ACC has told a burns victim he's only entitled to half the compensation he expected while off work recovering from reconstructive surgery because he was a child and wasn't working when he was burned.

A lawyer who specialises in ACC claims says the man should be entitled to full compensation.

The lawyer believes thousands of people, including hundreds who were sexually abused as children, are likely to be in the same situation and is calling for a law change.

Roger McKernan was 13 when he suffered third degree burns to his hands and face, and lost multiple fingers after the go-kart he was in caught fire at Kart City in Invercargill on March 9, 2002.


The severity of his injuries meant he has needed about 50 surgeries during the last 16 years and will likely need many more.

On May 29, McKernan, now 29, went into hospital to have his latest operation, which involved extensive skin grafts to his right hand. His doctor told him he would need to take at least six weeks off work.

McKernan told the Weekend Herald he believed he would be entitled to weekly ACC compensation payments at 80 per cent of his average weekly wage - about $850 per week - while he was recovering.

"In 2014 I went for my last operation and they told me I was entitled to 80 per cent of my income, like everyone else does when they go to ACC due to an accident. I was told from there on out that would be the case," he said.

However, on Tuesday, after last week's surgery, McKernan's ACC case worker told him he was only eligible for $504 a week before tax - much less than he was expecting.

"In 2014, ACC made a mistake when handling your weekly compensation when you had further time off for your surgery," an ACC staff member said in a letter to McKernan sighted by the Weekend Herald.

"In error ACC considered your earning at that time and paid you 80% of your earnings...this was incorrect."

The letter cited McKernan's age at the time he was originally injured and the fact he was not earning money at the time as the reason he was not entitled to the 80 per cent compensation rate for his recent surgeries.


McKernan said he was shocked by this.

"I was heartbroken. I was in tears because something out of my control that the Government is meant to help [with to] get back into work is taken away from me."

Roger McKernan plays with his 10 month old daughter Maddi. Photo / Martin Hunter
Roger McKernan plays with his 10 month old daughter Maddi. Photo / Martin Hunter

He was also upset ACC took four years to contact him about the 2014 error.

The letter acknowledged that the 2014 compensation payments set the expectation that McKernan would be entitled to the same 80 per cent payment rate in the future.

"That was the really hard part," McKernan said. "I was under false beliefs that I was entitled to something I wasn't."

ACC gave him a one off $1000 discretionary payment to make up for the error but McKernan did not believe this was enough.

If he had known of his actual entitlement he would have made changes to his budget to save enough money to make ends meet, McKernan said.

His weekly rent is $100 more than the loss of potential earnings payments.

"It's a joke. To say, 'This is all you're going to get' you may as well just kick me in the teeth as well."

McKernan is an asphalt plant operator in Christchurch and is his family's sole breadwinner. He has a partner, a 10-month-old daughter and helps raise his partner's 6-year-old daughter from a previous relationship.

"To be honest I don't know how I'm going to put groceries on the table next week. I don't know how I'm going to pay rent next week."

To make matters worse ACC would only pay McKernan at the loss of potential earnings rate if he needed time off for any future surgeries, ACC said in the letter.

"It's a nightmare to think that I have to do this again in five to 10 years if I need another op[eration]. That's the s****y thing," McKernan said.

Barrister Warren Forster said McKernan was entitled to full compensation under the Accident Compensation Act.

"That is very clear. ACC has a policy that wrongly interprets its own legislation and that is a widespread problem that affects thousands of New Zealanders every year.

"There's a whole range of medical conditions that deteriorate over time as a consequence of the original accident.

"Consequential injury itself has its own cover and therefore each time [McKernan] needs surgery for the consequences of his accident he's entitled to compensation for earnings at the time."

ACC spokesman James Funnell said the agency had sympathy for McKernan's situation and was reviewing his case.

"As a result we are having a detailed look at his claim to see if there are any options we have overlooked that would allow us to provide him with weekly compensation based on his current earnings."

A friend has set up a Givealittle page to raise money for McKernan while he's off work.

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