After 34 years of service to his employer, slaughterman Joe Toa’fa found himself in the Kafkaesque world of a disputed ACC claim. Despite a court ruling emphatically in his favour, he’s still not out of it.

On June 26, 2020, Joe (Alo’a) Toa’fa was out of bed, as usual, before 4am to have his breakfast, help his wife do the dishes, and get out the door for work at Auckland Meat Processors by 5.30am.

He donned his PPE whites – gumboots, gloves, gown, hearing and ear protection – and at 5.55am sharpened his knife and prepared his tools. The first carcass would come down the chain to him at about 6.30am.

Toa’fa’s tasks as a butcher followed a repeating cycle of heavy, skilled labour on a production chain that processed about 100 carcasses every 15 minutes.

First, he would use a hook in his left hand to hold the rump of the animal, and with his right hand cut around the anus – a task requiring the full range of wrist movement as he manipulated the knife.

Next, he would cut open the abdominal cavity, and reach in to pull out the anus and discard it. Then he would deal with the stomach and intestines by reaching with both arms into the cavity to lift out the contents, which could weigh up to 30kg. He would then turn and place these in containers on a conveyor belt behind him, where he would also separate the liver from the other organs – a task requiring a strong grip.

The next task involved using both hands to cut through the animal’s sternum with large scissors. Finally, he performed what’s known as the “pluck”, wherein he would cut a V-shape through the diaphragm to remove the heart and cut the oesophegus to allow removal of the lungs.

He worked an average of 60 hours a week.

Toa’fa came to New Zealand from Samoa at the age of 19, working for Southdown freezing works, then the Ford assembly plant, before in 1986 going to what was then Auckland City Council abattoir. The plant was subsequently sold and these days trades as Auckland Meat Processors, owned by Wilson Hellaby.

Toa’fa worked for five years as a labourer, before becoming a slaughterman. He gradually progressed up the seniority ranks, and by 2020 – then aged 64 – he was the fourth most senior slaughterman on the chain.

He also tutored new workers, not for extra money but because of his philosophy that it is important to pass on knowledge. “The job, it [doesn’t] have a manual. You know where they get the manual from? It’s from here,” he tells Newsroom, tapping his forehead. “They [management] tell everyone, ‘Go to me, get trained how to do that job’… Management brings Indian, Chinese [workers] to me, because they know I treat them with my heart. I’m not doing it to get money, I do it because he’s a human being.”

He says he loves his job. “When we work over there it’s like a family … We don’t do it just to get money, but we are part of the company.”

Accredited employer

Toa’fa was in the process of lifting the stomach and intestines from a large mutton carcass to the conveyor belt on June 26, 2020, when the contents started to slide from his grasp. He grabbed at them to avoid dropping them to the wet and slippery floor. He wrenched his right wrist backwards in the process, and felt immediate and intense pain. He tried to keep working, but was unable to keep up full pace and was allocated light duties.

Auckland Meat Processors self-insures its workplace accident risk under ACC’s Accredited Employer Programme (AEP). Under the AEP scheme, accredited employers take on ACC’s role in assessing and managing claims for work injuries, and carry the financial liability for claims, in return for a reduction in their ACC levy. The intention of the scheme is to encourage employers to provide a better experience for injured workers at a lower cost, and to create an incentive for improved health and safety.

Like many AEP employers, Auckland Meat Processors contracts out its management of the scheme to a third party administrator. It uses WellNZ, a subsidiary of Marsh McLennan, a global risk management company with annual turnover of US$20 billion.

About two weeks after Toa’fa’s accident, WellNZ recommended him for cover. The injury was initially diagnosed as a sprain or strain, but an MRI later established that he had a tear in the triangular fibrocartilage complex (TFCC) of his right wrist.

Then, in November 2020 – nearly five months after the injury – Toa’fa was told his claim had been rejected. Unbeknown to him, his employer had sought a medical case review, questioning whether the injury was work-related.

The refusal of cover was based on the diagnosis of occupational physician John Monigatti that Toa’fa had a slightly elongated right ulnar (3mm longer than his left), and that the “vast majority of triangular fibrocartilage [TFCC] tears of this type are caused by cumulative wear and tear”.

Monigatti said the relationship between Toa’fa’s wrist injury and his work as a slaughterman was “aggravation by the work process rather than causation”.

No journal articles

Monigatti also argued there was no epidemiological evidence linking greater prevalence of forearm, wrist or hand tendinopathy in slaughtermen than in other occupations. Any increased risk for workers like Toa’fa would be “modest”, he said.

With the backing of the Meatworkers Union, Toa’fa sought a review, waiting until August 2021 for a hearing. Meantime, he continued on light duties, cutting open kidneys, filling in on the chain when there were shortages, and continuing to help train other workers.

He was classed as a labourer, and paid $7 an hour less than his normal slaughterman’s rate.

At the review, occupational physician Chris Walls challenged Monigatti’s view, commenting that the reason there was no medical literature linking slaughtermen’s work with a higher risk of hand and wrist injuries was that “such topics as this do not acquire funding”.

Walls pointed to Toa’fa’s “compelling history of unceasing hand/wrist activity” on the job, saying his exposure was “extreme”. He said Toa’fa was an example of the “healthy worker” effect, in which people with problems drop out of that line of work, but that he had “eventually run out of tissue resilience and repair”.

The reviewer preferred Monigatti’s evidence, agreeing that Toa’fa did not qualify for cover under the Accident Compensation Act.

Toa’fa and the union appealed to the District Court. Judge Peter Spiller heard the evidence in July this year.

By then, Toa’fa’s case had been reviewed by three more medical specialists, including orthopaedic and hand physicians Des Gorman and Michael Boland, and orthopaedic surgeon Vesudeva Pai, and images of his wrist anatomy had been examined by three radiologists.

Auckland Meat Processors, as second respondent in the appeal to the District Court, fielded a lawyer and argued that its employee of – by then – 37 years was not entitled to cover because his work as a slaughterman had not caused his injury.

“Palpably” greater risk

However, Judge Spiller preferred the evidence presented on Toa’fa’s behalf, concluding that the “risk of suffering his personal injury was significantly (palpably) greater for persons performing his employment task than for persons who do not.”

Toa’fa met all the statutory tests for cover as a gradual process injury, and ordered WellNZ to “proceed to determine any entitlements” that flowed from that cover.

But the Kafkaesque nightmare was not yet over. WellNZ did not advise him that he was now entitled to a top-up of his wages from the lower labourer’s rate to his slaughterman’s wage. Plus, more paper work and medical intervention was required: despite the District Court ruling in his favour, he was now told he needed certification from his GP.

When he turned up for work he was sent away to get the required documentation. Backwards and forwards he went, on the bus, to see a bemused GP who couldn’t fathom what was going on and what was required. In the end it took a long phone call from the union’s lawyer, Hazel Armstrong, to get the GP’s certification – 13 separate pieces of paper authorising that Toa’fa was able to do restricted work that did not burden his right wrist, covering three-monthly blocks dating all the way back to the year of the injury.

Finally, on September 8 – nearly seven weeks after the District Court ruling – WellNZ produced a spreadsheet of the top-up earnings owed, which came to around $73,000.

But Toa’fa has still not been paid.

And in the meantime, he has been told by Auckland Meat Processors that they don’t have any work for him. He says he rings every day to find out if they have anything, and for the past month the answer has always been no.

He tells Newsroom he feels hurt by the whole process. “I was in a dark place so many times about my injury. Sometimes I just … go to work and get sent home, you sit on the bus and think ‘What’s wrong with me’ … I used to wake up, go to my job, come home. I [would] catch the bus and usually I get off and time myself to [walk home], 15 minutes, 20 minutes, to get some exercise. Now you sit there, your head is down, your heart is down, your mind is down. You don’t know where to go…

“I haven’t done anything wrong. I hurt myself being on the job, a butcher. I am a permanent slaughterman. I lost my seniority. I don’t know where I am now, if I’m a labour[er]. It’s frustrating. My mana is gone. They hurt me, and we are the ones that make that place.”

Newsroom emailed Auckland Meat Processors and WellNZ to ask why Toa’fa’s case had been reviewed back in 2020, why the employer had continued to oppose cover through the two legal challenges, and why he had not yet been paid his top-up entitlement. Auckland Meat Processor’s health and safety and HR manager Shane Baty replied that privacy considerations prevented either his company or WellNZ from providing “specifics around this case”.

“However, we confirm that for all ACC claims, we engage with and follow the advice of experts in the field. This includes any return to work post-injury, which is assessed and managed alongside occupational therapists and medical professionals, together with department supervisors, to ensure a safe working environment for all. Joe is aware that if he has any concerns or questions surrounding his case, he can come and see us directly, or speak with his case manager.”

Accredited employer controversy

Auckland Meat Processors is one of 459 companies accredited to self-insure under the AEP scheme. It’s a moot point whether the handling of Toa’fa’s injury claim would have been better if he had been covered under the main ACC scheme; Armstrong, a member of the ACC Futures Coalition, which has long criticised the AEP scheme, says she sees similar situations for workers covered by the main scheme.

Nevertheless, the AEP has been highly controversial for most of its two-decade history. It was set up in 2001 by the Labour-led government of Helen Clark to appease the business sector, which was aggrieved by the renationalisation of ACC following a fleeting period of privatisation under the previous National-led administration.

Despite multiple reviews of the AEP over the years, it has remained largely unchanged. Twenty-one percent of workers are employed by companies in the AEP scheme.

Companies that qualify as accredited employers can reduce their work levies by up to 90 percent, according to ACC’s website.

Documents released to Newsroom under the OIA from the most recent review of the scheme show that it has not been delivering the improved claims handling and health and safety outcomes intended. An August 2019 update prepared for the ACC board listed “inconsistent worker outcomes”, a declining return-to-work rate for workers, poor worker experience, and low worker satisfaction (below 50 percent) with third party administrators (of which WellNZ is one).

There were “no incentives or mechanisms to drive continuous improvement”, data quality was inconsistent, and there were issues with communications breakdowns and the time to accept claims.

“Evidence shows many employers may not be investing adequately in keeping their workers safe, and that the tripartite nature of the programme has broken down to the detriment of workers,” the board was advised.

A 2021 ACC consultation document recorded discussions with unions over the performance of the scheme. It included complaints that third party administrators were promoting the cost-saving opportunities to employers rather than the potential for improved health and safety; claims processes that were “exhausting” for workers; managers coming under pressure not to report accidents or to mischaracterise injuries; and “low-paid workers being denied compensation for months on end”. The document also pointed to a conflict of interest inherent in the programme, with the comment that “TPAs [third party administrators] work for the business, not the workers”.

Audit reports released to Newsroom under the OIA show companies that have been prosecuted under the Health and Safety at Work Act, including Talley’s Group and its meat subsidiary Affco, and stevedoring company ISO, have remained in the AEP scheme and retained high ratings.

ISO’s 2021 audit, for instance, shows the company was at “tertiary” standard – the highest possible – despite health and safety failings including the death of Gisborne port worker Shannon Rangihuna-Kemp in 2018, for which the company was convicted in February 2021.

In July ACC minister Peene Henare announced the outcome of the latest review of the AEP scheme, including: “improved assessment” of claims and injury management; better performance monitoring of AEP employers, including the potential for poor performers to be exited; an updated audit process; and updated pricing options for employers.

ACC Futures Coalition co-convenor Glenn Barclay says the changes should lead to some improvement, although he is “not holding his breath”. He says the coalition would prefer that the AEP scheme was scrapped altogether, but in the absence of that, the move to more independent auditing of accredited employers, and the ability to remove employers who don’t measure up could make a difference. However, the changes won’t be fully operational until 2026.

Leave a comment