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Alan Thomas case NZACC 332 (19 December 2014) 118 Appeals dismissed & *unless orders*

#1 User is offline   anonymousey 

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Posted 18 January 2015 - 03:12 PM

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#2 User is offline   Alan Thomas 

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Posted 18 January 2015 - 03:36 PM

What we are dealing with here is a "constructive dismissal".

Events have been orchestrated whereby there existed and impossibility for the matter to be heard. This is achieved by arranging a sequence of events resulting in impossibility. I won't go into all of the details but there are a number of principal points.

ACC simply ignored the setting down review hearing dates resulting in deemed decisions.
ACC ignored the deemed decisions which resulted than a delay of process review hearing application to comply with those deemed decisions for each of the deemed decisions.
ACC set one review hearing date to hear 93 review hearing applications at once at which time the reviewer decided that he did not need to hear from the appellant and would investigate the matter himself by gaining access to the appellant's files in order to determine the substantive matters himself and determine whether or not the reviewer would have had jurisdiction in any event so as to determine whether or not a deemed decision was possible by way of any form of jurisdictional obstacle.
Obviously the ACC has only able to appeal a deemed decision to the district court and as such the reviewer did not have authority to decide upon a deemed decision that had already been decided as at the reviewer had already decided the matter.
Those 93 review hearing applications therefore found their way into the district court as appeals of the reviewers decision when the reviewer did not have authority to decide.
The district court bundled these and other issues again into one hearing date to determine jurisdiction.
The ACC are responsible to provide a copy of the reviewers notes, transcripts and any exhibits the reviewer relied upon to both the district court registrar and the appellant. The ACC failed to make this disclosure rendering it impossible to prepare district court appeal submissions.
The court being aware that the ACC have failed to comply with the legislated criteria of the ACC to make disclosure but decided to proceed to a prehearing without the appellant having the ability to make submissions regarding the court matters of the appeal as those exhibits still lay with the ACC.
The court then gave a time limit for the appellant to make submissions without the benefit of ACCs disclosure.
The appellant cobbled together the best submissions possible given the breach of the legislated criteria to both review hearing and district court procedure.
The appellant's adviser, who happens to be a lawyer, advise that when a court gives a date for submissions to be made the date of the career takes over responsibility for delivery as the normally accepted date of delivery for the appellant. He further pointed out that routinely by the appellant and respondent are more frequently A day too late rather than a day to early particularly when there are time pressures at hand. My experience is that the ACC are always late. In this case as the ACC failed to make delivery despite being directed to make delivery rendering it an impossibility for the appellant to have prepared submissions in any event anyway.
Notwithstanding the court did give a date and may indeed be entitled to enforce that date to the minute. That is an automated process of which the court must then make a decision to waive based on discretion which they more often than not do when is only a day two late.

In this case leniency was given resulting in 118 district court appeals were dismissed.
Within a few days the appeal to the courts decision not to reinstate the appeals was submitted seeking the district courts leave for the appellant to appeal to the High Court on the basis that discretion was not properly applied. The application of discretion is actually quite technical and I'm not about to go into the technical details here however they are based on points of law.


As a matter of interest the ACC have set down 25 review hearing applications to be heard 11 a.m.-4 p.m. 19 January 2015 (tomorrow) And I have not received a decision from the reviewer to my memorandum seeking the reviewer set down separate review hearing application dates while having regard for my medical disability of with my doctor has provide numerous letters to the ACC, reviewers, district court and others that my degree of capacity limit is two hours per day and only a few separate issues to be dealt on any one day. The courts have usually taken regard for these medical reports advising the limitation by way of decision but invariably exceeded their own decisions by progressively increasing the amount of time allotted per day beyond my capacity thus preventing myself from being heard.

The question that is should be foremost is the issues surrounding the right to be heard in the context of an invalid having a limited capacity be heard on the duties of the court to provide disability access to the invalid. In other words it because of persons invalid status they are limited to 2 hours per day and that two hours criteria is not respected then there is a breach of the right to be heard and further a breach to the conditions agreed to with the United Nations.
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#3 User is offline   tommy 

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Posted 18 January 2015 - 03:40 PM

these cases in having a claim as in a win have been reiterted numerously on allans behalf. and have to date not eventuated to anything to , as you have just supported in a court hearing report , "anonymousey" . which leaves questionable doubt in allans future court cases
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#4 User is offline   tommy 

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Posted 18 January 2015 - 03:43 PM

the man would have the possibility of bankrupting rhe coffers if he achieves a win in his favour
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#5 User is offline   Alan Thomas 

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Posted 18 January 2015 - 04:59 PM

anonymousey
Judge Powell is clearly a very competent judge with a clear understanding of law and undoubtedly produces many fine judgements.


Sometimes judges get caught up in a situation whereby they find themselves following set patterns and protocols in accordance with court rules and suchlike.

In this case we of a circumstance where the judge finds himself presiding over a matter that the registrars have orchestrated a collection of appeals into one hearing with one thing leading on to another following the rules of the step of the way until a final decision is made which totally defeats the course of Justice.


The problem starts with the ACC collect devising all manner of issues into one hearing in a cascade of events occur from that point onwards.


In all likelihood the only resolution that the situation is putting the ACC, reviewer, registrar and district court on judicial review.

For the judicial process to be fit for purpose we must consider whether or not at any stage I have had the opportunity to be heard regarding the substantive issues. For example I have an accepted claim, the doctor prescribes treatment, the ACC failed to make a decision to fund that treatment, a review hearing application is submitted, the reviewer declined jurisdiction, the matter goes to the district court with each step of the way know when considering the purpose of the ACC which is to provide an insurance policy to fund the treatment necessary for the accepted claim.

The other end of the spectrum is 93 review hearing applications timing out without a review hearing date being set up to 3 months resulting in a deemed decision to which the ACC ignore ending up in the hands of the district court that are being disposed of which seem to me that the ACC are exceedingly fortuitous in my lack of capacity to comply with an extremely simplistic situation which had been aided by the ACC failing to make disclosure which delayed the process for over a decade in the first instance.
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#6 User is offline   tommy 

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Posted 18 January 2015 - 05:50 PM

one wonders if you do grandeurs of dillusion ,. allan . but in mentioning that , good luck . on your ongoings as in your entilements aganst the corporation
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#7 User is offline   Alan Thomas 

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Posted 18 January 2015 - 11:23 PM


anonymousey
I only read the first few lines of your posting and could see that you are indulging yourself in your same rhetoric whereby you would reconfigure what I write into something entirely different and then comment on your reconfiguration which has no connection whatsoever to what I have written. The implication is of course that you are suffering from a dysfunctional disorder rendering you incapable of rational thought and discussion. Sadly your disorder is common among people who suffer from issues of prejudice and cannot stand back from the situation to examine the issues as they really are.





With regards to judge Powell he is a competent judge who interprets the law with precision and delivers a decision accordingly.

I as an applicant to have the substantive issues heard have a legitimate expectation that matters are resolved. Judge Powell does have the power of discretion which is of course a variable that has a bandwidth of interpretation. Possibly we are either extreme and the only remedy to this different viewpoints regarding the legal interpretation of the degree of discretion as with the High Court which is the reason why I have submitted an application to the district court to be heard in the High Court. The reason we have an appellate process is to constantly refine the law. As I have a very high regard for the clarity of law it is appropriate to me to seek clarity from those with greater experience than judge Powell. Judge Powell Would probably be the first to tell you that if he had greater legal expertise and experience he would already be sitting in the High Court as a judge. Undoubtedly one day he will. This is a be all part of our binding legal traditions.




It is doubtful whether I shall bother reading anything else you ever post unless you demonstrate a significant level of recovery from your disorder.



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#8 User is offline   MINI 

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Posted 19 January 2015 - 01:50 PM

View Postanonymousey, on 18 January 2015 - 03:12 PM, said:

As the last thread was disappeared into the Members area due to the software robots being triggered - I figured this subforum should help maintain dialogue and focus on the issues within this judgement :unsure:/>/>



ps I shall try to transfer any ontopic material I dfind which is buried within other threads etc


The note under the Judges name is interesting. Does the AW stand for our beloved admin?? Anybody know??

Mini
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#9 User is offline   tommy 

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Posted 19 January 2015 - 02:01 PM

as with most long term claimants , anonymousey , the claimant does create a vast amount of claims if they choose to proceed , in challenging acc as in gaining rightfull entitlements , as in allans case i do not know what in percentages of wins vs losses against the corporation whether it has gone to court or not i have no clarity . can the man put something up on the forum to reclarify
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#10 User is offline   tommy 

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Posted 19 January 2015 - 02:13 PM

allans tenacity . vs the acc coffers , vs tax payers money, whom is protecting whom
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#11 User is offline   MINI 

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Posted 19 January 2015 - 03:16 PM

View Postanonymousey, on 19 January 2015 - 02:19 PM, said:

Not sure as its small letters connected whether or not if it is a internal reference within the Court registry system Mini?


Mousey

I have read a lot of case law, but have not seen anything such as this before.

Mini
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#12 User is offline   tommy 

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Posted 19 January 2015 - 03:25 PM

that makes fair comments ,anonymousey. i would be sure allan will make an intervention to reclarify. watch the space
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#13 User is offline   tommy 

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Posted 19 January 2015 - 04:13 PM

the proof is in the pudding . but as if a claimant has an ego which is in that persons high expectations of being right all in most circumstances of , watch the space as in future court or out of court judgements
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#14 User is offline   MINI 

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Posted 19 January 2015 - 05:14 PM

View Posttommy, on 19 January 2015 - 04:13 PM, said:

the proof is in the pudding . but as if a claimant has an ego which is in that persons high expectations of being right all in most circumstances of , watch the space as in future court or out of court judgements


Tommy

You don't ever get to see out of court judgements, so you will be waiting a long time.

Mini
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#15 User is offline   Alan Thomas 

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Posted 19 January 2015 - 06:26 PM


anonymousey

What's this about?
...there could be multiple connections as more time passes or reviews added on same matter unfortunately eg PTSD confusion

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#16 User is offline   Alan Thomas 

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Posted 19 January 2015 - 07:16 PM


anonymousey
How do you imagine you can understand any information when you are only looking at a list?



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#17 User is offline   Alan Thomas 

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Posted 19 January 2015 - 08:46 PM

DO you have any better user friendly list which is more accurate to connect with the Judgement rendered perhaps?
Yes
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#18 User is offline   Alan Thomas 

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Posted 20 January 2015 - 04:37 PM

My original response in dark blue with the final retort in light blue



View PostAlan Thomas, on 20 January 2015 - 07:28 AM, said:



Yesterday we started the 25 but only 3 were heard.
It will be interesting to see if the Fairway Reviewer offers additional time OR instead just examines the paper submissions from Alan on these additional 22 Appeals? Or in fact disregards and ignores these submissions and evidence as Alan states he walked out of the hearing.
Legislation requires me to be present at the hearing and entitled to be heard and as such the reviewer does not have the authority to address the remaining 22 matters on the papers without my consent which certainly would not be given.
Legislation does not permit the reviewer to ignore review hearing times and dates set to address the review hearings set down for that day.


IMHO the court judgement rendered in the OP however suggests to me that all of this leniency and leeway that has been granted to Alan may now soon be coming to an end perhaps?
There is absolutely no possibility that a judge can have discretion to abandon the law requiring certain criteria to be fulfilled in the hearing. The right to be heard is just that, the right to be heard.

It may well also be that *unless orders* may become a feature of future disputes here ie which relate to matters that Alan or some other claimants may seek to appeal?
There are simply no possibility of this concept of the current legislation. Legislation provide what is effectively "unless orders" by setting dates such as three months to lodge a review hearing application, three months for the ACC to set a date and the criteria for hearings. Any of these tripwires feature automated legislated decision-making processes which cannot be appealed by the transgressor. For example the expiry date for the ACC to set a review hearing date expired 16 January 2015. The hearing dates for the 25 was set down for 19 January 2015 which means that if the reviewer had not made a decision by 16 January 2015 he no longer had authority to make a decision to change the dates to provide sufficient time for all 25 hearings to be heard. The question that follows is why were 25 review hearings not heard as envisaged by the person setting a hearings for that date. The reviewer asserts that the approved the date while he was on holiday, according to the fairway manager. The reviewer confirmed on the day of the hearing that he had not provided me with the decision himself as is required by legislation. This can only mean that by all accounts the only possible date for the 25 hearings to be heard was 19 January 2015 with the reviewer having the authority to set new dates on the day of the hearing when he discovered that only three hearings had been disposed of. This create something of a dilemma as it would appear that these 22 have now been converted to a deemed decisions.However the reviewer seems to perceive that I might volunteer some form of concession to have the balance of matters heard at a later date in writing. Obviously I do not see any advantage to be in that arrangement and it is doubtful if I have the legal authority to agree to it in any event as in the event that a review hearing application has already been converted into a deemed decision neither the reviewer nor I have any authority in the matter as a decision has already occurred as a reviewer has made a decision in my favour. If the decision is already in my favour what could possibly motivate me to enter into any discussions anyway?

Sorry I am not sure if there might be other legal mechanisms available from the Courts and Fairways to keep user friendly processes available so that other claimants do not suffer adverse consequences when unable to comply with directions due to reasons outside their control etc
The short answer to this issue that you have raised is no according to a significant number of district court judges on this matter. In other words the courts are saying that there is no disability access to the judicial system in New Zealand. This was within the issues that went before the United Nations very recently by Denise Powell and Warren Forster.


Sadly the way I am reading some of these judgements is that there is a risk that the Courts and Fairway might still tighten up on some rules which still have these discretionary components so hopefully there has not been too much harm done thank goodness
With your reference to fairway I must point out to you that is fairway is not a judicial institution and has no judicial authority whatsoever. The administrative duties lay with the ACC. It is questionable as to whether or not the ACC is allowed to delegate such things as setting review hearing dates or employing and instructing reviewers as this is not covered by legislation at all. You cannot tighten up rules that do not exist. The only thing that does exist is the legislation which is law, not rules for policy. The only decision maker permissible is the reviewer who must be by law totally independent of everybody. It is certainly inappropriate for a reviewer to spend any time within the ACC buildings and for that matter should not be loitering around or having any office facilities within the fairway buildings particularly when there may be publications lying around such as a reviewer tuition manual or instruction manual of any sort which has its origins with the ACC legal services as it would be in direct violation of numerous sections of ACC legislation. And yet they do.


Even though 4 hours was set for the 25 my doctor had written to the ACC and reviewer insisting that my limit was only two hours so after two hours I left.
I am not sure how this will be viewed but certainly with the Judgement above as well as other caselaw found online - it may well be that the Fairway Reviewer again does NOT relist a second hearing for Alan perhaps?
Your terminology "fairway reviewer" is ill-conceived and wrong. The concept is abhorrent to all right-thinking people who recognise the importance and legislated requirement of independence. A reviewer is simply a reviewer cleaned clear and simple with the single focus of how to the facts applied the legislation, nothing more nothing less.
At the review hearing the reviewer felt that the four hours that was set was okay because he could judge for himself whether or not I was fit to continue. In other words or paraphrasing the reviewers words it was his plan to challenge the medical profession at the two-hour mark directed by the medical profession and make his own medical diagnosis of me without even so much as a clinical examination, let alone in having any qualifications. If you read the Barber J judgement you will see that he to do this position where he thought that he with his experience could set aside the medical evidence in favour of his own medical appraisal of the situation which of course is total bollocks and offensive not just to myself but also to the medical profession not to mention the entire legal profession. The notion that an unqualified person could determine whether or not continuing on would or would not lead to a stroke or other harm to me not to mention whether or not my capacity to represent myself would become diminished passed to our point is a most serious and damning position that these ridiculous people have put themselves in whereby they actually plan to place me in harm's way and conduct some form of medical experiment while watching me and then rule on whether or not I was well at the end of the proceedings. Having regard for the fact that a whole host of medical professionals rushed be to hospital and crawl over me with all kinds of tests last week because I had pushed myself beyond the two hours in the comfort of my own home while preparing submissions on a stop start basis it seems to me ridiculous that I should favour either a district court judge or a reviewers this section of my well-being and disregard by treatment providers advice.


"... the question for the Judge is: what does justice demand in the circumstances of this case? Consideration in answering that question include:

(i) the public interest in ensuring that justice is administered without unnecessary delays and costs.

(ii) The interests of the injured party, in particular in terms of delay and wasted cost.

(iii) Any injustice to the defaulting party, although that consideration is likely to carry much less weight in the circumstances than considerations (i) and (ii). "


There is also a similar looking proviso when it comes to deemed decision processes IMHO

146 Deemed review decisions

(1) (b} the applicant did not cause, or contribute to, the delay.



I followed by doctors instructions exactly as the previous week I had been taken to hospital for a suspected stroke which undoubtedly was the result of me was a myself beyond my capacity preparing the review hearing submissions.


I cannot comment on Alans opinions and actions here

The reviewer states that he would like to continue somehow with the balance of the review hearings on another day.

This is good sign that the Fairway individual reviewer is positive
No it is not in so is that the reviewer intends to disobey the law.

What is the opinion of the forum regarding the legality of the reviewer setting a new dates beyond the three months?
Please make reference to the appropriate portion of legislation and give reasons.


HTH the above references are helpful for you Alan.
Unfortunately I am not sure if there are loopholes yet or any more wiggle room for you at the moment.
The automated decision-making process introduced by the legislators has taken away the ACCs loopholes and wriggle room. These automated decisions put in place By the legislators is in the form of punishment to the ACC for non-compliance with the legislat which is a direct result as a consequence of the ACCs historical this behaviour of several decades of warning from judges.

The difficulty is of course that now you have launched another Appeal on some *point of law* concerning similar issues perhaps?
I don't see how you have reached that conclusion. These issues are review hearing applications concerning ACC Code of Claimant Rights they do not have the right of appeal to the district court. They do not address issues such as entitlements which would go before the district court but rather address matters typically concerning ACCs refusal to communicate or keep me properly informed. These issues are really quite straightforward whereby I write a letter ACC will fail to respond I write reminder letter ACC say yes would not the letter but do nothing I write another letter asking how they are getting along such as what the progresses with my information requests which followed by an ACC decision that they have already addressed the matter which triggers my application for an investigation which follows with the complaints investigator get confused and investigating something else instead which then results in a review hearing application..

Certainly in relation to the difficulties with regards to *combining* matters - then I think this may be a consequence of your own actions unfortunately
There is simply no basis in law for the ACC to combine matters on the one hearing date much less the reviewer attempting to hear the whole of the issues all at once they are in every single review hearing application under the one umbrella in order to give a single decision for the whole kit and caboodle being on all size fits all decision as of the reviewer had taken a tinplate and was simply attempting to fill in this basis with the thinking that the fall attempt later the same therefore we can have one hearing at all of the different issues. Sadly some people are extremely stupid or even worse corrupt inasmuch as they want to charge 25 times for the one work task activity (one hearing) or worse the ACC is trying to get a discount and pay the poor reviewer only wants to hear 25 review hearing applications. By the look of the ACC submissions he is certainly only being paid a single fee for 25 review hearings.


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#19 User is offline   MINI 

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Posted 20 January 2015 - 07:10 PM

View Postanonymousey, on 19 January 2015 - 09:51 PM, said:

Mini

I found the same code on this Judge Barber decision http://www.nzlii.org...CC/2010/61.html

Sorry but still not too sure of its meaning yet? I am just wondering if it could be something like telling the Registrar where these huge files are located eg archive wellington

ATM I am still trying to locate these other references ... and yup do a digest read of the pages of Judgement material which are linked to this Judgement trying to identify connecting concepts etc :wacko:/>/>

AI 372/08, 373/08 and 398/08 and ACR 660/10



Would you believe that I have read the whole of judge Barbers 85 pages!! Sorry cant remember if the same issue had been bought up In court then and am busy myself at the moment so no time to investigate if the issues have been heard before making them res judicata. If it was the case that they had been heard earlier I can see why the Judge would be in favour of costs against Thomas. What a huge job for anyone to do to have to sift through all this tripe, twice to find out if Thomas is actually trying to acquire a break that none of the rest of us would get through ACC. If this was so I would find it very offensive.

He does not appear to understand the rights of the courts. If he cant pay his fines they will retaliate. But one has to wonder when they will pull the plug and say enough is enough. I believe there is a section that allows the Judge to determine a person shall not have any right to ACC.

Cheers
Mini
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#20 User is offline   greg 

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Posted 20 January 2015 - 07:14 PM

View PostMINI, on 20 January 2015 - 07:10 PM, said:

Would you believe that I have read the whole of judge Barbers 85 pages!! Sorry cant remember if the same issue had been bought up In court then and am busy myself at the moment so no time to investigate if the issues have been heard before making them res judicata. If it was the case that they had been heard earlier I can see why the Judge would be in favour of costs against Thomas. What a huge job for anyone to do to have to sift through all this tripe, twice to find out if Thomas is actually trying to acquire a break that none of the rest of us would get through ACC. If this was so I would find it very offensive.

He does not appear to understand the rights of the courts. If he cant pay his fines they will retaliate. But one has to wonder when they will pull the plug and say enough is enough. I believe there is a section that allows the Judge to determine a person shall not have any right to ACC.

Cheers
Mini

Mini is correct about Mr Thomas refusal to accept what he believes to be true. Now If he had a valid claim under 82 act. he would most certainly
have 'Mental by Physical' .
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