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Erc Despite Fraud Conviction (burnett) Working While Incapacitated

#21 User is offline   Alan Thomas 

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Posted 26 September 2007 - 07:14 PM

it is confirmed that the Burnett decision is currently case law.

The ACC are seeking to recall this decision on the basis that paragraph 17 could not have been concluded by the judge on the basis of ACC made a "decision" to terminate ERC on the basis of Mr Barnett be no longer unfit for work.

ACC does not seem to have appreciated the finer point that Beattie J was making concerning what determination that means as described in paragraph 4. The fact is the ACC did not make a determination even though it made a decision.

Although the ACC has the authority to make decisions it is duty bound to administer the act in such a way as it makes determinations in accordance with the act. This means the ACC is not permitted to guess but must rely upon the proper procedure is seeking qualified information. The telling factor is that Mr Barnett might not even be permitted to drive. Had the ACC carried out a determination that would know the answer to that question and then they would have been able to make a determination. Instead they want to the unfettered discretionary power to make guesses based on third-party assumption.

The facts of the case as described by paragraph four is that there has been no determination. The ACC cannot go to the High Court to appeal a matter of fact. The only argument available to the ACC is that they argue a determination and a decision one the same.

I am quite confident that Peter Sara will be saying "bring it on" concerning the ACC desire to appeal because it will simply close the door on any other judge making a dissenting decision and slight variations of fact.
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#22 User is offline   Huggy 

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Posted 26 September 2007 - 07:53 PM

Barrie as i said there are many good people on the site and we can all add our contribution and advice, however advice has to be taken with caution. A lot of small things and simple things are easily dealt with yourself however anything major needs to be run in front of a lawyer and done properly.

No disrepect to anyone on site but a major case like this needs to have all t's crossed and i's dotted properly.
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#23 User is offline   waddie 

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Posted 26 September 2007 - 08:38 PM

If Barrie is represented then he should not discuss his case as this has the effect of undermining his Lawyer which can only assist ACC.
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#24 User is offline   Alan Thomas 

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Posted 26 September 2007 - 08:48 PM

Barrie did contact me. My advice was Peter's his advice is the best advice.

Barrie remembers me from when I was paraded by the ACC on the television 1999 not realising at the time that he would suffer a similar fate. Naturally we are interested in each other's welfare as to some extent the cases are interdependent.

The ACC seek to recall that Beattie decision simply because they do not understand it. The ACC submissions are dependent upon an emotional argument presented emotionally. The Beattie J decision clearly written and is very robust. The ACC are simply confused about the last paragraph because a they have unfettered power of discretion to make decisions, which of course they do not.

This is the issues regarding the matters of law that can be addressed by a High Court already disclose to both parties I was no possibility of any accidental disclosure of the rationale or understanding of law assisting the ACC. For the ACC to succeed they are going to have to invent something new to raise in the High Court which of course is very difficult as the Beattie J has been quite eloquently written, probably nine that this decision is going to be relied upon as case law by others.
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#25 User is offline   waddie 

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Posted 26 September 2007 - 08:56 PM

Good one, it will be important, and I have already used Barrie's case in submissions, different matter similar circumstances, decision pending.
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#26 User is offline   Spacecadet 

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Posted 27 September 2007 - 07:54 AM

View PostAlan Thomas, on Sep 26 2007, 08:48 PM, said:

Barrie did contact me. My advice was Peter's his advice is the best advice.

Barrie remembers me from when I was paraded by the ACC on the television 1999 not realising at the time that he would suffer a similar fate. Naturally we are interested in each other's welfare as to some extent the cases are interdependent.

The ACC seek to recall that Beattie decision simply because they do not understand it. The ACC submissions are dependent upon an emotional argument presented emotionally. The Beattie J decision clearly written and is very robust. The ACC are simply confused about the last paragraph because a they have unfettered power of discretion to make decisions, which of course they do not.

This is the issues regarding the matters of law that can be addressed by a High Court already disclose to both parties I was no possibility of any accidental disclosure of the rationale or understanding of law assisting the ACC. For the ACC to succeed they are going to have to invent something new to raise in the High Court which of course is very difficult as the Beattie J has been quite eloquently written, probably nine that this decision is going to be relied upon as case law by others.


Alan - your case was always strait-forward and winnable.

The only person that can loose your case is you - which is probably why so many people including lawyers have already walked away. The Burnett case is an example of a legal argument simply presented - so it must win - and it did against a Judge like Beattie. Peter Peter Sarah must take all the credit for this. However - because of the crap you have already put before Beattie he want even give you the time of day. Peter Sarah's job was only made more difficult by the mayhem and confusion created by your ramblings through the Court process in the last 10 years.

However I feel I need to persist as you should not be giving "legal" advise to others before the Courts. You have a 100% failure rate in this arena. You also have displayed a complete ignorance of the High Court process by suggesting "For the ACC to succeed they are going to have to invent something new to raise in the High Court" Bollocks!

Unfortunately I have a low tolerance for fools.
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#27 User is offline   Alan Thomas 

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Posted 27 September 2007 - 08:24 AM

Spacecadet what is straightforward is my preinjury occupation, my accident injury and incapacity to function in that occupation and the failure to acquire work task competency in a new occupation for purposes of earning.

The problem is the ACC had not yet disclosed either the facts or the law to support the cancellation of my claim.

It is only after the ACC make this disclosure that an appeal can be structured.

It seems that a large number of lawyers have the same problem with Mr Bennett's case as they did with Lyntott, Brown, Donaldson and others. The problem is that the ACC are relying upon smoke and mirrors to achieve a fraud conviction that is not based on a determination born of fact and legislated criteria for the purposes of creating a complex labyrinth, with the added problem of very few legally qualified persons having any knowledge of the ACC Act to navigate this labyrinth.

Basically they ACC create thesevery large labyrinth likecases that cannot be economically fought which means that the very few legally qualified people that do understand such cases are quickly overburdened and staff if they are silly enough to take too many of them on when in reality they are as you say quite simple. It goes without saying that these cases are well outside of the reach of any advocates available, with the exception of Warren was clearly motivated by what is morally right rather than money.

Peter Sara had not really heard of me or my case prior to the Beattie J judgement on Barnett however he was completely aware of the ACC modus operandi in such cases.

It is clear that you have not spoken to the various claimants that have received surgery, ERC entitlements, social rehabilitation that I have assisted, withdrawn fraud investigations/prosecutions and as such like that I have assisted which was suggestive that your 100% might be in error.

I agree that it would be very difficult for the ACC to invent something new for the High Court. That is why they have initiated proceedings based on a misunderstanding of "Beattie J decision knowing that it cannot succeed. The modus operandi is to introduce something new at the time it gets into the High Court rather clandestinely way. You only need to read the judgements and appeals to understand this propensity of deception and subterfuge.

Spacecadet when you see a drowning person flailing their arms about, he may even be trying to help other drowning persons, it is more helpful to throw them a rope rather than poked them with a sharp stick for no other reason than you will boat may have a hole it and you might need someone to bail water.

Nevertheless I feel your pain as you step on to the slippery slope of the ACC labyrinth of fraud prosecution. I too thought life was simple when I was at your stage. Do not forget that once you win your claim you are going to be attacked and will need friends wherever you can find them. Remember it is extraordinarily difficultfor an invalid to acquire new friends!
:D :wub:
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#28 User is offline   Spacecadet 

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Posted 27 September 2007 - 10:22 AM

In a free society people have choices. What do you do if you see people make bad choices? You point it out to them - but if they are insistent they are right - you let them get on with it. However, the point one must act is when the person making bad choices is also encouraging other people to make similar bad choices and join them in their collective misery.
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#29 User is offline   Alan Thomas 

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Posted 27 September 2007 - 11:38 AM

Spacecadet could you particularise rather than generalise. If what you are saying does have merit it would appear that I have completely missed your point.
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#30 User is offline   Alan Thomas 

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Posted 27 September 2007 - 05:09 PM

doppelganger I am unable to make head nor tail of your posting. Each and every "fact" that you have referenced appears to be incorrect. For example the ACC have not relied on anything to cancel the claim medically speaking. That simply is not their argument. However I think I am getting the gist of what you are saying so will do my best to respond.

In the Burnett case there is no suggestion that he was not working and likewise there has been no suggestion that the ACC had turned their minds towards medical matters. In both cases the ACC appeared to be making a decision without reference to medical information so as to make a determination.

The legal argument ultimately state that it does not matter which way the ACC look at the facts, to make a determination they are required to seek medical input before they can say the person is no longer incapacitated to earn even if they were earning. The reasoning as some people work beyond their capacity in order to earn which is not reasonable.

Put simply a private investigators information has no relevance to the determination process but only may provide the ACC with a reason to ask for information necessary for a determination.

With regards to Mr Barnett his case is a done deal and he may speak of it as he wishes. In my case the only matters that cannot be discussed in relation to the issues the ACC have disclosed they want to raise an hearing under cross examination. as the ACC unlimited to only relying upon exhibits already in the public arena that makes any restrictions a moot point. So far I am waiting for the information relied upon for the 1997 decision as it is only that information that needs rebuttal it is only that that is appealled.


as his is a reasonable recent case and that what has been done is still in ACC positions, the PI are still in the area, then attacking the investigation could be beneficial to the wider community.

I am totally mystified as to what you are referring to here??? are you referring to Barnett or huggy. There was no investigation on Barnett and ACC claim there is also no investigation on huggy even though I would be rather concerned about huggy.
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#31 User is offline   tonyj 

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Posted 27 September 2007 - 09:21 PM

There is a glitch in the act ,ACC need to clarify or send it back for an amendment if they can't establish precedence.

tony
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#32 User is offline   Alan Thomas 

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Posted 28 September 2007 - 10:16 AM

Tony by a glitch I assume you mean that the act does not have sufficient clarity. I am inclined to agree that there should be a procedure that demonstrates any end of incapacity that the ACC is required to follow to the same extent that they have a procedure describing the determination of a new occupation. This would have saved me a lot of heartache as richly no lawyer has been able to get the head around that issue not least the ACC legal services.

From what I understand of the Burnett decision Beattie J now has resolved the issue once and for all. The ACC appeal to the Barnett decision is a little bit obtuse and thus far but the essence appears to be that they wish to maintain their unfettered discretion on what a determination consists of an order to make a decision. It appears that they want to rely upon third-party information originating from the members of the public that has not been open to the scrutiny of any form of expertise with the result that the onus is shifted upon the claimant to argue the case which is fundamentally against the whole ACC concept of originating from the Woodhouse report.

I am of the opinion that precedence has now been established and does not need amendment but if amended consistent with the Barnett decision.
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#33 User is offline   Spacecadet 

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Posted 28 September 2007 - 10:34 AM

Alan Thomas being involved with the Burnett case will give it the "kiss of death"

It appears to be Allan's objective to make everyone a looser and drag them into his pool of misery.
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#34 User is offline   Alan Thomas 

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Posted 28 September 2007 - 10:42 AM

Peter Sara is the barrister who only takes instructions from Mr Barnett. As Peter Sara is doing a magnificent job. My only involvement is that I am enjoying the crumbs from his table.
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#35 User is offline   Alan Thomas 

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Posted 28 September 2007 - 03:24 PM

dopppelganger I trust you are making comparisons between Barnett and my own case.

they haven't asked for your money back yet Allan and that is the glitch in your case.
The ACC private investigator was telling everybody $180,000 plus. The ACC alleged $238,000 overpayment while earning $1.3 million. The court record showed no earnings. The tax department showed no earnings. Search warrants to all bank accounts and bank accounts of any associates, no earnings. Mr Michael Spraggon wrote in a letter to me 2003 that they were still in the process of calculating it. The financial records of my file shows that the ACC private investigators are still investigating 10 years after the allegation.

The legal points of difference are not distinguished as we were both convicted on the basis of an overpayment on the ACC has confirmed that they have not carried out any calculations on either.

But then didn't they say that you falsfy the medical reports written by the doctors with very little imput from you.
Nobody has alleged falsified medical certificates. a memo was placed in my file to the effect that the ACC had not made a determination of a new occupation or any end of incapacity and that at best working with only demonstrate a need for an abatement of earninngs calculation. This memo contains the exact same legal point as the Beattie J decision which dispels any notion the ACC may have had that I did not know about the concepts described in the Barnett decision indicating an intention to achieve criminal convictions for the purposes of lowering its liability. It goes without saying that this is the more serious type of fraud that anybody could engaged in, sending someone in prison to save yourself money.

The ACC did attempt to produce a medical report without medical information or clinical examination which in itself confirms that they did not know whether or not I was incapacitated to return to my preinjury occupation as it was acknowledged that they did not know what the occupation was and the wrong occupation was on my file.
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#36 User is offline   Hardwired 

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Posted 28 September 2007 - 04:13 PM

if one is incapacitaed and is due to receive acc then one must assume that you can do nothing constructive safely or enough to gain a wage as preinjury,or part time and abated,WITH proper records and the appropiattee earnings to be abated shown via paye,
if one is capable and shows a clear ability to do something that if then put to the proper use could produce an income then why would one be entitled to receive acc erc.-if one could show an ability to do certain things then one could not be incapacitated in full as to do nothing ,not withstanding the people who have assessments to see what they are capable of and found to be unable to carry out tasks safely or full time or of enough monetary value ,however this is different than one who actually does something that could produce an income without the assessments or abatements,by stealth.
whether or not any income is able to be shown . the ability shown would have to contradict the medical certifictaes signed by the claimant regardless of any ability to do preinjury occupation.if one does other same or similar types of abilitys as preinjury to try and get back into an income earning situation then if acc didnt know then did find out abilitys being used then the abilty to do this is known and would be a form of showing that an income could be earned by the abilitys one dislpayed.
so if this is the case would one be entitled to erc of any form,whether or not any income is declared.it may be that it is proposed but would not acc be involved if this was the case and have full records of what was actually being done and not finding out form other sources??????
any thoughts on this one.
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#37 User is offline   Alan Thomas 

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Posted 28 September 2007 - 04:40 PM

Hardwired the best person to answer your question is Beattie J. You should be able to download his judgement which explains all at the beginning of this thread. In order for ERC to stop ACC must make a determination in accordance with legislation no matter what, even a fraud conviction that confirmed that he was working and earning. The determinations require assessments. As this case involved a new occupation then it follows that ACC should have determined whether or not he was vocationally independent in a sustainable way.

If ACC were serious about rehabilitation they would have rehabilitated him which would have included a determination of incapacity of that occupation even though he had been doing it. This is yet to be determined and ACC have effectively been directed to reimburse the ERC until the determination occurs. We can well imagine that the ACC might want to carry out an abatement of earnings assessment as well. Despite the fact that this guy was driving it is up to the occupational and medical assessors to advise whether or not driving a suitable so as rehabilitation remains up in the air.

Hardwired lots and lots of people work while incapacitated and injured themselves and/or others which is the reason why we have legislated criteria so as to prevent the ACC making decisions by guesswork which is what has happened in this case. You and the ACC are in agreement regarding the perception of the issues while Peter Sara and Beattie J have taken a different view. Obviously I have always been singing Sara and Beattie's Song. Well actually I have been beating the drum. lol
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#38 User is offline   Hardwired 

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Posted 28 September 2007 - 06:22 PM

alan /i should have put the query in your personal story thread as thats what it is asking about,
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#39 User is offline   Alan Thomas 

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Posted 28 September 2007 - 06:26 PM

This thread is about Mr Burnett who was working in a new occupation while incapacitated to return to his former occupation. Information regarding my own case should be addressed in the thread regarding myself.

The points of interest that you have raised a little bit difficult to address the causes your foundation information, facts, needs to be settled first. Mr Barnett was not setting up anything, he was working for a number of years largely full-time and even considerable overtime driving, paying tax etc while at the same time supplying the ACC with medical certificates.

It seems what the ACC should have done is when discovering his dual earnings they should have carried out a determination that he could work in the new occupation prior to making a decision to stop paying ERC. This mistake requires the ACC to reimburse him all of the ERC and calculate abatement of earnings for the whole time he was working.

It seems that the Beattie J has decided that the private investigators opinion and even the facts do not help the ACCs case for cancelling ERC without the proper determination describing legislation (paragraph 4 of the decision).

In both Mr Burnett case and my own we did not deceive the doctor has both of us continue to be incapacitated to return to a preinjury occupations. Mr Burnett has engaged in a new occupation without his doctor's approval while I have not engaged in any occupation. In my case the ACC appeared to be relying upon fragments of information to suggest work activity took place in claim I can return to my preinjury occupation despite the medical evidence otherwise which appears to be the point of difference between the two cases. The end of ERC requires a determination in both cases. My a determination to return to my preinjury occupation while his is a determination of a new occupation.

Obviously a doctor cannot determine incapacity or Mr Burnett to earn in a new occupation as the doctor is not an occupational assessor any more than the private investigator or case manager can. This is the point I think Beattie J. has clarified.
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#40 User is offline   bmburnett 

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Posted 28 September 2007 - 09:38 PM

[size=7]
this week has been one of my worst my mind is spinning from all that is going on and it is really unnerving reading about yourself. the log cabin in the woods sounds nice right about now.
i hate being a convict i feel like such a failure like my life is just abig poo sandwich, my memory of my kids looking through a glass window on fathers day while i was locked up in the police cells a couple of years ago still haunt me, going to prison and seeing people shooting up drugs made me think what a piece of crap i am. this all feels so unreal now, it is like laughing at someones joke when you no it is not that funny i have always tried to make other people happy and put myself second i am really pleased with peter sara i no that i am paying him but you get the feeling he does care .
sorry 4 all the ramblings just feeling abit down feels like acc hate me
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