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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."


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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.

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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 Today, 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.

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#5 User is offline   Grant-Mac 

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Posted Today, 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 Today, 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.

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