Long time readers of this blog will remember than 5 1/2 years ago I was in a car accident that saw me suffer a herniated cervical (neck) disc and require disc replacement surgery. Readers will also be aware that the pain I lived (live) with did not end after that surgery and that when the Accident Compensation Corporation (ACC) went on to cut my entitlements, plunging our family into poverty (NZ definition) as I was the primary earner, I instructed John Miller Law in Wellington to fight their decision.

Matt and I were terrified at the possible $8,000 + bill we might face if we lost; trying to provide for our 4 children in Auckland on $15,000 p/a was extremely difficult as it was without a debt like that being added to the mix. We appealed on this blog for donations and with the help of those who generously gave, along with the generosity of John Miller Law, who more than once wrote off parts of my bill, we managed to keep the legal proceedings going even after we lost the Review Hearing.

I pressed on for a number of reasons. I firmly believe that ACC deliberately set about to exit me from cover by sending me to a doctor they knew would say I had degeneration. I believe this on the basis of the Court’s previous findings on Mr Otto and on the basis of his reputation among his peers – I have previously blogged my experience of phoning Orthapaedic Surgeon’s offices and sharing what those offices had to say about him to me. I also believe this on the basis of what happened at the appointment with Mr Otto – his pronouncement of my having a degenerative condition before he’d asked me if a single medical question and shortly before he shared that he had not yet seen my MRI, X-Ray or Bone Scan films and reports. I knew my condition was not degenerative or pre-existing: I was working full-time, studying part-time, raising 4 children, running a house and was engaging in equestrian sport on the weekends immediately prior to the accident.

The other reason I filed was for all the other people like me. I believed then, and I still do, that ACC did what they did to me (cutting me off by sending me to a specialist they know will say a condition is degenerative when other specialists would not) to many other people and that doing so was a numbers game for them – a way of cutting their bottom line. Cut x number of people off, only teeny proportion y will fight; of those who fight ignore them unless and until you are faced with a court date, then quickly settle before that court date to avoid the public damage the judgment of the Court can deliver.

We filed my appeal earlier this year. This consisted of three expert reports written by Orthopaedic Surgeons Greg Finch and Michael Barnes. We also filed affidavits from Matt and I, which we wrote ourselves. ACC offered to settle in full shortly after they were served: legal costs, report costs and full reinstatement of my entitlement, the maximum I could have won in Court.

More than one person said to me ‘but Madeleine, if you settle no light will be shone on ACC’s practices’. While I shared their concerns at the lack of a precedent being set if I settled, as a lawyer I know the Court’s view on people who refuse good settlement offers and press on to hearing. I took the settlement and resolved to shine light another way. I am one of the lead stories today on the New Zealand Herald’s website (and on the website of the Otago Daily Times🙂

Click to read: Mother wins 3 year fight with ACC

Mr Otto states in the NZ Herald article, after acknowledging he has no memory of my case, that I “would not have realised he could receive x-rays via email and that he would have seen them before diagnosing her”. I reject this. As I deposed in my affidavit:

[40] A few minutes after making his opening statement that my condition was degenerative, Mr Otto asked me if I had brought my x-rays, MRI and bone scans. I told him that I had not been asked to and that the other specialists I had seen had all been able to log into some central record holding place and view them so it did not occur to me to bring them. He told me that his office did not have that kind of technology but he would request copies of the reports and films. I offered to send them to him but he said not to bother as ACC had only sent him a letter which didn’t say much so he was going to have to request various things from my file anyway.

[41] In this moment it was clear that Mr Otto had made his statement about the purpose of the appointment being to discuss my “degenerative condition” in advance of asking me a single question, without having examined my x-rays and scans and on the basis of whatever ACC had communicated to him about me.

[42] It was also clear that Mr Otto had conducted the appointment with a predetermined purpose: to determine a degenerative condition. He had decided this was my diagnosis before the examination, before being in receipt of the relevant medical evidence. I did not have confidence his diagnosis post-appointment could be objective or unbiased.

My and Matt’s affidavits are here in full:
13.03.22 Affidavit of Madeleine Flannagan – Flannagan v ACC
13.03.22 Affidavit of Matthew Flannagan – Flannagan v ACC

This is the case I refer to in my affidavit where Mr Otto was found by the Court to prefer his degeneration diagnosis in the face of evidence to the contrary: Lu-v-Accident-Compensation-Corporation-2011-NZACC-45 (A New Zealand Herald article about that case is available here)

ACC said in the NZ Herald article “An ACC spokesman said it found the consistency and rationale of the two specialists’ opinions “more compelling” than Mr Otto’s report. “As a result ACC decided to reverse its decision.””

I would like to stress that until ACC insisted (see affidavits) I see Mr Otto, every specialist and doctor who had seen me at that point said my issues were accident related. Mr Otto was the only one who said otherwise. Subsequant to Mr Otto’s report ACC were provided with 2 reports from Greg Finch and 1 from Michael Barnes  – these were the reports ACC found “more compelling” than Mr Otto’s – they were provided the first of these approximately 2 years before they settled, the others they received approximately 1 year before they settled. The service papers for my appeal containing these same reports they received a couple of weeks before they settled.

Make up your own mind as to whether is was “the consistency and rationale of the two specialists’ opinions” that caused ACC to reverse its decision or whether it was the threat of a court case.

I have to thank John Miller Law, all those who donated and encouraged me, Greg Finch, Michael Barnes, my church, my family and friends and especially my children and husband who suffered so much along side me – if it wasn’t for Matt going to my lectures and taping my classes and taking notes for me for me to attend to on the couch I would never have finished my law degree. I still live with pain today and it still impacts my life adversely but I am a lot better than I was and I continue to improve.

Update: For those wondering how I completed a law degree when I could not work, I refer you to Matt’s post Madeleine Admitted to the Bar where he outlines just what it took and how hard it was given my injuries. It is also documented in the affidavits I have published in this post.

NewstalkZB focussed on Madeleine’s case during the Leighton Smith show.

Tags:   ACC · Car Accident · Disc Replacement Surgery13 Comments