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Cancellation of entire claim ACC no longer need medical assessments

#21 User is offline   tommy 

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Posted 25 March 2014 - 02:29 PM

In an overview to the ongoing saga if you could use that description to this , thomas versus nz acc law , or policy , or law being re written has it not become a "cat and mouse " or mouse and cat" scenerio whom has the ability , time or money, to achieve an honest result ?
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#22 User is offline   greg 

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Posted 25 March 2014 - 02:31 PM

View PostAlan Thomas, on 25 March 2014 - 02:19 PM, said:

Greg I simply do not understand what you are saying that my appeal requesting clarification of the legislated criteria for the ACC to follow to determine the end of incapacity was selfish. Please explain your rationale.

Try producing some documents to back your claims. They might have been
posted but how about doing this again to bring in the 2014 version.
Will I need to ask Mr Butler to supply said documents as he does backup his claims.
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#23 User is offline   Alan Thomas 

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Posted 25 March 2014 - 02:36 PM

Mini there is no possibility that you can discern as to whether or not my questions have been answered as you have not been involved in the documentation surrounding those questions is to understand the meaning of the questions. However having said that the last question clearly has not been answered. The other questions the High Court gave an inconclusive answer by saying things like "it depends" is not an answer and the Court of Appeal cannot address that question as was merely an application to be heard. What the Court of Appeal effectively said is that the answer with adequate which means the ACC can pretty well do as it pleases without any kind of criteria.

Mini without this necessary criteria your case has no prospect of success whatsoever. I must remind you that the issue of criteria has been resolved in the wording of the current legislation which identified the lack of clarity to the criteria in the 1992 legislation. Judge Beattie is a decision when he clearly identify the criteria and judge challenge that criteria in my case with the result that the High Court needed to distinguish was judge was right and was judge was wrong. On one hand we have judge Beattie being very definite in his direction or the other judge gives an infinite variable with no answer. The Court of Appeal has ruled that this matter does not need to be clarified.

Mini in my case the ACC had not used s37A and either that they claimed to have used it. So it follows in your case it will be the same in as much as the ACC have never used s37B in your case. What can now happen is the court can decide what the ACC should have done in your case such as using s37B and then imagine whatever information he likes to believe and make a judgement of fact of which you now have no ability whatsoever to appeal as this process is now permitted as a matter of law. This means that you have no access to challenge issues of fact as they get determined in the district court and not by the ACC ever.

Now before you start blaming me I must point out to you that the lawyer prepared these questions and submissions, the lawyer I might add has even one ACC related cases in the Supreme Court so he is no bunny.

I absolutely agree with you that s73(1) information in your case must originate from some form of criteria within s37B but the current situation is that the ACC don't need to do that and don't need to identify how they came about to have s73(1) information and simply leave it to the judge to imagine and then make a decision of fact which you cannot appeal. That is the technique now endorsed by the Court of Appeal as being unchallengeable in law.

So as you see the Court of Appeal has left it open for the ACC not to make decisions on any information at all but for the district court to invent the information all by itself using its own intuition and that the decision of fact the district court makes cannot be challenged in the High Court or above.

Now you and I may see this as a very clear anomaly of law however the law as it now stands does not enable us to appeal this anomaly. Like many on this site we have descended into a decision-making process based on personality cult, assumption and gossip rather than verifiable objective fact by relevantly qualified and experienced professionals.

Mini you will now see your way clear as to how this necessary for you to assist me in when my case before you can proceed.

You speak of wrongful action. This is something I know absolutely nothing about. Perhaps you could start by explaining that process to me as I do not see anything about it in the ACC legislation. Your help would be much appreciated.
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#24 User is offline   MINI 

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Posted 25 March 2014 - 02:36 PM

View Postgreg, on 25 March 2014 - 01:47 PM, said:

Mr Thomas is the second person this week in my little world who continually claimed via their own opinions
that they have been wronged.
Both have several judgements against them and both have judges stating they are wrong in the judgements.
How do you as a layman ,explain to these people they are wrong and will never achieve anything but
are ruining other's chances of justice via their continued selfish court action.?


Gregg

I have just explained to you how Alan Thomas has actually helped others. It is all there in his decision, saying loudly and clearly 'must' meaning mandatory, or obligitory, use the capacity incapacity sections of the 1992 Act.

It is just a fluke that I happen to benefit from this case of his, but then the Justices at the H/c do not see it that way. They treat my case exactly as they treat his.

I do not think you understand that this H//c cases are not to hear the substantive issues. They are to see if they met a particular group of principles to be able to be heard again in the District Court. This is all that is taken into consideration, nothing else. It is a pity the H/c Justices do not understand the quirky nature of the ACC decisions.

The ACC in my case got a good wollop, for trying to padantically bring into the court that I was late for filing. The Justice apparently said, we are having none of this, or words to that effect and dismissed it off the issues to be heard, but hasnt shown it was ever there on my decision. Shows clearly how desparate the ACC is getting.

They are doing anything to make life uneasy, and cost me having to go hire a lawyer, because ACC hired rottwieler was concentrating on pedantic rubbish.

Mini
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#25 User is offline   Alan Thomas 

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Posted 25 March 2014 - 02:40 PM

View Posttommy, on 25 March 2014 - 02:29 PM, said:

In an overview to the ongoing saga if you could use that description to this , thomas versus nz acc law , or policy , or law being re written has it not become a "cat and mouse " or mouse and cat" scenerio whom has the ability , time or money, to achieve an honest result ?


Tommy I am not challenging ACC law. I agree with the ACC law. The law is very clear. Section 37 determines by way of a medical professional the degree of incapacity for purposes of working or not working. Likewise 37 is also used to determine when a person is no longer incapacitated. The ACC point of view is that they require a medical professional to accept you as an injured person but can declare you have no longer injured based on their own intuition. When you compare the ACC viewpoint regarding section 37 and the criteria of section 51 which forms the basis of the regulated Work Capacity Assessment Procedure to determine whether or not a person is safely able to work in a new occupation you will see that there is all kinds of criteria that must be satisfied.

Tommy this is not a game but rather than forcing the ACC law as written so as the insurance Corporation does not steal from the injured of our society who have been honestly paying the levy and following the law and thus undermine the good intentions of the ACC legislators.
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#26 User is offline   MINI 

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Posted 25 March 2014 - 02:43 PM

View PostAlan Thomas, on 25 March 2014 - 02:36 PM, said:

Mini there is no possibility that you can discern as to whether or not my questions have been answered as you have not been involved in the documentation surrounding those questions is to understand the meaning of the questions. However having said that the last question clearly has not been answered. The other questions the High Court gave an inconclusive answer by saying things like "it depends" is not an answer and the Court of Appeal cannot address that question as was merely an application to be heard. What the Court of Appeal effectively said is that the answer with adequate which means the ACC can pretty well do as it pleases without any kind of criteria.

Mini without this necessary criteria your case has no prospect of success whatsoever. I must remind you that the issue of criteria has been resolved in the wording of the current legislation which identified the lack of clarity to the criteria in the 1992 legislation. Judge Beattie is a decision when he clearly identify the criteria and judge challenge that criteria in my case with the result that the High Court needed to distinguish was judge was right and was judge was wrong. On one hand we have judge Beattie being very definite in his direction or the other judge gives an infinite variable with no answer. The Court of Appeal has ruled that this matter does not need to be clarified.

Mini in my case the ACC had not used s37A and either that they claimed to have used it. So it follows in your case it will be the same in as much as the ACC have never used s37B in your case. What can now happen is the court can decide what the ACC should have done in your case such as using s37B and then imagine whatever information he likes to believe and make a judgement of fact of which you now have no ability whatsoever to appeal as this process is now permitted as a matter of law. This means that you have no access to challenge issues of fact as they get determined in the district court and not by the ACC ever.

Now before you start blaming me I must point out to you that the lawyer prepared these questions and submissions, the lawyer I might add has even one ACC related cases in the Supreme Court so he is no bunny.

I absolutely agree with you that s73(1) information in your case must originate from some form of criteria within s37B but the current situation is that the ACC don't need to do that and don't need to identify how they came about to have s73(1) information and simply leave it to the judge to imagine and then make a decision of fact which you cannot appeal. That is the technique now endorsed by the Court of Appeal as being unchallengeable in law.

So as you see the Court of Appeal has left it open for the ACC not to make decisions on any information at all but for the district court to invent the information all by itself using its own intuition and that the decision of fact the district court makes cannot be challenged in the High Court or above.

Now you and I may see this as a very clear anomaly of law however the law as it now stands does not enable us to appeal this anomaly. Like many on this site we have descended into a decision-making process based on personality cult, assumption and gossip rather than verifiable objective fact by relevantly qualified and experienced professionals.

Mini you will now see your way clear as to how this necessary for you to assist me in when my case before you can proceed.

You speak of wrongful action. This is something I know absolutely nothing about. Perhaps you could start by explaining that process to me as I do not see anything about it in the ACC legislation. Your help would be much appreciated.


Sorry it was question three I was speaking about. Not four. I have edited it now.

Mini
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#27 User is offline   Alan Thomas 

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Posted 25 March 2014 - 02:45 PM

mini there are two things you wrote great about that are wrong.

The High Court cannot hear the substantive issues but only the point of law. what you need to be doing as seeking clarification of the law as it should have applied in a given circumstance. You cannot be asking the High Court to distinguish one fact from another. If you feel that the legislated procedure has not been followed then you have a case in the High Court which will invariably simply submit the substantive issues back to the district court for reassessment with an instruction as to how to apply the law. This is what the High Court has always done and will always do.

High Court rules prevent the High Court from hearing a late application. There is no flexibility in this rule. I have the same problem because of my brain injury that I was a couple of days late in presenting my submissions. This means that injured people are denied access to more because of the injury but there was nothing that can be done as law is what it is.
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#28 User is offline   greg 

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Posted 25 March 2014 - 03:43 PM

Mr Thomas ;Why do you keep repeating posts that are [Mr Thomas]OPINIONS that prove to not be true
due to court judgements ?.
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#29 User is offline   tommy 

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Posted 25 March 2014 - 04:09 PM

The some called end result should end in proper rehab if the claimant cannot return to pre innjury employement as demonstrated , what are the stats or is a figure not available, for true and successful rehab or this nonsense keeps persisting for long term claimants , trying to get full and proper rehab ? given the fact of fraudulent or non fraudulent activities exist or may exist? a dumb question i spose gets a dumb answer ?
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#30 User is offline   MINI 

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Posted 25 March 2014 - 04:10 PM

View Posttommy, on 25 March 2014 - 02:29 PM, said:

In an overview to the ongoing saga if you could use that description to this , thomas versus nz acc law , or policy , or law being re written has it not become a "cat and mouse " or mouse and cat" scenerio whom has the ability , time or money, to achieve an honest result ?


The problem is with ACC and their laws, you have to have exghuasted them before you are free to do anything else. This does not of course mean that we would win anywhere else, but at least it is new eyes and ears.

So the cat and mouse has to come to its end, which in Thomas and my case, it has, in the legal system. He with wc and me with interest.

Mini
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#31 User is offline   greg 

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Posted 25 March 2014 - 04:15 PM

Mini ; you are finishing your interest claim.?
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#32 User is offline   MINI 

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Posted 25 March 2014 - 04:27 PM

View PostAlan Thomas, on 25 March 2014 - 02:45 PM, said:

mini there are two things you wrote great about that are wrong.

The High Court cannot hear the substantive issues but only the point of law. what you need to be doing as seeking clarification of the law as it should have applied in a given circumstance. You cannot be asking the High Court to distinguish one fact from another. If you feel that the legislated procedure has not been followed then you have a case in the High Court which will invariably simply submit the substantive issues back to the district court for reassessment with an instruction as to how to apply the law. This is what the High Court has always done and will always do.

High Court rules prevent the High Court from hearing a late application. There is no flexibility in this rule. I have the same problem because of my brain injury that I was a couple of days late in presenting my submissions. This means that injured people are denied access to more because of the injury but there was nothing that can be done as law is what it is.


Thomas

The Justice dropped the late application sheet by the ACC counsel. Wouldnt even consider it. After all I had accepted at Napier court my $200 fee and my application come submission type thingi!! All the head honcho's have been telling me the Judge would have accepted it and he did. Didnt even mention it in his decision. My lawyer said it was not good that the ACC counsel used it as a bully tactic as I was doing my own case until he warned me of intention to use 'late application' and ask for 'costs'.

Neither happened. The Justice didnt order costs and he refused to hear late application as he said it wasnt late.

Good for him. Look at the success' in your special appeal.

I say that question no 3. means ACC MUST consider section 37A &/or B when determining answer to question of if I am entitled to weekly compensation under the 1992 Act, as it was 1998 when I asked for it. It doesnt matter if the law has changed or not. As that is what the law was when I asked for my w/c.

I tell you ACC are getting frantic when they use these tactics.

Mini
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#33 User is offline   MINI 

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Posted 25 March 2014 - 05:01 PM

View Postgreg, on 25 March 2014 - 04:15 PM, said:

Mini ; you are finishing your interest claim.?


Gregg

I cant go any further.

I intended to go for it via wrongful action in 2004, so I may as well do that now.

I have done everything I can to let them pay me out, without bringing them into disrepute in 1998, by how I was treated, but they want to go the Civil Action. It is time for me to stop mucking about trying to get it through the Courts.

Judge Joyce was very very wrong though, and ACC made a right hash of the information they gave him. Of couse he read theirs and not mine which I could prove, but the Justice on the 20th this month found that my special leave could be dismissed, because even though my lawyer may have been right about the estoppel and res judicata issues, he didnt need to consider the issue as he was satisfied that it is an abus of process for me to pursue issues years out of time, that she has had every opportunity to pursue.

Of course here he is not taking into consideration that if I had taken the case for interest further in 2004, it would have had the same outcome as ACC and the Courts read s114 differently then until Kearney was completed in 2010. They took WINZ and abatement into consideration as necessary information therefore no entitlement to interest.

So why would I waste the money taking it further and besides after Kearney and then Miller, ACC gave us the right to have ACC HO look at our case and say if Kearney and then Miller made any difference to them paying out or not. In my case both times they said I had no entitlement because of res judicata (heard before) and not same as Kearney.

Concerning Miller it is not even finished in the Courts yet. Acc has only made up their own policies and proceedures. So it is still going to be a blood bath when using Miller as case law. Best to use Kearney as he covers everything.

Mini
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#34 User is offline   MINI 

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Posted 25 March 2014 - 05:02 PM

View Postgreg, on 25 March 2014 - 04:15 PM, said:

Mini ; you are finishing your interest claim.?

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#35 User is offline   Alan Thomas 

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Posted 25 March 2014 - 05:06 PM

Mini the proper approach is plain and simple. The ACC received insurance premiums and uncertain criteria are required to pay out on that insurance liability. The question is then, what is the criteria for the decision?

The court needs to answer a question of law in the High Court and above. There is absolutely no point in asking the court to make a decision regarding the substantive facts.
What you need to do is to go to the court armed with the question of law is written whether the ACC should have done this or that which in essence means what does this part of the legislation actually mean.

I achieved the High Court decision requiring s73(1) information to be either s37A( &B) or s51.
The next stepon the questions were whether or not the ACC had followed the criteria within either of those sections of law. This was answered by the district court to the extent that the ACC did not.
The next question is whether or not the district court could set aside the ACC wrong decision being challenged and invent a new reason based on a separate section of law to achieve the same result. Neither the High Court nor the Court of Appeal address that question but rather sidestepped the issue. This now leaves it open for the ACC decision to be corrected by district court had ruled upon leaving no possibility of any challenge of fact.

Of course nowThe matter proceeds on to judicial review as the District court rules have been broken not to mention the ACC reviewer adjourned the hearing without the information the ACC claimed to possess (Work) and made a decision without reconvening which meant there was no actual hearing. This means neither out review hearing or at the district court level of fact ever been addressed with the Court of Appeal endorsing that process.
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#36 User is offline   Grant-Mac 

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Posted 25 March 2014 - 06:05 PM

Quote

BREAKING NEWS

The courts of New Zealand have confirmed that the ACC no longer need to rely upon medical information to cancel the entire claim on the basis that they are now entitled to rely upon private investigators collecting the assumptions from members of the public.

In the Court of Appeal of New Zealand
CA670/2013 [2014] NZCA89


Does the reference in s73 of the 1992 Act to "information" require objective evidence of lack of incapacity?

s73(1)

The Corporation shall...if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment...

With regard to determining [in]capacity the following clauses pertain.

s37A/s37B

(3) The Corporation may make a determination under this section...the Corporation may obtain such professional, technical, specialised, or other advice from such persons as it considers appropriate.

So essentially, ACC [rightly or wrongly] are not required to seek medical opinion in the determination with regard to [in]capacity. Other advice is rather an open category and can be read broadly, which could include lay witnesses, if they are considered appropriate.



Grant

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#37 User is offline   Grant-Mac 

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Posted 25 March 2014 - 06:32 PM

Quote

The High Court cannot hear the substantive issues but only the point of law. what you need to be doing as seeking clarification of the law as it should have applied in a given circumstance. You cannot be asking the High Court to distinguish one fact from another. If you feel that the legislated procedure has not been followed then you have a case in the High Court which will invariably simply submit the substantive issues back to the district court for reassessment with an instruction as to how to apply the law. This is what the High Court has always done and will always do.



Impact Manufacturing Ltd v ARCIC is authority for a point of law being defined as - "whether or not a statutory provision has been properly construed or interpreted or applied to the facts in question..."

Thus a mixed question of fact and law can be determined to be a question of law; Commissioner of Inland Revenue v Walker [1963] NZLR 339 (SC) at 354. The incorrect treatment of facts can also amount to a point of law. This would apply to a decision that was not supported by the evidence, or where the decision is clearly not consistent with the evidence; Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (H.L.)

Grant

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#38 User is offline   Alan Thomas 

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Posted 25 March 2014 - 07:49 PM

View PostGrant-Mac, on 25 March 2014 - 06:05 PM, said:

Does the reference in s73 of the 1992 Act to "information" require objective evidence of lack of incapacity?

s73(1)

The Corporation shall...if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment...

With regard to determining [in]capacity the following clauses pertain.

s37A/s37B

(3) The Corporation may make a determination under this section...the Corporation may obtain such professional, technical, specialised, or other advice from such persons as it considers appropriate.

So essentially, ACC [rightly or wrongly] are not required to seek medical opinion in the determination with regard to [in]capacity. Other advice is rather an open category and can be read broadly, which could include lay witnesses, if they are considered appropriate.



Grant



Grant it seems that you have grasped the nature of the problem. ACC will only accept incapacity by way of medical report but will declare a person no longer incapacitated from any other advice they dam well please In total disregard and defiance of the medical facts.

What people fail to be aware of the is that this is the entire basis of the ACC fraud investigation unit approach to cancelling claims and prosecuting people for fraud.
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#39 User is offline   MINI 

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Posted 25 March 2014 - 11:39 PM

View PostAlan Thomas, on 25 March 2014 - 07:49 PM, said:

Grant it seems that you have grasped the nature of the problem. ACC will only accept incapacity by way of medical report but will declare a person no longer incapacitated from any other advice they dam well please In total disregard and defiance of the medical facts.

What people fail to be aware of the is that this is the entire basis of the ACC fraud investigation unit approach to cancelling claims and prosecuting people for fraud.


Alan & Grant

it is not only a problem for fruadulent people it is also a problem for some who have done nothing wrong.

This is where both Justices for Thomas and Mini have missed the point and that is that this issue of not using sec 37 when disallowing the w/c to commence or cutting someone off it, has actually be proved in the Thomas case at the answer to the third question of last years court case, in that it says that it is obligatory to consider section 37A when considering a section 73- Suspension, cancellation, or refusal of compensation and rehabilitation. The Corporatation shall, (this is obligatory)suspend or cancel that payment.

This tells me that the words suspend or cancel must also cover the heading word which says 'or 'refusal of compensation and rehabilitation'. (As in my case) And the Court in Thomas' case has said that section 37A (if working ) or section 37B (if not working) must, is obligatory, is mandatory, call it whatever you like it means the same, be considered.

Now the that consideration can be challeged now trouble in what they did and said with prove, therefore they were unlawful if they did not carry out that consideration. This was called wrongful action and you write to HO for a payment outside the legislation. It is perferable to have tried every legal avenue before doing this. As you approach with no stone left unturned. If ACC say 'No', as they did to me in reference to my asking for w/c in 1998, you dont turn away and believe them this time. You simply get the best civil lawyer you can and take them to a new court with new faces and ears and fight the battle to get all your entitlements unlawfully kept from you back again, with interst and damages.

The law is there to get it right and just because I have been concentrating on interest, out of time and years after I first had it heard, that only means I am being punished for being diligent and asking for interest straight after my right entitlement to w/c has been accepted. I could have waited until the Kearney case came along, but who knew in 2004 that ACC used WINZ and abatement against you, when applying for interest?

So what has all this got to do with medical Grant, nothing much eh?? It is a bunch of legislative garbage that allows the ACC to slide around like a snake taking money off claimants left, right and centre.

Mind you if you have a good case that they have treated you unlawfully, there is a possibility that you may win at civil court. And claim damages as well.

I know it is going to be expensive, but seeing as all the leg work has been done and evidential documentation collected over 12 years of legal action taking place and investigation into the ways and means of the ACC itself. If someone cant do it after all this information is available, it will hardly ever happen. But I do have the successful case law. so that should make a difference.

If Alan Thomas wants to continue going around and around in circles, thats his choice. But if they really did him a wrong he too will have the same access as I have to a payment outside the legislation, which used to be called 'wrongful action' and not for nothing either.

What ever anyone who fights and carries on to get their rightful entitlements is doing the right thing in my eyes and this has shown how this forum works at its best. You just have to be prepared to put in the effort.

Mini
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#40 User is offline   Grant-Mac 

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Posted 26 March 2014 - 06:12 AM

View PostAlan Thomas, on 25 March 2014 - 07:49 PM, said:

Grant it seems that you have grasped the nature of the problem. ACC will only accept incapacity by way of medical report but will declare a person no longer incapacitated from any other advice they dam well please In total disregard and defiance of the medical facts.

What people fail to be aware of the is that this is the entire basis of the ACC fraud investigation unit approach to cancelling claims and prosecuting people for fraud.


While this most likely is true, the test in court will remain the same, viz, if a layperson provides evidence [an opinion] that there is no incapacity but a medical professional contradicts that opinion with a medical finding, then the judge will weight the evidence accordingly.

Your case however turned on different facts. In your case the evidence was given [by laypersons] that you were in point of fact working. Was there any medical evidence to the contrary [that is referred to by the judge at the DC?].

Grant

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