Tears of joy as ACC ordered to cover woman’s weightlifting injury after 19 years of pain

Gaynor Downes cried tears of joy after a District Court judge recently ordered ACC to cover the cost of a weightlifting injury she suffered in 2004.

For the first time in 19 years Gaynor Downes has a positive feeling about her future after battling bureaucracy and persistent pain. ACC will finally cover her shoulder injury.

In March, District Court Judge Chris McGuire ruled the chronic pain Downes had suffered since 2004 was a result of a weightlifting accident and ordered ACC to cover her future treatment.

The 74-year-old remembers feeling discomfort, tension and a pulling sensation in the left side of her head and shoulder, and a similar feeling in her lower left leg while lifting weights with her sister.

“I wondered what the hell had happened, it felt like something just struck me on the back of the neck and sent pain through my head and down my shoulder and arm,” she told NZME.

The physically fit Downes immediately sought treatment and was referred for physiotherapy.

However, despite regular physio Downes has suffered ever since, experiencing pain when she tilts her head forward and tightness and stiffness in her neck.

Downes experienced a shooting sensation and pins and needles down her left arm and leg, particularly after physical activity.

“It is just so frightening, it makes you go off balance. It feels like my body has gone into shock and my legs are not going to support me.”

For years medical professionals were unable to diagnose the exact cause and best way to treat Downes’ discomfort.

“In my opinion, her left shoulder is clinically, radiologically and ultrasonographically normal and is not the source of her pain or dysfunction,” an orthopaedic surgeon detailed in his report into the causal link of her pain.

Eventually, in April 2014, Downes had an impairment assessment which concluded she had sustained an injury resulting in possible impairment to her left upper extremity.

Downes’ GP, Dr Salil Elias, submitted a claim for cover to ACC in May 2014, describing the injury as being “caused by accident in 2004″.

Two months later in July, ACC declined cover for the injury. Downes unsuccessfully took the decision to review.

She was referred for a clinical neurophysiology report, used to diagnose peripheral nervous system disorders, in October 2020 and had a second referral in January 2021 but again there was no clear diagnosis offered regarding the cause of her pain.

In March 2023, Downes, who used to play basketball, rugby, and badminton, appealed ACC’s decision to decline cover before Judge Chris McGuire in the Wellington District Court, where she described how the injury happened.

“She said she was lifting the weights up and down and something went wrong, which she described as ‘being hit by a ton of bricks’,” the court’s ruling, issued on March 23, said.

The muscle spasms Downes experienced were horrendous and had resulted in admissions to the emergency department, she said, but she remained a very active person who wanted to get on with her life.

“She says that the mental and physical stress of what she has been through has taken its toll,” Judge McGuire noted in his decision.

Gaynor Downes has lived with significant pain since lifting weights went wrong in 2004, but a ruling in the Wellington District Court last month reversed ACC's decision to decline cover. Photo / 123RF

Appearing for ACC, lawyer Ian Hunt argued there was no medical evidence nor opinion from a specialist supporting Downes’ claim she sustained a neck injury in 2004.

Hunt supported his submission by referring to numerous medical reports, produced since 2004, which detailed 11 months had elapsed from the time of the accident to a claim being lodged and GP notes from 2004 and 2005 which did not mention a shoulder problem.

He concluded there had been a “very intensive investigation” but it had failed to establish there was an accident causing injury.

Judge McGuire noted in his decision on more than one occasion during the hearing Downes referred to the pain of spasms in her neck and shoulders as “horrendous”.

He concluded, if for no other reason than the consistency of her reporting of this pain from spasms in her neck and shoulders during the past 18 plus years, her pain experience was real because her pain was real.

Criticisms by Downes toward medical professionals who, in her mind had provided substandard treatment, were noted by Judge McGuire although he didn’t think some were objectively justified.

“But they are criticisms made by a person who I accept has experienced crippling pain for many years.

“In fairness to all the medical professionals involved with her case, precise diagnosis of her injury has not been straightforward.”

He ruled the evidence established Downes suffered an injury in 2004, and ACC’s decision declining cover was reversed.

“I have concluded that the appellant is essentially a witness of truth and whether or not her descriptions of the pain she feels might be overstated, I am satisfied they are real and that they derive from the accident sustained when lifting weights.”

Judge McGuire said he hoped the result would allow for a more precise diagnosis of Downes’ injury and lead to more successful therapeutic interventions.

Downes told NZME she had not been confident the decision would go her way.

“I’m just a little person and these are high-powered people.”

She said she burst into tears of joy when she heard the ruling and now looked forward to having surgery to address the problem and a more positive pain-free future.

“I’ve lost out on so much of my life. I just want this fixed because I want to get back to living my life because I’ve still got so much energy.”

The Dunedin widow who has two adult children said during the years there were times she wanted to give up but the fighter in her wouldn’t allow it.

“It has been just horrendous and I’ve lost a lot of my life but I did it because I’m a strong person and I’ve become a lot stronger because of what I’ve had to go through with this.”

Downes said she was grateful for the common sense approach taken by Judge McGuire in his findings and felt positive about her future for the first time in years.

“He’s the only one who has been there to help me. Now I just want to get the surgery done and start making up for some of the time I’ve lost. I want to go dancing, I love dancing.”