ACC denied a man’s claim for a hernia without conducting a medical assessment, and a judge says that was not reasonable.
The Accident Compensation Corporation was ordered by Judge Peter Spiller to reassess Vance Fulton’s claim for cover after both ACC and a reviewer dismissed the claim.
Fulton had spinal surgery in November 2020 after injuring his back earlier that year while saving his toddler grandson from falling off a small deck.
The 58-year-old independent fertiliser adviser began physiotherapy in February 2021 to aid his recovery post-surgery.
On February 11, a day after his first appointment, Fulton performed a “planking” exercise as instructed by his physiotherapist.
The Te Aroha man felt a strain in his stomach but no immediate pain, however later that afternoon he noticed a small lump below his belly button and it was tender to touch.
When he advised his physiotherapist at their next session almost a fortnight later, Fulton was told to stop the exercise.
The 58-year-old is waiting to hear if ACC will cover his umbilical hernia after appealing against a decision to decline his claim, and winning.
Two days later, on February 26, 2021, Fulton saw his GP who diagnosed an umbilical hernia and lodged an ACC claim.
On March 8, Fulton was interviewed by an ACC employee who explained there was a criterion for cover for umbilical hernia, and that they were not usually caused by a single event but happened gradually instead.
Based on that, the claim was denied with Fulton telling the employee his GP expected he would be declined saying there was “no hope with ACC”.
ACC’s guide for abdominal wall hernia cover was developed in consultation with the New Zealand National Board of the Royal Australasian College of Surgeons, which provided a framework for assessing hernia claims.
The guide stated it was unlikely an umbilical hernia was caused by a single strenuous event, and that available evidence indicated umbilical hernias normally developed slowly as a result of a weakening of tissues in the abdominal wall, or through defects, and then became obvious in some people.
After ACC declined his claim Fulton applied for a review, prompting ACC to seek his medical notes from his GP.
In answer to whether a planking exercise could cause a hernia, an ACC branch medical adviser said it could not.
“The client has a common disease condition which has happened to become symptomatic associated with the planking exercise,” the ACC branch employee wrote.
The case went to review in September 2021 and the following month the ACC reviewer dismissed Fulton’s application for review.
In December, Fulton lodged an appeal and a hearing took place in Hamilton last November.
In his judgment dated December 5, 2022, Judge Spiller allowed Fulton’s appeal saying ACC made its decision without medically examining Fulton.
The District Court judge said ACC based its decision on the notes and diagnosis from Fulton’s GP, its guide for assessing hernia claims, and the telephone interview with the ACC employee.
Spiller noted the only medical evidence being relied on to dismiss the review was the GP’s and because the GP had examined Fulton, this made his diagnosis important.
However, he said no effort was made by ACC to get Fulton’s medical records from his GP or physiotherapist before making the initial decision to deny cover.
He said the guide for assessing a hernia was not a substitute for medical evidence, and its advice was qualified in terms of what was “unlikely”, “normally” and “on available evidence”, meaning it could not with 100 per cent certainty rule out the exercise as the cause.
Judge Spiller went on to say: “The interview assessment of Mr Fulton’s incident was made by a Corporation employee who does not give any indication of being medically qualified.”
He said the factual evidence noted by the employee concentrated on only part of the circumstances relating to Fulton’s incident, the day he performed the planking exercise.
“In the following days, the pain and swelling in the umbilical area would wax and wane throughout the day. Prior to the incident, he had never experienced any pain discomfort or bulge in his umbilical area,” the judge said.
Judge Spiller also found limited weight in the opinion of the branch medical adviser because it was provided months after Fulton’s incident and without seeing or examining him.
He said that employee’s report was mostly about umbilical hernia and had little reference to Fulton’s condition or situation.
“[His] conclusion that Mr Fulton has a common disease condition, which happened to become symptomatic associated with the planking exercise, is not based on any medical examination of Mr Fulton himself.”
For those reasons Judge Spiller found ACC had not made its decision on Fulton’s claim on reasonable grounds, having regard to the requirements of the Accident Compensation Act 2001.
“The appeal is allowed, and the review decision dated October 18, 2021, is set aside.”
He ordered ACC to undertake a fresh assessment of Fulton’s claim and that his legal costs be paid by ACC.
Fulton told the Herald he expected to know next week whether ACC would cover his claim but said the process had been exhausting and infuriating.
“The whole process is so against the average person. Unless you’re wealthy and have got a lot of time and understand how the system works, you can’t afford to take on ACC.”
Fulton said he also had to fight ACC for cover for his back injury and was only able to pursue each case because his friend was an ACC advocate.
