ACC slow to cough up after ruling

Liangfang Lu. Photo / Natalie Slade

An Auckland man has won his battle against ACC after a court found its specialist diagnosed degeneration without having looked at an MRI scan of the injury.

Liangfang Lu, 48, was awarded about $5000 after Auckland District Court judge Martin Beattie found ACC wrongly suspended payments to him on the basis that his back pain was caused by degeneration.

The judge noted that the first two of orthopaedic surgeon Brian Otto's three reports on Mr Lu had diagnosed degeneration without the surgeon seeing the relevant MRI scan.

"I find that Mr Otto has not correctly identified the state of affairs when he had the opportunity of examining the MRI scan [in his third report]," the judge said. "He has stuck to his tried and true assertion that degeneration is the cause."

Mr Lu's relationship with ACC started smoothly when they agreed to cover him for lost earnings after he fell on the job as a painter in February 2008. The fall led to lower back pains.

An MRI scan requested by ACC's nominated specialist Dr Charles Ng showed a tear of Mr Lu's L4/5 disc, with bulging.

Four months later, however, ACC sent him to Dr Otto, who concluded the pain was caused by degeneration following an injury in China 20 years ago.

Speaking with the help of a translator, Mr Lu told the Herald he had never suffered back pain until the 2008 injury.

His son had to take on all the work in the family's painting business and they had been under immense financial stress when ACC stopped payments.

Mr Lu then approached orthopaedic and spinal surgeon Alistair Hadlow for an independent assessment of his injury. Dr Hadlow examined the MRI scans and found no evidence of degeneration - the same conclusion reached by the radiologist and Dr Ng.

After ACC-owned subsidiary Dispute Resolution Services sided with Dr Otto's diagnosis, Mr Hu took his case to the Auckland District Court.

His lawyer Jack Tam argued it was only Dr Otto who diagnosed degeneration, as opposed to Dr Hadlow and Dr Ng.

Dr Otto had also admitted certainty would only be obtained through a discography medical procedure, where ink is injected into the spine discs to show up on an x-ray.

Mr Tam said, in its absence, the findings of degeneration were opinion.

ACC argued there was clear evidence of a pre-existing condition, and the more recent injury had only exacerbated the symptoms of Mr Hu's degeneration.

But the judge disagreed, stating that Dr Otto's "opinion cannot achieve a sufficient degree of probability, in the light of the opinions of Mr Hadlow and Dr Ng".

Two months after the court decision, Mr Hu still had not received the money ACC owed him.

He and friend Francis Yong, who acted as his advocate on account of his English skills, had objected to ACC's request for additional information during a meeting last month.

"Even if you win your court case, they still put you through the whole process again ... what I feel is they're trying to find a discrepancy again, to reject your claim again."

After the Herald contacted ACC yesterday the commission called Mr Lu to advise his money would be paid upon receipt of his bank account number, IRD number, tax code, and information on any relevant benefits.

Mike Tully, manager of ACC's claims management network, said ACC fully accepted the court's ruling.

"We asked him to confirm details of any income he'd received during the relevant period ... this is standard practice when calculating backdated entitlements, and I wish to assure Mr Lu that it was not done to delay payment."

Mr Yong said it had taken a lengthy battle against bureaucracy to secure the victory.

"You look at the period, it's three years before we actually got to the stage where we are now."

Late last year the Herald received more than 400 complaints from people about their ACC cases, many of which were declined because of supposed degeneration.

ACC Minister Nick Smith conceded there was a "grey area" surrounding opinions on whether injuries were caused by an accident or underlying conditions.

ACC's success rate in review hearings declined to 65 per cent in the last financial year from 70 per cent the year before. Despite this, Dr Smith has ruled out an independent review unless the accident body begins losing a larger number of disputes.