ACC admits it failed amputee over unpaid entitlements

ACC has backed down, admitting it failed an Alexandra man whose left leg was amputated in 2021 following complications arising from a car crash in 1983, and agreeing to pay his family the full compensation he was entitled.

Alan Keith Nicholl - who was known to his friends and family as Keith - died in August 2022 aged 75 after suffering serious health issues in his later life due to the ongoing effects of the crash.

ACC was assessing Keith for coverage of his injuries at the time of his death, but when he died it told the family he was not covered and, as a result, not entitled to the tens of thousands of dollars of compensation he should have received.

The family fought ACC over its decision, even turning to the assistance of an advocate.

But ACC initially refused to revisit its decisions and only this year apologised to the family for its mistakes, and agreed to a $22,324 payment outside of the scope of statutory entitlements - the amount Keith should have received while alive for the loss of his leg - as well as a $5000 additional payment to recognise the family's extra effort in bringing the matter to a close.

Keith's family were relieved ACC had finally done what it should have done all along, but wanted to make sure no one else went through what they did.

Keith's daughter Karen Sinclair said she was ecstatic ACC had finally backed down.

"I'm over the moon that they've finally been held responsible," she said.

"It's all behind us, we can close it off," Keith's widow Ann Nicholl told RNZ.

Keith severed his thoracic aorta in the car crash in 1983. ACC provided weekly compensation until he could return to work. His family said the injuries Keith suffered were so serious, many people would never have returned to work.

"He couldn't talk for the first six months after the accident," Ann said.

But Keith did return to work and continued working until he was 72.

In 2015, he required surgery for a thoracic aortic aneurysm and suffered ongoing circulatory issues for the remainder of his life, which resulted in the amputation of his left leg below the knee in late 2021 and then further amputation above the knee in 2022.

Throughout 2022, the family sought cover and support for his injuries.

"We got sick of explaining it to everybody," Ann said. "You got a different person every time on the phone and had to go through it all again. I said 'you just wear people down' - that's why we give up because you wear people right to the ground and they can't be bothered fighting you anymore."

Keith died in August 2022 with ACC yet to decide on whether it would cover his injuries.

The corporation told the family he was not entitled to cover, so Keith's daughter lodged a review. ACC reiterated Keith was not entitled to cover, but offered a $2000 payment as an offer of goodwill if the family rescinded its review application.

"I was over it by then," Ann said.

The family was on the brink of taking the payment and walking away, but Sinclair was put in touch with ACC advocate Susan Church.

"She had then been told that there's no decision to review because they hadn't made a cover decision on him," Church said.

"Karen lodged the review, and they came back to the family and said you've got no jurisdiction - there's no decision to review, however, we'll offer a $2000 goodwill gesture if you withdraw the review. I said, 'I don't think so.'"

The family, with support from Church, fought ACC on its decisions.

Finally, on 19 January last year, ACC agreed to cover the injury - five months after Keith's death - and, as a result, accepted some back-dated compensation had to be paid, but not the impairment compensation for the loss of his leg.

"The thing with ACC is they wear you down so much that they know you will walk away," Sinclair said.

"Ninety-nine percent of people will walk away and not fight it anymore, and that's the awareness I want to get out there. Don't give up. Don't give up that fight, keep on fighting."

While ACC agreed to cover the amputation, because Keith had already died, the corporation refused to pay his estate the permanent impairment compensation he would have received had he been alive.

Church then sought a payment for serious service failure.

In May last year, ACC acknowledged they "could have done better" but denied there had been a serious service failure.

Church then wrote to then- Associate ACC Minister Willie Jackson, who sympathised with the family but said he could not intervene.

"I accept that ACC's decision may seem unfair. However, there is nothing further I can do to assist you on this occasion," Jackson wrote to Church.

And that was how the situation sat, the family seemingly at the end of the line - no apology and no further payment, despite everyone accepting Keith would have been entitled to the money if a decision was made when he was alive.

But in December RNZ requested an interview with ACC about the situation. ACC declined to be interviewed, but instead acknowledged they had let the family down.

"During the process of responding to the reporter's questions, we found we had not adequately addressed issues that happened in 2022," ACC wrote to Ann Nicholl in the wake of RNZ's questions.

"When your representative raised concerns with us, they highlighted several opportunities we had to provide the late Mr Nicholl with the right support in 2022. Regrettably, these opportunities were missed, and I want to sincerely apologise for this and acknowledge the impact this had on the late Mr Nicholl and you, his wider family, and support network."

ACC had now agreed to pay the family Keith's full entitlement plus the additional $5000 to acknowledge the extra effort the family had to go through to get what he was always entitled to.

"Our service in this matter and the initial investigation fell short of the standards we expect of ourselves, and that our clients have the right to expect from us," ACC wrote to the family.

"In December 2023, we re-looked at our decision for a payment outside the scope of statutory entitlements (POSSE), initially lodged by your advocate Susan Church. After careful consideration, we are approving your request for a POSSE.

"We have found that we committed serious service failures in 2022 when we failed to fully inform Susan about the correct process and did not take further action to act on their request for support for Mr Nicholl. Susan highlighted several opportunities that we had to provide the right support. Regrettably, these opportunities were missed, and I want to sincerely apologise for this and acknowledge the impact this had on you."

In response to further questions from RNZ, ACC acting deputy chief executive for service delivery Warwick Thorn said ACC acknowledged its mistakes in handling Keith's claim and reiterated its apology to the family.

"In February 2022, we received a request from Alan's [Keith's given name] family for support relating to the amputations that occurred in 2021 and 2022. While there was no initial indication that these amputations were injury-related, we later received medical information from Alan's vascular surgeon, and further medical notes after that, explaining that the amputation was linked to Alan's original injuries," Thorn said.

"We regret that after getting this information, we did not act with enough urgency in referring Alan for a further assessment, and we acknowledge our processes were not followed to the standard we expect."

ACC did not directly address why the result had only come after scrutiny from RNZ, but said: "Alan's family applied for a review in 2022 and cover was accepted in January 2023, after Alan had passed. We subsequently completed a posthumous assessment for Alan's [Permanent Injury Compensation] claim and issued a Payment Outside of Scope of Statutory Entitlements - which was the equivalent of what Alan would have received via the PIC assessment."

RNZ asked ACC if its refusal to revisit Keith's claim earlier was because of a fear of setting a precedent and whether there were any other people or families in a similar position of entitlement.

"We are not aware of any other situations similar to Alan's," ACC said.

"We always endeavour to do the right thing by our clients to ensure fair and correct decisions, regardless of what implications these decisions may have. We regret that in this instance, our processes were not correctly followed."

Church said she believed it was possible there was some concern about a precedent in ACC not taking the correct action earlier, but she also suspected it was a lack of experience in dealing with consequential injuries.

She was still angry at ACC's handling of the matter.

"Every step of the way I have given them every opportunity and shown them exactly the pathway and where things have gone wrong, and every time we got fobbed off," she said.

"It just made me angry that nobody stopped and said 'maybe we should look at this again'."

It outraged Sinclair that the family only received its full entitlement following scrutiny from the media.

"We've been right up to the Minister and we were still fobbed off - right at the top," she said.

Church said as a result of ACC's failure to make a decision on coverage, Keith was also unable to seek assistance from the wider healthcare system.

"Housing modifications is another thing ACC could've helped with had they actually put the cover through," Church said.

"Keith's brother put rails up in the toilet, the fire brigade put the ramp in," Ann added.

"You would think somebody would've been there to help - not just dad but to support the family - in what direction we need to go because he had his leg amputated and there was no support," Sinclair said.

Following the amputation, Keith even resorted to making his own prosthetic out of a piece of PVC pipe and a potplant holder, she said.

But that was the kind of man he was, someone who just got on with life and did whatever was needed to make it happen, Sinclair said.

"He did love this community, the community loved him, he would be there to do anything for anyone... he was just a bloody good guy."

His difficulty with the system persisted until the very end.

"Like his electric wheelchair... he did get one," Ann said. "But he didn't, because we were meant to pick it up on the day we buried him."

Church said Keith's case showed people needed to keep fighting for their entitlements.

"If you have an injury and then years later you've still got issues happening with that injury, make sure your doctor knows, make sure there's the paperwork and the paper trail because ACC are always of the policy that if it's not written down then it didn't happen.

"It could be something as simple as an ankle fracture and then ten years later you end up with arthritis in the ankle and that arthritis is there for a consequential injury. But things like that they would fob off and say it's degeneration."

While the family was pleased to have an apology, it was cold comfort.

"Great to have an apology, but it's a little too bloody late," Sinclair said. "All we can do is take it up to the cemetery and hope he's looking down and reading it."