Blair v ACC (Delay in Claiming)

Graeme Blair v Accident Compensation Corporation (ACC)
District Court Wellington 8 February 2010

On 7 April 2008, Mr Graeme Blair went to see his doctor and was diagnosed an inguinal hernia. Mr Blair consulted his doctor several times over the following months in regards to the tumour. However, it was not until December 2008, that Mr Blair explained to his Doctor the hernia was a result of a pruning incident. Mr Blair had been standing on a ladder pruning branches of a tree. When he was stretching upwards to cut a branch he felt a sharp pain in his groin. At this time Mr Blair’s doctor advised he could claim for cover for his hernia. Subsequent to this Mr Blair lodged a claim with ACC.

The ACC branch Medical Advisor did not believe that the hernia had occurred as a result of an accident. The adviser noted that Mr Blair was “diagnosed with a hernia some 5 days after this accident without any indication that an accident had caused the hernia.” The medical adviser also felt it was important that Mr Blair did not describe the pain as “significant or severe”.

Based on the Assessor’s report, ACC declined Mr Blair’s claim. For the appeal ACC sought further expert evidence from a General Surgeon with a large hernia practise. The surgeon believed Mr Blair had not “met the requirements of contemporaneous account of accident/trauma at the first GP consultation in April 2008. While there is still a small chance that the hernia was accident related there is no way to prove or disprove this clinically at this stage, and on the balance of probabilities it is far more likely that the hernia development was associated with aging related weakening of fibrous tissues.”

The appellant stated that he had not originally discussed the background to his hernia as he was not aware he could lodge a claim with ACC for it. Mr Blair submitted the evidence given by his doctor was that in his opinion the hernia had resulted from a traumatic event. Mr Blair also stated that he fulfilled the policy guidelines for hernia cover that are set out in ACC’s publication “ACC News” Issue 59 August 2003.

Decision: Judge Beattie believed that on the balance of probabilities Mr Blair’s hernia had occurred as a result of accident. The Judge stated that Mr Blair had fulfilled all of ACC’s policy guidelines for hernia cover which gave indication as to whether the hernia was an accident. He also found that ACC had put too much weight on the fact there was no “contemporaneous account of accident/trauma at the first GP consultation.” The judge did not find this fact “insurmountable if a reasonable and believable explanation is given.” Judge Beattie, found that in Mr Blair’s case a believable explanation was given and on the balance of probabilities the hernia was caused as a consequence of a traumatic event.

Conclusion: Despite medical evidence to the contrary, a lack of evidence or a delay in recall of evidence of a contemporaneous account of an accident/ trauma is not “insurmountable if a reasonable and believable explanation is given.”