Sintes v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WHANGAREI Decision No. 146 / 95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ROBERT SINTES of Kerikeri 19 94 / 0097. Appellant (Appeal No. DCA 82/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 28th day of November 1995 APPEARANCES Appellant in person G S Hancock for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant suffered a medical misadventure when being treated by his dentist on 10 November 1993. There is no argument that when he was undergoing dental treatment the drill slipped and cut the appellant's tongue. When the appellant lodged his claim with the respondent the certificate from his General Practitioner, Dr Evans, noted that when he saw the appellant on 7 December 1993 his description of the injury was "almost healed laceration under (L) side tongue". The report from Dr Thompson, the appellant's dentist, stated that in the dentist's opinion the appellant was of a nervous disposition and that he suddenly moved sideways which resulted in the laceration to his tongue. A further report from Dr Evans on 18 March 1994 stated: 2 "The injury was a small laceration under the tongue, presumably from a slipped dental instrument. The injury was minor, self limiting, and healed rapidly with no permanent sequelae. While he deserves to have it covered under ACC so far as the costs of the consultations with me are concerned, it has left no permanent injury, and I believe he was not incapacitated in any serious way (apart form (sic) a bit of pain eating and talking for a week or two). It is an accident so far as an injury occurred as a result of an accidental slip of a dental instrument. Naturally I am biased in the matter of calling it an accident, as your refusal in this matter would probably mean I do not get paid ...!" While the appellant acknowledged that the injury to the tongue had cleared quickly, his principal concern was that it might result in his contracting a disease such as the HIV virus or hepatitis at a later date. The respondent referred the claim to its Medical Advisory Committee which considered it and issued a report on 21 September 1994 which stated: "The committee has examined the evidence before us in that Mr Sintes suffered a laceration to the floor of the mouth during dental treatment. The committee accepts that this was a genuine accident that can happen during the course of dental treatment for a number of reasons and there is no evidence before us to establish that the dentist involved, Doctor Thompson, failed to exercise a standard of care that would be reasonably expected in the circumstances ie the committee finds that there is no error involved. Medical mishap - rarity. Lacerations during dental treatment are rare and would occur in 1% or less of cases. Severity, we note the laceration to the floor of the mouth was small the dentist put a suture in which probably caused some minor discomfort to Mr Sintes. His general practitioner described it as a minor injury and it healed with no permanent sequelae. The committee is satisfied therefore that the criteria for signficiant (sic) disability in terms of the Act have not been satisfied. Our recommendation is that this claim should be declined, to become final after 15 working days." The recommendation from the Committee was that the claim be declined because neither medical error nor medical mishap had occurred. The respondent notified the appellant on 22 September 1994 that it accepted the advice of the Medical Misadventure Advisory Committee and declined his claim for cover. The appellant applied for a review of that decision. The review officer took note of the appellant's concern that he might contract a serious disease as a result of the incident, but held that this did not come within the definition of medical misadventure as contained in s.5 of the Accident Rehabilitation and Compensation Insurance Act 1992. 3 The appellant appealed against that decision and at the hearing of the appeal again repeated his concern that he may suffer from a serious disease at a later date and if he did not have a favourable finding on this appeal he would be denied cover. I explained to the appellant the details of s.5 and the fact that he, at this stage, had not suffered a personal injury which came within that definition. I explained to him that if he subsequently does suffer a disease which can be attributed to the cut on his tongue then it may well be that he will have cover under the Act, but until that situation occurs, the finding of the Medical Misadventure Committee was correct. I also explained to him that whether he moved as stated by the Dentist or whether the Dentist's hand slipped is irrelevant under the "no fault" principle of the Accident Compensation legislation. If he does contract the disease which he anticipates might occur then that is the time for him to lodge a claim. When the appellant understood that situation he was prepared to accept that his concerns were unfounded and I believe he now understands the meaning of what constitutes a medical misadventure in terms of s.5. The appeal is dismissed. DATED at WELLINGTON this 20th day of December 1995 A W Middleton District Court Judge dc82-95.doc(rd)