Lawyer calls for ACC review of work-related cancer claims policy

lawyer-calls-for-acc-review-of-work-related-cancer-claims-policy

An experienced ACC lawyer is urging the corporation to review the way it assesses claims for people with work-related terminal cancer.

ACC logo

ACC logo. Photo: RNZ / Claire Eastham-Farrelly

Auckland lawyer Philip Schmidt, who has more than 20 years’ experience with ACC, has recently come across cases where funding for cancer drugs was turned down without assessors consulting treating clinicians.

Schmidt told RNZ he’d never seen this before. He says it needs to change and has urged ACC to review its practices.

ACC says it is having “constructive conversations” with Schmidt about his concerns.

Schmidt was approached by an insurance provider covering people with asbestos-related cancers whose treatment ACC said it wouldn’t fund.

In his experience such applications usually weren’t problematic but, in the handful of cases he dealt with, it seemed funding was declined because the drugs weren’t on the Pharmac-approved list.

That doesn’t mean ACC can’t pay for them, so long as they meet the corporation’s criteria, including cost-effectiveness.

In the cases before Schmidt, which have since been sorted, ACC didn’t talk to the patients’ treating oncologists or seek reference to their notes, instead relying on paperwork such as letters, which weren’t as detailed.

Deciding whether to fund a drug, including weighing its cost effectiveness, might only be possible if an assessor is fully aware of why it was prescribed to a patient, Schmidt said.

“What it means is that ACC don’t have the right clinical information that they need to make that decision.

“What they should do is obtain the notes from the person’s general practitioner, which will often have a record of the oncology treatment and sometimes an explanatory letter from the oncologist.”

If they weren’t present, Schmidt said the ACC assessor should contact the oncologist to clarify why a drug was prescribed.

Funding decisions needed to be made with the full range of information available, due to the vulnerability of clients who had suffered treatment injuries or workplace cancers.

“Because they are in a vulnerable position the last thing they need at this time in their lives is to be involved in a dispute with ACC about the appropriateness of medication.

“They deserve to be treated with the utmost care, which means that ACC must make every effort to find out what the oncologists’ reasons are before treatment is declined.”

Schmidt was concerned the change in practice affected more than the people he had acted for, including people who might not have access to a lawyer or advocate.

Rejecting funding for drugs not funded by Pharmac might leave people in financial distress if they chose to buy them themselves.

“This is one of the most important issues that ACC needs to address,” he said.

“It should be raised with ACC’s board, who should oversee the clinical review of this practice.”

In a statement attributed to an ACC spokesperson, the corporation said it supported people with cancer caused by work-related issues or by treatment injuries, such as a misdiagnosis.

It said it sought appropriate medical information.

All claims were different and were assessed on a case-by-case basis, including the extent to which it received clinical opinion on top of medical practitioners’ information.

“Mr Schmidt is in touch with us directly to raise his concerns and provide us with information needed about the cases for us to look into this, which is welcomed and appropriate.”

Angela Calver knows how tough it is to battle ACC when looking after a family member with a terminal illness.

Her sister-in-law, Deanna Trevarthen, died in December 2016 from a lung cancer caused by breathing in fibres of asbestos off her father’s work uniform.

ACC rejected her claims for financial help because she wasn’t exposed at work, but Calver kept up the fight.

She eventually won in the Court of Appeal in 2021 when the court ruled her sister-in-law’s condition was a personal injury for which ACC cover is available.

Calver, now an advocate helping others deal with ACC, said fighting the corporation took its tool.

“It adds layer upon layer upon layer of stress because not only are you fighting ACC, you’re wondering what you’re doing wrong, you’re trying to look after someone who’s dying, you’re trying to find money for treatments that are being offered to you. They are usually trial drugs, so very expensive.

“It’s just so unnecessary and frustrating.”

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