New Zealand Case Law: Decisions & Judgments

Topic

Entitlement to elective surgery

Legal area

Court

20 Nov 2018

Topping v Accident Compensation Corporation (Entitlement to Surgery)

Citation

[2018] NZACC 182
Court

District Court

The Court upheld ACC's decision because objective imaging and expert opinion (severe tendon retraction and moderate to severe fatty muscle atrophy) indicated longstanding rotator cuff pathology likely predating the accident, the mechanism described was unlikely to produce the extent of tendon disruption observed, and temporality and the treating surgeon's view alone were insufficient to establish that the surgery-treated tears were caused by the 2015 accident; therefore ACC properly declined funding for elective surgery.
6 Jun 2018

Hawes v Accident Compensation Corporation (Entitlement to Surgery)

Citation

[2018] NZACC 86
Court

District Court

The Court accepted expert and CAP evidence and contemporaneous imaging/operative findings that early osteoarthritic change (grade I) was present in 2010 and that the appellant's later severe medial compartment osteoarthritis progressed as a gradual degenerative process; there was insufficient evidence to establish on the balance of probabilities that the 2010 accident, the 2010 surgery, or later covered injuries wholly or substantially caused the need for knee replacement, therefore ACC correctly declined cover and the review decision was upheld.
22 Nov 2017

Askin v Accident Compensation Corporation (Entitlement to Surgery)

Citation

[2017] NZACC 139
Court

District Court

On the balance of probabilities the appellant did not prove the need for surgery was caused by the covered accident of 6 June 2015; objective evidence (radiology reports), the appellant's early return to dancing and CAP's analysis showed the accessory navicular was a developmental variant rendered symptomatic by a chronic/repetitive process rather than an acute injury to the synchondrosis, so ACC's decision to decline funding was correct and the review decision was upheld.
21 Jun 2017

Corbett v Accident Compensation Corporation (Entitlement to Surgery - s 67 and Schedule1)

Citation

[2017] NZACC 70
Court

District Court

Medical evidence (MRI, expert panels and specialist opinions) established longstanding rotator cuff disease and related pathology that predated the 8 June 2015 event; the accident rendered the condition symptomatic but did not primarily cause it, so the surgery principally treated a pre-existing gradual condition excluded from cover under s26(2); ACC's decision to decline funding was correct and the review decision is upheld.
31 Mar 2015

Irving v Accident Compensation Corporation

Citation

[2015] NZACC 78
Court

District Court

The Court preferred the treating surgeon's evidence and intraoperative findings over the Corporation's experts and CAP report, found no persuasive evidence of pre-existing degenerative pathology sufficient to explain the need for surgery, and concluded the appellant's need for surgery was caused by the 7 May 2011 accident; accordingly the Corporation's decision to decline funding was quashed and the appellant entitled to funded surgery and costs.
31 Oct 2013

Darey v Accident Compensation Corporation

Citation

[2013] NZACC 355
Court

District Court

On the balance of probabilities the District Court preferred the treating surgeon's evidence that the 26 November 2009 fracture and the force of the fall materially contributed to deterioration of the left hip causing need for total hip replacement, and that the condition was not wholly or substantially caused by a gradual process or ageing, therefore the appeal was allowed and ACC's declination overturned.
29 Jul 2013

Neeson v Accident Compensation Corporation

Citation

[2013] NZACC 224
Court

District Court

The Court preferred the detailed, coherent opinions of the CAP and Dr Austen over the treating surgeon's inconsistent and insufficiently reasoned causal assertions; there was no adequate medical evidence establishing that the claimant's current tendinopathy and need for surgery were caused by an ACC-covered single event or series of events rather than a gradual/overuse process, therefore the Reviewer's decision to decline funding was not shown to be wrong on the balance of probabilities.
24 Dec 2012

Hurley v Accident Compensation Corporation

Citation

[2012] NZACC 413
Court

District Court

On the balance of probabilities the Court accepted the specialist clinical assessments and operative findings that the appellant's subacromial bursitis was traumatic and caused by the 28 September 2008 accident and rejected CAP's generalised and speculative literature‑based contrary opinion; accordingly the ACC determination denying entitlement to surgery was quashed.
8 Aug 2012

McKenzie v Accident Compensation Corporation

Citation

[2012] NZACC 263
Court

District Court

The Court upheld the Reviewer: (1) the delay review (143007) was correctly declined because a substantive decision had been issued before the review hearing, removing any jurisdiction to direct a decision; and (2) the 18 February 2009 letter merely reaffirmed the earlier 30 July 2008 decision declining surgery and therefore was not a new, reviewable decision (143419); appeals dismissed.
16 May 2012

Walsh v Accident Compensation Corporation

Citation

[2012] NZACC 172
Court

District Court

Weighing the whole evidence the Court preferred the orthopaedic specialists' assessments and concluded on the balance of probabilities that the appellant suffered a new meniscal injury as a result of the fall which caused the need for surgery and that the condition was not shown to be wholly or substantially caused by a degenerative process; accordingly ACC's review decision denying entitlement was quashed.