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Turner V Acc Risk of gradual process injury - defeat for Gorman

#1 User is offline   MG 

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Posted 04 October 2007 - 04:59 PM

ACC's pre-eminent expert in occupational medicine provided an incorrect answer to a vital legal question, according to Judge Ongley, in the attached case. Back in 1998 ACC revoked Robert Turner's cover for a work-related injury to his shoulder, dismissing it as a pain syndrome which had nothing whatsoever to do with any physical injury. Reviews and appeals over the years were unsuccessful until Justice McKenzie in High Court last year sent the matter back to the District Court with directions about the correct legal test required by section 33(2) of the Accident Insurance Act 1998. In a very recent decision, Judge Ongley determined that, after applying the correct legal test, Mr Turner was entitled to cover for work related gradual process injury and receive backdated entitlements.
MG comment: IMHO this case (at which I originally represented Mr T in review back in 1999) shows how much of a medico-legal gauntlet victims of personal injury have to run to receive compensation for their injuries - a complete perversion of the original principles of the scheme. Mr T has waited nearly 9 years for this outcome, and still has not been paid his entitlements, during which time he and his family have suffered a great deal. Meanwhile, the ACC gravy train rolls on, with added carriages for "legal medical specialists" too.Attached File  Turner.pdf (1.01MB)
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#2 User is offline   MadMac 

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Posted 04 October 2007 - 05:21 PM

:wub: Hi everyone ...

Thanks MG ...

Interesting reading ... victums of personal injury have to run to recieve compensation for their injuries ...

:P Done 20 years ... took a medicial meeting 24 November 2006 with ACC to except the extent of body sites injuried and the extent and severity of each body site injuried from work accident causing personal injury 7/2/1986 ...

;)
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#3 User is offline   Gloria Mitchell 

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Posted 04 October 2007 - 07:08 PM

View PostMG, on Oct 4 2007, 05:59 PM, said:

ACC's pre-eminent expert in occupational medicine provided an incorrect answer to a vital legal question, according to Judge Ongley, in the attached case. Back in 1998 ACC revoked Robert Turner's cover for a work-related injury to his shoulder, dismissing it as a pain syndrome which had nothing whatsoever to do with any physical injury. Reviews and appeals over the years were unsuccessful until Justice McKenzie in High Court last year sent the matter back to the District Court with directions about the correct legal test required by section 33(2) of the Accident Insurance Act 1998. In a very recent decision, Judge Ongley determined that, after applying the correct legal test, Mr Turner was entitled to cover for work related gradual process injury and receive backdated entitlements.MG comment: IMHO this case (at which I originally represented Mr T in review back in 1999) shows how much of a medico-legal gauntlet victims of personal injury have to run to receive compensation for their injuries - a complete perversion of the original principles of the scheme. Mr T has waited nearly 9 years for this outcome, and still has not been paid his entitlements, during which time he and his family have suffered a great deal. Meanwhile, the ACC gravy train rolls on, with added carriages for "legal medical specialists" too.Attachment attachment


Aha MG does this mean all those decisions made using the wrong legislation can now be revisited?

Beattie would not even consider this question or any other when he made the decision that I was not entitled to revist his decision, no a rehearing or a recall and rehearing. NOPE not on his watch.

Gloria
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#4 User is offline   MG 

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Posted 04 October 2007 - 07:32 PM

Gloria - not necessarily. You'd have to establish that ACC made its decision revoking cover in error, under s65 IPRCA, if the medical experts used the wrong legal test - as here s33(2)© of the 1998 Act. That's very difficult, although I am sure it has happened. Another area to look at is, if you are covered under the 1982 Act, and ACC disentitles you by saying your condition is either wholly or substantially the result of the ageing process - the test under the 1992, 1998 and 2001 Acts. There is case law on this point on this forum. You're probably better to PM me with a copy of ACC's decision letter and let me talk to you offline.
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#5 User is offline   fairgo 

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Posted 04 October 2007 - 08:44 PM

Nine years is a long time to fight...... well done Mr Turner!! Having the strength and where with all to continue to persue this to the end deserves a medal!

Well done Judge Ongley...........

Common sense prevails!
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#6 User is offline   doppelganger 

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Posted 04 October 2007 - 09:14 PM

What a long read and can see both sides. One in denial while the other had to show the way.

well that will affect the bonuses in Dunedin. 9 years of compensation.
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#7 User is offline   tonyj 

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Posted 04 October 2007 - 09:43 PM

MG,
Boy am I glad its you having to read this stuff for a living , but its only efforts and outcomes like this that pave the way for the more simplistic approach i preach to work..

Its the reason getting expert medical opinion that support balance of probability has the ACC far more enthusiastic to revisit things these days .
good work.

tony
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#8 User is offline   Gloria Mitchell 

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Posted 04 October 2007 - 10:37 PM

View Posttonyj, on Oct 4 2007, 10:43 PM, said:

MG,
Boy am I glad its you having to read this stuff for a living , but its only efforts and outcomes like this that pave the way for the more simplistic approach i preach to work..

Its the reason getting expert medical opinion that support balance of probability has the ACC far more enthusiastic to revisit things these days .
good work.

tony



Come on Tony, they are never enthusiastic to revisit these things......I read somwhere today that it is their policy not to revisit......I urgently need some hard copy of this policy and would very much appreciate a pointer to that.

cheers Gloria.
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#9 User is offline   tonyj 

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Posted 05 October 2007 - 08:15 AM

View PostGloria Mitchell, on Oct 4 2007, 11:37 PM, said:

View Posttonyj, on Oct 4 2007, 10:43 PM, said:

MG,
Boy am I glad its you having to read this stuff for a living , but its only efforts and outcomes like this that pave the way for the more simplistic approach i preach to work..

Its the reason getting expert medical opinion that support balance of probability has the ACC far more enthusiastic to revisit things these days .
good work.

tony



Come on Tony, they are never enthusiastic to revisit these things......I read somwhere today that it is their policy not to revisit......I urgently need some hard copy of this policy and would very much appreciate a pointer to that.

cheers Gloria.


Gloria, I know one Swallow does not make a summer , but in my own observations of recent times things have changed for the better.

I am not suggesting this is because ACC have suddenly decided to become nice....

Its because of the efforts of the likes of MG , HUGGY, WARREN, MAD MACL and a host of others who have taken on and exposed the culture that had developed and have made ACC sit up and take note.

I have no expectations of seeing ACC come clean and actually confess their sins or take any steps to instigate revisiting and rectify .
but

In those cases questionable use of selective medical reports have been used to disadvantage , and they are presented with further medical evidence that indicates the probability is in favour of injury not degeneration as being the primary factor .
It needs to be new and from as senior expert as possible...

They need to be given an excuse to change their position without admitting they got it wrong , this way they can suggest with the information on hand they made the right judgment but with the new information it can be revisited..

And I also believe its not just the fact they are being forced to do it is the sole driver , I really do think a culture change is evident ,
tony
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#10 User is offline   MG 

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Posted 05 October 2007 - 05:24 PM

I don't see any evidence of a culture change within ACC - just business as usual, shifting the costs of personal injury onto the victims and their immediate families by any means at all including, as we see in the Turner case, unreliable specialist medical evidence to defeat claims. Right out of the UNUM book of dirty tricks and according to Prof McCluskey's ground-breaking law review article back in 1998. Without active leadership from the top, ACC's systemic, bureaucratic abuses of power will only continue.
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#11 User is offline   magnacarta 

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Posted 05 October 2007 - 06:16 PM

MG, I completely agree with you. I, too, do not see any meaningful changes at the ACC coal-face.

From my experience, the fine "culture-change" words of senior management, are simply not matching the deeds.

In trying to assist both long term and "newbie" claimants I find that the same old culture still exists throughout the country to the point where there is, prima facie, perversion and/or obstruction of the course of justice.

I am satisfied that much, if not most, of the dilusion stems from ACC's legal services with the full compliance (and perhaps even encouragement) of ACC senior management

Quite frankly I have lately also lost confidence in the ACC CEO Dr White - on her watch the same lies, intentional deception and manipulation continues across the country.

Those are the facts, not just my hypothesis. Surveys continue to show that the public and business still do not have full confidence and trust in ACC.

A bit off topic but is that lack of confidence and trust any wonder when this year ACC suffered substantial financial losses on its overseas investments ($262 million) and returned a dismal 9.5 per cent - ACC doesn't pay income tax like the NZ Superannuation Fund and the Government Superannuation Fund who still made close to 15 per cent respectively.

IMHO ACC's 9.5 per cent return on public funds it holds in trust, when it does not pay income tax, is an absolute scandal and heads should roll.
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#12 User is offline   tommy 

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Posted 05 October 2007 - 06:55 PM

Not a truer word spoken
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