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Date of claim Vs date of injury Sensitive Claim IA issues

#1 User is offline   Sunflower 

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Posted 08 August 2018 - 08:14 PM

Upon advice I've decided to not use this forum. Thanks for your time.
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#2 User is offline   Lupine 

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Posted 09 August 2018 - 08:10 AM

I have only looked over the matter briefly but I think what is happened is:

The date of your injury predates April 2002 so that excludes you from lump sum under the 2001 Act. The entitlement is the Independence Allowance which as far as I can see (a closer look will be needed) is an entitlement that is not available before the 1998 Act. IA is covered by the 1998 Act and so it seems there is no legislation in place to offer the entitlement before the 1998 Act came into force. On that basis it seems evident the Corporation is correct.
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#3 User is offline   MINI 

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Posted 09 August 2018 - 10:18 AM

View PostLupine, on 09 August 2018 - 08:10 AM, said:

I have only looked over the matter briefly but I think what is happened is:

The date of your injury predates April 2002 so that excludes you from lump sum under the 2001 Act. The entitlement is the Independence Allowance which as far as I can see (a closer look will be needed) is an entitlement that is not available before the 1998 Act. IA is covered by the 1998 Act and so it seems there is no legislation in place to offer the entitlement before the 1998 Act came into force. On that basis it seems evident the Corporation is correct.


If I recall correctly, if the IA was claimed for before the lst July 1999, then it was backdated to the date of the Injury. Mine was paid this way. My Injury date was in 1992, but because of lost records on ACC's part became a huge mess that ended up with the Judge requiring ACC to do a full test for covered Injuries years later, in 2004. There was a piece written in the paper that told everybody who came under the 1982 Act as I did, to get their Application in before 1st July 1999 or they would miss out on the b/d I presumed it to be. I applied for IA in May 1999 and got b/d to the date of Injury April 1992.

So as you can see it had problems with b/d forever. No lump sum for me in the earlier years, probably because I hadn't applied. I know for mental it is the date you lst applied for medical assistance, but they b/d mine to date of injury as well.

I hope by using my own very confusing record you can get some use out of the information. However be aware that mine did go to Court for these above dates to be applicable.


Cheers

Mini
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#4 User is offline   Sunflower 

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Posted 09 August 2018 - 11:37 AM

View PostMINI, on 09 August 2018 - 10:18 AM, said:

If I recall correctly, if the IA was claimed for before the lst July 1999, then it was backdated to the date of the Injury. Mine was paid this way. My Injury date was in 1992, but because of lost records on ACC's part became a huge mess that ended up with the Judge requiring ACC to do a full test for covered Injuries years later, in 2004. There was a piece written in the paper that told everybody who came under the 1982 Act as I did, to get their Application in before 1st July 1999 or they would miss out on the b/d I presumed it to be. I applied for IA in May 1999 and got b/d to the date of Injury April 1992.

So as you can see it had problems with b/d forever. No lump sum for me in the earlier years, probably because I hadn't applied. I know for mental it is the date you lst applied for medical assistance, but they b/d mine to date of injury as well.

I hope by using my own very confusing record you can get some use out of the information. However be aware that mine did go to Court for these above dates to be applicable.


Cheers

Mini


Thanks for sharing your wisdom.
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#5 User is offline   Sunflower 

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Posted 09 August 2018 - 11:38 AM

View PostLupine, on 09 August 2018 - 08:10 AM, said:

I have only looked over the matter briefly but I think what is happened is:

The date of your injury predates April 2002 so that excludes you from lump sum under the 2001 Act. The entitlement is the Independence Allowance which as far as I can see (a closer look will be needed) is an entitlement that is not available before the 1998 Act. IA is covered by the 1998 Act and so it seems there is no legislation in place to offer the entitlement before the 1998 Act came into force. On that basis it seems evident the Corporation is correct.


Thanks for your help. It seems I might have to learn to live with their decision.
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#6 User is offline   Lupine 

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Posted 10 August 2018 - 09:47 AM

View PostSunflower, on 09 August 2018 - 11:38 AM, said:

Thanks for your help. It seems I might have to learn to live with their decision.



Turns out my view is only partially correct. Mini seems to have identified an issue and the matter deserves a good look.

Here is a judgement that applies to these considerations. It may help provide some answers. In the meantime ask ACC for its legal rationale as to why they are relying on that date and lets see what is going on.

IA entitlements existed before the 98 Act but there seems to be cut off points like Mini describes.

Tell me what you think Mini.





Attached File(s)


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#7 User is offline   MINI 

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Posted 10 August 2018 - 01:25 PM

View PostLupine, on 10 August 2018 - 09:47 AM, said:

Turns out my view is only partially correct. Mini seems to have identified an issue and the matter deserves a good look.

Here is a judgement that applies to these considerations. It may help provide some answers. In the meantime ask ACC for its legal rationale as to why they are relying on that date and lets see what is going on.

IA entitlements existed before the 98 Act but there seems to be cut off points like Mini describes.

Tell me what you think Mini.


Well it is not cut off per se', in july 1999, its just that a new Act came in from that date if I remember. It was called the 1998 Act, but came into being at least for IA, in July 1999. It went thru to 2001 Act, started In April 2002. It was allowed the 'Lump Sum' from the 1982 Act, which was up to $17,000 for one part and $10,000, for another. Didn't even try it so don't know the procedure, but do know that you cant get it now and if you got it then, it has to be deducted from the calculation of I/A or new lump sum from 1998 I/A or onwards, before they will pay you out again. If you were lucky to have any I/A left after the deductions.

So your DOI is very important. And must be correct. If they have got it wrong get documentation from the first Doctor that gave you the cert. Even ACC should have that.

Hope it all helps put the Start date time correct, it is a lot of money. Although no interest payable.

Mini
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#8 User is offline   spacefish 

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Posted 10 August 2018 - 07:31 PM

Hi Sunflower, did you receive a lump sum payment from ACC at anytime? Bear in mind that lump sum is not the same as backdated payments (e.g. LOPE)

Also, when did you make application for Independence Allowance?

I've spent the last month immersed in legislation and case law as I scramble to try and find where i sit within ACC and the legislation, including the huge changes that have happened over the years. Your dates are quite similar to mine and from what I can make out:

1) Although our claims were originally under the 1982 Act, generally any consideration of them (for IA) is now under the transitional provisions of the 1998 Act, specifically s441 and s442. This status was preserved via s377 of the 2001 Act.

2) You made your original claim for cover in 1997, but because you had physical injuries which were attended to via a Health Professional (and there was a record) your Date of Claim (DoC) or cover was able to be backdated to the Date of Injury (DoI). This is how you have been able to be assessed for and granted LOPE.

3) Unfortunately, IA cannot be backdated to your DoI as there was no IA in existence under the 1982 Act. This came in with the 1992 Act when Lump Sums (LS) were replaced by IA. For those who had a claim under the 1982 Act (under consideration or accepted by ACC) prior to the 1992 Act, then they should have received a letter from ACC advising limited life span of the LS payments, and they could apply for a IA under the new 1992 Act. However, your application did not get made until 1997 so this didn't happen for you.

4) In time the 1992 Act was repealed but some transitional provisions for it were allowed for in the 1998 Act as I mentioned in 1). Very simply (and nothing about the ACC Acts are simple) s441 allows you IA to be backdated to the date of application for cover BUT clause 63b (in Schedule 1, Part 4, 1998) limits that date to 1 July 1992. This is ALL conditional on you not applying for or being granted a LS under the 1982 Act. If you did receive a LS payment under that Act then s442 applies - which limits payment to the date of application for IA.


However, your Date of Application for Cover with ACC was 1997 so this shouldn't be an issue - in which case you should have entitlement to backdated payment to 1 July 1992.

I think you should get legal advise - or at the very least ask for a review of decision regarding the correct date of (backdated) payment.

I really like many of the decisions that Cadenhead J made, here is one where he acknowledges his own error in relation to the above:

Accident Compensation Corporation v J [2004] NZACC 41 (9 March 2004)



However this is also echoed in FENEMOR (and Mahaki) V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2005-485-1002 [2006] NZHC 1471 (24 November 2006)

For MINI, her DoI was post the 1982 Act so previous entitlement or payment of LS was never an issue and under the 1992 Act, IA was fairly much as it is under the transitional provisions for the 1998 Act - hence the backdate.

Hope that helps. :)
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#9 User is offline   Sunflower 

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Posted 10 August 2018 - 07:53 PM

Upon advice I've decided to not use this forum. Thanks for your time
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#10 User is offline   MINI 

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Posted 11 August 2018 - 12:34 PM

View Postspacefish, on 10 August 2018 - 07:31 PM, said:

Hi Sunflower, did you receive a lump sum payment from ACC at anytime? Bear in mind that lump sum is not the same as backdated payments (e.g. LOPE)

Also, when did you make application for Independence Allowance?

I've spent the last month immersed in legislation and case law as I scramble to try and find where i sit within ACC and the legislation, including the huge changes that have happened over the years. Your dates are quite similar to mine and from what I can make out:

1) Although our claims were originally under the 1982 Act, generally any consideration of them (for IA) is now under the transitional provisions of the 1998 Act, specifically s441 and s442. This status was preserved via s377 of the 2001 Act.

2) You made your original claim for cover in 1997, but because you had physical injuries which were attended to via a Health Professional (and there was a record) your Date of Claim (DoC) or cover was able to be backdated to the Date of Injury (DoI). This is how you have been able to be assessed for and granted LOPE.

3) Unfortunately, IA cannot be backdated to your DoI as there was no IA in existence under the 1982 Act. This came in with the 1992 Act when Lump Sums (LS) were replaced by IA. For those who had a claim under the 1982 Act (under consideration or accepted by ACC) prior to the 1992 Act, then they should have received a letter from ACC advising limited life span of the LS payments, and they could apply for a IA under the new 1992 Act. However, your application did not get made until 1997 so this didn't happen for you.

4) In time the 1992 Act was repealed but some transitional provisions for it were allowed for in the 1998 Act as I mentioned in 1). Very simply (and nothing about the ACC Acts are simple) s441 allows you IA to be backdated to the date of application for cover BUT clause 63b (in Schedule 1, Part 4, 1998) limits that date to 1 July 1992. This is ALL conditional on you not applying for or being granted a LS under the 1982 Act. If you did receive a LS payment under that Act then s442 applies - which limits payment to the date of application for IA.


However, your Date of Application for Cover with ACC was 1997 so this shouldn't be an issue - in which case you should have entitlement to backdated payment to 1 July 1992.

I think you should get legal advise - or at the very least ask for a review of decision regarding the correct date of (backdated) payment.

I really like many of the decisions that Cadenhead J made, here is one where he acknowledges his own error in relation to the above:

Accident Compensation Corporation v J [2004] NZACC 41 (9 March 2004)



However this is also echoed in FENEMOR (and Mahaki) V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2005-485-1002 [2006] NZHC 1471 (24 November 2006)

For MINI, her DoI was post the 1982 Act so previous entitlement or payment of LS was never an issue and under the 1992 Act, IA was fairly much as it is under the transitional provisions for the 1998 Act - hence the backdate.

Hope that helps. :)/>


Even though my Date of Injury fell into the 1982 Act, I never took any lump sum back in the days as at end of 1998. I took IA straight away but finally got paid IA in 2004 because of lost files by ACC and need to approach the courts to allow a new assessment for my whole body to be done. In my case there was no need for any deductions from Lump sums or anything else. So Minis case is not for anyone else to explain but herself, unless she gives permission for someone to use her case and name, when they know of which they speak.

Mini
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#11 User is offline   spacefish 

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Posted 11 August 2018 - 04:07 PM

View PostMINI, on 11 August 2018 - 12:34 PM, said:

So Minis case is not for anyone else to explain but herself, unless she gives permission for someone to use her case and name, when they know of which they speak.


Easy. Your cases are in the nzlii database, they're obviously fully open to the public and you also opened yourself up as an example here in this thread.

I think it's clear I meant no offence or disrespect to you, I was just trying to help the OP. Posted Image
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#12 User is offline   Lupine 

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Posted 11 August 2018 - 05:09 PM

View Postspacefish, on 11 August 2018 - 04:07 PM, said:

Easy. Your cases are in the nzlii database, they're obviously fully open to the public and you also opened yourself up as an example here in this thread.

I think it's clear I meant no offence or disrespect to you, I was just trying to help the OP. Posted Image


I think your analysis is good.
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#13 User is offline   MINI 

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Posted 12 August 2018 - 12:23 PM

View Postspacefish, on 11 August 2018 - 04:07 PM, said:

Easy. Your cases are in the nzlii database, they're obviously fully open to the public and you also opened yourself up as an example here in this thread.

I think it's clear I meant no offence or disrespect to you, I was just trying to help the OP. Posted Image


Spacefish

You are wrong my IA and the Lump sum I am doing for breakages at the moment , never got past Review. The only one that was at the Court was my need to get my body assessment completely redone because they have lost all the records. 2003/04 with new assessment for all impairments. Now if you can find that one good luck to you, I cant. Any dated pre-that are not worth the paper they are written on.

Mini
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#14 User is offline   spacefish 

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Posted 12 August 2018 - 06:20 PM

View PostMINI, on 12 August 2018 - 12:23 PM, said:

Spacefish

You are wrong


I could very well be, it does happen. I don't have an issue with that. I am most likely wrong when I said above that Sunflower could look at having IA backdated to 1 July 1992. However the date of application for any cover with ACC was 1997 and the legislation says (as I wrote in point 4 above), specifically in relation to IA, that the earliest date for payment of IA is either 1 July 1992 OR the date of application for cover - whichever is the latest. IA only came into being with the 1992 Act so it is impossible for that entitlement to be granted/paid to claimants prior to then.

I don't know what you're doing now with your claim(s) Mini, I was never seeking information about you. Your cases were some of many that came up using specific search term queries and happened to be of interest due to dates and entitlements.

Moving on ...
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#15 User is offline   MINI 

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Posted 13 August 2018 - 03:33 PM

View Postspacefish, on 12 August 2018 - 06:20 PM, said:

I could very well be, it does happen. I don't have an issue with that. I am most likely wrong when I said above that Sunflower could look at having IA backdated to 1 July 1992. However the date of application for any cover with ACC was 1997 and the legislation says (as I wrote in point 4 above), specifically in relation to IA, that the earliest date for payment of IA is either 1 July 1992 OR the date of application for cover - whichever is the latest. IA only came into being with the 1992 Act so it is impossible for that entitlement to be granted/paid to claimants prior to then.

I don't know what you're doing now with your claim(s) Mini, I was never seeking information about you. Your cases were some of many that came up using specific search term queries and happened to be of interest due to dates and entitlements.

Moving on ...


Moving on...............
Mini
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#16 User is offline   Sunflower 

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Posted 14 August 2018 - 11:23 AM

Upon advice I've decided to not use this forum. Thanks for your time
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#17 User is offline   MINI 

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Posted 14 August 2018 - 02:50 PM

View PostLupine, on 11 August 2018 - 05:09 PM, said:

I think your analysis is good.


Are you saying you agree with spacefish lupine. I see know to what he is referring.

firstly the writings you have been proved wrong.

The 1992 and 1995 shoulder were both considered by the orthopaedic surgeon to be the same injury. Including a neck injury as well.

In 2004 this bought my whole person impairement to 17 %. They were joined together and later in 2007 had the mental caused by physical attached by an extra 8% which takes AI up to 24% I think at the moment.

So it turned out there was no 1995 injury at all. It just didn't show up until I had had the acromioplasty take away much of the pain from the 1992 left shoulder.

So you can hardly believe what you read in some instances, because pre 2004 all my IA are null and void. Don't meant a goddam thing until the Judge told them to do it all again.

I am now reviewing the Lump Sum figures given to me for broken right hand 19/08/2015 and broken humerous 25/12/2014. it is such a long time since I have done any of this I'm like a baby playing in an Australian river full of alligators.

Mini
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#18 User is offline   INTER 

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Posted 14 August 2018 - 03:14 PM

View PostSunflower, on 14 August 2018 - 11:23 AM, said:

Hi again.

Well on Friday the worst possible scenario happened. After a month of waiting for my IA rating to come back I learned that the IA trained Psychiatrist had decided that I should improve with time and currently my symptoms aren't stable enough to receive an allowance. I was distraught. The LOPE is not enough to live so so I am up to my eyeballs in debt. The backdated IA was going to give me a new start.

They asked a second IA trained psychiatrist (John Collier) to look over the first decision. He agreed that I am too unstable to get the IA.

I have cover for PTSD (complex), Somatic Symptom Disorder (complex) and Depression. The pressure of going through the IA process has exacerbated all those things. When I had the assessment I explained that I can't work, I'm socially isolated as I don't want people to see me like this and I am constantly unwell with physical symptoms linked to my stress.

I've had other PTSD related breakdowns over the decades but I've currently been experiencing severe symptoms since the end of 2015 when I lost my job which made me ill. It then took nine months of battling to receive the LOPE which made me ill. My weekly treatment with an ACC funded psychiatrist is bringing all sorts of previously buried emotion and distress to the surface, and that makes me ill.

So what is stable? How can I achieve stability? What should I do?


if your condition was unstable, Then your doctor should never have filled out your application, as First requirement is injury condition is Stable .

So you have wasted your time and now have to wait another 12 mths to reapply for a new assessment.

And Remember its only impairment acc cover, its bloody hard pushing uphill to get even started on a 10% wpi for IA Allowance, and even worse if you have old lump sum payments

as then that is deducted from your assessment : Its Taken me 18 yrs to get a 10% wpi after old lump sums deducted, And Wow 10 % is around $15 a wk .

EG when you say >The pressure of going through the IA process has exacerbated all those things. When I had the assessment I explained that I can't work, I'm socially isolated as I don't want people to see me like this and I am constantly unwell with physical symptoms linked to my stress, WILL have no bearing on any wpi % as agin acc only covers impairment not conditions etc.

been down this track for around 30 years now, THE only cover that is relevant to your case is the functional categories Where your condition has to fit a higher rating category and be Assessed by assessor like you just had COLLIER ETC.
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#19 User is offline   spacefish 

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Posted 15 August 2018 - 01:56 PM

View PostMINI, on 13 August 2018 - 03:33 PM, said:

Moving on...............
Mini

Are you sure about that. It doesn't appear to be that way when viewing your subsequent post ...


View PostMINI, on 14 August 2018 - 02:50 PM, said:

Are you saying you agree with spacefish lupine.

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#20 User is offline   spacefish 

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Posted 15 August 2018 - 01:57 PM

Hi Sunflower

The second opinion was likely a peer review of the assessors report so a reassessment is well on the cards if you wish to go that route. If they stick to their guns then you can always get a Review of Decision.

Assessments are a "window" into the current timeline of your injury. It may change 2 or 5 years down the track, or it may be the same. If it changes 2 years who is to say it doesn't revert back to a high percentage later on. Nothing in life is static, and for the purposes of ACC their legislative requirement is that "stability" (as legally defined) in any injury is attained before they can obtain an assessment.

You obtained a certificate from a practitioner in order to apply for an Independence Allowance. If this was from a GP then clearly they have a good background knowledge of you and supported your application by providing this certificate. ACC accepted it and referred you on to get an assessment.

The assessor is wrong (and so is ACC) by deeming you as too "unstable" to allow % of WPI determination to be made. That may be appropriate if the injury was new, but we're talking many year down the track now and legislation is on your side:

Accident Insurance Act 1998 said:

Schedule 1, Part 4:
cl. 59.Insurer not to assess entidement until it receives medical certificate as to stability of insured's condition-(I) The insurer must not assess the insured's entitlement to an independence allowance until the earlier of the following:

(a)The insurer receives a certificate from a registered medical practitioner indicating that-
(i) The insured's condition resulting from the personal injury has stabilised; and
(ii)It is likely that there is impairment resulting from the personal injury; or

(b) After 52 weeks have passed since the date of the personal injury, the insurer receives a certificate from a registered medical practitioner indicating that-
(i) The insured's condition resulting from the personal injury has not stabilised; but
(ii) It is likely that there is impairment resulting from the personal injury.


(2) The insurer is liable to pay for the reasonable costs associated with the provision of a certificate under subclause (1).



The 2001 Act (s57) requires there be 2 years from date of injury.

I don't know who your assessor was but both they and Collier should know better, as should ACC.

Based on the info you have given there is no reason why they can't give you and assessment, stable or not - that is the nature of the beast now. It is not about whether you may improve in the future, it is about how you are now.

If you were applying for a 5 year payment of IA in advance, the above would be different. There is a good topic on this forum in relation to that here:
IA 33% review due to not being stable??

Also, here is ACC's booklet called "Mental Injury Assessments for ACC". I haven't had a good look through but you may find something in there that helps your cause.
https://www.acc.co.n...sment-guide.pdf

Also, the Fairway Resolution Benchbook released under the IOA:
https://www.fairwayr...0May%202016.pdf

Be strong and I hope you have support around you.
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