What steps do I need to take to protect myself from the Corporation?

Keep an eye on your information as it is gathered and make sure that all relevant information goes to the people who need to see it. If you are being assessed ask ACC to provide a list of the documents being sent to the assessor. Be prepared to obtain your own medical evidence. Always take the time to consider anything the Corporation demands. 

Can I get my own medical opinions?

Yes you can. The ACC has tried to convince ACC accredited specialists that they should not be seeing ACC clients unless referred to from ACC. The Corporation is forever putting on its most officious and deepest tone, carefully underpinned with a strong undercurrent of unspecified doom to convince people it has legal standing where it has none. This includes but is not limited to Claimants and Practitioners.

To get around this behaviour by the Corporation we simply turn to a higher power. Yes despite what the Corporation would have you believe there are higher authorities who make the Corporation do what the Corporation does not want to do. In this instance the higher power is the New Zealand High Court. Court rulings can be used as case law. The higher the court that makes the ruling the stronger the ruling is in law.

The case you can rely on to enforce your right to obtain your own medical opinions is found in Martin v ACC CIV 2008-485-2617.

Judge Ronald Young states in paragraph [34]

Given the clauses 27 and 28 ([11], [12]), it could reasonably be expected that in most cases the medical assessor will be well qualified to express the opinions and that the report will be comprehensive. But there is no reason why, as a matter of logic, the appellant cannot have equally well qualified medical practitioners give equally comprehensive reports.”

I would like to take a moment here to pay a small tribute to the tenacity and strength of Kaye Martin. Ms Martin fought this legal battle over many years and in doing so won an incredibly important legal battle for ACC Claimants. A win in the High Court is a very big deal.

What is the best way to go about obtaining my own medical opinions?

The first step is to provide a copy of the Martin decision to your GP. Any specialists that you are sent to should be provided with a copy of the Martin decision. Get your GP to refer you to a specialist that you and your GP decide on. The GP will provide a brief cover letter with the referral. The cover letter should go with the Martin decision. The Martin decision should have its own cover letter pointing out paragraph 34. The referral letter should ask all the relevant questions. The specialist must fit the criteria of Section 93 of the Act and therefore must be ACC accredited. It is very helpful to have your advocate provide a letter to your GP or to the specialist you intend to see, that details the necessary questions to be answered. 

Would an ACC accredited Assessor simply side with ACC?

No the fact they are ACC accredited is not the issue. There is a strong sense of professionalism and ethics in the psychiatric profession. The threat to claimants is found in a small group of select Psychiatrists who are dominating the assessor pool at this stage. ACCSCHELP is currently trying to get ACC to change its policies to alleviate this threat.Talks on this matter are ongoing but progress is being made.  The important thing to remember is this. If you are seeing a Psychiatrist privately through referral through your GP then you are the client of the Psychiatrist. If you are referred by ACC to a Psychiatrist then ACC is the client and your inherent clinical rights are less certain.

What if the Psychiatrist won’t see me in spite of the Martin decision and the GP referral?

If this happens then you probably don’t want to be dealing with that Psychiatrist anyway. Find another one.

How much will it cost?

The going rate seems to be around $300 for the first session and $150 a session after that with a Psychiatrist. That generally includes the report. I have seen higher charges in some cases but remember the information you require is vital to your claim and will be worth the cost. 

I don’t want to pay shouldn’t I make ACC do it?

ACC doesn’t necessarily have to pay for reports you obtain privately. It is possible to win costs at reviews for medical assessments privately obtained but this depends on circumstances. When the ACC pays for the assessment then the ACC has the opportunity to conduct itself in a manner not befitting of the clinical process.

Where does my main protection lay?

Your main protection is the sanctity of the clinical process. It is important that specialists and the courts do not see a suggestion that you as the claimant are driving the process. That is why it is essential that you do everything in strict accordance with your GP. The Martin decision should be enough to demonstrate to any Psychiatrist that privately obtained assessments are perfectly acceptable. The ACC cannot be seen to be interfering with the clinical process. The ACC will try and drag the claimant firmly into the insurance process where ACC calls all the shots.

But if I don’t follow the ACC process wont that mean my claim will be declined?

It is certain that ACC will try and decline your claim anyway. This is especially true if you are claiming weekly compensation. What you need to follow is the legislation. The purpose of your exercise is to obtain the required and correct information that will allow a reviewer or a judge to make a decision based on the merits of your case. At an appeal level the following legislation applies. Observe how 145 (1)(b) requires the reviewer to put aside the ACC policies and procedures.

145       Review decisions: substance

  • (1) In making a decision on the review, the reviewer must—
    • (a) put aside the Corporation's decision and look at the matter afresh on the basis of the information provided at the review; and
    • (b) put aside the policy and procedure followed by the Corporation and decide the matter only on the basis of its substantive merits under this Act.

To follow ACC policy and procedures beyond the requirements of the legislation is an open invitation to being abused by the Corporation. To protect your interests your focus should be on winning at review where the Corporation will be made to comply with its requirements. Those requirements will be determined by the medical evidence provided to the Reviewer as opposed to the processes of the Corporation.

What are the requirements my privately obtained medical reports need to meet?

The report needs to be based on an assessment that covers the questions raised by the Accident Compensation Act. The assessment needs to be done by an appropriately qualified assessor. The requirements determining who can conduct such an assessment are covered by Section 93 of the Accident Compensation Act. In the case of Sensitive Claimants an ACC accredited Psychiatrist is the person to go and see. An ACC accredited Psychiatrist will be suitably qualified not only in their field but they will be qualified to make determinations in regards to occupational medicine. Some Psychiatrists may not be qualified in occupational medicine and they will not be ACC accredited.

Your GP needs to make a referral and provide the Psychiatrist with the relevant questions. It is important that you don’t just arrive to see a Psychiatrist without the input of your GP. The Psychiatrist may refuse to assess you or if they do the assessment may not be complete or contain a flaw that will let you down at Review. For example, if the Psychiatrist does not have all your previous medical reports, then the report that is provided by the Psychiatrist can be rendered useless.

I will be providing a specific section providing information on the required questions as this is an important subject.

Can my Treating Specialists tell ACC to stop hurting me?

No they cannot. If a specialist or clinician starts to raise arguments with ACC on your behalf then they will be considered as advocating for the claimant. This has a telling effect. Their clinical findings will be negated and it is the specialists’ clinical findings that are far more important to you. Specialists did not study for years to end up brawling with the Corporation. Advocacy damages the purity of the clinical process and the courts will not tolerate a breakdown of the clinical process that is caused by the Corporation or the claimant.

The best people to protect your rights under the ACC process (such as they are) are Lawyers or Advocates. A GP can step in if ACC is conducting itself in a manner that is detrimental to the clinical process but a GP cannot make the Corporation reach a certain decision. The only people who can literally make the ACC do anything are Reviewers and Judges. Do not ask any treatment providers to step in on your behalf. They will not be able to achieve what you want and in the event the clinical process is damaged you will be the loser.

Can you tell me who to see to obtain medical reports?

No I am sorry I cannot. Assessors and Specialists are generally very sensitive to the idea that the clinical process could be misused and manipulated. To name an individual assessor would not be a good idea for anyone.