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ACC Futures Coalition – 26 proposals
August 2020
Proposals to repeal the previous National Government’s changes under the Act:


1. Holiday pay should not be abated against weekly compensation.
Schedule 1 cls 49 of the Act allows payments at the termination of employment to be
abated from the amount of weekly compensation that the claimant can receive under cls
51. Where an injury results in termination, the payment of holiday pay is abated from the
weekly compensation that the claimant is entitled to receive.
Holiday pay is a payment made to a claimant in respect of a period when that claimant was
not incapacitated and was working. Therefore, even though the actual payment may take
place at a point in time when the claimant is incapacitated, it was ‘earned’ at an earlier
point in time. Had the employee exhausted their leave entitlements prior to termination of
employment, they would not be penalised in this way.
ACC Futures recommends that an earner’s holiday pay is not abated from their weekly
compensation following incapacitation.


2. Removal of the requirement of 6 per cent threshold of hearing loss for cover.
The definition of ‘personal injury’ was amended to exclude any degree of hearing loss that is
less than 6 per cent of binaural hearing loss. A claimant must have suffered a personal injury
as defined in s 8 to receive cover. Those with hearing loss below 6 per cent are not covered
and therefore prevented from accessing any entitlements whatsoever. This definition is the
only exclusion which uses a percentage impairment to determine cover in the Act.
In 2009, Professor Peter Thorne submitted to the Transport and Industrial Relations Select
Committee that a 6 per cent threshold is not reached until there is a substantial loss of
hearing. This has a particularly marked effect on seniors as the 6 per cent does not include
any age-related hearing loss.
ACC Futures recommends the removal of the 6 per cent hearing loss threshold for personal
injury.


3. Remove the changes to the work-related gradual process which make it harder for
claimants to receive cover.

The 2010 changes to the Act make it more difficult for New Zealanders suffering from a
work-related gradual process injury to receive cover for their injury. For a claimant to
receive cover for a work-related gradual process injury, they must now satisfy the three-part
test under s 30, namely:
1. They performed an employment task, or were employed in an environment, that
contained a property or characteristic that caused, or contributed to the cause of,
their personal injury; and
2. That causative property/characteristic was not found to any material extent in
their non-work activities or environment; and
3. The risk of suffering their personal injury is significantly greater:
a. For people who perform the employment task, when compared with
people who do not; or
b. For people who are employed in that type of environment, when
compared with people who are not.
The three-part test is too stringent a test in establishing a work-related gradual process
injury.
The second and third parts of the test operate as artificial barriers to cover. These barriers
can result in a claimant who has proved that their injury was caused by workplace exposure
being denied cover. If workplace causation can be proven to the requisite standard, there is
no principled reason to rule out cover on the basis that the claimant was not at a
significantly greater risk due to their task or employment, or that the causative workplace
property/characteristic existed in the claimant’s non-work environment.
This negatively affects claimants. For example, Claimant A was a police officer who
developed fairly localised lumbar facet arthrosis due to the weight of his body armour. The
specialist evidence stated there was a significant contribution from wearing the vest to
developing the condition, but this depended also on his naturally increased lumbar lordosis,
which predisposed him to developing that condition. As it was not a true increased risk
across all those undertaking that employment task given the predisposition, the claimant
did not get cover. Clearly, this is not a just outcome for the officer.
ACC Futures recommends the repeal of ss 30(3)(b)-(c).


4. Re-establish the Ministerial Advisory Panel on Work-Related Gradual Process,
Disease or Infection to progressively increase occupational diseases under Schedule
2.
The previous Government dis-established the Ministerial Advisory Panel on Work-Related
Gradual Process, Disease or Infection. If it still existed, better policy would likely have been
developed to protect workers. Work done by the panel remains a relevant and important
part of the evolving law regarding cover and entitlements for occupational disease. In 2007,
the Panel recommended additions to Schedule 2 of the Act, there is a need for further
diseases to be added to the Schedule. Schedule 2 diseases are provided with a faster
process for New Zealanders suffering from occupational diseases to receive cover.
The Panel’s specialist knowledge is important to shaping policy to prevent exposure and
long term consequences.
This could be done with a small specialist panel.
ACC Futures recommends the re-establishment of the Ministerial Advisory Panel on WorkRelated Gradual Process, Disease or Infection.


5. Reverse the change in weekly compensation calculations for ‘non-permanent’
employees.
Seasonal workers are disproportionately affected by the compensation calculation for
weekly compensation. The long term weekly compensation rate for non-permanent
employees is calculated differently for those in permanent employment, to the
disadvantage of non-permanent employees.
ACC Futures recommends a reversion to the pre-2010 position for cl 36 schedule 1.


6. Reverse the disentitlement in cases of self-inflicted injuries or suicide.
Amendments to the Act in 2010 disentitle a certain class of claimants where injuries are selfinflicted or are caused by suicide.
Section 119 means claimants will not receive entitlement (except for treatment costs) in
cases where the self-inflicted injury or suicide is unrelated to a covered injury. This is meanspirited. It shows legislative contempt to those suffering mental illness.
Further, it is an affront to the underpinning Woodhouse principle of removing fault from
personal injury claims.
It leaves ACC with no power at all to provide for the dependents of claimants who are
disentitled, no matter how genuine and deserving the needs of those dependants are.
This change was made alongside disentitlement of those who are injured in the commission
of a crime. These two groups of people have different considerations when considering
legislative reform.
The compassionate response would return entitlement for self-inflicted injuries or suicide.
ACC Futures recommends the repeal of s 119.

 

7. Safeguards against referral to vocational independence testing ought to be effective.
Vocational independence testing should not be used as a weapon, only referred
when likely to be made vocationally independent.
Prior to making a claimant undertake a vocational independence assessment, s 110(3)
requires ACC to assess that the claimant is likely to achieve vocational independence and
that they have completed any vocational rehabilitation required. The Supreme Court has
said that the legislative history of s 110(3) suggests its purpose is to protect claimants from
unnecessary assessment; as such assessments are intrusive and may be upsetting.
The Court of Appeal in Splite v ACC found that an assessment under s 110(3) was not a
decision, and therefore the statutory disputes process does not apply; a challenge to the
ACC’s assessment against criteria in the s 110(3) safeguard, cannot be mounted until the
intrusive and upsetting assessment takes place.
ACC Futures recommends the s 110 (3) assessment is added to the definition of decision
under s 6.
ACC Futures also presses the Government to repeal the decrease from 35 to 30 working
hours per week as the test for vocational independence.


8. Evolving diagnosis
Cover can be incorrectly described due to changes in diagnosis following further investigations. The
classic example is a claimant being covered for a ubiquitous sprain/strain injury when it is clear that
the injury is, in fact, something else, such as a ligament tear, prolapsed disc etc. In short, the cover
upgrade process is not understood by most GPs and other treatment providers, and it is not clear
whose job it is to effect the change in diagnosis. ARTPs submitted by specialists serve as de facto
upgrade applications.
ACC Futures propose that the law be changed so that there is a positive onus on ACC to
follow through with the results of investigations and revise the cover status of its own
volition. The provision for amendment is s 50.
Proposals which are readily achievable:


9. Removal of the requirement for earner status at the time of injury and at the time of
incapacity to be eligible for weekly compensation.

ACC v Vandy held that entitlement to weekly compensation relies on the claimant being an
earner at the time of their injury and at the time of their incapacitation. A claimant could be
injured at a point where they are not earning, however, symptoms could later cause
incapacity when they are earning.
The unfairness is highlighted by the facts of Vandy. Ms Vandy fell from a horse she was
riding when she was 12. Much later, when in employment, Ms Vandy was incapacitated
from the injury. She was not entitled to weekly compensation as she was not earning at the
point of incapacity.
Justice Gendall held that the statute is clear, despite understandable notions of what might
be ‘fair’ in an individual case; Justice Gendall held the remedy has to be provided by
Parliament. This particular aspect of the Act is clearly not working as intended.
ACC Futures recommends that the requirement to be an earner at both points be removed.


10. Review Decisions should be enforceable.
ACC review decisions are not enforceable. Claimants can wait months for weekly
compensation to be reinstated following a review decision. ACC reviews can involve large
sums of money, with the ability for positive impact on the lives of New Zealanders. These
should be able to be enforced in the Courts where necessary.
ACC Futures recommends that an enforcement provision is legislated.


11. There should be legislative requirements for timeliness of entitlement decisions.
There is no requirement in the Act for ACC to make primary entitlement decisions in a
timely manner. This can result in stalling on behalf of ACC, with little power for the claimant
to compel ACC to make a decision.
There are statutory requirements for timeliness of decisions in regards to decisions on
cover, and review decisions under ss 54, 56 and 57. It is not clear why there are no such
requirements for entitlement.
In 2013, ACC granted Claimant B cover for sepsis resulting in hysterectomy. In December
2015, a formal application for weekly compensation was made. When a decision still had
not been produced by the following November, Claimant B filed for review. In June 2017,
one week before this review was due to take place, and one and a half years after the
application for weekly compensation was made, ACC issued an entitlement decision
agreeing to pay backdated weekly compensation.
The Accident Insurance Act 1998, ss 56-57 provided statutory requirements for a decision
on a claim to be made ‘as soon as practicable, and no later than 21 days', or for an extension to be requested and accepted by the insured person. Under the 1998 Act, this applied to
both cover and entitlement.
Requirements for a timely decision are a better mechanism than a review of a delay to
protect claimants and should be adopted.
ACC Futures recommends that a statutory requirement for timeliness for entitlement is
legislated.


12. The Diagnostic and Statistical Manual of Mental Disorders (DSM) IV in ACC
regulations needs updating.
There has been a serious lag in updating the relevant DSM in regulations. DSM IV, first
published in 1994, is still the bench mark for ACC assessors as the ACC regulations refer to
the AMA Guide 4th Edition (which contains DSM IV), despite an updated fifth edition being
published in 2013.
The regulations require assessors to use the AMA Guide 4th Edition. If a claimant has an
injury described by the updated edition in DSM V, this would fall outside the regulations and
the ACC User Guide for impairment assessors.
An example of where this lack of regulatory update negatively affects claimants is those
suffering from Chronic Pain Syndrome. DSM V updates DSM IV based on developing science.
Chronic Pain can now be classified as a Somatic Symptom Disorder; this classification would
not be able to be assessed due to the limited ability to use DSM IV.
A further example is that the AMA Editions carry a bias that disadvantages females with
sexual dysfunction arising from a covered injury. There is no impairment rating for these
impairments.
ACC Futures recommends that the most recent AMA Guide which includes DSM V is included
in updated regulations.


13. Attribution of hearing loss to idiopathic (unknown) cause by ENTs should require
robust reasoning.
Section 323 of the Act allows the Governor-General on the advice of the Minister by order in
council to make regulations to create tests to determine the proportion of Noise-Induced
Hearing Loss that is work-related.
In many instances, ENTs are apportioning a considerable percentage of the hearing loss to
unknown causes, without providing any robust reasoning, or undertaking any tests to
further investigate the cause of the loss.

The regulations need to be amended to ensure that any attribution to an unknown cause is
accompanied by robust reasoning, is rare, and accompanied by an investigation and testing
where relevant.
ACC’s ENT assessors frequently fail to make enquiries into other work-related causes such as
ototoxic exposures.
ACC Futures recommends that the regulations require ENTs to fully investigate and report on
all causes of hearing loss.


14. There should be an increase of the costs at review.
Many of ACC’s decisions are wrong and unfair, yet decisions go unchallenged because of the
high cost of medical and legal fees.
MBIE previously told the Education and Workforce Select Committee that a discussion paper
would be out by September 2018.
Accident Compensation (Review Costs and Appeals) Regulations 2002, sch 1 sets out the
scale of costs that can be awarded against ACC. This was uplifted to meet inflation in 2017.
The maximum cost for a registered specialist report is $1,090.84.
The Dean Report found the maximum costs awards for medical specialists and nonspecialists reports failed to meet the actual report costs. She found a range of costs was
given, between $500 and $2000. The Dean Report recommended that these costs be
substantially uplifted. The shortfall of costs effectiveley locks out many people from going to
review to ensure that they receive cover or entitlement for their injury.
At appeal, if the claimant is successful, the High Court Rules apply, which are considerably
more generous than the current review costs regulations.
ACC Futures recommends that the Dean Report recommendation is followed and there is a
substantial uplift in costs at review.


15. Lump sum assessment for those suffering fatal injury
In cases where death is inevitable (such as with mesothelioma) and the cause is known
(asbestos exposure) a lump sum ought to be awarded to the estate without the need for an
assessment while the person was alive. In addition, there should be no time limit on making
the claim for lump sum in these cases.
ACC Futures recommends that lump sum should be available for those suffering fatal
injuries.

16. Amendments to the accredited employer scheme
The accredited employer scheme allows an employer to act in the place of ACC. The
tripartite monitoring of the accredited employer scheme is ineffective, and abuses of the
scheme have been identified by unions; abuses such as the sharing of information between
those managing the injury and the employer’s industrial relations personnel. This blurring of
the lines and dubious information exchange has led to adverse decisions being made against
the injured worker. Had ACC been administering the claim, the distinct roles between the
employer and ACC would be intact, resulting in fairer outcomes for the claimant.
ACC Futures recommends amending the accredited employer scheme to provide for tripartite
monitoring and role clarification between those administering the claim and those who can
make employment-related decisions.


17. Cover for cancers linked to the workplace
We now have a vast array of research showing strong correlations between specific types of
cancers in particular workplaces. The Act should provide financial support to those who
have been exposed to carcinogens through their work and develop cancer.
In particular, international research has found firefighters have a 102% the risk of
developing testicular cancer compared to the rest of the population, and significantly
greater risks for a number of other cancers. A law change is strongly supported by the New
Zealand Professional Firefighters Union to presume cancers are occupational cancers where
there is credible scientific research supporting the link between the cancer and the
occupation.
ACC Futures recommends amending the Act to ensure cover for cancers which are credibly
linked to the occupation.


Proposals with broader scheme implications:


18. Change the way backdated compensation is taxed. Currently, backdated weekly
compensation is paid as a lump sum and attributed to a single tax year.
It is unfair that an injured person’s payment of arrears is regarded as being received in the
year in which it is paid out. As a consequence, claimants pay tax at a higher rate. It would be fairer if the arrears of compensation is spread over the years of entitlement and taxed
accordingly.
ACC Futures recommends that payment of arrears is taxed at the rate that it would have
been originally taxed had it been paid out over the years of entitlement.


19. Removal of the bar on access to Weekly Compensation and New Zealand
Superannuation for people over 67 who are working when injured.
The current law has a discriminatory effect on superannuates’ ability to receive Weekly
Compensation.
The Accident Compensation Amendment Act limits a person who is first entitled to weekly
compensation in the 24 months prior to reaching New Zealand Superannuation Qualification
Age, or thereafter, to receive only 24 months of weekly compensation.
Superannuates continue to pay ACC levies while they work.
The 24 month limit can have serious financial implications on senior citizens who would
have expected to continue working past 65, but are injured.
The 24 month limit is arbitrary, as it does not take into account personal circumstances. It
impairs the right to be free from discrimination to a greater degree than necessary as
legislative tools are already provided for in the Act. ACC can suspend entitlement to a
claimant if their injury is caused wholly or substantially by the ageing process; or, ACC is able
to determine if an injury is no longer causing incapacity for employment, or if a claimant can
engage in other work.
An injured person over 65 should be entitled to both weekly compensation and
superannuation for as long as they cannot work due to the injury where otherwise they
would have been working. The Act should be amended so that injured superannuates who
are in receipt of weekly compensation are not cut off weekly compensation when the 24
months expire.
ACC Futures recommends this 24 month limit should be removed.


20. Removal of the bar on appeals to the Supreme Court.
New Zealanders cannot appeal ACC cases to the Supreme Court. Section 163(4) of the Act
limits appeals of decisions made by ACC to the Court of Appeal. It seems a hangover from
when appeals were to the Privy Council. ACC Law is complex. The Supreme Court should be able to clarify important pieces of law in
New Zealand’s unique ACC jurisdiction. It seems illogical to not allow the best judges in New
Zealand to make these decisions.
As s 74 of the Senior Courts Act limits the Supreme Court’s ability to take appeals and
prevents unnecessary appeals; an internal bar in the Act on appeals to the Supreme Court is
both unnecessary and unfair.
ACC Futures recommends ss 163(4) is repealed.


21. ACC should contribute to KiwiSaver when workers are receiving weekly
compensation.
KiwiSaver employer contributions are not considered to be lost earnings in the calculation of
weekly compensation. The loss of KiwiSaver employer contributions leaves a claimant in a
worse position at the point of retirement. A claimant could miss out on a significant amount
of earnings over an extended period. This goes against the principle of comprehensive
entitlement.
The Act should be amended to also account for the loss of employer contributions.
ACC Futures recommends that ACC contributes to claimants’ KiwiSaver.


22. Consider the potential of an expanded ACC scheme.
Removing discrimination based on cause, as was recommended in the OECD report into
Mental Health and Work, would mean that children born with a disability will not
automatically suffer a lifetime of disadvantage, and people disabled by illness would have
access to the same level of treatment and rehabilitation as those who are injured.


23. The board should have representation of key stakeholders, including Māori, Pasifika,
claimants, workers, and disabled persons.
Those who are most affected by the board’s decisions should be given representation on
the board to make important decisions about the scheme.


24. Cover for mental injury suffered through non-work related traumatic events

The handling of victims and families of the March 2019 mosque attacks exemplifies the
disparity of treatment between mental harm sufferers under the Act.
The ACC scheme currently extends to mental injury in three circumstances. Firstly, where
the mental injury arises as a result of physical injuries suffered by that person. Secondly,
where the mental injury arises out of criminal conduct of a sexual nature. Lastly, if mental
injury arises out of a workplace incident.
ACC should cover mental injury from traumatic events whether they occur at work or nonwork places. It is arbitrary for anyone who was working for pay at the mosque to obtain
cover for mental injury without physical injury, but not the worshipers. Worshippers were
only eligible for cover if they had suffered a physical injury in the attacks. The MSD financial
support package provided to victims and families was a poor substitute for ACC
compensation.
If the Government wishes to take a more limited approach to compensating victims of a
traumatic event, it could allow cover but restrict entitlements to treatment only.
ACC Futures recommends expanding the Act to provide cover for non-work related traumatic
events resulting in mental injury.


25. Cover for non-work asbestos disease
In the recent High Court case of Estate of Trevarthen v ACC (2019), Justice Mallon found Ms
Trevarthen’s death due to mesothelioma was a physical injury caused by an accident as per
20(2)(g). Ms Trevarthen had physical contact with her electrician father and was exposed to
asbestos fibres from his clothing.
ACC have said they will appeal this decision to the Court of Appeal.
ACC Futures recommends amending the Act to specifically provide cover for asbestos disease
arising from non-work related exposure.


26. Improvements to vocational rehabilitation
Section 87(2) of the Act states vocational rehabilitation should be aimed at restoring the
person to the maximum extent practicable. The Act states the duration of vocational
rehabilitation should be confined to “three years” unless the exemptions under s 87(2B)
apply. We know that seriously injured earners who return to work receive reduced levels of
earnings compared to their pre-injury status. This is for two reasons – firstly, injured people
often work reduced hours and secondly, they sometimes have to change occupations.
ACC Futures would like to see vocational education following an injury to be part of the
Guardians Ministerial Advisory Group’s ‘education conversation’.
ACC Futures recommends improving vocational rehabilitation.

 

 
 
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