Battle lines in fight for ACC
A disabled Wellington man injured in a diving accident had his ACC support cut off seven years ago. For many disabled New Zealanders, ACC is not available because there was no accident. In part two of a three-part series Cate Broughton examines how we tre
John McGough can remember a lot about the day he broke his neck. It was a beautiful summer’s day in Wellington and he decided to go for a dip at Petone. ‘‘I’d been taking my time to get in and was about up to my thighs when I turned around walked back and took a running leap before diving in.’’
He can remember seeing the bottom of the seabed, realising he could not move and that he was going to run out of breath. He remembers blacking out. He remembers a man telling him ‘‘you have broken your neck’’ and to be still.
That was 1996. At the time McGough was working as a manager and chef in Vivo Cafe.
Today, aged 49, he lives in a cramped and unkempt Lower Hutt bedsit.
Every corner and surface is covered with years of accumulated belongings and documents that are physically and mentally overwhelming him.
Last month his landlord declared it a fire risk and issued an eviction notice.
McGough says a combination of stress, depression and lack of home help for the past seven years had taken a toll on his life.
That was when ACC stopped his weekly compensation and three hours per week of home help. ‘‘I just fell into a complete malaise.’’
ACC cuts support for alleged ‘non-compliance’
After the accident, the Burwood Spinal Unit in Christchurch diagnosed his injuries as C4 incomplete tetraplegia.
In the following years he was forced to adjust to a damaged body and brain, including a permanent limp, spasticity in his upper and lower limbs, and periodic pain and numbness in his arms and hands.
Anxiety and depression developed almost immediately and a major depressive disorder was diagnosed in 1998.
McGough received ACC cover for his injury and entitlements including treatment, home support, vocational training and weekly compensation.
Except for a brief period in an administrative role he has not been able to work.
McGough’s relationship with ACC started deteriorating in 2007.
In 2011 ACC said it wanted McGough to be assessed by a neuropsychiatrist. He was asked to give permission for his medical file to be sent to the specialist ahead of the assessment.
But McGough said he wouldn’t sign the consent form until ACC ensured it would include a full list of his medical records.
ACC terminated his weekly compensation in April 2011 for non-compliance.
In 2014 ACC’s use of the controversial consent form to terminate claimants’ entitlements for non-compliance was found to be unlawful by the district court.
Under huge stress, McGough signed the form but made it clear in letters to ACC and the minister that this was done under duress.
An appointment with the neuropsychiatrist was scheduled but McGough did not attend.
The question is: ‘Who was being unreasonable?’
In response, ACC terminated all of his entitlements despite numerous medical reports confirming his frail mental state.
At a review of ACC’s decision in 2012 the reviewer agreed with ACC’s decision, saying McGough had unreasonably refused to attend a medical assessment. A spokesman for ACC told
Stuff on July 11 that the entitlement was stopped because McGough refused to attend the appointment with a neuropsychiatrist.
‘‘John never identified the information that he believed to be incorrect; nor did he provide any statement of correction.’’
Barrister Warren Forster, who represented McGough at a conciliation meeting on July 12, said McGough had repeatedly raised concerns about incomplete or incorrect information on his file.
A letter McGough wrote to ACC in August 2011, seen by
Stuff, included a list of medical reports that he asked to be included on his file and sent to the neuropsychiatrist.
He also asked ACC to correct the description of his injury as a ‘‘fractured neck’’ to ‘‘C4 incomplete tetraplegia’’.
‘‘When he asked ACC to put all the information on the file, they ignored him.
‘‘So the question here is who was being unreasonable? Is it John or is it ACC dealing with a man with a brain injury, a number of mental and physical injuries, and struggling to cope,’’ Forster says.
ACC payments to be reinstated
At a conciliation meeting on July 12, ACC agreed to collect the records McGough had asked for in 2011.
McGough agreed he would attend a medical assessment when that information had been supplied to the specialist.
After this month’s conciliation meeting ACC agreed to reinstate his payments and other entitlements, following another medical assessment. ACC admitted that the agency ‘‘should have followed up’’ McGough’s concerns.
On July 13 a spokesman for ACC corrected his earlier statement, saying that in 2014 John identified information he believed to be wrong, and asked for it to be corrected.
‘‘Most of these letters were directed to other agencies; however, as we were copied in to that correspondence we should have followed up those concerns with Mr McGough.’’
The spokesman said ACC was working with McGough and his advocate following a conciliation meeting, ‘‘to support John’s current and future needs’’.
He declined to say if ACC would provide McGough with back-dated weekly compensation or an apology.
Forster says ACC’s handling of the case has been disgraceful. ‘‘They have not read the information on his case file and what they say cannot be relied upon.’’
McGough says he would like an apology for the stress ACC had caused. ‘‘There just seemed to be no recognition of the stress, given their abuse of power, just the absolute stress at my end.’’
He believes ACC did not address his concerns back in 2011 because it wanted an excuse to stop his entitlements.
‘‘Ultimately it was just a tool to completely disentitle me.’’
Life became much harder for McGough after his entitlements were cut.
His income dropped by between $150 and $200 a week and he received no home help or rehabilitative support to address his physical and mental needs.
NZ’s two-tiered system for disabled ‘discriminatory’
Injury prevention researcher Professor Sarah Derrett says many people with disabilities and injuries similar to McGough’s are living with inadequate support because their condition is not caused by an accident.
The discrepancy in care is discriminatory and unjust, she says.
Two studies completed by Derrett and colleagues from Otago University in 2013 quantified the difference in median income and ability to return to work for people with and without ACC cover.
The first study assessed a group of stroke patients and a group with similar injuries from an accident and covered by ACC.
One year on, the income for stroke patients had dropped by 60 per cent, compared with 13 per cent for the ACC-covered group.
The difference in return-towork ability was stark.
ACC support protects disabled from poverty and ill-health
The injury-group participants were three times more likely to be back at work than the stroke participants.
‘‘These findings support the
‘‘A man overcome by ill health is no more able to work and no less afflicted than his neighbour hit by a car.’’
ACC founder Sir Owen Woodhouse
conclusions that earningsrelated compensation and rehabilitation support, available to injured people via ACC, largely prevents the downward spiral into poverty and ill health,’’ the research paper concluded.
The other 2013 study assessed socio-economic and work outcomes over 21⁄2 years for people with a spinal cord injury, comparing participants who were covered by ACC and those who were not.
For the non-ACC group, median income declined by 45 per cent over 30 months (from $36,500 to $19,938) compared with a 15 per cent increase in the ACC group (from $40,000 to $45,900).
The study authors came to the same conclusion – ACC support protects people from poverty and ill-health.
Derrett says the findings reinforce the need for the ACC scheme to be extended.
ACC’s founding father, Sir Owen Woodhouse, recognised the potential for a ‘‘two-tiered’’ system in his report proposing the scheme, published in 1967.
‘‘A man overcome by ill health is no more able to work and no less afflicted than his neighbour hit by a car,’’ he wrote.
However, despite the logic of including that group in the scheme, Woodhouse said it would be too big a step to take at once and the need to establish a system for injuries was more urgent.
In the end he left it for a future government.
Derrett says the obvious first step is to trial an extension of ACC to people with serious illnesses.
‘‘We’ve shown there’s a huge difference when you have an inequitable system. Let’s investigate and see what happens when you extend ACC to some serious ill people.’’
Minister for ACC Iain LeesGalloway acknowledges the discrepancy in support is unfair.
‘‘I’m sure every electorate MP has dealt with cases, has advocated for people who are not entitled to ACC under the rules that we have.’’
But changing the system and extending ACC cover would have massive financial implications, he says.
‘‘There’s certainly room for a broader debate but that’s a big debate that the public need to have – and I haven’t yet seen an overwhelming public desire for change of that magnitude.’’
Derrett says concerns about cost are ‘‘shortsighted’’ as this ignores the benefits of preventing people from falling into poverty and long-term unemployment.
‘‘At the moment, beyond limited means-tested Winz allowances and entitlements which can be very difficult to access, New Zealand is turning a blind eye to the harms for people experiencing serious illnesses and this needs to change.’’
Two-tier system a breach of disability rights
Dr Esther Woodbury, national policy and relationships manager for Disabled Persons Assembly New Zealand, says ACC does not work perfectly but those who are covered often receive better equipment and support than those relying on welfare and the public health system.
She undertook research comparing the access of two disabled men to a modified car.
The man who was covered by ACC received funding of $140,000 for a fully modified van for his electric wheelchair, including automatic doors.
The vehicle allowed him to continue working, attend his children’s sports games and live an independent life.
The other man, who also relied on a wheelchair, was born with a condition which caused disability.
He had applied for and received funding to have his car slightly modified but had to lift his wheelchair into the car and lift himself into the driver’s seat.
After years of doing this he injured his shoulder joints, could no longer use his car and was forced to rely on his partner for transport.
Woodbury says the twotiered system is discriminatory and a breach of the government’s obligations as a signatory to the UN Convention on the Rights of Persons with Disabilities.
‘‘To my knowledge there’s nowhere else in the world where there is this kind of distinction over origin of disability.’’