When ACC says no
ACC paid $3.7 billion to help injured Kiwis last year, while turning down at least 100,000 people for cover. Cate Broughton examines the personal impacts when claims are declined.
Christchurch nurse Nicola Griffith had a job she loved, owned her home and had a healthy savings account.
The city’s earthquake in February 2011 sparked a huge change. By May 2018, her savings and home were gone. Griffith had moved in to a onebedroom council flat with her mother, scraping by on a benefit and riddled with debt.
But the biggest change was to her mental state.
The formerly confident senior intensive care nurse suffered post-traumatic stress disorder (PTSD).
When she was finally diagnosed in October 2016, ACC accepted a claim for cover and psychological treatment.
By then, overwhelmed by severe anxiety, Griffith was unable to work and had lost years’ worth of wages to the illness.
Under the ACC Act, the date of a mental health injury is the date of first treatment. That meant ACC declined her claim for weekly compensation as she was not earning at the time of diagnosis.
This, despite confirmation from her specialist that she had likely suffered from PTSD since 2011.
When the massive quake struck at 12.51pm, Griffith was asleep ahead of a regular night shift. She made her way to the hospital about 3pm and was thrust into a situation like nothing she had experienced before.
‘‘You see some terrible things in ICU, but this was on another level.’’
Traumatised patients covered in dust and suffering acute crush injuries lined the corridors. ‘‘The type of crush injuries, the amputations and how high a lot of them were . . . it was like a war zone.’’
Griffith worked 16-hour shifts for four nights in a row. Her own home was relatively unaffected and, being single, she was able to stay and work while others could not. ‘‘I have a habit of putting down those feelings and just carrying on,’’ she says.
By April, she was severely unwell. Colleagues found her in a hospital drug room preparing to end her life – something she does not remember to this day.
A psychiatrist diagnosed her with a major depressive disorder. After three months off, she returned to work but was soon struggling with intense anxiety.
On one occasion she was hospitalised with chest pain as doctors believed she was having a heart attack.
Griffith called in sick more and more often, simply too overwhelmed to face work.
‘‘I was questioning my skills as a nurse, questioning if I was safe . . . and then there was a feeling of being so tired as well.’’
By 2014, she had run out of paid leave and her financial situation began to suffer. She sold her flat and moved into a rental. Over the next two years, Griffith had long periods off work.
By mid-2016 she was on extended unpaid leave. With support from the Nurses Council, she saw psychiatrist Dr James Foulds, who diagnosed PTSD.
Foulds confirmed Griffith’s condition was caused by the traumatic events she witnessed after the earthquake, and it had probably been present from 2011 to 2016.
Her GP lodged a claim for cover and weekly compensation to WellNZ – a company that handles ACC claims for Canterbury District Health Board (CDHB).
By this stage Griffith was extremely unwell and often unable to leave her home. Doctors considered treatment with electric convulsive treatment (ECT).
Following a second assessment by Foulds, WellNZ accepted Griffith for cover and treatment for PTSD, but declined her for weekly compensation.
BATTLE FOR COMPENSATION
Throughout 2017 Griffith’s advocate lobbied ACC to reconsider the decision on compensation on the basis of the evidence her specialist provided. But it was to no avail.
The case went to a review hearing in February and the reviewer concluded ACC had been right to decline.
Unable to pay rent and with debts of more than $7000, Griffith moved in with her mother and then to a council flat.
A recent visit to ICU with support from her psychologist was a major turning point, she says. But fighting ACC and WellNZ over weekly compensation had only hampered her recovery.
‘‘When you’ve already got PTSD and you’re struggling with just daily living, having that put on top of you, it breaks you down even more and it makes the whole process longer.’’
She wants to appeal against the review decision at the district court, but has been advised it could be up to two years for a hearing.
The CDHB declined to comment on Griffith’s case, including her initial diagnosis in 2011.
THE GILTRAP CASE
ACC’s decision to decline Griffith for weekly compensation hinged on a narrow interpretation of the law adopted to save costs, Dunedin barrister Warren Forster says.
Internal ACC policy documents, obtained by Forster under the Official Information Act (OIA) and seen by show ACC set a legal precedent with a case in 2006 and then established the approach as its official policy from 2009.
Until 2006 it had paid weekly compensation to people who were non-earners at the time of the injury but then started working and suffered a subsequent injury caused by the original accident.
ACC had a change of heart in 2006 and opted to drop the previous work-around to the law.
A legal precedent for the change was set when it declined a Mrs Giltrap weekly compensation and the decision was upheld by the court. In 2009, it made the narrow approach official policy for all new claims.
The narrow interpretation was applied to Griffith, who was deemed a non-earner at the time of injury – the date of PTSD diagnosis in October 2016. WellNZ argued that there was no mention of the earthquake causing Griffith incapacity before she stopped working.
In 2014, ACC decided to cut off
170 claimants eligible before the policy change.
Then ACC chief executive Jan White says the court clarified in the Giltrap decision that ACC could only pay weekly compensation if people had a job at the time they were injured.
Forster believes ACC’s approach to the law changed when it realised money could be saved by a narrow interpretation.
‘‘This is really not what the law is meant to do. The law is meant to help people,’’ he says.
There are dozens of other cases like Giltrap, he says, where ACC has used legal precedent to reduce costs.
But ACC chief executive Scott Pickering rejects the idea.
An ACC spokesman says the corporation followed the Giltrap ruling since it was made in 2009. ‘‘To do anything else would require legislative change.’’
ACC claims increased by 6 per cent to $3.7b in the 2016-17 financial year, with 1.95 million new claims, according to last year’s annual report.
The report says ACC was managing claims efficiently and managing ‘‘the scope of the scheme’’ to control the financial impact of claims growth.
About 99,000 claims were declined in the most recent full year according to ACC. Forster says the real number was at least
200,000 and could be up to 300,000, as many decisions were not
recorded or captured in ACC’s database.
Pickering says the declined claims represent a relatively small proportion of the overall two million claims processed each year.
FROM SOCIAL WELFARE TO PRIVATE INSURANCE
Wellington barrister Hazel Armstrong has represented ACC claimants since 1974, first as an advocate and then as a lawyer.
‘‘It was a much more generous scheme in the 70s and 80s,’’ she says.
From 1992 ACC moved towards a private insurance model and away from its true purpose as a public good and ‘‘to restore people to participate in the community’’.
This was even more marked after a brief period of privatisation in the late 1990s, Armstrong says. ‘‘When [Sir Owen] Woodhouse brought the scheme in, it was called social insurance which has never really been understood by the New Zealand public – but it’s not private insurance.’’
She says the Court of Appeal instructed all parties to interpret the act in a ‘‘generous and unniggardly’’ way. But this is not the approach ACC is taking.
Armstrong says independent medical evidence is at the heart of ACC decisions. But she claims medical assessors used by ACC are ‘‘entirely under the control of ACC’’.
In some specialist areas it is difficult and expensive to find a doctor to provide an independent opinion.
The issue was addressed by an independent review of ACC by Miriam Dean, QC, ordered by the previous government.
But two years on, little has been achieved, Armstrong says.
According to ACC chief customer officer Mike Tully, ACC held four meetings with a medical evidence working party last year but work was still under way on an agreed solution. He says its medical panel is used in complex cases to clarify the cause of the accident.
Armstrong contends that revelations this month that reviewers at Fairway, a private company contracted to ACC, were given regular feedback on decisions against ACC by a review monitoring panel are ‘‘deeply disappointing’’.
It shows ACC is attempting to influence the process in its favour and unjustly deny claimants a fair hearing. ‘‘It never occurred to me that Fairway was not independent. It’s very disillusioning for someone like me.’’
Labour’s manifesto on ACC in the election campaign described the corporation as ‘‘meanminded’’ and promised to make it fairer – including the arrangement with Fairway.
But the Government appears to have had a change of heart.
ACC Minister Iain LeesGalloway says the scheme is working well and is ‘‘broadly’’ true to the original principles of the scheme as Woodhouse envisioned.
He points to the overwhelming majority of claims accepted and decisions upheld at review. In the 2016-2017 year, of
7227 review applications lodged,
2772 were withdrawn before the review hearing, 2736 were upheld and 1262 were overturned.
‘‘That suggests to me the initial decision made by ACC is the correct one.’’
The minister says he has seen a decrease in unhappy ACC constituents in his electoral office since 2011.
Earlier this month the legal authority and independence of Fairway reviewers was challenged by Forster, who said ACC had not been able to provide the delegations required under the Crown Entities Act.
Correspondence made public shows ACC regularly provides ‘‘feedback’’ on the performance of reviewers in cases that go against ACC. Lees-Galloway says he has been assured by ACC that ‘‘review processes are undertaken legally, fairly and impartially’’.
‘‘Miriam Dean QC’s independent review of the ACC dispute system found that Fairway reviewers were independent of ACC, despite perceptions to the contrary.
‘‘Since then, ACC and Fairway have taken a number of steps to address these perceptions and improve their systems.’’
These include transferring ownership of Fairway from the Government to a private company, publication of case summaries and judgments, a website re-design and a ‘‘submission builder’’ to help claimants prepare their case.
Lees-Galloway says claimants access to justice ‘‘is important to me’’ and he has asked officials to ‘‘look into the most appropriate jurisdiction and arrangement for ACC reviews’’.
‘‘You see some terrible things in ICU, but this was on another level. The type of crush injuries, the amputations and how high a lot of them were . . . it was like a war zone.’’
Nicky Griffith on the Christchurch earthquake