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Combined Beneficiaries Union There submission

#1 User is offline   doppelganger 

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Posted 16 March 2005 - 08:51 PM

PRESDENT Helen Capel Secretary: Phil Gorman
Head Office: Trade Hall Building
L47-153 ireu Worth Rd
Postal Address Private bag 68903

Ph (09)376-4760 Fax (09)376-4469
E-mail: [email protected]
The injury prevention rehabilitation and Compensation Amendment Bill 2004
The CBU advised that we would like to make oral submission on the Bill arid ask that the Committee sit in Auckland

We must apologise for this submissionbeing a couple of days late however we had to seek permission from the people whose cases are named in this submission.

The Union supports this Bill in part. There are some things we disagree with however and there are also related changes that we would ask the Committee to consider.

The Union is a charitable incorporated society that provides advocacy and support to those on benefits, ACC, students, pensioners, new migrants and those on low incomes. The Union currently deals with over 25,000 queries a year, about 35 - 40% of these are ACC related. We have around 280 ACC cases at present where we are either advising clients or engaged in the review and appeal process.

While there have been some positive moves for claimants in ACC over the last few years, there are still significant problems within the ACC system and a very strong perception by some claimants, and some exited claimants, that they have not received a fair go through the current scheme. In some cases this is a scheme that they have paid into for many years but when it is needed their perception is that the response less than adequate.


We will deal specifically with the clauses that we wish to comment on.

Clause 8 - This amendment has occurred to remedy an unintended affect of a Court of Appeal decision last year. It was widely thought that the 1992 Act provided cover for claimants in the situation described however it appeared the respective provision could not be so interpreted. This amendment clarifies that cover does exist in the circumstances set out as was previously thought. We support this amendment.

CIause 10 - This goes further along the track to remove the anomaly whereby wrenching your neck to avoid a falling concrete block was not covered but getting hit by it was. The problem was created by the creation of a separate definition of 'personal injury and of 'accident' in the 1992 Act. Events were excluded because they did not meet the definition of accident.

Prior to the 1992 Act there was just a definition of the term "personal injury by Accident". This tended to be a lot easier to administer

Under the 1992 and 1998 Acts, twisting ones ankle while getting out of bed was not covered though if you slipped getting out of bed and broke your ankle it was covered. Similarly getting up suddenly and suffering a back strain was not covered while falling over and straining one's back was covered.

The proposed amendment now covers accident by 'twisting' However that still does not cover a person who suffer a strain or sprain from stretching

We recommend hat the amendments expanded so that the new (iii) will include the words "twisting or stretching

C1ause 8 (2) - this amendment is to cover accidental poisoning by eating mushrooms. While we support this extension the difficulty will be for the claimant to show a personal injury occurred. This has caused problems before. In one case a person was exposed to wood lacquer and suffered a reaction which rendered him unable to work due to difficulty with breathing and malaise. However cover was denied because the Corporation said there was only symptoms but nothing to indicate a personal injury.

In our view of this type of argument its a nonsense. If a person is exposed to inhalation of chemicals, foreign objects etc and immediately suffered related symptoms, it should be presumed that there is a personal injury by accident

We would suggest that the definition of accident deem a personal injury to have occurred where medical opinion shows that a person has become debilitated due to symptoms caused by the exposure even though the exact personal injury can not be determined.

Clause 13 - we support the repeat of the existing medical misadventure regime. It produced significant barriers for claimants and very defensive positions from medical professionals. There will still be some difficulties in being able to show a causal link between the treatment and the personal injury suffered by a claimant however there should be less resistance from the medical profession.

In terms of the exclusions in the new section 30(2) we think that where the Corporation seeks to avoid cover for treatment injury that they should have the onus to prove this.

We suggest that (2) should be amended to add after the words 'following kinds of personal injury" the words "where the Corporation can prove that it is:"

The provision as written is very broad and calls upon some subjective assessment. It has the potential to result in cover being denied in many cases due to a "consideration of all the circumstances". To counter any problems that may occur it seams quite fair if the Corporation has to meet the usual standard with "exception" clauses, that is to have the onus of proving the exception should be applied.

We further suggest that (2) be amended to make sure that cover cannot be excluded where a personal injury is the direct result of deficiency or failure in respect of a resource allocation. This would cover for instance whereby an item or piece of equipment is defective and has not been immediately replaced due to resource constraints, and its use causes a direct injury.

Transitional provisions
In the new S34, the new treatment injury provisions are not to apply unless the application is made on or after 1 February 2005. Section 34 (2) also prevents the new provisions applying where a person previously refused cover for medical misadventure reapplies.

It is readily appreciated that there could not an open ended ability to merely refile an application as this could involve hundreds if not thousands of cases potentially having to be considered. However here there is a way to allow a small number of people to benefit while still preventing a unlimited number of people refiling under the new provision.

We think is should not apply to a person that has already made a claim but the claim has not yet been decided. In these cases a person should be able to elect to have their claim reconsidered under the new provisions. Further this should apply to those who are currently reviewing or appealing a decision refusing cover for medical misadventure. They should also be able to elect to withdraw their review or appeal and reapply for cover under the new provisions.

Clause 19 -. There is no objection to the repeal of section 64(3). However there is a problem with this section at present. We have seen many cases where a decision letter refers to the wrong legislative provision or actually sets out the wrong decision. Review officers unfortunately just have adopted the course of correcting this at review. A common example is a letter that says cover' will no longer continue for a particular injury when it actually means that entitlements are suspended. Even worse some letters actually contain a number of decisions, but only have one review paragraph making it unclear as to which decision the review rights attach to.

Just to correct this sort of issue at review just encourages sloppy decision letter but worse it has detracted from the importance of the initial decision letter. Many claimants are not aware of the complexities of the ACC legislative scheme. Decision letters need to set out clearly the legislative provision being relied on, the correct decision that is actually being made and spell out, in the letter, that there is a 3 month review period - as opposed to attaching a booklet.

The decision letter will form the basis of a decision by a claimant as to whether they should review a decision. As such the provisions should be mandatory

We recommend that section 64 be mended to insert before the words "Every Notice" the words "Notification of a decision shall not be considered to have taken place unless each of the following have been complied with"

Further that (B) be amended to read

"Set out the applicable legislative provision and the reasons for the decision"

(c ) in the same letter, set out the right to review, the time limit involved and an explanation of when applications can be made outside that time.

Clause 20 -. We support this provision

Clause 23 - This is an attempt to overturn the decision of the High Court in '4Peck" purportedly because that result does no reflect the "policy intent". We takes this to mean the Corporation's policy intent.

There is some justified concern at this amendment. Often the activity a person has refused to do, when there is recompliance, merely confirms what already exists. Say for example a person with one leg amputated and a host of medical conditions has been regularly assessed as being unable to work fulltime due to their injury for some years. A new case manager in long term claims (formerly Catalyst) decides to do yet another medical assessment - the claimant refuses pointing out the abundance of medical reports on file.

After 8 months of this the claimant recompiles. The doctor confirms the condition and the inability to work full time. Why shouldn't the claimant get his arrears. After all he was incapacitated over that period. Often too there is some debate as to whether a specific request is reasonable. This are often line calls and a reviewer may ultimately on a fine balance, decide it is reasonable. Under the wording of this amendment the person would be punished for testing the point at review or appeal. That seems wrong in principle.

It is accepted that there could be a few instances where particularly in a earlier claim that there could be issues about the inability to provide rehabilitation while a person is subject to a decline. However the Corporation can still provide or require rehabilitation if a person only has some entitlements declined.

In our view the best solution in examining the competing arguments is to word the amendment tile other way around. There should be a presumption that a person will receive arrears once they have recompiled however the Corporation could have a decreation not to pay where they can prove it would be unreasonable to do so. However this should not cover cases where non compliance or refusal is only for a short period say for up to 6 months

We would recommend that the amendment provides that:

(a) on recompliance with in 6 months, the claimant is entitled to any payment of arrears and

(B) after 6 months the claimant shall still be entitled to any arrears payment unless the Corporation can show it would not be appropriate given the special circumstances of a case.

Part 5 Sections 133-164

Some consequential amendments are made to this Part, none of which we oppose.

However while the Committee is considering this Part we take the opportunity to raise 2 issues and suggest amendments.

(1) section 135(3) - this provision was enacted to signal a move away from the strict 3 month limitation for reviews unfortunate how ever very few reviews have been allowed out of time. The problem is grounded in two points.

Firstly the corporation appears to have a policy that out of time applications are just automatically sent to a review to decide at a jurisdiction hearing, This is clearly contrary to what the Act says. Despite this having been raised with reviewers on many occasions very few seem prepared to ensure the Corporation actually make a primary decision.

Second reviewers are interpreting the provision as meaning it only covers cases where the client is completely blameless for the delay or is due to some error other than the clients. This has occurred because tile examples in (a), (B) and have been used as a guide to how the section should be interpreted.

The problem is that some situations occur that are clearly unfair. For instance a person receives a decision on a claim, their partner is shortly after involved in a serious car accident and falls into a coma eventually dying. Through all the trauma of this the person fails to review within 3 months.

There are clearly extenuating circumstances but the delay was not caused through their personal injury or an advocates delay. Under current circumstances a reviewer would almost certainly decline to accept an out of time review.

Another example would be where a person has moved and arranged for a neighbour to pass on the mail. The neighbour unfortunately does not pass on the decision letter immediately. By the time the claimant receives it 'the 3 months has passed again a reviewer would be unlikely to allow the review out of time because it did not relate to trauma or an advocates action

In our view the difficulty can be easily overcome by a minor amendment to the wording by adding in subsection (3) after the words "such as" the words "but not limited by"

Further clarification could be achieved by adding a subsection (4) which would make it clear that the overall test should be weather to allow an out of time appeal would be consistent with the interests of justice and the objectives of the Act itself.

(2) Section 162/163 - Right of Appeal to the High Court and Court of Appeal

The current wording in both provisions has caused major unfairness, uncertainty in law and absurdity in two instances. We have become concerned enough with this to draw the attention of the Committee to it.

(1) the best example of the first is the case of McCaffery v ACC . This case involved important questions of law concerning the incapacity provisions in the ACC legislation. The appellant sought leave from the district court which refused it she then sought special leave from the high court in a hearing which lasted almost a full day. The Court while acknowledging some error by the District Court thought the decision was correct.

Unfortunately the High Court Judge instead of granting leave and dismissing the case just refused leave. The appellant then sough leave from the High Court to, appeal to the Court of Appeal and was granted leave after a consideration by 2 High Court Judges. In other words 2 High Court judges considered that there were sound question of law that warranted consideration by the Court of Appeal.

At the Court of Appeal hearing however, the Court decided that there was no jurisdiction to hear the appeal. This was because the original High Court Judge had refused leave to appeal to the High Court. The Court said that there was no right under the Act to appeal to the Court of Appeal from a decision refusing leave to go the High Court. The Court of Appeal was sympathetic and concluded by saying the decision was quite harsh and suggesting ACC should reconsider its position. The Corporation never did.

The end result was that important issues of law were unable to be determined by the Court of Appeal simply because a High Court Judge had refused leave. This was despite two other Judges finding that the issues did warrant a consideration by the Court of Appeal.

His result was both unsatisfactory and manifestly unfair to the claimant who had in fact got into her difficulty because she attempted to break her reliance on ACC and become independent of ACC. As a result of this she has effectively lost forever her right to weekly compensation. The decision sent all the wrong messages. It did however expose a flaw in the present appeal provisions.

We believe this situation needs an urgent remedy. We would suggest that at least in the interim a simple amendment. That is s163 (1) should be amended so that it reads as follows:

'(1) A party to an appeal before the High Court under s162 who is dissatisfied with any decision or determination of the court on the appeal, including a refusal to grant special leave under 162(3). as being wrong in law may, with leave of the High Court appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law"

If this were adopted it would only seem fair that Mrs McCaffeny should benefit from it. Accordingly we would submit that the new clause (1) should apply from a date immediately prior to the date of the High Court's refusal of leave in her case.

(2) The second issue relates to the time limits. The new 21 day limit without any provision for leave to appeal out of time is guaranteed to cause manifest unfairness. Even where a claimant may be in a coma for 3 weeks or be recovering from serious injury or the like, wilt make no difference. Once 21 days has gone they lose right of appeal forever. These are the strictest, without leave, provisions under virtually any NZ statute. Even other social assistance legislation such as the Social Security Act allows 14 days but power to seek leave for an out of time appeal

It is difficult to see why the ACC regime needs such a strict and narrow appeal provision. We are talking about people accessing a scheme they have paid into all their working lives. When they are shut out or refused full entitlements there right to challenge these decisions should be permissive not strictly limited.

It seams a contradiction that the legislature has relaxed the tight rules relating to time limits on reviews but persists in harsh and narrow time limits for High Court appeals.

In our view there is no justification for this in such a scheme. As an interim measure we would suggest that s162 be amended by adding a new subsection (6). This would allow the District Court or High Court as the case may be, to extend ant time limit under the section if it considers it proper to do so, whether the application is receiving before or after the limit was expired

Clause 46 -. We agree strongly with this provision and there should be a requirement that ACC advocacy groups and legal professionals working in this area be consulted on the regulations when they are drafted.

Clause 50 - We support this provision. It sorts out the mess surrounding the independence allowance and various transitional provisions of the 1998 and 2001 Act. We particularly support the allowance being paid from the date of cover granted.

Clause 51 - We think that claims applied for but not granted by the date of the introduction of the Bill and claims subject to review and appeal, should be allowed to be assessed under the new provisions.

Schedule 1

Clause 38
we strongly support changes currently being made to make fairer assessment procedures to determine weekly compensation payable.

How ever there is a serious anomaly in this clause. It resolves around the wording of subsection 2 (B) were it refers to "was the first year during which they received earnings a a self employed person" this seams to be interpreted as disqualifying anyone who has ever received earnings from self employment.

The absurdity that the result can no better be shown that in case of Dolamere V ACC ( Dec No 21/98). Mr Dolamere had been in full time employment. As this drew to an end he carried out some relatively minor part time self employment.

He then left fulltime employment in April 1993 and in October of the relevant year commenced new fulltime self employment his earnings from the last tax year had to be considered. When divided by the weeks he actually worked his resulted in around $900 of income per week.
However the clause refers to the "first year" of receiving earnings from self employment. ACC pointed to his relatively minor earnings from self employment in the year before (when he was also in full time employment). Accordingly they said that his earnings could not be divided by the weeks he actually earned but rather by 52. This resulted in Mr Dolamere receiving a minimum weekly compensation of about $200.00

In our view this could not be what the provision really intended. Surely it meant that it was the first year that the person "solely" received income from self employment or was in full time self employment. And surely it not could only relate to self employment the person had just started not self employment that they might have had 20 years ago.

This issue needs urgent attention. We believe that the wording of clause 38(2)(B) should be amended to add in the word "solely or principally on a new self employment person" immediately after the words "received earnings"

There is no question of any financial risk for the Corporation. Such an amendment would only affect a very small number of claimants. Accordingly we would also ask that any such amendment applies to any claim or claim for reassessment received after the date the original amendment came into force on 2 September 1996.
By this means Mr Dolamere and the small group affected will finally see some sort of justice which has been denied for 8 years

Clause 43(3) - We do not see any need for the reworded subclause. Currently a claimant has to be able to show that they would have been an employee after 3 months had it not been for the incapacity The new wording only adds to the complexity. The current wording in reality causes very little problems and should be retained.

Helen Capel
Senior Disability Advocate.
26 September 2004

#2 User is offline   watcha 

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Posted 16 March 2005 - 11:31 PM

Totally missed the removal of review rights for "discretionary entitlement decisions". This from an advocacy group?
I hope the Gorman mentioned in despatches is no relation of our old friend Des.

#3 User is offline   Kiwee 

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Posted 17 March 2005 - 05:46 AM

This makes sense:

"In our view of this type of argument its a nonsense. If a person is exposed to inhalation of chemicals, foreign objects etc and immediately suffered related symptoms, it should be presumed that there is a personal injury by accident
We would suggest that the definition of accident deem a personal injury to have occurred where medical opinion shows that a person has become debilitated due to symptoms caused by the exposure even though the exact personal injury can not be determined."

or ...even though the exact *action of personal injury* cannot be determined.

Would also work for chronic pain cases where the symptoms were caused by the original injury but there is no actual action or time that chronic pain happened. oos and rsi and other gradual injury also covered.

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