Personal injuries and the ACC: A guide to cover, entitlements, and the claims process

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1 Personal injuries and the ACC: A guide to cover, entitlements, and the claims process Prepared by Buddle Findlay, Lawyers, for the New Zealand Private Surgical Hospitals Association Inc June 2010

2 1. INTRODUCTION 1.1 This Guide has been prepared for the New Zealand Private Surgical Hospitals Association Inc to provide practical guidance on the application of the Accident Compensation Act 2001 ( the Act ). 1.2 The Guide provides sufficient information to enable health practitioners to: make reasoned and informed decisions about whether a patient s injury is likely to be covered under the Act; and if so, what treatment is likely to be paid for by the Accident Compensation Corporation ( the Corporation ); and assist patients in making informed applications for cover and potential entitlements; and understand and provide patients with explanations of the review and appeal processes available to them; and understand and provide patients with explanations of their rights as applicants as set out in the Code of ACC Claimants Rights. 1.3 The Guide focuses on what doctors need to know about the kinds of injuries that are most commonly treated at private hospitals and funded by the Corporation i.e. personal injuries caused by accidents. The Guide is divided into three parts. Part A: Cover for personal injury Part A summarises the requirements for a patient to have cover for an injury. A patient must have cover to be eligible for entitlements. Part B: Entitlements Part B summarises what doctors need to know about the various entitlements available for patients who have cover. Entitlements include treatment and rehabilitation costs. Part C: The claims process Part C summarises what doctors need to know about the process for making and reviewing decisions made by the Corporation. This part also refers to the Code of ACC Claimants Rights. 1.4 The Guide includes practical tips for practitioners to assist in making assessments in the most common scenarios that are likely to arise. A summary of the practical tips follows this introduction. 1.5 The Act is complicated, and there are a number of exceptions to various rules. The Guide largely focuses on the general rules, and the exceptions most likely to arise in a private hospital setting. It is not a substitute for legal advice on specific issues. The Guide has been prepared by Buddle Findlay, Lawyers, in conjunction with the New Zealand Private Surgical Hospitals Association Inc. The NZPSHA contact person is Rose Geden, Executive Director The contact person at Buddle Findlay is Dr Jonathan Coates 1

3 SUMMARY OF PRACTICAL TIPS Many sections of this Guide conclude with 'practical tips' to assist practitioners. Below is a brief overview of the practical tips contained in the Guide. PRACTICAL TIPS FOR PRACTITIONERS A SUMMARY When assisting with applications for cover practitioners should: clearly identify the 'bodily injury' that has been suffered. Use diagnostic labels that describe the physical damage suffered wherever possible; identify the specific cause of the injury. Particularly, where the cause of the injury is an 'accident', identify the specific event that is the accident; if there is a contributing gradual process or disease, specify to what extent that gradual process or disease has contributed to the injury. Where appropriate, provide clinical justifications stating why the gradual process or disease is not the substantial cause of the injury; always make reference to the specific statutory language. Incorporate terms such as 'physical injury', 'accident', 'application of external force' and 'substantially caused'; always provide all relevant supporting evidence (such as investigation reports and radiology) with an opinion; always provide clinical justifications for the treatment that is being recommended, and include reasons why that treatment is necessary and appropriate for the patient; if in your opinion the Corporation has made the wrong decision immediately inform the Corporation of your differing opinion and the reasons for your opinion. 2

4 PART A: COVER FOR PERSONAL INJURY 2. AN OVERVIEW OF COVER 2.1 The Accident Compensation Act 2001 sets out a no fault compensation regime for injuries suffered in New Zealand, and injuries suffered outside New Zealand by people ordinarily resident in New Zealand If a patient has cover for an injury, the patient will be eligible for entitlements. 2 Entitlements can include payment of the costs of medical treatment (such as surgery), and other financial support, including compensation for lost earnings. 2.3 To have cover for an injury: the patient must suffer a personal injury as defined in the Act; and the personal injury must be a personal injury caused by an accident (or one of the other types of injuries listed in the Act). 3 Part A of the Guide addresses these two requirements. 1 The specific details of the latter scenario are set out in section 22 AC Act. See also section 20(1)(a) and section 23 AC Act 2 There are some rare exceptions to this rule (such as injuries sustained during the commission of certain criminal offences). Refer to sections AC Act 3 See the discussion at paragraph 4.7 of this Guide 3

5 3. PERSONAL INJURY 3.1 The first requirement for cover is that the patient s injury is a personal injury. 3.2 The term personal injury is defined in the Act. 4 The definition describes both those injuries that fall within the definition, and those injuries that are expressly excluded. 3.3 What injuries are personal injuries as defined in the Act? 3.4 The first requirement is that the injury was suffered in New Zealand, or by a person who is ordinarily resident in New Zealand The most common personal injury encountered by private hospitals will be physical injury. 3.6 Physical Injuries A physical injury is a personal injury. The definition of physical injury in the Act includes the examples of a strain or a sprain. 6 Other examples of injuries that are physical injuries include: 7 wounds; lacerations and contusions; burns; fractures; amputations; dislocations The key requirement for a physical injury is actual bodily damage. 8 Generalised pain and other symptoms alone are not sufficient. For example, pain and discomfort in the neck caused by Occupational Overuse Syndrome is not by itself a physical injury. To be a physical injury, the patient must have suffered some actual bodily damage, such as an inflammation of tendons or a sprain Applications for cover for physical injuries must identify and evidence the actual bodily damage that has been suffered by the patient In addition to physical injuries, the following types of injuries are also personal injuries : 9 Death; 4 Section 26 AC Act 5 See sections 20 and 22 AC Act 6 Section 26(1)(b) AC Act 7 These examples are listed in the Accident Corporation Glossary of Terms under physical injury. at ) 8 For example, see Teen v ACC 3/9/02, Judge Beattie, DC, Wellington 157/03 at [13] and [19]. See also the ACC Glossary definition of physical harm which requires evidence of actual harm to the body see ) 9 Section 26 AC Act 4

6 Damage (other than usual wear and tear ) to dentures or prostheses that replace a part of the human body; A limited range of injuries caused by gradual process, disease and infection (see the discussion at paragraph 3.7 below); A limited range of mental injuries. 10 Mental injuries are not discussed in this Guide. 3.7 Gradual process injuries that are personal injuries Whilst injuries caused by gradual processes and disease are generally not personal injuries, there are a limited range of injuries caused by gradual processes and disease that are included within the definition of personal injuries The main type of gradual process injuries that are included as personal injuries are personal injuries that are caused by work related gradual process, disease or infection Examples of the types of injuries that have been covered as work related gradual process injuries are: rotator cuff impingement from repetitive boning tasks while working in freezing works; 12 occupational asthma caused by long term exposure to glutaraldhyde in the workplace; 13 irritant dermatitis from tasks undertaken as a marine engineer The statutory requirements for work related gradual process injuries are complex and will not be discussed in detail in this Guide. Essentially, however, for an injury to be caused by a work related gradual process, disease or infection, the patient s injury must be materially caused by an aspect of the patient s employment, and not by a nonemployment lifestyle or other personal factor It is acceptable for non-employment factors to be minor contributing causes of the injury, but they cannot be a material cause. 15 For example, a patient who has been a carpenter for many years and who has developed rotator cuff syndrome will not be excluded from cover because he has engaged in occasional leisure activities of swimming and mountaineering. 16 Cover will only be denied if the swimming and/or mountaineering is considered to be a material cause of the rotator cuff syndrome The determination of whether a non-employment factor is a material cause of the injury is factually dependent. The patient with rotator cuff syndrome in the example above may be 10 See sections 21, 21A and 21B and section 26(1)(c) and (d) AC Act 11 Section 26(2) section 20(2)(e) AC Act. For the other gradual process injuries that are included in the Act see section 20(2)(f-h) AC Act 12 Teepa v ACC 20/4/04, Judge Barber, District Court Christchurch 118/04 13 Davy v ACC 11/4/06, Judge Ongley, District Court, Wellington 91/06 14 Copson v ACC 15/04/03, Judge Beattie, District Court, Huntly 63/03 15 See Turner v ACC 7/4/04, Judge Beattie, District Court, Dunedin 95/04 at [11] and [13] 16 This example is based on Turner (see above) 5

7 denied cover if he has swum competitively for many years, training for many hours a week; but he is unlikely to be denied cover for occasional recreational swimming Overall, practitioners must take a common sense approach, and assess each individual case on its facts. 3.8 What injuries are not included as personal injuries? 3.8 Injuries caused wholly or substantially by gradual process, disease or infection: An injury that is caused wholly or substantially by a gradual process, disease or infection is not a personal injury unless an exception applies (these exceptions are discussed above at paragraph 3.7) Whether an injury is wholly or substantially caused by a gradual process, disease or infection is a key question to address when determining whether an injury is likely to be covered When deciding whether an injury is caused wholly or substantially by a gradual process, disease or infection, it is important to focus on the extent to which the injury has been caused by that gradual process, disease or infection. Clearly if the gradual process, disease or infection is the whole cause of the injury (i.e. 100%) then the injury is not a personal injury (unless one of the exceptions discussed at paragraph 3.7 applies). Deciding whether an injury is caused substantially by a gradual process, disease or infection is a more difficult task The courts generally shy away from an exact definition of substantially, and insist that each case must be decided on an analysis of the individual facts. However, the following statements provide some guidance: Whilst the courts have at times commented that there is no percentage-based test for determining whether the injury is caused wholly or substantially by a gradual process, disease or infection, inevitably percentages are used; 18 Generally, a figure of more than 80% is likely to be sufficient; that is, to be excluded from cover, at least 80 percent of the injury must be caused by the gradual process, disease or infection; 19 A figure of more than 70% may well be regarded as sufficient in some cases; but at this level there is greater uncertainty Overall, the phrase substantially is inherently vague, and a common sense, case by case approach is required. Where it is possible to do so on the clinical evidence, stating that a degenerative condition (for example) is less than 70% of the cause of the injury will increase the likelihood of cover. 17 Section 26(2) AC Act 18 Generally a percentage based approach is disapproved of by the courts (see Mathieson v ACC 7/2/02, Judge Barber, District Court, Wellington 45/02) but several decisions have taken this percentage analysis (see the cases at n 15 below). 19 See Booker v ACC 17/8/00, Judge Middleton, District Court, Wellington 205/00 and Hamilton v ACC 21/12/06, Judge Ongley, District Court, Wellington 318/06 at [27] 20 See Hamilton v ACC (n 19 above) at [27] 6

8 3.8.6 A difficult situation that practitioners may encounter is when an asymptomatic degenerative condition is ignited by an external event. For example, a patient presents with back pain after slipping on ice and an MRI exposes a degenerative disc disease. In this situation the patient will not have cover if the external event (the slip) merely caused the effects of the degenerative condition to become apparent. However, the patient will have cover for any injury that has been substantially caused by the slip and not the degenerative condition. For example, if the patient suffered muscular damage during the slip, that muscular injury will be covered Injuries caused wholly or substantially by ageing Injuries that are caused wholly or substantially by ageing are not personal injuries. There are no exceptions to this rule When deciding whether an injury has been caused by aging, the same principles as for the gradual process, disease and infection exclusion apply. A practitioner must ask, is the ageing process the whole or the substantial cause of this injury?. If the answer to the question is yes, the patient s injury will not be covered. PRACTICAL TIPS FOR PRACTITIONERS- PERSONAL INJURY When assisting with applications for cover, practitioners should: clearly identify the actual bodily damage (condition, pathology and diagnosis) that the patient has suffered. Diagnostic labels for the bodily damage should be used wherever possible; clearly identify what the cause of the injury is; if there is a contributing gradual process, disease or infection, specify to what extent that gradual process, disease or infection has contributed to the injury; where appropriate, provide clinical justifications stating why any gradual process, disease or infection is not the substantial cause of the presenting injury; wherever possible, make reference to the statutory language and give reasons for opinions. For example; Mr X slipped on ice and suffered a physical injury of a fracture in the right ulna. The slip was the substantial cause of the fracture. Mr X s degenerative bone condition was not the substantial cause of the fracture because.. 21 Hill v ARCIC 1/9/98, Judge Beattie, District Court, Huntly 198/98 at p13 22 Section 26(4) AC Act 7

9 4. PERSONAL INJURY CAUSED BY AN ACCIDENT 4.1 For there to be cover, the personal injury must be a personal injury caused by an accident (or one of the other listed types of injuries; see below at paragraph 4.7). It is important to treat the requirements for personal injury and personal injury caused by an accident separately. 4.2 What is an accident? Accident is defined in the Act. 23 The courts take a generous approach to the meaning of accident The most commonly applied part of the definition is section 25(1)(a); Accident means any of the following kinds of occurrences: (a) a specific event or a series of events, other than a gradual process, that (i) (ii) (iii) involves the application of a force (including gravity), or resistance, external to the human body; or involves the sudden movement of the body to avoid a force (including gravity), or resistance, external to the body; or involves a twisting movement of the body. 4.3 A specific event or a series of events, other than a gradual process An accident can arise from a single specific event or a series of events, but not a gradual process The distinction between a series of events and a gradual process is difficult. Generally an accident requires a degree of suddenness that is absent from the slow and incremental gradual process A series of events generally indicates a number of culminating events over a short period of time. 27 Gradual process injuries are those that occur over a period of four weeks or more. While this is not by any means an absolute statement of the law, it is a useful starting point. 28 For example, a nurse who developed carpal tunnel syndrome from wearing tight gloves over a long day in surgery would be considered to have suffered a personal injury caused by an accident. The wearing of gloves over a day would be considered a series of events rather than a gradual process However, in some rare circumstances a series of events over a period of years can also be considered an accident. For example, in one case, a patient fractured her back when she 23 Section 25 AC Act 24 Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436 (CA) 25 Section 25(1)(a) AC Act 26 Armstrong, H and Grover, C. Personal Injury in New Zealand, Brookers, Wellington (at AC25.05). 27 See 28 The Corporation specifies on its website that Gradual process injuries are those that occur over a period of four weeks or more. This is not a statement of law, but is a useful guide for practitioners to consider. See 29 Newson v ARCIC 1/2/01, Judge Middleton, District Court, Wellington 15/01 8

10 was eight years old and the fracture never properly healed. Over the next twelve years force was applied to her back many times during hockey games. The patient was diagnosed at age 20 with spondolythesis. The Court found that a common sense approach required the repeated knocks during hockey to be seen as a series of events rather than a gradual process. The patient received cover for the spondolythesis as a personal injury caused by an accident It will be a matter of fact and degree as to whether a series of events that are not confined to a short time can be said to constitute an accident. 31 Where it is possible to do so on the clinical evidence, identifying the event that caused the injury and using phrases such as sudden and accident will increase the likelihood of cover. 4.4 External force or movement to avoid force or twisting These requirements have a very broad scope. Any force or resistance, no matter how minor (and including gravity) is sufficient. Examples of circumstances that have been sufficient include: the wearing of heavy boots as an application of force on the foot; 32 heel strike on the pavement when running as an application of force ; 33 neck strain from a pillow slipping, as the application of the force of gravity. 34 abdominal muscle strain from sit-ups as the application of the force of gravity Other situations included in the definition of accident Other types of accidents include: 36 the inhalation of gas or a foreign object (not including a virus or bacteria) on a specific occasion; the oral ingestion of a solid, liquid, gas or foreign object (not including a virus or bacteria) on a specific occasion; the absorption of any chemical through the skin on a specific occasion, and within a defined period of time; exposure to the elements in a defined period of time not exceeding a month, and that results in a disability for a period exceeding one month All of these types of accidents focus on events that occur on specific occasions. Again, gradual processes are not considered to be accidents. 30 Warren v ARCIC 23/7/99, Judge Barber, District Court, Wellington 204/99 31 Ibid 32 Hurunui v Carter Holt Harvey Ltd 4/10/99, Judge Middleton, District Court, Wellington, 276/99 33 Hodgson v ARCIC 31/3/00, Judge Middleton, District Court, Wellington, 53/00 34 Johnson v ACC 29/9/04, Judge Beattie, District Court, Wellington, 311/04 35 Sonter v Accident Compensation Corporation 24/10/07, Judge Cadenhead, District Court, Auckland 234/ These definitions are simplified. For the full text see section 24(1)(b-e) AC Act 9

11 4.6 What personal injuries are not personal injuries caused by an accident? Personal injuries that are not personal injuries caused by an accident include: 37 any injury that is caused by a gradual process (as discussed above at paragraph 4.3); and an injury that is a treatment injury (as discussed below at paragraph 4.7.2). PRACTICAL TIPS FOR PRACTITIONERS- PERSONAL INJURY CAUSED BY AN ACCIDENT To assist in applications for personal injury caused by an accident practitioners should: identify the event (or series of events) that is the accident ; identify the definition of accident that the event fits within and, wherever possible, apply the statutory language, for example; the patient suffered a bone fracture from falling off a balcony. This injury is a personal injury caused by an accident as the specific event of the fall involved an application of an external force when the patient hit the ground ; or the patient choked on a small toy on the 8th of March. This was a personal injury caused by an accident as the patient orally ingested the toy on a specific occasion. 37 There are other types of injuries that are excluded from the by accident definition. These deal with rare situations (such as ectoparasitic infections and diseases carried by vectors (malaria)). For details see sections 25(2)(b) and (c) AC Act 10

12 4.7 Other types of personal injuries covered by the Act If a patient has a personal injury that is not a personal injury caused by an accident, there may still be cover if the personal injury is one of the other kinds of personal injury listed in the Act. These are: 38 personal injury that is treatment injury (see the discussion below at paragraph 4.7.2); personal injuries that are caused by a work related gradual process, disease or infection (see the discussion above at paragraph 3.7); a limited range of other injuries caused by gradual process, disease or infection (see the discussion above at paragraph 3.7); a limited range of cardio-vascular or cerebro-vascular episodes Treatment injury is personal injury that is caused by medical treatment. 40 Treatment injury does not include personal injury that is: a necessary or ordinary consequence of that treatment; or is wholly or substantially caused by a patient s underlying health condition; or is solely attributable to a resource allocation decision; or is a result of the patient unreasonably withholding or delaying consent. 38 Section 20(2)(b-j) AC Act 39 See section 20(2)(i) and (j) AC Act 40 This is a simplified definition. See the full definition at section 32 AC Act 11

13 PART B: ENTITLEMENTS 5. OVERVIEW OF ENTITLEMENTS 5.1 If a patient has cover for the injury, the patient will be eligible for entitlements. 41 The Act sets out a range of entitlements and criteria for receiving those entitlements. The types of entitlements that may be available include: Rehabilitation comprising of treatment, social and vocational rehabilitation; Weekly financial compensation for loss of earnings; Lump sum compensation for some permanent injuries; Funeral grants and other survivor support. 5.2 Treatment entitlements What is treatment? Treatment is broadly defined in the Act to include all physical and cognitive rehabilitation. 42 Physical rehabilitation includes assessment or diagnostic procedures (for example, x-rays, medical examinations, or scans), and treatments such as surgery, pharmaceuticals and physiotherapy When is the Corporation liable to pay for treatment? The Corporation will pay the costs of any treatment that is required to restore a patient s health to the maximum extent possible. 44 However, the treatment must be: 45 necessary and appropriate to restore the patient s health; and of a type normally provided by a treatment provider; and provided by a qualified treatment provider who normally provides that treatment; and agreed to by the Corporation in advance (unless an exception applies, see below at paragraph 5.3) The Corporation will also pay or contribute to the cost of services that are reasonably required to facilitate the treatment (such as accommodation, transport and pharmaceutical support) There are a few very narrow exceptions where a person may not be eligible for entitlements. These primarily involve convictions and imprisonment (see sections AC Act). Note also that from July 2010 there are minor changes to the entitlements available for self inflicted injuries. 42 Section 6 AC Act 43 For more information see the definition of treatment in the Glossary of Terms at 44 Clause 2, Schedule 1 AC Act 45 Ibid. See also Clause 2(2) which sets out relevant considerations for the Corporation 12

14 5.2.6 It is the Corporation s decision whether the treatment is necessary and appropriate. However, the Corporation relies on the medical advice it receives in applications to make its decisions When providing information to the Corporation as part of a patient s application for entitlements, practitioners should consider and refer to the entitlement criteria. Where possible the practitioner should provide reasons to support why a treatment is necessary and appropriate to restore a patient s health. PRACTICAL TIPS FOR PRACTITIONERS- APPLICATIONS FOR TREATMENT ENTITLEMENTS The type of information that practitioners provide to the Corporation should include: Clinical justifications as to why a specified treatment is necessary and appropriate including: the nature and severity of the injury (including any evidence, such as investigation reports and radiology); the normal treatment for that injury; the benefits of the treatment for the patient; including (if appropriate) how the treatment will aid in restoring the patient s ability to work and function; other options available and, where appropriate, reasons why those options are not suitable in the present case. 5.3 Acute treatment entitlements In most situations, the Corporation is only liable to pay the costs of treatment where prior approval is given. However, if the treatment is acute treatment then prior approval is not required 'Acute treatment' is either the first visit to a treatment provider or any following treatments if they are 'urgent'. Treatment is 'urgent' if (in the provider s opinion) a delay would create adverse clinical effects for the patient Clause 3, Schedule 1 AC Act 47 Section 7(1) of the AC Act) 13

15 5.3.3 Acute treatment can be contrasted with 'elective' surgery. Elective surgery is defined by the Corporation as 'non-urgent surgical treatment that can wait at least seven or more days'. 48 To receive entitlements for elective surgery the surgery must have received prior approval from the Corporation Other rehabilitation entitlements Social rehabilitation The Corporation will provide a patient with social rehabilitation that is required as a direct consequence of a patient s covered personal injury The purpose of social rehabilitation is to restore a patient s independence. It includes services such as home help, education support, and home modifications. The Corporation will assess and determine if a patient should be provided with social rehabilitation based on specific criteria in the Act Vocational rehabilitation Patients who are incapacitated from working and who receive weekly compensation may be entitled to vocational rehabilitation to aid them in returning to work. The criteria for vocational rehabilitation are set out in the Act Other entitlements Other entitlements that may be available to patients include: 52 Weekly compensation of up to 80% of a patient s previous earnings, if a patient is prevented from working due to a personal injury; Lump sum compensation for certain permanent injuries; Funeral grants for a deceased patient s estate; Survival grants and other weekly compensation for the spouse and/or children of the deceased. 48 See 'elective surgery' in the Glossary of Terms at 49 For more information on the processes for acute treatment see 50 Sections 79 and and Clauses 12-23, Schedule 1 AC Act 51 See sections and Clauses 24-29, Schedule 1, AC Act 52 Section 69 AC Act 14

16 PART C: THE CLAIMS PROCESS 6. OVERVIEW OF THE CLAIMS PROCESS 6.1 A patient who wishes to make a claim under the Act must lodge a claim with the Corporation. 6.2 The Corporation will make a written decision on cover and/or entitlements available to the patient. If the patient is not satisfied with the decision, the patient may apply for a review of the decision. 7. LODGING CLAIMS 7.1 Manner of claims The patient s claim can be for: 53 cover for the personal injury; or cover and an entitlement for the personal injury; or a specified entitlement once the Corporation has accepted the person has cover for the personal injury The claim has to be in the form specified by the Corporation. 54 Copies of the relevant forms are available at 7.2 Time frames A patient must lodge a claim for cover within 12 months from the date on which the personal injury was suffered A patient must lodge a claim for an entitlement within 12 months from the date on which the need for the entitlement arose. 56 The date on which the need for entitlement arises will not usually be the same as the date the injury was suffered. Although there are no clear rules, the date when the need for an entitlement arises will usually be the date that a practitioner determines that the treatment is necessary and appropriate A claim is lodged on the date the Corporation receives the application Section 48 AC Act 54 Section 52(1) AC Act 55 Section 53 AC Act 56 See section 53 AC Act. Note also that treatment injury claims have slightly different time limits. Claims must be lodged within 12 months from the time the injury was first considered to be a treatment injury by a health professional or 12 months after the treatment injury was suffered (whichever is later) 57 Section 51 AC Act 15

17 8. THE CORPORATION S DECISION-MAKING PROCESS 8.1 Basic decision-making process On receiving a claim for cover, the Corporation must decide whether it accepts the patient has cover; and, if it accepts the patient has cover; 58 provide information on the entitlements available to the patient; and facilitate access to the entitlements available to the patient The Corporation has a duty to make every decision on reasonable grounds and in a timely manner In most applications, the Corporation will investigate and make its decision within 21 days. In more complicated situations (such as mental injuries or work related gradual processes injuries), the Corporation will make its decision within 2 months. If more information is required the Corporation can extend these time frames The Corporation must give the patient written notice of its decision and the reasons for that decision. The Corporation must also inform the patient of the right to review the decision, and the relevant time frames for a review If the Corporation considers it made an error, the Corporation can revise its decision at any time. However, the Corporation cannot recover any compensation paid in error unless the patient has been intentionally misleading Clinical advice in Corporation decisions When making applications, the patient must provide any information that is reasonably requested by the Corporation. 63 The sort of information that is likely to be requested includes: medical certificates from practitioners providing information about the injury; medical records relevant to the claim; The patient may also be required to undergo a medical assessment by a health professional specified by the Corporation These medical certificates and request for information are an opportunity for practitioners to make full use of the tips and recommendations that have been given earlier in this Guide. 58 Section 50 AC Act 59 Section 54 AC Act 60 Sections 56, 57 and 58 AC Act 61 Sections 63 and 64 AC Act 62 Section 65 AC Act 63 Section 55 AC Act 16

18 PRACTICAL TIP If at any time a practitioner believes that the Corporation has made an incorrect decision about one of the practitioner s patients, the practitioner should immediately inform the Corporation of the practitioner s opinion, and the reasons for that opinion. 9. REVIEW OF CORPORATION DECISIONS 9.1 If a patient is not satisfied with the Corporation s decision, the patient can apply for a review. All patients who have made a claim have a right to a review Form of applications for reviews An application for review must be in writing. Where practicable, it should be in the form provided by the Corporation 65 (see The application must: identity the relevant decision(s); state the grounds on which the review is made; and if known, state the outcome sought by the patient. 9.3 Time frames The application must be made within three months of the date on which the Corporation made the decision (provided an exception does not apply). 66 It is in a patient s best interests to make an application for review as soon as possible, as the Corporation s original decision (for example to decline cover) has full effect until the review decision has been made The review process As soon as practicable after receiving an application for a review, the Corporation will engage a reviewer (or more than reviewer). The reviewers are independent decisionmakers who will investigate the claim, and make a decision The reviewers will hold a hearing and will consider relevant evidence from the patient, the Corporation and any other relevant party. The reviewers must put the Corporation s 64 Section 134 AC Act 65 Section 135 AC Act 66 Section 135(2)(f) AC Act 67 Section 133 AC Act 17

19 decision aside, and make a decision afresh. The review decision must be made within 28 days of the hearing and is binding on all parties The review decision can: 69 dismiss the application and uphold the Corporation s decision; or modify the Corporation s decision; or quash the Corporation s decision and substitute a new decision; or direct the Corporation to revise the decision within a given time frame The decision must be in writing, and contain the reasons for the decision as well as information on the right to appeal Costs of reviews If a review decision is made in favour of the patient, the reviewer must award costs and expenses to the patient If a review is not made in favour of the patient, but the reviewer believes the applicant acted reasonably in taking the review, the reviewer may award costs and expenses Any affected person can appeal a costs decision to the District Court. 71 In practice, this will mostly be the patient (or the patient s family) or the Corporation. 10. APPEAL OF REVIEW DECISIONS 10.1 An appeal to the District Court is available to a patient who is unsatisfied with a Corporation decision. 72 An appeal is only available after a review decision has been made An appeal can be brought where the patient believes the review decision is wrong in law or on the facts. At the point where an appeal of a decision is being considered patients should seek legal advice The types of decisions that are most amenable to appeals are decisions where there is disagreement between a patient s practitioner and the Corporation s medical advisors. Usually disagreements arise on the cause of the injury, such as whether an injury is substantially caused by a gradual process or whether a non-employment factor has materially contributed to a patient s gradual process injury Recent examples of cases where there have been successful appeals of review decisions include; an appeal by a patient who suffered bilateral wrist sprains from heaving lifting at work. The patient was declined cover by the Corporation who found there was no physical injury 68 Sections AC Act 69 Sections 145(3) AC Act 70 Section 144 AC Act 71 Section 148 AC Act 72 Sections AC Act 18

20 because the medical assessor had described the injury as non specific upper limb pain. The patient appealed the review decision and provided evidence from his practitioner specifying the physical injuries that were suffered (epicondylitis and wrist sprains). The Court agreed that the patient s wrist sprain was a physical injury and the appeal succeeded. 73 an appeal of a decision not to fund surgery for an achilles tendon reconstruction and an excision of a bursa of the right ankle. The Corporation had declined funding as it had determined the surgical procedures were to treat pre-existing osteo-arthritic symptoms and not to treat the achilles tendon strain for which the patient had originally obtained cover. After close analysis of the conflicting medical evidence, the Court decided that the procedures were largely required as a result of the original achilles tendon strain. The appeal succeeded and the Corporation was required to meet the patient s full treatment costs An appeal must be brought by the patient within 28 days after receiving the review decision (unless the District Court allows an extension) The Court must determine an appeal by: 76 dismissing the appeal; or modifying the review decision; or quashing the review decision Further appeals to the High Court and Court of Appeal may only be made on questions of law THE CODE OF ACC CLAIMANTS RIGHTS 11.1 Additional to the decision and review structures that are set out in the Act, there is also a Code of ACC Claimants Rights (the Code) that imposes obligations on the Corporation in relation to the claims process The Code sets out rights for ACC claimants including: the right to dignity, respect, honesty and courtesy in the claims process; the right to fair and consistent treatment; the right to effective communication in the claims process The Act sets out procedures for addressing concerns and dealing with complaints of breaches of the Code. If there is a finding of a breach of the Code, various remedial actions are available A copy of the Code can be obtained from 73 Sherwood v ACC 10/05/07, Judge Beattie, District Court, Auckland 89/07 74 Hart v ACC 25/06/07, Judge Beattie, District Court, Auckland 141/07 75 Section 151(3) AC Act 76 Section 161 AC Act 77 Sections 162 and 163 AC Act 78 See Part 3 of the Act 19

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