Author: william mcdonald

The Pike River families are right. Individuals should be held accountable even where there were systemic problems within the former Department of Labour. The Independent Investigation Report into the Pike River Tragedy identified the individuals who made decisions not to provide additional resourcing for the Mines Inspectorate and who failed to act on the concerns of the Mines Inspectors.

However, the Investigators were not asked to look at the politicians that made the decisions about Department of Labour funding and the failure to re-regulate. Nor were the Investigators asked to look at the responsibility that Treasury has, who oversaw the funding allocation to the Department of Labour.

It is not good enough to simply absolve individuals of their responsibility solely because the problems were systemic. A less timid and broader investigation needs to take place that encompasses political and administrative accountability.

On 28 April 2013, Hazel Armstrong is launching her new book, “Your life for the job. New Zealand rail safety 1974 – 2000”:

In the early 1990s new workplace health and safety legislation ‘obliged employers to take all practicable steps to prevent harm to their employees’. Your Life for the Job makes clear that New Zealand Rail (NZR) was secretly exempted. Soon afterwards, NZR was sold to a consortium of private owners which renamed it Tranz Rail, cut staff numbers and reduced spending on equipment and maintenance. Eleven of its employees were killed on the job between 1995 and 2000. This shameful record was brought to an end after the RMTU, the rail workers’ union, successfully called for an independent inquiry.

Shunter Robert Burt fell under a moving wagon in May 2000. He was the fifth Tranz Rail worker to be killed in 12 months. His employer had a workplace accident rate eight times the national average. This book, written by New Zealand’s foremost legal expert on workplace health and safety, concludes that the appalling rate of death and injury on New Zealand’s railways in the 1990s is ‘the story of de-regulation and privatisation’.

Author Hazel Armstrong points out that both the 2000 Tranz Rail inquiry and the 2012 Pike River inquiry illustrate what happens when regulators are ineffective and are captured by the employer, Parliament and the government of the day are prepared to compromise worker health and safety for some other end-game; and directors and managers turn a blind eye to hazards.

A client who has a covered workplace injury and a covered pain syndrome, spent 3 years fighting to have her entitlements reinstated. ACC settled her Appeal in June 2012. The client applied for physiotherapy treatment, as this has proved to be the most effective way to manage her pain over the years. The request for treatment was declined.

Recently, the client told her case manager that she was going overseas for two months to visit her elderly parents and also to obtain physiotherapy, which is considerably cheaper in her country of origin than in New Zealand. The Case Manager issued a decision suspending the claimants entitlements for unreasonable non-compliance, because she was “effectively making [herself] unavailable for treatment or rehabilitation”. This occurred despite the fact that no treatment, rehabilitation, or other assessments were planned in the period during which the client will be overseas and the fact that the client has fulfilled every request and requirement of the Corporation. Given that the client had managed her own rehabilitation for three years it is also somewhat ironic.

The recent District Court decision of KB v ACC highlights how difficult it is for injured claimants to obtain ACC cover for work related mental injury where there has been no preceding physical injury.  Where there has been no physical injury, for a claimant to get ACC cover for a work related mental injury, they must have experienced an event that would cause people to suffer that mental injury generally.  In KB v ACC, the Court found that the claimant’s mental injury was not caused by a single event, but rather an accumulation of work related stress.

Consequently, in a case like this where the mental injury is not covered by ACC, the claimant is not precluded from bringing an employment or common law action against her employer or otherwise.  In complex cases like this, we recommend getting legal advice early in the process – as time limits for bringing an action against an employer may run out while ACC is being pursued.

A decision was issued today confirming what ACC should already know but appeared to have forgotten – that it has an obligation to restore an injured person’s independence to the maximum extent practicable.

ACC had declined to provide adequate transport assistance to a 67-year-old man who was wheelchair bound.  Instead, ACC issued a decision to fund a mere two taxi trips per week.  He had to use these two trips to do his groceries, attend all medical assessments (of which there were countless), visit his children and grandchildren in Auckland, and participate in the community.  The claimant had no non-injury related conditions and he had become socially isolated and depressed solely because of his covered injuries.  The Reviewer concluded that the provision of only two taxi trips per week was wholly inadequate to restore the claimant’s independence to the maximum extent practicable.  The Reviewer ordered ACC to contribute towards the cost of a vehicle and any modifications necessary.

The decision is a good reminder to ACC of the purpose of social rehabilitation and the ACC scheme generally – proper and meaningful rehabilitation.

In November 2012, Hazel Armstrong attended the International Symposium on the Challenges of Workplace Injury Prevention through Financial Incentives in Canada. The presentation notes from speakers at the conference can be found here.

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