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Howard's End: When Is A Review A Review?

The battle between ACC and its claimants continues unabated with many now writing to Parliament wanting a right to be heard about their concerns following a select-committee meeting last week where ACC Minister Ruth Dyson, ACC Chair, David Caygill and CEO Gary Wilson were questioned. Maree Howard writes.

ACC claimants are writing to the Transport and Industrial Relations select-committee wanting to be heard over long-standing complaints about ACC and its subsidiary companies, Catalyst Ltd and Disputes Resolution Services Ltd.

Last week ACC chair, David Caygill, defended the use of the term "stock" for long-term claimants at the select-committee hearing which further incensed members of the public, lawyers, and claimants.

The select-committee was also told by Ruth Dyson that perceptions of case managers targeting certain doctors to get the results they wanted was "not the reality."

Claimant, Denise Powell, who recently won a court case against ACC and was featured in the Sunday Star-Times article about ACC last weekend, is just one who has written to the select-committee wanting a right to be heard.

She wrote saying evidence will be presented in the form of:

- Our own personal experiences with ACC
- Evidence from the Ombudsman's Office
- The medical council's draft guidelines for doctor's (recently published for consultation)
- Evidence from Court judgements
- Evidence from Reviewer's decisions
- Evidence from internal ACC memo's
- Evidence from responses from Ruth Dyson to claimants
- Evidence from replies from Garry Wilson to claimants
- Evidence from the Office of the ACC Complaint's Investigator
- Other evidence as it comes to light.

She wrote that claimants should also have a right to be heard on the observance of the principles of natural justice.

Of course, Parliament is the highest court in the land and if it can now be shown that a select-committee has been miss-led, there could be serious implications for those who did so. Time will tell.

Other claimants are concerned over the way reviewers appointed by ACC-company Dispute Resolution Services Ltd are conducting reviews of ACC's decisions.

Allegations are being made that the reviewers are only conducting a hearing and not actually conducting a review which seems to be required under the new ACC Act that took effect on 1 April this year.

The new legislation says; " In the course of conducting a review the reviewer must hold a hearing unless........."

Claimants say hearings are being held, which may last an hour or more, but where is the other part - the actual review.

The legislation says that the reviewer must adopt an investigative approach with a view to conducting the review in an informal, timely and practicable manner. An hour-long hearing doesn't seem to meet that legislative requirement.

Some claimants say they cannot afford lawyers to represent them at the hearing and so they are left to manage the best way they can while they are up against a well-resourced multi-billion dollar Corporation. There is also risk of a perception of bias when the reviewing company itself is owned by ACC.

Why ACC doesn't tender the review work out, or use other reviewers as well, is unclear.

The legislation says that reviewers are to be independent but the perception of real or apparent bias remains.

One lawyer recently told Scoop about a case manager writing an email to a reviewer about the lawyer after the hearing was held, but before a decision was given. That matter has yet to be settled.

Another complaint about the review hearing approach is that both claimants - and ACC - have no idea what will be presented by each other on the day and so the hearing simply becomes like two parties standing up in a ring to fight each other.

That does not seem to meet the requirements for an investigative approach required by the ACC legislation.

The courts themselves provide for an exchange of information as disclosure before a hearing. And judges often hold case conferences between the parties before the hearing date to settle the questions to be decided, or in an attempt to try and settle the matter and avoid a full court hearing. That seems to be the common-sense approach.

It remains a mystery why reviewers engaged by Dispute Resolution Services Ltd don't, or won't, follow that same approach to settle disputes over ACC's decisions.

The legislation also requires reviewers to comply with the principles of natural justice.

Allowing people to be kept in the dark before the hearing doesn't seem to comply with those principles at all.

The simple fact is that if you have no idea what's coming at you on the day of the hearing then how can you properly prepare. You can apply for an adjournment if something comes up at the hearing which you were not aware of, but that can waste more time and money - which comes from the public purse. It needs changing - and quickly.

The Medical Council's draft guidelines for non-treating doctor's - including those who are appointed by ACC to do assessments on claimants - have now been published and say in part: "The Council does not accept that making recommendations is a step back from implementing them and therefore there is no responsibility for the outcome."

Claimants have bitterly complained to Scoop and other media that doctor's appointed by ACC come up with conditions they never knew they had - such as “fibromyalgia”, “pyscho-social factors”, and “chronic regional pain syndrome”. This is then used as an excuse to dump them from the ACC scheme. The Courts are clogged with such cases.

Most of these conditions are well recognised in medical journals as genuine medical conditions. But New Zealand seems to be a bit behind the times. The 10th World Congress on Pain was recently held in San Diego where more than 3500 specialists attended and heard about exciting new research. Scoop hasn't seen any publicity from NZ pain clinics about it.

The Medical Council now seems to want to put a stop to medical reporting without responsibility and it wants to make ACC-appointed and other non-treating doctors responsible for their assessments. That's an excellent move.

The draft guidelines say: " If the non-treating doctor becomes aware of another medical condition as a result of the assessment, the doctor should inform the patient and refer the patient back to the patient's own doctor (the patient's general practitioner/specialist) for further investigation."

It seems, though, that this simply reinforces a duty of care, particularly when the patient must provide informed consent to have the assessment in the first place. The first duty of any doctor must surely be to protect or enhance the patient's health.

But Scoop has seen a recent instance where an ACC case manager wrote to a specialist who was actually providing treatment to ask for, "further information." It seems the doctor thought it was OK to answer those questions without even informing the patient, and worse, he identified another condition which the patient knew nothing about and nor was it discussed at the original specialist appointment.

The patient's GP was apparently not informed about the condition either - but ACC has had the report for two weeks and seemingly has done nothing about it.

In other instances ACC claimants are complaining that they have seen many different GP's over a lengthy period and all had certified them unfit for work. It's not as though only one GP is involved. But then along comes another couple of doctors with a connection to ACC who say they are fit for selected work - whatever that means.

Shouldn't it be that you are either medically fit for work or you are not. The legislation says that a person has vocational independence if they can work 35 hours or more. That's the test not some airy fairy dumping diagnosis.

So are all these GPs so wrong, or worse, incompetent when they say their patient can't work consistently 35 hours? I don't think so.

After all, the GP sees the patient very regularly while the ACC-appointed doctor sees them once only, and for about an hour. If I was a GP I would be furious with these inconsistencies.

And if I recall correctly the term selected duties meant that an injured person could do selected or light work around the work place for maybe a couple of weeks until they recovered - not for the rest of your life.

Anyway, what employer advertises for an employee who can do only selected or light work? And imagine being employed to do selected duties for the rest of your life while the workers in the place you are working at are beavering away full tilt - the novelty of you being there and not being seen to pull your weight would pretty quickly wear thin with the other workers, I suggest.

It seems to me that the whole ACC scheme as it stands has become a medical merry-go-round to dump claimants from the scheme and maximise the amount of public money that ACC is able to invest in the share market, equities or government securities.

On another point. ACC is now the most complained about organisation to the Ombudsman, ahead of the IRD. ACC deals with around 30% of the population and IRD deals with around 95%, so doesn't that mean on a pro-rata basis that there are clearly major concerns about ACC?

Meanwhile, more than 1,000 motorcyclists descended on Parliament over the weekend protesting about proposed increases of their current ACC levies.

One claimant recently put it to Scoop that if you kept working an injured horse you would be in jail. But keep working an injured ACC claimant and who cares?

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