A disabled Wellington man injured in a diving accident had his ACC support cut off seven years ago. For many disabled Kiwis ACC is not available because there was no accident. In part two of a three-part series Cate Broughton examines how we treat those with disabilities – with and without ACC.

John McGough can remember a lot about the day he broke his neck.

It was a beautiful summer's day and he had been enjoying the view from his flat across the road from the beach at Petone.

He decided to go for a dip.

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"I'd been taking my time to get in and was about up to my thighs when I turned around walked back and took a running leap before diving in."

He can remember seeing the bottom of the seabed, realising he could not move and that was going to run out of breath. He remembers blacking out. He remembers a man telling him "you have broken your neck" and to be still.

That was 1996. At the time McGough was working as a manager and chef in Vivo Cafe.

Today, aged 49, he lives in a cramped and unkempt Lower Hutt bed-sit.

ROSA WOODS/STUFF Before his accident John McGough was working as a manager and chef in a cafe.

Every corner and surface is covered with years of accumulated belongings and documents that are physically and mentally overwhelming him.

Last month his landlord declared it a fire risk and issued an eviction notice.

McGough said a combination of stress, depression and lack of home help for the past seven years had taken a toll on his life.

That was when ACC stopped his weekly compensation and three hours per week of home help.

"I just fell into a complete malaise."

ACC CUTS SUPPORT FOR ALLEGED 'NON-COMPLIANCE'

After the accident, the Burwood Spinal Unit in Christchurch diagnosed his injuries as C4 incomplete tetraplegia.

In the following years he was forced to adjust to a damaged body and brain including - a permanent limp, spasticity in his upper and lower limbs, and periodic pain and numbness in his arms and hands.

Anxiety and depression developed almost immediately and he was diagnosed with a major depressive disorder in 1998.

He received ACC cover for his injury and entitlements including treatment, home support, vocational training and weekly compensation.

Except for a brief period in an administrative role he has not been able to work.

ROSA WOODS/STUFF John McGough now faces eviction from his bedsit as it has been deemed a fire risk.

​McGough's relationship with ACC started deteriorating in 2007.

In 2011 ACC said they wanted McGough to be assessed by a neuropsychiatrist.

​He was asked to give permission for his medical file to be sent to the specialist ahead of the assessment.

But McGough said he wouldn't sign the consent form until ACC ensured they would include a full list of his medical records.

ACC terminated his weekly compensation in April 2011 for non-compliance.

In 2014 ACC's use of the controversial consent form to terminate claimants' entitlements for non-compliance was found to be unlawful by the District Court.

Under huge stress, McGough signed the form but made it clear in letters to ACC and the Minister, this was done under duress.

An appointment with the neuropsychiatrist was scheduled but McGough did not attend.

THE QUESTION IS: 'WHO WAS BEING UNREASONABLE?'

ROSA WOODS/STUFF John McGough says he feels overwhelmed by his situation.

In response, ACC terminated all of his entitlements despite numerous medical reports confirming his frail mental state.

At a review of ACC's decision in 2012 the reviewer agreed with ACC's decision saying McGough had unreasonably refused to attend a medical assessment.

A spokesman for ACC told Stuff on July 11 that the entitlement was stopped because McGough refused to attend the appointment with a neuropsychiatrist.

"John never identified the information that he believed to be incorrect; nor did he provide any statement of correction."

Barrister Warren Forster, who represented McGough at a conciliation meeting on July 12, 2018, said McGough had repeatedly raised his concerns about incomplete or incorrect information on his file.

A letter McGough wrote to ACC in August 2011, seen by Stuff, included a list of medical reports he asked to be included on his file and sent to the neuropsychiatrist.

He also asked ACC to correct the description of his injury as a "fractured neck" to "C4 incomplete tetraplegia".

"When he asked ACC to put all the information on the file, they ignored him. So the question here is who was being unreasonable? Is it John or is it ACC dealing with a man with a brain injury, a number mental and physical injuries, and struggling to cope," Forster said.

ACC PAYMENTS TO BE REINSTATED

ROSA WOODS/STUFF John McGough says when ACC support stopped he "just fell into a complete malaise".

At a conciliation meeting on July 12, ACC agreed to collect the records McGough had asked for in 2011. McGough agreed he would attend a medical assessment when that information had been supplied to the specialist.

Following this month's conciliation meeting ACC agreed to reinstate his payments and other entitlements, following another medical assessment. ACC admitted the agency "should have followed up" McGough's concerns.

On July 13 a spokesman for ACC corrected his earlier statement saying that in 2014 John identified information he believed to be wrong, and asked for it to be corrected.

"Most of these letters were directed to other agencies, however as we were copied in to that correspondence we should have followed up those concerns with Mr McGough."

The spokesman said ACC was working with John and his advocate following a conciliation meeting, "to support John's current and future needs".

He declined to say if ACC would provide McGough back-dated weekly compensation or an apology.

Forster said ACC's handling of the case had been disgraceful.

"They have not read the information on his case file and what they say cannot be relied upon."

Ross Giblin Dunedin barrister Warren Forster says ACC's handling of John McGough's case has been disgraceful.

McGough said he would like an apology for the stress ACC had caused.

"There just seemed to be no recognition of the stress, given their abuse of power, just the absolute stress at my end."

He believes ACC did not address his concerns back in 2011 because they wanted an excuse to stop his entitlements.

"Ultimately it was just a tool to completely dis-entitle me."

Life had become much harder for McGough since having his entitlements cut.

His income dropped by between $150 and $200 a week and he had received no home help or rehabilitative support to address his physical and mental needs.

NZ'STWO TIERED SYSTEM FOR DISABLED 'DISCRIMINATORY'

DAVID UNWIN/STUFF Sarah Derrett's research found ACC support protected people from poverty and ill-health.

Injury prevention researcher Professor Sarah Derrett​ said many people with disabilities and injuries similar to McGough's were living with inadequate support because their condition was not caused by an accident.

The discrepancy in care was discriminatory and unjust, she said.

Two studies completed by Derrett and colleagues from Otago University in 2013 quantified the difference in median income and ability to return to work for people with and without ACC cover.

The first study assessed a group of stroke patients and a group with similar injuries from an accident and covered by ACC.

One year on, the income for stroke patients had dropped by 60 per cent, compared with 13 per cent for the ACC-covered group.

The difference in return-to-work ability was stark.

ACC SUPPORT PROTECTS DISABLED FROM POVERTY AND ILL-HEALTH

The injury group participants were three times more likely to be back at work than the stroke participants.

"These findings support the conclusions that earnings-related compensation and rehabilitation support, available to injured people via ACC, largely prevents the downward spiral into poverty and ill health," the research paper concluded.

A second study, also in 2013, assessed socio-economic and work outcomes over two-and-a-half years for people with a spinal cord injury, comparing participants who were covered by ACC and those who were not.

For the non-ACC group, median income declined by 45 per cent over 30 months (from $36,500 to $19,938) compared with a 15 per cent increase in the ACC group (from $40,000 to $45,900).

The study authors came to the same conclusion – ACC support protected people from poverty and ill-health.

Derrett said the findings reinforced the need for the ACC scheme to be extended.

ACC's founding father, Sir Owen Woodhouse recognised the potential for a "two-tiered" system in his report proposing the scheme, published in 1967.

"A man overcome by ill health is no more able to work and no less afflicted than his neighbour hit by a car," he wrote.

However, despite the logic of including that group in the scheme, Woodhouse said it would be too big a step to take at once and the need to establish a system for injuries was more urgent.

In the end he left it for a future government.

Derrett said the obvious first step was to trial an extension of ACC to people with serious illnesses.

"We've shown there's a huge difference when you have an inequitable system, let's investigate and see what happens when you extend ACC to some serious ill-people."

SCOTT HAMMOND/STUFF Iain Lees-Galloway acknowledged the discrepancy in support was unfair but says extending ACC cover would have massive financial implications.

Minister of ACC Iain Lees-Galloway acknowledged the discrepancy in support was unfair.

"I'm sure every electorate MP has dealt with cases, has advocated for people who are not entitled to ACC under the rules that we have."

But changing the system and extending ACC cover would have massive financial implications he said.

"There's certainly room for a broader debate but that's a big debate that the public need to have - and I haven't yet seen an overwhelming public desire for change of that magnitude."

Derrett said concerns about cost was "short sighted" as it ignored the benefits of preventing people from falling into poverty and long-term unemployment.

"At the moment, beyond limited means-tested WINZ allowances and entitlements which can be very difficult to access, New Zealand is turning a blind eye to the harms for people experiencing serious illnesses and this needs to change".

TWO-TIER SYSTEM A BREACH OF DISABILITY RIGHTS

ROBERT KITCHIN/STUFF Dr Esther Woodbury says NZ's two-tiered system for supporting those with disabilities is discriminatory and a breach of human rights. "To my knowledge there's no where else in the world where there is this kind of distinction over origin of disability."

National policy and relationships manager for Disabled Persons Assembly New Zealand Dr Esther Woodbury said ACC did not work perfectly but those who were covered often received better equipment and support than those relying on welfare and the public health system.

In her research Woodbury compared the access of two disabled men to a modified car.

The man who was covered by ACC received funding of $140,000 for a fully modified van for his electric wheelchair, including automatic doors. The vehicle allowed him to continue working, attend his children's sports games and live an independent life.

The other man, who also relied on a wheelchair, was born with a condition which caused disability. He had applied for and received funding to get his car slightly modified but he had to lift his wheelchair into the car and lift himself into the drivers seat.

After years of doing this he injured his shoulder joints, could no longer use his car and was forced to rely on his partner for transport.

Woodbury said the two-tiered system was discriminatory and a breach of the Government's obligations as a signatory to the UN Convention on the Rights of Persons with Disabilities.

"To my knowledge there's nowhere else in the world where there is this kind of distinction over origin of disability."