ACC fights 20 carers for compo

DEIDRE MUSSEN
Last updated 05:00 22/06/2014
Luke Palmer and family
Supplied
CLOSE-KNIT FAMILY: Accident victim Luke Palmer with sister Abbie and brother Kerry.

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Millions of dollars are at stake as a group of 20 severely disabled accident victims seek decades' worth of compensation to unpaid family caregivers.

In two weeks, the Accident Compensation Corporation will seek leave to overturn two court decisions backing the group's claims under 1972 and 1982 ACC laws.

Failure to pay family caregivers to look after accident victims has previously cost ACC hundreds of millions of dollars, following successful legal action spearheaded by Wellington ACC lawyer John Miller, who is leading the current class action.

If successful, the case would open the way for hundreds of other similar accident victims nationwide to seek back-payments for unpaid attendant care by their families.

Miller said ACC was "very mean" over the amount of caregiving it paid for in the 1970s and 1980s, leaving families to do the bulk of the work for free.

"It's ACC's responsibility to pay the funds to provide attendant care, but it effectively shifted its obligations on to families."

The group includes people with traumatic brain injuries, paralysis, cerebral palsy birth injuries, vision defects and orthopaedic injuries, including one who had both legs amputated. They have all needed extensive support since their accidents decades ago, but less than 24-hour care.

In 1996, Miller led a class action by five injured people who claimed they needed 24-hour care. Miller's court victory ultimately led to ACC being forced to pay 300 families about $216 million, he said.

A second case in 2004, about two children severely disabled at birth from medical misadventure, led to ACC predicting it would need to pay out between $20m and $30m to about 60 families for similar cases.

In ACC's 2013 Financial Conditions Report, it predicted back-payments for attendant care claims could cost it a further $48m. A spokesman said that amount related to outstanding claims from previous cases, and was not linked to the current court case. He declined to comment about the current case because it was before the courts.

The Accident Compensation Appeal Authority, which hears appeals against ACC decisions for cases under 1972 and 1982 ACC legislation, first heard the current group's case in November 2012.

Its decision in January 2013 supported the group's appeal over ACC's refusal to pay them for attendant care provided by their families since their accidents, some dating back more than 40 years.

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ACC argued it could pay for only actual expenses or losses, rather than unpaid care - for example, if families had hired carers. But the authority ordered ACC to "act expeditiously" to obtain attendant care needs assessments for each of the 20 accident victims and to issue decisions on how much money it owed for backdated care.

ACC appealed against that decision, but in March, Justice Alan MacKenzie ruled in the High Court at Wellington that the group's claims were permitted under the 1972 and 1982 acts.

Miller said ACC had tried to settle the case out of court, but he rejected a recent offer as "completely inadequate".

FAMILY SEEKS JUSTICE

It started as a fun family day, but turned into a lifetime of tragedy.

Gordon Palmer recalls it like it happened yesterday, rather than nearly 23 years ago. He and his two sons, Luke, 9, and Kerry, 12, were in a spectators' safe zone watching motocross in Motueka Valley on October 20, 1991, when a young rider lost control and his bike became airborne.

It crashed into the crowd, striking Gordon and Luke. "When I came to, Luke was lying beside me on the ground with his brains basically hanging out of his forehead."

Luke was rushed to Nelson Hospital but, within days, doctors told his family there was no hope, so they switched off life support.

"We didn't want him to live like a vegetable," his mother, Erica, says. "But he kept breathing."

He slowly regained consciousness but doctors doubted he would speak or walk again.

He was eventually discharged home on Christmas Eve, 1991. "He was in a wheelchair and needed feeding. He was like a 9-year-old baby," his mother says.

ACC agreed to pay the family 30 hours a week for caregiving even though "he needed care 24/7 by two people", his mother says. Erica spent most of her day caring for Luke, with Gordon taking time off work to assist.

They say ACC's minimal support for Luke, who is now 31, has made their journey far worse, although support has improved in recent years.

Luke's speech has returned, albeit stilted, and, with intensive physiotherapy, he is able to walk with assistance and a brace on his paralysed right leg for about an hour a day, using a wheelchair for the rest of the time. He is blind in his left eye and has partial sight in his right eye.

"If Luke was in a community home, they would have been paying for 24-hour care," Gordon says.

The close-knit family is relieved to have joined the class action against ACC for backdated attendant care.

"When ACC was brought in, New Zealanders lost the right to sue," Gordon says. "ACC was supposed to be about covering these sorts of situations, but they don't give enough money to cover the cost of care."

- Sunday Star Times

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