When ACC declines to fund the surgery that your specialist says you need, it can feel like the door has closed. It hasn’t. The review process exists precisely so those decisions can be tested — and where they’re wrong, overturned.
A common scenario may be a shoulder injury following a fall on to an outstretched arm. Initially, cover is granted for a sprain based on a first assessment by a physiotherapist or doctor. Most cases are sprains which usually resolve promptly. Some cases though involve a more serious injury which is only discovered after further investigation by a radiologist/orthopaedic surgeon. That radiology identifies a tear which the surgeon believes was an injury caused by the accident and seeks additional cover for the tear and funding to perform the surgery to address that injury. ACC then declines to provide cover for the tear and fund the surgery because it believes that the tear was caused wholly or substantially by non-accident-related factors e.g. pre-existing degeneration. On paper it’s a flat no. In practice, the medical picture is rarely that black and white.
Where these cases are won
The single biggest factor is usually evidence from the treating specialist, particularly where they have already performed the surgery. A clear, well-reasoned report that ties the need for surgery to the injury being caused by accident — and addresses ACC’s degeneration argument head-on — can shift the outcome entirely. Reviewers can also award up to $4,150 (inclusive of GST) toward the cost of that report.
Preparation is key: Lodging the reviews on time, reading the full ACC file, preparing a witness statement, seeking further medical evidence, and putting the legal argument clearly at the hearing. ACC can only exclude cover/surgery funding on current claims, where it can show that gradual process (degeneration), disease, or infection, are the whole or substantial cause. This allows for ACC to provide cover and fund surgery where there may be moderate or significant degeneration, providing that the accident was a material cause of the injury which now requires surgery. Even where gradual process (degeneration), disease, or infection, are the whole or substantial cause of the condition requiring surgery, cover is not automatically excluded. For example, if that current condition was caused or materially contributed to by an earlier covered injury/funded surgery, or was caused by a work-related gradual process injury, or treatment injury, then ACC can still provide cover for that gradual process (degeneration), disease, or infection. It is important to obtain a full and detailed history and to consider any earlier relevant covered injuries to the same body part.
The takeaway
A declined surgery decision is a starting point, not the end of the road. If a surgeon or specialist is already involved in your case, that’s exactly the situation where a review has the best chance of success. Getting good legal advice at an early stage is vital in giving you the best chance of success at review.
This is an illustrative scenario for general guidance only. It is not a description of a specific client’s case, and every claim turns on its own facts.