Report of the Ministerial Advisory Panel on Work Related Gradual Process Disease or Infection
Section 31 Injury, Prevention, Rehabilitation and Compensation Act 2001
Report - June 2004
Ministerial Advisory Panel on Work Related Gradual Process Disease or Infection
New Zealand
Terms of Reference
1. Section 31 Injury, Prevention, Rehabilitation and Compensation Act 2001 ("IPRC Act") requires the Minister responsible for administering the IPRC Act to appoint an advisory panel on work related gradual process, disease or infection ("advisory panel").
2. The functions of the advisory panel are set out in s.31(2) and (3) IPRC Act. The advisory panel's terms of reference include the provision of advice to the Minister on any matter relating to work related gradual process, disease, or infection. More specifically, the advisory panel is required to keep under review and advise the Minister on three subjects, namely:
2.1 Whether the second schedule of the IPRC Act should be amended. As explained later in this report the second schedule defines 17 occupational diseases which are deemed by s.30(3) IPRC Act to be caused by work related gradual process, disease, or infection.
2.1 How the Corporation deals with claims for cover for personal injury caused by work related gradual process, disease, or infection.
2.3 The definition of work related gradual process, disease, or infection found in s.30 of the IPRC Act.
3. In establishing the advisory panel, the Minister drew attention to the advisory panel's statutory terms of reference (as described in the preceding paragraph) and also invited the advisory panel to comment on "ACC policy and procedure relating to work related gradual process, disease, or infection".
4. The Minister for ACC established the advisory panel in June 2003. The panel has convened on eight occasions since its establishment and conferred with a number of interested persons and organisations.
5. The advisory panel has pleasure in presenting the following report. In this report the advisory panel has identified key issues associated with current scopes of cover for those who suffer work related gradual process, disease, or infection and propose significant changes to assisting those unable to perform their daily living activities.
6. This report is divided into the following sections:
Part I - Section 30 and Schedule 2 IPRC Act:
An explanation of s.30 and Schedule 2 of the IPRC Act 2001.
Part II - The Woodhouse Vision:
An explanation of the concerns and recommendations set out in the Woodhouse Report.
Part III - Parliament's Responses to the Woodhouse Vision:
An analysis of Parliament's response to the Woodhouse Report and the evolution of ACC statutes leading to s.30 IPRC Act 2001.
Part IV - Problems With the Current Law:
An analysis of flaws in the current law relating to the provision of cover to those who suffer personal injury caused by work related gradual process, disease, or infection.
Part V - A Principled Approach:
An explanation of the key policy changes recommended by the advisory panel.
7. The advisory panel recognises that further research is required to fully calculate the cost implications of the advisory panel's recommendations. An assessment of the fiscal implications of the advisory panel's recommendations is beyond the immediate resources of the advisory panel and requires input from the Department of Labour, ACC and the Treasury.
8. The advisory panel's report can be distilled to eight fundamental recommendations. Those recommendations are:
8.1 When implementing the changes recommended by the advisory panel it is imperative there be no reduction in current entitlements provided to those who have cover under the IPRC Act.
8.2 Schedule 2 of the IPRC Act should be updated as quickly as possible. This can be achieved by way of an Order in Council promulgated pursuant to s.336 IPRC Act. The National Occupational Health and Safety Advisory Committee's ("NOHSAC") experience and skill should be utilised in preparing an updated Schedule 2.
8.3 Cover for gradual process, disease, and infections under s.30 of the IPRC Act should be extended to all who suffer a work related impairment. Cover under s.30 should not be dependent on a claimant having to prove they have suffered a physical injury. This recommendation includes providing cover to those born with disabilities caused by the work environment of a parent or ancestor. The advisory panel recommends cover for impairment include cover for those who suffer a diagnosable psychiatric condition, regardless of whether or not they have suffered a physical injury.
8.4 All members of our community who require treatment and rehabilitation services as defined in the IPRC Act should receive those services regardless of whether their need for those services arises by reason of disability, illness, or injury, and regardless of whether or not their disability, illness or injury was caused by work events.
8.5 ACC's experience and understanding of delivering treatment and rehabilitation services should be utilised when providing treatment and rehabilitation services for all who require those services.
8.6 Inequities will arise if those who are disabled or sick do not receive the full range of entitlements provided to those who have cover under the IPRC Act. However, it is important to appreciate that entitlements to compensation under the IPRC Act and previous ACC statutes, replaced common law compensatory damages which were not normally available to those who were disabled or sick.
8.7 The advisory panel appreciates that its recommendations should be considered in conjunction with related studies and investigations being conducted by a number of entities. In particular:
8.7.1 The advisory panel's recommendations concerning amending Schedule 2 of the IPRC Act should be considered alongside the recommendations made by NOHSAC.
8.7.2 The advisory panel's recommendations that those impaired through sickness and disability should receive the same level of treatment and rehabilitation entitlements as those who currently have cover under the IPRC Act should be considered alongside the "Review of Long Term Disability Support Services: Achieving Equity of Access and Coherence with the New Zealand Disability Strategy" being undertaken by the Office of Disability Issues.
8.7.3 The advisory panel's recommendations should also be considered in conjunction with work and research currently being undertaken in relation to access to employment support and return to sustainable earning, being undertaken by the Ministry of Social Development.
8.8 The advisory panel should continue to review the progress of implementing its recommendations and the manner in which s.30 of the IPRC Act is administered. In particular, the panel will continue to assess how ACC applies the causation test discussed in paragraphs 94 to 124 of this report.
9 The recommendations set out in paragraph 8.2 should be addressed during the course of 2005. The recommendation in paragraph 8.3 is viewed as a medium term recommendation and should be achieved during the course of 2006. The recommendations in paragraph 8.4 and 8.5 are seen as being longer term recommendations that should be achieved within the next three years.