Accident Compensation Policy - Equity and Social Justice

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Definition

"Health is a state of complete physical, mental, social and spiritual well-being, and not merely the absence of disease." (World Health Organisation definition). Health focuses not just on te taha tinana (physical) but also te taha wairua (spiritual), te taha hinengaro (mental and emotional) and te taha whanau (social — family and community) and the interconnectedness of these dimensions. Whare Tapu Wha — a model of a Maori understanding of health by Dr Mason Durie.

Vision

The Green Party's vision is for an holistic social security, health and disability system, focused on promoting good health, reducing the risk and impact of illness, impairment and injury, and improving quality of life. The Green Party supports the provision of equitable and adequate rehabilitation and compensation for people suffering impairment, and supports the restoration of the social contract envisioned in the Woodhouse Report from which the original Accident Compensation (ACC) scheme was derived.

Key Principles

The ACC policy sits within the overall framework of Green Party Health Policy and Disability Policy. The principles of those policies apply here. In addition the following specific principles apply to this ACC policy:

• The Green Party supports the principle of equitable rehabilitation for all people suffering impairment, regardless of whether that impairment has been caused by injury, illness or other disability.
• The Green Party supports moving towards a greater emphasis on social justice and equitable compensation for all people suffering impairment, regardless of whether that impairment has been caused by injury, illness or other disability.
• The Green Party supports health promotion and prevention of illness and injury as a priority for health investment.
• The Green Party supports the retention of public provision of rehabilitation and compensation for personal injury.
• The Green Party acknowledges that there is a need in some instances for specific risk-based levies to encourage injury prevention. The public provision for compensation will be funded through an equitable mix of levies on employers, employees, motor vehicle usage and general taxation.

Specific Policy Points

1. A way forward

Since its inception in 1974, ACC has been politically contentious and there have been five different substantive legislative changes to the Act. Many of ACC's original principles have been undermined by these changes. The Greens believe it is time for a renewal of the social contract formed when ACC was first established.

The Green Party supports a review of the accident compensation, social security and health and disability support systems of Aotearoa / New Zealand with the guiding principle of equitable rehabilitation and a greater emphasis on equitable compensation for people with impairments, regardless of the cause of the impairment.

2. ACC Cover for Personal Injury

There are substantial gaps in the legislation extending cover for injuries caused by work-related gradual process, disease and infection. Court judgments relating to work-related gradual process disease and infection injuries are inconsistent, especially in the case of injuries due to occupational overuse (fybromyalgia type conditions) and gradual chemical poisoning. Mental injury attracts ACC cover under the 2001 Act only if it is "because of physical injury" or the result of specified criminal acts or a discrete traumatic event in a claimant’s workplace. There is a need for clarification of the law regarding these aspects of cover to ensure all claimants are treated in a fair and equitable manner. The Green Party supports:

1. Ensuring that all people who have a genuine work-related gradual process injury, disease or infection, including occupational overuse injuries and chemical poisoning, can obtain ACC cover.
2. Ensuring that all people who receive unexpected and unintended injuries as a consequence of treatment are able to access ACC cover.
3. Restoring cover to all people who suffer only mental injury caused by accident, treatment, or work-related gradual process, disease or infection.

The 2001 Act provides a specific exclusion from cover for injuries that are "wholly or substantially" caused by a gradual process or disease or infection, other than when this is work-related. This is a commonly used "ACC exit mechanism" to terminate the weekly compensation and other entitlements of injured persons. Sometimes, this occurs in the face of several prior specialists' reports that link the injury, for which the person has cover, to their incapacity. The onus is on the claimant to demonstrate ongoing entitlement, which in many cases is expensive and stressful. In order to address these issues, the Green Party supports:

4. A review of the ACC legislation to ensure that, in instances where an injury causes an acceleration or exacerbation of a pre-existing condition, cover is extended and entitlements remain available for as long as the injury still remains a causative factor in a claimant's current condition.
5. Legislating to clarify that ACC has the onus of proving a claimant is no longer entitled to an ongoing entitlement before that entitlement can be suspended or cancelled.

3. Adequate Rehabilitation and Long-Term Compensation

ACC uses vocational independence assessments to determine if there are any occupations that a claimant has the skills, education, and training to undertake. If it is found that there is any such occupation that a claimant could potentially undertake, the claimant is found to be "vocationally independent" and weekly compensation ceases. This occurs whether or not there is any realistic possibility of a claimant actually holding a job. The Greens believe rehabilitation to the greatest extent practicable, rather than theoretical work capacity, ought to be the main focus of ACC. Compensation ought to be available long-term where an individual's realistic earning capacity has been permanently reduced. In order to better focus ACC work on vocational rehabilitation and compensation, the Green Party supports:

1. Ensuring that adequate and appropriate social and vocational rehabilitation is provided to people suffering injury-related impairments, so as to improve their health, independence, and participation in society to the maximum extent practicable, given their impairment.
2. Abolishing the vocational independence (work capacity) assessment for people receiving weekly compensation, with those who are unable to achieve their pre-injury earning potential continuing to receive weekly compensation, abated by such income as they are medically capable of earning.
3. Providing for assessment of permanent incapacity and the provision of a permanent pension for people assessed as being permanently incapacitated from employment as a result of their injuries.

4. A fair system of compensation for all

ACC was based on a social contract to provide a substitute income where a person's income earning capacity is impaired. To help achieve this in practice, the Greens believe:

1. ACC needs to include the full range of income earned by temporary and seasonal workers in calculating income.
2. ACC payments ought to be treated the same way as earned income when considering eligibility for income tested benefits

The Greens support:

Abolishing the current dollar for dollar abatement of income tested benefits when weekly compensation is payable and in its place implementing a regime under which weekly compensation is treated no differently from other income for benefit abatement purposes.
3. Introducing discretion to address inequities that arise in the case of injured people who have been working in seasonal or temporary employment, or who have received holiday pay, in the formula setting the level of weekly compensation. This will have the object of ensuring such people receive a fair level of compensation.

5. Ensuring adequate access to treatment

The introduction of ceilings on treatment costs in 1992, requiring injured workers to pay sometimes substantial co-payments, places New Zealand in breach of International Labour Convention 17, which requires that signature countries provide treatment at no personal cost for people who are injured in the workplace. The Green Party believes that co-payments compromise the underlying aim of ACC because they undermine the "no-fault" principle of ACC and deny access to appropriate treatment and rehabilitation to those who cannot afford to pay them. Cost-containment needs to be addressed through negotiations with providers rather than through the blunt instrument of regulation. In order to bring New Zealand in line with its international obligations, the Green Party supports:

1. Revoking the Injury Prevention, Rehabilitation and Compensation (Liability to pay or Contribute to Cost of Treatment) Regulations that impose ceilings on treatment costs, to ensure New Zealand's compliance with International Labour Convention 17.
2. Developing alternative methods of cost-control, such as contracting directly with treatment providers and assessors for the provision of services and negotiation in good faith with treatment providers' and assessors' professional associations on standard fees.

6. Culture of ACC

Despite the greater emphasis on rehabilitation in the 2001 Act, legislative changes restricting the definition of personal injury and the use of vocational independence assessments have contributed to an insurance focused culture of meanness at ACC. The speedy exit of clients is given priority over restoring a claimant's independence, health, and participation in the workforce to the maximum extent possible. In order to facilitate a cultural shift, the Green Party supports the development of a strong network of skilled claimant advocates operating across the country to ensure that claimants receive their entitlements. The Green Party will:

1. Adequately fund independent advocacy agencies to provide quality, professional advocacy services for people who are injured to support, assist and represent them in their dealings with health and disability agencies.

The ACC complaints investigation process is inadequate because the process is internal to ACC and there are limited remedies available to address breaches of the Code. The Green Party supports:

2. The creation of an independent ACC Ombudsman to take over the functions of the ACC Complaints Investigation Service.
3. The strengthening of the Code of ACC Claimants' Rights in order to provide meaningful redress for breaches of the Code.

The Green Party believes that the business of ACC should be ethical and supports:

4. The maintenance of a rigourous ethical ACC investment policy which prevents it from investing in enterprises that provide products or services that significantly increase rates of injury or illness or otherwise have significant adverse social or environmental effects.