ACC treatment injury claims: 139,000 in a decade, 35 per cent declined

Emma Gillard is still plagued with pain two years after complications following keyhole surgery to remove an ovarian cyst.

The 48-year-old says she was injured as a result of the procedure – something ACC initially agreed with, and paid her cover for what turned out to be internal bleeding caused by the surgery.

However, the payments didn’t last long. She’s been battling ACC ever since, to eventually arrive at a decision that allows Gillard cover for a mental health injury linked to the surgery aftermath.

Gillard’s is just one of almost 139,000 claims made by people who believe their injuries have been caused by medical treatments over the past decade.

ACC and doctors are quick to point out this isn’t a reflection of the quality of care by health professionals.

The New Zealand Medical Association says, if anything, it’s an indication of the complexity of issues doctors face.

NZMA chairperson Dr Alistair Humphrey told Open Justice the number is not an accurate reflection of care provided, and ACC appears to have included in its calculation “perfectly normal reactions to common pharmaceuticals or other treatment”.

But, for the people like Gillard who say they were injured, the impacts on their lives can be debilitating – both emotionally and physically, especially when their claim is declined.

Gillard’s claim for treatment injury in the 2020/21 year was one of more than 17,000. It was also among the 5158 that were declined, despite her having initially been covered for the injury.

The Auckland woman is now speaking out about what she believes is a lack of justice, and how hard it is for people battling the system, especially those injured during medical procedures.

“I want ACC to change what it does. It’s just not good enough that someone who suffers an injury ends up suffering another injury from trying to fix it.

“I got to the point I was so triggered by ACC I couldn’t talk to them.”

ACC said Gillard lodged a claim for a treatment injury in September 2020, for pain resulting from surgery on her pelvis. The claim was accepted in October 2020.

In June 2021, and based on medical advice it had, ACC advised Gillard it would stop paying weekly compensation and treatment costs on the basis the pain was caused by a pre-existing condition.

“They just said to me one day: ‘We’re cutting you from your claim because you’re no longer internally bleeding, so we’re not going to cover you any more’,” Gillard said.

She challenged this decision, and an ACC resolution specialist determined her entitlements should be reinstated because not all relevant information was considered at the time the decision was made.

Around this time, Gillard lodged a claim for mental injury, caused by treatment injury. This claim was accepted, and she continues to receive counselling.

Gillard was later scheduled for diagnostic surgery to help determine the cause of her continued pelvic pain.

Based on the information available at the time, ACC declined to pay for this surgery because the symptoms were believed to be an ordinary consequence of the original surgery.

Gillard also challenged this decision, and after consideration of additional medical information, ACC overturned this decision and agreed to fund the surgery.

She says the lack of a single contact point at ACC, such as a dedicated case manager, worsened the task of communicating with the agency.

“It was very patronising. I got worse mentally because no one seemed to be listening. You don’t have a case manager – you ring up and every time you end up talking to someone different.”

Gillard’s concerns are backed by health lawyer and ACC advocate Hazel Armstrong.

She was surprised at the number of claims lodged, but also the picture that emerged from the large numbers who simply drop out after a claim is rejected.

Figures provided to Open Justice under the Official Information Act show during the past decade more than 49,000 claims were declined, of which 2715 were then challenged under the review process.

“What that says is that a huge number of people have faced a barrier in challenging ACC and it’s often about cost.”

A further 209 decisions were decided by district courts, which upheld ACC’s decision in the majority of cases. However, Armstrong says the 57 overturned in favour of claimants was “quite significant”.

She says that for many, a barrier to challenging a decision might even be picking up a phone to a lawyer.

“If they have a treatment injury they may have lost their job and income, they may be in pain and might also be suffering a mental injury like depression or anxiety or PTSD.”

Then there’s the often-exhausting effort needed to prove an injury.

“The onus of proof falls upon the claimant to say on the balance of probabilities more likely than not, they have medical evidence to show that they should be covered.

“Then there’s the challenge of getting a specialist to write a report which would assist the claimant, who would be up against a panel of ACC fully-funded specialists.”

Armstrong says treatment injuries are often complex, with one incident leading to multiple consequences.

“Some of it’s terrible – so traumatic. Some things that happen to people are just awful, so personally, intimately awful,” Armstrong says.

It comes after Open Justice revealed in February this year that a woman injured during a traumatic emergency caesarean section 18 years ago won a long-running legal battle to prove entitlement to ACC cover, after suffering almost two decades of debilitating pain.

The recent District Court decision reversed several made by ACC to decline claims over the years, and the corresponding attempts to review those decisions, which were also unsuccessful.

Armstrong said compensation for accidents is not a privilege, but a legacy of a long-standing law designed to ensure healthcare is available to all.

She said ACC had been set up in such a way that it should be “interpreted generously”.

“Therefore, one of the reasons to be more generous in our application of cover and claims decisions does not come from the question of whether it’s a right or a privilege, it stems more from the point we gave up our right to sue for negligence in New Zealand, but we have a scheme which replaces that right and it should be generously interpreted.”

The total cost of treatment injury claims paid last financial year was $276 million.

ACC chief financial officer John Healy told Open Justice there was $307 million in the Treatment Injury Account that same year, from levy and appropriation income.

The account is funded from the ACC Earners’ Account and from the Non-Earners’ Account. In addition to that ACC received $569 million in investment income for the account.

ACC chief operating officer Gabrielle O’Connor has now apologised to Gillard, after queries from Open Justice, for the difficulties she faced.

Gillard has been assigned a dedicated recovery coordinator who is working closely with her to ensure she gets the care and support she requires.

“We regret that Emma has faced difficulties while accessing ACC support following her surgery and we apologise for her experience to date,” O’Connor said.

Ongoing debilitating physical pain not covered by ACC

Emma Gillard believes her battle with ACC worsened the trauma associated with complications after surgery two years ago to remove an ovarian cyst.

The former Auckland basketball representative and Les Mills personal trainer told Open Justice she’s now bedridden for much of the week, having spent a lifetime being fit and active.

The health and wellbeing coordinator at Auckland University’s Sport and Recreation Centre now works minimal hours and receives ACC support for a mental injury that arose from the trauma of the surgery and its aftermath.

“Records show the cyst ruptured, and I had internal bleeding, and went in for surgery again within 12 hours,” Gillard said.

“I still to this day don’t know exactly what happened, but I thought I was going to die.

“I was bleeding internally and my blood pressure was really low.”

During the second procedure, the surgeon removed an ovary and fallopian tube. She had to go through the process of psychological assessment before her claim for a mental health injury was accepted.

Gillard claims that, as hard as the pain is, it’s been harder convincing medical staff and ACC it wasn’t just “all in her head”, or simply “just her period”.

“I am not stupid. I’m in the wellbeing industry, and I know when my body is not right, and I’ve grown up free of painful periods,” the 48-year-old said.

Gillard is willing to do whatever it takes to get back to where she used to be, and to address the lingering chronic pain.

“I’ve worked hard for two years and done all sorts of therapy to try and get better.”

Gillard says the experience has been a major setback, but it has also given her a new outlook and a desire to help others in a similar situation.

“As a women’s health advocate, I’m thinking of reviving [her fitness and wellbeing business] to offer a service which guides and directs others to the help they need. The hardest part is often navigating the system.”

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