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Grant Rankin's Case Causation and other issues

#1 User is offline   Grant-Mac 

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Posted 19 September 2017 - 08:34 AM

I saw this article when I looked at the 'profiling' thread:

http://www.nzherald....jectid=11905967

I also attach the DC case. For some reason it won't upload. Use this link: http://www.nzlii.org...C/2011/316.html

My interest is this: based on the facts of the case as detailed, could there have been an alternative cause of action and if so what?

Grant
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#2 User is offline   Alan Thomas 

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Posted 19 September 2017 - 10:34 AM

Grant progressively the ACC has been working its way through historical claims were entitlements have been routinely paid in order to extract and challenge those who meet the profile described by the ranking case and others in a similar way whereby the ACC remake their original decision and withdraw entitlements. The technique being used is even though the medical professionals are in agreement for inadequate legal representation the ACC disengages from its liability and seeks to repeat the process in order to reduce its liabilities without regard to the actual realities of the medical condition as there has now been a distinct drive towards seeking legal fact as opposed to medical fact. The purpose of setting up the ACC legislation first instance was to break this problem that existed with the private insurance enterprises that were doing just that. So now instead of having lots of individual insurance companies we have one monopoly with an increased level of resource that makes it inevitable that fewer people will have compensation or even rehabilitation despite the fact that there levy payments are as high or even higher than what the insurance companies previously charged.

While the Corporation's practice is clearly fraudulent and criminally illegal that is another issue. What we are facing here is what the legislation intended and actually requires of the ACC for the ACC to administer the Act. For that we go to Parliament's instructions within the beginning of the Act to the ACC Corporation. But again that is a story on its own.

With the rank case as your sample/example let's examine what is actually happening and the decision-making criteria for the Corporation.

Legislation requires that there be an accident event that has caused an injury with the injury causing in turn and incapacity with that incapacity being quantified so as to determine whether or not it is safe for reasonable or the person to continue working and if not whether or not the claimant can receive rehabilitation into a new occupation that is safe and reasonable while having regard for the injuries, qualification, experience and skill in that new occupation.

Criteria:
  • Accident event
  • injury
  • incapacity
  • quantification

Let's see if the Ranking case ticks the boxes that the legislation have indicated are the decision-making matrix for the ACC to provide claim for cover for the purposes of determining entitlements.

The accident event
The ACC agree that Mr Rankin was involved in an accident event, falling from the truck.

The injury
The ACC also agree that Mr Rankin suffered an injury from the accident event but the issue is the extent of the injury. The treatment provider failed to carry out a full diagnosis. ACC likewise failed to carry out any diagnosis to determine whether or not it was safe to continue working. Had the ACC relied upon its profiling which included "best practice medicine" profiling style of approach it would have been revealed that it is more probable than not that a 60-year-old male who has been involved in physical work or is life would be highly susceptible to a significant incapacity from the injury. Neither the treatment provider nor ACC ccomplied with the duties. In America they would have clearly been sued to hell and back and as such this circumstance would never have arisen.

Incapacity
Initially Mr Rankin was not initially viewed as being incapacitated from his injury as he soldiered on. If we were to profile a truck driver we would probably find that most we work up to and beyond a level of incapacity with a sense of truck driver provider, Which of course is no excuse for the lack of care and lack of caution including with regards to Mr Rankin. In conjunction with the fact that there was a lack of initial medical treatment for the purposes of a comprehensive diagnosis of the injury site. Due to the underlying incapacity it appears that with this lowered capacity the injured portion was overloaded which caused deterioration which instigated further medical examination which revealed that the injury had caused incapacity. At this point the ACC should have proper regard for a section of legislation requires it to promote safety. In this case it did not And is therefore culpable at a higher legal than all others due to the relevant act of Parliament that the levy payers have paid for in order that accident events do not result unnecessarily aggravated levels of incapacity. This of course in itself does not mean anything one way or the other regarding the degree of incapacity that Mr Rankin may or may not be suffering from. The fact is that there was no compliance on behalf of both the treatment provider and the ACC.

However in the course of time an increased level of incapacity was evidence regardless of the reason. The current level of incapacity is an accepted fact with the cause being in question. The question is exclusively a medical question.
Did the accident event that resulted in an injury cause the incapacity?or
Did Mr Rankin suffer from a pre-existing incapacity that was aggravated by the injury?or
Did Mr Rankin suffer from a pre-existing Incapacity that spontaneously emerged at a time after the accident event?

Was medical evidence considered for the purposes of concluding the answers to the above questions?
If medical evidence were to be applied should it be the "gold standard " taught by the medical schools in New Zealand or the "best practice medicine" approach promoted by the ACC to the medical profession?
It is accepted as a fact that the ACC was presented with medical evidence in accordance with the "gold standard" produced by the treatment providers.
The question as to whether or not the ACC took advantage of the section of legislation that enables the ACC to obtain their own medical report by way of independence clinical examination, diagnosis with the report from the ACC approved independent medical assessors and whether those assessors produced their diagnosis and report in accordance with the "gold standard" or the ACC promoted "best practice medicine".
Essentially in this case and many like it we have the competing evidence being presented as either the "gold standard" or the "best practice medicine". The gold standard is a science-based approach which examines the evidence by way of clinical examination and various medical equipment that served to describe the individual while the "best practice medicine" adopts a statistical approach whereby it considers the norms in the population given the circumstances.
As the legislation require that the medical profession that provide the Corporation with information are registered medical professionals it follows that the diagnostic procedures are in accordance with what is taught in order to become a registered medical professional in New Zealand. So the question is whether or not the so-called "best practice medicine" meets with the legislated criteria of the ACC Act. I have not encountered any case law that has addressed this criteria contained within the legislation. However it is obviously important and an issue that should be addressed. My observations are that most so-called legal professionals are looking backwards at historical cases rather than first going to the legislation and creating new understandings of which their colleagues will rely upon in the future.
The first step would be to ask the medical schools as to whether or not "best practice medicine" is taught in medical schools and which diagnostic procedure is more valid than the other in the event that "best practice medicine" has gained a foothold in the medical teaching facilities.
Of course it is not up to the ACC or a court to make a medical diagnosis as the court is only permitted to compare the evidence being presented.

So what was the evidence that was actually presented?
It is agreed that there is an injury.
There were two schools of thought presented to the court one by way of clinical diagnosis and the other by way of statistical analysis.
As legislation requires the medical diagnosis to be that of the individual question arises as to whether or not statistical analysis has any relevance to the ACC legislation at all or whether or not statistical analysis or profiling could only at best be a guide to the ACC to help the ACC know what type of clinical examination was necessary in order that they reduce their funding to clinical examinations to that of what the treatment provider has stated the injury and incapacity to be about and any anomalies so as to determine whether or not the treatment providers have been incompetent.

The fact that Mr Rankin continued to work after he was injured yet steadily deteriorated is in fact quite a relevant to the ACC decision-making process as the diagnosis describing the accident event as being responsible for the original injury and ever-increasing levels of incapacity because he was working beyond his capacity is consistent with the facts leaving the ACC with no room to argue accept a clinical diagnosis with the use of high-tech medical equipment over and above what was already used to make an alternative diagnosis at a superior level.

Quantification
it appears that the current situation is that Mr Rankin suffers from both an injury and an underlying condition that emerged after the accident event. As the claim has been accepted for cover for the purposes of determining entitlements it therefore follows that the ACC is required by the act to determine the ratio between the effects of the injury on the level of incapacity in proportional relationship to the emerging underlying pre-existing condition as a pre-testing condition does not relieve ACC of its liability completely but at best only proportionally. In order to determine the relationship between the two factors a suitably qualified medical based clinical analysis and determination must be produced for the ACC by an independent medical assessor. With those figures the ACC must then make its determination as to whether or not the new injury in itself would have been a showstopper for a truck driver thus preventing him from working. This does not appear to have been done yet and despite the current status of the claim with the judgement in the ACC favour an application should be made by the claimant for this determination to be made as it is a legitimate expectation for the ACC to administer the Act properly on behalf of the claimant.

From my rudimentary understanding of medical science, particularly the high tech equipment, there does not appear to have been an adequate diagnosis of Mr Rankin's condition or causes to the condition by either party. Simply looking at damage done to the skeletal frame with the assumption that if there was damage caused by the muscular and other soft tissues there would be evidence to the skeletal frame is insufficient in cases such as this. Therefore to my way of thinking once the ACC has accepted cover for the claim to determine entitlements the responsibility lies with the ACC to fund whatever diagnostic system is required to determine the true nature of the injury. They have not done must and should be required to do so by a sequence of applications to the ACC initiated by the treatment provider even at this late stage as the claim is still an open claim. The judge making a decision on insufficient evidence does not form a barrier for the further processes necessary in a case such as this. I do note that many treatment providers have been dissuaded from making application for high-tech scanning and suchlike on the basis that ACC will make a fuss. I have been sitting on Drs offices when the ACC have telephoned the Doctor aand exert considerable pressure way more than any commercial insurance enterprise ever would. This is a flag of concern in relationship to the requirement for the Corporation to administer the act in accordance with the spirit of the act In the manner out of balance to the desire to maintain a financial nest egg within the Corporation.


At this stage nobody has complied with legislation in order for Mr Rankin to have his entitlements properly determined. I would have to say that the judge is most culpable in this regard as the judge is required to determine whether or not all of the relevant information from the legislation has been acquired in the manner that the legislation does require and this case should have issued a direction for the ACC to go away and fund the necessary diagnostic procedures to provide the court with all of the relevant information as the court was not in a position to have made a decision either way. This is because the ACC legislation requires a scientific level of proof well before any court gets hold of a matter which is only required to look at balance of probabilities in the normal course of events. However with regards to ACC level the court is required to determine matters in accordance with the ACC legislation over and above what the district court usually relies upon as evidence. This can be a hard habit for some judges to break as circumstantial evidence does not meet the criteria under the ACC legislation and after all the medical information presented to the court was simply circumstantial both ways And is therefore at this stage inconclusive which means that the ACC is required to make a decision on the claimants favour in accordance with the treatment providers supporting information claimant for entitlements on the relevant documentation As the ACC do not have a science-based superior scrap of information that meets the legislated criteria yet have accepted the claim for cover for the purposes of determining entitlements. If the ACC doubt of the integrity of this claim should never accepted cover in the first instance and are finding that the claimant had no substance should have cancel the claim. Perhaps Dr Coleman's viewpoint should be explored further as he seems to be the most qualified who has determined on balance of probability the fall cause the injury that has resulted in an incapacity And also triggered the degenerative process that is visible. Of course one of the telling features in this case is that Mr Rankin does not appear to be suffering from other similar degenerative processes to other parts of his body which is normally a factor that weighs heavily in any diagnosis of this sort.

Paragraph 45 of the judges decision is wrong in law As it is woefully incomplete in regards to information that is known to be available that has not been accessed but instead judge playing medical professional making his own diagnosis without a medical qualification, a common defect in such cases. If the judge wants to look at the balance of probabilities, which you should not, he would then have two submit himself to the authority of the most senior medical professional, Dr Coleman who on balance of probabilities made a finding in the claimants favour concerning the cause-and-effect between the accident event and the ongoing incapacity. The judge has no business disagreeing with that medical professional and is quite clearly out of order.

Without the ACC obtaining superior medical evidence to what the treatment providers have given neither the ACC nor the courts have any basis to argue with the treatment providers.

Mr Rankin should now fund for himself a more comprehensive and superior medical assessment and provide that information back to the ACC which will require the ACC to remake their decision based on the newly acquired evidence. He should be able to have the medical costs reimbursed. As for an appeal to the High Court as the judge has conducted himself and produced a decision outside of the legislated criteria in ACC matters such an appeal should be successful in setting aside that decision.
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#3 User is offline   Grant-Mac 

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Posted 19 September 2017 - 12:12 PM

 Alan Thomas, on 19 September 2017 - 10:34 AM, said:



With the rank case as your sample/example let's examine what is actually happening and the decision-making criteria for the Corporation.

Legislation requires that there be an accident event that has caused an injury with the injury causing in turn and incapacity with that incapacity being quantified so as to determine whether or not it is safe for reasonable or the person to continue working and if not whether or not the claimant can receive rehabilitation into a new occupation that is safe and reasonable while having regard for the injuries, qualification, experience and skill in that new occupation.

Criteria:
  • Accident event
  • injury
  • incapacity
  • quantification

Let's see if the Ranking case ticks the boxes that the legislation have indicated are the decision-making matrix for the ACC to provide claim for cover for the purposes of determining entitlements.

1. The accident event
The ACC agree that Mr Rankin was involved in an accident event, falling from the truck.

2. The injury
The ACC also agree that Mr Rankin suffered an injury from the accident event but the issue is the extent of the injury. The treatment provider failed to carry out a full diagnosis. ACC likewise failed to carry out any diagnosis to determine whether or not it was safe to continue working. Had the ACC relied upon its profiling which included "best practice medicine" profiling style of approach it would have been revealed that it is more probable than not that a 60-year-old male who has been involved in physical work or is life would be highly susceptible to a significant incapacity from the injury. Neither the treatment provider nor ACC ccomplied with the duties. In America they would have clearly been sued to hell and back and as such this circumstance would never have arisen.




1. All parties agree that there was an accident.

2. Here I am in agreement with you. Ignoring for the moment the case argued, I also feel that this is 'medical negligence', not so much on the part of ACC in the initial stages, but rather the GP. If we were to pursue that line of thinking, then we would start looking at:

Quote

32 Treatment injury

(1) Treatment injury means personal injury that is—
(a) suffered by a person—
(i) seeking treatment from 1 or more registered health professionals; or
(ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; or
(iii) referred to in subsection (7); and

(b caused by treatment; and
(c] not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—
(i) the person's underlying health condition at the time of the treatment; and
(ii) the clinical knowledge at the time of the treatment.

(2) Treatment injury does not include the following kinds of personal injury:

(a) personal injury that is wholly or substantially caused by a person's underlying health condition:
(b] personal injury that is solely attributable to a resource allocation decision:
(c] personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.
(3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.
(4) Treatment injury includes personal injury suffered by a person as a result of treatment given as part of a clinical trial, in the circumstances described in subsection (5) or subsection (6).
(5) One of the circumstances referred to in subsection (4) is where the claimant did not agree, in writing, to participate in the trial.

(6) The other circumstance referred to in subsection (4) is where—
(a) an ethics committee—
(i) approved the trial; and
(ii) was satisfied that the trial was not to be conducted principally for the benefit of the manufacturer or distributor of the medicine or item being trialled; and

(b] the ethics committee was approved by the Health Research Council of New Zealand or the Director-General of Health at the time it gave its approval.

(7) If a person (person A) suffers an infection that is a treatment injury, cover for that personal injury extends to—
(a) person A's spouse or partner, if person A has passed the infection on directly to the spouse or partner:
(b] person A's child, if person A has passed the infection on directly to the child:
(c] any other third party, if person A has passed the infection on directly to that third party:
(d) person A's child or any other third party, if—
(i) person A has passed the infection directly to his or her spouse or partner; and
(ii) person A's spouse or partner has then passed the infection directly to the child or third party.


and

Quote

33 Treatment

(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—
(a) the giving of treatment:
(b] a diagnosis of a person's medical condition:
(c] a decision on the treatment to be provided (including a decision not to provide treatment):
(d) a failure to provide treatment, or to provide treatment in a timely manner:
(e) obtaining, or failing to obtain, a person's consent to undergo treatment, including any information provided to the person (or other person legally entitled to consent on their behalf if the person does not have legal capacity) to enable the person to make an informed decision on whether to accept treatment:
(f) the provision of prophylaxis:
(g) the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis (except where the failure of the implant or prosthesis is caused by an intervening act or by fair wear and tear), whether at the time of giving treatment or subsequently:
(h) the application of any support systems, including policies, processes, practices, and administrative systems, that—
(i) are used by the organisation or person providing the treatment; and
(ii) directly support the treatment.

(2) Subsection (1) does not affect the application of the definition of treatment in section 6(1) for purposes other than those stated in subsection (1).
(3) Subsection (2) is for the avoidance of doubt.


This would be a good starting point for Mr Rankin.

Grant
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#4 User is offline   Alan Thomas 

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Posted 19 September 2017 - 01:35 PM

 Grant-Mac, on 19 September 2017 - 12:12 PM, said:

1. All parties agree that there was an accident.

2. Here I am in agreement with you. Ignoring for the moment the case argued, I also feel that this is 'medical negligence', not so much on the part of ACC in the initial stages, but rather the GP. If we were to pursue that line of thinking, then we would start looking at:



and



This would be a good starting point for Mr Rankin.

Grant


Yes did cross my mind as well as to whether or not the initial treatment provider was medically negligent. This of course is quite difficult on numerous counts the first being that the ordinary GP is not really very qualified in these matters of complex back injuries so the issue is really whether there was any information that he missed causing a failure to refer the matter on to a specialist. The second area of concern is whether or not the claimant suffered an additional injury by way of a lack of diagnosis that could result in early treatment. I am not Dr but with the very small amount of information that is in the judgement there may not have been very much to go on. With regards to the slipups of the medical profession the does however appear to be a distinct lack of diagnosis and lack of advice.

I would favour this matter be addressed by way of the legislated criteria by which the ACC may make its determinations in as much as the difference between the "gold standard" of medical science which focuses on the comparisons between medical training/experience against the information gleaned during the course of imaging, local analysis and suchlike in order to make a diagnosis, as opposed to The starting point being guided by statistical probability from which the clinician then goes about trying to find information to support the most probable injury in accordance with those statistics Under the guidance of the "best medical practice".

It seems to me that the "best medical practice" does not meet the legislated criteria and as such the ACC, reviewer and judge have base their decisions on an unlawful procedure As entitlements are not based on statistical probability but rather clinical analysis of the individual.In addition the level of diagnosis in this case it seems to be woefully inadequate for a decision to be made one way or the other.
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#5 User is offline   doppelganger 

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Posted 19 September 2017 - 10:55 PM

Grant I agree with you as this oerson now has a mental injury throught the treatment not only due to the lack of GP notes and treatment, but also at the hands of the ACC staff

20 Cover for personal injury suffered in New Zealand (except mental injury
caused by certain criminal acts or work-related mental injury)
(1) A person has cover for a personal injury if—
(a) he or she suffers the personal injury in New Zealand on or after 1 April
2002; and
(B) the personal injury is any of the kinds of injuries described in section
26(1)(a) or (B) or © or (e); and
© the personal injury is described in any of the paragraphs in subsection
(2).
(2) Subsection (1)© applies to—
(a) personal injury caused by an accident to the person:
(B) personal injury that is treatment injury suffered by the person:
© treatment injury in circumstances described in section 32(7):
(d) personal injury that is a consequence of treatment given to the person for
another personal injury for which the person has cover:
(e) personal injury caused by a work-related gradual process, disease, or infection
suffered by the person:
(f) personal injury caused by a gradual process, disease, or infection that is
treatment injury suffered by the person:
(g) personal injury caused by a gradual process, disease, or infection consequential
on personal injury suffered by the person for which the person
has cover:
(h) personal injury caused by a gradual process, disease, or infection consequential
on treatment given to the person for personal injury for which
the person has cover:

(i) personal injury that is a cardiovascular or cerebrovascular episode that is
treatment injury suffered by the person:
(j) personal injury that is a cardiovascular or cerebrovascular episode that is
personal injury suffered by the person to which section 28(3) applies.

But excludes

(2) Personal injury does not include personal injury caused wholly or substantially
by a gradual process, disease, or infection unless it is personal injury of a
kind described in section 20(2)(e) to (h).

Section 26 1B (2)


But if ACC were doing there job they would be looking at all of the revelant sections before declining entitlements.

as for the section that you suggested I think that this is the best part

(f) the provision of prophylaxis

ACC had failed to prevent the degeneration from happening after the accident when they failed to supply the rehabilitation as part of the treatment.

Treatment includes

treatment includes—
(a) physical rehabilitation:
(B) cognitive rehabilitation:
© an examination for the purpose of providing a certificate including the provision of the certificate.
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#6 User is offline   Grant-Mac 

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Posted 20 September 2017 - 06:52 AM

 Grant-Mac, on 19 September 2017 - 12:12 PM, said:

1. All parties agree that there was an accident.

2. Here I am in agreement with you. Ignoring for the moment the case argued, I also feel that this is 'medical negligence', not so much on the part of ACC in the initial stages, but rather the GP. If we were to pursue that line of thinking, then we would start looking at:



and



This would be a good starting point for Mr Rankin.

Grant


Mr Rankin faces two issues:

(a) how to re-open his case; and
(b] how to deal with the evidence.

Any litigation strategy must take into account both of these issues.

The evidence already presented to the court cannot suddenly change. It must remain consistent. Therefore any strategy must deal with that evidence on the same basis, but, must this time cogently explain the evidence in Mr Rankin's favour and why the court should find for Mr Rankin.

I will deal initially with both issues.

Grant
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#7 User is offline   Grant-Mac 

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Posted 20 September 2017 - 07:09 AM

 Grant-Mac, on 20 September 2017 - 06:52 AM, said:

Mr Rankin faces two issues:

(a) how to re-open his case; and
(b] how to deal with the evidence.

Any litigation strategy must take into account both of these issues.

The evidence already presented to the court cannot suddenly change. It must remain consistent. Therefore any strategy must deal with that evidence on the same basis, but, must this time cogently explain the evidence in Mr Rankin's favour and why the court should find for Mr Rankin.

I will deal initially with both issues.

Grant



So we start the analysis with s33:

Quote

33 Treatment

(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—

(a) the giving of treatment:
(b] a diagnosis of a person's medical condition:
(c] a decision on the treatment to be provided (including a decision not to provide treatment):
(d) a failure to provide treatment, or to provide treatment in a timely manner:


Issue A

For Mr Rankin's purposes we would need to bring a new claim under the 2001 Act. Section 33 would allow this. This fulfils the first issue.

Issue B

The second issue relates to a litigation strategy, or 'theory of the case'. This needs as previously stated, to address the evidential issues which are already canvassed in the first case [and there may be other cases, viz an appeal or two] that we need to remain consistent with.

The theory of the case requires us to explain the evidence as a failure of the medical professionals, rather than a failure of Mr Rankin or, a failure of the injury to fulfil the 'wholly or substantially' test applied. Section 33 and s32 are ideal for this.

Cases involving the application of s33(1)(d) are contentious because they import, or imply, an element of medical negligence or fault. The Act is, 'a no fault' Act. Nonetheless there is a fair bit of case law on which we can build our case.

Derrick v ACC [2010] NZACC 181 (DC):

There must be shown to be more than a mere factual delay or failure; it must be proven on the balance of probabilities that the registered health professional should reasonably have made a different diagnosis or taken different steps.

Baker v ACC (70/2009) (DC)

"Mr Miller's case is predicated on the basis that there was a delay in diagnosis, albeit a non-negligent delay..."

M v ACC (30/2009) (DC)

"Consideration of whether a treatment injury has, or has not occurred does not require any consideration to be given to the concept of whether the treatment was 'wrongful', or to any concept akin to that of medical error..."

Hislop v ACC [2013] NZACC 84 (DC).

Is authority that negligence, or 'wrongful conduct' is not the legal bar that must be reached, only that there is some 'fault'.

This is important. Doctors do not like to testify that their peers have made an [negligent] error. This avoids that pitfall [at least if we are very careful how we draft our questions].

We now have in place answers to our first two issues. Now we need to examine the evidence to insure that our theory of the case will carry the evidential burden.

Grant
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#8 User is offline   Alan Thomas 

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Posted 20 September 2017 - 09:30 AM

Grant the difficulty I think you might have with attempting a treatment injury claim is that part of the criteria for a claims acceptance is in this case would be the establishment of fact that an injury had occurred tthrough lack of treatment. In other words did any additional injury occur subsequent to the fellow reporting an injury when falling off the truck? It seems to me that this is going to be an extremely difficult ask for any medical professional to diagnose and determine, particularly at this late stage as it is difficult to see how this fellow could have worsened his situation by not receiving treatment. Would you be arguing that from the original injury and damage that he consequentially suffered a gradual process injury through lack of treatment for example?

I think anyone looking at this case such as a judge is going to simply look at your approach as a way around the original judgement with the result that they are not going to be looking very favourably at your ploy.

Would it not be better to stand back and ask yourself what is the real situation here and what went wrong? aas I previously pointed out there was a lack of clarity to the diagnosis in the first instance with the ACC arguing could be maybe could have should have until nobody knows which way is up with the result being that the judge does not want to rock the boat and neither was to look stupid. The problem is the judge was stupid when he decided to be a medical professional and make his own diagnosis when arguing against the leading medical professional who produced the best medical report which simply gave a probably type answer rather than a definitive answer.

The status quo cannot be argued as the allowed time to appeal has already passed and despite the fact that the judge has not applied the legislated criteria and have no authority to make the decision needed the case is now out of bounds.

What this case needs is a proper medical diagnosis followed with a proper report that meets the standard criteria of the ACC legislation. Thus far it doesn't exist. In the event that it is established by such a diagnosis that the only possibility of the injury was by way of the traumatic injury consistent with the fall from the truck. This will eliminate all other theories including the judges theory which he was not entitled to give. then the next step would be to simply give ACC this new report and ask them to make the decision again based on the proper medical diagnosis that reaches the threshold of the legislated criteria for such cases. As the "best practice medicine" based on statistical comparison the ACC theoretical report all have to be put aside as it does not reach the legislated criteria. Reinstatement together with interest will need to be paid because the ACC has not used a report for its decision that meets legislated criteria.
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#9 User is offline   Grant-Mac 

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Posted 20 September 2017 - 01:20 PM

 Alan Thomas, on 20 September 2017 - 09:30 AM, said:


The status quo cannot be argued as the allowed time to appeal has already passed and despite the fact that the judge has not applied the legislated criteria and have no authority to make the decision needed the case is now out of bounds.




I'll deal with your other points later.

As to this point, this would not be an 'appeal', it is a new claim pursuant to the 2001 Act.

Grant
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#10 User is offline   Grant-Mac 

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Posted 20 September 2017 - 01:28 PM

 Alan Thomas, on 20 September 2017 - 09:30 AM, said:


Grant the difficulty I think you might have with attempting a treatment injury claim is that part of the criteria for a claims acceptance is in this case would be the establishment of fact that an injury had occurred tthrough lack of treatment. In other words did any additional injury occur subsequent to the fellow reporting an injury when falling off the truck? It seems to me that this is going to be an extremely difficult ask for any medical professional to diagnose and determine, particularly at this late stage as it is difficult to see how this fellow could have worsened his situation by not receiving treatment. Would you be arguing that from the original injury and damage that he consequentially suffered a gradual process injury through lack of treatment for example?




Cases involving the application of s33(1)(d) often involve argument around the issue causation: (a) was there a failure to provide treatment in a 'timely' manner and (b] was that failure causative of the personal injury. To satisfy this test, claimants must show more than a mere factual failure or delay, it must be proven [to the civil standard] that the registered health professional should reasonably have made a different diagnosis or taken different steps: Derrick v ACC.

Grant
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#11 User is offline   Grant-Mac 

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Posted 20 September 2017 - 01:32 PM

 Alan Thomas, on 20 September 2017 - 09:30 AM, said:



I think anyone looking at this case such as a judge is going to simply look at your approach as a way around the original judgement with the result that they are not going to be looking very favourably at your ploy.




Well that is always possible. However, given that it is a new claim, that as we shall see sits very comfortably with the facts, this should not be an issue. You seem to be suggesting that the Judge, or any Judge, would not be sympathetic to a legitimate claim, if pleaded in a manner that could find for the claimant.

Grant
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#12 User is offline   Alan Thomas 

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Posted 20 September 2017 - 01:35 PM

 Grant-Mac, on 20 September 2017 - 01:20 PM, said:

I'll deal with your other points later.

As to this point, this would not be an 'appeal', it is a new claim pursuant to the 2001 Act.

Grant


I was making reference to appeal in the district court's decision which as you can see I have described as being defective on a point of law in as much as the judge went beyond his authority by determining a medical matter for self in disregard to the only clinical analysis from a senior specialist.

I understand your concept of launching a brand-new claim based on an injury suffering over and above the original injury caused by a practitioner made out of time.
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#13 User is offline   Alan Thomas 

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Posted 20 September 2017 - 01:41 PM

 Grant-Mac, on 20 September 2017 - 01:28 PM, said:

Cases involving the application of s33(1)(d) often involve argument around the issue causation: (a) was there a failure to provide treatment in a 'timely' manner and (b] was that failure causative of the personal injury. To satisfy this test, claimants must show more than a mere factual failure or delay, it must be proven [to the civil standard] that the registered health professional should reasonably have made a different diagnosis or taken different steps: Derrick v ACC.

Grant


At best you could only claim that it was an aggravation of the primary injury. You would need to consider whether or not you would succeed with the medical Council by taking the treatment provider to task in that forum. If you do succeed in that forum will then of course you would have a case.. However I would think it highly likely that the medical Council make a finding that the relevant information was not available at the time and therefore there was no mistake or causative effects. The ACC legal counsel will be obtaining a medical report that effect anyway. Even so the district court judge would probably consider that the claim had not been conceived legitimately and is simply opportunistic while in the process damaging a perfectly good medical professionals career in the process.

On what basis do you consider that the treatment provider might have done something different?
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#14 User is offline   Alan Thomas 

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Posted 20 September 2017 - 01:46 PM

 Grant-Mac, on 20 September 2017 - 01:32 PM, said:

Well that is always possible. However, given that it is a new claim, that as we shall see sits very comfortably with the facts, this should not be an issue. You seem to be suggesting that the Judge, or any Judge, would not be sympathetic to a legitimate claim, if pleaded in a manner that could find for the claimant.

Grant


I just think you would need to reach a threshold of gross incompetency on behalf of the treatment provider before you run your idea up the flagpole to see if it flies.

You must keep in mind that probably every single claimant seeking treatment could have got better treatment and a better outcome. When you have cases that are extremely difficult to diagnose in the first instance with factors such as swelling making it difficult to make a clear diagnosis it is not uncommon that the treatment provider will wait until things settle down a little and see how things go. This is particularly so with hands and backs due to the complexity. Specialists in these areas are well aware that messing about prematurely can cause more harm than good so often it is a judgement call and when you have judgement calls where there are an infinite number of variables I just think you're going to find it extremely difficult.

I think it would be far easier to just simply obtain the proper standard of medical report the first place and then require the ACC to make a new decision based on that new information that reaches the proper criteria. You will notice that the judge acknowledges that the information was not a particularly good standard which is probably why he decided to be as own medical professional and reach medical conclusions that were not actually before him.
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#15 User is offline   Grant-Mac 

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Posted 20 September 2017 - 04:04 PM

View PostAlan Thomas, on 20 September 2017 - 01:41 PM, said:


1. At best you could only claim that it was an aggravation of the primary injury. You would need to consider whether or not you would succeed with the medical Council by taking the treatment provider to task in that forum. If you do succeed in that forum will then of course you would have a case..

2. However I would think it highly likely that the medical Council make a finding that the relevant information was not available at the time and therefore there was no mistake or causative effects. The ACC legal counsel will be obtaining a medical report that effect anyway.

3. Even so the district court judge would probably consider that the claim had not been conceived legitimately and is simply opportunistic while in the process damaging a perfectly good medical professionals career in the process.

4. On what basis do you consider that the treatment provider might have done something different?


1. No this would be a new claim pursuant to the Act. You would apply for Review of any adverse decision and appeals from that to the DC if necessary. Assuming that to be necessary, your submissions would deal with the medical negligence.

3. The claim, as already stated, is largely on a 'no fault' basis. No issues from the Judge.

4. I will come to that.

Grant
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#16 User is offline   Grant-Mac 

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Posted 20 September 2017 - 04:08 PM

View PostAlan Thomas, on 20 September 2017 - 01:46 PM, said:


1. I just think you would need to reach a threshold of gross incompetency on behalf of the treatment provider before you run your idea up the flagpole to see if it flies.

2. You must keep in mind that probably every single claimant seeking treatment could have got better treatment and a better outcome. When you have cases that are extremely difficult to diagnose in the first instance with factors such as swelling making it difficult to make a clear diagnosis it is not uncommon that the treatment provider will wait until things settle down a little and see how things go. This is particularly so with hands and backs due to the complexity. Specialists in these areas are well aware that messing about prematurely can cause more harm than good so often it is a judgement call and when you have judgement calls where there are an infinite number of variables I just think you're going to find it extremely difficult.

3. I think it would be far easier to just simply obtain the proper standard of medical report the first place and then require the ACC to make a new decision based on that new information that reaches the proper criteria. You will notice that the judge acknowledges that the information was not a particularly good standard which is probably why he decided to be as own medical professional and reach medical conclusions that were not actually before him.


1. The required legal test has already been stated.

2. Which is why my medical background is an advantage and relevant.

3. Not for this chap.

Grant
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#17 User is offline   Alan Thomas 

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Posted 20 September 2017 - 05:20 PM

View PostGrant-Mac, on 20 September 2017 - 04:08 PM, said:

1. The required legal test has already been stated.

2. Which is why my medical background is an advantage and relevant.

3. Not for this chap.

Grant


1. I am talking about generating a very high standard of evidence that would be provided by the medical Council. I'm not talking about the theoretical standard of the legislation is what you are talking about does not have any actual substance without someone producing tthe evidence who was qualified to do so. It is insufficient just to claim an injury has occurred without that information being authenticated.

2. If you were to attempt to rely upon your own medical background and understanding your be falling into the exact same mistake that the ACC is, of which you are very obviously trying to seek a way around by jiggery-pokery. You need to be dealing with the primary information in the first instance rather than trying to conjure up some second rate scheme to have another roll of the dice stop

3. Obviously if this "chap" hhas tried to make his case unsuccessfully already we already know what this chap wanted to do.. The problem is it was not done properly in the first place. The way I have described is the way that will run the case successfully and perhaps the way it should have been done in the first place. Grant what is happening here is this poor fellow is becoming victim to all manner of different legal counsel who try to press forward with the case with what they got rather than getting what is actually needed to win.
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#18 User is offline   Grant-Mac 

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Posted 20 September 2017 - 06:26 PM

View PostAlan Thomas, on 20 September 2017 - 05:20 PM, said:


1. I am talking about generating a very high standard of evidence that would be provided by the medical Council. I'm not talking about the theoretical standard of the legislation is what you are talking about does not have any actual substance without someone producing tthe evidence who was qualified to do so. It is insufficient just to claim an injury has occurred without that information being authenticated.

2. If you were to attempt to rely upon your own medical background and understanding your be falling into the exact same mistake that the ACC is, of which you are very obviously trying to seek a way around by jiggery-pokery. You need to be dealing with the primary information in the first instance rather than trying to conjure up some second rate scheme to have another roll of the dice stop

3. Obviously if this "chap" hhas tried to make his case unsuccessfully already we already know what this chap wanted to do.. The problem is it was not done properly in the first place. The way I have described is the way that will run the case successfully and perhaps the way it should have been done in the first place. Grant what is happening here is this poor fellow is becoming victim to all manner of different legal counsel who try to press forward with the case with what they got rather than getting what is actually needed to win.


1. The claimant would already be constrained by the evidence argued in the historical claim. Changing the evidence is likely to be detrimental rather than helpful.

2. Well you haven't seen the argument yet. Wait and judge the argument once it is presented.

3. Not really, the argument actually put forward in the case is a very different argument than that which I propose.

Grant
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#19 User is offline   Grant-Mac 

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Posted 20 September 2017 - 06:40 PM

So the basic chronology of events:

1. 15 March 2006, fell off the back of a lorry from a height of 1.5m.

2. GP #1 did not provide an ARC18 claim form. Medical evidence: X-ray: normal lumbar lordosis; normal alignment vertebral bodies; intervertebral disc height normal; spurring of lateral margins of vertebral endplates at L2 and L4.

3. Claimant resigned from work [circa 15 March 2006]

4. Claimant managed his own back pain/injury via physiotherapy, but treatment aggravated his symptoms. Changed treatment to accupuncture.

5. GP #2 files ARC18 on 15 July 2009 for circa 1100 days.

6. 24 July 2009 ACC decline claim

7. Reported symptoms: all flexion issues: bend; squat, in/out car; sitting for protracted periods.

8. Had 11 appointments with GP #1. Of those 11 appointments, 3 mentioned low back pain, or 27%

9. 25 August 2009, ACC accept claim [injury] for 'mild lumbar sprain' sustained 15 March 2006.

10. 14 June 2010, MRI scan discloses: L5/S1 facet joint arthrosis; narrowing of L5/S1 foramina; compression/swelling L5 nerve root.

11. 18 June 2010, additional scanning shows damage to L4/L5 facet joints.

This is the chronology of events that informs the initial analysis that I would undertake. That analysis will follow.

Grant
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#20 User is offline   Alan Thomas 

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Posted 20 September 2017 - 06:41 PM

Grant if you worked this case from the get go how would you have managed it?
and
What and why do you think this case went wrong?
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