One of the fascinating aspects of practising law in a relatively small centre such as Lower Hutt is that it doesn’t take long before the economic ramifications of any governmental or administrative policy decisions or changes become known to you through the increased number of clients sitting in your waiting room. From my perspective this certainly appears the case with what seems to be an unannounced but very definite push to get as many people off earnings related and other compensation under the Accident Insurance Act.

Of course to get people off Accident Insurance benefits, particularly earnings related compensation, and back into full employment is an entirely laudable objective.

It is good for people to have the feeling of happiness and satisfaction that comes from being able to earn a wage and perform a useful job. Taxpayers can also rejoice as the burden upon their shoulders is lessened.

The difficulty arises from how these laudable objectives are in fact implemented.

In order to assist those administering the Act the latest version of the legislation provides that those receiving a benefit must agree to submit themselves to any medical assessments that may be required, and any occupational health assessments also. Nothing wrong with that either. Legislature now further provides that a beneficiary (called an “insured”) must participate in rehabilitation. It seems fair enough. However if an insured does not agree to comply with what is known as “an individual rehabilitation plan” then they can have all their entitlements suspended.

What appears to be happening is that ACC or various contract service providers with ACC now prepare rehabilitation plans which in almost every instance provide that the goal is to return the insured back to work. In many cases that is simply not feasible.

The insured is first sent off to medical assessors and occupational health assessors to see whether they are capable of performing any sort of work. It is argued by the more cynical observer that those assessors who take a more rigorous approach, and are, shall we say, more optimistic as to whether or not an insured could possibly work, tend to get more referrals.

Furthermore the test is whether you are capable of working. So if you are over the age of 50, have a deformed spine, racked with pain and often unable to get out of your bed for days on end, but nevertheless could possibly discharge under certain circumstances some form of work which you have possibly some experience in or could be trained in, then you can be found “capable of work”. The sad fact that any employer is going to run a mile before employing you doesn’t come into the equation.

Your case manager then, armed with this optimistic report, puts as the prime objective of your individual rehabilitation plan that you will be back in the workforce within a certain period of time. If you don’t agree to this then you lay yourself open for being summarily cut off from all entitlements under the Accident Insurance Act.

What can you do if you feel you are being treated unfairly by this process? The first thing to do is to get legal advice earlier rather than later. You can and should challenge any occupational health or medical assessments that you believe are unrealistic or rosily over optimistic. You can seek to get a further or another opinion and in the world of medicine there are different schools of thought on such things as chronic pain syndrome, occupational overuse syndrome and the like. You can put your views forward as to what is a realistic rehabilitation plan, and if rehabilitation to the workforce is not possible you are entitled to say so.

If despite this input it is the decision of ACC that they are going to suspend your entitlements then in that instance you can apply for the decision to be reviewed. Do not believe the information supplied by ACC advising that this is a simple low cost forum where people can represent themselves with (inferentially) success. If you don’t know the relevant criteria and the law including important precedent cases, you are doomed to failure. The review process is now undertaken by officers appointed by a quango called Disputes Resolution Services. In my opinion the quality of the decisions delivered is not always uniform and many lawyers regard this review process as a stepping stone to a hearing in the District Court or beyond.

All of this is of course expensive in terms of legal fees. It is worth it if the insured stands to lose their earnings related compensation. If they do not receive earnings related compensation, simply have their medical costs covered, then sadly getting the best representation may be, economically, out of reach.

Lest I get backlash from my good friends who work for ACC I need to say that there are a great many people working for ACC, case managers and the like, who try hard to do the best for their clients while still administering the Act and following the policies set out thereunder.