A judge has pulled up ACC for frequently seizing on age-related degeneration of claimants' bodies as a reason for unjustifiably rejecting their claims for surgery after an injury.
To save money, the ACC has tightened up on which surgery claims it will cover. It says it is simply more strictly applying the legislation under which it operates.
In the first half of this year, ACC paid for 11 per cent fewer operations than in the same part of 2008.
Hundreds of people have complained to the Herald about ACC. Many have been declined cover for operations to repair an injury because an ACC-employed doctor has highlighted age-related degeneration as the most likely cause of their need for surgery.
An independent advocate for ACC claimants, David Wadsworth, of Nelson, said yesterday the corporation was failing to make decisions properly. It was relying too heavily on the opinions of its medical advisers, rather than having regard to all the circumstances - including the treating surgeon's views - as required by the legislation.
He cited the successful District Court appeal of Garnett Bonsor, in which Judge Martin Beattie last month ordered ACC to pay for left shoulder surgery.
Mr Bonsor had tripped and fallen in September 2008 when he was aged 67.
He had the surgery in May last year, but had been turned down for ACC funding the month before after an ACC assessor, diagnostic radiology trainee Dr Alistair Farr, checked some of his medical file - although ACC had covered the shoulder injury at first, before surgery was considered.
Dr Farr said: "The most likely cause for the client's condition requiring surgery is a long-standing pre-existing outlet impingement syndrome with a probable contribution from age-related intrinsic tendon degeneration."
But Mr Bonsor's Dunedin orthopaedic surgeon, Howard Swan, said his patient had no history of activity-related shoulder pain before the injury.
"In the absence of any documented pre-existing shoulder problems requiring medical treatment, the mechanism and force of the injury and his immediate post-injury symptoms, which have persisted despite conservative treatment, are good clinical evidence that his current problems are wholly or substantially a direct result of his covered injury."
This was strong evidence of a causal link between the injury and the need for surgery to relieve the symptoms and repair the torn tendon, said Mr Swan.
Judge Beattie said the District Court had heard "a significant number" of appeal cases in which ACC's refusal to finance surgery was based, "essentially on the fact that the claimant's shoulder is displaying aspects of degeneration commensurate with age".
"The respondent [ACC] is very quick to seize on that identified state of affairs and use it as a reason for [declining cover], and I find that the present case is such an example of that."
He quashed ACC's decision and ordered it to pay for the surgery - and pay costs of $2500 plus disbursements.
ACC general manager claims management Denise Cosgrove said the corporation did not want to comment on the specific cases as they had gone through the legal system.
"However, to give context, with 1.7 million claims being handled a year and about 37,000 or more surgery requests a year then there will inevitably be some people who are turned down."
Ms Cosgrove said ACC had a review process for clients unhappy with a decision.
ALEC McNAB, 54
INJURY: Back
REJECTED: Degeneration
Alec McNab was left having to do his own physiotherapy on his back after ACC changed its mind halfway through his treatment for a work-related injury.
The 54-year-old Kerikeri bricklayer was building a wall in August when he felt a twinge in his back. He thought little of it until about half an hour later, when it happened again - this time causing him so much pain that he had to stop work.
His doctor gave him a medical certificate and painkillers and ACC signed off for six courses of physio on the injury. ACC also paid for two weeks' leave from work while he tried to recover.
However, the physio and doctor suggested more treatment was needed and after an x-ray was taken ACC decided the injury was actually degeneration and stopped paying.
Mr McNab has now been forced to complete the rest of the physio by himself at home and return to work, despite still suffering from pins and needles, because ACC will not pay for four weeks' worth of sick leave on his medical certificate.
He says things have been made even more complicated with ACC insisting he has two claims in, one for a work injury and one for degeneration, and they want him to cancel both.
"I have only ever had the one injury with the one claim."
He says the paperwork is confusing and he has been passed around several staff, the latest of whom is now on holiday, so the matter remains unresolved.
"I am thinking of not paying my ACC and getting a private health plan which will give me better cover, however this will probably land me in jail."
CHRISTINE MacKAY, 52
INJURY: Brain and neck injury
REJECTED: Degeneration and depression
School teacher Christine MacKay was told depression and degeneration was to blame for a painful brain injury and a neck condition that has left her unable to work a full day.
Two years ago Mrs MacKay was struck in the base of the skull by a bouncing ball while on school duty at Papakura High School. She thought nothing of it until a week later she was struck again in the head while watching her students play rugby.
The next day she was teaching guitar to a student when she became disoriented, tripped over some boxes and knocked her head.
Her vision was immediately affected, she could barely speak and could not remember the names of her students.
"I was in a terrible amount of pain but I didn't understand what was going on. It was a very confusing state to be in."
ACC sent the 52-year-old to a surgeon who determined her neck pain was the result of degeneration, despite having no previous neck problems before the accident.
She was then sent to a psychiatrist in December last year who determined she was suffering from depression, a "pre-existing condition", after what had been a difficult three years before the accident.
Mrs MacKay's son died in an accident in 2005, her niece was killed the year after and other relatives and friends also died in a short space of time.
"What sort of mother would I be if I didn't grieve the loss of my family?"
ACC then cut off compensation for loss of income which has left Mrs MacKay in "utter financial ruin".
"I'm teaching part-time but it's more than what I can handle,"
Mrs Mackay takes 26 pills a day to control her neck and head pain.
She finds it difficult to recall certain words, cannot concentrate for long periods of time and some days her lack of balance leaves her unable to walk.
ACC Claims Management general manager Denise Cosgrove said Mrs MacKay's "ongoing incapacity" was due to pre-existing conditions not related to the accident.
"The physical contusion injury she received at the time of the accident has been resolved. Her accident was accepted for cover and so far we've spent more than $65,000 on this claim."
"As with any client who is unhappy with a decision made by ACC, they have the right to review," Ms Cosgrove said. "In this case the review hearing was adjourned by the client's advocate earlier this year. The matter still lies with the advocate to advise ... of his availability so we can set a new date for the review."
- Katherine Irvine
SHEILA CUMMINGS, 63
INJURY: Snapped ankle tendon
REJECTED: Accident and pain not linked
ACC claims pharmacy manager Sheila Cummings' flat feet were to blame when she tripped on some stairs and snapped a tendon in her left ankle.
She injured herself while carrying a box of medicine earlier this year.
ACC claims Ms Cummings is suffering from degeneration caused by flat feet, even though she had no previous problems with her feet or ankles before the accident at the Waihi Unichem pharmacy where she works.
The 63-year-old was told ACC would not cover reconstructive surgery to correct the middle of her left foot that collapsed as a result of the accident because they could find no causal link between the accident and her injuries.
"There is nothing holding the foot up so the bones are all out of alignment," said Ms Cummings.
She can't understand how the ACC medical panel, who have not examined her, can decide her injury is not the result of the accident when reports from two orthopaedic surgeons say it is.
"I just don't know how they come to these decisions. It's almost like they think I'm well past my use-by date," said Ms Cummings.
The once avid-walker now has a swollen foot that makes walking or standing for long periods painful.
"I used to go for walks with the girls for an hour after work but now it's too much," said Ms Cummings.
She is due to have a review hearing with ACC but in the meantime she has also put herself on the public hospital waiting list as a back-up.
ACC General Manager Claims Denise Cosgrove said Ms Cummings had exercised her right to go to review in the new year.
"With all clients, we clearly explain that if they are not happy with a decision ACC has made they can choose to go to review.
"ACC pays for the review process and there is no cost to the client."
- Katherine Irvine
Has ACC rejected your claim? Email newsdesk@nzherald.co.nz
