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Appeal No. Ai 304/03 Luke Vs Acc Home Help and dust brushes.

#1 User is offline   flowers 

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Posted 22 June 2004 - 06:36 PM

The Injury Prevention, Rehabilitation, and Compensation Act 2001
of an appeal pursuant to Section 149 of the Act
BRIAN RICHARD LUKE of
Wellington
Appellant
(Appeal No. AI 304/03)
ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act
Respondent


RESERVED JUDGMENT OF JUDGE J. CADENHEAD [On the papers]
The Issues
  • At issue is the respondent's decision dated 20 March 2003 advising the appellant that the respondent would pay 2'/2 hours per week of home help, and provide a long handled brush to enable him to ultimately become independent with those chores and, the respondent's decision dated 1 April 2003 discontinuing the provision of podiatry services to the appellant.

    Background of Facts

  • The appellant has cover in respect of an injury to his right hip, right knee and lower back, which occurred when he jumped out of a van in the course of his
    l:\JUDICIAL\CADENHJ\Accident Con^ensationVLuke doc jab
    employment in 1993. Since that time he has remained off work because of his injuries.
  • On 24 June 1994, the appellant was seen by Mr Hunter, orthopaedic surgeon, who recorded that:
    "He is now unable to walk more than a few moments without getting pain in the hip. He is limping, the leg will keep him awake and it has also stiffened making it difficult for him to get his shoes on. "
  • On 14 October 1994, the appellant was first assessed by the respondent for a home help entitlement. It was found that he was unable to perform the tasks of shopping, kitchen cleaning, vacuuming and/or sweeping, and cleaning of bathroom/toilet. The appellant was given up to a maximum of $100 per week to pay for home help at $12 per hour, based on receipts.
  • From time to time the appellant has been assessed, and on 28 January 1999, his home help reassessment saw the appellant's weekly entitlement reduced to 3.5 hours, because of the new assessor's opinion of the small size of his bed-sit. Shopping allocation was again reduced to one hour, because of concerns over the appellant's continued use of this to coincide with other tasks such as library visits, banking, post office, and general practitioner appointments.
  • On 19 January 2000, a medical certificate by Dr Woods, the appellant's general practitioner, requested the continuation of home help, and also payment for a podiatrist to cut the appellant's toenails because of pain bending.
  • On 4 February 2000, a personal support assessment by Mr Worsley recommended that the respondent provide the appellant with 3.5 hours of home help, and one hour assistance weekly to dry his feet after showering, making a total of 4.5 hours per week. It was found that the appellant had trouble bending because of his hip to put on shoes and socks or trim his toenails, and recommended that the respondent provide two visits to a podiatrist every year to cut the appellant's toenails.
  • On 7 February 2000, the respondent approved 4.5 hours home help based on this assessment.
  • On 9 February 2000, the respondent wrote to Melissa Millward, podiatrist, advising that because of the appellant's injuries to his lumbar spine and right hip, the
    lukcdoc
    appellant was unable to care adequately for his feet. The respondent requested a report advising treatment options.
  • On 28 February 2000, a letter from Ms Millward to the respondent noted that the appellant had long curved toenails and callouses, which required treatment every few months.
  • On 1 May 2000, the respondent approved ongoing podiatrist treatment every few months at the respondent's expense.
  • On 21 May 2001, the appellant was reassessed again for his independence allowance by Dr Blair Christian. Dr Christian recorded that the appellant had noted pain in his back, right knee and right hip. However, the only body parts identified for assessment were the right hip and right knee. The appellant received 10% and 28% impairment rating for those lower extremity injuries respectively, with a whole person impairment of 14%.
  • On 9 August 2001, the appellant's new case manager, wrote to Dr Christian advising that the appellant's back injury had mistakenly not been included in the original independence assessment referral. Mr Sinclair requested a further assessment of the back injury and an updated independence allowance report.
  • The additional independence allowance assessment dated 13 August 2001 included the back as an injury site, and observed that the range of movement was very limited, about one-third of normal range. A 5% whole person impairment rating was awarded for the back. In addition, the method of rating the hip and knee was changed to evaluate their effect on gait (20%) rather than a range of movement (14%). This combined with the back gave the appellant a final whole person impairment rating of 24%.
  • On 2 November 2001, Mr Welsh, orthopaedic surgeon, reported and concluded that:
    "Mr Luke is clearly totally incapacitated with regards to any prospect of work involvement. His mobility is so seriously challenged that he would have great difficulty in getting to work. Then with the pain in the hip, the awkwardness in being able to sit or move, would preclude even a sedentary job. "
    luke.doc
  • On 26 September 2002, Mrs McEwan, occupational therapist, was required by the respondent to prove a further re-assessment of the appellant's 4.5 hours home help entitlement.

    The Social Rehabilitation Assessment Report of Mrs McEwan

  • Mrs McEwan had available to her the medical report of Mr Peter Welsh, dated 2 November 2001, and the social rehabilitation assessment dated 18 January 2001.
  • She set out the background of the appellant. She noted the injury/physical description of the appellant as being initial injuries to the right hip and knee which was sustained as a result of a fall in 1993.
  • She said that the appellant reported being in constant pain, with pain management strategies. He mobilised with the aid of a walking stick, and reported to be independent with distances as far as the letter box.
  • Regular daily exercise was reported to be walking to letter box only. The appellant reported that he was swimming, however, this had ceased due to the cost.
  • Sitting tolerance was reported to be 20-40 minutes, with standing tolerance not specified.
  • The assessor set out his daily living activities. She set out his barriers to independence which included his nine year dependency upon ACC funded home help support, with avoidance of regular cleaning tasks apparent.
  • She set out the use of his walking stick, the fact that laundry tasks were dependent upon hand washing facilities. The problem of loose rugs and his dependence upon taxis and public transport or friends for transport.
  • Under the heading of considerations, she said that the appellant was approximately ten years post initial injury, and presented with a long history of dependence upon the respondent's funded home help support - which could be deemed his largest barrier to independence at home.
    luke.doc
  • Prior to this assessment, the appellant had been receiving four and a half hours home help each week, with 45% of this support assisting with shopping demands.
  • The assessor thought that the appellant's current accommodation was small, making current level of home help support high given the size of the accommodation. The appellant had an independence goal of wanting to be able to go to the shops, however current activity and exercise levels were low.
  • Her recommendations were made to assist the appellant with regaining full independence at home, and given the appellant's expressed independence goal of wanting to be able to go to the shops by increasing activity levels at home, this could be a beneficial transitional step towards achieving this goal. The assessor then set out her recommendations.

    The Appellant's Submission in Respect to the Assessment

  • The appellant submits that the assessment is flawed. The submission is that a flawed assessment, or misdirection, occurs when a person attaches insufficient weight to relevant considerations and/or too much weight to irrelevant considerations.
  • In this case the strong submission is that the assessor misdirected herself by not attaching sufficient weight to the medical evidence that the appellant was unable to physically manage the cleaning tasks. Further, that the assessor attached too much weight to the fact of the appellant's long history of home help.
  • In particular, the submission is that more weight should be given to:
    [i] The previous home help assessments for nearly a decade when the appellant had been deemed physically unable to carry out the tasks of shopping, kitchen cleaning, vacuuming and/or sweeping, and cleaning of bathroom/toilet.
    [ii] The medical evidence showed that the appellant's condition since his accident had not improved, and had deteriorated over time.
    luke.doc
    [iii] The appellant had been consistently medically certified as being unable to engage in any activities involving standing, bending, walking, squatting or crouching, sitting, twisting body or neck, heavy lifting, pulling, carrying, repetitive movements and driving.
    [iv] The latest specialist assessment by Mr Welsh, orthopaedic surgeon, regarded the appellant's mobility as so seriously challenged that he would have great difficulty in getting even a sedentary job.
  • The submission is that the assessment is therefore not based on the medical and physical limitations of the appellant, but rather on the fact that he had been dependent on the respondent for home help for nearly a decade.
    The Respondent's Submissions
  • The respondent does not deny the physical restrictions of the appellant. The submission is that the assessor appropriately considered the ways in which the appellant could work around those restrictions to perform the activities of daily living. The assessor had noted that the appellant was already independent in his personal cares, and was able to prepare his own meals and do the dishes. She formed the professional opinion that he could cope with other household tasks with the provision of appropriate equipment to assist him with low reaching tasks with which he had difficulty.
  • The assessor did not suggest removal of the home help entirely, but recommended that his current hours seemed to be set at a high level given the size of his accommodation. The assessor suggested that the hours be reduced gradually to enable the appellant to take on more responsibility.
  • The submission was that in the absence of any other specialist opinion, the Court should rely upon the assessment as it was not flawed.
    lukedoc

    The Opinions of the Appellant's General Practitioner

  • On 4 June 2003, Dr Young wrote to the appellant's case manager expressing his regret that the respondent had not mediated with him and his lawyer as to what were the functional needs of the appellant. He said there was obviously quite a disparity of viewpoint that was causing friction and disharmony.
  • Dr Young said that he was concerned that the appellant had such little home assistance, and the appellant was not even able to carry his recycling bin outside.
  • His mobility was particularly limiting, 50 metres at best with a cane to assist before he has to stop. The doctor detailed the various matters that were restricting the appellant.
  • In the view of the doctor, issues of rehabilitation also extended to podiatry. The appellant could not bend to get at his toes as a consequence of the disability.
  • On 29 January 2004, Dr Young provided a medical certificate to the respondent. The medical certificate showed that there were restrictions in bending, walking, squatting or crouching, sitting, twisting body or neck, heavy lifting, pulling or carrying and repetitive movements and driving.
  • The doctor noted that the respondent had suspended the age required for the activities, but the situation was still unchanged.
    The Medical Report of Mr Welsh
  • In his medical report of 2 November 2001, Mr Welsh was of the view that the situation of the appellant had deteriorated markedly in his ability to ambulate. He had continuing pain in the hip, and great restriction of his activity. The appellant described pain in the right groin referring down the thigh to the right knee. He had great difficulty getting up from a sitting position. His walking distance was markedly reduced to perhaps 200 metres when he was forced to stop. Things had deteriorated particularly in the last three to five years, so that his ability to go out and socialise had been grossly compromised.
    luke.doc
  • The specialist was of the view that the appellant presented with sever post-traumatic arthritis of the right hip. The original description of the arthritis in the hip was described as mild, but there was now certainly severe arthritis in the right injured hip had progressed at an exponentially greater rate than the left, which was not injured.
  • In the opinion of Mr Welsh, the magnitude of the impact at the time of the accident had the effect of destabilising the state in which the appellant had been co-existing prior to his accident, and there had been an accelerated deterioration of the arthritic process.
  • The specialist also commented upon the needs of the appellant in regard to his daily living.

    The Review Decision

  • The review decision dated 6 June 2003, was essentially based on the report of Mrs McEwan. The reviewer said given that assessment and the fact that the issue of home help could not be determined in the absence of such an assessment, he was required to consider whether or not the assessor had misdirected herself in the course of the decision making process.
    [* The reviewer noted that the submission was that the assessment was flawed, as the appellant had many restrictions as mentioned in his medical certificate. He said it was noted that the reviewer deemed the appellant's dependency on home help as a barrier to his independence at home.
  • It was submitted that the appellant was unable to do the extra work himself to an extent was not compatible with his rehabilitation. On the other hand, the respondent had submitted that the home assessment was carried out professionally and in accordance with the provisions of the Act.
  • The reviewer said that there was no evidence of a misdirection on behalf of an assessor. And in his opinion the assessor had not misdirected herself, or the report was flawed.
    luke.doc

    The Decision on the Issue of Home Help

  • After considering the assessment against the background of the medical reports, I am of the view that insufficient weight was given to the provisions of the medical reports, namely, from the orthopaedic specialist and the general practitioner. It is noted that the assessor did not have the medical reports from the practitioner, and there is no evidence that she consulted him.
  • It is clear from the evidence of Mr Welsh that the appellant's condition if anything had deteriorated.
  • It is difficult to see in the face of that expert evidence how the number of hours for home help required by the appellant would have decreased in the face of the previous assessments made. Certainly, there is nothing in the report of the assessor that discusses in any detail the issue of deterioration.
  • Further, in a case such as this I would have thought the views of the general practitioner would have been valuable. There appears to be nothing in the assessment indicating that the general practitioner's views were ever ascertained.
  • I agree with the general practitioner that he was discomforted by the fact that there was no attempt to mediate with him concerning the appellant's needs.
  • For the reasons that I have given, I am of the view that on the facts of this case the assessment relied upon was flawed. On this particular aspect of the appeal it is allowed, and I would set aside the initial primary assessment, and restore the appellant to his previous entitlements, pending a further reassessment. It seems to me that a further reassessment pragmatically should be made after consultation and taking into account the views of the appellant's general medical practitioner.

    The Podiatry Issue - The Review Finding

  • The reviewer said that the appellant had submitted that the need for the podiatry treatment was injury related because of the appellant's inability to look after his feet because of his personal injury. The submission was that because of the appellant's hip and lower back condition he was unable to bend easily.
    luke.doc
  • It was submitted that the podiatry treatment was either treatment, or in the alternative, rehabilitation.
  • The submission of the respondent was that there was no evidence that the podiatry appointments were injury related.
  • The submission was that Clause 1 of the First Schedule of the Act outlined the respondent's liability to pay for the costs of treatment for personal injury for which the claimant had cover. The appellant had a hip and knee injury, and clearly treatment to his feet were not injury related. The reviewer said he noted that the appellant had no accepted claim for a lower back injury.
  • The reviewer said the alternative argument was that the need, or the podiatry visits, was part of rehabilitation as a form of attendant care.
  • The reviewer said he noted that the personal support assessment in 2000 recommended two podiatrist visits per year. The reviewer said he was unclear from that report why this was recommended, although there was a reference to trimming toenails.
  • The reviewer said why the respondent had decided at that time it needed to fund callous reduction was a mystery, as no reasons were given.
  • The respondent had a discretion through an individual rehabilitation plan to fund personal care such as toe nail cutting if it wanted to. The respondent could find no such item in the individual rehabilitation plan.
  • The reviewer said it was also unclear why a podiatrist needed to cut the appellant's toenails.
  • The reviewer found there was no injury related reason why the appellant needed to visit a podiatrist.

    The Submissions of the Respondent

  • The respondent concedes in some situations it may have an obligation to provide treatment that is not directed to the injury site, but which is nonetheless
    lukedoc 10
    treatment for the personal injury because it alleviates symptoms associated with the injury.
  • Thus, for example, in Chrisp (239/98) the Court found that a breast reduction could be considered to be treatment in respect of the appellant's neck injury in that the surgery would reduce the strain on the appellant's neck.
  • The submission of the respondent was there was no real basis in the present case for saying that the treatment to the appellant's feet was targeted to relieve the appellant's hip and back symptoms. Rather the callouses existed independently of the injury, and would require care.
  • The respondent, in the alternative, considered the argument the podiatry should be paid for as rehabilitation in the form of attendant care. The respondent fairly conceded that if the appellant required assistance with his personal cares, then that was something that could be provided.
  • The respondent fairly conceded that if the appellant required assistance with his personal cares, then that was something that could be provided as part of social rehabilitation for assistance with the activities of daily living. Toenail cutting was something that could come within that category if there was assessed a need for such service. The assessment in April 2000 did suggest that the appellant required assistance with personal cares, which included the drying of his toes and trimming of toenails.
  • The respondent submitted it was noted that subsequent assessments, including the assessment under appeal, indicated the appellant was independent in his personal cares, and there was no ongoing identified need for this assistance.
  • It was submitted that the respondent was only liable to meet the costs of social rehabilitation if the conditions in s.81(4) of the Act were met. That is, amongst other things, where claimant was assessed or reassessed under s.84 as needing the intervention, and the intervention had been agreed in the appellant's individual rehabilitation plan.
  • In this case, the need for feet care was not identified in the reassessment, nor was the podiatry treatment agreed to in an individual rehabilitation plan.
    luke.doc 11
  • In any event, the submission was that the three monthly treatment seemed to relate just as much to callous reduction as to toenail cutting. It was argued it was more of a treatment intervention for a non-injury related condition, rather than simply meeting the appellant's ordinary personal care needs.
  • The submission was that if the appellant was assessed as requiring personal support because he was unable to attend to the personal hygiene needs associated with toenail cutting, then the respondent could consider providing that service. At that time it would need to consider whether it was necessary for such care to be provided by a podiatrist, or whether the appropriate level of care could be given by another sort of rehabilitation provider.

    The Appellant's Submissions
  • The appellant submits the plain fact is that he was seeing a podiatrist for foot care, and that he should not be held responsible for the assessor failing to make suitable enquiries that he did not need that assistance.
  • The appellant submits the respondent submits relying upon s.81(4) was only liable to provide social rehabilitation if it was identified in a reassessment, and was contained in a rehabilitation plan. The appellant submits that this surely could not apply where the respondent at all times is aware that the social rehabilitation was being provided (with its approval) but was at fault in recording those details.
  • The respondent submits that the callous reduction was in respect for a non-injury related condition rather than for personal care needs.
  • The submission for the appellant was the callous build up was a direct result of his altered gait as a result of the accident.
  • The specialist's advice from Miss Millward, the podiatrist, dated 28 February 2000, confirmed that the appellant needed ongoing callous reduction as well as nail cutting. These were personal cares the appellant would be able to attend to if he could bend.
    luke.doc 12

    Decision
  • In my view, the appellant suffered a crippling injury from the accident that he sustained.
  • Higher Courts have indicated that it is inappropriate to take a niggardly and ungenerous view concerning the assessment of benefits. On the other hand, it is recognised that the use of public money must also carefully be monitored.
  • After reading the medical reports, I am of the opinion that it is reasonably clear that the appellant would have problems attending to the care of his feet, and that these problems are a direct result of the lack of mobility that he has suffered as a result of the accident.
  • In the alternative, a strong argument can be made for the fact that the care of the appellant's feet are part of his rehabilitation. Indeed, that rehabilitative process was being carried out by the respondent, but unfortunately had been omitted from his individual rehabilitation plan.
  • I am of the view that the appellant is entitled to the podiatry services that he claims. However, the extent of those services will have to be determined in another primary decision by the respondent.
  • I allow the appeal on this issue and set aside the primary decision.
  • In the end, the appellant has been successful with his appeal. I allow the appellant $ 1,000 costs plus proved disbursements.
DATED at W/tUlwrix** this .&" day of... >M <HM. 2004
**) ^

(J. Cadenhead) District Court Judge
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#2 Guest_I love chocolate_*

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Posted 22 June 2004 - 07:09 PM

Quote

the appellant has been successful with his appeal


So you'd be pretty happy with that then, Flowers! :) :)

I'm saddened that you had to go through this process and were subjected to harsh treatment by ACC over a long period of time. It is interesting to read that "the assessor had misdirected herself in the course of the decision making process". Is it more correct to say that Mrs McEwan was misdirected by the caseworker (which by the report below is Sinclair presumably from the Wellington ACC)?

How degrading for you to have your toes aired in public. But what a victory in the face of ACC and the Review Office. How unfortuante that nobody will be called to account at the ACC for what they subjected you to and the impact they had on your well-being by mis-managing your case.

Your battle has been hard won. I hope you have the energy to rejoice in your victory.

Do you still have the same case worker?

As your "mobility is so seriously challenged", as reported by the Courts, what will ACC be providing you to aid in your rehabilitation now you have proven your case?
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#3 User is offline   Stumpy 

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Posted 22 June 2004 - 10:30 PM

Well done Flowers!!!! Please keep us posted on the state of your toes and other things......

Stumpy :ph34r:
P.S. Has your feather duster been replaced yet????
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#4 User is offline   fairgo 

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Posted 23 June 2004 - 11:50 AM

Excellent News flwrznz! Judge Cadenhead seems to be making some very
reasonable common sense decisions lately.......... I was particularly
interested in the last part that awarded costs AND proved disbursements.
Good on you for taking this to the courts.
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#5 User is offline   jocko 

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Posted 24 June 2004 - 09:08 AM

John Cadenhead was a west coast solicitor when I was a youth. He won two cases for me. Good on ya Flowers. The actions of the case manager were physical and they are saying it was an accident. Lodge a claim for a lump sum for mental pain and suffering due to the accident.
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#6 User is offline   flowers 

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Posted 31 July 2004 - 04:33 PM

Stumpy;
re cobweb duster.
No, but since I have been on invalids benifit I have housecleaning being done via courtesy of Capital Coast Health and although I have won case against ACC there are stumbling blocks on the road that ACC have dictated in their response regarding reinstatement. So in the meantime I am sticking with winz/Capital Coast Health until they get their heads sorted. By the looks of things that will take a fair bit of negotiation.
I have had toenails cut and worn shoes for first time in a year or more but the continuance of that seems to be in limbo also as ACC seem to have interpreted their own spin as always and seem to want to dictate how they will comply so that needs to be sorted.
So as always a win against ACC is nothing but a Claytons they have put provisios on reinstatement and want me to comply on threat of further review and appeal etc see their letter and associated bum paper I recieved after I and my lawyer having to chase them.
See http://groups.msn.co.../donsstuff.msnw
Makes me wonder why I bother with them as they seem to be able to make a simple thing into a case of contention instead of obeying the courts they will insist on changing the rules again and find some way to make life more difficult than it is.
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#7 User is offline   BillyBob 

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Posted 01 August 2004 - 09:18 AM

Its time the court chucked a few of the acc bigwigs in the slammer for contempt of court.
While acc can continue to ignore rulings and put their own interpretation on the rulings IP's will continue to suffer its time the courts hardened up

cheers
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#8 User is offline   flowers 

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Posted 12 December 2007 - 10:29 AM

bump
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#9 User is offline   BLURB 

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Posted 22 December 2007 - 02:38 PM

Can totally agree that when meeting Flowers for the first time not so long ago, the poor old bugger (no offence meant flowers) could hardly move and used a walking stick

I don't think he brought the walking stick along just for show, nor was it used on any other members at the recent Christmassie b-b-que Witchiepoo put on (did cross my mind thou ... just joking) ... he needed that stick to be able to move around.

ACC should do some spring cleaning of their own, and stop the bullshit .... the back injury file wasn't included with the hip and knee files .... thats bullshit on the case managers part in a big way!

Roll on 2008 Flowers old mate as thats going to be our (the claimants) year! :D
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#10 User is offline   flowers 

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Posted 08 October 2008 - 05:47 PM

Interactive box ticking as a tool is usefull for the purpose it is designed for.

ACC's box ticking whilst possibly, meeting all the criteria as waddie points out also is designed to meet the administrative goals and objectives of ACC and is on the basis of ACC's interpretation of the Act and it's goals.

The two not necessarly in accord as court records and these pages attest.

Add to this the culture that has developed because of the system of kpi's and their relationship to pay+hay
plus the known fact that branches are issued, amongst other targets, a quota of exits of long term tail liabilities as agreed with the minister. One can only assume that there is a certain inherent, and supported, bias in their design and use.

Because of the mind set I personally have found mediation has little effect even with medical support and one generally finds oneself being steamrollered into ACC's idea of best practice and stated shining example of state owned monopoly that has the power to purchase the opinion it requires to return in 8 years 11 odd billion dollars to the stake holders.
Another problem with the mediation system is that one always gives more than one gets and what one gives later ends up being used to bite you on the butt, mostly unjustifiably and KPI driven and are either dropped or result in the process of drizzle and courts.

However structured, knowledgeable, and calmly reasoned presentation can and in some instances achieve a result of at least getting some assistance that is needed. Unfortunately the knowledge of the act, red tape proceedures and all the rest is beyond the abilities or means of most claimants and resort to advocates and lawyers are mostly needed.

This is doubly unfortunate as the system provides very limited and meagre assistance to the claimant who is put in the position of proving themselves on the decision of a boxticking kpi driven State Owned Monopolisitic Corporation who control the first line of appeal at the Monkey Court level with the power of the type of legal minds, its financial, political leverage and the expert and costly propaganda machine ACC has at it's disposal.

Major changes need to be undertaken to abolish the KPI system and for government to rewrite its contract more in line with ALL the principals laid out in the Woodhouse et al reports commissions and enquiries and rewrite it to ensure that the substantial power of the hydra they empowered, does not consume them and their claimants into the annals of history as an example of State Empowered Monopolism run rampant in a Banana Republic somewhere in the Southern Ocean.


And you wonder why I am a wee bit caustic and will never trust ACC.
subsequent difficulties all the result basically of KPI's and interactive box ticking.

http://accforum.org/forums/index.php?showt...amp;#entry74334
http://accforum.org/...wtopic=6010&hl=

2008 is still going to be a good year even if it kills me.
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