Application for Review
by
Mr Alan Simpson
A Decision made under the Injury Prevention, Rehabilitation, and Compensation Act 2001
(“the Act”)
Held at Henderson.
Date of hearing 5 June 2009. Concluded 17 August 2009.
Reviewer Mr Simon Buckingham. Concluded by Ms Michelle Donovan.
Present Mr Simpson (applicant), Mrs Marnie Simpson (in support). Mr Blair Edwards, his counsel.
Mr Rodney Gordon, attending as a witness. Mr Quentin Blair representing ACC, attending by teleconference.
Issue Whether ACC’s decision dated 3 October 2009 declining to fund surgery to Mr Simpson’s left shoulder was correct.
Decision
I quash ACC’s decision.
costs to the maximum allowed in the Regulations.
DECISION
(Made under section 140 of the Act)
Issue
The issue in this review was whether ACC’s decision dated 3 October 2009 declining to fund surgery to Mr Simpson’s left shoulder was correct.
ACC concluded that the need for the proposed surgery was not as a result of the covered injury in May 2008, but was to address a gradual process condition rendered symptomatic.
Preliminary matter
The hearing of this review was begun before Mr Simon Buckingham, Reviewer. Since conducting that hearing Mr Buckingham has resigned. The review was therefore re-allocated to me for a decision to be issued.
In preparing this decision I have reviewed all the material on the file and have also considered the evidence given at the hearing by listening to the sound recording of the hearing itself. I am therefore satisfied that I have considered all the information that is relevant to the issue in this review.
My decision
I quash ACC’s decision and as provided for in section 145(4)(a) I substitute my decision that ACC is liable to fund the surgery to Mr Simpson’s left shoulder.
I am satisfied that the need for surgery to Mr Simpson’s left shoulder was to treat injuries sustained in the accident in May 2008.
History of this issue
The events leading to the claim
In May 2008 Mr Simpson injured his left shoulder. He jarred it when a lawnmower he was attempting to start “kicked back”. ACC granted cover for a personal injury caused by accident, namely a sprain of the left shoulder and upper arm.
The entitlement sought
Mr Simpson then required surgery to treat a full thickness tear of his supraspinatus tendon. His orthopaedic surgeon, Mr Rodney Gordon, sought funding for this surgery. He diagnosed Mr Simpson with a tear of the tendons of his rotator cuff tendons. In making his diagnosis Mr Gordon had access to an x-ray and a CT arthrogram (Mr Simpson is unable to undergo an MRI as he has a metal implant tin his ear). In addition to the tear, the CT arthrogram notes significant retraction of the tendon and a number of other changes in the shoulder.
Mr Gordon certified that the surgery was required to treat a personal injury caused by accident.
ACC’s decision
ACC referred the funding application to its Clinical Advisory Panel (“CAP”). Based on the medical information available to it, and the CAP advice, ACC considered that the surgery was to treat a pre-existing gradual process condition, rotator cuff tendinopathy, which the accident had rendered symptomatic. It therefore declined to fund the requested surgery.
Mr Simpson disagreed with ACC’s decision and brought the present review.
The hearing is begun and adjourned part-heard
The hearing was begun on 5 June 2009 and evidence was taken from Mr Simpson and Mr Gordon.
The review was concluded on 17 August 2009.
Reasons for my decision
Under clause 1 of the First Schedule of the Act, ACC is only liable to provide entitlements where these are required as a result of the personal injury for which cover has been approved.
I have considered the evidence on this file, the evidence presented at the hearing by Mr Simpson and Mr Gordon, and the submissions presented by the parties. Having done so, I find that ACC’s decision is incorrect and should not be maintained.
I find that I prefer the opinion of Mr Gordon that the need for this surgery is directly related to the covered accident. Mr Gordon has had the benefit of examining Mr Simpson, taking a complete history from him and studying the CT scan first hand. Having done so Mr Gordon has certified that the surgery required is to treat a personal injury. I also place considerable weight on his further, detailed opinion of 5 January 2009.
I note that Mr Gordon has carefully reviewed the clinical imaging and has been able to provide a clear account of the changes in Mr Simpson’s shoulder as having been caused by the blow to the shoulder. I take particular note of Mr Gordon’s
finding that the degree of retraction noted was a factor of the extent of the tears rather than the duration of the problem. I also note that when operating to repair the tendon Mr Gordon found that the tendon was sufficiently stretchable to allow it to be repaired. He has stated that this would not have been the case had the tear been of longstanding, or to a degenerative tendon.
Conclusion
For the reasons set out above I quash ACC’s decision and find that Mr Simpson is entitled to have ACC fund the cost of the surgery to his shoulder funded by ACC.
Costs
I consider this review was reasonably brought. Therefore I award costs as follows, pursuant to the Injury Prevention, Rehabilitation and Compensation (Review Costs & Appeals) Amendment Regulations 2008:
Preparation and lodging of application for review: $114.40 Other preparation of case for review: $343.20
Appearance at the hearing $171.60
Total $629.20
Gordon’s attendance at the hearing, on the provision of an invoice for those costs being presented to ACC.
_________________________ M H Donovan
Reviewer
Date: 8 September 2009
Appeal Rights
All parties have the right of appeal to the District Court. For further particulars, please see the accompanying letter.
