MacDonald v ACC (Weight Given to Operating Surgeon’s Opinion)

On 28 June 2006, Mr MacDonald was employed as a chef. During the course of his employment he lifted a 30-litre bucket full of parsnips. It was at this time Mr MacDonald noticed a right inguinal hernia in his groin. He reported the incident to his work as a muscle strain. Mr MacDonald was diagnosed with a hernia by his doctor on 3 July 2010. ACC had a medical professional prepare a report on Mr MacDonald’s hernia. The medical professional stated that, “the case law states that in order to obtain cover for a personal injury caused by accident there must be an injury to the abdominal wall over and above the appearance of a hernia.” On this basis ACC, declined the claim stating it did not believe that the hernia was the result of a traumatic rupture of the abdominal wall. Mr MacDonald submitted that ACC was applying the policy guidelines for hernia cover too strictly. Mr MacDonald referred to the Brock evidentiary test for hernias stating that he fulfilled all four evidentiary criteria. He also referred to the case of Stanbury which states “the court cannot accept that such policy criteria must be rigidly adhered to when all other evidence points to a genuine case.” Mr MacDonald believed on the balance of probabilities his hernia was caused by a specific event. Mr MacDonald’s doctor and surgeon also believed that Mr MacDonald’s hernia had occurred because of a specific event. Policy and Evidentiary Guidelines for Hernias When deciding to cover for hernias, ACC apply the policy guidelines for hernia cover that are set out in ACC’s publication “ACC News” Issue 59 August 2003. These guidelines are:

1. A single strenuous event is claimed to have caused the hernia

2. If the accident occurred in a workplace, an incident of muscle strain is officially reported.

3. Significant groin pain was present at the time of the accident.

4. A medical practitioner diagnoses traumatic inguinal hernia within 30 days of the accident but preferable within 10 days.

5. There is no history suggestive of gradual onset or congenital inguinal hernia.

In Brock (240/2004) Judge Cadenhead said that there were 4 evidentiary guidelines that should be utilised (although not applied rigidly) when considering what had caused a hernia. These four guidelines were:

1. An officially reported incident of muscle strain.

2. Severe groin pain at the time of the strain.

3. Diagnosis of a hernia by a doctor within 30 days.

4. No previous history of hernia

The Act: Section 8 of the 2001 act states that a person has cover under that Act if he or she satisfies any of the criteria contained in sections 20, 21 or 22 for personal injury suffered after 1 April 2002. Section 20 concerns cover for personal injury suffered in New Zealand and is relevant to this review. In particular, it refers to personal injury (defined in section 26) caused by an accident (defined in section 25).

The Decision: Judge Cadenhead stated “that the medical evidence of the operating surgeon must be given considerable weight.” On a balance of probabilities the operating surgeon believed the hernia was caused when Mr MacDonald lifted the parsnips. Judge Cadenhead believed that the operating surgeon’s evidence was preferable to the ACC Assessor’s evidence because, the ACC Assessor was not an expert in the field of hernias and had never examined Mr MacDonald. Judge Cadenhead believed that the surgeon’s opinion along with the other facts of the case satisfied the onus of proof in favour of Mr MacDonald.

Conclusion: A Judge will give more evidentiary weight to an operating surgeon who has examined a claimant, over a medical expert who has not.

Cases referred to: Brock (240/2004) stated there were 4 evidentiary guidelines that should be utilised (although not applied rigidly) when considering what had caused a hernia. Stanbury (28/00), In Stanbury Judge Beattie states that the court can understand ACC having policy criteria for certain types of injury, but ACC should not be to strict in its adherence, when there is a genuine case of accident. Smith v ACC (23/8/04 Judge Beattie, DC Wellington 255/04), a claimant must prove on a balance of probabilities that their injury is a result of an accident.