[tommy]

When i did enter the vocational programme after terminating my self employement programme , i put strict instructions of what could or should be achieved as i believed was possible for a returmn to another vocation as activities that was possible to myself without creating furher compounding issuues to the original injury . Hence i sit in limbo after many years of being engaged with the corporation to date

[MINI]

Alan Thomas, on 07 August 2014 - 02:31 PM, said:

Mini Section 73 (1) certainly is not obligatory. Both sections 37 and 51 contained within it and mechanisms necessary for decision without the need to resort to section 73 (1). However section 73 does not exist in a vacuum that is entirely dependent upon section 37 and 51 information or more to the point lack of information. In other words it the ACC did not receive a medical certificate then they must immediately stop the relevant entitlements. Section 73 does not involve itself with information per se but depended upon a significant number of other information producing sections of legislation.

Where did I say section 73 was obligatory??

Why didnt you pull the place I said it forward.

I said sec 51,37a,37b and 37 were not only an obligatory consideration as in your court case but also mandatory under the two cases I have been using since 1994. to assess incapacity/compacity before determining the state of someone to work.

Be they working at the time of request of w/c or on ACC at the time.

Mini

[MINI]

tommy, on 07 August 2014 - 02:08 PM, said:

In my personal case allan after numerous years of being allowed to enter a self employement rehab programme, which i was given a years erc then i was on my own devices, and of the corporation disappearing. In saying that the self employement was not done in accordance with legislation, so their became a large amount of arrears owing, but i will not go into that side of it. T he corporation then in my case made you try to sway you away from the self employement , which i did and entered the vocationl rehab programme of the corporations To date i have had eight vocational assessments , had two work trials , and both were monitored thru an occupational therapist , That is so to speak in a nutsheell to date . not to mention 26 years of long conflicting issues some good some bad and a mountain of paerwork in that time has been accrued

Seems the same as most others. You are either kicked off for whatever reason or not given your rights to begin with as in Wardle (as mentioned in Kearney) or myself. So every three years or so you have been voc assessed. At least they have done it for you to make sure one way or the other. I had never had a voc assessment until 2002 which came out with all the things I had while I was working prior to leaving but after my operations. No stairs at workplace for one. A car park outside work for another. You know easy as things like make work hunting a breeze.

Mini

[MINI]

Alan Thomas, on 07 August 2014 - 02:17 PM, said:

Commonsense

Mini despite the attractiveness of the doctrine of common sense in as much as it can produce results in an expedient fashion the fact remains that commonsense cannot be relied upon for no other reason that commonsense is not very common. People may think that they have commonsense but that is something that is merely along the lines of being the beauty that is in the eye of the beholder. To give you an example:

During the 1930s in Nazi Germany it became commonsense that the Jews should be executed. The commonsense was based on a commonly held beliefs at the time within that community. The community complied with the notions of commonsense, including doctors and lawyers and judges etc. The majority were in agreement as to the nature of this commonsense at that time. In retrospect they are horrified at what they had done.

We see in New Zealand that it makes for "commonsense" that the various political parties to promise lower ACC levies and reduce ACC services by redefining such things as occupational title, length of time it takes to recover from injury etc etc with the invalid carrying the burden in the same fashion as the Jews in Nazi Germany. Of course those employed by the ACC don't want the ACC to privatise which is made possible by the lowering of the levies and the expectation of the public of New Zealand. Politicians act the democratically by promising that will of the majority. The poor injured invalid of course is in the minority with no capacity to provide significant input into the nationwide commonsense mindset.


The reason why commonsense is unlawful is that it does not provide lawful protection to those entitled to have such protection. It is the ACC legislation that requires the gold standard medical assessment and procedures as opposed to the ACC desire to function on averaging healing rates and providing the bell curve protocol of measurement over averages by an attractive name that misleads public perception to the extent that even doctors get sucked in.

NASA management thought it was commonsense that it was safe to launch a space shuttle on a cold day because they have launched 30 spaceshuttles before. However the engineers who base their decisions on objective fact and not commonsense said that because they are rings will not function properly at the low temperature the spaceshuttle might blow up. It did. Science wins over commonsense every single time. The ACC legislation is entirely dependent upon science to the exclusion of commonsense. It is the legislation. Any judge the rules to the contrary is wrong in law resulting in a unacceptable risk of misinterpretation of fact.

this is just not applicable to me or my injuries.

Mini

[tommy]

The concept of then monitoring a claimants change in injury status i believe is relevant to then deciding of what can be achieved in to giving the claimant a right under the acc leg islation if applied correctly to their rightful entitlements ,

[Alan Thomas]

tommy, on 07 August 2014 - 03:57 PM, said:

When i did enter the vocational programme after terminating my self employement programme , i put strict instructions of what could or should be achieved as i believed was possible for a returmn to another vocation as activities that was possible to myself without creating furher compounding issuues to the original injury . Hence i sit in limbo after many years of being engaged with the corporation to date

It seems to me that they had not been delivery on your legitimate expectation that the ACC promote your rehabilitation.

Firstly is the medical evidence that it will be medically impossible and that there is no medical hope of any medical treatment that could return you to your preinjury occupation?

Secondly as the ACC made a decision that both acknowledges the impossibility of you to return to your pre-injury occupation and that you have been supplied with an actual decision to rehabilitate you in the mode of vocational rehabilitation into a new occupation?

Have you had your pre-injury qualifications, experience and skills quantified by an independent qualified assessor with that information being placed within your rehabilitation plan followed by another occupational report providing some form of target to the potential new occupation is that expressly reflect your residual qualifications, experience and skills and identify what further qualification experience and skills unnecessary or those occupations that have been identified to have some potential for you.

Thirdly has three years expired since the beginning of your vocational rehabilitation and I do mean prior to your self-employment?


If none of the above criteria has been action then you have a valid claim under section 134 (1) ( in regards to your perceived delay of process to achieve your expected entitlements. It does seem that ACC are avoiding responsibility to fund your rehabilitation in a timely manner.

[Alan Thomas]

MINI, on 07 August 2014 - 04:24 PM, said:

Where did I say section 73 was obligatory??

Why didnt you pull the place I said it forward.

I said sec 51,37a,37b and 37 were not only an obligatory consideration as in your court case but also mandatory under the two cases I have been using since 1994. to assess incapacity/compacity before determining the state of someone to work.

Be they working at the time of request of w/c or on ACC at the time.

Mini

Judge Barber has ruled to the effect that your reasoning is wrong.

Judge Barber assert that the ACC may rely upon anybody they like, including those with a conflict of interest, to provide the ACC with conflicting information to the ongoing medical certificates reported by high level specialist reporting and rely upon that conflict information to discount the scientific evidence provided by the medical community. In other words judge Barber is saying that ACC may at the private investigator, based on your ACC 167 consent form, to go down to the local pub and ask some drunk if they think you are no longer incapacitated to work in your old job despite the fact that the drug has no idea what your old job was or what your injuries were with the ACC relying upon the drunks opinion to cancel your entire claim together with all of your entitlements. Judge Barber's decision is that simple and forms a platform for the ACC to continue doing to others as they have done to me, including yourself from which other judges made in rely upon judge Barbers decision because both the High Court and Court of Appeal have declined to address the point of law as to whether or not he has applied the legislation properly.

So Mini there is now the authority of the Court of Appeal behind the ACC process of asking a drunkard in a pub information that they can choose to use to disregard the entire medical communities scientific authority as to fact. The Court of Appeal has ruled that the determination of fact an at the district court level including how the district court judge arrived at this decision.


As a side point there are other issues in play including the perjury and other processes that mislead judge Barber. In addition there are also other concurrent decisions of accepted cover of which were not factored in to either the ACC or judge Barber's decision which are yet to be processed through the system which obviously will be creating a conflict of that decision of which subsequent judges may very well take a different viewpoint.

[tommy]

In your questions , i could give a tick in the yes box to three but an impartial to the irp plan insertions

[Alan Thomas]

MINI, on 07 August 2014 - 04:36 PM, said:

this is just not applicable to me or my injuries.

Mini

The courts have ruled that the processes and rationale I have described apply to all ACC decision making, without exception.

A minority number of courts however have advocated for commonsense for the sake of expediency. I along with appellate courts consider such an approach to be unlawful which reconfirmed the foundation for what I have described.

Mini what typically happens is that there are departures from the sequence of rehabilitation entitlements whereby the ACC has leapfrogged part various duties followed by asking themselves the wrong questions and becoming entirely confused then attempting to make "commonsense" type decisions in order to fight their way through the mess. This seems to be what has happened with you and you have my sympathy.

When Humpty Dumpty has a great fall...
The best thing to do is reassemble Humpty Dumpty.

[Alan Thomas]

tommy, on 07 August 2014 - 04:48 PM, said:

The concept of then monitoring a claimants change in injury status i believe is relevant to then deciding of what can be achieved in to giving the claimant a right under the acc leg islation if applied correctly to their rightful entitlements ,

The only person entitled to monitor and quantify The injury status is your treatment provider to provide medical certificates.
Legislation entitled the ACC to require a reassessment by an independent medical professional from time to time as they see fit. This in no way implies the ACC can create a continuous monitoring process as you have described. This is particularly so if the person monitoring you was not appropriately qualified to challenge the medical certificates unless that person has superior medical qualifications.

In my own case the ACC had me under constant surveillance at the cost of a six-figure sum or more to have me surveilled or "monitored" for the purposes of the private investigator to determine entitlements. This type of practice is against the constitutions of both Communist Russia and Communist China, notwithstanding the fact that it still happens there too. Therefore you can be assured that ACC legislation is certainly does not enable the ACC to carry out constant monitoring activities. Please understand that the purpose of constant monitoring is to enable the person doing the monitoring to provide selective information such as you looking at something that was of a size and type of your doctor told you not to with the result that the ACC claim that you are no longer injured and then prosecute you for fraud As was the Case with the rock carrying Claimant in the South Island.

[Alan Thomas]

tommy, on 07 August 2014 - 05:23 PM, said:

In your questions , i could give a tick in the yes box to three but an impartial to the irp plan insertions

Could you please expand upon your answer so as we can progress this issue to its conclusion.

[tommy]

Trying not to be ignorant of your question allan what were you specifically requesting, as i mentioned was it to do more in relation to the irp ?

[Alan Thomas]

tommy, on 07 August 2014 - 05:43 PM, said:

Trying not to be ignorant of your question allan what were you specifically requesting, as i mentioned was it to do more in relation to the irp ?

All I am attempting to do is to determine whether or not the ACC have been complied with legislation in regards to the sequence of events you have described concerning your own experience. Of course it was relevance to my own and probably many others and as such examining the sequence of your experience will certainly be of benefit so as we all improve our overall understanding of the legislation as opposed to what the ACC are actually doing.

While I owned a number of actors businesses of which I was a co-owner with others whom others managed and I remained as an inactive director I also explored how I made best utilise my residual capacity on my own account without the ACC contributions towards rehabilitation in any way or form. Should the ACC have interpreted the 1992 review hearing as I have a viewpoint would have been that I was permanently incapacitated until we benefited from successful reconstructive surgery which the ACC had already made a decision not to provide. In the event of a permanent incapacity decision I am free to utilise my time as I see fit and should I generate any earnings beyond my preinjury earnings than the ACC would be entitled to an abatement of earnings, that it.

Our experiences intersect in as much as ACC have to some degree supervise your ventures into self-employment was in my case the ACC have had me secretly watched by private investigators with a similar concept of supervision and/or monitoring. Your outcome apparently yielded a negative result. My situation likewise yielded a negative result in as much as there is no evidence whatsoever in the participating in any work task activity let alone generating any earnings which is consistent with what I had told ACC in writing together with copies of my plans as to how to best utilise my residual capacity while waiting for the reconstructive surgery.

Keeping in mind that one out of five people in New Zealand are self-employed and many injured people who were employed in the ordinary sense find themselves faced with the only way forward is to become unemployed so as they can eke out some form of existence utilising their residual capacity as and when they feel well enough without the burden of being in and employed environment which carries with it obligations of attendant time at work etc. The freedom to work as and when able for an invalid is a very important freedom as it maximises the residual capacity. ACC however don't just avoid Self-employment but actively discourage Self-employment. Am I sensing some form of dissatisfaction that you have not continued with your attempts of self-employment and that ACC have not provided you were the backup that you had hoped?

[greg]

Mr Thomas ; some were given $5000 and up $20,000 was available to certain claimants.

[tommy]

There was an urgency from the corporation to try encourage a small minority whom did venture into self employement originally to surreder that personal right,as i see it to then decide of how monitoring, surveilence, was of more advantage of whom then could give an appraisal of what their activities they the claimant were capable of , hence i have no disagreement with that , and i then to date can see how there has become confusion of whom then decides of actual work task activities , and then residual activities etc, and general publics giving views eviidence ie then giving if fraud was committed ?

[Alan Thomas]

tommy, on 07 August 2014 - 06:21 PM, said:

There was an urgency from the corporation to try encourage a small minority whom did venture into self employement originally to surreder that personal right,as i see it to then decide of how monitoring, surveilence, was of more advantage of whom then could give an appraisal of what their activities they the claimant were capable of , hence i have no disagreement with that , and i then to date can see how there has become confusion of whom then decides of actual work task activities , and then residual activities etc, and general publics giving views eviidence ie then giving if fraud was committed ?

This is the exact reason why legislation should be clearly understood whereby that criteria is applied to the rehabilitation plan.

In my case the ACC required me to produce business plans with the threat that they would suspend my earnings compensation if it failed to produce those plans as quickly as they wanted them.
They then had me watched while I carried out the research, had discussions and business meetings with various potential participants and of course learn to use voice software and various Microsoft office software to produce those plans while they had their private investigators who also had their own informants observed me complying with the ACC requirements then using that information to cancel my entire claim and prosecute for fraud based on the claim that the activities I was performing was "work".
When it got into court they tried to say that because there were assumptions that I was working therefore I could work and therefore I was no longer incapacitated from my injuries to return to my preinjury occupation without even knowing what that occupation was.
Legal expertise employed to defend me had no idea what they were doing as did the judge.

Tommy you dodged a bullet.

[greg]

tommy, on 07 August 2014 - 06:21 PM, said:

There was an urgency from the corporation to try encourage a small minority whom did venture into self employement originally to surreder that personal right,as i see it to then decide of how monitoring, surveilence, was of more advantage of whom then could give an appraisal of what their activities they the claimant were capable of , hence i have no disagreement with that , and i then to date can see how there has become confusion of whom then decides of actual work task activities , and then residual activities etc, and general publics giving views eviidence ie then giving if fraud was committed ?

Before any ACC. approved self employment opportunity being offered to the
Claimant , a Report from a specialist was required to state the non return
to pre-injury occupation under the 82 act.
Even if a claimant had such a document , they were never offered a sec 60 post 1986.

[greg]

Alan Thomas, on 07 August 2014 - 06:47 PM, said:

This is the exact reason why legislation should be clearly understood whereby that criteria is applied to the rehabilitation plan.

In my case the ACC required me to produce business plans with the threat that they would suspend my earnings compensation if it failed to produce those plans as quickly as they wanted them.
They then had me watched while I carried out the research, had discussions and business meetings with various potential participants and of course learn to use voice software and various Microsoft office software to produce those plans while they had their private investigators who also had their own informants observed me complying with the ACC requirements then using that information to cancel my entire claim and prosecute for fraud based on the claim that the activities I was performing was "work".
When it got into court they tried to say that because there were assumptions that I was working therefore I could work and therefore I was no longer incapacitated from my injuries to return to my preinjury occupation without even knowing what that occupation was.
Legal expertise employed to defend me had no idea what they were doing as did the judge.

Tommy you dodged a bullet.

Mr Thomas ; please explain this in the same time frame as your judgements state.
You never created an ACC. approved Business plan during the years or period claimed.
You do not have any Specialists document claiming you cant return to your pre-injury.
You have never been involved in an ACC agreed work trial .
How can you claim knowledge about ACC work trails , when you have never actually attended.

[tommy]

This is where matters got confusing as in the claimant thinking but not understanding acc legislation , as what they as a claimant thought and in actual realism is where these long standing cases , grievences are now if whom has the time monies etc to persue a result in a claimants favour but as i mentioned at what energies ?

[Alan Thomas]

greg, on 07 August 2014 - 06:53 PM, said:

Before any ACC. approved self employment opportunity being offered to the
Claimant , a Report from a specialist was required to state the non return
to pre-injury occupation under the 82 act.
Even if a claimant had such a document , they were never offered a sec 60 post 1986.

Greg you are quite right in regard to the 1982 act and the way in which the ACC were conducting business.

In 1993 the High Court ruled, in the form of a judicial review, that it is unlawful for the ACC not to have distinguish the difference between temporary and permanent incapacity. In other words the ACC were required by law to make a decision between section 59 and 60 of the 1982 act.

If anyone finds themselves permanently incapacitated and transferred to processes under subsequently legislation it would probably be a good idea to get advice regarding placing the ACC on judicial review in order to compel the ACC to make a retrospective decision of permanent incapacity under section 60 which equates to permanent retirement with the freedom of movement to do as you please whether it be in a new business, new occupation or whatever for whatever amount of time your doctor thinks it is safe to do in relation to the injuries etc. Of course the ACC under this section are entitled to a reduction in earnings compensation by way of abatement of earnings which is perfectly reasonable. In addition section 60 requires the ACC to determine Earnings compensation to be based on projected earning capacity as opposed to historical earnings which for folk who are in a clear career path that indicates a probability of increased earnings capacity throughout the development of that career would enjoy very significant increased compensation so as to reflect what would have happened if they were not injured.