mr Bonner was referred to the appellant by Mr Nottingham. Although Mr Bonner lived in New Plymouth, he visited Auckland shortly after the injury and saw the appellant then.
He saw Mr Bonner maybe half-a-dozen times and had good results from his treatment.
The appellant didn't feel the need to seek conventional medical treatment.
By September there was a slight improvement in his condition.
Mr Bonner had recommended low impact exercise such as walking and swimming within limitations and that he would diet because he was considered to be overweight.
On 17 September he again went to the ice skating rink with the intention of having a leisurely skate.
As he was leaving the rink he stumbled on some rough ice and had to grab the barrier to prevent himself from falling over.
He considered that the pain that he felt was merely an exacerbation of the injury originally suffered on 9 July 2003.
The appellant's employment had been with Ellerslie Printers, a subsidiary of New Zealand Herald and Wilson & Horton Limited. His job was described as operator and the appellant was an inserting line operator/supervisor, which involved operating and managing a machine that newspapers are fed into and extra sections are added. It was the appellant's job to supervise the operating of that machine.
The appellant resigned from his employment as of 28 June, and it was his intention of having a holiday before starting work setting up the Accident Compensation Claimants' Union.
Because of the injury suffered on 9 July 2003, the appellant in fact did not work for that business down to and after the subsequent injury of 17 September.
The appellant was referred to Mr Bonner for treatment by Mr Nottingham who had a previous association with him.
The reason he didn't see a medical practitioner was that he didn't think a practitioner would be able to do much for him based on his experience of the medical profession in the past. He did not have high expectations of their abilities.

[20] Another person who gave evidence at the Review Hearing was Mr Bonner who was a practitioner of Chinese medicine known as QiGong. He stated that he had had significant experience with muscle and strain injuries and that experience included providing treatment to New Zealand Representative Rugby League Players and also members of the Warriors Rugby League Team. The main points of Mr Bonner's evidence were as follows:

At the material time Mr Bonner was residing in New Plymouth. He acknowledged that he either made no notes of his treatment of the appellant or that any notes he had made could not be found.
Whilst he diagnosed a prolapsed disc he acknowledged that such a diagnosis would require confirmation by X-ray and his diagnosis could be no more than a suspicion.
He suspected a prolapsed disc because of numbness in the legs and altered sensations.
He did not believe in referring patients on to conventional medical treatment until he had given them several treatments himself.
He may have treated the appellant three or four times or possibly half a dozen times. He had trouble remembering details.
Mr Bonner said that he knew Mr Nottingham because Mr Nottingham was the partner of his niece.
The duties he performed with the football sides was that of a masseur as Qi Gong encompasses massage treatment.
He stated that in the area of soft tissue injury he was more than competent.
He considered a prolapsed disc to be a soft tissue related injury. [21] As earlier noted, the first medical person who saw the appellant was Dr Nayar, a medical practitioner at Otahuhu and this appointment took place on 31 October 2003. Dr Nayar's notes of that appointment are as follows:

"Hurt lower back ice-skating 17/09/03 and 09/07/03; last fall skating landed on bottom and lower back; immediate pain and local spasm; not able to continue activity, sore all evening and following morning; minor whiplash neck strain in fall; Works as clerical manager for ACC claimants Union. OE: + local lumbar spasm & sciatica left leg; SLR bilaterally to about 45': normal reflexes; does not seem significant nerve impingement. Been on NSAIDS and panadol; no physiotherapy currently."

[22] A further medical note dated 7 November 2003 noted that the appellant had been to physiotherapy and had acupuncture. It further noted that the clinical signs seemed unchanged from the last visit. Dr Nayar provided incapacity certificates.
[23] The appellant was referred to Mr McAuslan by Dr Bryant and Mr McAuslan provided a report to Dr Bryant dated 3 December 2003. That report refers to the appellant suffering an injury on 17 September 2003 when he was ice skating and fell over injuring his lower back. Mr McAuslan noted that initially he had quite severe back pain and limited movement and the pain radiated to both left and right buttocks. More recently he had experienced severe back pain following bending over to pick something up. Mr McAuslan went on to state as follows:

"X-rays of the lumbar spine showing some narrowing of the L415 and the L51s1 discs.

. . . I think it is very likely that Mr McKinney has a prolapsed intervertebral disc at the L4/5 level causing his left sided sciatica. In order to assess this more fully he requires an MRI scan of the lumbar spine. I would plan to see him when this has been completed. In the meantime I have prescribed Tramadol and Vioxx which I hope will help to reduce his pain. At present Mr McKinney is quite unable to work.

[24] Following the MRI scan which Mr McAuslan had ordered, he provided a further report of 14 January 2004, that report stating, inter alia, as follows:

"Mr McKinney was seen again today. The MRI scan of his lumbar spine carried out on 23.12.03, shows that he has a moderate sized left paracentral disc protrusion at the L415 level with disc extending some 2 cm distally causing some displacement of the left L5 nerve root. There is also a left paracentral and foraminal annular tear at the L5/S1 level. This would certainly explain his symptoms of left sciatica.

Mr McKinney's options at this stage are to continue with conservative management with anti inflammatory medication and analgesics. Physiotherapy I do not think will help and I have advised against any manipulative treatment. It is possible that his symptoms will continue to slowly improve but this may well take some considerable time. The MRI scan shows that he certainly has quite a large disc prolapse.

His other option would be to consider discectomy.

Mr McKinney is going to consider whether he would like to continue with conservative measures or undergo surgical discectomy. I will see him in a further 6 weeks time. In the meantime he remains unable to work."
[25] It is the case that Mr McAuslan provided a further report to Mr Nottingham dated 10 March 2004. This letter was prompted by a letter from Mr Nottingham to Mr McAuslan. In his letter Mr Nottingham referred to the appellant suffering a serious back injury as a result of a serious fall on 9 July. Mr McAuslan was asked a series of questions and his response was as follows:

"Thank you for your letter of 9.3.04 regarding Mr McKinney. Mr McKinney had a serious fall on 9 July 2003 and from that time he had lumbar pain. He had a further fall when ice skating on 17.9.03 and following that he went on to develop pain in the lumbar spine which radiated to the lower limbs. The pain persisted particularly down the left leg and this was accompanied by a feeling of numbness in the left leg.

I think on the balance of probabilities it is very likely that he injured the L4/5 disc on 9 July 2003 and then with the further fall on 17.9.03 he developed a disc prolapsed which would cause compression of the nerve root which would then lead to pain down the left leg. If Mr McKinney had been on leave and not working it is possible that he may have been placing less strain on his lumbar spine.

It is very common for patients who have suffered a back injury to treat these injuries conservatively with non prescription pain killers and other remedies. Most of the patients that I see with back pain would have had a number of conservative treatment trials before seeking conventional medical treatment.

Had Mr McKinney been seen soon after the original injury, he would have been treated with conservative management including anti inflammatory medication, pain killers and possibly physiotherapy and an exercise programme. The vast majority of patients who have a disc prolapse and sciatica will slowly improve with this form of treatment and only a small proportion of these people would need to undergone (sic) surgery. Had conservative treatment been carried out from the outset it is very possible that Mr McKinney would continue to have his current symptoms.

Mr McKinney does have a significant disc prolapsed at theL4/5 level and in my opinion he would be best to persist with conservative management to see if his symptoms will gradually subside. It is well known that sciatica due to disc prolapsed can take many months to subside. I would only advise surgical intervention if the pain were severe or if he had significant muscle weakness in the left lower limb."

[26] In a further letter from Mr McAuslan dated 10 May 2006 he advised that the appellant had made no mention to him of the fall of 9 July, he stating only the fall of 17 September, and Mr McAuslan had no knowledge of the earlier fall other than having it explained to him in Mr Nottingham's letter.
[27] An affidavit from Dr Margaret Bryant had also been filed prior to the review hearing and the substance of her affidavit was that the appellant had been treated at her surgery from time to time over the previous ten years, and that he was a person who was loath to seek medical treatment, preferring to see if the problem settled before obtaining medical help. She said that the delay in the appellant seeking treatment after the July 2003 fall,

fitted in with the history that she knew of him. She stated that her letter of referral to Mr McAuslan only referred to the accident of 17 September, but it was common practice to make referral letters short and that she considered that orthopaedic surgeons preferred to take their own histories.

DECISION

[28] The Court notes that it received extensive oral and written submissions on behalf of both parties, but at the end of the day the issue in this appeal requires the Court to make findings of fact which are relevant to the statutory criteria which are applicable in this case.
[29] The issue as I have now identified it is whether the appellant is entitled to weekly compensation consequent upon a personal injury suffered by him on 9 July 2003. In submissions made to the Court by Mr Nottingham he conceded that the appellant was not an earner as of 17 September 2003, and so that the entitlement to weekly compensation depended upon satisfying the statutory criteria as at 9 July 2003 and subsequent.
[30] The Court will take as a starting point that the appellant suffered a back injury on 9 July 2003, and that that injury at least for a matter of days caused the appellant significant physical compromise.
[31] The primary fact which the Court must note is that the appellant did not seek any standard medical treatment from a duly qualified medical practitioner between the date of that injury and 31 October 2003.
[32] The only treatment which the appellant received during that period was from Mr Bonner a QiGong practitioner and whose treatment consisted of giving advice for mild physical exercise, and physical treatment from himself in the form of massage. No x-rays or any other investigative procedures were undertaken by Mr Banner and he was relying on his own experience when he said that the appellant's injury was probably a prolapsed disc but he couldn't be certain until x-rays could confirm it.
[33] An essential requirement of an entitlement to weekly compensation is that the claimant is incapacitated from the employment in which he was engaged at the time of injury. This requires a claimant to establish, by medical evidence, that the injury suffered is one which prevents him from carrying out his normal employment activities.

[34] Mr Bonner, of course, provided no medical certificate to the respondent in relation to incapacity, and I find that after a careful perusal of his evidence, both oral and from his affidavit, that he has made no mention whatsoever of any employment activity of which he may have had knowledge that the appellant may have been engaged in prior to injury or that any such activity was no longer able to be carried out.
[35] Section 102 of the Act sets out the procedure for determining incapacity and Section 102(2) states that in determining any such question the Corporation must consider an assessment undertaken by a medical practitioner and may obtain any professional, technical, specialised or other advice from any person it considers appropriate.
[36] In the present case where the matter is now at the appeal stage, the Court can be substituted for the Corporation and it is the case that there has been no assessment by a medical practitioner to determine whether the appellant is unable, because of his personal injury to engage in the employment in which he was employed when he suffered the personal injury, at any time contemporaneously with that injury.
[37] It is of course the case that the appellant had ceased his employment, but by virtue of the provisions of Clause 43 of Schedule 1 to the Act the appellant's employment was deemed to have continued up to and past the date of the accident.
[38] The question of incapacity is further clouded by the fact that the appellant suffered a further injury in September and it was only after that accident and injury that proper medical investigation was had and the prolapsed disc, which was then causing the appellant problems, was identified. I find that the medical evidence then obtained cannot relate back to the medical situation which may have pertained after the July accident.
[39] I have carefully considered the evidence of Mr Bonner and find that it is wholly inadequate to establish the medical status of incapacity as a matter of fact, particularly as nothing from his evidence has had any reference to the appellant's employment as an operator for Ellerslie Printers.

[40] Ex post facto, the appellant has placed emphasis on the July injury as opposed to the September injury, but the fact of the matter is that before those two separate incidents became individually relevant, the appellant had sought cover and entitlements consequent upon the September 2003 injury only.

[41] The Court is not aware of precisely what knowledge the appellant has of Accident Compensation matters, but it does note that he was setting himself up, as had Mr Nottingham already set himself up, as an Accident Compensation Advocate, and the Court can infer that basic criteria for a claim would be known to the claimant or his advisor and yet, as I have identified, it was only at review stage that the wider aspect of the July accident was sought to be introduced into the frame and for it to be contended as being the all-embracing injury.
[42] The onus of establishing the necessary criteria for an entitlement rests upon the claimant and in relation to a claim for weekly compensation the fundamental fact which must be established is that of incapacity. Incapacity is a status that requires proper and specialist evidence and I find that the evidence of Mr Bonner falls far short of being in that category. Similarly, the statements of the appellant himself cannot take the matter to the necessary degree of probability that is required.
[43] Whilst it is the case that medical certification identifies that at least from 17 September 2003, being the date of the second accident, the appellant was considered to be unable to work, nevertheless at that time he was not an earner and therefore did not qualify under the second essential criteria necessary for weekly compensation, namely of being an earner immediately before incapacity. The medical certificates that were provided at that time would seem to be certifying that the appellant was unable to carry out the work of someone involved in clerical duties, but I find that any certificate so provided has no relevance or connection with the circumstances that pertained immediately after the July 2003 accident.
[44] Finally, I comment on the letter of Mr McAuslan of 10 March 2004. This was a letter written in response to a letter from Mr Nottingham, which had referred to the appellant having suffered "a serious back injury" in the July accident and an exacerbation in "a minor fall" in September. I find that Mr McAuslan's letter cannot satisfy the necessary test of acceptable medical evidence. It is based on supposition and the fact of the matter is that Mr McAuslan had no knowledge of any injury which may have been suffered in the July accident. In a later letter Mr McAuslan acknowledged that he had no previous knowledge of the July incident, and the whole tenor of that letter, as with that of the earlier letter of 10 March 2004, can only refer to supposition and with no hard evidence to back it up.

[45] Having found as I have that the appellant cannot satisfy the statutory criteria for weekly compensation, either from 9 July 2003 or 17 September 2003, the respondent was correct to decline the appellant's claim for weekly compensation. Accordingly, this appeal is dismissed.

DATED this 25th day of February 2010


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#2 User is offline   Moeroa 

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Posted 05 February 2013 - 01:05 AM

PHEW!

View Posthukildaspida, on 05 February 2013 - 01:02 AM, said:

Credit to Judge Martin Beattie where it is due, he can spot potential http://www.acc.co.nz fraudsters several kilometres away...

Some of you may not know whom is associated with whom that are disreputable persons and who have caused ongoing disruptions to http://www.accforum.org
users lives and their personal safety.

Here is a decision that will hopefully shed some light onto things and whom is behind it and why.

Other information about those involved in this decision are readily accessible by putting the names in top right hand search engine of this forum.




http://www.nzlii.org...CC/2010/27.html

McKinney v Accident Compensation Corporation [2010] NZACC 27 (25 February 2010)

IN THE DISTRICT COURT

HELD AT AUCKLAND Decision No. 27/2010

IN THE MATTER of the Injury Prevention, Rehabilitation, and

Compensation Act 2001

AND

IN THE MATTER of an appeal pursuant to Section 149 of the Act

BETWEEN ROBERT EARL McKINNEY

(Al 436/06)

Appellant

AND THE ACCIDENT COMPENSATION

CORPORATION

Respondent

HEARD at AUCKLAND on 28 October 2009

APPEARANCES

Mr D Nottingham, Advocate for Appellant. Mr D Tui, Counsel for Respondent.

RESERVED JUDGMENT OF JUDGE M J BEATTIE

[1] The issue in this appeal arises from the respondent's decision of 28 November 2003, whereby it declined the appellant's application for weekly compensation on the basis that the appellant was not an earner immediately before incapacity.
[2] The respondent's primary decision had been made on the basis of the appellant's claim for cover and weekly compensation sought to commence from 17 September 2003, being the date on which the appellant suffered a back injury at an Auckland ice skating rink.

[3] It does not seem to be in contention that as at 17 September 2003 the appellant was not an earner and that in effect his last employment had ceased on or about 28 June 2003 and that as of the date of the accident of 17 September 2003 he had not commenced the employment which had been intended, being that of a managerial position for a company known as Accident Compensation Claimants Union Ltd, a company being formed to act as advocate for ACC claimants.

[4] The respondent's primary decision was based on the appellant's claim for cover for a back injury, which injury was stated as being suffered on 17 September 2003. Whilst the respondent granted cover to the appellant for that back injury, it declined the claim for weekly compensation on the basis that the appellant was not an earner at the time of the accident on 17 September 2003.
[5] When the matter reached the review stage, the appellant's advocate sought to widen the issue as it were by contending that the appellant had in fact suffered an incapacitating injury on 9 July 2003 at the ice skating rink and had in fact been incapacitated from that time on. It was contended that at the time of that injury the appellant was still considered to be an earner as he had just shortly before that date ceased his employment with Wilson & Horton Limited and for which he had received holiday pay which extended his earner status past 9 July 2003.
[6] The Review hearing, which took place on 4 October 2006, proceeded to hear evidence relating to matters pertaining to the 9 July accident and the treatment obtained by the appellant as a consequence thereof, and issues of injury, incapacity and earner status as of 9 July 2003 were in the mix.
[7] In a decision dated 28 October 2006 the Reviewer found on the facts that the appellant had not established incapacity consequent upon the July injury and therefore the respondent's decision, which related to incapacity from the later accident, was the correct decision and it was confirmed.
[8] The final word in the Review decision was "For the above reasons I am not satisfied that Mr McKinney was incapacitated from injuries he sustained on 9 July 2003. The application is dismissed."
[9] When the matter came on for hearing by way of appeal from that decision, again the matter was approached by Mr Nottingham from the standpoint that he contended that the Reviewer was wrong to find that the appellant was not incapacitated from 9 July 2003 onwards and his submissions and reference to evidence, both written and that given orally at the Review hearing, were presented in support of that contention.

[10] Mr Tui, Counsel for the Respondent, for his part, also addressed the matter from the wider standpoint of considering the 9 July 2003 accident and onwards. In essence his submission was that there was no evidence that the appellant could demonstrate an incapacity commencing from 9 July 2003, and that incapacity could only be established once the appellant obtained the medical treatment of 31 October 2003. His submissions fleshed out that basic submission.
[11] Following the hearing and in respect of which the decision was reserved, I took time to consider the evidence and noted that the appellant was in effect seeking weekly compensation as from 9 July 2003, being the date of the first accident at the ice skating rink and that the subsequent accident of 17 September 2003 was contended as being merely an aggravation of that earlier injury and that therefore the question of weekly compensation entitlement could only be considered by reference to the July 2003 injury.
[12] I noted that the only cover which the appellant had was for a back injury sustained on 17 September 2003, and that no claim for cover had been granted or even lodged in relation to any injury suffered on 9 July 2003.
[13] With that being the position, I considered that it was not open for the Court in its appellate jurisdiction to consider any claim for weekly compensation sought to commence from July 2003, as there was no injury acknowledged or cover granted in respect of the injury claimed to have been suffered on that date.


[14] Consequently, a minute was issued by me to the parties' representatives to comment on the legal situation which the Court had identified.
[15] The Court has now received a memorandum from counsel for the respondent and in which counsel confirmed that no claim for cover for injury allegedly suffered on 9 July 2003 had been lodged. Counsel summarised the respondent's position as follows:

". . . No claim for cover for an injury allegedly suffered on 9 July 2003 has been lodged with the Corporation and certainly no primary decision has been issued thereon.

The Corporation recognises that the absence of an application for cover and a primary decision on the same constitutes an obstacle to the Court considering the role of any such injury in the context of the 2003 primary decision.

Notwithstanding, the Corporation's position in respect to this matter is that, if at all possible, the most practicable and expedient course is for all the issues to be considered and dealt with on appeal. This proceeding is now some six years old and it would be preferable for both parties that there is some finality. The alternative is that these issues are likely to be reargued afresh in new review/appeal proceedings."

[16] The Court also received a memorandum from Mr Nottingham in which he advised that the appellant agreed with the respondent's position in this matter and requested that the Court proceed to issue a decision on the basis proposed by Mr Tui.
[17] The only basis upon which I consider the Court can continue and determine the matter on the wider basis that the parties request, is for the Court to formally make a determination of a grant of cover for a low back injury suffered by the appellant on 9 July 2003, but with the Court reserving until the determination of this appeal the exact nature and extent of that injury.

[18] With that lengthy preamble I now identify the relevant background facts:

On 28 June 2003 the appellant terminated his employment with Wilson & Horton Limited and he received payments on that termination which included holiday pay which extended his employment for the purposes of ACC legislation to 26 July 2003.
As of 9 July 2003 the appellant had not taken up any subsequent employment.
On 9 July 2003 the appellant suffered an injury to his back whilst ice skating at an Auckland ice skating rink, that injury occurring apparently when he was attempting a spin. Further consideration of that injury and its consequences will be dealt with hereafter.
The appellant did not seek any conventional medical treatment for his back injury and did not consult his GP, Dr Bryant, about it.
The appellant was instead referred to a Mr Phillip Bonner, who describes himself as being a QiGong practitioner, then of New Plymouth. Again, details of Mr Bonner's treatment of the appellant will be considered in detail hereafter.
As of 17 September 2003, the appellant had not commenced to be actively involved in the business venture which he had been setting up, namely the Accident Compensation Claimant's Union, a business venture which he was going to be conducting in conjunction with Mr Nottingham.
On 17 September 2003 the appellant was again at the ice skating rink where the earlier injury had occurred and where he again suffered a fall and again injuring his back.
The appellant first sought medical treatment in respect of his back injury on 31 October 2003 when he consulted a Dr Nayar, a medical practitioner at Otahuhu. It was at that attendance on Dr Nayar that a claim for cover was formulated, cover being sought for a lower back injury described as a lumbar sprain, said to have occurred on 17 September 2003 at the Paradise Skating Rink.
Dr Nayar's details in that claim form identified that the appellant was unfit for work and had been unfit from the date of the accident. He assessed that the appellant would be fit to return to work on 7 November 2003.
In late November 2003, the appellant was referred to Mr Alec McAuslan, Orthopaedic Surgeon, by Dr Bryant of Byron Chambers in Takapuna. Dr Bryant was the appellant's usual GP.
Mr McAuslan provided a report to Dr Bryant dated 3 December 2003 in which he advised that X-rays of the appellant's lumbar spine showed some narrowing of L4/5 and L5/S1 discs.
Mr McAuslan indicated that he needed to obtain an MRI scan in order to assess the appellant's injury fully.
An MRI scan was taken of the appellant's lumbar spine on 23 December 2003.
In a follow-up report dated 14 January 2004, Mr McAuslan reported on that MRI scan advising of a moderate sized left paracentral disc protrusion at L4/5 causing some displacement on the L5 nerve root.
The respondent made its primary decision on 28 January 2003, that decision advising that the appellant's claim for weekly compensation was declined as he was not an earner at the date of first incapacity, namely 17 September 2003.
The appellant sought a review of that decision and a review hearing did take place in April 2004 and in a decision dated 16 April 2004, the Reviewer, Mr Dunn, confirmed the respondent's decision.
The appellant then sought to appeal that decision, but at the appeal hearing in July 2006, the parties agreed that the earlier review hearing had been unsatisfactory and that issues of credibility and reliability for witnesses could not be had, and the matter needed to be referred back to review for a full hearing of all relevant evidence.
A second review hearing took place on 4 October 2006, at which the appellant gave evidence and the Reviewer heard evidence by way of telephone hook-up with Mr Bonner and also Dr Bryant. Two persons who had provided affidavits and who were required by Counsel for the Respondent to appear for cross- examination did not so appear.
As earlier noted, after considering the evidence, both oral and written, the Reviewer gave as his conclusion as follows:

"1 find that the contents of the affidavits and the results of the cross examinations at the hearing, indicate clear inconsistencies with the initial medical evidence. Despite the assertions made in those affidavits, there are just no contemporaneous document submitted that support those assertions."

From that finding the Reviewer stated that he was not satisfied that the appellant was incapacitated from injuries he sustained on 9 July 2003, and the application for review was therefore dismissed.

[19] As earlier noted, the appellant gave evidence at the Review Hearing and the Court has been provided with a transcript of all evidence that was presented at that Review Hearing. The main points given by the appellant in evidence, I note to be as follows:

Following the accident of 9 July the appellant experienced extreme pain and could barely walk.
The pain level would be 8 out of 10 for the first couple of weeks.
His condition fluctuated and some days the pain level was lower.
Mr Bonner was referred to the appellant by Mr Nottingham. Although Mr Bonner lived in New Plymouth, he visited Auckland shortly after the injury and saw the appellant then.
He saw Mr Bonner maybe half-a-dozen times and had good results from his treatment.
The appellant didn't feel the need to seek conventional medical treatment.
By September there was a slight improvement in his condition.
Mr Bonner had recommended low impact exercise such as walking and swimming within limitations and that he would diet because he was considered to be overweight.
On 17 September he again went to the ice skating rink with the intention of having a leisurely skate.
As he was leaving the rink he stumbled on some rough ice and had to grab the barrier to prevent himself from falling over.
He considered that the pain that he felt was merely an exacerbation of the injury originally suffered on 9 July 2003.
The appellant's employment had been with Ellerslie Printers, a subsidiary of New Zealand Herald and Wilson & Horton Limited. His job was described as operator and the appellant was an inserting line operator/supervisor, which involved operating and managing a machine that newspapers are fed into and extra sections are added. It was the appellant's job to supervise the operating of that machine.
The appellant resigned from his employment as of 28 June, and it was his intention of having a holiday before starting work setting up the Accident Compensation Claimants' Union.
Because of the injury suffered on 9 July 2003, the appellant in fact did not work for that business down to and after the subsequent injury of 17 September.
The appellant was referred to Mr Bonner for treatment by Mr Nottingham who had a previous association with him.
The reason he didn't see a medical practitioner was that he didn't think a practitioner would be able to do much for him based on his experience of the medical profession in the past. He did not have high expectations of their abilities.

[20] Another person who gave evidence at the Review Hearing was Mr Bonner who was a practitioner of Chinese medicine known as QiGong. He stated that he had had significant experience with muscle and strain injuries and that experience included providing treatment to New Zealand Representative Rugby League Players and also members of the Warriors Rugby League Team. The main points of Mr Bonner's evidence were as follows:

At the material time Mr Bonner was residing in New Plymouth. He acknowledged that he either made no notes of his treatment of the appellant or that any notes he had made could not be found.
Whilst he diagnosed a prolapsed disc he acknowledged that such a diagnosis would require confirmation by X-ray and his diagnosis could be no more than a suspicion.
He suspected a prolapsed disc because of numbness in the legs and altered sensations.
He did not believe in referring patients on to conventional medical treatment until he had given them several treatments himself.
He may have treated the appellant three or four times or possibly half a dozen times. He had trouble remembering details.
Mr Bonner said that he knew Mr Nottingham because Mr Nottingham was the partner of his niece.
The duties he performed with the football sides was that of a masseur as Qi Gong encompasses massage treatment.
He stated that in the area of soft tissue injury he was more than competent.
He considered a prolapsed disc to be a soft tissue related injury. [21] As earlier noted, the first medical person who saw the appellant was Dr Nayar, a medical practitioner at Otahuhu and this appointment took place on 31 October 2003. Dr Nayar's notes of that appointment are as follows:

"Hurt lower back ice-skating 17/09/03 and 09/07/03; last fall skating landed on bottom and lower back; immediate pain and local spasm; not able to continue activity, sore all evening and following morning; minor whiplash neck strain in fall; Works as clerical manager for ACC claimants Union. OE: + local lumbar spasm & sciatica left leg; SLR bilaterally to about 45': normal reflexes; does not seem significant nerve impingement. Been on NSAIDS and panadol; no physiotherapy currently."

[22] A further medical note dated 7 November 2003 noted that the appellant had been to physiotherapy and had acupuncture. It further noted that the clinical signs seemed unchanged from the last visit. Dr Nayar provided incapacity certificates.
[23] The appellant was referred to Mr McAuslan by Dr Bryant and Mr McAuslan provided a report to Dr Bryant dated 3 December 2003. That report refers to the appellant suffering an injury on 17 September 2003 when he was ice skating and fell over injuring his lower back. Mr McAuslan noted that initially he had quite severe back pain and limited movement and the pain radiated to both left and right buttocks. More recently he had experienced severe back pain following bending over to pick something up. Mr McAuslan went on to state as follows:

"X-rays of the lumbar spine showing some narrowing of the L415 and the L51s1 discs.

. . . I think it is very likely that Mr McKinney has a prolapsed intervertebral disc at the L4/5 level causing his left sided sciatica. In order to assess this more fully he requires an MRI scan of the lumbar spine. I would plan to see him when this has been completed. In the meantime I have prescribed Tramadol and Vioxx which I hope will help to reduce his pain. At present Mr McKinney is quite unable to work.

[24] Following the MRI scan which Mr McAuslan had ordered, he provided a further report of 14 January 2004, that report stating, inter alia, as follows:

"Mr McKinney was seen again today. The MRI scan of his lumbar spine carried out on 23.12.03, shows that he has a moderate sized left paracentral disc protrusion at the L415 level with disc extending some 2 cm distally causing some displacement of the left L5 nerve root. There is also a left paracentral and foraminal annular tear at the L5/S1 level. This would certainly explain his symptoms of left sciatica.

Mr McKinney's options at this stage are to continue with conservative management with anti inflammatory medication and analgesics. Physiotherapy I do not think will help and I have advised against any manipulative treatment. It is possible that his symptoms will continue to slowly improve but this may well take some considerable time. The MRI scan shows that he certainly has quite a large disc prolapse.

His other option would be to consider discectomy.

Mr McKinney is going to consider whether he would like to continue with conservative measures or undergo surgical discectomy. I will see him in a further 6 weeks time. In the meantime he remains unable to work."
[25] It is the case that Mr McAuslan provided a further report to Mr Nottingham dated 10 March 2004. This letter was prompted by a letter from Mr Nottingham to Mr McAuslan. In his letter Mr Nottingham referred to the appellant suffering a serious back injury as a result of a serious fall on 9 July. Mr McAuslan was asked a series of questions and his response was as follows:

"Thank you for your letter of 9.3.04 regarding Mr McKinney. Mr McKinney had a serious fall on 9 July 2003 and from that time he had lumbar pain. He had a further fall when ice skating on 17.9.03 and following that he went on to develop pain in the lumbar spine which radiated to the lower limbs. The pain persisted particularly down the left leg and this was accompanied by a feeling of numbness in the left leg.

I think on the balance of probabilities it is very likely that he injured the L4/5 disc on 9 July 2003 and then with the further fall on 17.9.03 he developed a disc prolapsed which would cause compression of the nerve root which would then lead to pain down the left leg. If Mr McKinney had been on leave and not working it is possible that he may have been placing less strain on his lumbar spine.

It is very common for patients who have suffered a back injury to treat these injuries conservatively with non prescription pain killers and other remedies. Most of the patients that I see with back pain would have had a number of conservative treatment trials before seeking conventional medical treatment.

Had Mr McKinney been seen soon after the original injury, he would have been treated with conservative management including anti inflammatory medication, pain killers and possibly physiotherapy and an exercise programme. The vast majority of patients who have a disc prolapse and sciatica will slowly improve with this form of treatment and only a small proportion of these people would need to undergone (sic) surgery. Had conservative treatment been carried out from the outset it is very possible that Mr McKinney would continue to have his current symptoms.

Mr McKinney does have a significant disc prolapsed at theL4/5 level and in my opinion he would be best to persist with conservative management to see if his symptoms will gradually subside. It is well known that sciatica due to disc prolapsed can take many months to subside. I would only advise surgical intervention if the pain were severe or if he had significant muscle weakness in the left lower limb."

[26] In a further letter from Mr McAuslan dated 10 May 2006 he advised that the appellant had made no mention to him of the fall of 9 July, he stating only the fall of 17 September, and Mr McAuslan had no knowledge of the earlier fall other than having it explained to him in Mr Nottingham's letter.
[27] An affidavit from Dr Margaret Bryant had also been filed prior to the review hearing and the substance of her affidavit was that the appellant had been treated at her surgery from time to time over the previous ten years, and that he was a person who was loath to seek medical treatment, preferring to see if the problem settled before obtaining medical help. She said that the delay in the appellant seeking treatment after the July 2003 fall,

fitted in with the history that she knew of him. She stated that her letter of referral to Mr McAuslan only referred to the accident of 17 September, but it was common practice to make referral letters short and that she considered that orthopaedic surgeons preferred to take their own histories.

DECISION

[28] The Court notes that it received extensive oral and written submissions on behalf of both parties, but at the end of the day the issue in this appeal requires the Court to make findings of fact which are relevant to the statutory criteria which are applicable in this case.
[29] The issue as I have now identified it is whether the appellant is entitled to weekly compensation consequent upon a personal injury suffered by him on 9 July 2003. In submissions made to the Court by Mr Nottingham he conceded that the appellant was not an earner as of 17 September 2003, and so that the entitlement to weekly compensation depended upon satisfying the statutory criteria as at 9 July 2003 and subsequent.
[30] The Court will take as a starting point that the appellant suffered a back injury on 9 July 2003, and that that injury at least for a matter of days caused the appellant significant physical compromise.
[31] The primary fact which the Court must note is that the appellant did not seek any standard medical treatment from a duly qualified medical practitioner between the date of that injury and 31 October 2003.
[32] The only treatment which the appellant received during that period was from Mr Bonner a QiGong practitioner and whose treatment consisted of giving advice for mild physical exercise, and physical treatment from himself in the form of massage. No x-rays or any other investigative procedures were undertaken by Mr Banner and he was relying on his own experience when he said that the appellant's injury was probably a prolapsed disc but he couldn't be certain until x-rays could confirm it.
[33] An essential requirement of an entitlement to weekly compensation is that the claimant is incapacitated from the employment in which he was engaged at the time of injury. This requires a claimant to establish, by medical evidence, that the injury suffered is one which prevents him from carrying out his normal employment activities.

[34] Mr Bonner, of course, provided no medical certificate to the respondent in relation to incapacity, and I find that after a careful perusal of his evidence, both oral and from his affidavit, that he has made no mention whatsoever of any employment activity of which he may have had knowledge that the appellant may have been engaged in prior to injury or that any such activity was no longer able to be carried out.
[35] Section 102 of the Act sets out the procedure for determining incapacity and Section 102(2) states that in determining any such question the Corporation must consider an assessment undertaken by a medical practitioner and may obtain any professional, technical, specialised or other advice from any person it considers appropriate.
[36] In the present case where the matter is now at the appeal stage, the Court can be substituted for the Corporation and it is the case that there has been no assessment by a medical practitioner to determine whether the appellant is unable, because of his personal injury to engage in the employment in which he was employed when he suffered the personal injury, at any time contemporaneously with that injury.
[37] It is of course the case that the appellant had ceased his employment, but by virtue of the provisions of Clause 43 of Schedule 1 to the Act the appellant's employment was deemed to have continued up to and past the date of the accident.
[38] The question of incapacity is further clouded by the fact that the appellant suffered a further injury in September and it was only after that accident and injury that proper medical investigation was had and the prolapsed disc, which was then causing the appellant problems, was identified. I find that the medical evidence then obtained cannot relate back to the medical situation which may have pertained after the July accident.
[39] I have carefully considered the evidence of Mr Bonner and find that it is wholly inadequate to establish the medical status of incapacity as a matter of fact, particularly as nothing from his evidence has had any reference to the appellant's employment as an operator for Ellerslie Printers.

[40] Ex post facto, the appellant has placed emphasis on the July injury as opposed to the September injury, but the fact of the matter is that before those two separate incidents became individually relevant, the appellant had sought cover and entitlements consequent upon the September 2003 injury only.

[41] The Court is not aware of precisely what knowledge the appellant has of Accident Compensation matters, but it does note that he was setting himself up, as had Mr Nottingham already set himself up, as an Accident Compensation Advocate, and the Court can infer that basic criteria for a claim would be known to the claimant or his advisor and yet, as I have identified, it was only at review stage that the wider aspect of the July accident was sought to be introduced into the frame and for it to be contended as being the all-embracing injury.
[42] The onus of establishing the necessary criteria for an entitlement rests upon the claimant and in relation to a claim for weekly compensation the fundamental fact which must be established is that of incapacity. Incapacity is a status that requires proper and specialist evidence and I find that the evidence of Mr Bonner falls far short of being in that category. Similarly, the statements of the appellant himself cannot take the matter to the necessary degree of probability that is required.
[43] Whilst it is the case that medical certification identifies that at least from 17 September 2003, being the date of the second accident, the appellant was considered to be unable to work, nevertheless at that time he was not an earner and therefore did not qualify under the second essential criteria necessary for weekly compensation, namely of being an earner immediately before incapacity. The medical certificates that were provided at that time would seem to be certifying that the appellant was unable to carry out the work of someone involved in clerical duties, but I find that any certificate so provided has no relevance or connection with the circumstances that pertained immediately after the July 2003 accident.
[44] Finally, I comment on the letter of Mr McAuslan of 10 March 2004. This was a letter written in response to a letter from Mr Nottingham, which had referred to the appellant having suffered "a serious back injury" in the July accident and an exacerbation in "a minor fall" in September. I find that Mr McAuslan's letter cannot satisfy the necessary test of acceptable medical evidence. It is based on supposition and the fact of the matter is that Mr McAuslan had no knowledge of any injury which may have been suffered in the July accident. In a later letter Mr McAuslan acknowledged that he had no previous knowledge of the July incident, and the whole tenor of that letter, as with that of the earlier letter of 10 March 2004, can only refer to supposition and with no hard evidence to back it up.

[45] Having found as I have that the appellant cannot satisfy the statutory criteria for weekly compensation, either from 9 July 2003 or 17 September 2003, the respondent was correct to decline the appellant's claim for weekly compensation. Accordingly, this appeal is dismissed.

DATED this 25th day of February 2010

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#3 User is offline   hukildaspida 

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Posted 05 February 2013 - 01:23 AM

It would be of assistance to clients of http://www.acc.co.nz if ACC would provide an up to date Media release in relation to Nottingham and McKinney's,
and their known close associates, status as ACC Advocates in light of what has occured on an ongoing basis on http://www.accforum.org and on
Nottingham's own laudafinem websites.

Injured and vulnerable person's have a right to personal safety, including in their own homes and as they go about their daily lives.

No one should be subjected to such unlawful, harassment and abuse.


Posted 02 May 2011 - 05:04 PM

View Post Hardwired, on 06 June 2007 - 09:39 PM, said:
Dermot Nottingham.
This is the response that ACC gave to Fair Go in relation to questions asked by Fair Go as to Nottinghams position with ACC and claimants.




...19 January 2006

Response to Fair Go media queries on advocate Dermot Nottingham

You have posed the following questions about Auckland advocate Dermot Nottingham:
� what can ACC say about his current status with our organisation;
� if there has been a change recently, what was that and why;
� how does Mr Nottingham�s current status compare to that of other advocates working in �this area�; and
� if someone approaches ACC over a review, with Mr Nottingham as their advocate, what does ACC say to this person.

1. Mr Nottingham�s current status with ACC
ACC does not recognise Mr Nottingham when he purports to be acting as an advocate for claimants in their dealings with ACC.
2. Whether there was a recent change in Mr Nottingham�s status, what it was, and why
In May 2004, ACC sent a form letter (see Appendix for the full text) to the claimants we were able to identify at that time as being personal injury clients of Mr Nottingham, advising �ACC�s General Manager for the branch network has determined that ACC will no longer recognise Mr Nottingham in the role as advocate for ACC claimants...�

3. How Mr Nottingham�s current status compares with that of other advocates working in this area
Withdrawing recognition of Mr Nottingham as an advocate for ACC claimants was a most unusual step for ACC to take. It arose because after considerable endeavours over an extensive period of time, ACC found that Mr Nottingham was unable to work constructively with us. The terms under which ACC would continue to work with Mr Nottingham were advised to him in writing. He declined to meet the conditions set by ACC, indeed there has been no change in his behaviour or his approach to ACC. ACC decided not to work with him in the interests of the safety of staff and claimants, and the need to assist claimants to move through rehabilitation to independence.
DRSL at this point had not declined to work with Mr Nottingham. DRSL operates independently from ACC and makes its own determinations about the acceptability of individual advocates.
Mr Nottingham should have been aware from early May 2004 that he would not be recognised by ACC as an advocate for claimants. That remains the position today.


4.What ACC tells them if someone indicates to ACC that they have engaged Mr Dermot Nottingham as their claimant advocate
The form letter in Appendix A, appropriately modified with the current date, would be sent to the claimant.




Simon Calvert
ACC Corporate Affairs team manager
DDI 04 918 7884 MOB 0274 470 255 FAX 04 918 7636
Email [email protected]



Appendix:

Letter to claimant re advocate status

Claim Number:
3 May 2004
[Claimant identity and address withheld]


Dear [Claimant identity withheld],
This letter is to set out a change in the way that ACC will be working with you in relation to your claim in the future. This concerns your choice of advocate in your dealings with ACC. I note that Dermot Nottingham has been your chosen advocate, and ACC has a current authority for him to act on your behalf.
I wish to advise you that ACC�s General Manager for the branch network has determined that ACC will no longer recognise Mr Nottingham in the role of advocate for ACC claimants. This means you will have to select an alternative advocate or support person in your dealings with ACC. The reasons for this change have been communicated directly to Mr Nottingham.
This notification will not affect the management of your claim and your right to access rehabilitation and entitlements. Your rights under the Code of ACC Claimants Rights are fully preserved. Furthermore I wish to encourage you to select an alternative advocate or support person who can work with you [sic] your relationship with ACC. It can be helpful to have a suitable support person and ACC recognises this.
Please telephone me should you have any further questions or comments regarding this letter.

Yours sincerely
[Name withheld]
Branch Manager [Branch withheld]
Please quote the claim number
19 January 2006
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#4 User is offline   Campy 

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Posted 05 February 2013 - 01:31 AM

So why are these two still able to ply for business?

View Posthukildaspida, on 05 February 2013 - 01:23 AM, said:

It would be of assistance to clients of http://www.acc.co.nz if ACC would provide an up to date Media release in relation to Nottingham and McKinney's,
and their known close associates, status as ACC Advocates in light of what has occured on an ongoing basis on http://www.accforum.org and on
Nottingham's own laudafinem websites.

Injured and vulnerable person's have a right to personal safety, including in their own homes and as they go about their daily lives.

No one should be subjected to such unlawful, harassment and abuse.


Posted 02 May 2011 - 05:04 PM

View Post Hardwired, on 06 June 2007 - 09:39 PM, said:
Dermot Nottingham.
This is the response that ACC gave to Fair Go in relation to questions asked by Fair Go as to Nottinghams position with ACC and claimants.




...19 January 2006

Response to Fair Go media queries on advocate Dermot Nottingham

You have posed the following questions about Auckland advocate Dermot Nottingham:
� what can ACC say about his current status with our organisation;
� if there has been a change recently, what was that and why;
� how does Mr Nottingham�s current status compare to that of other advocates working in �this area�; and
� if someone approaches ACC over a review, with Mr Nottingham as their advocate, what does ACC say to this person.

1. Mr Nottingham�s current status with ACC
ACC does not recognise Mr Nottingham when he purports to be acting as an advocate for claimants in their dealings with ACC.
2. Whether there was a recent change in Mr Nottingham�s status, what it was, and why
In May 2004, ACC sent a form letter (see Appendix for the full text) to the claimants we were able to identify at that time as being personal injury clients of Mr Nottingham, advising �ACC�s General Manager for the branch network has determined that ACC will no longer recognise Mr Nottingham in the role as advocate for ACC claimants...�

3. How Mr Nottingham�s current status compares with that of other advocates working in this area
Withdrawing recognition of Mr Nottingham as an advocate for ACC claimants was a most unusual step for ACC to take. It arose because after considerable endeavours over an extensive period of time, ACC found that Mr Nottingham was unable to work constructively with us. The terms under which ACC would continue to work with Mr Nottingham were advised to him in writing. He declined to meet the conditions set by ACC, indeed there has been no change in his behaviour or his approach to ACC. ACC decided not to work with him in the interests of the safety of staff and claimants, and the need to assist claimants to move through rehabilitation to independence.
DRSL at this point had not declined to work with Mr Nottingham. DRSL operates independently from ACC and makes its own determinations about the acceptability of individual advocates.
Mr Nottingham should have been aware from early May 2004 that he would not be recognised by ACC as an advocate for claimants. That remains the position today.


4.What ACC tells them if someone indicates to ACC that they have engaged Mr Dermot Nottingham as their claimant advocate
The form letter in Appendix A, appropriately modified with the current date, would be sent to the claimant.




Simon Calvert
ACC Corporate Affairs team manager
DDI 04 918 7884 MOB 0274 470 255 FAX 04 918 7636
Email [email protected]



Appendix:

Letter to claimant re advocate status

Claim Number:
3 May 2004
[Claimant identity and address withheld]


Dear [Claimant identity withheld],
This letter is to set out a change in the way that ACC will be working with you in relation to your claim in the future. This concerns your choice of advocate in your dealings with ACC. I note that Dermot Nottingham has been your chosen advocate, and ACC has a current authority for him to act on your behalf.
I wish to advise you that ACC�s General Manager for the branch network has determined that ACC will no longer recognise Mr Nottingham in the role of advocate for ACC claimants. This means you will have to select an alternative advocate or support person in your dealings with ACC. The reasons for this change have been communicated directly to Mr Nottingham.
This notification will not affect the management of your claim and your right to access rehabilitation and entitlements. Your rights under the Code of ACC Claimants Rights are fully preserved. Furthermore I wish to encourage you to select an alternative advocate or support person who can work with you [sic] your relationship with ACC. It can be helpful to have a suitable support person and ACC recognises this.
Please telephone me should you have any further questions or comments regarding this letter.

Yours sincerely
[Name withheld]
Branch Manager [Branch withheld]
Please quote the claim number
19 January 2006

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#5 User is offline   hukildaspida 

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Posted 07 February 2013 - 11:08 PM

That's a very good question.

What is http://www.acc.co.nz stance on these people?

Do they recognize them as Advocates whom are Fit and Proper persons or not?

It is understood Nottingham and McKinney are also associated with the Filth Files and Media Malice websites.

A Google search of laudafinem blog has this at the bottom of there page so must have been ordered to remove content.

In response to a legal request submitted to Google, we have removed 3 result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org.


We understand some legal action was taken that they no longer have videos on Youtube.

How long will it take for them to have there Vinemo account closed down for similiar reasons and breaching there Terms and conditions of service?


http://vimeo.com/

http://vimeo.com/terms


Terms of Service

Last Updated: January 2013



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All videos you submit must also comply with our Uploading Guidelines, which are incorporated into this Agreement. If you are a Vimeo PRO user, you must comply with our Vimeo PRO Guidelines.

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View PostCampy, on 05 February 2013 - 01:31 AM, said:

So why are these two still able to ply for business?

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#6 User is offline   hukildaspida 

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Posted 04 July 2013 - 05:45 PM

Related Topic & information about said persons.

Rabone Limited Scam

http://accforum.org/...e-limited-scam/
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#7 User is offline   hukildaspida 

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Posted 04 July 2013 - 05:53 PM

Well maybe the former Whistleblower website's managing editor Earle McKinney also known as Robert Earle McKinney or Bob McKinney is also the Managing Editor of Laudafinem blog as they are clearly operated by the same associates. Laudafinem blog on http://wordpress.com/ has the same pattern of criminal harassment to a variety of person's they have hatred towards.

Harassment Act
http://www.legislati.../DLM417078.html

Judge followed and filmed by irked claimant: [A Edition]

FISHER, David. Sunday Star - Times [Wellington, New Zealand] 05 Oct 2003: A; 3.

Footage to be posted on `whistleblower' site

--------------------

[email protected]

A HIGH COURT judge faces police questions after being followed by a disaffected litigant who videotaped him driving on the wrong side of the road.

Self-styled justice campaigner Dermot Nottingham made a complaint to police after he watched Justice Tony Randerson's blue Toyota Camry cross the centre line of a suburban Auckland street.

Nottingham captured the image of the judge's car crossing the line after following him across town and to his home. He told the Sunday Star-Times he was following the judge as part of an investigation to support his submission that the judge should not have handled the odometer tampering case.

Nottingham plans to print the findings of the investigation on a new website - www.whistleblower.co.nz - next weekend. He would also place the videotape and photographs on the site.

Nottingham said the website would be used to expose injustice. The email address Nottingham plans to use on the website is judgehunter @whistleblower.co.nz.

Nottingham said other images he claimed showed Randerson speeding and failing to indicate would also be placed on the internet.

Raynor Asher, president of the Auckland District Law Society
, said he was concerned that Nottingham - who has a criminal record - was following a judge and using the "judgehunter" email address.

"I find it very disturbing. Justice Randerson is the executive judge at Auckland now. He is regarded by the profession as an exemplar.

"I am appalled to hear that Nottingham is doing that. It is disturbing to see judges being subjected to that sort of harassment - and I regard it as harassment."

According to a list tabled in parliament in 1997, up to December 1991, Nottingham had 39 convictions, including theft, burglary, wilful damage, assault, assaulting a traffic officer, unlawfully interfering with a motor vehicle and 24 charges brought by the Inland Revenue Department.

Nottingham said he had been wrongly convicted "numerous times". He also said there was no reason for anyone to have concerns about his following a judge and he was adamant he was no danger to Randerson or any other judge.

"I have never threatened any judicial officer (and) never been considered a threat to any judicial officer," Nottingham wrote to the Star-Times.

A letter detailing the complaint had been delivered to the judge. Randerson found against Nottingham in an appeal court hearing in 2000.

Police confirmed receipt of Nottingham's complaint. A spokeswoman at police headquarters in Wellington said there was an obligation to investigate complaints.

The complaint was sent to the police in Wellington under the Community Roadwatch scheme. Nottingham sent it with a detailed written complaint, signed by Whistleblower's managing editor Earle McKinney.

In the complaint, McKinney refers to the case of Ding Yan Zhao, 19, who was jailed for two years and disqualified from driving for five years after pleading guilty to dangerous driving causing the death of Georgia McCarten-Graham, aged 4. Justice Randerson halved Zhao's sentence because of a $40,000 payment his family offered as reparations.

Word count: 501
Show less



Copyright Independent Newspapers, Ltd. Oct 5, 2003
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#8 User is offline   not their victim 

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Posted 14 July 2013 - 11:58 AM

Mc Kinney and his so called campaigners should just shut the **** up

they know NOTHING...about the Mc Carten Graham case....

and these sick stalkers will have their day in court soon enough, if they dont stop harassing and haranguing people

http://lawfuel.co.nz...dered-to-prison
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Posted 23 July 2013 - 05:31 PM

Oh dear looks like we have hit a raw nerve that we have been landed with all these Red9 Negatives.

Says a lot about the character of those whom are giving them to us and what type of lowlife scum have infiltrated http://accforum.org forum.

Have a great day you bludgers, you should go out and get a real job, or do you have Criminal Convictions and reputations of ill- repute no one wants to employ you?

Or are you already on Home Detention?

If not a lengthy dose of time out in the Grey Bar may be the ideal place for those whom have nothing better to do but try to discredit others, including Judges.

The role of courts and Judges
http://www.justice.g...urts-and-judges

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Posted 28 April 2015 - 04:17 PM

One and the same Robert/ Earle Mckinney?

Businessman tries to involve MPs in High Court case
6:50 PM Monday Apr 13, 2015

http://www.nzherald....jectid=11432020

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Banking
Commercial Property
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National
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Judge Wylie said no evidence from the MPs could be relevant to the matters before the court. Photo / File Judge Wylie said no evidence from the MPs could be relevant to the matters before the court. Photo / File

A real estate company owner in a dispute with an agent over use of a brand name has tried to have two Members of Parliament give evidence in the case.

The case between Dermot Nottingham and Auckland agent Martin Honey is currently under appeal to the High Court after Mr Nottingham's complaint to the Real Estate Agents Authority and subsequent appeal were dismissed.

The dispute arose after Mr Nottingham's company Property Bank Realtor Limited bought a Remax franchise in 2009 previously operated by Mr Honey.

Mr Nottingham claimed that Mr Honey continued to operate a website with Remax branding after the sale.

After he made complaint to the authority, Mr Honey made his own complaint about Mr Nottingham's conduct.

That prompted a complaint from Mr Nottingham, his brother Phillip Nottingham, and Property Bank Realtor director Robert McKinney, that Mr Honey's complaint was false and dishonest.

The authority's complaints assessment committee considered the complaints and decided to take no further action.

Mr Nottingham's appeal against that decision was also dismissed.

He has now appealed to the High Court, alleging the tribunal acted "corruptly, dishonestly, and immorally", and dishonestly misreported the evidence before it.

In an interlocutory judgement, Justice Edwin Wylie dealt with a number of applications by Mr Nottingham, including a request that a full bench of the High Court hear the appeal, which was rejected.

Mr Nottingham also sought to call MPs Nathan Guy and Jackie Blue to give evidence, claiming that Mr Honey had talked to Mrs Blue about the matter, who had in turn told Mr Guy, who appointed the members of the tribunal.

Judge Wylie said no evidence from the MPs could be relevant to the matters before the court. "Whether or not Mr Honey spoke to Mrs Blue, and what actions Mrs Blue did or did not take, will simply not be relevant to the key issue on the appeal."

According to the earlier tribunal's appeal decision, Mr Honey said there had been no intention to trade off the Remax brand. The substantive appeal will be heard in June.

- NZME.

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#11 User is offline   hukildaspida 

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Posted 02 June 2015 - 05:06 PM

Did Judge Beattie do his homework and see on the internet and other places of information that Advantage Advocacy associates, including the aforenamed Mckinney, are very capable of working and not entitled to http://www.acc.co.nz entitlements?


Down load from the Dermot Nottingham site, before he went to gro
Submitted by Copy and paste. (not verified) on 13 August 2002 - 12:01am.

Keith Abbott
AKA - "Keith the Chief"
AKA - "Abbo"

http://archive.indym...ned-down-street


This is the photograph of Constable 'A', the Police Constable responsible for killing Steven Wallace at Waitara in the early morning of 30 April 2000. The New Zealand media, (excepting the National Business Review), have entered into an agreement with the New Zealand Police not to identify Keith Abbott, even though the Full Court of the New Zealand High Court have refused an application for name suppression. In Gods name why?

Against that background, Mr Dermot Nottingham the publisher of this website undertook an independent investigation into the killing of Mr Wallace by Constable Abbott. His report can be found below. Its conclusion is that there is a prima facie case against the Police Constable for murder. Mr Nottingham is alleging that there has been a Police cover-up.

Upon the publishing of the report and the photograph of Constable Keith Abbot on this website the reaction has been amazing. On one hand, Mr Nottingham has been threatened by the Police and by other individuals. One individual threatened to kill Mr Nottingham and his family. Mr Nottingham remains undeterred to see justice be seen to be done. On the other hand, there has been hundreds of thousands of hits on the site. Previously you had to actually affirmative click a button to see the photograph. This facility was removed when only 16 people did not click to see the photograph after presumably having read Mr Nottinghams report.

It is strange indeed that the media having agreed not to identify the Killer, because presumably he was a Police Officer (and the Police report cleared the killer of any wrongdoing), should run a massive number of stories about the website that named and displayed a photograph of the Killer. Was this the media's integrity being disclosed for what it really was? Reach an agreement with the Police and then effectively break it by blaming this website. The majority of New Zealanders would not have known this website and the identity of the Killer if the media had not gone into frenzy over the story of this website, and effectively advertised the presence of the site.

Importantly Mr Nottinghams reports conclusions that a charge for murder should be brought are based on the evidence, which is contained in the Police report and yet have been completely missed by the New Zealand Police and the media. Most importantly, the most damaging evidence against the Killer is his own statement, which incomprehensibly is used by the Police Reports author, Detective Inspector BR Pearce to find that no grounds exist for the Killer to face a charge of unlawful killing.

From the emails received addressed to this sites publisher, the vast majority of New Zealanders believe that the New Zealand media, (other than this site and National Business Review) are gutless lackey's of the establishment, who have actually used the promotion of this site on the television news, the radio, and the printed media to breach what was an agreement that should affront the most conservative citizen.

The photograph of the killer of Steven Wallace can now be found on numerous websites, message boards, and electronic forums worldwide. Advantage Advocacy as a small part of the New Zealand media has shown that free speech cannot be suppressed by the need to have millions of dollars to run a newspaper, a radio station, or a television station. These media moguls purely for the motive of profit do all of which from New Zealanders need and right to know what is happening in this country. The Internet gives the meaning of free speech its true essence.

The publisher of this website and the access has made not a cent to the identity of the killer and Mr Nottinghams report has not cost the Internet user a cent. 'Viva la Internet'.

Unit T, Chelsea Park.
162 Mokoia Road.
Birkenhead.
P.O. Box 33-647
Takapuna.

Auckland New Zealand.
Aotearoa.
Phone: +64-9-480-2795
Fax: +64-9-480-2796

Email: [email protected]
http://www.advantageadvocacy.co.nz

Photograph needed.
Submitted by Slippery_8 (not verified) on 13 August 2002 - 3:03am.

If you have a photograph of Constable Keith Abbott post to http://southafrica.i...002/08/1650.php
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Posted 02 June 2015 - 05:10 PM

NZPA News Jan 03 - New Zealand Police Association
www.policeassn.org.nz/system/files/file/2003-01_0.pdf
Jan 8, 2003 - Auckland Staffing Crisis Update ... page 7 ... Published by the New Zealand Police Association. P.O. Box ..... Williams and Dermot Nottingham, it.


Volume 36, Number 1, Jan/Feb 2003 January/February 2003 N e w Z e a l a n d P o l i c e A s s o c i a t i o n N e ws l e t t e r

Waitara – What mischief is created in a Vacuum
…more on page 3
What the NZ Public thought about Waitara
...more on page 6



The factors above combined to build
public concern that the Police had got
it wrong in Waitara that Sunday
morning. From that week on, with
various side-shows such as the naming
of the constable by National Business
Review and the commentary by the
usual publicity seekers such as Peter
Williams and Dermot Nottingham, it
was a slow, and for the constable
involved, torturous path through the
laying of a private prosecution,
depositions, a 345 application, and
finally a murder trial. John Rowan QC
ultimately filled the vacuum created as
he began leading the Wallace family in
a search for a legal remedy for their
grief.

Whenever the facts have been in issue,
such as the homicide investigation and
the decision as to whether to charge,
the depositions, and the trial, the
ruling has gone the way of the
constable. One can only assume the
still absent PCA report, will do the
same.
However, when the state has been
required to rule on issues such as name
suppression, 345 application, trial
venue, an even informally on a stay of
prosecution, it has ruled against the
constable.
Despite the way in which the debate on
protection for Police has gone, it is not
protection from being privately
prosecuted which is sought. Given that
the Solicitor General has indicated he
will not stay a private prosecution for
murder against a police officer for public
interest reasons, and given the Chief
Justices finding that a defence of self
defence must always be a question for
the jury (Police shooting are almost
invariably self defence questions), a
police officer so prosecuted in future
will invariably face a jury trial.

What police officers urgently need is a
review process at least somewhere in
the system, which gives them the
opportunity to have the equivalent of a
stay of prosecution, where the
prosecution is clearly vexatious or
unjustified.
The recent filing of private prosecutions
against two senior police and a QC
shows that the private prosecution door
against police is wide open and likely to
be often used in the future.
Returning then to the question posed at
the beginning of this article. How did a
relatively straight forward self defence
shooting by a well trained, experienced
and mature constable end up as a
precedent-setting nightmare for the
constable and his family taking over two
and a half years to resolve? The relatively
unique set of factors created the
environment in which the private
prosecution idea germinated and grew.
The main lesson to be learnt is that
preliminary reports must be made
available to the public early and
reassurances given to prevent another
Waitara.
Finally, the New Zealand public
must understand that those they
expect to move towards danger on
their behalf must have physical,
legal and moral protection, so they
can do that job effectively, and
without the fear of falling victim to
the sort of persecution endured by
Constable A and his family.
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Posted 02 June 2015 - 05:19 PM

re post #10



http://www.justice.g...cac-10057-honey


BEFORE THE REAL ESTATE AGENTS DISCIPLINARY TRIBUNAL

[2014] NZREADT 80
READT 20/12 and 49/12

IN THE MATTER OF appeals
under s.111 of the Real Estate Agents Act 2008

BETWEEN DERMOT G NOTTINGHAM
and
PROPERTY BANK REALTOR LTD
Appellants

AND
THE REAL ESTATE AGENTS
AUTHORITY
(CAC10057)

First respondent

AND
MARTIN HONEY
Second respondent
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Posted 10 October 2016 - 01:27 PM

http://www.courtsofn...court-of-appeal

Civil
Appeal Division
-
Wellington
Court:
Asher
J, Dobson J
, TBA J

Wednesday
19 October

CA437/2015

10:00am
Dermot Nottingham And Ors v The Real Estate Agents Authority
And Anor
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