The firm of John Miller Law has been kind enough to provide us with the following explainer about the accident compensation scheme and how it can impact on the treatment journey for prostate cancer patients in Aotearoa New Zealand.
Introduction
Although prostate cancer is not in and of itself an ‘injury’ which ACC covers, complications as a result of treatment for prostate cancer may be covered by the ACC. It is often worthwhile making a claim for treatment injury where complications occur. Your doctor or other health provider can lodge a claim on your behalf. If your claim is declined by ACC, there are avenues through which you can challenge ACC’s decision. You can lodge a review of the ACC’s decision, which will make the ACC have another look at the decision. The ACC will try come to a resolution with you following an application for review. If, however, a resolution can not be reached an independent reviewer can review the decision and decide to either uphold or overturn the ACC’s decision. You can obtain an expert report for the review and can claim up to $`1090 from the reviewer for the report.
General Overview of the ACC
What is the Accident Compensation Corporation (ACC)?
The ACC is a no-fault scheme which covers everyone in New Zealand if you are injured in an accident. It does not matter who you are, what you were doing or who was at fault when you were injured. The ACC also covers injuries caused by treatment.
What they do
The cover ACC provides helps pay costs to get you back on your feet. It includes payment towards medical bills, treatment, help at home and work, and help with your income. Where an injury is permanent you may also qualify for, depending on the date of accident suffered, either a lump sum or periodic payments called an “Independence Allowance”.
What they do and don’t cover
The ACC covers injuries caused by an accident, workplace diseases or treatment injuries. It does not generally cover cover things like illnesses, sickness or conditions from ageing and emotional issues. Prostate cancer is not caused by an “accident” and therefore is not in and of itself an injury that ACC covers. However, if the cancer be shown to be work related or is made worse by treatment then there may be ACC cover.
Treatment Injury
The ACC can cover a treatment injury if:
- The treatment directly caused your injury;
- A registered health professional was treating you;
- It is not a normal side-effect of your treatment.
For the purposes of defining whether a treatment injury has occurred, treatment includes:
- Giving of treatment;
- A diagnosis of a person’s medical condition;
- A decision on the treatment to be provided (including a decision not to provide treatment);
- A failure to provide treatment, or to provide treatment in a timely manner;
- Obtaining, or failing to obtain, a person’s consent to undergo treatment, including information provided to the person to enable the person to make an informed decision on whether to accept treatment;
- The failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis (except where failure is caused by an intervening act or by fair wear and tear), whether at the time of giving treatment or subsequently;
- The application of any support systems, including policies, processes, practices, and administrative systems, that are used by the organisation or person providing treatment; and directly support the treatment.
Causal link
There must be a causal link between the injury and the treatment received. However, the treatment does not have to be the sole cause (it can be multifactorial) but should at least be more than marginal contributing cause of the injury condition.
Treatment injury can include situations where delays in treatment or treatment decisions caused a greater or more invasive injury.
Under the ACC legislation we are not looking to attribute blame as ACC is a “no fault” scheme. This means there is no need to show negligence on the part of the registered health professional. The question is simply whether the treatment caused injury.
Not necessary part or ordinary consequence
Where the mechanism of injury is simply a link to treatment properly given, cover can be excluded if the injury was a necessary part or ordinary consequence of the treatment.
“Necessary” involves the necessary parts of the treatment. So, for example you would not be covered for the surgical incision itself required to undertake a surgery, unless it caused some further unintended damage.
Not “ordinary consequence” has been defined as “an outcome that is outside of the normal range of outcomes, something out of the ordinary which occasions as measure of surprise”. What is not an “ordinary consequence” will depend on the particular circumstances and will need to be determined on a case-by-case basis.
Thus incontinence and impotence may or may not be covered, though it is always worth making a claim.
A mental injury suffered through treatment may be covered, so any depression from incontinence and impotence should be claimed.
Pathway to cover
As every injury and situation is different, it may not always be clear if ACC will cover your injury. Although your doctor or other health provider will usually tell you if ACC are likely to cover your injury, if you have had any complications because of your treatment, you should make a claim regardless.
How to make a claim
Your doctor or other health provider can make a claim on your behalf, you can not make a claim directly. ACC will require a diagnosis from your doctor or health provider before ACC can confirm if they cover your injury.
What happens next
ACC will then investigate whether your injury is one which they can cover. The process will often take a few months. ACC will then issue as decision either approving or declining your claim.
Claim approved
If your claim is approved, your injury will be covered, and the ACC will contribute to the costs of rehabilitation and help with your income if your injury requires you to take time off work. There is also the availability of a lump sum or independence allowance depending on the injury.
Claim declined – review
If your claim is declined you will receive a letter informing you, and the reason(s) why it was declined. For treatment injury claims, it will also often include an opinion of another registered health provider on which the ACC’s decision will be based on.
What is a review?
If you disagree with the ACC’s decision, you can have the decision independently reviewed. If you lodge a review, ACC will take another look at the decision made. This can sometimes result in ACC revising their decision, or they will stick to the decision already made.
An ACC Review Specialist will work with you to resolve the issues you raised as quickly as possible. The Review Specialist may try reach a resolution with you directly through mediation, settlement, or other resolutions. If however ACC are not able to resolve the issues you have raised, an independent reviewer or conciliator can be involved, who can help resolve the issues you have raised, or decide whether to uphold or overturn ACC’s decision.
How to apply for a review
You can apply for a review of a decision either by filling and sending in the review application form, ACC33 Review Application, available on the ACC’s website or by writing ACC a letter. If you are sending a letter, include:
- Your name, address and contact number;
- The claim number;
- The date of the decision ACC made that you would like reviewed;
- Why you want a review, and what you would like to happen as a result of the review;
- Whether you would like any cultural support or have accessibility needs;
- Any supporting documents or evidence to support your view.
You can either email ACC or post the review application or letter.
Email: accreviewapplication@acc.co.nz
Address: ACC Resolution Services, PO Box 892, Waikato Mail Centre, Hamilton 3240
An application for review must be made within three months of the date of the decision letter. An application made outside of the three-month deadline may be accepted, subject to approval, if there were extenuating circumstances which prevented you from making an application within the deadline. You must include the reasons why you weren’t able to submit it in time if you are sending a review outside the time.
The review process
If you are unable to agree on a resolution early in the process, the reviewer will arrange a review hearing at a time that suits everyone. At a review hearing, an independent reviewer will consider all the information available to them, including information about your case, ACC Legislation, and written submissions from both you and ACC.
After the review hearing, the reviewer will make a decision either in your favour, or in ACC’s favour. The reviewers decision is final, and you will be sent a copy of their decision within 28 days of the hearing. If you do not agree with the reviewer’s decision, you have the option to appeal it to the District Court, however costs may apply.
Who pays for a review?
ACC pays for the costs of an independent review. They may also pay other costs related to the review, for example reimbursing the costs for you to get your review hearing or the cost of an expert report.
Getting advice from a third party
John Miller Law are ACC experts and can assist with an ACC review. Visit www.jmlaw.co.nz
Legal aid may be available to meet legal costs depending on your financial position. The Prostate Cancer Foundation NZ may also be able to assist in certain circumstances. Contact the Chief Executive in the first instance by email ceo@prostate.org.nz
There are also community services who can give free and confidential advice:
Way Finders
Email: info@wayfinders.org.nz
Phone: 0800 273 030
Whanau Ora Commissioning Agency (WOCA)
Email: info@whanauora.nz
Phone: 0800 929 282
Workplace Injury Advocacy Service (WIAS)
Email: advocacy@nzctu.org.nz
Phone: 0800 486 466
Southern Cross
Offers all members a no-cost advocacy service to review ACC decisions regarding claims related to either a personal injury caused by accident, treatment injury or a work-related gradual process.
Find out more at southerncross.co.nz/society/for-members/making-a-claim/how-we-work-with-acc