The ACC files: Decisions overturned on review

Christian Blakeman. Photo / Natalie Slade.

ACC's harder-nosed approach on surgery approvals may be starting to come unstuck legally.

The number of claimants challenging the Accident Compensation Corporation's refusal to provide cover has risen sharply since the crackdown on surgery began last year.

Review cases shot up by 50 per cent to more than 9000 in one year, but the Government asserted that ACC won the great majority and that this success rate was virtually unchanged since before the crackdown.

However, the ACC board's September meeting minutes, obtained this week by support group Acclaim Otago, have now disclosed that claimants are winning an increasing number of surgery cases on review.

The minutes say, "The board discussed the increasing number of elective surgery requests and noted the fall in the number of elective surgery reviews that were being upheld in ACC's favour.

"[The board] indicated that while it was still comfortable with the current success rates, it was interested in whether or not the changes were the beginning of a negative trend."

Figures released to the Herald by ACC show there were 912 elective surgery reviews in the 12 months to June 2009, 70 per cent of which were upheld in ACC's favour.

But in the year ending this June, the number of reviews increased to 1528 while the number that went in ACC's favour dropped to 65 per cent.

ACC's claims management general manager, Denise Cosgrove, said that while the percentage of reviews upholding ACC's decision had dropped, a significant majority were still in its favour.

Lawyers and advocates say they have been inundated with claimants challenging ACC's refusal to pay for surgery because ACC's doctors have wrongly attributed their problems to ageing or gradual-process injuries. They say the corporation is playing a numbers game, knowing that many people will not protest against a refusal even if it is unjustified.

Acclaim Otago president Denise Powell said yesterday the board minutes showed ACC needed to change its approach.

"I think their decisions are reckless; they are making decisions that don't stand up to scrutiny."

But the corporation says it is simply applying its legislation more strictly, because of a blowout in surgery numbers which, if not checked, would push up ACC levies.

One patient caught in the surgery crackdown is 26-year-old Aucklander Christian Blakeman. His orthopaedic surgeons Matthew Tomlinson and Helen Rawlinson have told ACC he needs surgery on his right ankle for an injury in June 2008 when he jumped 1m off a deck and landed badly in a pothole obscured by grass. He had had no problems with his ankle before that.

But ACC refused to pay for surgery, saying, "... we consider that the need for the surgery is not primarily due to your injury ... The medical evidence we have indicates that your surgery is required as a result of a gradual process condition ..."

THE TEST

* Personal injuries needing surgery can generally be covered by the Accident Compensation Act, unless they are "wholly or substantially" a result of an underlying problem caused by ageing, a gradual process or disease.

* Critics say ACC seems to be misinterpreting this as requiring the need for surgery to be mainly the result of the traumatic injury.

* ACC rejects this, and says it is simply applying its legislation more strictly because of a blowout in surgery case numbers.

* Personal injury is defined in section 26 of the act, which can be viewed here