Surgery fight reflects fears over compo

Terry O'Neill of Dunedin with a long battle with Kiwirail and its private accident insurer for shoulder surgery at his home. Photo / Otago Daily Times

Terry O'Neill has had to fight to get approval for shoulder surgery from his former employer KiwiRail - a company held up by the Government last week as a good example of privately managed accident compensation.

It took him more than three years and a court case.

KiwiRail is among more than 100 large businesses in the accredited employer programme, in which they take responsibility for some aspects of accident compensation. The Government plans to expand the programme.

Mr O'Neill, who is 54, wants to get back to work, but can't until his operation, which is scheduled for September after the District Court overturned a KiwiRail appeal.

He was "medically retired" and given a confidential payout, although his orthopaedic surgeon expects he will be able to return to physically demanding work after surgery.

Mr O'Neill, of Dunedin, started working for Toll NZ (now KiwiRail) in 2005 as a "fairer", applying filler to the bodies of railway carriages and planing and sanding it to a high finish.

After four months, he began to experience shoulder pain. In January 2007, he made a claim for cover. Eventually, he was put on light duties and later left the company.

Toll had WellNZ as its workplace injury manager. KiwiRail uses Aon.

WellNZ granted cover for an inflammatory condition in the shoulder. But Mr O'Neill's surgeon, Andrew Swan, later diagnosed work-related osteolysis - a softening and re-absorption of bone cells - in the clavicle, and degenerative changes in its joint with another bone, called the AC joint.

So began a medical and legal battle marked by a ping-pong of medical opinions and their interpretation.

In 2009, WellNZ declined cover for osteolysis after it engaged occupational physician Dr Courtenay Kenny, who had consulted three radiologists and an orthopaedic surgeon. He found the x-rays showed "no evidence of osteolysis, but that there was advanced AC joint osteoarthritis", according to Judge Martin Beattie's court decision.

An independent reviewer had found Mr Swan's was the most reliable medical opinion and ruled that Mr O'Neill was entitled to cover for osteolysis.

KiwiRail appealed and Judge Beattie was presented with the same medical opinions.

In one report, Mr Swan said he had no training in occupational medicine, "but I do have the experience of treating this condition over a period of many years with particularly rewarding results. By the same token, Dr Kenny has not had training in surgical management of musculoskeletal disorders and is unlikely to have had the opportunity [to correlate] x-ray findings with actual findings at surgery."

Mr O'Neill told the Herald he still had to take painkillers for his shoulder and the pain often prevented sleep. But he was looking forward to surgery.

"Hopefully, once this is done and I've done the physio, I will be back in business."

Last week, ACC Minister Nick Smith, announcing plans to extend the employer programme next year, cited KiwiRail as a good example. "[The programme] is delivering 12 per cent fewer claims and 15 per cent lower costs."

Yesterday, he said Mr O'Neill's case did not change this. He was confident KiwiRail's injury prevention programme had reduced accidents, and that this was not from under-reporting.

KiwiRail acting CEO Rick van Barneveld said time lost to injury had declined steeply since 2007. Many health and safety programmes had started since 2005. "We don't believe the outcome of this case casts any doubt on our workplace practices."