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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Law is 'clear cut'

Law is 'clear cut'
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New Zealand

The outcome of Fitzroy Engineering Group's appeal was inevitable, according to John Miller, a Wellington barrister specialising in ACC cases.

"I'm surprised the company did appeal because in my view the law is really clear cut. When you've got a Schedule 2 injury it's really tough to fight it."

While most gradual process injury claims require the injured party to prove that his or her condition was the result of a workplace exposure, Miller says Schedule 2 cases shift the burden of proof to the corporation. The mere fact that an injured party has worked in an area where relevant exposures are likely is deemed sufficient evidence of causation.

"The only way the corporation can decline a claim is if it can prove that the person isn't in fact suffering from a listed condition, or if it can identify a cause outside of their employment."

"It's the reverse of other gradual process injury claims. Rather than you having to show that your condition is not caused by something outside your employment, the onus is on the corporation to show that is was."

Miller says employer appeals against ACC cover are not common but those that do occur are often pursued by third party claims providers seeking to minimise their costs.

"It's like an insurance company. You hit someone's car and you want to do the right thing by the other person, but the insurer steps in and fights the claim under your name.

"I think this case is a salutary lesson for employers not to give their third party providers absolute carte blanche because it's not very good public relations."

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John Miller
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From Alert24 - Safeguard Update

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