GQ Special Counsel Ellie Wilson gives her take on the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill.
The passing of the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill has been applauded for providing cover for birthing injuries.
But the Bill contains “other matters”, which have not garnered the same publicity. Amongst the ‘other matters’ are a series of small but significant changes with a broad reach – meaning this Bill likely will touch on most of us.
Cover for birthing parents:
Birthing injuries. Parents or not, we have all been regaled with tales from the delivery suite. We have heard of tearing, of sutures, of prolapses, and - usually - of recovery. Or at least, so we think when we see the new mum smiling benignly at her newborn in the pictures she releases to the world.
But for some birthing parents, this is not how their story ends. They are left with lasting, debilitating, extremely painful injuries. Some of these injuries are permanent. This is a no-brainer for ACC cover, you might think. But in cases where there was no injury caused by treatment, there was no cover available to these parents. To have cover for injuries caused by accident, there must have been an application of force or resistance “external to the human body”. 1
The Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill changes this position. From 1 October 2022, the definition of “accident” will be updated to include “an application of force or resistance internal to the human body at any time from the onset of labour, to the completion of delivery” - provided it results in a defined list of injuries. 2 The list includes 12 injury categories, including prolapses, tears, uterine ruptures, fractures, and dislocations. 3
It is clear, reflecting on the nature of the injuries to be covered, that this change is well overdue. However, this Bill has taken the unusual step of defining the list of injuries that are to be covered. This is a novel approach for ACC, with the result that cases on the margin will not be covered simply by virtue of not being on the list. The list is not necessarily permanent and is to be reviewed “as soon as practicable” after 25 October 2025. Recommendations for change may be made then.4 However, given the reactive nature of this review, and in the absence of any retrospective application, any change will likely come too late for those that need it.
So an improvement - but definitely baby steps.
Not a birthing parent? There's something for you, too:
As the name of the Bill suggests, there are “other matters” which it touches on. These smaller changes may not make headlines – but they do represent an overall more generous approach within the ACC scheme.
One of these relates to the Act’s consideration of “Vocational Independence” – or how you may be rehabilitated if you become too injured to go back to your pre-injury employment. In this circumstance, ACC will assess you to determine whether there are other jobs you could do instead, and will then rehabilitate you into this new role. Once this is achieved, your weekly compensation payments are stopped - whether you have found a new job or not.
Previously, your pre-injury earnings were only a discretionary part of this assessment. This meant that a surgeon earning at the height of their career could cease to receive their weekly compensation because they were now able to work as a parking booth attendant. That they could no longer pay their mortgage on their new wage was not considered a relevant consideration.
The new bill sees pre-injury earnings become a mandatory consideration when assessing for vocational independence.5 While we are yet to see how ACC applies these changes, it is hoped we will see a more compensatory approach to deciding when claimants are able to return to work. Note, however, there has been no change to the way in which “earnings” are quantified, and so issues will likely continue to arise for self-employed workers who draw a nominal or fluctuating income.
Additional “other matters” include that the test to qualify for work-related gradual process injuries (such as hearing loss or RSI) has been slightly broadened,6 and the threshold to qualify for cover for hearing loss has been reduced from 6% to 5%.7
Individually, these two changes represent a wider approach to cover and entitlements. In combination, we see a particular focus on access to support for those who suffer from hearing loss due to workplace factors. While these changes are beneficial for workers, it is also a reminder to employers to ensure their staff have adequate noise protection to reduce the risk of levy increases.
In all the changes under the new Bill represent a general widening of cover. While there is always more that can be done, these changes will doubtlessly lead to better cover and more generous entitlements for a number of New Zealanders.
If you require any assistance or advice in respect of ACC matters, please contact our specialist Ellie Wilson.
About the author:
Ellie is Special Counsel in our Family and Litigation Teams.
Ellie has particular interest and expertise in all areas of Health Law including ACC processes, complaints and investigations, civil claims, professional disciplinary processes, and privacy matters. She has worked from almost all angles in this space – including for patients, practitioners, regulators, and insurers. Her broad experience provides a holistic and practical approach to health care matters.
She has extensive and broad litigation experience, appearing in a range of jurisdictions from Tribunal level to the Court of Appeal. She also works within our Family Team, providing advice and expertise on relationship property matters.
2: Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill 2021, clause 6
3: At clause 17
4: At clause 6A
5: At clause 9
6: At Clause 8
7: At Clause 7