ACC legal bills skyrocket, creating an 'uneven playing field' for claimants

Bruce Van Essen says ACC's use of high powered private lawyers is a bullying tactic to stop rejected claimants from ...
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Bruce Van Essen says ACC's use of high powered private lawyers is a bullying tactic to stop rejected claimants from challenging rulings.

ACC legal spending has doubled in five years, jumping from $3.8 million in 2011 to $7.9m last year.

However, many injured Kiwis seeking to dispute rejected claims are concerned ACC is using private attorneys to outsmart them.

Russel Watts, 50, from Taupo, said he postponed his review earlier this week after he found out he'd be facing off against a senior corporate attorney from Wellington.

Barrister Warren Forster led a study backed by the Law Foundation and University of Otago, which found up to 300,000 ...
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Barrister Warren Forster led a study backed by the Law Foundation and University of Otago, which found up to 300,000 legitimate claimants incurred "unacceptable harm" every year by ACC when they were wrongly refused cover.

"I have a brain injury, so how am I supposed to compete against what feels like the might of a multi-billion dollar corporate?

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"It's not a level playing field. It's like I'm a schoolboy playing rugby against an All Black. There's very little chance of winning and no justice at all," said Watts.

Barrister Warren Forster agreed and said the ACC figures highlighted a "litigation culture" at odds with the spirit of the no-fault scheme.

Kiwis, he said, were losing out on compensation because ACC was more worried about protecting their "bottom line".

ACC Spokeswoman Gaye Searancke denied this.

"ACC does not have a 'bottom line' or profit driver in the discharge of our duties," she said.

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The operating budget for the 2015/2016 financial year was $516 million, and Searancke said legal spending covered everything from advice to strategy, dispute resolution and negotiation support.

But Bruce Van Essen, the president of Acclaim Otago, a support group for injured people, has felt first-hand how intimidating private lawyers hired by the ACC could be.

He has no feeling in his hands or feet, his nerve endings burned away after over a decade working in a freezing works.

He once smelt burning, only to realise his hand was resting on a hot element.

In 2011 he applied for cover for mental injury, after suffering anxiety attacks and disturbed sleep.

After initially being rejected, he remembers feeling intimidated when he arrived at the review, only to be confronted with a private lawyer.

"To me, it's an intimidation tactic. They're saying: 'we've got more money, we're going to put the best lawyers behind it because we're going to make sure you don't get cover'," Van Essen said.

The ACC lawyer cost over $3200, Forster said, while Van Essen was awarded $643 to cover his legal costs.

Another ACC claimant, 58, who wished not to be named, said he approached Van Essen this week to ask if it's normal for ACC to bring in private lawyers.

"I was shocked when I learned that they're fronting up with a top senior lawyer from Christchurch. It feels like they're going out of their way to deny our claims," said the man.

A report on ACC's dispute resolution system in 2016, prepared by Miriam Dean, QC, recommended the Corporation revisit the amount an applicant could claim back.

Consistent with the recommendations, amounts were increased in June by 17 per cent.

Forster said they still generally only covered about two hours of legal advice.

ACC is also investigating the establishment of a free nationwide advocacy service.

Forster led a study, released in May, which found up to 300,000 legitimate claimants incurred "unacceptable harm" every year when they were wrongly refused cover.

He said the situation was still "a million miles away from a level playing field".

In the 2015/16 financial year, ACC spent $5.6m on external lawyers and $2.3m on in-house services. Half of the external spending went on cases where ACC was the defendant. 

The top five external legal bills from last year for individual matters added up to over $956,000.

Lawyer John Miller, of John Miller Law in Wellington, said ACC was getting more aggressive in their defence of disputed claims.

He said doctors were reluctant to provide contradictory evidence to ACC for fear of repercussions, and he often had to approach doctors abroad to get a second opinion in compensation challenges.

"That again is another huge cost."

 - Sunday Star Times

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