I have been speaking up about my experiences going through the compensation process for mental injury of post-traumatic stress disorder (PTSD) with Accident Compensation Corporation, ACC in New Zealand. Mostly on my vlog, Bipolar Courage.
Two psychiatrists assessed me and had completely different 'Whole Person Impairment' (WPI) percentages. Even if they were to be averaged, I would have still met threshold for compensation. The way things are done, legally, one report has to be chosen over the other. A third psychiatrist reviewed the two reports and chose ACC's one which had a pile of errors in it (so bad that I made a complaint to the Health and Disability Commissioner, who was next to useless, as they told me to deal directly with this psychiatrist).
I represented myself (even though I qualified for legal aid) and went all the way to the District Court. The Judge ruled against me. There are laws that protect the superpower of ACC, who are law experts themselves. I have also cut and pasted the relevant law used by the reviewer for the first hearing and the relevant law used by the judge for the re-hearing, so others doing this process can know what they are up against. A corrupt system, in my opinion. An abuse of power.
Court ordered name suppression
At the top of the top of the District Court's judgement report about my hearing, it states:
PURSUANT TO S 160(1)(b) ACCIDENT COMPENSATION ACT 2001 THERE IS A SUPPRESSION ORDER FORBIDDING PUBLICATION OF THE APPELLANT’S NAME AND ANY DETAILS THAT MIGHT IDENTIFY THE APPELLANT
Relevant Law in the act
160 Court may make order prohibiting publication
(1) The court may make--
(a) an order forbidding publication of any report or account of the whole or part of--
(i) the evidence adduced; or
(ii) the submissions made:
(b) an order forbidding the publication of the name, address, or occupation, or particulars likely to lead to the identification, of--
(i) a party to the appeal; or
(ii) a person who is entitled to appear and be heard; or
(iii) a witness.
What this means
I am not a lawyer. I represented myself against a decision by a multibillion-dollar entity of ACC, represented by one of the biggest legal firms in the country. I do know what it is like to go through the process (it's very stressful).
ACC paid for my therapy but at the lump-sum compensation stage, would have spent more on doctors and lawyers to fight me. ACC spend millions on their chosen specialists and lawyers. It's well known in New Zealand that it is like a David vs Goliath situation. The compensation is very small for PTSD, usually between NZ$3,000 to $6,000.
The court document has referred to me as unique initials assigned to me.
Section 160 (1) (b) of the Accident Compensation Act 2001 applies, not part (a).
My understanding of this, if any judge or lawyer or the media were to make reference to my case, then I am not permitted by law to be identified. I expect that includes me identifying myself, hence my being vague, yet I will not be silenced over what I see as corruption by powerful systems.
I was not represented by anyone, nor did I have witnesses. The judgement was reserved, which meant I wasn't told the decision at the time of the hearing. I was informed by the Court later in writing.
From what I gather, the name suppression order is quite common with 'sensitive claims' (sexual abuse) cases, like mine.
What was in the judgement report?
The first part stated that it was an appeal under Section 149 of the Accident Compensation Act 2001 ('The Act'). That there was an unnamed "appealant' (me) with Accident Compensation Corporation as the 'respondent'. It named the solicitors who represented ACC. Also the Judge of course, was named and the Judge signed the document.
I won't name any of them in the interests of being vague but the Judge was swapped out to a different one just before my hearing. I wasn't told why but the Judge is one of the most highly qualified in law judges in the country. If in the very slim change I had won, this would have been considered to be a 'landmark case.'
There were the following sections in the report:
This brief section stated that I was appealing a review decision to decline lump sum compensation for my injury of PTSD.
This was a long section with some personal details about myself and why I have the injury, plus various history, mainly focussed on the assessment process. It includes quotes from the two conflicting impairment assessment reports by psychiatrists plus a peer review by another psychiatrist. It states that I lodged a Notice of Appeal (this has to be done very soon after the appeal decision is given).
To my surprise, the Court cherrypicked two parts from my medical records about my mental state and paraphrased their interpretion of it such as 'no delusions' to support their judgement. Since when were the Court medical experts?
I cut-and-pasted the relevant law section to another blog post, as it's pretty generic, I believe, to similar cases. I noticed that it was all 'case law' (referring to previous case judgements). So I thought that was pretty subjective. I made reference to some law in my submission from a previous case in the media that had similarities to mine. This was ignored in the report.
This section was repeating what the issue was from the introduction plus the judge's interpretation of the relevant law (which I thought was surprisingly subjective). It mentioned the regulations under the Act, that the whole-person impairment was carried out by an assessor using the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA4).
Nothing was mentioned that ACC have a heirachy of their own documents over the AMA4 and that the AMA4 is considered by many medical professionals to be outdated. There was a comment that the psychiatrist who did the assessment was required to use these guides by the regulations.
There were statements that the appealant (me) must show by clear, cogent and compelling expert evidence that the first assessment was flawed in the way the AMA Guides were interpreted or because all aspects of the appealant's injury were not considered.
It's biased from the start, as it's nearly impossible to shift the first impairment assessment, from an assessor chosen by ACC. There was a statement that the assessment by a second psychiatrist, well in my favour for compensation, was a 'mere difference of opinion between specialists'. There was a statement that even if there was a deterioration in medication condition between assessments, that that does not affect the validity of the first assessment. Same excuses used at the review stage.
There was a summary of my 'submissions' (my arguments in writing and at the hearing, supported by my evidence). To my annoyance, the judge completely omitted some of the key parts of my argument. One of these, was that there were actually three copies of the report and the decision was made on a report that wasn't further amended. I supplied evidence in the form of a hospital report that contradicted a decision made by the peer reviewer. I provided several hundred pages of evidence, including over 200 pages of relevant historical medical records. Opening up very personal parts of my life for scrutiny.
My evidence was dismissed as 'indirect', as the records did not directly challenge aspects of ACC's chosen psychiatrist's assessment report. An independent psychiatrist said it's too complex and too time-consuming to try challenge another psychiatrist's report. He wrote me a general letter which was only vaguely mentioned, as though it was only my opinion. His opinion was pretty much dismissed, as he wasn't trained to do impairment assessments (trained as per ACC's ways). Other psychiatrists said they could only do an impairment assessment from scratch, at huge expense. This option is pretty useless, legally, as it can be dismissed as a 'mere difference of opinion between specialists.
The Court basically rehashed the review decision arguments (very subjective in my opinion). That basically the second psychiatrist did not directly challenge the first psychiatrist's report in a compelling way. So here's the thing, they don't want just a reassessment. They want for the specialist to directly challenge ACC's chosen specialist. Like, what medical professional will risk their career doing that? Incidently, the psychiatrist who assessed in my favour bailed as soon as it turned legal. Other psychiatrists said they would only do it if they got to do another assessment (a few thousand dollars).
The Court dismissed my evidence that showed that the peer reviewer report was flawed (which the decision was made on). Noted also that my own assessment is not valid (all my words were dismissed at the review stage also. I wasn't even able to correct factual errors in the report. There were numerous errors and even falseholds in the report - that's why I challenged it).
The Court decided that there must have been a deterioration of my medical condition between the two assessments and that still does not affect the validity of the first report.
There was mention again of the cherrypicked remarks from doctors from my medical records. Even though this was neither in my submissions, nor do I recall in ACC's solicitors' submissions (I don't recall exactly what was said as it was very intense). I wasn't allowed a transcript of the hearing to check (whereas I was allowed a transcript at the independent review stage, which confirmed that I had been paraphrased incorrectly to change meaning).
'Apportionment' was used to reduce me to below threshold for compensation. Apportionment is basically blaming anything else they think could be a reason for impairment. In my case, they blamed bipolar disorder, which they say is not covered.
I had tried to argue using recent journal articles that bipolar disorder should be part of my mental injury. The judge dismissed my use of journal articles, even though another similar case had won with a similar argument (but with schizophrenia).
This short section said that 'the appealant' did not establish that the impairment assessment on which the decision to decline lump sum compensation was incorrect. The whole thing is biased from the start.
The Judge made no order as to costs. My costs were hundreds of dollars spent on printing and scanning. My efforts of countless hours were not counted as 'costs' as I am not a lawyer. I was awarded costs at the review stage (the extra I had to pay for a psychiatrist above what ACC paid initially towards the psychiatrist).
Would you believe, I am actually eligible for reassessment. I didn't want to go through with it, as it's so stressful and the system is biased from the start, but am applying to do it. Note that an impairment assessment will only be considered after an injury is considered to be 'permanent and stable' (ie had a few years therapy for PTSD, in my case).
I have decided I am not done with it until I have given it another shot, as it very much depends on who you get as an assessor. It's in the media that a lawyer who fights ACC said it's always the same names that pop up in legal cases.
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Xanthe finds creative expression including writing and painting to be therapeutic and helps her to manage her diagnoses of bipolar disorder and post-traumatic stress disorder (PTSD).