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William John Dalley (ai 489/06) Work capacity VI

#1 User is offline   Alan Thomas 

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Posted 09 August 2007 - 01:46 PM

[39] The Assessment by Dr Marshall has been made that despite the appellant's pain. it does not constitute a barrier of itself and leaving Dr Marshall's opinion to one side, it is only the case that the appellant Jacks any motivation to move outside his comfort zone and I find is using his pain syndrome as an excuse rather than an actual physical barrier to regaining employment.

[40] I am satisfied that the work-types identified involve the appellant engaging in physical activity no different from that which he would ordinarily be engaged in with his
daily routine, and that it is only his entrenched disability beliefs which are holding him back from actually getting out and working.

[41] In all the circumstances, I am satisfied that the assessments carried out, together with the assodated specialist reports on this appellant, do identify that he has the capacity to engage in work in the identified work-types for 35 hours or more per week. The respondent's determination to that effect was correct and this appeal is therefore dismissed.


Could someone cleanup the scan then post it to me please, because it is too hard for me to do thanks

Attached File(s)


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#2 User is offline   fairgo 

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Posted 09 August 2007 - 02:22 PM

The old "Ramsey principles" raises its head again. I would suggest that Judge Beattie take a read of Hazel Armstrong's recent research about vocational independence of acc claimants..........what a joke :(
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#3 User is offline   MG 

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Posted 09 August 2007 - 05:01 PM

Just to cheer everyone up, here's another decision by Judge Beattie where he found the claimant did not have vocational independence. Both the occupational and medical assessments were flawed, the former because it failed to take account of the fact that the so-called "vocational rehabilitation" ACC provided to the claimant was completely inadequate for the assessor to conclude that he had the necessary skills to obtain employment in the identified job options. The medical assessment was also flawed because the ACC-doctor failed to take account of the claimant's documented physical restrictions in regard to some of the job options but had done so in regard to other job options - I think this amounted to irrationality in administrative law terms. IMHO, a good effort from John Miller's firm and Robyn Bailey, the independent occupational assessor whose evidence Judge Beattie obviously liked. Nice to see a decent costs award against ACC too.Attached File  Johnson.pdf (247.2K)
Number of downloads: 34
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#4 User is offline   fairgo 

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Posted 09 August 2007 - 07:41 PM

Thanks MG! I needed that!!! :)
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#5 User is offline   doppelganger 

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Posted 09 August 2007 - 09:55 PM

Quote

[36] it is significant to note the comment made by Ms Baily that the respondent's work-type details sheets do not describe the skilld needed for occupations. this would seam to be deficiency, particularly when so many work types which may be siutable for persons suffering from -physical injury would involve computer work, being part of the more sederrary type of work. i take the view that where special skills such as those involving the use of computer, are required, then they should be stated, particulary if the court is required to make a determineration whether a particular work-type is suitable because it matches the skills a claimant has gained through education, training or experence.


this is in August last year so have ACC made corrections to all of those Job detail sheets which do not hold the necessary information.

Now I think there was some media attention about this.
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#6 User is offline   jocko 

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Posted 11 August 2007 - 11:42 AM

Check this out. http://www.austlii.edu.au/cgi-bin/disp.pl/...+peter+koskovic. No matter what the pieces of dung who front for ACC, the govt, medical and judicial proffessions and big business at TVNZ come up with in defence of the scum at ACC we blow them back in to their septic tanks with fact. This judgement is from the South Australian courts not some acc tame judge who has previously faced the courts on fraud charges. The Koskovic judgement is posted on site.The judge ment was basically; In rergard to fitness for work. Where there is conflicting medical evidence then listen to the injured person. Otherwise it would lead to further injury or even suicide. Marshall and Beattie would not be bothered by that reasoning.
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#7 User is offline   magnacarta 

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Posted 11 August 2007 - 01:46 PM

Jocko, below is an extract from one of the classic NO WIN scenarios for the ACC claimants. Competing medical evidence, the claimant essentialy removed from the equation and then has the onus placed on him/her to prove differently.

IMHO our judge's are reversing the onus onto the claimant.

If the person was fit and had no pain before the accident, and unfit and in pain after the accident, the burden of proof should rest on ACC not on the claimant.

I think our court's continue to apply the wrong principle and then also insert themselves as medical experts without referecne to the claimant.

DECISION
[8] As can be seen from the medical evidence set out above, this is a case where there are competing medical opinions from two different schools of medicine, those of the Orthopaedic persuasion and those tending more to the science of the musculoskeletal discipline. This is not the first time that the Court has been confronted with these competing views but it is equally the case where each situation must be treated on its own circumstances and evidence and there can be nothing gained from considering other decisions where the same competing assertions have arisen.

[9] One of the matters of significance in the opinions of Dr Tait and Mr Finnis was the significant nature of the injury, the severity of the trauma at the time of the fall. This is to be contrasted with Mr Hopkins view that the incident was a low velocity injury and unlikely to cause significant injury. The various specialists have sought to identify and categorise the nature of the injury from statements made by the appellant. However, I find the matter of greatest significance is the fact that the appellant was able to continue working and did not see fit to consult with his doctor until 22 January and then that consultation was primarily for other purposes and the sore neck was only mentioned. It was not until the appellant returned to his GP on 2 February 1999 complaining of a sore neck that an injury as such began to manifest itself. Furthermore it was not until July 1999 that the pain in the appellant’s neck had reached the stage where he was deemed to be incapacitated.

[10] Against that background there is the assertion by the musculoskeletal school that the appellant suffered a soft tissue injury and that this soft tissue injury has persisted and indeed must have got worse with the passage of time. It has not been explained how the soft tissue injury would not have been manifesting its incapacitating features from day one.

[11] Whilst it is accepted that the appellant did suffer discomfort and difficulty in the weeks leading up to him consulting his doctor, nevertheless the pain and symptoms were not such as they were in subsequent months, long after the particular accident had occurred. It is clear that the pain which the appellant experiences has increased considerably from that which he experienced in the immediate post accident period. It is that situation which I find sits more comfortably with the advice given by Mr Hopkins. He quite readily accepted that it was reasonable to expect that there was some soft tissue strain at the time of the injury but that the ongoing pain which has taken over was that of the now symptomatic degenerative condition of his cervical spine.

[12] I find that Mr Hopkins response to the opinion and findings expressed by Mr Finnis to be most convincing and which themselves lead me to discount the opinion of Mr Finnis.

[13] The comments made above in relation to the nature of the accident equally apply to the view taken by Dr Tait. Whilst he may be of the view that the accident did involve significant force, it nevertheless must be the case that the accident did not involve significant damage. Dr Tait accepts that the degenerative changes which had occurred in the appellant’s cervical spine were of longstanding and that these osteoarthritic changes could not have been caused by the trauma of the accident itself.

[14] It is at this point that Dr Tait asserts that because the radiological changes were longstanding it must be taken that they were asymptomatic because of the lack of complaint or neck problems that the appellant had not endured meant this was the case. From this point Dr Tait then moves to give the lie to the opinion expressed by Mr Jones and Mr Hopkins by simply stating that if there was a correlation between radiological changes and pain then the appellant would have been symptomatic for five years or more.

[15] With the greatest of respect I cannot understand what Dr Tait is talking about when it is quite clear that Mr Jones and Mr Hopkins are saying that the previously asymptomatic state of the appellant’s osteoarthritis had been made symptomatic or aggravated by the incident of the trauma of the accident of December 1998.

[16] Whilst I have said that the Court can really not have reference to other particular cases when considering the medical evidence pertaining to an appellant, nevertheless it can take Judicial Notice of the fact that it has heard and received evidence on countless occasions where it has been stated that a person can have quite serious osteoarthritic changes in their spine and yet be suffering no adverse effects from that condition, that is the condition is asymptomatic. But that some incident of trauma to the affected area can cause that osteoarthritic condition to become symptomatic and the most powerful symptom which is thereafter displayed is that of pain.

[17] In the final analysis Dr Tait seems to be asserting that the appellant has now developed chronic pain and asserts that there is an unbroken causal link between the accident and his current clinical state. He is asserting that the appellant has developed a chronic pain syndrome, as I understand him, and I note that Mr Hopkins asserts that such is not the case.

[18] I have come to the clear view that neither of the musculoskeletal experts can satisfactorily identify a soft tissue injury as being the continuing cause of the appellant’s pain whereas the radiological evidence and the opinions of the Orthopaedic Surgeons clearly identify the co-relation between the degenerative condition of the appellant’s cervical spine, the fact of trauma, and the commencement of asymptomatic condition which has got worse as is the case with such conditions.

[19] In the final analysis the onus is upon the appellant to establish on the balance of probabilities that he continues to qualify for entitlements under the Act, that is that the condition in respect of which he is seeking continuance of a statutory entitlement is a condition which is causally connected to the injury for which he was granted cover. In the present case I find that the medical evidence asserted as establishing that state of affairs does not in fact do so and I find that the balance of probabilities favours the situation as expressed by Mr Hopkins.

[20] For this reason therefore the respondent’s decision to suspend entitlements was correct and this appeal is dismissed.
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#8 User is offline   Gloria Mitchell 

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Posted 11 August 2007 - 04:03 PM

View PostNoDrsl, on Aug 11 2007, 02:57 PM, said:

"I find that Mr Hopkins response to the opinion and findings expressed by Mr Finnis to be most convincing and which themselves lead me to discount the opinion of Mr Finnis."

this judgment gives me the impression that claimants and the publics problem is accuracy of medical opinion, which opinion is medically accurate, and it appears that this is what the judges rely upon a lot. how do claimants address the problem of varying medical diagnosis and opinion accuracy? Does the above judgment give the public confirmation of doctors being used as gatekeepers to medical treatments and associated legal opinion, i used to think the doctors first duty of care was for patients health.


NoDRSL, IMHO once "they" have found a Toady to throw the faintest taint of doubt on the effect of the injury, they stack everything they can take out of context from the other medical opnions up beside that and "prove" the injury either never happened, or has no bearing on the present.
This is not cricket......but the judges are often too busy to see what has happened (still wearing rose coloured glasses me) how things have been skewed. IMHO.

Gloria
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#9 User is offline   tonyj 

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Posted 11 August 2007 - 05:03 PM

I hope Finnis has been given a copy of the outcome .. If I was him I would be rather pissed and he might be inspired to make an issue of his judgment being questioned..
tony
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#10 User is offline   magnacarta 

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Posted 11 August 2007 - 07:38 PM

Sorry guys, I forgot to add that this case cite is Thomson 122/2003 - and I'll give you three guesses who the Judge was - I'll bet you won't need one guess, let alone three.

Isn't it remarkable that the Judge criticises the claimant for not seeing a doctor for weeks (actually the accident happened on 26 December 1999 and he saw a doctor on 22 January2000) and that his suffering and difficulties did not seem to bother the claimant - he kept working.

Hang on, don't doctors and ACC itself require claimants to keep active and working following back injury - and yet the judge then criticises the claimant and disbelieves Dr Finnis - who is, in fact, a neurosurgeon against an orthopaedic surgeon, Dr Hopkins.

So, who do you reckon was the Judge???????
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#11 User is offline   doppelganger 

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Posted 11 August 2007 - 08:06 PM

Now whats that rehashed advertisement campain that goes on about every 8 years.

Work through that pain and DON"T seek medical attention.

what the above case is a match of lawyerw and the truth or correctness does not matter. up until the 1hen the 1998 Act came force a Judge could not make a medical opinion. this was left up to a Doctor and of cause suitable qualified. this could be court appointed.

was in court the other day and yes there was arguement on medical opinions which is funny as that is the Drs area and unless lawyers get qualified then I think that they should leave that area alone. As for Judges making medical opinions with out examining claimants it is no better than toady's making statements from notes that are not complete or correct.
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#12 User is offline   flowers 

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Posted 12 August 2007 - 01:17 AM

Are We are being punished viciously because we had a bloody accident and have now become a liability to be paper rehabilitated onto the invalids benifit?????????????????????????????
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#13 User is offline   jocko 

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Posted 14 August 2007 - 09:37 AM

Thanks Magnacarta. Beattie again Is it? If the arthritis was there at the time of the accident wouldn't the eggsell skull principle apply? There is definitely no room for benefit of the doubt with Beattie is there.
The Dalley decision is bloody weird. Beattie dismissed it because Bill is afraid of causing himself pain. There is no doubt there is an injury. There is no doubt it causes pain. Doctors only rarely prescribe Tramol.
Yet this wanker comes up with his dismissal because a patient does not want to engage in something that will cause extreme pain and discomfort. If he is not disabled then, like the other 20,000 odd; What on earth is he doing on the invalids benefit? Who is the doctor that, as in the other 20,000 cases, signed the invalids ticket saying he is only fit for less than 16 hours a week? And, what was his bloody diagnosis and reason for assessing him as an invalid? I hope this case goes to appeal.
TVNZ's silence on the matter since is only to be expected.Like ACC, they are owned by the state.Did you see Paul Henry licking up to Helen this morning? The politics of deception. I watch the stupid bastards because it is so easy to read between the lines and interpret what is really happening and stay one step ahead.
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#14 User is offline   Alan Thomas 

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Posted 14 August 2007 - 10:03 AM

I was watching two very experienced ACC lawyers before Judge Beattie yesterday completing the two different points of view regarding the issue of pain and ACC liability.

The claimant had accepted injuries that caused incapacity and was working up to 20 hours per week in a semi-sheltered occupation. By semi-sheltered I mean the employer adjusted the occupation to suit the claimant so as to have regard for the injuries. It was clear that the claimant had done their absolute best to be participate in the work and community on the best way they could, even going beyond call of duty by working with some degree of discomfort.

The ACC wanted to push that little bit further up to 35 hours without success so then reassessed the claimant into a different occupation of which there was not proper qualification experience or skill to earn but the claimant was with an unqualified opinion willing to give it a go but could not break past that pain barrier. The treatment provider said no this is beyond the person's capacity.

The claimant's treatment provider and various specialists had produced a number of reports that were possibly a little loosely worded which opens the way for the ACC contracted assessor reinterpret the superior expertise without sufficient expertise of his own to give clearance for 35 hours per week in opposition to the treatment providers, including specialists.

The claimant's lawyer put the main focus on the inability to do 35 hours work on the pain issue. The lawyer tried to explain the various types of pain but clearly had no comprehension or depths of understanding of these medical matters.

The ACC's lawyer rolled out to be overall ACC viewpoint of pain and also stated in clear language that the specialist reports did not use the descriptive words of the pain that they should have used so as to fit with the ACC philosophy on pain.

The judge hearing the matter relied upon is only medical understanding and even tried to teach both lawyers medical things.

My overall observation was the poor claimant had suffered from unqualified people dumbing down the decisions of the treatment providers to the extent that the claimant was not being rejected by the law but instead abused by the law. The most significant criticism I would have is that people from ACC through to the judge were ignoring the experts in favour of their own guesswork. All parties involved demonstrated extraordinary arrogance to the point of total endangerment of not only the claimant's health and welfare but his financial well-being.

The bottom line is that these cases need to rely upon the expert information. The lesson is that no medical report shall leave the building unless the individual structures that are damaged properly qualified and issues of pain must be properly he find rather than these made up syndrome type words invented by insurance companies. In other countries where medical insurance is privatised there are a large number of medicolegal experts who would never have allowed yesterday's fiasco to have survived.
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#15 Guest_mini_*

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Posted 14 August 2007 - 10:54 AM

Alan

Did you think to get the name, court number of the case etc, so that we with pain covered by ACC could have a read and see where ACC is coming from to keep ourselves prepared??

Or is it again a matter of who knows what on the forum??

Recently I helped get a case for others online who were needing it for their cases. It would be nice if those who are in the know post the case numbers on line if not the cases.

I realise that this case will not have a decision out yet, but it would have had a name and that would have been a start.

We really do need a library not only of cases but also of pending issues on the forum. Can it not be arranged.

As all know I am totally IT 'useless', but am very legal busy, so any information is good information.

Mini
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#16 User is offline   Alan Thomas 

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Posted 14 August 2007 - 12:02 PM

Mini I did not get the name of the case unfortunately as I am unable to take notes and have a short-term memory problem. I simply sat in the back listing while waiting for my own cases.

The judge's name was Beattie.
ACC lawyer Tui
Claimant's lawyer Caddenhead
Date 13 August 2007

They were all arguing regional pain syndrome, chronic pain syndrome and the merits of other such fuzzed up mumbo-jumbo instead of the effect of each individual work task activity has regarding additional harm and whether or not the damaged structures are generating warning signals of impending harm so as to determine the viability of the vocational independence assessment. Each individual task of each occupation should be rigorously examined for safety in these types of cases.

It is quite clear to me that the ACC are going through a process of training judges in the meaning of made up medical insurance words in total disregard of medical science.

In my own case, also responded to by Tui and heard by Beattie, Tui tried to explain my capacity by the fact that I had produced submissions and Beattie did not permit me in response to the ACC submissions.

I had to go off my pain medication and disregard my doctors instructions not to prepare submissions in order to prepare submissions. No doubt are not insured for causing additional harm of both the structural elements and inducing a "chronic pain syndrome".

Mini We have an excellent and growing library of case law as follows. I hope this is helpful.

http://www.accforum....hp?showforum=11
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#17 Guest_mini_*

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Posted 14 August 2007 - 01:41 PM

Alan thanks for that.

Mentioned online and peoples opinions of the cases is still very relevent as it gives other sides to issues and debate which is always useful.

As I have said often if you go into a case ill prepared and with a closed mind to any other opinion being correct you are doing your self a disfavour. I feel you have to come at it from both sides and attack their theroy as well as your own.

Loke heads and tails of a coin all cases have got a reverse angle that must be keep in regrade at all times. Many advocates and even lawyers miss this and do not argue from both angles.

The fellow in the case you listened too, would have done well to follow the trend of "Mental caused by physical". If he was covered for mental by ACC he would have to be assessed for it, and if his physical had never been cleared for work, how could ACC say it has at court hearing.

I only have exercise for my shoulders and neck but the have never been cleared for work, so I wouldnt expect them to be able to win by using pain being the only reason not to work anyway.

Will keep my fingers crossed as usual.

Cheers
Mini
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#18 User is offline   Alan Thomas 

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Posted 14 August 2007 - 02:34 PM

His case yesterday was to do with the person's shoulder and the ACC inventing jobs that could be done without regard to the pain of the injury of the sholder which is why I posted my comments. The ACC are arguing pain is not a barrier to work. Pain is not a mental injury and neither was this person suffering from a mental injury. It is more about the medical purpose a body produces pain and how much pain an employer can expect to impose upon an employee.

Of course it is monstrous for an employer to ask someone to do something that is painful and possibly harmful. This is exactly what the ACC are telling the court that they are asking employers to do. Of course they dress it up as if the claimant is a malingerer.

His case yesterday was to do with the person's shoulder and the ACC inventing jobs that could be done without regard to the pain of the injury of the sholder which is why I posted my comments. The ACC are arguing pain is not a barrier to work. Pain is not a mental injury and neither was this person suffering from a mental injury. It is more about the medical purpose a body produces pain and how much pain an employer can expect to impose upon an employee.

Of course it is monstrous for an employer to ask someone to do something that is painful and possibly harmful. This is exactly what the ACC are telling the court that they are asking employers to do. Of course they dress it up as if the claimant is a malingerer.
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