Warren Forster has filed judicial review proceedings in the High Court, asking that ACC be required to follow its own policies (file image).
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An ACC lawyer and advocate is taking legal action against the corporation, arguing injured claimants are losing jobs and homes while waiting more than six months to have disputed decisions reviewed.
Warren Forster, a lawyer specialising in Accident Compensation Corporation (ACC) and founder of conciliation service ACC Advocacy, has filed judicial review proceedings in the High Court, asking that ACC be required to follow its own policies, and use alternative dispute resolution which can solve disputes more quickly – and at a lower cost than a full review.
Figures released to Forster and shared with RNZ show the average duration of a formal review was about 200 days – with people suffering through injuries and the financial consequences of being unable to work while they wait.
Homes and jobs lost while waiting for review
One of those waiting more than six months for a review was Andrew, who spoke with Kathryn Ryan on Nine to Noon.
“I had severe wrench of my left shoulder whilst drilling through a couple of plates of steel in an awkward situation at work. That resulted in myself being put off work because I couldn’t operate by left arm too well,” he said.
Andrew sought medical attention before Christmas and three separate injuries in his left shoulder were identified.
By March, he had had contact with doctors, surgeons, and physiotherapists, as well as an MRI scan to diagnose the injury.
But ACC told him over a phone call that it did not believe the three separate injuries were created by the one-off work incident, and declined to pay for surgery or provide ACC payments.
“I am going to be disputing this. I have an injury and I can’t work – and now [ACC are] saying to me I have to go to the unemployment department to seek income, because I still have a mortgage, I still have bills.”
Andrew sought help with ACC Advocacy, and continued to work with them.
He said he had been “fobbed off” by ACC – he now has a review date set for September, more than six months since he first requested help.
“I have had to put my mortgage payments down to the minimum I can pay whilst being on a benefit, and just the mental strains and stresses of life, paying bills. This is the longest time I’ve been off work.”
While he waits, he has been made redundant from his job – claiming that if he had been able to have surgery when he was first injured, he would still be employed.
“I should be back at work by now, I should be back paying tax. If things had all been granted back at the time when they declined, I would be back at work now.”
Since Andrew spoke with RNZ, he had been granted an earlier review for two of the three injuries, and ACC was now looking at whether he was entitled to surgery and compensation.
Another client of ACC Advocacy, a woman in her 50s who did not want to be named, told Nine to Noon she had lost her job and house while waiting for a review of her ACC claim, set down for October.
“I was injured 18 months ago when I tripped carrying a heavy load, when I was building a fence. One of the discs in my back ruptured, this hit my nerve and compressed it, causing pain in my back and down my leg,” she said.
She asked ACC to meet with her in March and was refused.
“I’ve lost everything. I’ve lost my job because of this. I’ve now lost my house, because I can’t afford my mortgage. It’s heartbreaking to think I won’t be able to buy a house again,” she said.
“If they had paid my compensation and surgery when I needed it, I would have been back at work months ago and still have my house.”
A system-wide problem affecting “thousands” of New Zealanders
Forster said there were thousands of people waiting for a review of declined ACC support.
He told Nine to Noon there were two options to resolve a disputed claim: either a formal review process, or entering into so-called ‘alternative dispute resolution’, or conciliation.
He said conciliation was a “consensus based process”, provided by an independent service set up five years ago, where the claimant and ACC meet and decide upon disputed issues and medical evidence.
ACC data shows that process of talking, meeting, and resolution takes 48 days from the time the dispute is lodged.
Forster said that by ACC’s own policy, the conciliation service should be the go-to, but that was not what was happening.
“It’s a real lottery on who at ACC gets your case, on whether they follow the policy or not,” he said.
Instead, complainants were drawn into a lengthy review process – with an average wait time of 200 days.
He said the review process had been a long-standing problem.
“The thing that’s staggering is that 10 years ago when we raised these issues and all the reforms started, it took between 80 and 90 days to get a review decision. What has happened now is it takes between 150 and 170 days on average to get to the first hearing for a review.”
A review hearing did not guarantee ACC support – if a review was granted, ACC goes back to the start of the claimants case to determine what support, if any, was needed.
He said resourcing for a conciliation process may be part of the problem, and a restructure that has meant ACC now has lengthy delays to gather its own medical evidence and have it assessed by its own medical assessors.
“The system’s just broken, and people like Andrew are just getting stuck in it,” Forster said.
The independent service providing the conciliation between ACC and a claimant was not having its contract renewed, he said.
“You’ve gotta wonder, if one process takes a few weeks, and it resolves 80 or 90 percent of cases, and the policy is to use that, and all of a sudden that is not renewed, what is going on?”
The judicial review has a two-day hearing set down for August.
ACC has declined to speak with RNZ or provide further comment while the legal proceedings take place, but said it would be able to provide further comment after the decision.