MPs urged to probe ACC's 'no' doctors
By Simon Collins and Adam Bennett
5:30 AM Friday Dec 10, 2010
An Auckland lawyer has asked Parliament for an independent investigation into what he says is a small group of doctors being used by the Accident Compensation Corporation to reject claims on grounds of pre-injury "degenerative" conditions.
The call was made public yesterday as ACC Minister Nick Smith defended his order for a clamp on what he said was a blowout in elective surgery costs as accident victims sought to use their injuries as a way of having underlying conditions treated at the corporation's expense.
Philip Schmidt, a fulltime accident lawyer, wrote to Dr Smith and six parliamentary parties in July, alleging that "a small group of specialists" was giving medical opinions to the corporation "at a very high frequency".
"The sheer volume of work they are doing must leave little time for clinical practice," he said.
"A lack of independent clinical practice or a significant dependence on the income generated by report writing is not consistent with producing objective, clinically valid reports."
He called for investigations into the small group of favourite doctors and the review process for people declined ACC coverage, which is handled by an ACC-owned subsidiary, Dispute Resolution Services.
Calls and emails from people refused ACC cover for injury treatment and income compensation on the grounds that they had pre-existing "degenerative" conditions continued to pour into the Herald yesterday.
Orthopaedic Association president Gary Hooper said on Tuesday that ACC was "trying to say everyone over 40 has degeneration".
People aged over 40 pay about $2.1 billion of ACC's $4.6 billion annual income through levies on their income, car registration and petrol and through general taxation.
A former ACC reviewer for Dispute Resolution Services who is also now an Auckland lawyer, Simon Buckingham, also yesterday questioned ACC's appeal process.
"In the case of Dispute Resolution Services, if ACC are paying their wages, how impartial can they truly be?" he asked.
He said that if any medical report contained the word "degeneration", "ACC will almost always automatically decline the claim on these grounds".
"The position in law is that it must be proved on balance of probability that the injury is wholly or substantially caused by pre-existing conditions not covered," he said.
"What is happening now is that ACC are declining on the mere whiff of degeneration, which is illegal."
Speaking from Cancun in Mexico yesterday, Dr Smith told the Herald there had been a blowout in ACC's elective surgery costs, from $128 million in 2005 to $240 million last year.
"As as consequence, ACC is being more careful that it's not becoming a de facto provider of elective surgery that's really required for health reasons rather than being caused by accidents.
"I've given ACC very clear instructions that where elective surgery is required as a consequence of accidents, it needs to fairly meet those legislative obligations but equally so to be careful that ACC doesn't become the default health provider."
But Dr Smith conceded he was not entirely satisfied with the present system because of the number of complaints he was receiving.
He recently met orthopaedic surgeons,who told him some improvement had been made in the work done by the medical panel that supports ACC.
"We've employed some additional specialists to make sure that our decisions are fair - I'm going to continue to monitor the situation."
But it was "absolutely inevitable" that with more than 40,000 elective surgery cases a year "there will be some patients and doctors who will be dissatisfied".
Meanwhile, former Associate ACC Minister Pansy Wong told Mr Schmidt in an October reply to his letter that the Government recognised that ACC's disputes process needed attention.
"Once decisions are made in relation to the Government's stocktake of ACC accounts, I will be leading a review of the dispute process," she said.
The Government is expected to announce decisions on the stocktake before Christmas, and the new associate minister, Hekia Parata, is likely to take up the review of the dispute process.
But Mrs Wong told Mr Schmidt that doctors used by ACC were "appropriately skilled and qualified".
She acknowledged that there had been an increase in review and appeal applications "because ACC is committed to following its legislative requirements more closely and ensuring that any entitlements a client seeks are in relation to a covered injury".
ENDS
The ACC files: Not by accident
5:30 AM Friday Dec 10, 2010
Nearly 200 people contacted the Herald yesterday to claim ACC had unfairly rejected their claims. We will be running some of their stories over coming days.
CHANELLE TRUST, 18
INJURY Knee
REJECTED Developmental condition'
Unitec student Chanelle Trust had to wait 12 months through the public system to have surgery for a knee injury after her surgery was rejected by ACC.
Three years ago, when she was 15 years old, she fractured her kneecap while playing soccer.
Less than a year later, she was playing football in her backyard when she fell and tore the tendons in the same knee.
Her mother, Petra Trust, said ACC covered all her physiotherapy and further treatments with a podiatrist and a sports specialist. However, when her knee did not respond to physiotherapy, ACC then referred her to an orthopaedic surgeon.
"It was only when we got to the point of surgery that they then decided it wasn't an accident after all."
Mrs Trust said she was baffled ACC would refuse surgery claiming her daughter's injury was a "developmental condition" after originally identifying her injuries as the result of an accident.
Two weeks ago Ms Trust had surgery to correct her knee injury.
LOUISE DIXON, 43
INJURY Shoulders torn rotator cuffs
REJECTED Degeneration
It's been absolutely horrendous. They don't treat you
like a person.Louise Dixon was in so much pain after tearing her shoulder muscles she couldn't take off her own bra - but she was told ACC was "just not doing shoulders at the moment".
The 43-year-old office supervisor said she had been fit and never had shoulder problems before her accident.
In late 2008, she was "playing silly buggers" with her partner when she fell forward and he grabbed her arms.
"My arm went backwards. My body went one way and my arms went another. It tore my rotator cuffs," Ms Dixon said.
She tried physiotherapy for nine months with cortisone injections but decided she needed surgery on both shoulders.
But ACC turned her down, and people at her clinic told her that shoulder injuries had little chance of getting approved.
"They told me, 'they're just not doing shoulders at the moment'," Ms Dixon said.
She ended up in a teleconference with ACC during a disputes process, where the officer would only say "no comment", she said.
"It's been absolutely horrendous. They don't treat you like a person."
ANDREW JONES, 22
INJURY Knee
REJECTED Degeneration
Andrew Jones found ACC great to deal with after he injured his knee in an indoor netball game - that was until he needed surgery.
In December last year Mr Jones fell causing a knee injury that could not be diagnosed.
ACC swiftly referred him to a physiotherapist, where he managed to correct the injury by strengthening the muscles around the knee.
However, three months ago Mr Jones started to have pains in his left knee again.
ACC referred him to series of specialists until he saw an orthopaedic surgeon who recommend surgery for what was determined to be a complex cartilage tear in his knee.
"I have no complaints about how my case has been treated until it got to this stage," he said. ACC wrote to Mr Jones' advising they would not be paying for his surgery until they had more information to prove his injury was not due to degeneration.
Mr Jones says his relapse was clearly the result of his accident.
His private insurance will not pay for surgery because the injury is the result of an accident.
LAUREN WILLIAMS, 23
INJURY Knee torn cartilage
REJECTED Degeneration
A 23-year-old woman has had to put her life on hold for 18 months after ACC labelled her netball injury as "degenerative".
Lauren Williams, who works at the Elam School of Fine Arts, tore cartilage in her knee when she fell during a netball game in July 2009.
But ACC said her injury was degenerative because she had once fallen over when she was 12.
She fought ACC to try to get surgery on her knee, looking for some kind of medical documentation from the fall 10 years ago, but when she became a victim of assault earlier this year and injured her back, the battle became too much.
"I hate that it came to a point that I had to give up the fight. It's not like me, but it wears you down," Ms Williams said.
Her knee has dislocated five times while waiting for surgery and keeps getting worse.
Ms Williams recently visited a second surgeon who confirmed to her that her injury was "100 per cent not degenerative", she said.
She is now on a waiting list to have surgery at a public hospital.
PAUL SCOTTING, 39
INJURY Ankle ligaments
REJECTED Due to previous injuries
Paul Scotting successfully overturned an ACC judgment that his rolled ankle had been the result of old injuries to his other ankle and his knee.
Mr Scotting, a car salesman in Newmarket, was walking down a grass bank in December last year when he twisted his left ankle.
But ACC ruled that the injury had not been caused by the accident. As Mr Scotting appealed against its decision, ACC used in its defence past injuries to the wrong joints.
At one hearing with the Disputes Tribunal, ACC surprised Mr Scotting by introducing as new evidence a medical document that Mr Scotting had to try to understand in mere minutes.
The document turned out to be about a knee injury 15 years prior, and the Disputes Tribunal quashed ACC's decision to deny Mr Scotting cover.
Its decision said that an orthopaedic surgeon on ACC's clinical advisory panel, had advised that "there is history of repeative (sic) ankle sprain ove (sic) a number of years".
This related to his right ankle and the tribunal ruled "there was scant evidence of relevant previous left ankle injury".
MADELEINE FLANNAGAN, 37
INJURY Neck injury from car crash
REJECTED Degeneration
A 37-year-old mother of four was dismayed to be told her pain was the result of "degeneration" and not a car crash which caused a herniated disc in her neck.
In April, Madeleine Flannagan was called to a meeting with an ACC-chosen specialist to assess the wage compensation she had been receiving after a car crash in March 2008.
Mrs Flannagan underwent surgery after the accident but continuing pain forced her to give up a legal assistant job at Sanitarium. Because the operation did not fix her pain, ACC reasoned its cause was degeneration, and declined Mrs Flannagan further compensation.
She said this was despite her surgeon indicating that she would recover two to four years after her surgery.
"It can't be degeneration if it's improving. It's at a snail's pace, but if I look back over the last six months, I can see real progress."
Mrs Flannagan said she never had any back or neck problems before her accident, and even rode a "feisty half-Arab" horse the weekend before her crash.
She said she had started legal action against ACC, and was waiting for a hearing date.
ADELE BEVERIDGE, 51
INJURY Chronic pain syndrome stemming from back injury
REJECTED Degeneration
After nearly 10 years of seeing specialists and dealing with review tribunals and a court case, Adele Beveridge has lost all faith in ACC.
The 51-year-old suffered a back injury when she tried to move a trailer, but slipped and fell under it while working for a hire company in 2005. Doctors determined she had a tear in the soft tissue in her spine and a bulging disc which left her with chronic pain syndrome.
They also found she was suffering from osteoporosis. She found the pain made work unbearable so ACC agreed to pay 80 per cent of her wages until in 2007, when they sent her to a specialist who dismissed chronic pain syndrome and blamed the osteoporosis.
The new diagnosis meant the end of her ACC payouts. She took the case to the Auckland District Court, where the judge dismissed the diagnosis given by the ACC-appointed doctor because it was at odds with the medical opinion of other professionals.
Ms Beveridge was awarded back payments for the three years she was without ACC funding.
MIKE ROBERTS, 24
INJURY Shoulder dislocation
REJECTED Previous degenerative injury
How could it be degenerative for any other reason than... being denied the corrective procedure in the first place?It took Mike Roberts three years to get ACC to approve surgery for his shoulder, by which point it had dislocated more than 80 times and his surgeon remarked it should have been fixed years ago.
Mr Roberts first dislocated his shoulder when he was 20 while playing beach rugby in Tauranga in 2007, and since this accident it became injury-prone.
It got to the point where the shoulder popped out as he leaned to get under his car, or he swung his arms to balance himself while playing paintball.
He needed surgery and applied to ACC but was rejected because he had previously broken a collar bone.
He appealed and applied again, told this time the condition was degenerative because the shoulder had dislocated so many times since the original accident.
"How could it be degenerative for any other reason than the excessive dislocations due to being denied the corrective procedure in the first place?" he said.
"It was really frustrating being bounced around all the departments.... I was upset and it had to be done."
AMANDA WILSON, 23
INJURY Knee
REJECTED Degeneration
A 23-year-old woman bears heavy costs for doctors' visits and rehabilitation after ACC rejected funding for her knee surgery.
Amanda Wilson was active and "could do anything" before she fell during a netball game in April, with her only previous problem being growing pains when she was 16.
But this was enough reason for ACC to reject supporting her through her surgery.
"The bummer is once they say no, all your rehabilitation costs aren't being paid for," Ms Wilson said.
She had surgery under private insurance but faces recurring costs for ongoing visits to surgeons and physiotherapy every fortnight.
Ms Wilson had the option to take her case to the Disputes Tribunal, but she said that as a 23-year-old hiring a lawyer out of her own pocket was too difficult.
"The ACC isn't aiming to help people, it's purely trying to figure out as many ways as possible of getting out of paying," she said.
The most difficult period was after surgery, when she was on crutches for six weeks and unable to drive. - Reports by Michael Dickison, Katherine Irvine, Nicholas Jones
WHAT ACC SAYS
ACC's purpose is to help treat and rehabilitate New Zealanders who have been injured as the result of an accident. And we are paying for more than 37,000 of them a year to have elective surgery - the overwhelming majority of the requests we receive. Those who we do turn down will be helped either by the public health system or a private insurer.
REASONS FOR DECLINED CLAIMS
Herald articles suggest we have no basis for declines. That is wrong. ACC legislation clearly sets out that we cannot pay for injuries caused by degenerative or pre-existing conditions.
We also base our decisions on medical evidence such as MRI scans and reports from independent medical experts.
MEDICAL ADVISERS
The Herald states that "we use a handful of retired surgeons" to make surgery decisions. ACC advisers all have current practising certificates and in some cases are members of the NZ Orthopaedic Association.
WHEN THEY MAKE THEIR DECISIONS THEY
1. Look at the information provided by the surgeon and other medical providers to see if it supports the causal link between the condition and the original injury.
2.Refer the client for further assessment or a second opinion if they consider there is not enough information.
It is the job of the surgeon to show how the condition that requires surgery is linked to the original injury. In many cases, they are unable to show that.
REVIEW PROCESS
Your article suggests that not everyone has equal access to our review process. Every decision letter clearly describes the review process. This is an opportunity for clients and surgeons to have a free, independent assessment of ACC's decision and to provide any further information they may have.
Our staff make decisions on hundreds of surgery requests a week and we sometimes get those decisions wrong. That's why we have a review process..
WHO PAYS?
Between 2005 and 2009 the cost of elective surgery for ACC grew from $128 million to $240 million. The bottom line is that if we don't control our surgery costs and pay for surgery and other services outside of ACC's legislation then the trade-off is higher levies.
ACC director of clinical services Dr Kevin Morris
Tell us about your experiences with ACC.
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Editorial NZ Herald: Change of approach unduly harsh
5:30 AM Friday Dec 10, 2010
According to the Accident Compensation Corporation, its costs for elective surgery grew from $128 million to $240 million between 2005 and last year.
That is an alarming jump and, unsurprisingly, it prompted a detailed examination of surgical requests. Many of these, says ACC, were found to be for conditions that claimants had before their injuries.
The upshot has been the stricter enforcement of its policy of declining to pay for surgery for "pre-existing conditions". It seems, however, that, as with many a blunt instrument, this may be being carried too far.
The corporation's approach was highlighted this week by a Herald report on a 48-year-old woman who, after an accident on the Southern Motorway, was refused accident compensation for a back injury on the grounds that her spinal problem was "degenerative".
ACC says her condition was "aggravated by the road traffic accident and not caused by [it]". The woman says she had no pain before the accident.
Plainly, ACC's funding of non-injury-related surgery was applied too loosely in the past. This led to a degree of misuse in a manner similar to that for free physiotherapy visits, which were ended last year. But there now appears to be a strong case to suggest the judgment calls being made on pre-existing conditions by some surgeons used by ACC are too harsh.
Doctors and specialists have not been slow to voice their qualms. A particularly damning verdict was delivered by the president of the Orthopaedic Association, Dr Gary Hooper. "ACC," he said, "is trying to say everyone over 40 has degeneration."
In one respect, that is self-evident. Everyone's tissue ages. However, it is surely drawing a long bow to suggest that should be a critical part of the equation in cases where claimants had no pain before their accidents.
As Dr Hooper points out, most hip fractures occur in people with degenerative tissue but, because there is a clear-cut fracture, they are covered.
In effect, ACC's change of approach has opened a Pandora's box. In the resulting bewilderment, the victims are those forced to endure long waits for surgery in the public health system. And those unaware of their right to challenge ACC decisions, or unable to pay a lawyer to do so.
There is another reason for concern. The strict application of this policy began without any public notification. There was no announcement from ACC about why this approach was necessary, by how much it wanted to cut the cost of elective surgery, and how precisely the policy would be applied. The first information has come in response to the report on the motorway accident claimant.
Everybody is aware that ACC is being reined in, and that this is necessary. Over much of the past decade, there has been a laxness about its activities, perhaps promoted by the previous Government, which wanted to expand the coverage and increase the take-up rate.
Wider entitlements were the order of the day. Stricter control of ACC costs is an obvious course for the Clark Government's successor, plagued as it is by a difficult economic environment.
In support of its policy, the corporation points to "long-established legal precedent that funding surgery for these [pre-existing] conditions is not the responsibility of ACC". That, however, does not excuse the distinctly harder line that is being taken with many older accident victims. A jump in the proportion of rejected surgery claims from 12 per cent in 2008 to 20 per cent last year confirms the impact of this approach.
The law may or may not be being misinterpreted. Either way, ACC is being unnecessarily and unduly
severe. If it continues with this policy, shouldn't all those with "degenerative" issues pay a lower ACC levy in recognition of the extent of their cover?
The ACC files: Doctors need more scrutiny, says critic
By Martin Johnston
5:30 AM Saturday Dec 11, 2010
Nearly 200 people contacted the Herald over the last few days to claim ACC had unfairly rejected their claims. We will be running some of their stories.
ACC's medical advisers are not being held properly accountable when they make bad decisions that lead to claimants wrongly being denied cover, a lawyer says.
Accident compensation law specialist Peter Sara said yesterday that the methods for controlling the quality of medical advice to the Accident Compensation Corporation were inadequate.
Hundreds of ACC claimants have told the Herald they have been unfairly denied cover. Typically this is because ACC has hired a doctor who has diagnosed the person's problems as largely due to underlying physical degeneration, rather than the accidental injury for which they had sought help.
Some of the seven medical specialists who advise ACC are retired from clinical practice, although they still hold an annual practising certificate from the Medical Council, an indicator they are keeping up with continuing medical education requirements. Some completed medical school more than 40 years ago and in one case nearly 50 years ago.
The corporation said last night that the advisers were ACC employees. It would not say how much they were paid, but said they received market rates..
"The majority of them see patients in their private capacity."
Mr Sara, of Dunedin, said ACC medical advisers were not subject to the Health and Disability Commissioner system when they were advising about a claim - and this needed to be changed.
It was considered that because they were advising ACC "there's no doctor-patient relationship. It's a third-party situation.
"If there were a doctor-patient relationship they could be put on the carpet, and they jolly well should be ... Because if they are following the party line, in other words someone in head office is saying 'this is our view now on shoulder injuries and we are not going to approve any', they are just following that through, they are not even providing independent clinical advice, [they are] rubber-stamping a process. It's appalling that they are immune, really, from this."
They were named in District Court decisions, but that was insufficient.
Mr Sara said another problem was that ACC permitted its advisers to work outside their specialist areas. Shoulder injuries, for instance, should be considered only by orthopaedic surgeons who specialised in shoulder surgery.
Auckland lawyer Philip Schmidt has asked Parliament for an independent inquiry into ACC's medical adviser system.
The corporation's executive leadership, according to an internal report last year, signed up to a harder-nosed approach - a switch from improving claimant access to cost containment; and from "social insurer" to "insurer".
ACC general manager Denise Cosgrove said last night the corporation was bound by legislation.
"We cannot pay for conditions that are degenerative or pre-existing.."
One of the many claimants to be declined cover is 65-year-old Ian Boag, of Palmerston North, but this week he had that decision overturned by an ACC reviewer.
The computer business owner had surgery on his left shoulder after a rotator cuff tendon was badly torn in a fall last December. He paid around $10,000 for the operation, which was reimbursed by health insurer Southern Cross, a cost ACC must now pay.
An ACC adviser, in a three-line diagnosis, said that Mr Boag had underlying degeneration. Mr Boag said the adviser was not given complete information, then failed in his duty to seek it out.
"He didn't ask anything. The first thing you do when you are a medic is you ask for a history and he didn't."
ELAINE WOLSTENHOLME, 45
INJURIES: Slipped disc, twisted spine
REJECTED: Degeneration
A 45-year-old Aucklander says she is using her 80-year-old mother's walking stick after rejected insurance claims delayed her treatment and left her with permanent nerve damage.
Elaine Wolstenholme slipped her disc in 2007 while bending over to pick up a towel. She suffered a further spinal injury in February this year when falling awkwardly in the primary classroom she taught in.
The second incident exacerbated the first, and she became increasingly uncomfortable. By April, the spinal injury prevented her from walking, and she was admitted to North Shore Hospital. Unable to work, ACC paid for her lost income.
Her private specialist recommended urgent surgical work to repair her back problem.
"But at this point I found out ACC were querying my claim of an accident," said Ms Wolstenholme.
She was turned down for an operation on the grounds that the injury was degenerative. This was despite reports from her specialist and ACC's own appraiser that stated her condition was the direct result of an injury and was not degenerative.
She appealed twice, but was turned down by an ACC panel of experts. "What I cannot understand, is if they accepted this injury, and paid my income claim, why did they refuse to pay for the surgery, or anything else?"
Between appeals, the severity of the injury saw her return for spells in hospital.
She missed two terms of teaching. Increasing pain meant she occasionally had to be prescribed morphine, as well as daily painkillers.
Ms Wolstenholme became so fed up with seeking an ACC-funded operation that she paid for her own private surgery, at a cost of $10,000. She has ongoing costs of painkillers, which set her back $50 a week. She has returned to teaching at Laingholm Primary, but says the delay in getting an operation left her with permanent damage to her sciatic nerve.
"My left leg is still dull and my left foot is partially numb. I use a walking stick.
"The funny bit is it's my 80 year-old mother's walking stick, given to her 45 year-old daughter."
She said she could not afford a lawyer, so could not take her case any further.
- Isaac Davison
IAN STRAKA, 30
INJURY: Back
REJECTED: Degenerative
When Ian Straka's back surgery went wrong, ACC agreed to pay for an operation to fix it - but only for the cost of another incision, not for any of the lasting effects.
Mr Straka is having to pay out of his own pocket for ongoing scans and physiotherapy.
"I'm in nowhere land and the bills are piling up," he said..
ACC declined to pay for his original surgery, saying his back injury after slipping on stairs was degenerative - "even though I was an otherwise healthy, active man in my 20s".
A radiographer mislabelled his scans and Mr Straka ended up with screws in the wrong parts of his spine. Now, he has to take 33 tablets a day, plus morphine on bad days, and struggles to lift his 1-year-old daughter from the floor.
Because he was not covered by ACC initially, he paid for all his subsequent treatments - except for the second operation to replace the screws. He has tried to deal with ACC but found it very difficult.
"I've absolutely had a gutsful of it, the bureaucracy and the sheer amount of paperwork."
PAT DILLON, 64
INJURY: Hernia
REJECTED: Injury not caused by accident
Pat Dillon says he had to force an answer out of ACC as it delayed making a decision for three months and his hernia worsened.
Mr Dillon felt a sharp pain in late August while lifting furniture at work. Doctors told him that he had developed a double hernia and needed surgery.
Mr Dillon said he had been fit and never had trouble before.
He rang ACC but got stuck talking to call centre workers who could only tell him to wait.
He reached the end of his tether when he received a letter that it could be three more months before a decision.
He rang ACC and refused to hang up until he got an answer. His claim was declined on the spot, with ACC saying documentation didn't show his hernia resulted from the accident - even though his doctors said it had.
Mr Dillon cancelled his life insurance to pay for his surgery.
By Martin Johnston | Email Martin
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The ACC files: Review looks at ways to improve efficiency
By Isaac Davison and Amelia Wade
5:30 AM Monday Dec 13, 2010
An internal review by ACC is looking at how the corporation could run more efficiently and what changes need to be made, a spokeswoman said last night.
ACC's general manager of claims management Denise Cosgrove said the review was being conducted by a claims department manager and was always planned for around this time.
"There is no way this has been brought on by the recent criticisms.
"It's an internal review which was always going to happen and it's just a part of how we run a business," she said.
The review started in October and will continue to March and will inspect ACC's policies and practices for granting insurance claims.
ACC will look at its data and processes before talking to people involved in claims - including stakeholders such as the Orthopaedic Surgeons Association.
The ACC also hit out at one of its critics last night, accusing him of having ulterior motives.
Quentin Mines, who was in charge of ACC's court work for six years in the 1980s, says the corporation has long been using degeneration as a way to decline compensation for patients.
Mr Mines believed the organisation was rejecting insurance claims on false grounds.
Mr Mines, now an ACC and medico-legal specialist in Hamilton, said in his time at the organisation officials were "blinkered" when they saw the term degeneration in a medical report.
"Degeneration was elevated out of all proper proportion a long time ago, maybe 20 years ago. It's now seeing a significance which is doing great detriment to the proper function of the scheme."
Ms Cosgrove said Mr Mines' comments were very general.
"I don't really understand what he's saying ... the legislation specifically says that it has to be wholly or substantially to the injury and it allows us on that basis for degenerative or pre-existing conditions to decline it."
She said it was likely he had ulterior motives for calling the ACC brutal and their practises illegal.
"They seem to be reasonably generic statements from someone who's probably touting for business - people who want to use his services."
Hundreds of people have contacted the Herald believing they were unfairly denied ACC cover for injury treatment and income compensation on the grounds that they had pre-existing "degenerative" conditions.
Mr Mines said harsh treatment of insurance claims had become more acute in the last few years.
Mr Mines left ACC in 1989, when he felt the atmosphere was becoming ruthless. After settling many appeals from patients where he thought ACC had been in the wrong, he was told he would be sacked if he settled any more.
His comments mirrored the stance of Auckland lawyer Simon Buckingham, who said last week that ACC was declining "on the mere whiff of degeneration, which is illegal".
ANDY JACKSON, 29
INJURY: Back
REJECTED: Degeneration
Andy Jackson, his wife and 7-month-old baby lost their savings to build a house after ACC refused to pay just hours before his back surgery.
Mr Jackson, a 29-year-old self-employed builder, injured his spine after diving while playing touch rugby.
His surgeon said there were no signs of degeneration and it was urgent that he get surgery.
Mr Jackson was put on a priority list but he received no answer from ACC for three months, despite calling them daily while his condition deteriorated.
It got to the point where he could not walk and couldn't sit or stand for any length of time, and it began to affect his bowels. Just a year earlier he had been running steep hills in Italy and the Oxfam Trailwalker in Taupo without pain.
Mr Jackson finally heard back from ACC - the night before he was scheduled to have surgery.
Funding for it was declined, immediately putting Mr Jackson $36,000 out of pocket and ruining plans to start building a house for his family by Christmas. It would have been $17,000 more if his doctor had not given him a discount out of compassion.
Mr Jackson had had injuries before, but not to the area of his spine where he needed surgery. ACC nevertheless claimed the damage was degenerative.
With his wife on maternity leave, the family had to survive on a $400-a-week sickness benefit for almost four months until he returned to work.
"It affects your whole life," he said. "It was a shock. I'm not happy."
- Michael Dickison
JOHN PROCTER, 54
INJURY: Slipped disc in neck
REJECTED: Degenerative
After a lifetime of paying ACC levies, John Procter has been reduced to a shell of himself after he was refused funding for surgery to his neck.
He suffered a slipped disc when he twisted his neck while working on a ladder at his Beachlands house in June.
But ACC said the injury was "degenerative", and Mr Procter has been left still trying to cope with excruciating pain six months later.
His employer, John Burrill, said Mr Procter had been physically fit and could take on physically demanding work without any trouble.
Now Mr Procter takes three doses of morphine a day plus sleeping pills at night as he waits to get treatment through the public health system.
"We're talking about serious drugs that will have a long-term effect. God knows what they're going to do to him," said his wife, Lynn. "I'm furious and it's gut-wrenching for me to see my husband reduced to what he is now."
Mr Procter tried driving on Saturday for work as the couple struggle without his income. After only a short stint he came home an "absolute mess" and in tears.
Mrs Procter said: "We've worked all our lives, paid our dues, and poor old Joe Bloggs that keeps the country going gets nothing. It's bulls***."
- Michael Dickison
KAHL SHARPE, 36
INJURY: Neck, shoulder
REJECTED: Degeneration
An Auckland man who has been battling ACC for almost three years says delays in treating his initial injuries have caused further injuries.
Former builder Kahl Sharpe, 36, injured his neck and right shoulder while lifting his stepson on to a top bunk in April 2008. He has been on ACC weekly compensation since but has had to fight to get medical treatment.
"The neck injury was diagnosed within two months. ACC received an urgent recommendation for surgery from the spinal specialist," he said.
"It took ACC 60 days to send a questionnaire to some guy in Christchurch for a second opinion. The guy hadn't seen me or my MRI scan and said one of the discs may have been degenerative but he couldn't definitively say so. ACC leaped on this and said they wouldn't fund it."
ACC claims general manager Denise Cosgrove said the corporation did not formally decline the surgery but needed more information before approving it. It was eventually approved and surgery was done nine months after the accident.
Mr Sharpe then sought surgery on his right shoulder. This time ACC formally refused to pay because it did not accept that the shoulder was injured in the original accident.
Mr Sharpe provided further information from his orthopaedic surgeon and ACC agreed to pay. This operation was carried out 22 months after the accident.
But 10 months on, he is still in pain.
"I've been eating painkillers on a four-hourly basis for more than two years now."
He believes the delays in the first two operations have caused what is now a painful inflammation in his left shoulder. Ms Cosgrove said ACC declined to cover further surgery because the pain "was not caused by his treatment".
But Mr Sharpe said: "It's not a treatment injury. It's a lack-of-treatment injury caused by the 22-month delay in the operation on the other shoulder."
Ms Cosgrove said ACC had now paid for two operations, 79 physiotherapy appointments, 16 GP consultations, pain assessment, rehabilitation plans, home help and other services for Mr Sharpe.
But Mr Sharpe said he had to fight for all of them.
"I still need another operation."
- Nick Jones
ANN HAMILTON, 66
INJURY: Tendon tear
REJECTED: Degeneration
Ann Hamilton tore a tendon in her arm lifting a heavy item in her garage - but ACC says the pain is caused by a degenerative injury, not the accident.
A year later, and still on the public waiting list for surgery that will relieve her ongoing pain, the 66-year-old says she has come to accept her "condition" but she warns ACC there may implications.
"Because I'm self employed and I have to pay extra ACC levies I have told them that my 'degenerative disorder' may stop me from writing out my cheque to pay my ACC levies this year."
Mrs Hamilton felt something tear in her arm while trying to lift a heavy drill press on Boxing Day last year. She was diagnosed with a rupture of the distal bicep tendon.
She paid $720 for physio, an ultrasound scan and to see an orthopaedic surgeon who wanted an MRI scan. She was told by doctors it would be covered by ACC.
ACC felt differently.
She says she was "treated like a second-class citizen" after travelling from Whitianga to Thames for a hearing to review her case.
"ACC didn't turn up ... they said it was too far for them to travel.
"They still declined my claim, saying their specialists still say because of my age this is a degenerative disorder and by trying to lift this piece of machinery I activated the condition."
ACC did, however, give Mrs Hamilton a $38 cheque for her petrol - something she has framed to remind her of their generosity.
Mrs Hamilton is on the public system's waiting list to see the surgeon but while she waits she is taking medication three times a day to deal with the pain.
- Elizabeth Binning
KARL SMITH, 43
INJURY: Wrist
REJECTED: Degenerative
A 43-year-old mechanic has developed depression and chronic pain in his wrist after he dropped a gearbox on his arm and ACC declined support.
Karl Smith was told his injury was "degenerative" so he had to pay for the surgery himself and rushed back to work through financial pressure.
He injured the wrist again at work and suffered nerve damage, putting him out of action for a year.
Mr Smith had to give up his trade and suffered depression. He continues to take strong painkillers twice a day while working as a warrant assessor.
His wife, Claire, said it had been a very long road for them.
"All because he went back to work before he was ready because ACC wouldn't cover him."
ACC staff had made them feel like criminals at every stage for expecting compensation, she said.
"If it had been up to my husband, he wouldn't have pursued any sort of compensation. He was too exhausted, depressed, and in too much pain.."
She said that for a lot of people dealing with ACC was a horrible experience.
- Michael Dickison
By Isaac Davison and Amelia Wade | Email Isaac
Has ACC rejected your claim? Email newsdesk@nzherald.co.nz
The ACC files: Appeal judge overrules rejection
5:30 AM Wednesday Dec 15, 2010
An ACC claimant won funding for shoulder surgery on appeal, despite evidence of an underlying degenerative condition.
Courier driver Ram Reddy, aged 59, felt sudden, severe pain in his right shoulder when a heavy box he lifted overbalanced. The pain forced him to stop working as a courier driver after the accident in January last year.
Orthopaedic surgeon Matthew Brick said Mr Reddy needed surgery for the "wrenching injury to a previously asymptomatic shoulder".
"I have reviewed Ram's past history and I have talked this matter over carefully with him and I can find no evidence that this was a pre-existing or chronic condition."
ACC declined funding, saying medical evidence indicated surgery was required as a result of a pre-existing gradual process condition made symptomatic by the accident. The decision was confirmed on review last December.
But in an appeal ruling this September, District Court Judge Martin Beattie quashed ACC's decision.
He said the case's facts were similar to several appeals for ACC funding of elective shoulder surgery.
"This court had heard on countless occasions specialist evidence that establishes that a person can have and function normally with a partial rotator cuff tear and whilst it is a degenerative condition, it can in most cases remain asymptomatic."
Tell us about your experiences with ACC.
Email the Herald Newsdesk
The ACC files: Haggling delays urgent surgery
By Martin Johnston 5:30 AM Wednesday Dec 15, 2010
Delays caused by ACC haggling over "degeneration" may have cost claimant David Hastings in lost shoulder function.
Specialist shoulder surgeon Khalid Mohammed told Mr Hastings, a retired clergyman, the surgery needed to be done without delay to achieve a full repair.
But ACC refused to pay for the surgery, and it took more than five months and a reviewer's orders to obtain the money.
Now aged 69, Mr Hastings said yesterday that his shoulder was feeling much better than before the surgery in June, but it was "not perfect".
He was cleaning a swimming pool last December 31 when he slipped and fell, tearing the rotator cuff tendon in his shoulder.
When Mr Hastings challenged ACC's decision, the reviewer, John Greene, preferred Mr Khalid's evidence to that of ACC clinical advisory panel member Ray Fong, an orthopaedic surgeon from Lower Hutt.
Mr Fong's opinion was: "David is suffering from L shoulder subacromial impingement syndrome - an intrinsic degenerative condition rendered symptomatic."
Mr Mohammed disagreed. He laid out, to the reviewer's satisfaction, the factors he considered showed a causal link between the poolside accident and the need for surgery.
And he dismissed the idea that the rupture was wholly or substantially due to age-related or degenerative changes, though acknowledging such changes could exist in older people.
Mr Greene ordered ACC to pay for the surgery, pay Mr Hastings' review costs of $685, and pay costs of $915 for Mr Mohammed's report.
Mr Hastings is among hundreds of upset ACC claimants who have contacted the Herald. Many have complained the corporation has used evidence of age-related degeneration to decline funding for surgery.
ACC's general manager of claims management, Denise Cosgrove, said last night:"We approve the overwhelming majority of surgery requests. However, sometimes we decline claims and if our clients are unhappy with that decision we encourage them to go to review.
Ms Cosgrove said if they were still not happy, they could "exercise their right to go through the district court process."
"Sometimes the review and court cases go in ACC's favour and sometimes they go in the client's favour. This is how a fair system works and ACC abides by the review or court decisions.
By Martin Johnston | Email Martin
Tell us about your experiences with ACC.
Email the Herald Newsdesk
15 December 2010
Call for inquiry into ACC
The avalanch of rejected ACC claims for surgery currently being publiciised by the NZ Herald should trigger an independent inquiry into ACC, according to the ACC Futures Coalition.
“The internal review announced today in Parliament by the Minister is not good enough”, said Hazel Armstrong spokesperson for the ACC Futures Coalition. “Indeed the fact that he has had to give ACC instructions to fairly meet its legislative obligations is an admission that ACC has lost its direction.”
“We are daily seeing a litany of poor decisions by ACC using degeneration and pre-existing conditions as a rationale to refuse legitimate claims for surgery,” said Hazel Armstrong. “Hundreds of New Zealanders who have paid their levies are being denied reasonable entitlements under the scheme.”
“This is part of the same picture that we have seen developing since the beginning of last year. The government began with a manufactured crisis in ACC’s finances and have used this as a justification to deliberately and consistently undermine the scheme.”
“We have seen the victims of sexual abuse put through ridiculous and stressful hoops in order to have access to counselling under the scheme. We have seen legislative change that has severely curtailed entitlements. We have seen the exclusion of those with less than 6% work-related hearing loss excluded from coverage and recent hearing regulations transfer the cost of hearing needs assessment, fitting and hearing devices onto the health system and individuals. We have seen an increase of people being pushed off ACC compensation onto sickness and invalids benefits and now there is a growing group of ordinary New Zealanders being denied surgery for injuries that most sensible people would see as being appropriately covered by ACC,” said Ms. Armstrong.
“There is a pattern here and that pattern is about discrediting our world-class ACC scheme so that it can be set up for radical change, probably involving full or partial privatisation,” said Ms Armstrong. “ACC is utilising private sector insurance techniques which are impacting negatively on legitimate claimants. The last thing we need is more private sector involvement.”
“When the government finally undertook a review of ACC’s processes in the area of sensitive claims it revealed problems with ACC’s approach and a rethinking of how the claims of sexual abuse victims were being managed,” said Ms. Armstrong. “With this latest list of problems it is clear that we need a comprehensive and independent inquiry into how ACC is performing against the principles on which it was established and how it can be restored to meet those principles again.”
“We call on the government or the Transport and Industrial Relations Select Committee to establish such an inquiry as soon as possible,” Ms Armstrong said.
The ACC Futures Coalition consists of community groups, academics, organisations representing people who need support from ACC, health treatment providers and unions who have come together around the following aim:
To build cross-party support for retaining the status of ACC as a publicly-owned single provider committed to the ‘Woodhouse Principles’, with a view to maintaining and improving the provision of injury prevention, treatment, rehabilitation and ‘no fault’ compensation social insurance system for all New Zealanders.
Contact: Hazel Armstong (Spokesperson) 027 472 1793
Glenn Barclay (Convenor) 027 295 5110
ACC review necessary but must not lose sight of ideals
Wednesday, 15 December 2010, 5:17 pm
Press Release: Progressive Party
Hon Jim Anderton
Member of Parliament for Wigram
Progressive Leader
ACC review necessary but must not lose sight of ideals
15 December 2010 Media Statement
In parliament today Progressive Wigram MP Jim Anderton challenged ACC Minister Nick Smith about how ACC is interpreting legislation on personal injury claims which are being routinely declined on the basis of pre-existing or degenerative conditions.
ACC announced this week it is to hold an internal review of its practices, which have recently been under scrutiny in a high profile media campaign.
Thousands of ACC claimants, who have been denied compensation on the basis of pre-existing or degenerative conditions, have voiced their concerns to MPs and to the New Zealand Herald on how ACC appointed doctors are citing pre-existing or degenerative conditions rather than personal injury to avoid paying out claims.
Jim Anderton says “The Herald’s campaign has done a great job in highlighting the fundamental flaws in the system. On the one hand you have claimants over 20 years old being turned down because their injuries are deemed ‘degenerative’ and on the other, claims from people under 20 years old being classified as ‘pre-existing’, which is just plain ridiculous.
“There is a distinct lack of objective and independent advice coming from ACC’s medical panel”, says Anderton. “ACC has been declining cover in what appears to be unprecedented numbers based on the judgement of a group of preferred doctors or surgeons, most of whom work from x-rays and scan results without ever coming into contact with the patient.
“Since the National government stepped in with its new agenda, it is clear the ACC has lost its focus and lacks credibility. The high numbers of claimants seeking second opinions and turning to the district court to get reviews overturned illustrates that ACC’s clinical judgement needs to be overhauled. It has also brought lawyers and legal expenses into the frame – a situation we abandoned when the right to sue was abolished.
“New Zealanders want the ACC to be effective; an organisation that covers them for work and non-work related injuries, that operates a no fault system and removes lawyers and legal fees from the claims process.
“Whilst still regarded as a world-class service, ACC has currently lost its way. The review must carefully look at its internal processes and cut out the rot that is setting in. The organisation must stick to its original principals and ideals and ensure that people are covered for accident and injury, irrespective of age, otherwise ACC will simply become a second rate insurance scheme. We will be watching the outcome of this review with great interest”, says Jim Anderton.
ENDS
