Long term pain from back problem— ACC—manner of obtaining report-delays in review process
This case is a good illustration of the complexities in which a long term claimant on the Accident Compensation Corporation can become immersed and also of the need for tolerance and understanding on the part of Corporation staff, particularly when dealing with claimants who suffer from long term pain.
The claimant had been involved in a motor accident in 1980 and had suffered from back pain ever since. He also had the misfortune to have a second accident in 1984, resulting in a shoulder injury. After the 1980 accident, the claimant was able to return to work, but he needed continuing medical treatment, for which he had to pay, and he also lost wages through taking time off. As so often happens with back problems in an older person, there was doubt as to how far his pain and disability stemmed from the accident and how far they could be attributed to natural degeneration of the spine with age. The claim was eventually accepted, but the process seems to have left the claimant with an attitude of suspicion and mistrust towards the Corporation in general and the management of its district office in particular. This was aggravated by the complainant’s irritability and short temper, which were no doubt attributable in part to his problem with long term pain. It was also not assisted by the fact there was some question as to how far his undoubted disability affected his ability to work.
Various treatments were tried for the back pain, but very little relief could be obtained. In 1981 there had been an assessment of 10 disability cases and this was increased in 1985 to 15. In 1986 the claimant felt that this was insufficient and requested a further assessment, suggesting that an orthopaedic surgeon, with whom he already had an appointment for assessment of the shoulder injury, should be asked to give a further opinion. His own general practitioner, however, when asked by the Corporation about any deterioration, felt there had been none since the 1985 assessment and accordingly the claimant was advised that no further report on the back injury would be obtained.
It was therefore a surprise to him to find when he kept the appointment with the orthopaedic surgeon that his back as well as his shoulder was to be examined. An argument ensued, and the report eventually supplied by the orthopaedic surgeon reflected the poor opinion that he had formed of the claimant. He also concluded that the claimant was fit to return to work.
Relying on the orthopaedic surgeon’s opinion, the Corporation decided to stop paying earnings related compensation to claimant. The claimant immediately applied for a review of the decision but did not obtain a hearing until nearly eight months had passed and had to wait a further four months for a decision. The decision was unfavourable and he appealed against it to Accident Compensation Appeal Authority, who, some three years after the original decision to cease earnings related compensation, decided in his favour.
Earnings related compensation was reinstated and substantial arrears paid, but the complainant was left with a strong sense of grievance that the Corporation had, as he saw it, kept him from his entitlement for so long he was convinced that there had been a sinister agreement between the manager of the Corporation’s district office and the orthopaedic surgeon to provide a basis for the cessation of earnings related compensation and that the long delays before reinstatement were evidence of a deliberate attempt to prevent him from receiving what was due to him.
It was the Ombudsman’s experience that, among the organisations within his jurisdiction, incompetence and poor communication are much more common than deliberate malice. Although the Ombudsman found evidence that Corporation staff considered the complainant exasperating and on occasion had treated him with less tact and consideration than would be expected, the Ombudsman found nothing to suggest that there had been the kind of conspiracy the complainant alleged.
Not long before the appointment with the orthopaedic surgeon, the complainant had had treatment for his back which involved immobilising him for a time. During this period he was unable to work and the treatment did not result in any improvement in his condition. It was therefore not unreasonable that the district manager should take the opportunity of the appointment already made for assessment of the shoulder injury to ask the orthopaedic surgeon’s opinion on the complainant’s current condition, prospects of future treatment and his ability to work. It was not the sort of further assessment that the complainant had requested and been refused.
It was unfortunate that the complainant was not advised of the intention to seek an opinion on his back injury, but by the time he complained to the Ombudsman he had already received an apology for this and the Ombudsman did not consider it necessary to take the matter further.
The Ombudsman was, however, concerned about the very lengthy period between the complainant’s application for review and the eventual reinstatement of his earnings related compensation. For a large part of that period, the case was before the Accident Compensation Appeal Authority, a body over which the Ombudsman has no jurisdiction, but he was able to enquire into the delay between the application for review in September 1986 and the hearing in May 1987 and also the four-month delay before a decision was issued. The Ombudsman found that the state of the complainant’s claims was complex. At the time of his application for review he already had an appeal before the Appeal Authority on another matter. He was represented by solicitors in respect of some of his claims but not others, and very shortly after he applied in person for a review of the decision to cease earnings related compensation, his solicitors applied on his behalf for a review of another unrelated decision.
Although the multiplicity of claims made the case hard to handle, the Ombudsman felt that it did not excuse the delay. He found that although the complainant lodged his application for review in September 1986, the file was not sent to the review division until March 1987. No real reason for this delay was put forward, nor for the delay between the review hearing and the review decision.
The Ombudsman was particularly concerned about this as he realised that the loss of earnings related compensation can cause substantial hardship and it has always been the Ombudsman’s understanding that ‘where a decision to cease payment is disputed, it is Corporation policy to ensure that the dispute is resolved as soon as possible, whether through the review process or by other means’. Ideally a claimant should be given sufficient notice of a decision to cease earnings related compensation to enable any dispute to be resolved before payments actually stop. Given the number of cases that review officers have to handle, the Ombudsman recognised that it may not be practical to attain such an ideal. In this case the Ombudsman concluded that the complaint should be sustained and he invited the Corporation to render the complainant an apology and to consider making an ex gratia payment to him as deprived of earnings related compensation.
The Ombudsman was pleased to report that the Corporation’s Managing Director accepted that there had been deficiencies in the handling of the case and compensation for the hardship suffered was warranted. It was agreed that an apology should be made to the complainant, together with a payment representing interest at 12% on the amount the complainant could have expected to receive in earnings related compensation between the date of cessation and the date of the review officer’s decision.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
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