Frequently Asked Questions

Do you as the claimant have to use an advocate?

No. There is no need for you to have an advocate. However by instructing Declined Surgery we believe you give yourself the best chance of your review being successful. This is through Declined Surgery being aware of the process, the case law and ensuring that your case is presented as well as it can be.

Do you as the claimant have to attend the review hearing?

No. No one can make you attend the review hearing. Declined Surgery can make legal argument and present a witness statement in support of your case in your absence if you choose not to attend. However Declined Surgery think it is important for claimants to attend and give evidence and always recommend that clients attend the review hearing.

In very rare circumstances the reviewer will allow evidence from the claimant to be given over the telephone. If there is some reason you would not be able to attend a review hearing but want to give evidence then you need to give notification as soon as possible. This will enable a request to be made to the reviewer in advance for permission to give your evidence over the telephone.

Where will the review hearing take place?

The review hearing will usually take place at the most convenient DRSL hearing location for you. DRSL hold review hearings in approximately 25 locations throughout New Zealand.

What will Declined Surgery do to help you before the hearing?

Declined Surgery will prepare your case fully and properly. This may involve obtaining further medical evidence, negotiating with ACC, participating mediation, liaising with DRSL and writing both an evidential statement for you and legal submissions. Ultimately everything is done to ensure that your case is advanced in the best possible way.

What will your Advocate do at the hearing?

With the permission of the reviewer your advocate will introduce your evidence. This will be in the form of the statement drafted on your behalf. We will make legal arguments which will follow the written legal submissions  prepared in advance of the hearing. We will also respond to ACC submissions and deal with any other matters.

How can you represent me when we are based in different parts of the country?

Declined Surgery represents clients throughout New Zealand. With modern communications it is not necessary for us to meet up. The vast majority of Declined Surgery’s business is conducted through email or over the telephone. For efficiency, your advocate attends the hearing by telephone, as do, in most cases, the ACC representative. It is likely therefore that you will be the only person physically at the review with the reviewer. You may take a friend or relative along with you for support if you wish.

Who is the reviewer?

The reviewer is an employee or contractor for DRSL. He or she will have been appointed under Part 5 of the Injury Prevention, Rehabilitation, and Compensation Act 2001. Reviewers have a duty to Act independently under section 138 of that Act. Most reviewers are legally qualified or have significant experience in this area of the law.

How much will Declined Surgery charge you?

Declined Surgery offers you a service where whatever the outcome you will ultimately not have to pay any of the legal costs personally.

Declined Surgery will charge you the amount equivalent to the maximum award permitted under the Injury Prevention, Rehabilitation, and Compensation (Review Costs and Appeals) Amendment Regulations 2010.

If you are successful those costs will be paid by ACC. If you are unsuccessful the reviewer can still make an award for those costs providing he or she considers the review was reasonably brought. If the reviewer considered the review unreasonably brought and declined to award costs then Declined Surgery would not seek those costs from yourself, as you would have relied on our advice to bring the claim.

In short therefore your review costs would be paid by ACC and if they proved irrecoverable, Declined Surgery would waive the right to recover them from you personally.

The practical effect of this agreement is that at no stage would Declined Surgery seek money from you for your review costs. 

How long does the process take?

The time the process takes can vary. Once an application for a review has been filed the reviewer controls the process. The reviewer has an obligation under the Act to adopt an investigative approach and to conduct the review in a timely and informal manner.

The reviewer must set a hearing date within 3 months of the review application being lodged. The case need not be heard within that first 3 months, but a date must be set within that period.

A claimant can agree to waive that time limit and there are circumstances where it is advisable to do this, for example if  further medical evidence is needed.

After the review hearing has concluded the reviewer has a statutory obligation to provide their decision within 28 days.

There is no precise answer therefore as to how long the process takes.

Declined Surgery does everything possible to ensure that your case is prepared as fully and promptly as possible.

The actual hearing itself is usually scheduled for 1 hour. In most cases however, the hearing is completed within 20 to 40 minutes.

Will you get further evidence from my treatment provider?

Normally in all cases it is recommended to obtain further evidence from your treating surgeon or treatment provider. Declined Surgery believes that their evidence is pivotal in determining declined treatment cases.

Your treatment provider may charge a fee for providing a further report. Although you would be responsible for that fee initially Declined Surgery would seek to recover this from ACC. The amount the reviewer can award for such fees is limited to $935.54 which usually more than covers the cost of the report. Declined Surgery would not request a report from your treatment provider without obtaining your prior approval and checking the likely cost. It is usual practice to request that the treating surgeon defers payment of their report fee until the time of the hearing. This means that you as the client are not out of pocket in the meantime.

To attend the hearing you may lose earnings and incur travel costs. Can you reclaim these?

The reviewer is able to make an award for lost earnings or travel expenses in attending the hearing. This is usually asked for at the end of the hearing. These expenses are capped and are at the reviewer’s discretion.

What happens if the reviewer decides in my favour?

If the reviewer finds in your favour then ACC will have to fund the treatment you sought.

What happens if the reviewer decides in ACC’s favour?

If the reviewer finds in ACC’s favour then effectively they are saying ACC’s decision was correct.

You have a right of appeal to the District Court. Although we can act on your behalf in any appeal the costs rules are different and we could not Act on the same basis as we had at the review.

I have been declined by ACC for something other than surgery….can you still help me?

Although specialising in declined surgery, it may also be possible to offer advocacy services for reviewing ACC decisions which relate to other issues. This is decided on a case by case basis. If you have an issue other than declined surgery which you are wishing to review ACC’s decsion on then please get in touch at maryanne@declinedsurgery.co.nz. We can then advise you as to whether we are able to assist.

If the question you would like answered is not here please email maryanne@declinedsurgery.co.nz