ACC ‘can’t keep going the way it is’
ACC was established to support the rehabilitation of those injured in an accident. So why it is now treating patients as liabilities? In the final of a three-part series, Cate Broughton looks at how ACC is changing.
Ivan Stryder, a self-employed Christchurch handyman, spends most of his days feeling ‘‘beyond frustrated’’. In almost every room of the 44-year-old’s modest house, his ACC documents are within reach.
The papers lie piled up in a corner of the lounge room, sit upright in desk files and lie flat covering his dining table.
Multiple medical reports, court submissions and letters from ACC detail four years of his back injury and a troubled relationship with the corporation.
It started with a routine work task on April 16, 2014, his 40th birthday.
The father-of-two lifted a trailer loaded with 1500kg of soil on to the tow bar of his truck.
Three weeks later he was told by a specialist he had a back sprain and there was nothing to be done.
‘‘All he said was you will always have back pain and don’t waste your money on any physios or chiropractors.’’
Despite his stoicism and 24 chiropractor treatments, by October 2015 Stryder was in agony, unable to sleep through the night or work.
After a referral by a specialist, an MRI revealed he had a severely bulged disc. Surgery went ahead a few months later.
By then, it was April 2016. His business was struggling to stay afloat, his 13-year marriage had ended and he was locked in several disputes with ACC.
Despite surgery, the pain has continued and he can work only a maximum of 10 hours a week.
Stryder is now preparing for an appeal over his weekly compensation payments in the district court next month, after a reviewer upheld ACC’s decision.
ACC granted him cover and weekly compensation from the date of diagnosis in October 2015 – not from the date of the injury in April 2014.
The weekly payments amounted to $13.88 per hour and were calculated on his income in the post-injury period, which had dropped to $45,000 from $76,000 the year before.
ACC said there was no evidence his injury in 2014 had prevented him from working, and compensation was based on the date a person was diagnosed as unable to work.
Stryder disputes this, as several doctors have said there was a causal link between the accident in 2014 and his back injury.
The battle with ACC has become all-consuming and taken a toll on his mental health, he says. ‘‘It’s changed my life, the last four years. I’ve lost my job and my life just trying to battle ACC.’’
ACC not working as intended
Retired personal injury lawyer Don Rennie worked for the Accident Compensation Commission from its establishment in 1974.
He says changes are needed urgently.
‘‘It can’t keep going the way it is. It’s a board of directors administering a legal system.’’
Rennie worked in multiple roles at the commission for 10 years before leaving in 1984, two years after the organisation became a corporation.
He says the ACC Act and the administration of the act are not working to support people like Stryder the way it was intended to.
‘‘ACC is not an insurance company. ACC is there to apply the law, and the law says everybody who has an accident is covered.’’
A key principle in Sir Owen Woodhouse’s founding vision was ‘‘comprehensive entitlement’’, which gave everyone with an injury automatic cover, Rennie says. For this, New Zealanders gave up their right to sue for damages.
‘‘To decline [cover for personal injury], the burden of proof should be on the ACC to say this particular injury was not caused by accident.’’
But the corporation is acting as a private insurer and treating claimants as liabilities, he says.
‘‘The burden of proof is currently on the injured person as though they had an insurance policy and have to show they came inside the policy.’’
The average injured person does not have access to a copy of the act and doesn’t know why they have been declined.
‘‘They have no access to the law. Very few lawyers can advise them on the act.’’
Trust issues
Stryder says he is highly distrustful of the ACC process, including the review system managed by Fairway Resolution Ltd.
At a review over his compensation, ACC sent lawyer Ian Hunt while Stryder represented himself.
The reviewer’s decision rocked Stryder. ‘‘I just can’t see how the reviewer can make the decision that I wasn’t
incapacitated. I told him all about the misdiagnosis, the yearly income tax return before the date of injury and he just wouldn’t have a bar of it.’’
Stryder requested the audio recording of the review hearing and says a significant part of his submission was edited out.
He says two medical assessors arranged by ACC did not receive relevant medical reports.
Both assessments concluded he could return to full-time work if he avoided heavy lifting.
Feeling he was not being listened to, Stryder became more persistent in contacting ACC.
In response, ACC blocked his calls for six months in 2017 and Fairway trespassed him from its Christchurch office when he tried to discuss his concerns with his case manager.
An ACC spokesman says Stryder was placed on a communication plan in April because ‘‘we felt his behaviour was unacceptable’’.
Stryder says he was trying to resolve the issues so he could move on with his life.
His mother, Nelly Barr, says she has watched her son become a different person.
At one stage he had become suicidal over the situation.
‘‘I say to him, ‘Hadn’t you better think about your quality of life and just wipe this’ and he says no, I don’t want them to get away with this, I want justice.’’
Barrister Warren Forster says there are lots of examples of claimants becoming distressed and mentally unwell.
‘‘It’s often hard to understand what is going on from ACC’s point of view and people do become paranoid – sometimes for good reason.’’
When claimants become more desperate in their efforts to be heard, ACC assigns them to a ‘‘remote claims unit’’ and ignores their communications, Forster says.
‘‘We should be supporting people and fixing their problems, not sending them into a mental health cycle that has a massively negative impact on their life.’’
New navigation service for ACC customers
ACC chief executive Scott Pickering says ACC has worked on improving customer experiences, including services to help resolve disputed claims before going to a review.
The corporation recently announced it was investing in an independent, free service to help customers navigate their way through the disputes process. This was expected to help 4000 claimants.
A provider will be contracted by ACC to run the new navigation service, which will be available next year, chief customer service manager Mike Tully says.
The service is to help stressed and injured claimants understand ACC reasoning, or advise on how to dispute a decision if they believe it is wrong.
‘‘Sometimes they’ll want to get independent advice, and that’s what the navigation service will provide.’’
Miriam Dean, QC, in her 2016 review of ACC, recommended a national advocacy service similar to health and disability advocates who report to the National Advocacy Trust.
Pickering says the service is aligned with internal changes to improve the customer experience. A new senior management role of chief customer officer ensures the voice of claimants is represented at the senior management level.
Pickering says a meeting with Woodhouse in 2014 helped him understand the original principles of the scheme of fairness and accessibility. ‘‘We’re very driven by those principles.’’
Denise Powell, a spokeswoman for claimants advocacy organisation Acclaim Otago, says the navigation service is not what was recommended by Dean, or claimant advocates who were consulted, but is a step in the right direction.
‘‘Navigation through a process is not advocacy and the proposed service falls short of the review’s recommendation in our opinion.’’
Powell and Forster believe a personal injury commissioner, similar to the health and disability commissioner, is the best way to ensure fairness and independent oversight of ACC.
ACC needs to demonstrate the scheme is achieving its purpose, Powell says.
The act says the corporation’s ‘‘primary focus should be on rehabilitation’’ and ‘‘provision of entitlements that restores to the maximum practicable extent a claimant’s health, independence, and participation’’.
‘‘When the CEO can demonstrate that the scheme actually does these things, then I will be first in line to congratulate him,’’ Powell says.
Currently this is not happening. ‘‘There is far too much emphasis on limiting liability and acting like an insurance scheme.’’
ACC was intended to reduce legal disputes
Forster has spent years fighting legal battles on behalf of ACC claimants, starting with his mother’s case in 2005.
He believes ACC is failing New Zealanders because it has become stymied by endless demarcation disputes over cause and whether an injury qualifies for ACC support, or belongs in the public health and welfare system.
‘‘The ACC system was created to end legal disputes but this has failed. It makes no sense to spend a lifetime fighting the same battles every day.’’
Now he wants to go a step further and replace the system entirely.
Last year he was awarded a New Zealand Law Foundation international research fellowship and is using it to that end.
Instead of relying on taxation to fund health and social welfare for people with disabilities, Forster proposes extending cover to all disabilities by growing the ACC fund.
A disability investment fund could be developed by maintaining, rather than reducing, levies, he says.
‘‘ACC is making billions a year from its investments. Why not use a return on investment to fund a health and disability
service for everyone?’’