The Review Process
The Review process can seem very intimidating to the uninitiated. Changes brought about by the efforts of Acclaim Otago have resulted in a safer environment for Sensitive Claimants.
Sensitive Claimants should not be afraid to appeal decisions by ACC that are unfavorable. If your medical evidence supports your claim and you are represented then you are in an excellent position.
The review process is relatively straight forward. When ACC issues a decision that declines to provide cover and or entitlements, an automatic right to have that decision reviewed is triggered. The legislation that governs this part of the process is the Accident Compensation Act 2001 Sections 134 to 148. These sections describe the requirements and processes that apply to the review process.
Filing for Review
A claimant must file for review within three months of receiving the adverse decision from the Corporation. Obviously it is not helpful to the claimant to wait three months to file for review. It is best to file for review immediately after receiving the decision. Simply fill out the required form or provide your own letter with the necessary details. Send that form or letter with a copy of the Corporation's decision letter to the ACC Review Unit. In your letter simply state that you wish to file for review and submissions will be provided. This allows you to start the review process without having to wait for your submissions to be completed. Email your documentation to: ACCReviewApplication@acc.co.nz
Once you have filed your review the ACC Review Unit sends the matter to the CM in question for their reconsideration. This normally results in the Corporation providing a letter that will state that after careful consideration ACC is standing by its decision. The matter is then passed on to Fairway Resolution who will organize a reviewer to hear the matter and a date for the hearing. The hearing is normally held in the locality of the claimant if the claimant does not request otherwise.
The Review Hearing
The review hearing will be conducted in an informal manner, meaning the reviewer does not run the hearing like the District Court would for example. The hearing is recorded and Fairway policy is that the recording will start from the moment the hearing commences. The claimant or their advocate will normally be invited to make their submissions first and then ACC is invited to respond. The reviewer will hear the evidence and consider any medical reports provided by either side. The reviewer determines what is relevant and admit evidence on that basis.
The review hearing is not focused on the policies and procedures of the Corporation. The reviewer is not putting themselves in the Corporation's shoes and determining the correctness or otherwise of how the Corporation reached its decision. The reviewer is tasked with looking at the claim afresh on the basis of the evidence before him or her. As the review is looking at the matter completely afresh it is considered under law that any mistakes made by the Corporation are "corrected" by the separation of previous ACC process from the review process which is looking at the matter afresh. There is one exception to this procedure. An IRP review delves into the ACC side of the IRP negotiation so the reviewer can determine which party is being the most reasonable.
Once the hearing is complete the reviewer will generally end the hearing and provide their written decision within 28 days of the hearing. The reviewer may uphold the Corporation's decision, quash the Corporation's decision and substitute it with instructions or quash the Corporation's decision and find in favor of the claimant.
Organize Your File
The moment you decide to go to review then firstly file your application for the review and secondly send a direct request to the Corporation asking for your complete file. It is recommended that you ask for the file to be provided on encrypted disk. The are three reasons for this. A lot of claimants have large files and having a paper file several reams thick is a pain. The second reason is that paper files are inherently insecure and the disk version is much safer when it comes to prying eyes. The third reason is that information can be transferred easily from disk to PC whereas paper requires laborious scanning.
Compile all your medical reports and make a chronology listing the dates, names and qualifications of the medical specialists involved. Make three copies. One copy is for you, the second is for the review hearing and the third is for your treatment providers. Make a fourth copy to provide to your advocate should you choose to use one.
Security Guards at the Hearing
Sensitive Claimants often get distressed and upset and the Corporation is very quick to place such claimants on what is known as the Care Indicator. If a claimant's file is sent to Fairway with an active Care Indicator then Fairway's health and safety policy is triggered by default and security guards attend the review hearing. The reviewer has no say in the matter as this process is a Fairway administrative matter. You will know if this process has taken place by reading the review correspondence provided by Fairway. The best way to avoid this situation is to avoid direct communication with the Corporation and communicate through an advocate. No communication means no opportunity to label you as a threat.
The same reasoning applies to communicating with Fairway. If Fairway receives correspondence that comes across as a potential threat to the reviewer then Fairway can and will initiate its health and safety protocol independent of ACC. In the event security guards are required at the hearing then the claimant is advised to attend the hearing by phone which will negate the requirement for guards being present at your hearing.
Don't Be Your Own Worst Enemy
There are some claimants who elect to pursue spurious procedural arguments in an attempt to try and gain control of the outcome. The school of thinking appears to be that the reviewer will more likely find in favor of the claimant rather than expose themselves to all sorts of legal challenges and accusations. Some claimants encourage others to adopt this sort of tactic so I will tell you what will not happen. What will not happen is the reviewer deciding to favor the claimant because they want to avoid issues in the future. What will happen is if the reviewer can reasonably hold the view that the claimant is not adhering to the requirements of the process and self sabotaging the hearing then the reviewer will simply adjourn the hearing to be heard at a later date.
So now the claimant has succeeded in delaying their own outcome. Hardly a victory. But what is worse is now the reviewer will probably decide to impose conditions that no longer are focused on the convenience of the claimant. You will likely go to the back of the queue and there is nothing that can compel Fairway or its reviewers to move your claim to the head of the queue. Additionally the reviewer may impose conditions on the hearing such as hearing the matter at a venue that is convenient to ACC and or Fairway and too bad if that venue is in another city. The claimant can not complain as the claimant has demonstrated that they are being unhelpful in the review process and people deemed unhelpful lose many inherent rights that helpful claimants enjoy. Essentially your claim can end up in a legal limbo with limited recourse as it can be argued that the claimant has caused the situation. The best way to prepare for a review is to make sure that all your medical evidence is organized and if you can, get an advocate.
Don't Be Intimidated
It is easy to be overwhelmed by the thought of going to review and it is not unheard of that some Corporation staff members may give the impression that you would be wasting your time by implementing your rights. Fairway has informed me that is committed to providing a safe and consistent process for Sensitive Claimants. I accept Fairway's assurances based on my experiences with that organization.
What you decide to do next very much depends on your experience and what kind of decision you are dealing with. For example if the decision relates to weekly compensation then it is much more advisable to have an advocate. If the decision in question is an Office of the Complaints Investigator's decision under the code of claimants rights then you may decide to try going it alone due to the fact a loss will not hurt your entitlements 99% of the time.
If you have organized your file in the manner I outlined above then you are ready at the basic level to deal with your review. You can now focus on the next step in the process, the submission. It is at this point the process starts to become complicated and it is the time to decide whether you want to fight on your own or organize some help.