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Big News: Overturning ACC Decisions

BIG NEWS with Dave Crampton

The Harsh Reality Of Overturning ACC Decisions

ACC may call their claimants stock, they may ask for biased medical reports, but they sometimes use medical reports to back up their biased decision at hearings set up to review decisions made. You may have thought that being exited from ACC was harsh, yet all decisions have the right of review. That’s where the real fight begins.

Any ACC decision can be reviewed within three months, and is considered at a hearing conducted by ACC subsidiary Disputes Resolution Services (DRS). Each hearing costs about $3000 a pop.

You can even go to review if ACC delays making a decision or delays paying you entitlements in the first place. If claimants have been kicked off the scheme with no decision letter, they can apply for review immediately, and will most likely win. If a claimant is still entitled to compensation, that will be mentioned in the review decision issued by DRS.

DRS was set up in 1999 when the market introduced competition. ACC wanted reviews to be seen to be independent of case managers’ decisions. Reviews were handled by ACC review officers until July 1999 and review hearings were held in ACC offices.

The Corporation holds all the shares in DRS and half the DRS board works at ACC. DRS is just as much a subsidiary of ACC as Catalyst Injury Management Services is. Catalyst is the division of ACC that employs Case Managers who look at reducing the stock of ACC, sometimes known as the “tail”.

Both ACC and DRS see the review process as a tribunal – but the Ombudsman doesn’t, as a tribunal removes a citizen’s right of recourse to an Ombudsman.

When claimants apply for review they send the review applications to the ACC review unit who simply send the review form to case managers who are supposed to revisit their decision and alter dodgy ones.

Usually they just pass it on to DRS without reconsideration as they are bound by section 137, which requires a reviewer to be allocated. So to review it must go, at a cost of $3000, even if a claimant is fighting over $300.

If the case manager considers the review officer does not have jurisdiction, it goes to review anyway so that the review officer can make that decision. It’s a vicious circle, and can take up to six months.

Meantime claimants are missing out on entitlements and some refinance their mortgages or go on the invalids benefit to survive, only to find out they shouldn’t have been able to go to review in the first place.

The review process, in many respects, is a joke, as any case manager can cock up a claim or confirm a dodgy decision with a biased medical report in the knowledge that a review officer can sort out the dispute six months down the track.

Yet if a claimant provides a medical report showing they should have received entitlement that was cancelled in recept of an ACC funded medical report, ACC can request yet another report to back up their position – and they call it an independent medical report!

When a reviewer is faced with opposing medical opinions, as they often are, that reviewer will decide which opinion has the greater weight based on the qualifications, experience and any other relevant factors pertaining to the expert opinion.

As ACC may spend more money than claimants to get a medical report from a higher qualified medical specialist, a claimant’s subsequent medical report does not necessarily determine the outcome, and thus the rules are stacked in favour of the Corporation.

As one claimant says, it’s a bit like the ref coming from the opposing team. In such situations it is preferable to have the medical professional attend the review hearing to give evidence. That way he will be sent a copy of the review decision and be able to comment on opposing medical opinions.

If the review decision goes in the claimant’s favour – and just 25 percent of them do – ACC must legally act in accordance with that decision. Yet if the Corporation fails to do so, or delays making the decision and back payments, DRS told me there is no remedy for inaction.

There is in fact two things: Complain to the Ombudsman and lodge an application for review due to late payment - with interest.

Not many claimants know you can claim interest for delayed payments, nor do they know that they can apply for review at any time if a payment or decision is unnecessarily delayed by ACC.

If a decision is issued in part and then a month later it is revised, claimants can apply to review both decisions. If weekly compensation is being paid but another allowance is not paid, but should be, a claimant can apply for a review on that aspect at any time.

It pays to read the ACC Act before heading off to review, or get someone who knows the system. Successful claimants are awarded costs at review, and costs must be paid within 28 days of the hearing.

Up to 10 percent of all reviewer’s decisions are considered by the appeals process. Courts upheld 99 of the 350 appeals to 30 June 2001, most from claimants. That’s 99 decisions where both ACC case managers and review officers got it wrong. How many others did they get wrong?

It’s worth noting that 10 percent of reviews went to appeal and 75 percent of adjudications at review favour ACC. This means thousands of reviews are either withdrawn or unsuccessful.

Some of the unsuccessful reviews would be successful at appeal. How many? We’ll never know as some claimants don’t bother going to appeal due to the cost and the hassle of doing it all again.

All should have had a correct decision to start with and ACC CEO Garry Wilson is kidding himself through his false faith in case management. ACC may have stock they want to get rid of, but many of the stock are not sheep and will fight back.

In February ACC is to introduce a code of claimants’ rights, which is a document outlining rights that claimants should currently be receiving, but often are not. It remains to be seen if the code will change the ACC culture as a review hearing is the only recourse to rights not being respected.

ENDS

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