Personal injuries and the ACC:
A guide to cover, entitlements, and
the claims process
Prepared by Buddle Findlay, Lawyers, for the
New Zealand Private Surgical Hospitals Association Inc
June 2010
1.
INTRODUCTION
1.1
This Guide has been prepared for the New Zealand Private Surgical Hospitals Association Inc to
provide practical guidance on the application of the Accident Compensation Act 2001 (―the Act‖).
1.2
The Guide provides sufficient information to enable health practitioners to:

make reasoned and informed decisions about whether a patient‘s injury is likely to be
‗covered‘ under the Act; and if so, what treatment is likely to be paid for by the Accident
Compensation Corporation (―the Corporation‖); and

assist patients in making informed applications for cover and potential entitlements; and

understand and provide patients with explanations of the review and appeal processes
available to them; and

understand and provide patients with explanations of their rights as applicants as set out
in the Code of ACC Claimants‘ Rights.
1.3
The Guide focuses on what doctors need to know about the kinds of injuries that are most
commonly treated at private hospitals and funded by the Corporation i.e. personal injuries caused
by accidents. The Guide is divided into three parts.
Part A: Cover for personal injury
Part A summarises the requirements for a patient to have ‗cover‘ for an injury. A patient
must have ‗cover‘ to be eligible for entitlements.
Part B: Entitlements
Part B summarises what doctors need to know about the various entitlements available for
patients who have ‗cover‘. Entitlements include treatment and rehabilitation costs.
Part C: The claims process
Part C summarises what doctors need to know about the process for making and reviewing
decisions made by the Corporation. This part also refers to the Code of ACC Claimants‘
Rights.
1.4
The Guide includes practical tips for practitioners to assist in making assessments in the most
common scenarios that are likely to arise. A summary of the practical tips follows this introduction.
1.5
The Act is complicated, and there are a number of exceptions to various rules. The Guide largely
focuses on the general rules, and the exceptions most likely to arise in a private hospital setting. It
is not a substitute for legal advice on specific issues.
The Guide has been prepared by Buddle Findlay, Lawyers, in conjunction with the New Zealand Private
Surgical Hospitals Association Inc. The NZPSHA contact person is Rose Geden, Executive Director
executive.director@nzpsha.org.nz. The contact person at Buddle Findlay is Dr Jonathan Coates
jonathan.coates@buddlefindlay.com
1
SUMMARY OF PRACTICAL TIPS
Many sections of this Guide conclude with 'practical tips' to assist practitioners. Below is a brief overview
of the practical tips contained in the Guide.
PRACTICAL TIPS FOR PRACTITIONERS – A SUMMARY
When assisting with applications for cover practitioners should:

clearly identify the 'bodily injury' that has been suffered. Use diagnostic
labels that describe the physical damage suffered wherever possible;

identify the specific cause of the injury. Particularly, where the cause of
the injury is an 'accident', identify the specific event that is the accident;

if there is a contributing gradual process or disease, specify to what
extent that gradual process or disease has contributed to the injury.
Where appropriate, provide clinical justifications stating why the gradual
process or disease is not the substantial cause of the injury;

always make reference to the specific statutory language. Incorporate
terms such as 'physical injury', 'accident', 'application of external force'
and 'substantially caused';

always provide all relevant supporting evidence (such as investigation
reports and radiology) with an opinion;

always provide clinical justifications for the treatment that is being
recommended, and include reasons why that treatment is necessary and
appropriate for the patient;

if in your opinion the Corporation has made the wrong decision
immediately inform the Corporation of your differing opinion and the
reasons for your opinion.
2
PART A: COVER FOR PERSONAL INJURY
2.
AN OVERVIEW OF COVER
2.1
The Accident Compensation Act 2001 sets out a ‗no fault compensation regime‘ for injuries
suffered in New Zealand, and injuries suffered outside New Zealand by people ordinarily resident in
New Zealand.1
2.2
If a patient has ‗cover‘ for an injury, the patient will be eligible for entitlements.2 Entitlements can
include payment of the costs of medical treatment (such as surgery), and other financial support,
including compensation for lost earnings.
2.3
To have ‗cover‘ for an injury:

the patient must suffer a ‘personal injury’ as defined in the Act; and

the personal injury must be a ‘personal injury caused by an accident’ (or one of the
other types of injuries listed in the Act).3
Part A of the Guide addresses these two requirements.
1
The specific details of the latter scenario are set out in section 22 AC Act. See also section 20(1)(a) and section 23 AC Act
There are some rare exceptions to this rule (such as injuries sustained during the commission of certain criminal offences). Refer
to sections 118-122 AC Act
3
See the discussion at paragraph 4.7 of this Guide
2
3
3.
PERSONAL INJURY
3.1
The first requirement for ‗cover‘ is that the patient‘s injury is a ‗personal injury‘.
3.2
The term ‗personal injury‘ is defined in the Act. 4 The definition describes both those injuries that fall
within the definition, and those injuries that are expressly excluded.
3.3
What injuries are ‘personal injuries’ as defined in the Act?
3.4
The first requirement is that the injury was suffered in New Zealand, or by a person who is
ordinarily resident in New Zealand.5
3.5
The most common ‗personal injury‘ encountered by private hospitals will be ‗physical injury‘.
3.6
Physical Injuries
3.6.1
A physical injury is a ‗personal injury‘. The definition of ‗physical injury‘ in the Act includes
6
the examples of a ―strain or a sprain‖. Other examples of injuries that are ‗physical
injuries‘ include:7
3.6.2

wounds;

lacerations and contusions;

burns;

fractures;

amputations;

dislocations.
The key requirement for a ‗physical injury‘ is actual bodily damage. 8 Generalised pain
and other symptoms alone are not sufficient. For example, pain and discomfort in the neck
caused by Occupational Overuse Syndrome is not by itself a ‗physical injury‘. To be a
‗physical injury‘, the patient must have suffered some actual bodily damage, such as an
inflammation of tendons or a sprain.
3.6.3
Applications for cover for physical injuries must identify and evidence the actual bodily
damage that has been suffered by the patient.
3.6.4
In addition to ‗physical injuries‘, the following types of injuries are also ‗personal injuries‘:

9
Death;
4
Section 26 AC Act
See sections 20 and 22 AC Act
6
Section 26(1)(b) AC Act
7
These examples are listed in the Accident Corporation ―Glossary of Terms‖ under ‗physical injury‘. at http://www.acc.co.nz/aboutacc/glossary-of-acc-terms/PRD_CTRB103919 )
8
For example, see Teen v ACC 3/9/02, Judge Beattie, DC, Wellington 157/03 at [13] and [19]. See also the ‗ACC Glossary‘
definition of ‗physical harm‘ which requires ‗evidence of actual harm to the body‘ see http://www.acc.co.nz/about-acc/glossary-ofacc-terms/PRD_CTRB103919 )
9
Section 26 AC Act
5
4

Damage (other than usual ‗wear and tear‘) to dentures or prostheses that replace a
part of the human body;

A limited range of injuries caused by gradual process, disease and infection (see
the discussion at paragraph 3.7 below);

3.7
A limited range of mental injuries.10 Mental injuries are not discussed in this Guide.
Gradual process injuries that are ‘personal injuries’
3.7.1
Whilst injuries caused by gradual processes and disease are generally not personal
injuries, there are a limited range of injuries caused by gradual processes and disease that
are included within the definition of ‗personal injuries‘.
3.7.2
The main type of gradual process injuries that are included as ‗personal injuries‘ are
‘personal injuries that are caused by work related gradual process, disease or infection.11
3.7.3
Examples of the types of injuries that have been covered as ‗work related gradual process
injuries‘ are:

rotator cuff impingement from repetitive ‗boning‘ tasks while working in freezing
works;12

occupational asthma caused by long term exposure to glutaraldhyde in the
workplace;13

3.7.4
irritant dermatitis from tasks undertaken as a marine engineer.14
The statutory requirements for ‗work related‘ gradual process injuries are complex and will
not be discussed in detail in this Guide. Essentially, however, for an injury to be ‘caused
by a work related gradual process, disease or infection’, the patient‘s injury must be
‗materially caused‘ by an aspect of the patient‘s employment, and not by a nonemployment lifestyle or other personal factor.
3.7.5
It is acceptable for non-employment factors to be minor contributing causes of the injury,
but they cannot be a ‗material cause‘.15 For example, a patient who has been a carpenter
for many years and who has developed rotator cuff syndrome will not be excluded from
cover because he has engaged in occasional leisure activities of swimming and
mountaineering.16 Cover will only be denied if the swimming and/or mountaineering is
considered to be a ‗material cause‘ of the rotator cuff syndrome.
3.7.6
The determination of whether a non-employment factor is a ‗material cause‘ of the injury is
factually dependent. The patient with rotator cuff syndrome in the example above may be
10
See sections 21, 21A and 21B and section 26(1)(c) and (d) AC Act
Section 26(2) section 20(2)(e) AC Act. For the other gradual process injuries that are included in the Act see section 20(2)(f-h) AC
Act
12
Teepa v ACC 20/4/04, Judge Barber, District Court Christchurch 118/04
13
Davy v ACC 11/4/06, Judge Ongley, District Court, Wellington 91/06
14
Copson v ACC 15/04/03, Judge Beattie, District Court, Huntly 63/03
15
See Turner v ACC 7/4/04, Judge Beattie, District Court, Dunedin 95/04 at [11] and [13]
16
This example is based on Turner (see above)
11
5
denied cover if he has swum competitively for many years, training for many hours a week;
but he is unlikely to be denied cover for occasional recreational swimming.
3.7.7
Overall, practitioners must take a common sense approach, and assess each individual
case on its facts.
3.8
What injuries are not included as ‘personal injuries’?
3.8 Injuries caused wholly or substantially by gradual process, disease or infection:
3.8.1
An injury that is caused ‗wholly or substantially by a gradual process, disease or infection’
is not a ‗personal injury‘ unless an exception applies (these exceptions are discussed
above at paragraph 3.7).17
3.8.2
Whether an injury is ‗wholly or substantially caused by a gradual process, disease or
infection‘ is a key question to address when determining whether an injury is likely to be
‗covered‘.
3.8.3
When deciding whether an injury is ‗caused wholly or substantially by a gradual process,
disease or infection’, it is important to focus on the extent to which the injury has been
caused by that gradual process, disease or infection. Clearly if the gradual process,
disease or infection is the whole cause of the injury (i.e. 100%) then the injury is not a
‗personal injury‘ (unless one of the exceptions discussed at paragraph 3.7 applies).
Deciding whether an injury is caused substantially by a gradual process, disease or
infection is a more difficult task.
3.8.4
The courts generally shy away from an exact definition of ‘substantially‘, and insist that
each case must be decided on an analysis of the individual facts. However, the following
statements provide some guidance:

Whilst the courts have at times commented that there is no percentage-based test for
determining whether the injury is ‗caused wholly or substantially by a gradual
process, disease or infection‘, inevitably percentages are used;18

Generally, a figure of more than 80% is likely to be sufficient; that is, to be excluded
from cover, at least 80 percent of the injury must be caused by the gradual process,
disease or infection;19

A figure of more than 70% may well be regarded as sufficient in some cases; but at
this level there is greater uncertainty.20
3.8.5
Overall, the phrase ‗substantially‘ is inherently vague, and a common sense, case by case
approach is required. Where it is possible to do so on the clinical evidence, stating that a
degenerative condition (for example) is ―less than 70% of the cause of the injury‖ will
increase the likelihood of cover.
17
Section 26(2) AC Act
Generally a percentage based approach is disapproved of by the courts (see Mathieson v ACC 7/2/02, Judge Barber, District
Court, Wellington 45/02) but several decisions have taken this ‗percentage‘ analysis (see the cases at n 15 below).
19
See Booker v ACC 17/8/00, Judge Middleton, District Court, Wellington 205/00 and Hamilton v ACC 21/12/06, Judge Ongley,
District Court, Wellington 318/06 at [27]
20
See Hamilton v ACC (n 19 above) at [27]
18
6
3.8.6
A difficult situation that practitioners may encounter is when an asymptomatic degenerative
condition is ‗ignited‘ by an external event. For example, a patient presents with back pain
after slipping on ice and an MRI exposes a degenerative disc disease. In this situation the
patient will not have cover if the external event (the slip) merely caused the effects of the
degenerative condition to become apparent. However, the patient will have cover for any
injury that has been ‘substantially caused’ by the ‗slip‘ and not the degenerative condition.
For example, if the patient suffered muscular damage during the slip, that muscular injury
will be covered.21
3.9
Injuries caused wholly or substantially by ageing
3.9.1
Injuries that are caused wholly or substantially by ageing are not ‗personal injuries‘. There
are no exceptions to this rule.22
3.9.2
When deciding whether an injury has been caused by aging, the same principles as for the
gradual process, disease and infection exclusion apply. A practitioner must ask, ‗is the
ageing process the whole or the substantial cause of this injury?‘. If the answer to the
question is yes, the patient‘s injury will not be covered.
PRACTICAL TIPS FOR PRACTITIONERS- PERSONAL INJURY
When assisting with applications for cover, practitioners should:

clearly identify the ‗actual bodily damage‘ (condition, pathology
and diagnosis) that the patient has suffered. Diagnostic labels for
the bodily damage should be used wherever possible;

clearly identify what the ‗cause‘ of the injury is;

if there is a contributing gradual process, disease or infection,
specify to what extent that gradual process, disease or infection
has contributed to the injury;

where appropriate, provide clinical justifications stating why any
gradual process, disease or infection is not the ‘substantial cause’
of the presenting injury;

wherever possible, make reference to the statutory language and
give reasons for opinions. For example; ―Mr X slipped on ice and
suffered a physical injury of a fracture in the right ulna. The slip
was the substantial cause of the fracture. Mr X’s degenerative
bone condition was not the substantial cause of the fracture
because….‖.
21
22
Hill v ARCIC 1/9/98, Judge Beattie, District Court, Huntly 198/98 at p13
Section 26(4) AC Act
7
4.
PERSONAL INJURY CAUSED BY AN ACCIDENT
4.1
For there to be cover, the personal injury must be a ‘personal injury caused by an accident’ (or one
of the other listed types of injuries; see below at paragraph 4.7). It is important to treat the
requirements for ‘personal injury’ and ‘personal injury caused by an accident’ separately.
4.2
What is an ‘accident’?
4.2.1
‗Accident‘ is defined in the Act.23 The courts take a generous approach to the meaning of
‗accident‘.24
4.2.2
The most commonly applied part of the definition is section 25(1)(a);
Accident means any of the following kinds of occurrences:
(a)
a specific event or a series of events, other than a gradual process, that—
(i)
involves the application of a force (including gravity), or resistance, external to the
human body; or
(ii)
involves the sudden movement of the body to avoid a force (including gravity), or
resistance, external to the body; or
(iii)
4.3
involves a twisting movement of the body.
A specific event or a series of events, other than a gradual process.
4.3.1
An accident can arise from a single specific event or a series of events, but not a gradual
process.25
4.3.2
The distinction between a ‗series of events‘ and a ‗gradual process‘ is difficult. Generally
an ‗accident‘ requires a degree of suddenness that is absent from the slow and incremental
‗gradual process‘.26
4.3.3
A ‗series of events‘ generally indicates a number of culminating events over a short period
of time.27 Gradual process injuries are those that occur over a period of four weeks or
more. While this is not by any means an absolute statement of the law, it is a useful
starting point.28 For example, a nurse who developed carpal tunnel syndrome from wearing
tight gloves over a long day in surgery would be considered to have suffered a personal
injury caused by an accident. The wearing of gloves over a day would be considered a
‗series of events‘ rather than a gradual process.29
4.3.4
However, in some rare circumstances a series of events over a period of years can also be
considered an ‗accident‘. For example, in one case, a patient fractured her back when she
23
Section 25 AC Act
Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436 (CA)
25
Section 25(1)(a) AC Act
26
Armstrong, H and Grover, C. ―Personal Injury in New Zealand‖, Brookers, Wellington (at AC25.05).
27
See http://www.acc.co.nz/making-a-claim/how-do-i-make-a-claim/ECI0009
28
The Corporation specifies on its website that ‗Gradual process injuries are those that occur over a period of four weeks or more‘.
This is not a statement of law, but is a useful guide for practitioners to consider. See http://www.acc.co.nz/making-a-claim/how-do-imake-a-claim/ECI0009
29
Newson v ARCIC 1/2/01, Judge Middleton, District Court, Wellington 15/01
24
8
was eight years old and the fracture never properly healed. Over the next twelve years
force was applied to her back many times during hockey games. The patient was
diagnosed at age 20 with spondolythesis. The Court found that a ‗common sense‘
approach required the repeated ‗knocks‘ during hockey to be seen as a ‗series of events‘
rather than a gradual process. The patient received cover for the spondolythesis as a
‗personal injury caused by an accident‘.30
4.3.5
It will be a matter of fact and degree as to whether a series of events that are not confined
to a short time can be said to constitute an ‗accident‘.31 Where it is possible to do so on the
clinical evidence, identifying the event that caused the injury and using phrases such as
‗sudden‘ and ‗accident‘ will increase the likelihood of cover.
4.4
External force or movement to avoid force or twisting
4.4.1
These requirements have a very broad scope. Any force or resistance, no matter how
minor (and including gravity) is sufficient. Examples of circumstances that have been
sufficient include:
4.5

the wearing of heavy boots as an ‗application of force‘ on the foot;32

‗heel strike‘ on the pavement when running as an ‗application of force‘;33

neck strain from a pillow slipping, as the ‗application of the force of gravity‘.34

abdominal muscle strain from sit-ups as the ‗application of the force of gravity‘.
35
Other situations included in the definition of ‘accident’
4.5.1
Other types of ‗accidents‘ include:36

the inhalation of gas or a foreign object (not including a virus or bacteria) on a specific
occasion;

the oral ingestion of a solid, liquid, gas or foreign object (not including a virus or
bacteria) on a specific occasion;

the absorption of any chemical through the skin on a specific occasion, and within a
defined period of time;

exposure to the elements in a defined period of time not exceeding a month, and that
results in a disability for a period exceeding one month.
4.5.2
All of these types of ‗accidents‘ focus on events that occur on ‗specific occasions‘. Again,
gradual processes are not considered to be ‗accidents‘.
30
Warren v ARCIC 23/7/99, Judge Barber, District Court, Wellington 204/99
Ibid
Hurunui v Carter Holt Harvey Ltd 4/10/99, Judge Middleton, District Court, Wellington, 276/99
33
Hodgson v ARCIC 31/3/00, Judge Middleton, District Court, Wellington, 53/00
34
Johnson v ACC 29/9/04, Judge Beattie, District Court, Wellington, 311/04
35
Sonter v Accident Compensation Corporation 24/10/07, Judge Cadenhead, District Court, Auckland 234/2007
36
These definitions are simplified. For the full text see section 24(1)(b-e) AC Act
31
32
9
4.6
What personal injuries are not ‘personal injuries caused by an accident’?
4.6.1
Personal injuries that are not ‗personal injuries caused by an accident‘ include:37

any injury that is caused by a gradual process (as discussed above at paragraph 4.3);
and

an injury that is a ‗treatment injury‘ (as discussed below at paragraph 4.7.2).
PRACTICAL TIPS FOR PRACTITIONERS- PERSONAL INJURY CAUSED
BY AN ACCIDENT
To assist in applications for ‘personal injury caused by an accident’
practitioners should:

identify the event (or series of events) that is the ‗accident‘;

identify the definition of accident that the event fits within and,
wherever possible, apply the statutory language, for example;

‗the patient suffered a bone fracture from falling off a balcony.
This injury is a personal injury caused by an accident as the
specific event of the fall involved an application of an
external force when the patient hit the ground’; or

‗the patient choked on a small toy on the 8th of March. This
was a personal injury caused by an accident as the patient
orally ingested the toy on a specific occasion’.
37
There are other types of injuries that are excluded from the ‗by accident‘ definition. These deal with rare situations (such as ectoparasitic infections and diseases carried by vectors (malaria)). For details see sections 25(2)(b) and (c) AC Act
10
4.7
Other types of personal injuries covered by the Act
4.7.1
If a patient has a personal injury that is not a ‗personal injury caused by an accident‘, there
may still be cover if the personal injury is one of the other kinds of personal injury listed in
the Act. These are:38

personal injury that is ‗treatment injury‘ (see the discussion below at paragraph 4.7.2);

personal injuries that are caused by a work related gradual process, disease or
infection (see the discussion above at paragraph 3.7);

a limited range of other injuries caused by gradual process, disease or infection (see
the discussion above at paragraph 3.7);

4.7.2
a limited range of cardio-vascular or cerebro-vascular episodes.
39
‗Treatment injury‘ is personal injury that is caused by medical treatment.
40
‗Treatment
injury‘ does not include personal injury that is:
38
39
40

a necessary or ordinary consequence of that treatment; or

is wholly or substantially caused by a patient‘s underlying health condition; or

is solely attributable to a resource allocation decision; or

is a result of the patient unreasonably withholding or delaying consent.
Section 20(2)(b-j) AC Act
See section 20(2)(i) and (j) AC Act
This is a simplified definition. See the full definition at section 32 AC Act
11
PART B: ENTITLEMENTS
5.
OVERVIEW OF ENTITLEMENTS
5.1
If a patient has ‗cover‘ for the injury, the patient will be eligible for entitlements.41 The Act sets out a
range of entitlements and criteria for receiving those entitlements. The types of entitlements that
may be available include:
5.2

Rehabilitation – comprising of treatment, social and vocational rehabilitation;

Weekly financial compensation for loss of earnings;

Lump sum compensation for some permanent injuries;

Funeral grants and other survivor support.
Treatment entitlements.
5.2.1
What is treatment?
5.2.2
Treatment is broadly defined in the Act to include all physical and cognitive rehabilitation.42
Physical rehabilitation includes assessment or diagnostic procedures (for example, x-rays,
medical examinations, or scans), and treatments such as surgery, pharmaceuticals and
physiotherapy.43
5.2.3
When is the Corporation liable to pay for treatment?
5.2.4
The Corporation will pay the costs of any treatment that is required to restore a patient‘s
health to the maximum extent possible.44 However, the treatment must be:45

necessary and appropriate to restore the patient‘s health; and

of a type normally provided by a treatment provider; and

provided by a qualified treatment provider who normally provides that treatment; and

agreed to by the Corporation in advance (unless an exception applies, see below at
paragraph 5.3).
5.2.5
The Corporation will also pay or contribute to the cost of services that are reasonably
required to facilitate the treatment (such as accommodation, transport and pharmaceutical
support).46
41
There are a few very narrow exceptions where a person may not be eligible for entitlements. These primarily involve convictions
and imprisonment (see sections 120-122 AC Act). Note also that from July 2010 there are minor changes to the entitlements
available for self inflicted injuries.
42
Section 6 AC Act
43
For more information see the definition of ‗treatment‘ in the Glossary of Terms at http://www.acc.co.nz/about-acc/glossary-of-accterms/PRD_CTRB103977
44
Clause 2, Schedule 1 AC Act
45
Ibid. See also Clause 2(2) which sets out relevant considerations for the Corporation
12
5.2.6
It is the Corporation‘s decision whether the treatment is ‗necessary and appropriate‘.
However, the Corporation relies on the medical advice it receives in applications to make
its decisions.
5.2.7
When providing information to the Corporation as part of a patient‘s application for
entitlements, practitioners should consider and refer to the entitlement criteria. Where
possible the practitioner should provide reasons to support why a treatment is ‗necessary
and appropriate‘ to restore a patient‘s health.
PRACTICAL TIPS FOR PRACTITIONERS- APPLICATIONS FOR
TREATMENT ENTITLEMENTS
The type of information that practitioners provide to the Corporation
should include:

Clinical justifications as to why a specified treatment is ‗necessary
and appropriate‘ including:

the nature and severity of the injury (including any evidence,
such as investigation reports and radiology);

the normal treatment for that injury;

the benefits of the treatment for the patient; including (if
appropriate) how the treatment will aid in restoring the
patient‘s ability to work and function;

other options available and, where appropriate, reasons why
those options are not suitable in the present case.
5.3
Acute treatment entitlements
5.3.1
In most situations, the Corporation is only liable to pay the costs of treatment where prior
approval is given. However, if the treatment is ‗acute treatment‘ then prior approval is not
required.
5.3.2
'Acute treatment' is either the first visit to a treatment provider or any following treatments if
they are 'urgent'. Treatment is 'urgent' if (in the provider‘s opinion) a delay would create
adverse clinical effects for the patient.
46
47
47
Clause 3, Schedule 1 AC Act
Section 7(1) of the AC Act)
13
5.3.3
Acute treatment can be contrasted with 'elective' surgery. Elective surgery is defined by the
48
Corporation as 'non-urgent surgical treatment that can wait at least seven or more days'.
To receive entitlements for elective surgery the surgery must have received prior approval
from the Corporation.49
5.4
Other rehabilitation entitlements
5.4.1
Social rehabilitation
5.4.2
The Corporation will provide a patient with ‗social rehabilitation‘ that is required as a direct
consequence of a patient‘s covered personal injury.50
5.4.3
The purpose of social rehabilitation is to restore a patient‘s independence. It includes
services such as home help, education support, and home modifications. The Corporation
will assess and determine if a patient should be provided with social rehabilitation based on
specific criteria in the Act.
5.4.4
Vocational rehabilitation
5.4.5
Patients who are incapacitated from working and who receive weekly compensation may
be entitled to vocational rehabilitation to aid them in returning to work. The criteria for
vocational rehabilitation are set out in the Act.51
5.5
Other entitlements
5.5.1
Other entitlements that may be available to patients include:52

Weekly compensation of up to 80% of a patient‘s previous earnings, if a patient is
prevented from working due to a personal injury;

Lump sum compensation for certain permanent injuries;

Funeral grants for a deceased patient‘s estate;

Survival grants and other weekly compensation for the spouse and/or children of the
deceased.
48
See 'elective surgery' in the Glossary of Terms at http://www.acc.co.nz/about-acc/glossary-of-acc-terms/ECI0103
For more information on the processes for ‗acute treatment‘ see
http://www.acc.co.nz/PRD_EXT_CSMP/groups/external_providers/documents/guide/prv00064.pdf.
50
Sections 79 and 81-84 and Clauses 12-23, Schedule 1 AC Act
51
See sections 85-96 and Clauses 24-29, Schedule 1, AC Act
52
Section 69 AC Act
49
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PART C: THE CLAIMS PROCESS
6.
OVERVIEW OF THE CLAIMS PROCESS
6.1
A patient who wishes to make a claim under the Act must lodge a claim with the Corporation.
6.2
The Corporation will make a written decision on cover and/or entitlements available to the patient.
If the patient is not satisfied with the decision, the patient may apply for a review of the decision.
7.
LODGING CLAIMS
7.1
Manner of claims
7.1.1
The patient‘s claim can be for:53

cover for the personal injury; or

cover and an entitlement for the personal injury; or

a specified entitlement once the Corporation has accepted the person has cover for the
personal injury.
7.1.2
The claim has to be in the form specified by the Corporation.54 Copies of the relevant
forms are available at http://www.acc.co.nz/making-a-claim/forms-and-factsheets/index.htm.
7.2 Time frames
7.2.1
A patient must lodge a claim for cover within 12 months from the date on which the
personal injury was suffered.55
7.2.2
A patient must lodge a claim for an entitlement within 12 months from the date on which
the need for the entitlement arose.56 The date on which the need for entitlement arises will
not usually be the same as the date the injury was suffered. Although there are no clear
rules, the date when the need for an entitlement arises will usually be the date that a
practitioner determines that the treatment is necessary and appropriate.
7.2.3
A claim is ‗lodged‘ on the date the Corporation receives the application.57
53
Section 48 AC Act
Section 52(1) AC Act
Section 53 AC Act
56
See section 53 AC Act. Note also that treatment injury claims have slightly different time limits. Claims must be lodged within 12
months from the time the injury was first considered to be a treatment injury by a health professional or 12 months after the
treatment injury was suffered (whichever is later)
57
Section 51 AC Act
54
55
15
8.
THE CORPORATION’S DECISION-MAKING PROCESS
8.1
Basic decision-making process
8.1.1
On receiving a claim for cover, the Corporation must decide whether it accepts the patient
has cover; and, if it accepts the patient has cover;58
8.1.2

provide information on the entitlements available to the patient; and

facilitate access to the entitlements available to the patient.
The Corporation has a duty to make every decision on reasonable grounds and in a timely
manner.59
8.1.3
In most applications, the Corporation will investigate and make its decision within 21 days.
In more complicated situations (such as mental injuries or work related gradual processes
injuries), the Corporation will make its decision within 2 months. If more information is
required the Corporation can extend these time frames.60
8.1.4
The Corporation must give the patient written notice of its decision and the reasons for that
decision. The Corporation must also inform the patient of the right to review the decision,
and the relevant time frames for a review.61
8.1.5
If the Corporation considers it made an error, the Corporation can revise its decision at any
time. However, the Corporation cannot recover any compensation paid in error unless the
patient has been intentionally misleading.62
8.2
Clinical advice in Corporation decisions
8.2.1
When making applications, the patient must provide any information that is reasonably
requested by the Corporation.63 The sort of information that is likely to be requested
includes:

medical certificates from practitioners providing information about the injury;

medical records relevant to the claim;
The patient may also be required to undergo a medical assessment by a health
professional specified by the Corporation.
8.2.2
These medical certificates and request for information are an opportunity for practitioners
to make full use of the tips and recommendations that have been given earlier in this
Guide.
58
Section 50 AC Act
Section 54 AC Act
Sections 56, 57 and 58 AC Act
61
Sections 63 and 64 AC Act
62
Section 65 AC Act
63
Section 55 AC Act
59
60
16
PRACTICAL TIP
If at any time a practitioner believes that the Corporation has made an
incorrect decision about one of the practitioner‘s patients, the practitioner
should immediately inform the Corporation of the practitioner‘s opinion, and
the reasons for that opinion.
9.
REVIEW OF CORPORATION DECISIONS
9.1
If a patient is not satisfied with the Corporation‘s decision, the patient can apply for a review. All
patients who have made a claim have a right to a review.64
9.2
Form of applications for reviews
9.2.1
An application for review must be in writing. Where practicable, it should be in the form
provided by the Corporation65 (see http://www.acc.co.nz/making-a-claim/forms-and-factsheets/index.htm).
9.2.2
9.3
The application must:

identity the relevant decision(s);

state the grounds on which the review is made; and

if known, state the outcome sought by the patient.
Time frames
9.3.1
The application must be made within three months of the date on which the Corporation
made the decision (provided an exception does not apply).66 It is in a patient‘s best
interests to make an application for review as soon as possible, as the Corporation‘s
original decision (for example to decline cover) has full effect until the review decision has
been made.67
9.4
The review process
9.4.1
As soon as practicable after receiving an application for a review, the Corporation will
engage a reviewer (or more than reviewer). The reviewers are independent decisionmakers who will investigate the claim, and make a decision.
9.4.2
The reviewers will hold a hearing and will consider relevant evidence from the patient, the
Corporation and any other relevant party. The reviewers must put the Corporation‘s
64
Section 134 AC Act
Section 135 AC Act
66
Section 135(2)(f) AC Act
67
Section 133 AC Act
65
17
decision aside, and make a decision afresh. The review decision must be made within 28
days of the hearing and is binding on all parties.68
9.4.3
9.4.4
The review decision can:69

dismiss the application and uphold the Corporation‘s decision; or

modify the Corporation‘s decision; or

quash the Corporation‘s decision and substitute a new decision; or

direct the Corporation to revise the decision within a given time frame.
The decision must be in writing, and contain the reasons for the decision as well as
information on the right to appeal.
9.5
70
Costs of reviews
9.5.1
If a review decision is made in favour of the patient, the reviewer must award costs and
expenses to the patient.
9.5.2
If a review is not made in favour of the patient, but the reviewer believes the applicant
acted reasonably in taking the review, the reviewer may award costs and expenses.
9.5.3
Any affected person can appeal a costs decision to the District Court.71 In practice, this will
mostly be the patient (or the patient‘s family) or the Corporation.
10.
APPEAL OF REVIEW DECISIONS
10.1 An appeal to the District Court is available to a patient who is unsatisfied with a Corporation
decision.72 An appeal is only available after a review decision has been made.
10.2 An appeal can be brought where the patient believes the review decision is wrong in law or on the
facts. At the point where an appeal of a decision is being considered patients should seek legal
advice.
10.3 The types of decisions that are most amenable to appeals are decisions where there is
disagreement between a patient‘s practitioner and the Corporation‘s medical advisors. Usually
disagreements arise on the cause of the injury, such as whether an injury is ‗substantially caused
by a gradual process‘ or whether a non-employment factor has ‗materially contributed‘ to a patient‘s
gradual process injury.
10.4 Recent examples of cases where there have been successful appeals of review decisions include;

an appeal by a patient who suffered bilateral wrist sprains from heaving lifting at work. The
patient was declined cover by the Corporation who found there was no ‗physical injury‘
68
Sections 136 -144 AC Act
Sections 145(3) AC Act
70
Section 144 AC Act
71
Section 148 AC Act
72
Sections 148-161 AC Act
69
18
because the medical assessor had described the injury as ‘non specific upper limb pain’. The
patient appealed the review decision and provided evidence from his practitioner specifying the
‗physical injuries‘ that were suffered (epicondylitis and wrist sprains). The Court agreed that the
patient‘s wrist sprain was a ‗physical injury‘ and the appeal succeeded.

73
an appeal of a decision not to fund surgery for an achilles tendon reconstruction and an
excision of a bursa of the right ankle. The Corporation had declined funding as it had
determined the surgical procedures were to treat pre-existing osteo-arthritic symptoms and not
to treat the achilles tendon strain for which the patient had originally obtained cover. After close
analysis of the conflicting medical evidence, the Court decided that the procedures were largely
required as a result of the original achilles tendon strain. The appeal succeeded and the
Corporation was required to meet the patient‘s full treatment costs.
74
10.5 An appeal must be brought by the patient within 28 days after receiving the review decision
(unless the District Court allows an extension).75
10.6 The Court must determine an appeal by:76

dismissing the appeal; or

modifying the review decision; or

quashing the review decision.
10.7 Further appeals to the High Court and Court of Appeal may only be made on questions of law.77
11.
THE CODE OF ACC CLAIMANTS’ RIGHTS
11.1 Additional to the decision and review structures that are set out in the Act, there is also a ‗Code of
ACC Claimants‘ Rights‘ (the Code) that imposes obligations on the Corporation in relation to the
claims process.78
11.2 The Code sets out ‗rights‘ for ACC claimants including:

the right to dignity, respect, honesty and courtesy in the claims process;

the right to fair and consistent treatment;

the right to effective communication in the claims process.
11.3 The Act sets out procedures for addressing concerns and dealing with complaints of breaches of
the Code. If there is a finding of a breach of the Code, various remedial actions are available.
11.4 A copy of the Code can be obtained from www.acc.co.nz.
73
Sherwood v ACC 10/05/07, Judge Beattie, District Court, Auckland 89/07
Hart v ACC 25/06/07, Judge Beattie, District Court, Auckland 141/07
Section 151(3) AC Act
76
Section 161 AC Act
77
Sections 162 and 163 AC Act
78
See Part 3 of the Act
74
75
19