Madeleine Flannagan appealed against the decision to cut
her entitlements. Photo NZ Herald
A lawyer has won a three-year battle against ACC, which
claimed pain she suffered after a car crash was from
degeneration and not a neck injury.
When Madeleine Flannagan appealed against the decision to cut
her entitlements - and before the case could be heard in the
District Court - ACC accepted her injury was caused by the
accident and offered the Orewa woman a settlement.
It follows hundreds of cases in the past five years where
claimants have been turned down for cover or had their
compensation cancelled because of "pre-existing" or
Mrs Flannagan suffered a herniated disc in her neck after
being rear-ended by a car in March 2008.
An Auckland legal assistant at the time, she had an
operation, but her surgeon said it would take her up to four
years to fully recover.
A previously fit and active mother of four, she was forced to
quit her job - the main household income - because of the
In May 2010, ACC stopped cover after a diagnosis by
ACC-appointed specialist Brian Otto, who said the continuing
pain was caused by degeneration.
At the appointment, Mrs Flannagan, accompanied by her
husband, was stunned by Mr Otto's opening remark. "As he shut
the door and walked around his desk to his chair, he
announced, 'We are here today to discuss your degenerative
condition'," she wrote in an affidavit to the court.
In the affidavit the 40-year-old said Mr Otto admitted he had
not seen her x-rays and MRI scan, which made her believe he
had "conducted the appointment with a predetermined purpose:
to determine a degenerative condition". Shortly after the
appointment he diagnosed a "pre-existing degenerative
condition" as causing the pain and ACC stopped cover.
After the Dispute Resolution Services sided with Mr Otto's
diagnosis, the family were left renting a run-down, leaking
house and buying lower-quality food to save money.
"We went through hell," Mrs Flannagan told the Herald. "We
lived so frugally it wasn't funny."
Her income was reduced to $18,000 on an invalid's benefit but
she used an inheritance to buy a small house and finish her
Two new specialist reports, which she used in her District
Court appeal, said the herniated disc was caused by the car
crash. But before the case could be heard, ACC offered to pay
the entitlements and backdate them.
"It makes me sick wondering how many other people like me are
out there who did not deserve to have their cover taken away
and who if they just had the money, energy and tenacity to
fight would get it back."
Mr Otto argued he looked at every patient's x-rays and scans
before making a diagnosis. The retired specialist told the
Herald he had "absolutely no recollection" of Mrs Flannagan's
case but believed she would not have realised he could
receive x-rays via email and that he would have seen them
before diagnosing her.
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