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Submissions

#1 User is offline   Grant-Mac 

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Posted 10 January 2018 - 04:55 AM

This thread will look at some basic and not so basic issues in relation to preparing submissions. It is difficult to place existing submissions as an example because of all the privacy issues involved. However it should be possible to address most of the issues around the writing of submissions.

My contributions will be made on the 'time allowing' basis.

The starting point will almost always be the letter declining something that the claimant is asking for. The following comes from a real case about to go to Review. It is fairly generic.

"We're unable to continue providing you with this support as this medical information shows that it is not probable that the pathology in the right shoulder is due to the event of XXXX or that of XXXX or a combination of both...

They opine that your current condition is no longer a result of your personal injury."


Grant
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#2 User is offline   Grant-Mac 

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Posted 12 January 2018 - 04:58 AM

View PostGrant-Mac, on 10 January 2018 - 04:55 AM, said:

This thread will look at some basic and not so basic issues in relation to preparing submissions. It is difficult to place existing submissions as an example because of all the privacy issues involved. However it should be possible to address most of the issues around the writing of submissions.

My contributions will be made on the 'time allowing' basis.

The starting point will almost always be the letter declining something that the claimant is asking for. The following comes from a real case about to go to Review. It is fairly generic.

"We're unable to continue providing you with this support as this medical information shows that it is not probable that the pathology in the right shoulder is due to the event of XXXX or that of XXXX or a combination of both...

They opine that your current condition is no longer a result of your personal injury."


Grant


So the letter from ACC does not identify which section of the legislation that is being relied upon to deny the claim. The claimant must identify [accurately] from the beginning, which section of the legislation ACC are relying on. This is always the starting point for any claim, ACC or otherwise. It is from this that any submissions [must] and will be built.

The starting point in figuring this out, if you are attempting this for the first time, is the context of the claim. Is this a first claim for cover, or are you already covered and cover is now being withdrawn. This is an important distinction that will [usually] help you to decide which section ACC are relying on. Historical claims are another issue entirely and are beyond the scope of this thread to address.

Grant
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#3 User is offline   Alan Thomas 

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Posted 12 January 2018 - 09:42 AM


64 Corporation must give notice of decisions
(1)The Corporation must give notice of its decision on a claim to the claimant.

(2)In the case of a claim for cover for a work-related personal injury to an employee, the Corporation must give notice of its decision on the claim for cover to every employer entitled to apply for a review of that decision.

(3)[Repealed]

(4)Every notice given under this section must—


(a)be written; and

(b)contain the reasons for the decision; and

©give the claimant or other person information about his or her rights to apply for review, including details of the time available to do so and an explanation of when applications can be made outside that time.



It seems that in this case subsection 4 (B) "reasons" is the operative word. We must keep in mind that a reason is a requirement of the ACC and if the decision does not contain a reason the decision then does not reach the standard of being a decision and therefore is null and void. Obviously it is ACCs interest to tempt a claimant to engage in a judicial process whereby the claimant speculates the ACCs reason and then funds very expensive legal counsel to not only perceive the speculated reason but also challenge that speculation.


As an example the ACC may claim that a person is working and therefore not entitled to their claim then simply quote the section of legislation provides the ACC the authority to make the decision without the particular portion of legislation relied upon for the reason. Very large numbers of professional advocates and lawyers fail in the duty to serve the claimant at this very first step.

In such a situation the first step is to process these matters through the information requirements which compel the ACC to provide reasons which will include the relevant facts supported by evidence which the ACC applies to the particular section of legislation as without this information any hope of appealing a decision is pretty well hopeless.



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#4 User is offline   Grant-Mac 

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Posted 16 January 2018 - 06:09 AM

View PostAlan Thomas, on 12 January 2018 - 09:42 AM, said:



It seems that in this case subsection 4 (B)/>/> "reasons" is the operative word. We must keep in mind that a reason is a requirement of the ACC and if the decision does not contain a reason the decision then does not reach the standard of being a decision and therefore is null and void. Obviously it is ACCs interest to tempt a claimant to engage in a judicial process whereby the claimant speculates the ACCs reason and then funds very expensive legal counsel to not only perceive the speculated reason but also challenge that speculation.





Reasons are provided. From my example:

Quote

We're unable to continue providing you with this support as this medical information shows that it is not probable that the pathology in the right shoulder is due to the event of XXXX or that of XXXX or a combination of both...

They opine that your current condition is no longer a result of your personal injury.


From those reasons, the claimant [if self representing] must figure out what section of the legislation ACC are relying on. In a different case, the advocate who was dealing with the application for review took the language of the letter at face value and based the submissions on that interpretation. Of course in doing so the legal test was never addressed. Only later in ACC's submissions did ACC actually provide a section. The irony was, they chose the wrong section.

My point however is this: from the 'reasons' provided, the claimant must recognise which section of the Act that ACC is relying on.

Grant
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#5 User is offline   Grant-Mac 

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Posted 16 January 2018 - 06:33 AM

View PostGrant-Mac, on 12 January 2018 - 04:58 AM, said:

So the letter from ACC does not identify which section of the legislation that is being relied upon to deny the claim. The claimant must identify [accurately] from the beginning, which section of the legislation ACC are relying on. This is always the starting point for any claim, ACC or otherwise. It is from this that any submissions [must] and will be built.

The starting point in figuring this out, if you are attempting this for the first time, is the context of the claim. Is this a first claim for cover, or are you already covered and cover is now being withdrawn. This is an important distinction that will [usually] help you to decide which section ACC are relying on. Historical claims are another issue entirely and are beyond the scope of this thread to address.

Grant


So once you have [correctly] identified the section of the Act that ACC are relying on to disallow/remove your claim, you must read that section carefully. It will provide the legal test that must be fulfilled for the claim to be denied. As the onus in [almost] all sections is on the claimant, it will tell you what is required from you, to win your case.

Everything is driven from this starting point. Do not waste time on superfluous considerations that you think are important. They either contribute to the test, or they do not. If they do not, eliminate them from your submissions. You will only know this once you read the case law that is relevant to your section. Therefore before you write anything, research the relevant case law. This is your foundation on which everything else is built.

When reading case law it is the 'ratio' that is important. The second important point [in getting to the ratio] are the principles of law and their application in arriving at the ratio. Be aware of precedent. You must also ensure that you really understand what the speech actually says, not what you hope it says.

I'll try and find an example of a really confusing section or speech.

Grant
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#6 User is offline   MINI 

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Posted 16 January 2018 - 04:35 PM

View PostGrant-Mac, on 16 January 2018 - 06:33 AM, said:

So once you have [correctly] identified the section of the Act that ACC are relying on to disallow/remove your claim, you must read that section carefully. It will provide the legal test that must be fulfilled for the claim to be denied. As the onus in [almost] all sections is on the claimant, it will tell you what is required from you, to win your case.

Everything is driven from this starting point. Do not waste time on superfluous considerations that you think are important. They either contribute to the test, or they do not. If they do not, eliminate them from your submissions. You will only know this once you read the case law that is relevant to your section. Therefore before you write anything, research the relevant case law. This is your foundation on which everything else is built.

When reading case law it is the 'ratio' that is important. The second important point [in getting to the ratio] are the principles of law and their application in arriving at the ratio. Be aware of precedent. You must also ensure that you really understand what the speech actually says, not what you hope it says.

I'll try and find an example of a really confusing section or speech.

Grant


grant,

I have found the best way to quickly get the section of the Act they use to make their decision is to e-mail them and ask them. They usually give it too you, so you can have a good look at where they are coming from.

Mini
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#7 User is offline   Grant-Mac 

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Posted 17 January 2018 - 06:10 AM

View PostMINI, on 16 January 2018 - 04:35 PM, said:

grant,

I have found the best way to quickly get the section of the Act they use to make their decision is to e-mail them and ask them. They usually give it too you, so you can have a good look at where they are coming from.

Mini


Not a bad suggestion, but just recently I [have] a case where ACC provided the wrong section. Not by accident, they were simply wrong in their reliance on that section. Better if you can to work it out yourself.

Grant
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#8 User is offline   Alan Thomas 

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Posted 17 January 2018 - 10:50 AM

View PostGrant-Mac, on 16 January 2018 - 06:09 AM, said:

Reasons are provided. From my example:



From those reasons, the claimant [if self representing] must figure out what section of the legislation ACC are relying on. In a different case, the advocate who was dealing with the application for review took the language of the letter at face value and based the submissions on that interpretation. Of course in doing so the legal test was never addressed. Only later in ACC's submissions did ACC actually provide a section. The irony was, they chose the wrong section.

My point however is this: from the 'reasons' provided, the claimant must recognise which section of the Act that ACC is relying on.

Grant


Your response did not contain a reason. Reason necessitates the establishment of a cause and effect that can be immediately and totally recognisable.. An inference for example is not a reason. Legislation requires the ACC decisions to contain the reason for the decision.

It is evident that you are supporting and endorsing the ACC propensity towards issuing a decision that does not contain a reason but rather an inference only whereby you are promoting the notion that it is acceptable for a claimant or the legal counsel to somehow by further inference determine what the ACCs inference is In order to establish some form of legal challenge to the inference of the inference. Of course I would dismiss any legal counsel immediately if they were to suggest that malarkey was going to be paid for as a job well done. You are being ridiculous of course to the extent that you are promoting the evil wrongdoing that the legislation speaks against.

Mini is quite correct in as much as if the ACC decision does not contain a reason where there is absolute clarity as to the fact that the ACC relies upon by way of some form of evidence and how the ACC has reasoned that fact to a particular section of the act then the decision does not qualify as a decision. In my case, which is the biggest case in the ACC has free, the ACC claim to have made a decision on the basis that they possessed information that I was working despite having no information at all and rather than sites the section of the act that required them to filter the information through instead the ACC provide the section of the act that provided the authority to make a decision in circumstances where they had carried out the correct process through the former section. The judge agreed with me on my submission that the ACCs decision was entirely and totally defective.

The way in which ACC does when many cases is the lack of clarity in this decision and the cowardly incompetence or ignorance of those challenging the ACC even comprehending what the ACC has done wrong if anything at all since they cannot possibly truly understand the decision. In battle it is very important not to disclose any information to the enemy. Yet the ACC legislation not only requires the Corporation to administer to our needs but also to make full and complete disclosure so how was it that you think that the ACC can treat claimants as the enemy and withhold the information of their decision from us leaving the claimant to simply guess what the ACC decision might be about?

Quite obviously it is an impossible proposition to consider that you have established what the ACC reason for the decision actually is when they have not made full disclosure of the facts or the section of the act relied upon when you are simply guessing and calling that legal competence. People like you have absolutely no right to call yourself legal professionals. Shame shame shame
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#9 User is offline   Alan Thomas 

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Posted 17 January 2018 - 10:55 AM

View PostGrant-Mac, on 16 January 2018 - 06:33 AM, said:

So once you have [correctly] identified the section of the Act that ACC are relying on to disallow/remove your claim, you must read that section carefully. It will provide the legal test that must be fulfilled for the claim to be denied. As the onus in [almost] all sections is on the claimant, it will tell you what is required from you, to win your case.

Everything is driven from this starting point. Do not waste time on superfluous considerations that you think are important. They either contribute to the test, or they do not. If they do not, eliminate them from your submissions. You will only know this once you read the case law that is relevant to your section. Therefore before you write anything, research the relevant case law. This is your foundation on which everything else is built.

When reading case law it is the 'ratio' that is important. The second important point [in getting to the ratio] are the principles of law and their application in arriving at the ratio. Be aware of precedent. You must also ensure that you really understand what the speech actually says, not what you hope it says.

I'll try and find an example of a really confusing section or speech.

Grant


There is no such thing as a ratio when determining fact.

It seems that you are following the ACC promotion of this concept as it is applied to the ACC viewpoint of medical science whereby they rely upon a statistical approach and call it "best practice medicine" as opposed to the scientific approach which is caught in the medical schools and as otherwise the is the "gold standard". Legislation make it clear that only those who are qualified through medical schools may make decisions and as such the ACC viewpoint and doctrinal belief concerning factual matters is wholly and completely in error. Obviously if the ACC pressure the medical profession to return the person back to work very slightly early on each occasion such as one day for example. Over a period of years the accumulation of these one days total up as being a week or more to the extent that the entire bell curve of the statistical analysis will have been shifted whereby there will be statistics demonstrating that New Zealanders heel from broken legs quicker than other countries. The facts would seemingly prove this yet science does not agree. Legislation require the ACC, reviewers and the district court to be obedient and subservient to science with regards to the driving facts within the context of the ACC legislation.
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#10 User is offline   Grant-Mac 

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Posted 17 January 2018 - 10:59 AM

View PostAlan Thomas, on 17 January 2018 - 10:50 AM, said:

Your response did not contain a reason. Reason necessitates the establishment of a cause and effect that can be immediately and totally recognisable.. An inference for example is not a reason. Legislation requires the ACC decisions to contain the reason for the decision.




So let us start with the simple:

My original post stated:

Quote

"We're unable to continue providing you with this support as this medical information shows that it is not probable that the pathology in the right shoulder is due to the event of XXXX or that of XXXX or a combination of both...

They opine that your current condition is no longer a result of your personal injury."


The 'reason' is highlighted in bold.

Grant
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#11 User is offline   Alan Thomas 

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Posted 17 January 2018 - 11:02 AM

View PostMINI, on 16 January 2018 - 04:35 PM, said:

grant,

I have found the best way to quickly get the section of the Act they use to make their decision is to e-mail them and ask them. They usually give it too you, so you can have a good look at where they are coming from.

Mini


Mini I totally agree with you. However I would tend to be a little bit more formal and write a letter with a signature. sadly when the ACC is deliberately withholding information concerning perhaps a sloppily produced decision or a off-the-shelf cookie cutter decision derived from statistical analysis that have generated an expectation of the ACC and the ACC then becomes a closed shop in order to prevent any kind of challenge to the decision so as not to unravel their illegal behaviour you will find that they will resist complying with the act that requires a comprehensive reason being disclosed tto the extent that the claimant may express their right of challenge to the particulars of the facts and reasons of the decision. A vague decision is designed to not to be challenged or only to be challenged in an incompetent manner based on guesswork in which case you are not expected to learn where they are coming from.

When legal counsel is being paid to challenge an ACC decision and they failed to acquire the from the ACC the reason for the decision but instead take a shortcut and preferring instead to draw an inference from the designer cookie cutter style decision of the ACC then you know that you are dealing with a fraudulent legal counsel was not seeking to look after your interests but simply seeking to turn the handle and collect the money regardless as to whether or not you win or lose.

Mini as you have prepared your own submissions you will easily recognise how important it is to properly comprehend the nature of what you are arguing against so as to prevent any possibility that you are fighting with your own imagination as to what you are attempting to address.
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#12 User is offline   Grant-Mac 

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Posted 17 January 2018 - 11:03 AM

View PostAlan Thomas, on 17 January 2018 - 10:50 AM, said:



[1] It is evident that you are supporting and endorsing the ACC propensity towards issuing a decision that does not contain a reason but rather an inference only whereby you are promoting the notion that it is acceptable for a claimant or the legal counsel to somehow by further inference determine what the ACCs inference is In order to establish some form of legal challenge to the inference of the inference.

[2] Of course I would dismiss any legal counsel immediately if they were to suggest that malarkey was going to be paid for as a job well done. You are being ridiculous of course to the extent that you are promoting the evil wrongdoing that the legislation speaks against.



Since there is a reason, I can ignore and dismiss [1]

[2] Is simply nonsense based on [1].

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#13 User is offline   Grant-Mac 

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Posted 17 January 2018 - 11:05 AM

View PostAlan Thomas, on 17 January 2018 - 10:50 AM, said:



Mini is quite correct in as much as if the ACC decision does not contain a reason where there is absolute clarity as to the fact that the ACC relies upon by way of some form of evidence and how the ACC has reasoned that fact to a particular section of the act then the decision does not qualify as a decision. In my case, which is the biggest case in the ACC has free, the ACC claim to have made a decision on the basis that they possessed information that I was working despite having no information at all and rather than sites the section of the act that required them to filter the information through instead the ACC provide the section of the act that provided the authority to make a decision in circumstances where they had carried out the correct process through the former section. The judge agreed with me on my submission that the ACCs decision was entirely and totally defective.




Already addressed in separate threads.

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#14 User is offline   Grant-Mac 

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Posted 17 January 2018 - 11:07 AM

View PostAlan Thomas, on 17 January 2018 - 10:55 AM, said:

There is no such thing as a ratio when determining fact.




Did I say there was?

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#15 User is offline   Alan Thomas 

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Posted 17 January 2018 - 11:08 AM

View PostGrant-Mac, on 17 January 2018 - 06:10 AM, said:

Not a bad suggestion, but just recently I [have] a case where ACC provided the wrong section. Not by accident, they were simply wrong in their reliance on that section. Better if you can to work it out yourself.

Grant


Only a vexatious person seeking to engage in battle all the time would prefer to work out that the ACC has had a rely the section with intention of going to court as opposed to bring it to the attention of the ACC that they have wrongly interpreted the act by way of a letter in order that the ACC have an opportunity to correct their own mistake and move forward in a precise and correct way regardless as to whether the ACC rescinded their decision or modify the decision as this is the way to conduct life integrity. Anyone who fails to have integrity must be avoided as they will certainly lead you to disaster.

If it is quite apparent that the ACC have used the wrong section of the act and refused to be corrected by way of correspondence it is then that the ACC will expose themselves for the evil conduct whereby they fully intend to engage in a legal battle in reliance upon the statistical fact that claimants only when about 30% of the time at best and regardless as to whether or not the claimant wins or losers they will be further impoverished for the next time the ACC launch an attack in a similar fashion. In fact the ACC are well known for making a succession of wrong decisions with the result that they ultimately batter the physically and financially iincapacity claimant into the ground with the only winners being the lawyers.

It is far far better to win without going to battle. Unfortunately this can be a lengthy process equivalent to David going against Goliath with David using a pen rather than the stone.
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#16 User is offline   Grant-Mac 

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Posted 17 January 2018 - 11:09 AM

View PostAlan Thomas, on 17 January 2018 - 10:55 AM, said:



It seems that you are following the ACC promotion of this concept as it is applied to the ACC viewpoint of medical science whereby they rely upon a statistical approach and call it "best practice medicine" as opposed to the scientific approach which is caught in the medical schools and as otherwise the is the "gold standard". Legislation make it clear that only those who are qualified through medical schools may make decisions and as such the ACC viewpoint and doctrinal belief concerning factual matters is wholly and completely in error. Obviously if the ACC pressure the medical profession to return the person back to work very slightly early on each occasion such as one day for example. Over a period of years the accumulation of these one days total up as being a week or more to the extent that the entire bell curve of the statistical analysis will have been shifted whereby there will be statistics demonstrating that New Zealanders heel from broken legs quicker than other countries. The facts would seemingly prove this yet science does not agree. Legislation require the ACC, reviewers and the district court to be obedient and subservient to science with regards to the driving facts within the context of the ACC legislation.


Actually I thought I was recommending that a claimant research the case law when trying to decide how they needed to fulfil the legal test.

Grant
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#17 User is offline   Grant-Mac 

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Posted 17 January 2018 - 11:14 AM

View PostAlan Thomas, on 17 January 2018 - 11:08 AM, said:

Only a vexatious person seeking to engage in battle all the time would prefer to work out that the ACC has had a rely the section with intention of going to court as opposed to bring it to the attention of the ACC that they have wrongly interpreted the act by way of a letter in order that the ACC have an opportunity to correct their own mistake and move forward in a precise and correct way regardless as to whether the ACC rescinded their decision or modify the decision as this is the way to conduct life integrity. Anyone who fails to have integrity must be avoided as they will certainly lead you to disaster.

If it is quite apparent that the ACC have used the wrong section of the act and refused to be corrected by way of correspondence it is then that the ACC will expose themselves for the evil conduct whereby they fully intend to engage in a legal battle in reliance upon the statistical fact that claimants only when about 30% of the time at best and regardless as to whether or not the claimant wins or losers they will be further impoverished for the next time the ACC launch an attack in a similar fashion. In fact the ACC are well known for making a succession of wrong decisions with the result that they ultimately batter the physically and financially iincapacity claimant into the ground with the only winners being the lawyers.

It is far far better to win without going to battle. Unfortunately this can be a lengthy process equivalent to David going against Goliath with David using a pen rather than the stone.


ACC did not intentionally use the wrong section, they were simply incorrect.

The result was that the Reviewer corrected ACC's error and rescheduled the parties submissions, thereby wasting a lot of time. Had the plaintiff [themselves] correctly identified the section, the first hearing could have continued and the decision [arguably] could have been overturned.

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#18 User is offline   Alan Thomas 

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Posted 17 January 2018 - 11:18 AM

View PostGrant-Mac, on 17 January 2018 - 10:59 AM, said:

So let us start with the simple:

My original post stated:



The 'reason' is highlighted in bold.

Grant


What you mistakenly perceive as to contain a reason is as follows:

"We're unable to continue providing you with this support as this medical information shows that it is not probable that the pathology in the right shoulder is due to the event of XXXX or that of XXXX or a combination of both...

They opine that your current condition is no longer a result of your personal injury."


Obviously the original diagnosis will have been that the claimant has suffered an accident event resulting in an injury and incapacity to the right shoulder which will have most certainly been supported with a medical certificate signed by a medical professional. As the ACC have not provided a reason in the decision it is clearly defective in this regard. Reaching a conclusion of probability based on statistics is not information that is relevant to the claimant and as such there is no information to support a reason. The failure of the decision to provide a reason is because the ACC have seemingly asked a medical professional for a decision of probability rather than a medical decision based on the gold standard which requires clinical analysis that when necessary relies upon other forms of scientific approach such as CT, MRI other scientific tools at their disposal in order to lay claim to a scientific diagnosis. It would be laughable if it were not so tragic that we see ACC squandering the injured's compensation on the relevant reporting that are not medical reports but merely statistical responses to questions of a medical nature that in no way or form have scientific link to the individual claimants injuries. You may not be aware that the ACC refused to accept or cancelled every single shoulder injury for a period of years on the basis of this type of statistical approach which is not supported by ACC legislation.

All that is happening here is the ACC are making a vexatious decision designed to Dishonestly manoeuvre the claimant into the courts (killing field) where they expect a 70% chance that the claimant will lose.
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#19 User is offline   Alan Thomas 

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Posted 17 January 2018 - 11:21 AM

View PostGrant-Mac, on 17 January 2018 - 11:03 AM, said:

Since there is a reason, I can ignore and dismiss [1]

[2] Is simply nonsense based on [1].

Grant


You cannot excuse yourself for legal incompetence under any circumstance. If you are not ready to practice law you should not take people's money.. Someone like you should work as an understudy to a competent legal barrister before you strike out on your own.

I personally know the majority of competent legal counsel throughout New Zealand specialising ACC matters and advise you while being mindful of the difference between them and you.
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#20 User is offline   Alan Thomas 

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Posted 17 January 2018 - 11:28 AM

View PostGrant-Mac, on 17 January 2018 - 11:09 AM, said:

Actually I thought I was recommending that a claimant research the case law when trying to decide how they needed to fulfil the legal test.

Grant


The ACC legislation relies on a medical test, not a legal test.

In order to determine whether or not a claimant has an entitlement under the act they need to look at the medical report to determine whether or not they have the necessary facts for the purposes of determining entitlements in relation to the particular sections of the act. The first thing to do is to determine whether or not there has been an accident event that has caused an injury resulting in incapacity. If the answer is in the affirmative then the ACC have a duty of care to calculate their own liability to fund the compensation, medical costs and suchlike. It is not complicated.

The next step is to determine whether or not the ACC has made a decision that contains a reason.. If a reason is not evidence then it is necessary for the ACC to clarify the reason for the decision.

If the ACC do not comply by producing a relevant reason for the decision then they have not made a decision under the act and a complaint should be lodged at the same time as the decision itself being challenged with a request that both matters be heard at the same time.

It is not possible to properly challenge a decision that has not been properly defined and as such the first step is to have the decision properly defined and then an adjournment while an appeal is formulated in relation to the refined decision..
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