News

ACC Decisions - The Review Process for Dissatisfied Claimants

Tuesday, February 19, 2013

Any decision made by the Accident Compensation Corporation ("ACC") about cover for injury, or entitlements relating to a covered injury are capable of review before an independent reviewer. Where a claimant is dissatisfied with a decision we recommend that the decision should be analysed to determine whether the facts and the legislation have been correctly interpreted and applied by ACC, and when necessary the decision should be reviewed.

Common areas of dispute with ACC relate to elective surgery (for example repair of tears to the knee cartilage, and repairs to shoulders, and repairs to damage to the spine). Another issue that has been exposed to media scrutiny of late are ACC's decisions finding claimants "vocationally independent", which has the effect of terminating a (usually long term) claimant's entitlement to compensation.

 

The Claim Procedure

ACC provides insurance cover for personal injury suffered in New Zealand where the personal injury is caused by:

  • an accident
  • a treatment injury (injury sustained while in the care of a medical professional)
  • work related gradual processes (such as occupational overuse syndrome)
  • mental injuries that have been caused by specified criminal acts

When ACC receive a claim for cover for a personal injury, or a claim for a specified entitlement relating to a cover personal injury (such as surgery, physiotherapy, hearing aids, or counselling), ACC is then required to make a decision on the claim on reasonable grounds, and in a timely manner.

ACC is required to investigate the claim at its own expense, and make a decision on the claim no later than 21 days after the claim is lodged.

There are provisions that allow ACC to extend the timeframe for making a decision, and the legislation allows for ACC to have a longer time period for "complicated claims" for cover (claims for mental injury, claims for work related gradual process, disease or infections, claims for personal injury caused by medical treatment, and claims that are lodged outside of the 12 month of the date of injury time limit).

 

Reviews of ACC Decisions

All decisions about cover or entitlements made by ACC carry review rights. A dissatisfied claimant may apply for a review of:

  • any decision on a claim,
  • any delay in processing a claim for entitlement where the claimant believes there has been an unreasonable delay, and
  • any decision under the Code of ACC Claimants' Rights (in respect of a complaint made by a claimant alleging a breach of the Code).

An employer may apply to ACC for review of a decision that relates to an employee's work related injury that was alleged to have been suffered during the employment with that employer. An employer may not apply to ACC for review of a decision about the entitlements that have been or are to be provided to a claimant who has cover for work related personal injury.

An application for review of ACC's decision must be made within three months of the date of ACC's decision. It is crucial that the decision to review is made promptly. The legislation allows for applications for review to be made outside of the three month period, but only where there have been "extenuating circumstances" that have prevented the claimant from making an application for review within the three month time limit.

The evidence that is required to prove a review application is not to the level of medical certainty (where the decision is based upon medical evidence). The test that must be applied by the independent reviewer of ACC's decision is the "civil standard of proof", with the test for proof being commonly described as "more likely than not". The evidence does not need to be obtained prior to lodging a review application.

Costs can be awarded at review for medical and other specialist reports that are used for the purposes of the review and provide the reviewer with some assistance, even where the review is ultimately unsuccessful. It is often possible therefore to seek further medical opinion as to whether or not ACC's decision is incorrect at the expense of ACC rather than the claimant personally.

It is not possible to cover all claims covered by ACC in this article, and we are more than happy to discuss any issues or question you may have about the ACC scheme. We are also conveniently located in the same building as the North Shore ACC office.