ACC withholds weekly compensation from Kiwi cancer patient

By Martin Johnston

A treatment injury has ended newlywed cancer survivor Darren Ludlam's working life.

And he now worries how he and his bride Sonya will be able to support a family should they have children.

The 51-year-old is living on income insurance, had to cash in investments and Kiwisaver and cannot receive any ACC earnings-related payments in an "unlucky" set of circumstances.

This is despite ACC having agreed to cover the treatment injury, which includes paying for the necessary operations.

Ludlam was a telecommunications company sales manager earning $72,000-plus a year when in 2011 he was diagnosed with stomach cancer.

Facing chemotherapy and stomach-removal surgery, he was advised by doctors to stop working if he could.

He had no sick leave or holidays left. He does have income-protection insurance - which pays him about $33,000 a year - but to receive it he had to resign, which he did in January 2012.

The insurance prevents him getting a state benefit.

His first operation was in April 2012. Days later the surgical wound became infected, leading to seven hernia operations and two smaller procedures. Surgical mesh was used in some of the repairs and although he has had no recurrence of cancer, Darren suffers chronic pain syndrome and has trouble with concentration.

He has "permanent occupational disablement", according to an occupational physician and neuropsychologist and he can't return to work.

But because he wasn't employed and earning within 28 days before the infection, he is not entitled to weekly compensation from ACC, which would be 80 per cent of his pre-injury pay.

"It was just bad luck," Ludlam says of the infection.

He took his case to review but lost, ACC arguing he simply didn't meet the criteria in ACC law.

"I find it ludicrous that someone can undertake a home tattoo and get an infection and be covered and yet someone who gets a hospital infection which leads to multiple surgeries and subsequent permanent disablement is not [for weekly compensation]."

Ludlam and his new wife, 40, wed on Saturday, but the ACC decision casts a shadow over their joy.

"If we have children, which Sonya would like to, and she stops work, [the insurance] isn't going to be enough."

When Tamaki MP Simon O'Connor (National) asked ACC Minister Nikki Kaye about the case last year, she told him in a letter that the law sought to balance compensating those unable to work because of injury, against reasonable limits on entitlements - so that ACC remained fair and sustainable.

"I sympathise with Mr Ludlam's situation, and I have asked officials to look at a number of cover and entitlement areas over coming months to see whether there is a case for change."

Acting ACC Minister Nathan Guy says there are no plans to change the rules for entitlement to weekly compensation. Photo / supplied
Acting ACC Minister Nathan Guy says there are no plans to change the rules for entitlement to weekly compensation. Photo / supplied

However, Acting ACC Minister Nathan Guy told the Herald: "The existing rules that apply to cases such as this are well settled in law and within the courts. We keep various aspects of the ACC scheme under review, but we have no immediate plans for change in this area."

Dunedin lawyer Warren Forster said many people were in Ludlam's situation because of events when they weren't working, in some cases as children, that, years later, flare up and prevent them working yet they can't get earnings-related compensation.

He noted the ACC legislation's purpose included reducing the economic, social and personal costs of injuries on the community.

"Perhaps we need a conversation on whether the rules are working and whether we need a change."

- NZ Herald

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