Noose Around My Neck
Author: Annette Mary Moody

Chapter 9
The Review

OOS - A Personal Experience

 

9. The Review

 

Following the only piece of advice I received from the Complaints Investigator, despite many conversations and copies of much correspondence, I applied for a Review. ACC’s [local] Branch Manager had repeatedly sent me a booklet entitled ‘Is there a problem? Your guide to making a complaint, asking for a review or lodging an appeal’. Printed July 1998. I decided to put this to use.

On page 4 it is written ‘If you disagree with a decision we’ve made you can ask for a review’. It then states ‘First talk with the person at ACC you have been dealing with. If you are still unhappy, it may help if you talk with their manager. If the branch does not want to change their decision, you can apply for a review. You must apply within three months of the date of the relevant decision. Even if you have been trying to resolve things with the branch (or the complaints investigator) you must still apply within this time limit’.

Page 5 continues ‘How do I apply for a review?’ ‘You need to apply in writing. There is a form you can use for this...’ [Unnecessary]. ‘You need to send your completed application to one of our review offices. You can attach extra information in support of your case’.

‘What happens next’. ‘When the review office receives your application they will ask the ACC branch for your original file’. ‘Your review officer will be someone especially appointed to hear your review. Their job is to independently review your case and to confirm, modify or revoke the decision that your ACC branch made.’ ‘The review officer’s role is to take a fresh look at all the information. They will do this at a review hearing, which will be scheduled within three months of when you apply. You’ll be sent information about how review hearings work and invited to attend. Afterwards the review officer will write to you [within 28 days] with the decision’.

Anyone can attend ‘who is directly involved’, ‘eg your review officer, you and/or your representative, a support person, someone from ACC [your branch] sometimes witnesses or experts’. You don’t have to attend the hearing personally’, [I recommend you do]. ‘The hearing is generally informal.’ [Still, be prepared for a case of nerves!]. ‘Each party has the chance to have a say and ask questions. Review hearings are frequently tape-recorded’. The Review Officer also makes hand-written notes.

Have your own note-taker. Neither the illegible handwritten notes nor the typewritten transcript were an accurate recording of my review. This transcript was requested on 11 November 1999, but did not arrive until 3 February 2000.

Under the section ‘Do I have to attend’ is the note that ‘if you can’t attend because of an emergency, you should contact the review officer before the hearing - or get someone to go for you and ask for the hearing to be moved to another day. The review officer will decide if the hearing date can change (often this is not possible because there is a legal time limit on when a hearing can take place)’.

What is the legal time limit and how does this fit in with the process? I requested a Review on 19/4/99, the original date was set for 14/7/99, then moved to 22/9/99 with the outcome dated 20/10/99 - well out of a three month time-frame.

In a nutshell, the process is - you write your arguments against any decision (or save them up as I did), fax or send to your nearest ACC Review Office, then a date is set for the hearing. The Review Office, like the Complaints Investigation Office, is touted as a separate entity. An independent body. How? They, and the process, are clearly governed by rules and regulations - most of which appear to be hidden from you and me.

On 19 April 1999, I faxed a four page document dated 7-16 April to the nearest review office. Dated the same day I received a letter back from this office acknowledging receipt of my application. This letter further noted that ‘if [the] application is valid, ACC will conduct an administrative review and forward the file [my original ACC file compiled by CM’s 1&2] to the office to arrange a hearing date.

If the application is valid - who decides? The implication here could read that your input, or basic request for clarification may be based on impaired judgement. I find that implication insulting. You are entitled to a Review.

The letter continued. ‘In the meantime we enclose a Fact Sheet and a video Making the Most of Your Review!’ A short and simplistic guide. With the exception of the following two points, the information provided was basically as printed in the booklet Is there a problem?

Exception 1. Under ‘What are your Rights?’ is written ‘You and anyone else involved has the right to: See all the relevant information. Give relevant verbal or written evidence and to reply to evidence given by others. Supply signed medical reports and certificates’.

Exception 2. ‘Can I claim costs?’ ‘The Review Officer can make a contribution towards the costs of: Fees for medical or other reports, fees for professional representation, travel costs (within New Zealand) and reasonable witness expenses’.

On 28 June 1999 I received a communication from the Review Office noting that arrangements had been made for a hearing on 14 July 1999. Attached were further ‘notes for guidance of applicants’. This stated ‘Financial costs you incur can be considered by the Review Officer in accordance with the Review Cost Regulations. The Regulations may not cover all expenses you incur but provide limited financial authority to reimburse:

*          Costs you pay to your representative (...up to a maximum of $280.00)

*          Your travelling expenses (maximum amount $30.00)

*          Witness expenses (maximum $200.00)

*          Medical specialists report/s (maximum $300.00)

*          Other costs to[a] maximum of $150.00.

Great, I thought, my support people will receive some compensation for their time and efforts. To my mind there was also ample provision for discretionary reimbursement to me, should the Reviewer choose to implement this. I was asking for a total reimbursement factor of $3472.50 at 18.5% (overdraft rates). My support people/witnesses could surely have received $100.00 each. I had mentioned this to Ursula prior, and she said we would bring it up at the Review. We forgot. After around 2 hours of exhaustive talking, who wouldn’t. As the Review Officer is an expert - you would think they would naturally attend to this.

Further, this sheet elaborated on the sentence ‘If any emergency prevents you or your representative from coming to the hearing, you should phone the Review Clerk on [phone number supplied] to seek an adjournment. The granting of an adjournment is at the discretion of the Review Officer...’

I immediately contacted Ursula, my union rep, and John, from my local MP’s office to check their availability. Unfortunately, he was not able to be present on that date. I then informed the review office of the necessity of his presence as he had been witness at several meetings and his input, I judged, to be valuable. On 5 July I received written confirmation that the hearing was ‘adjourned at [my] request’. When a ‘new date is available’ I would be notified.

So, the more information you receive, the more you learn about procedure and more importantly your Rights. But, it’s oh, so piece-meal - why isn’t the entire procedure presented complete in one booklet?

On 25 August 1999 I received written advice that the Review would take place on September 22 and the matters ‘which the Review officer will consider, is the Corporation’s decisions re:

1.         Osteopathic costs

2.         Alexander Technique

3.         Counselling Costs

4.         Ergonomic Keyboard

5.         Exercise machine

6.         Suspension of entitlements’

7.         My ‘Other issues’ were also added at the commencement of the review. These       referred to all my correspondence with ACC going back as far as September 1998.

I discovered with astonishment that not all ‘decisions’ carry ‘review rights’! For example, unless you have received a letter from ACC with the following statement, ‘...If you want to apply for a review of this decision, your application must be made in writing within three months of the date of this letter. You can get an ARC33 (Application for Review) from any ACC office.’ These quoted words were attached to a letter approving ‘provision of personal support (that is, Homehelp) made under section 26A Provision of, or payment for social rehabilitation...’ However, you may not get the decision reviewed, because it may not constitute a decision!

According to the Little Oxford Dictionary, decision means ‘act of deciding, formal judgement, settlement, resolve.’ Therefore, when one uses the word NO in any context, no must carry it’s own review rights, wouldn’t you agree? I was disturbed to read the definition of directive. The definition is, ‘a statement of guidance to subordinates etc’! In my view, these corporate bodies often appear to be playing the part of god - please note the small g - with our lives!

Clearly, the first six items on my agenda carried such an opportunity. However ‘issues’ such as my request to discuss the Fact Sheet and subsequent interviews with A, the ‘clinical psychologist’ and B, Specialist2 in regard to the Occupational Assessment were dismissed at the Review because these commands or decisions, did not carry review rights. I am, however pleased to say, that at my first meeting with CM3 on 4 November 1999, she agreed that this had been a tool employed by CM2 in an attempt to remove me from ACC’s books, and it should not have happened.

Another issue I raised was disputing that I had completed my rehab programme. This also was ignored. In November CM3 and I wrote another Rehabilitation Plan with the aim of having me back at my graduated return to work programme by 31 March 2000. This surely was silent acknowledgment of my correct line of thought - that indeed, my rehabilitation was incomplete and, of necessity, on-going.

I also spoke about the great deal of correspondence I have entered into and ACC’s lack of response. Frankly, an apology would not go amiss from CM2, the branch manager, the owner/operator of the job placement agency, occupational therapist and especially Specialists 1&2, all of whom have been instrumental in creating ill will and confusion with both ACC and my employer’s representative. HR is clearly not without blame for her ignorance of my situation and condition, as is evidenced by the poor treatment provided to date. Indeed she should also apologise for the abyss she plunged me into.

September 22 arrived. Ursula kindly came out to my home, packed the wealth of material for this review into my car, and off we went. John joined us there, and waiting was CM3 - who was there because she ‘had to be, or ACC would be penalised!’ Although she had written to me by way of introduction, on 14 May 1999, we had not met. CM3 announced that she had with her a submission written by CM2, which she would present as their defence! We hadn’t expected that, and were not given time to read it before it was submitted as evidence. It became rapidly clear that it was an attempt to discredit me, and we immediately questioned the accuracy of this document. In fact, very little truth was presented, which was, of course, verified by both my support people. Allow me to illustrate.

Under a section entitled ‘The Facts’ CM2 writes:

·         25 January 1999 - ACC sent a letter to Miss Moody explaining the reason she has been requested to attend a work capacity assessment. No review rights were issued with this letter, as its purpose was to provide information only.

·         30 March 1999 - Letter sent to Miss Moody reiterating the purpose of the work capacity assessment, re-offering access to the 2 female medical assessors [in Auckland under contract to ACC] and requesting nomination of one assessor within 7 days. [No mention was made of the verbal offer to have another woman travel up from Hamilton]. Miss Moody was advised that failure to provide a nomination could result in suspension of entitlement under Section 73. No review rights were issued ...(as above).

·         14 April 1999 - Entitlements suspended as no assessor nominated or response to letter dated 30 March 1999. (Section 64 (d), (e) & (f) and 73 of the ARCI Act).

Let’s take these points individually.

1.      The letter sent to me by the Branch Manager dated 25 January 1999 starts with the sentence ‘Thank you for your letter dated 14 January 1999’. Therefore he was responding to my correspondence. I replied to his letter on 28 January 1999. A second letter erroneously dated 26 February 1999 (it should have read 26 January), thanks me for my letter ‘dated 13-22 January,’ and states ‘due to the many issues raised in your letter and the complexities of these issues I believe it would be advantageous for us to meet to discuss your concerns’. This we did on 1 March 1999.

2.      The Business Manager then wrote on 4 March to ‘confirm actions from our meeting’, that he, ‘shall be obtaining further information on the matters raised’, and when he had ‘information to hand,’ would ‘write again’.

His list differed from mine in several respects, he wrote

Letter of agreement for Osteopath treatments

Other costs

a) [I] will provide application for home help - this was incorrect as I had said at the meeting of 1/3/99, the cost of $40.00 ie $10.00 an hour once per week for four weeks was so low I did not want to concern anyone. It was later noted, however, that I was not aware that I could have such a service for a longer period - which would have been most welcome.

b) $180.00 for Counselling

c) Exercise Machine

d) Keyboard

Further Alexander Technique sessions

Patient Rights Pamphlet

Alternative Medical Assessor

[My] Letter of 28 January 1999.

My list.

Reimburse all I have spent

Pay for Osteopathy in full

Pay for at least another 6-7 treatments of the Alexander Technique

ACC to issue a pamphlet on Claimant Rights

ACC to action the Trapski Report

ACC to provide written response to all my letters and requests, please.

3.      I then received a raft of letters declining all my requests, the obvious lead up to this review.

4.      On 3 April, I further received 3 lengthy letters quoting the ACT. One of these says ‘the decision to refer you through the work capacity process is not reviewable by you the claimant. On completion of the medical and occupational assessment a decision will be issued to you advising the outcome of the assessments. Any decision issued will include review rights. Therefore it appeared that I had no right to decline the work capacity assessment, but should I disagree with it’s findings, I could go to Review!

5.      The letter from the Business Manager dated 14 April suspended my entitlements. Yet I was receiving none from ACC! My employers were paying 100% of my earnings.

6.      My Application for review dated 7-16 April 1999 was copied to the Business Manager, and obviously a response to his letter.

7.      I handed, to the Reviewer, a short letter of support from my GP’s office.

Sadly, the Review was only partially successful. Here then, are the results dated 20/10/99.

Issue           Whether ACC’s decision dated 24 March 1999 declining funding for an exercise machine was correct.

Result         The review revokes ACC’s decision. The application is partly successful.

Reason       Under ‘Support for Independence’ and the ‘Corporation being required to provide for services and supports based on the claimant’s actual needs’, the matter was referred back ‘to the Corporation to reconsider and to issue a new decision with fresh review rights’.

Issue           Whether ACC should have declined further funding of the Alexander Technique.

Result         The review revokes ACC’s decision. The application is partly successful.

Reason       The Corporation ‘could well have considered the applicant’s request for funding either under the umbrella of social, or vocational rehabilitation’. It was referred back to the Corporation for decision and fresh review rights.

Issue           1)Whether ACC’s decision suspending the applicant’s ongoing entitlement under Section 73 (1) was correct. 2) Whether the applicant’s selection for the work capacity assessment procedure was a reviewable decision.

Result         1) The review revokes ACC’s decision. 2) This is not a reviewable decision.

Reason       1) ‘Section 73 (1) can only be used to cancel or suspend where the Corporation believes that the claimant no longer qualifies for entitlement. It is not evident that this was the reason for suspension in this case. 2) The letters issued by the Corporation advising the applicant that she had been selected for a work capacity assessment[1], are not decisions, and therefore do not attract the right of review.

Costs Awarded: $10 travel costs and 40 additional expenses! I had declined the offer of travel costs, after all I had only to drive 10 minutes at most. I have no idea what ‘additional’ might cover! Still everything counts and I later accepted a cheque.

ACC’s decisions declining funding of the ergonomic keyboard, counselling costs and funding for further osteopathic treatments as well as declining to reimburse 100% of sustained treatment costs, were upheld and became of course, the basis of my Application for Appeal.

This was a scary process for me, I have done little public speaking and don’t consider myself to be as articulate as some. However, by now I was getting stronger and felt more confident about speaking out. A friend of two decades noted that I am an effective communicator because of my recent accomplishments. I replied that I didn’t feel I was being ‘heard’, that I was constantly repeating myself. Mark disagreed. He said that results speak for themselves, and people tend to go into defence mode when they are under attack, thus giving the appearance of not listening.

I was fortunate to have Ursula and John present. They were able to add to and support my arguments. It was a very civil situation, and yes, relatively informal. Having a tape-recorder placed near you is somewhat intimidating, as was being presented with an unexpected nine page submission from CM2. I was quite certain that CM3 would be there, and frankly I felt very sorry for her. Clearly she had not done her homework and was not familiar with my case at all. All she could do was read from CM2’s submission. She was also under the mistaken impression that ACC were paying 80% of my income.

I did feel though, that much time was wasted and spent on points of little consequence. For example, the overall results were disappointing and the real issues of past, present and future treatments remained unresolved.

John and Ursula complimented me on my focus and felt we had achieved some results. We all agreed on the next step - to lodge an Appeal. Although John has wide knowledge of the ACC Act, and indeed is instrumental in some workings of the current reorganisation, he was, and still is, too busy to invest much time in one person.

I decided to make contact with a legal eagle. My initial conversation with her on 21/10/99 was encouraging. She quite agreed that I had endured much from ACC and requested a summary be sent to her. On 22 October, I wrote ‘I need legal expertise now, and you are highly recommended. I request an honest opinion on your estimation of ‘us’ winning should we proceed with an Appeal. Legal aid is the only viable option for me, unless of course you would be willing to take your costs out of the settlement?’

I had a total of 20 pages which I felt were vital to be sent, so I used John’s office and faxed them through to this woman. She rang me as I was nearing the end and literally blasted me for ‘tying up her shared fax line’. I was shocked - hardly good customer relations. For eleven days I waited for a response from her. I finally rang her, at which point was informed that she felt there ‘was no money in [my] case ... and [she] had to make a living!’ Gee, so do I!

The only way she could foresee that I might have an argument was if I used the perspective of having my rights under the Health and Disability Services Code violated. I definitely agreed with that, hence Chapter 5, Know Your Rights - a Critique. I also requested that she return all my confidential papers as I would need them - it’s 28 February 2000, as I write these words - I guess she’s preoccupied.

A word of caution to you - interview a prospective lawyer carefully and thoroughly. Ensure you know their fee structure up front. Ask if they are sympathetic to your cause and ascertain whether they are supportive of you and your view point. Ensure they are knowledgeable in the required area of expertise before you engage their services.

So, I was dismissed by this lawyer. However, I believed I had a strong case and was determined to find someone who would listen to my story and fight in the battle. Not only am I interested in achieving financial assistance for medical treatments, I seek to eradicate ignorance. I deliberately involved the local MP’s electorate agent because I sensed the Government would change to Labour and ACC would be a hot topic.

OOS is a political subject. Reported on TV1’s Breakfast 1 March 2000, ... In 1996, OSH noted 556 cases. The number has since reduced, and I suggest this is partly because of awareness in the work-place. That is, education on a more conducive set-up, the correct use of ‘ergonomic’ equipment in relation to workload, body type and better use of space. Preventative maintenance in other words, which is fine in the first instance, and helpful in the early stages of discomfort, but hardly a cure when symptoms have reached such a debilitating level as mine.

Further, on TV1’s Holmes 7 March 2000, Mr Kevin Davis - a sufferer of ‘post-traumatic stress’, a robbery victim who faced the barrel of a sawn off shotgun 3 times in a 10 week period, did not meet ACC’s criteria under victim of criminal abuse, because the law relates mainly to sexual offences. Therefore he was not eligible for monetary or medical assistance under the existing legislation! Clearly there is no provision for case-by-case analysis. Mr Davis stated ‘ACC adds more to your injury ...which adds to the stress’. Again my situation is paraphrased.

I could fill the rest of this chapter with similar instances, such as the commercial insurers who are flatly refusing to handle OOS and such claims. Yet resolution depends on who initially interviews you, and who you get as your Case Manager. Once again I thank CM3 for taking time to understand, and for her compassion. No my physical symptoms are definitely not imaginary, and they are not psychosomatic.

Why do we have to fight so hard? I am saddened by the knowledge that there are many other people like myself suffering, trying to complete their tasks and work through the physical pain of everyday life. To my dismay I have had resentment expressed because I am fighting for my right to receive fair treatment. Clearly there are those who, even as sufferers, are not willing to go to battle. Their will to resolve their problems is not as strong as my will to live with optimum health. They continue to struggle with everyday life. Maybe they don’t want to utilise the government’s sources? Perhaps their pride stops them? Well, I am not financially endowed, and I need this kind of assistance - it is what ACC was put in place for. I hope I offer inspiration. The obvious sad thing really is - one should not have to fight at all.

CM3 met with John and I on 4 November 1999. Using the Review Decisions of 22 September, received on 31 October, we discussed and resolved the following points:

1.             ACC reimbursed me $189.90 for my exercise machine purchased 25/9/98.

2.             ACC reimbursed me 39% of 12 Osteopathy treatments from 2/12/98-27/4/99.

3.             ACC authorised a further 10 half hour sessions of The Alexander Technique.

4.             CM3 acknowledged that the two medical assessments of 2/98 were inappropriate.

5.             CM3 noted the ‘actual cost of my claim is very low’, and offered an Independence Allowance, as a ‘top up.’ I declined - I’m not greedy however it may be revisited.

6.             A new Rehabilitation Plan would be drawn up - an on-going set of goals.

This meeting was pleasant with open dialogue and reasonable expectation/outcomes. After 20 months I felt I would now receive the right support from ACC.  CM3 had studied my file now, and whilst she couldn’t ‘apologise for the others’ [from ACC], she noted that had she ‘been the Case Manager [she] would have done things differently and is amazed at what [I] had been put through. It’s awful’.

Progress, but not for long! On 2 December 1999 I received my first communication from HR since May of that year. It read ‘ACC recently advised employers that with the advent of private insurance for workplace injuries they were closing down their Approved Employer Scheme. Under the scheme approved employers were reimbursed by ACC for paying compensation on ACC’s behalf. The payments you have been receiving from [us] have technically been compensation, not salary. As has been practice, you have been receiving compensation at 100% of salary rather than 80% provided for by legislation and reimbursed to [us] by ACC. The closure of the scheme means that ACC pays compensation directly to recipients and no longer reimburses employers.

As your claim predated the changeover date to private insurance of 1 July 1999 ACC retained liability for your case, and [we] have no choice but to cease the payments we have been making effective from 3 December 1999. This does not affect your employment status in any way. It just means that your compensation is being paid directly rather than indirectly from your insurer. However so that there is no drop in your compensation [we] will be paying you for one day’s Sick Leave per week and reducing your entitlement accordingly’.

The poor woman had absolutely no grasp of the situation what so ever! No copies were made to anyone else, so I remedied that, especially to CM3, Ursula, and John.

Fact One: My employers through their own choice had not put in a claim for me, so whilst they did eventually become ‘Approved Employers’ they were not reimbursed any monies because they a) missed the government’s ‘pay-back’ dead-line, and b) did not request reimbursements in the first instance.

Fact Two: I query the ethics of a notice period of one day from receipt of this directive.

 

Fact Three: Neither sick leave nor ‘holiday’ entitlements should be affected.

 

Question: What does ‘this does not affect your employment status in any way’ mean?

These points and other issues such as retraining, receiving my company mail and E-mails, a rebate on two years of parking payments, a union negotiated wage increase, a departmental situation in which to re-commence my graduated return to work programme, would be discussed at a forthcoming case conference.



[1] I was amazed at the wording - selected for a work capacity assessment - it gives the slant of a request as opposed to my strong belief it was a directive, therefore my first refusal should have carried weight with no repercussions.

 

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