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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Accident Compensation Corporation v Wernham (DC, 02/06/11)

Judgment Text

RESERVED JUDGMENT OF JUDGE D A ONGLEY 
Judge D A Ongley
[1]
This is an appeal against a review decision in which the Reviewer directed that the Corporation extend the claimant's cover for an injury that was not a natural consequence of the covered injuries. The decision that was subject to review was based on an independence allowance impairment assessment made by Dr Michelle Todd on 10 March 2009. 
[2]
The claimant was notified of the filing and hearing of the appeal but did not appear. 
[3]
In 2006, the claimant was experiencing heavy menstrual bleeding and pelvic pain for which surgery was indicated. The surgery decided upon was a hysterectomy. There is now a question over the adequacy of diagnosis and reasons for hysterectomy. 
[4]
The claimant had had a recent laparotomy to repair a cervical tear and had in the past four caesarian sections. The medical history increased the risks connected with the hysterectomy. The surgery was done in February 2006 by Mr Roman Hasil who was later found to have failed to meet acceptable standards of practice in a number of surgical procedures that he carried out at Whanganui Hospital. The claim for treatment injury was lodged in 2008 after Mr Hasil's failures became widely known. 
[5]
The claimant's hysterectomy in 2006 did not present difficulty, but she developed wound haematoma and infection. She was later given cover described as “Medical misadventure due to surgery - wound haematoma and infection”. The basis for cover was summarised in Dr Todd's report. 
“The hysterectomy was seemingly uncomplicated at the time of injury but she had to return to theatre the following day to control bleeding from her abdominal wound and haematoma. She went back to theatre for wound exploration and re-suturing. Following this she developed an infected collection of blood in her wound which required antibiotics to treat the infection and wound dressings for a number of weeks before the wound healed up completely. 
Her operation carried more risks than average as she had four previous caesarian section operations and could well have had adhesions of abdomen (which she did have) and her bladder could have been stuck to her uterus. This placed her at increased risk of a bladder injury at the time of surgery. Dr Westgate felt that she would expect this to be documented in the notes or consent process but this was not done. Dr Westgate noted - ‘the postoperative complication that Ms Wemham suffered is a recognized complication of surgery, even in the best hands, and is not by itself evidence of substandard surgical care. However she did not receive prophylactic antibiotics at the time of hysterectomy or the second operation both of which would be standard practice. These omissions may have contributed to the wound infection she developed after the second operation’. ”
[6]
Dr Todd's impairment assessment was limited to scarring and altered sensation, a total impairment of 7% which did not qualify for a lump sum entitlement. The Corporation accordingly declined lump sum compensation. 
[7]
The review against that decision was heard on 22 September 2009. No medical evidence was produced to counter Dr Todd's independence allowance report. The reviewer issued a decision dated 19 October 2009 directing the Corporation to reassess the claimant's whole person impairment to include the body parts lost by the claimant, and then to issue a new decision with fresh review rights. The Corporation appeals against that decision. 
[8]
Later, the Corporation considered whether the hysterectomy should itself be covered as a treatment injury, but found on the evidence available that there were good reasons for the hysterectomy. 
Decision 
[9]
Section 32 of the Act contains the definition of treatment injury that applied to the claimant's case: 
“32 Treatment injury 
(1)
Treatment injury means personal injury that is - 
(a)
suffered by a person 
(i)
seeking treatment from 1 or more registered health professionals; or - 
(ii)
receiving treatment from, or at the direction of, 1 or more registered health professionals; or 
(iii)
referred to in subsection (7); and 
(b)
caused by treatment; and 
(c)
not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including - 
(i)
the person's underlying health condition at the time of the treatment; and 
(ii)
the clinical knowledge at the time of the treatment. ”
[10]
The Reviewer's decision was clearly made in error. The hysterectomy was the treatment in question. If it was the correct treatment for a diagnosed condition, then the hysterectomy itself was a necessary part or ordinary consequence of treatment. 
[11]
The haematoma and infection were a consequence of the hysterectomy. They were not a necessary part of ordinary consequence of the hysterectomy in light of clinical knowledge which required prophylactic antibiotics for such a procedure. 
[12]
The Reviewer bundled the hysterectomy itself in with the adverse consequences. That is not to say that the hysterectomy could not be the subject of a claim. Cover may be available if it could be shown, for example, that the claimant's heavy bleeding and pelvic pain offered another diagnosis without the need for hysterectomy, and that a hysterectomy was unnecessary in view of the clinical knowledge of her symptoms and condition. Such a basis for cover would require a different enquiry. It appears that the Corporation later investigated that as a possibility, without a claim having been lodged, and probably did not issue a formal decision. It appears to be open for the claimant to seek cover, based on appropriate medical evidence, but that is outside the scope of this appeal. I note that there is also the possibility of a mental injury claim. 
[13]
Dr Todd's assessment has not been effectively challenged. Based on the covered injuries alone, the Corporation made a correct decision to decline lump sum compensation. If the claimant can obtain cover for the hysterectomy, which has been referred to as an injury involving loss of body parts, then a new independence allowance would be required, based on all the covered injuries. 
[14]
This appeal must be allowed. The Reviewer's decision is quashed and the Corporation's decision to decline lump sum compensation is confirmed. No order is made for costs. 

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