ACC tells rejected claimants: We've been too strict so try again

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Thousands of injury claimants turned down for ACC-funded surgery have been urged to make a new claim after the state-owned insurer said it had been too strict.

The Accident Compensation Corporation, after an internal review, said last month it had been rejecting too many elective-surgery claimants and would improve its processes.

David Wadsworth, an advocate who represents claimants seeking to overturn ACC decisions, asked the corporation to revisit individual cases because of the potential unfairness of its decision-making since 2009.

In a letter released by Mr Wadsworth, ACC's general manager of claims management, Denise Cosgrove, told him the corporation would not review all historical elective surgery decisions.

"While we agree aspects of historical decisions could have been done better, the option for clients to review decisions [take them to a review hearing] was always made plain to clients at the time.

"Further to this, at no time has a declined surgery decision impacted on a client's other possible entitlements."

Mr Wadsworth said that the latter statement opened up the possibility of claimants making a new claim, not for elective surgery, which had already been declined, but for weekly compensation, if they had notalready had an ACC decision onthis potential entitlement.

The internal review of elective surgery decision-making was announced in December during a Herald series on ACC.

Patients, lawyers and advocates vented their objections to the paper over the new approach, which had led to many injury claimants being turned down because of age-related degeneration.

During the Herald series, about 400 people complained to the paper about their ACC cases. Some lawyers and independent orthopaedic surgeons criticised ACC over its crackdown on surgery access, alleging it relied on brief, weak opinions from its doctors, some of whom had retired from treating patients and were often not specialists in the areas they advised on.

At the time, ACC said it was simply applying its legislation more strictly to control spending on elective surgery, which had risen from $128 million in 2005 to $240 million in 2009.

ACC decisions on elective surgery are essentially about whether the injury was caused by an accident. Ifit was wholly or substantially caused by age-related degeneration, ACCdoes not have to pay.

Mr Wadsworth said that if someone who had been turned down for surgery funding now applied for weekly compensation, ACC would have to consider the question of causation again.

If it then decided the injury was caused by an accident, despite earlier saying otherwise, this could be used to reopen the original decision.

Many people who were turned down for ACC surgery were later treated on public hospital waiting lists - but others paid for their own surgery or were funded by private insurance, in which case they or the insurer could be repaid.

Even if people were turned down by ACC again, they would have a fresh right of going to a review hearing.

Mr Wadsworth calculated that about 18,000 decisions declining surgery funding had been made in the past two years and not challenged at a review hearing.

While not all of ACC's decisions would have been incorrect, "it is safe to assume that a significant proportion of the 18,000 claimants affected may have been unfairly disadvantaged".

Ms Cosgrove told the Herald the internal review of elective surgery did not say ACC's decisions were wrong.

"What it did highlight was that our decision-making processes could be more robust."