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Exit By Reviewer Work Capacity

#1 User is offline   Karney 

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Posted 17 March 2005 - 01:40 PM

I have recently had a review, mediated by a Disputes Resolution service reviewer, against a decision to pay me weekly compensation. I had resigned from my job due to an inability to continue in the post with my injury (OOS), the failure of the IRP as the alternative way of working didn't work but Aon and my employer dismissed all my concerns, and also extreme stress from the way the whole situation was being handled. I already had a personal grievance case against my employer and this became constructive dismissal after I left.
The decision letter from WorkAon said that under S117 - that by refusing to continue in that job I was removing myself from the most appropriate form of rehab. My advocate put up a strong case during the 2.5 hour review, including a report from their IMA saying the job was unsuitable, and an e-mail from Aons medical advisor saying the same thing. Despite sending 5 people to the hearing from the employer/Aon side, they really didn't come up with anything to disprove the argument that there was no rehab taking place and that I couldn't do the job.
We really thought I would win.
But the Reviewers decision came back dismissing my appeal and agreeing that Aon should not pay weekly compensation, but not because of S117. He made his decision under S103 - work capacity. My GPs certificate said that I was able to work full time, but on light duties with restrictions on any repetitive hand movements. The reviewer argued that the job had been modified by the employer to try to meet my needs, and that it wasn't his place to determine whether those modifications really did help/were feasible for me. He said that the IMAs report did not prove that I was incapacitated at time of leaving (report dated May 2004, with a further letter in Aug 2004 confirming his views. I resigned late Aug and left on 10th Sept. Date of Injury Oct 2001 and constant medical certification/restrictions since Aug 2003 - ie. the condition was stabilised and not improving)

Does anyone know whether the Reviewer has the right to effectively exit me in this way, given that I did not go through the normal work capacity testing process complete with written advice/warning from Aon?

Does it contravene the principles of natural justice to have a decision made like this, that was not mentioned at the review hearing so my advocate and myself were not given the chance to present contrary evidence?

My injury was actually covered under the 1998 act and the wording of the S103 equivalent was different then, saying that if the claimant cant do every part of their pre injury job (I couldn't continue the handwriting part which was 90% of the job) they are incapacitated from all of that job. Should I still be under the 1998 regulations or did the 2001 regulations over rule them completely?

My advocate is putting in an appeal to the District Court but I intend to complain to the Dispute Resolution Service too, so if anyone can provide any clarity on the above it would be a great help.
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#2 User is offline   Paradigm Shift 

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Posted 17 March 2005 - 05:05 PM

The key to your problem is whether or not your employer had asked you to do something without regard to your injuries. S70(B) ... having regard to the consequences of... injury.

If you are in practice being asked to carry out activities that is likely to cause harm or has actually caused harm by way of an inducement or ultimatum such an action is a criminal offence under S151 of the crimes act. Maximum sentence seven years. At the extreme end if you are asked to do something that was dangerous without regard to your injuries and you died the person placing you in that position could get seven years prison.

70 Claimant’s and Corporation’s obligations in relation to rehabilitation

A claimant who has suffered personal injury for which he or she has cover—
(a) is entitled to be provided by the Corporation with rehabilitation, to the extent provided by this Act, to assist in restoring the claimant’s health, independence, and participation to the maximum extent practicable; but
(B) is responsible for his or her own rehabilitation to the extent practicable having regard to the consequences of his or her personal injury.



71 Employer’s obligations in relation to rehabilitation

(2) The employer must take all practicable steps to assist the claimant with the claimant’s vocational rehabilitation under his or her individual rehabilitation plan.
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#3 User is offline   magnacarta 

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Posted 17 March 2005 - 06:44 PM

You need to obtain a copy of M v ACC 171/2002 (Judge Willy) which at para's 22 & 23 outlines the requirements of natural justice as succinctly stated by Lord Diplock In Re Erebus Royal Commission; Air NZ v Mahon.

It appears your reviewer has adjudicated on something which was not before him/her and therefore you have been denied natural justice contrary to s.140 of the Act.

It would also appear that you have not had an informal review pursuant to s140(e) only a formal only.
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#4 User is offline   Paradigm Shift 

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Posted 17 March 2005 - 06:59 PM

The reviewer reviews the decision and may in effect remake it for the ACC or direct the ACC. Frequently reviewers do make new decisions for entirely different reasons. Normally in a case like this the reviewer should have redirected the Corporation.

Of critical importance is whether or not the employer was setting tasks beyond your residual capacity which could have been or actually was harmful. Normally the ACC medical advisers are attempting to persuade a work hardening process. With repetitive strain injuries this is particularly risky and must be under the exclusive guidance of the treatment provider. It is most unlikely that either ACC or the employer were receiving direction from the treatment provider.
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#5 User is offline   magnacarta 

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Posted 17 March 2005 - 07:55 PM

A reviewer has no power to direct ACC to make a decision or make the decision for ACC expect by virtue of s.134 (1) (B) (unreasonable delay) with reference to s145 (3) (d) and (e).

He/she must only adjudicate on that which is before them.

Clearly, in this case, the issue of s.103 was not before the reviewer and therefore he/she has adjudciated and made a decision on something which was not in front of him/her - thereby denying natural justice to Nelsonian.

A denial of natural justice is a profound procedural error of law - as per Goddard J. ACC v Wellington District Court, High Court.
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#6 User is offline   doppelganger 

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Posted 17 March 2005 - 09:50 PM

this is not the first tim that the reviewer has made a decision that they should not have. In my own case a reviewer made a decision that I did not want to work. he made the decision because a PI put the information in the file and sucessfully reported to the corporation hatI had not committed an offence.

now I have just had a serious of reviews were the reviewer made a "no jurdistiction " because the corporation had not made a decision. this is te same in your case the reviewer has no jurdistiction because there was no decision been made.

Your Avocate might want to refere to C. B. Thompson V ACC [1982] NZACR.

this is were the reviever and court made a decision on a medical condition that did not excist. Mr Thompson went to the applied for special leave to the high court to get a rehearing. Something that advocate might want to look into.

Good luck
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#7 User is offline   Sparrow 

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Posted 30 October 2009 - 10:53 AM

If you have transport difficulties and ACC require you to attend certain assessments, be firm, request a taxi or other transport. It is in the act, read it.

Please make sure that you have an up to date report on your condition from your Specialist. Remember the MArtin case.
It is in your own interest to get this assessment report from YOUR specialist of choice.

Lying in bed worrying does not do a thing except get you anxious and frustrated.
Be active as has been suggested, work quickly to get your updated file, find out the reasons for the crap, and get your GP involved by asking him also for a letter and stop worrying.
You know your difficulries and sit down and make a note of all the crap going on with your condition Make it so that they can also read it.
Before every assessment I have been sent on I write a report labelled, "How my injury affects my everyday life"
I list what gives me pain, what activities are restricted and how they affect me,
Daily living restrictions etcetc.
Go do it and stop the worry, be proactive and get prepared for your assessment. Everything hangs on this as you can not afford legal rep you tell us. So it is up to you with your knowledge to write up a good report on how the injury affects your life.
Dont ramble on about Kanji, just show what he did to you has ended your future in a certain occupation.

The better we can talk to ACC and their assessors knowledgeably, it all helps .BUT dont say too much as every word will be used against you remember. I found that out very quickly, things get twisted to suit them. So if it is in writing set out as a record of your pain and disabilities, they have it there and cant change it!

Go do it

I speak from my experience, i have always been honest with ACC and it has paid off.
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#8 User is offline   hukildaspida 

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Posted 01 December 2012 - 09:40 PM

How did you get on regarding section 103?

View PostKarney, on 17 March 2005 - 01:40 PM, said:

I have recently had a review, mediated by a Disputes Resolution service reviewer, against a decision to pay me weekly compensation. I had resigned from my job due to an inability to continue in the post with my injury (OOS), the failure of the IRP as the alternative way of working didn't work but Aon and my employer dismissed all my concerns, and also extreme stress from the way the whole situation was being handled. I already had a personal grievance case against my employer and this became constructive dismissal after I left.
The decision letter from WorkAon said that under S117 - that by refusing to continue in that job I was removing myself from the most appropriate form of rehab. My advocate put up a strong case during the 2.5 hour review, including a report from their IMA saying the job was unsuitable, and an e-mail from Aons medical advisor saying the same thing. Despite sending 5 people to the hearing from the employer/Aon side, they really didn't come up with anything to disprove the argument that there was no rehab taking place and that I couldn't do the job.
We really thought I would win.
But the Reviewers decision came back dismissing my appeal and agreeing that Aon should not pay weekly compensation, but not because of S117. He made his decision under S103 - work capacity. My GPs certificate said that I was able to work full time, but on light duties with restrictions on any repetitive hand movements. The reviewer argued that the job had been modified by the employer to try to meet my needs, and that it wasn't his place to determine whether those modifications really did help/were feasible for me. He said that the IMAs report did not prove that I was incapacitated at time of leaving (report dated May 2004, with a further letter in Aug 2004 confirming his views. I resigned late Aug and left on 10th Sept. Date of Injury Oct 2001 and constant medical certification/restrictions since Aug 2003 - ie. the condition was stabilised and not improving)

Does anyone know whether the Reviewer has the right to effectively exit me in this way, given that I did not go through the normal work capacity testing process complete with written advice/warning from Aon?

Does it contravene the principles of natural justice to have a decision made like this, that was not mentioned at the review hearing so my advocate and myself were not given the chance to present contrary evidence?

My injury was actually covered under the 1998 act and the wording of the S103 equivalent was different then, saying that if the claimant cant do every part of their pre injury job (I couldn't continue the handwriting part which was 90% of the job) they are incapacitated from all of that job. Should I still be under the 1998 regulations or did the 2001 regulations over rule them completely?

My advocate is putting in an appeal to the District Court but I intend to complain to the Dispute Resolution Service too, so if anyone can provide any clarity on the above it would be a great help.

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