I do not like practicing ACC law. It is soul destroying, bashing your head against the ultimate bureaucracy in New Zealand. There is an honesty of purpose in criminal law, and due process that is adhered to in Employment Law, my other two areas of practice.
I have a client. Let’s call her Mrs X. She had a car accident in 2006 and suffered whiplash. Okay. People get over whiplash. Not her though sadly. She developed a chronic pain syndrome which is a psychological illness that happens sometimes. She was not supported properly by ACC so being a hard worker, went back to work despite not being fit really to do so.
In her new job, occasionally lifting bags of money, she aggravated her injury. The ACC claim was sent in stating an aggravation of the injury. ACC wrote back and said no. This was degenerative.
Degeneration is the ACC cover all when they do not want to pay. You have a back injury? Degeneration. You broke your leg? It was bound to happen as it is degeneration. I am exaggerating, but it sometimes feels like that. The case law says that if an injury is 80% or more degeneration, then it is not covered, However, with so called ‘Fairway” (Oxymoron alert), an ACC founded and until recent name changes, under DRSL, 100% ACC owned company, running all ACC reviews, what chance is there of showing previous ACC case Managers who conduct the Reviews that not everything in life is degeneration? I have had a few run-ins with Reviewers, and I know the job well. I used to be one myself. However, I did things like apply the law to cases. Not appreciated to say the least.
So there is Mrs X, unable to work, and being told it is degeneration when it clearly is not. She asked a firm to run the Review. Of course they lost. Hardly unbiased is it? There is a legal principle that you cannot be a Judge in your own Court. That is precisely what the Accident Compensation Act 2000 allows for. ACC conducts the Reviews themselves, despite being one of the Parties.
After losing the Review, I picked up the case. It took years to get to Court. Halfway through, ACC changed their minds. Not degeneration at all. It was what is called causal nexus. That means that you have to show a link between accident and injury. The ACC Doctors say it was not related, whereas Mrs X’s Doctor was of the opposing view.
ACC Doctors. I know of one in particular who I have had several clients complain about to the Medical Council. The NZMC never seem to do anything, despite a fellow Lawyer seeing him and this ACC Doctor stating “How can we get you off ACC today?” They tend to be biased as can be, and frankly, I would rather see the hospital orderly than some of them!
With two Doctors unable to agree, when it got to Court, it was ruled (correctly when you consider the law), that ACC won. However, the Judge made it clear that ACC needs to sit down and negotiate with Mrs X. Judges do not usually say things like that, and it made it clear that she had a claim. However, it should have been a fresh claim and not a re-aggravation based upon the evidence.
ACC never negotiated. On my advice, Mrs X got her GP to put in a fresh claim. They sat on it till they were out of time, making it what is called a deemed decision. That means that they have taken so long that the person is covered automatically.
So. Mrs X is covered. What help did she receive, considering that the mental injury had led to two suicide attempts so far?
Not one little thing. They said that they would not backdate six years as they should, or give any help or treatment until they had a Psychiatric report. The fact that she was at risk was irrelevant. In the meantime, she had a further separate injury meaning that she could not attend to see the Psychiatrist. More delay.
Mrs X finally saw the Psychiatrist in November, after the Waitemata DHB did not follow up care around Mrs X. They would section her, and then release her. This is pretty common with CAT teams, and another story of incompetence in our system. Another article in the future maybe. Throughout the last part of this year, we hassled to get the report. On 19 December, we were finally sent a copy.
The report was dated 13 November, yet ACC claim that they only just got a copy. Be that as it may, we got a copy finally. Remember that this is an ACC appointed Doctor, who as a group are not known for their neutral approach. The Doctor stated that Mrs X is at risk of further self-harm in the medium to long term future. He also stated that there is no doubt that her psychiatric illness is due to the accident in 2006. Most worrying is the fact that Mrs X is considering harming her whole family. There are several people potentially at risk whilst ACC sit on this.
What does Mrs X want? All she wants right now, despite the arrears in support and weekly comp coming to about $300,000 – $400,000 is to see the Psychiatrist and get the help she needs. She wants the help to get well.
We now come to the title of this article. If Mrs X dies, I am of the opinion, as a Lawyer, that ACC could be liable to prosecution for manslaughter due to a breach in their duty of care. Let’s look at if the worst happens. Four people dead. ACC would wring their hands and say that there is no way that they could have predicted this, but this possibility has been predicted. I wrote an e-mail just before Christmas stating all of this. If Mrs X does anything tragic, I would say, here and now, whatever the cost to my professionalism, that ACC would be responsible for such a tragedy. They would have blood on their hands.
This extends to the Prime Minister and ACC Ministers as well. In desperation, Mrs X wrote to the Prime Minister. He flicked the letter on to the ACC Minister, who flicked it on to the Associate ACC Minister. In a letter dated 19 November 2014, we have the Associate ACC Minister stating that they could not help as it was an operational issue. Operational? A six year delay and refusing treatment with lives at risk is operational? If a tragedy happens, I would be calling for the resignation of the Ministers in question, and would be asking the Prime Minister why the hell he does not care about people desperate enough to write to him, but instead passes the letter on with his usual arrogance.
As such, I claim that Mrs X has a point when she says that she believes ACC are waiting for her to take her own life so that they do not have to pay. I think she may be right. The Prime Minister is relying on the $5 billion surplus with ACC to prop up the economy. If they have to pay hundreds of thousands to legitimate claims against ACC, how can they then support the corporates in New Zealand? If the worst happens, it is driven ultimately by the neoliberals worshipping the almighty dollar. Allowing someone to die for money is the worst possible neglect there can be in my personal view.
This article could cost my practicing certificate as a Lawyer. If it does, I do not care, as I would rather speak up to save a life or a few, than keep quiet and be complicit. I have made serious contentions here. I do not know if ACC have a more sinister reason for the delays apart from sheer incompetence, but it does look that way. If I go down, then so be it. If by going down some lives are saved, then it is worth it.
For any Mainstream media who read this, ACC have the waiver to discuss the matter, so get in touch with me, and we can go through this in detail, and with proof.
Finally, I ask all people of faith to intercede for Mrs X who read this, whatever you believe in. If you are not a person of faith, please send your thoughts of goodwill to her. I am scared for my client. She has given permission for me to disclose, though I will not do so as much as possible. However, this amazing woman and her supportive family need help, and ACC would rather see them die than fork up for the care and support needed.
Simon Buckingham is New Zealand’s first diagnosed Autistic Spectrum lawyer. He is a social justice activist and passionate about politics.