Section 31 Injury, Prevention, Rehabilitation and Compensation Act 2001

Part 5 - A Principled Approach

125. The preclusions to cover presently in place create too many anomalies:

125.1 A person who becomes disabled and who is unable to work because they suffer RPS caused by the repetitive strain of using a keyboard in their workplace should be treated in the same way as a person whose hands are physically damaged by accident;

125.2 A person who suffers a heart attack or post traumatic stress disorder because of work stress should be entitled to cover;

125.3 A person whose life is decimated after being exposed to hazardous substances should be assisted, not frustrated in obtaining access to appropriate treatment and rehabilitation services.

126. A truly equitable and principled scheme should focus upon:

126.1 Assisting all members of society who become disabled or suffer sickness or injury regardless of the cause of their condition;

126.2 Providing basic entitlements to all who are disabled, or suffer sickness or injury.

127. The basic entitlements that should be provided are:

127.1 treatment; and

127.2 rehabilitation services.

The objective must be to ensure all who are disabled or suffer sickness or injury receive appropriate treatment and assistance with rehabilitation so as to ensure they participate as fully as they possibly can in our society.

128. The advisory panel believes that in an ideal world those who are disabled or suffer sickness should receive the full range of entitlements currently afforded to those who have cover under the IPRC Act. However the costs associated with such a dramatic extension of entitlements are likely to be prohibitive. Furthermore, there is a logical reason for distinguishing between:

128.1 Those who are disabled or suffer sickness; and

128.2 Those who are injured or suffer from an occupational disease.

That reason relates to the fact that at common law, some who were disabled by injury and occupational diseases had the option of seeking compensation through the Courts. Those who became disabled through sickness (not caused by their work environment) could not seek compensation. The abolition of common law claims, and the corresponding introduction of our no fault compensation scheme for those who suffer injury through accident and work related illness provides an explanation as to why those who are disabled or suffer sickness should not anticipate receiving compensation in the form of weekly compensation or lump sum payments. Persons in those categories have never received compensation for their condition.

129. Under no circumstances should current entitlements be reduced. The advisory panel believes there is merit in the view that the current three part test of causation should be retained as a means of assessing whether or not a claimant should receive more than the basic entitlements of treatment and rehabilitation services. It is important however that when a claimant is required to prove their condition was caused by a work environment in order to qualify for weekly/lump sum compensation that the test of causation be applied fairly and reasonably.

130. The advisory panel believes the time has now come to address the inequities caused by illogical distinctions which have been a hallmark of successive ACC statutes. In particular, the distinction traditionally drawn in New Zealand ACC schemes which has precluded cover for those disabled by (non work related) sickness must be remedied.

131. Undoubtedly this recommendation will be met by strong opposition about the costs associated with a significant change in policy. The advisory panel does not under-estimate those concerns but is adamant its recommendation should not be exposed to the same fate as the recommendations contained in the Law Commission's 1988 Report on Personal Injury: Prevention and Recovery. Accordingly, the advisory panel recommends a three step process to achieving the policy objectives articulated in this discussion paper.

Step One - Amending Schedule 2

132. The advisory panel recognises that difficulties are often encountered in employing a general formula to try and capture the conditions which are to be covered by the ACC scheme. The advisory panel also recognises that the task of determining coverage can be simplified for a great majority of cases by using a schedule which removes from debate the requirement to prove that a claimant's condition was caused by work related circumstance, where the condition is such that it is almost certainly caused by workplace exposure.

133. It will be appreciated that if the advisory panel's recommendation that "disability" replace personal injury as the entry criterion for cover, the need for Schedule 2 will be substantially reduced. The only remaining need for Schedule 2 may relate to determining the extent of entitlements.

134. The advisory panel believes Schedule 2, based as it is on ILO Convention 42, is outdated and fails to recognise a significant number of medical conditions caused by occupational environments. Schedule 2 urgently requires updating.

135. The advisory panel is aware the NOHSAC report contains an extensive review of occupational disease and injury in New Zealand. The diseases listed in that report should be used as a basis for re-assessing the Schedule 2 list. It is important that Schedule 2 retain the conditions identified in ILO 42 (in order that New Zealand honour its obligations under the ILO Convention). However, NOHSAC research provides a useful basis from which a revised Schedule 2 can be compiled.

136. The advisory panel recommends that NOHSAC and the advisory panel submit a revised Schedule 2 to the Minister. The revised Schedule 2 could be compiled in a matter of months and enacted by way of Order in Council pursuant to s.336 of the IPRC Act.

Step Two - Removing the requirement of proving physical injury

137. The current requirement that those who suffer gradual process, disease, and infection prove they have suffered personal injury as defined in the IPRC Act should be removed. This legislative change can be achieved relatively easily by re-drafting s.30 of the IPRC Act so as to make it clear that those seeking cover for a gradual process, disease, or illness prove they have suffered a disability, illness or injury regardless of whether or not they have suffered personal injury.

138. There are two aspects of this recommendation that require special mention:

138.1 The advisory panel is concerned to ensure that those who suffer debilitating work related stress induced conditions be entitled to cover regardless of whether or not they suffer physical injury. Concerns about "loose and vague" criteria for cover associated with stress can be met by ensuring that cover is provided to those who suffer a clinically diagnosable condition, such as post traumatic stress disorder. The Panel wishes to avoid cover being provided to those who subjectively feel "stressed" but have not succumbed to a properly diagnosable condition.

138.2 By re-drafting s.30 so as to avoid the need for a claimant to prove physical injury the Panel intends to expand the scope of cover to persons who have been disabled and whose disability was caused by the work environment of a parent or ancestor. This recommendation is designed to meet part of the concerns of representatives of SWAP who wish to achieve cover for children and grandchildren of persons exposed to PCP.

Step Three - Extending treatment and rehabilitation services to all who are disabled or suffer sickness or injury

139. A thorough and objective analysis needs to be undertaken to extending cover for basic entitlements (treatment and/or rehabilitation) to all who have become disabled or suffer sickness or injury regardless of the cause of their condition. The advisory panel believes that the recommendations in the 1988 Law Commission Report on Personal Injury; Prevention and Recovery must be revisited. That report suggested that the costs of extending cover to all who were disabled may not be as dramatic as initially thought if invalids and sickness benefits payable under the Social Security Act 1964 are used as a basis for funding entitlements under a new comprehensive scheme.

140. The advisory panel envisages most of the additional costs of expanded cover will need to be borne by society as a whole, rather than from the employers and self employed work accounts.

Conclusions

141. The current restrictions for cover for those who suffer personal injury caused by work related gradual process, disease, of infection create anomalies and inequities which should not be permitted to continue.

142. The Second Schedule to the IPRC Act is antiquated and should be immediately revised so that it reflects modern epidemiological and medical knowledge.

143. It is neither fair nor reasonable to preclude from cover persons who are disabled because of work but who cannot establish their condition involved personal injury as defined in the IPRC Act. It is essential that the requirement a claimant prove they have suffered physical injury be eliminated from s.30 of the IPRC Act.

144. Ultimately, all in our community who are disabled or suffer sickness or injury should receive the same basic entitlements to treatment and rehabilitation services. In an ideal world, those who are disabled and suffer sickness should also receive the same level of entitlements to weekly and lump sum compensation currently provided to those eligible for cover under the IPRC Act. Unfortunately questions of costs are likely to preclude an achievement of total equality, at least in the medium term. Current inequalities can be substantially addressed by ensuring that those who are disabled, or suffer sickness receive the same basic entitlements of treatment and rehabilitation services as others entitled to those services under the IPRC Act. To this extent, the time has come to give effect to the Woodhouse vision of removing distinctions between those who are disabled or suffer sickness and those who are injured.

Dr D B Collins QC

Committee Members:

• Ms Hazel Armstrong
• Ms Karen Below
• Dr Evan Dryson
• Prof Neil Pearce
• Mr Tony Wilton

An addendum prepared by committee member Mr David Wutzer will be submitted to you as soon as possible.

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