Bonsor v ACC
Wellington District Court 2010
On 1 September 2008, 67 year old Mr Garnett Bonsor tripped and fell, falling heavily on his left arm and shoulder, immediately experiencing pain in his shoulder. ACC granted cover for a left rotator cuff sprain, although the symptoms of pain and limited function continued despite treatment. It was recommended he undergo surgery, which ACC declined to fund on 17 April 2009 based on the decision of ACC’s Clinical Advisory Panel, which stated “the most likely cause for the client’s condition requiring surgery is a long standing pre-existing outlet impingement syndrome with a probable contribution from age-related intrinsic tendon degeneration”. Mr Bonsor was unsuccessful in his review of ACC’s decision, and he appealed to the District Court.
Judge Beattie found the following points persuasive:
- The writer of the report of the Clinical Advisory Panel had not personally examined Mr Bonsor, nor had he personally examined Mr Bonsor’s x-rays.
- Mr Bonsor had no history of pain prior to the accident, which would have been evident had there been a “long standing pre-existing outlet impingement syndrome”.
- Mr Swan’s, Orthopaedic Surgeon, opinion the fact there was some degeneration in Mr Bonsor’s shoulder is quite normal for a shoulder of that age, which would not require surgery. There is good evidence that these kinds of changes are not necessarily symptomatic or functionally limiting.
Judge Beattie allowed the appeal, on the strength of Mr Swan’s evidence, that there was a causal link between the injury and the need for surgery, which was requested to relieve Mr Bonsor’s symptoms and repair the tear.
His honour concludes that “the Court has now heard and considered a significant number of cases on appeal where the respondent’s decision to decline to fund surgery is based essentially on the fact that the claimant’s shoulder is displaying aspects of degeneration commensurate with age.” He further states that ACC is “very quick to seize on that identified state of affairs and use it as a reason for declinature”.
As a side note, Judge Beattie also comments on the original claim for cover; although the claim was for a “left rotator cuff sprain”, His Honour concludes that GP’s are often only able to give a general diagnosis, and it is not until after an investigation examination following radiological input that a detailed identification of the injury can be established. On that basis, Judge Beattie concludes that it is open to the Court to identify, based on the medical evidence, precisely what the nature and extent of the injury suffered was. The Court is not bound to the description of the injury in the original claim.
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Department of Labour
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Submission of the New Zealand Audiological Society on Regulations for Noise Induced Hearing Loss under the Accident Compensation Act 2001 pursuant to sections 323 and 324.