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Farmer Wins Court Case For Gradual Process

#1 User is offline   fairgo 

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Posted 31 December 2005 - 07:55 PM

Otago Daily Times 31.12.05


Farmer wins ACC appeal



Decision opens way for farmer claimants


By John Gibb



Former Clinton sheep farmer Geoff McKenzie has won an appeal over ACC cover in a case which highlights the risk of gradual process back injuries among farmers.
In a reserved decision arising from a hearing in the District Court at Dunedin, Judge Peter Barber, of Wellington, allowed Mr McKenzie’s appeal.
The judge fixed ACC’s contribution to his legal costs at $1500, and the actual costs of any medical report.
The appellant had been a 49-yearold sheep farmer who had suffered a lower back strain in July 2000 while stacking hay. He was initially granted cover by ACC.
“The issue is the correctness of the respondent’s August 2001 decision declining the appellant’s claim for lumbar sprain as a work related injury caused by a gradual process, disease or infection,” the judge said.
Peter Sara, who appeared for the appellant, said the outcome was notable for the judge’s clear acknowledgement of the heightened risk of gradual process back injuries arising from farm work.
Farming was economically important work for New Zealand and the judge’s finding was likely to prove significant in future gradual process injury cases, Mr Sara said in an interview this week.
Mr McKenzie, now 54, said the appeal outcome had ultimately come too late to save his farming career but he believed it would help others in future.
“It will help farmers to be able to get assistance, to get fixed up and get back to farming,” he said in an interview.
He had sold his farm in July 2001 after his injury had greatly reduced his ability to work there.
He had had a successful back operation which he had paid for himself and had shifted to Alexandra where he was now undertaking less physically demanding work.
He welcomed the judge’s “common sense” acknowledgement of gradual process injury risks to farmers.
The judge noted that ACC had declined Mr McKenzie’s request for entitlements, specificially for surgery and earnings-related compensation.
A reviewer had subsequently decided in 2003 that he was not satisfied that Mr McKenzie had met two requisite statutory tests to justify cover.
On the other hand, in a 2002 report, occupational physician Dr Gordon Hancock had concluded that Mr McKenzie had a valid claim.
However, an occupational therapist, Dr Bill Turner, did not accept that lumbar degenerative disc disease had been “a consequence” of Mr McKenzie’s occupation.
Mr McKenzie’s work involved “a wide variety of activity”, the opportunity for frequent breaks, and “the ability to arrange farming activity from hour to hour from one day to the next,” Dr Turner said.
A self-employed farmer would also “be able to carry out reparative exercises, which would not otherwise be available to the factory process worker,” he said.
However, the judge found the view about “reparative exercises” to be “unconvincing and of little relevance.”
Appearing for ACC, Hamish Evans, of Christchurch, had noted comments by a health professional that there was no evidence in the medical literature that farmers had a greater risk of degeneration of their lumbar discs than other professions or the general community.
The judge said it had been submitted by Mr Sara that Mr McKenzie had been “virtually a one man farmer on quite a significant scale for many years” and who performed much heavy work on his 200ha farm where he was constantly driving his tractor, undertaking field tile drain laying work, fencing, crutching, drenching and shearing.
Such a farmer was “an extremely hard worker,” the judge said.
“It seems to me to be simplistic to assume that the primary cause of the appellant’s degenerative disc disease is the natural age-related degenerative process.”
The appellant had shown his work did contribute “to wear and tear which has resulted in disc degeneration, or in significantly hastening natural disc degeneration problems.
Farmers as a group had a “significantly higher risk of suffering such back disease than do other people in general,” he said.



Battle over . . . Former South Otago farmer Geoff McKenzie reflects on extensive correspondence with ACC.
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#2 User is offline   MadMac 

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Posted 01 January 2006 - 08:13 AM

:wub: Maybe the only thing that is degenerative is the size of some peoples brains ...

:wacko: Sounds typical of ACC to delay , decline ,devestate ,destroy the claimant ...whilst the claimant is struggling to survive getting / paying for appropiate medicial treatment ... looseing everything that he has worked for ... I have lived the same experiences ... haven't I ACC ...

:D Aren't Farmers the Backbone of New Zealand ... Real people doing real work ...
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#3 Guest_Percy_*

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Posted 01 January 2006 - 03:29 PM

:huh:
Bill Turner and Hamish Evans. What a combination!!
Good on you Judge Barber and I hope you make a further successful decision in the days to come!!!
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#4 User is offline   Karney 

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Posted 02 January 2006 - 11:13 PM

Fairgo, you put Dr Turner down as an Occupational Therapist instead of an Occupational Physician. What an insult to OTs!

ACC do seem to have some weird ideas about what can cause a gradual process injury and this is the first time I have heard of anyone with a back problem being succesful in getting it accepted as gradual process. Of course anyone with any common sense can accept that farmers, nurses, and certain other occupational groups are at high risk of back injuries due to the repetitive heavy lifting or otherwise awkward manoevers they have to perform in their jobs.

As for Turners comments about farmers being able to plan their own work loads, take frequent breaks, and vary their tasks at will - - - I grew up in a large city but even I know that is not the case. When hay needs stacking, it needs stacking now - not next week when the farmer feels in the mood to do it. When sheep need shearing, they need shearing now and the job would never get done if the shearer kept letting animals go in the middle of the job, so he could take a rest break. Which planet does the guy come from?
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#5 User is offline   fairgo 

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Posted 03 January 2006 - 10:12 AM

Agree entirely with your comments Karney. It wasn't me who listed Bill Turner as an Occupational Therapist it was the reporter from the ODT. Perhaps a letter to the editor from you pointing out the mistake wouldn't go amiss....
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#6 User is offline   accvictim 

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Posted 08 January 2006 - 08:17 PM

ACC will fight anything and everything, and claimants do lose all they have worked for.
The ironic side of this is, ACC in the end has to pay out more for the legal expenses and reimbersements, costs, to claimants and such,,than they would have had to pay for the treatment and rehabilitation of the claimant had they done it calmly and correctly from the start,,,,so no-one wins (specially the claimant) his/her life is left in tatters.

ACC HAS BEEN NEGLIGENT AND IN DENIAL SINCE SHIPLEYS MOTHER OF ALL BUDGETS, AND ITS HIGH TIME FOR AN INVESTIGATION!!!
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#7 User is offline   MG 

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Posted 09 January 2006 - 10:09 AM

A letter of correction has been written to ODT today.
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#8 Guest_Percy_*

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Posted 09 January 2006 - 05:06 PM

ODT may know something that we dont!!!!
Check the Medical council website!!!!! ;)
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#9 User is offline   fairgo 

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Posted 16 January 2006 - 11:18 AM

Otago Daily Times 14.1.06
Letter to the editor

ACC




THANK YOU for reporting the outcome of the appeal I successfully argued in the District Court on behalf of my client Geoff McKenzie (ODT, 31.12.05). However, there was an error of fact in your report. Dr W.E.D. Turner is an occupational physician, not an occupational therapist, as reported. An occupational physician is a registered medical practitioner with particular expertise in assessing any work-related factors that may cause or contribute to personal injuries. In the case of gradual process injuries, such as those suffered by Mr McKenzie, the law requires a link between work-related factors and the injury before ACC is obliged to accept cover.
As you may be aware, over the last decade or so ACC has devoted considerable effort and resources to denying any casual link between work-related factors and gradual process injuries. The outcome is that people like Mr McKenzie are forced to undergo a gruelling legal battle to obtain assistance for their injuries. I am pleased that I was able to obtain justice for my client on this occasion but I am aware that there are many more people in his position who are denied help from the state for gradual process injuries. I call on Ruth Dyson, the Minister for ACC, to turn her attention this year to the needs of those who suffer personal injury, rather than the state bureaucracy which seems to see its job as shifting costs on to the victims.
Peter Sara
Dunedin
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#10 User is offline   Tomcat 

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Posted 28 September 2008 - 02:26 PM

BUMP
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#11 User is offline   hukildaspida 

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Posted 17 June 2010 - 12:56 PM

View Postfairgo, on Dec 31 2005, 07:55 PM, said:

Otago Daily Times 31.12.05
<span style='font-size:21pt;line-height:100%'>Farmer wins ACC appeal </span>
Decision opens way for farmer claimants
By John Gibb
Former Clinton sheep farmer Geoff McKenzie has won an appeal over ACC cover in a case which highlights the risk of gradual process back injuries among farmers.
In a reserved decision arising from a hearing in the District Court at Dunedin, Judge Peter Barber, of Wellington, allowed Mr McKenzie’s appeal.
The judge fixed ACC’s contribution to his legal costs at $1500, and the actual costs of any medical report.
The appellant had been a 49-yearold sheep farmer who had suffered a lower back strain in July 2000 while stacking hay. He was initially granted cover by ACC.
“The issue is the correctness of the respondent’s August 2001 decision declining the appellant’s claim for lumbar sprain as a work related injury caused by a gradual process, disease or infection,” the judge said.
Peter Sara, who appeared for the appellant, said the outcome was notable for the judge’s clear acknowledgement of the heightened risk of gradual process back injuries arising from farm work.
Farming was economically important work for New Zealand and the judge’s finding was likely to prove significant in future gradual process injury cases, Mr Sara said in an interview this week.
Mr McKenzie, now 54, said the appeal outcome had ultimately come too late to save his farming career but he believed it would help others in future.
“It will help farmers to be able to get assistance, to get fixed up and get back to farming,” he said in an interview.
He had sold his farm in July 2001 after his injury had greatly reduced his ability to work there.
He had had a successful back operation which he had paid for himself and had shifted to Alexandra where he was now undertaking less physically demanding work.
He welcomed the judge’s “common sense” acknowledgement of gradual process injury risks to farmers.
The judge noted that ACC had declined Mr McKenzie’s request for entitlements, specificially for surgery and earnings-related compensation.
A reviewer had subsequently decided in 2003 that he was not satisfied that Mr McKenzie had met two requisite statutory tests to justify cover.
On the other hand, in a 2002 report, occupational physician Dr Gordon Hancock had concluded that Mr McKenzie had a valid claim.
However, an occupational therapist, Dr Bill Turner, did not accept that lumbar degenerative disc disease had been “a consequence” of Mr McKenzie’s occupation.
Mr McKenzie’s work involved “a wide variety of activity”, the opportunity for frequent breaks, and “the ability to arrange farming activity from hour to hour from one day to the next,” Dr Turner said.
A self-employed farmer would also “be able to carry out reparative exercises, which would not otherwise be available to the factory process worker,” he said.
However, the judge found the view about “reparative exercises” to be “unconvincing and of little relevance.”
Appearing for ACC, Hamish Evans, of Christchurch, had noted comments by a health professional that there was no evidence in the medical literature that farmers had a greater risk of degeneration of their lumbar discs than other professions or the general community.
The judge said it had been submitted by Mr Sara that Mr McKenzie had been “virtually a one man farmer on quite a significant scale for many years” and who performed much heavy work on his 200ha farm where he was constantly driving his tractor, undertaking field tile drain laying work, fencing, crutching, drenching and shearing.
Such a farmer was “an extremely hard worker,” the judge said.
“It seems to me to be simplistic to assume that the primary cause of the appellant’s degenerative disc disease is the natural age-related degenerative process.”
The appellant had shown his work did contribute “to wear and tear which has resulted in disc degeneration, or in significantly hastening natural disc degeneration problems.
Farmers as a group had a “significantly higher risk of suffering such back disease than do other people in general,” he said.

Battle over . . . Former South Otago farmer Geoff McKenzie reflects on extensive correspondence with ACC.



How is former South Otago farmer Geoff McKenzie, whom is one on thousands whom suffer from spinal injuries, getting on?
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