Kevin Hague
ACC disentitlement saga a shameful exercise from start to finish

Four years ago the District Court decided that ACC claimants who were not earners at the time of their original injury, but who later became incapacitated from subsequent employment due to that injury, were not entitled to weekly compensation.

Irrespective of the legal technicalities, it was an anomalous decision for a compensation scheme that is meant to provide comprehensive compensation, and Government should have legislated to correct the anomaly.  To the discredit of the previous Government and the current one, both of which have piloted other legislation to amend the ACC scheme through Parliament, neither did, and ACC proceeded to cancel the weekly compensation of other claimants in these circumstances.

However, in February of this year Judge Martin Beattie issued a decision on an ACC appeal that opined the 2006 decision ACC were relying on to disentitle claimants to weekly compensation was wrong in law:

[21] l have considered the decision of Judge Ongley in Giltrap (Decision 141/06) and acknowledge that he was faced with a similar factual scenario to that of the present case, the only difference being that Mrs Giltrap was an adult at the time of injury, but not working. But she was working at the time she was obliged to give up work because of the worsening of the injuries that she had suffered some years earlier in a motor accident.

[22] I have read His Honour’s judgment and find that his reasoning can be interpreted from the the provisions in question, and where he found that under Section 100 the right to receive weekly compensation is to be decided by determination of incapacity as contained in Section 103(2) and also eligibility under Clause 32. His Honour considered that the section clearly expresses a dual requirement for incapacity in the first place and eligibility from time to time.

[23] I prefer to find that the section does not require incapacity in the first place, but merely incapacity at the time when a claim for compensation is sought.

I would have thought ACC, who have appealed the latter decision to the High Court, would have put everything on hold until the law was clarified one way or another.  But recently a claimant approached me with this letter, advising her weekly compensation had been stopped on the basis of the 2006 decision:

So I decided to ask ACC Minister Nick Smith a question:

35760 (2010). Kevin Hague to the Minister for ACC (15 Nov 2010): Has the Accident Compensation Corporation continued, subsequent to the issuing of the District Court’s decision in Vandy v ACC (Decision 23/2010), to rely on the District Court decision in Giltrap v ACC (Decision 141/2006) to disentitle weekly compensation to claimants who were not earners at the time of their injury but later became incapacitated from their subsequent employment due to that injury, and if so, why?

Hon Dr Nick Smith (Minister for ACC) replied: ACC has the difficult situation of two contradictory court decisions over this detailed issue which is now subject to an appeal. I am reluctant to comment further until such a time as the appeal being heard this week in the High Court is concluded.

This is a shameful exercise from start to finish.  Government should have legislated to correct an anomaly that appears to have arisen from a drafting error in the legislation. It didn’t. When the interpretation of the law was brought into question, ACC should have stopped relying on the earlier decision to stop claimants’ weekly compensation.  But in its cost-cutting fervour, it has continued to disentitle claimants.  And Minister Smith should show more accountability to Parliament than to hide behind the High Court appeal in refusing to confirm or deny that ACC are still relying on the disputed 2006 interpretation of the law to disentitle claimants (which they obviously are).

Update: At the time I drafted this post, I was not aware that the High Court judgment on appeal had been released.  Thanks to Acclaim Otago for sending it to me, and a copy is here.  It supports the 2006 District Court decision ACC was relying on.  That doesn’t change my opinion on either the inappropriateness of ACC continuing to rely on that decision to disentitle claimants while the law was uncertain, or on the inadequacy of the Minister’s response to my question.

I hope to comment further on the substance of the High Court appeal judgment tomorrow, after I have had time to consider it in more detail.

6 thoughts on “ACC disentitlement saga a shameful exercise from start to finish

  1. Without commenting on the substance of the story, if the High Court are going to rule this very week, then The Minister keeping his mouth shut is the right call.

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  2. My understanding is that the High Court hearing is happening this week. It is almost certain that the decision will be reserved, probably to sometime next year, given the complexity of the legal issues involved.

    Kevin asked the Minister about what ACC’s practice had been since the decision in February this year, not about the interpretation of the law which I agree it would be improper for the Minister to comment on while the appeal is before the High Court.

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  3. I must say, that my experience with ACC was somewhat demoralizing. They will use any excuse to not compensate and I would go so far as to say that they bribe specialists to give false reports on peoples injuries. The ACC system is a sham.

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  4. Agreed, Todd. This allegation (from my first link above)is effectively one of corruption:

    One of Auckland’s six or seven specialist spinal surgeons, who asked to remain anonymous, said the corporation was using a handful of retired surgeons and some practising general surgeons as far afield as Timaru to declare that injuries were due to degenerative conditions on the basis of x-rays and scan results, without seeing the patients.

    “We are seeing people rejected for no good reason. I’ve had 40, 60, 100 cases in the last few years,” he said.

    I know who one of those retired surgeons is – as far as I know he does nothing but ACC reports and they inevitably say degeneration is the cause of the patient’s condition. A good little earner, when you can’t be bothered doing any actual surgery any more.

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  5. Just seen your update Kevin, and am feeling a bit foolish after my 11:20 AM comment on your post.

    Normally the High Court takes ages to deliver judgments on complex administrative law cases like this. In this case, Justice Gendall appears to have decided the public interest in the issue, given the uncertainty of a significant number of ACC claims, justified a speedy decision.

    While I support that approach, I hope his concern for a speedy resolution hasn’t detracted from the need to get the law right.

    There remains the possibility of an appeal to the Court of Appeal.

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