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Accident Compensation Cases

Carpenter v Accident Compensation Corporation (DC, 25/05/16)

Judgment Text

RESERVED JUDGMENT OF JUDGE J H WALKER 
Judge J H Walker
Background 
[1]
Brett Carpenter is the appellant in these proceedings. The respondent is the Accident Compensation Corporation (“the Corporation”). 
[2]
The application is an appeal pursuant to s 149 of the Accident Compensation Act 2001 (“the Act”). 
The Proceedings 
[3]
The appellant was admitted to Hastings Hospital on 27 November 2013 and diagnosed with acute appendicitis. 
[4]
He underwent an acute appendicectomy which was undertaken by Dr H Waller, surgical registrar. 
[5]
The findings were a retrocaecal retroperitoneal appendix which was inflamed, but was not perforated and there was no free fluid in the abdomen. It was a difficult dissection. 
[6]
Accordingly the operation, which was to be a laparoscopic, was converted to open appendicectomy procedure. This involves hockey stick insertion with muscle splitting and intravenous antibiotics were given intraoperatively. 
[7]
The appellant was discharged on 30 November 2013 to his GP's care. 
[8]
On a visit to his GP Dr Keith Hooper on 24 June 2014 in respect to a number of medical issues, he reported that in the past weeks he had had some discomfort and noticed a lump in the abdominal area. 
[9]
An ultrasound was organised. 
[10]
On a further visit by the appellant to Dr Hooper on 22 September 2014 an ACC claim form was completed with a description of “discomfort and swelling developing around the appendicectomy scar”. The diagnosis was hernia of the abdominal cavity. 
[11]
Dr Hooper filed a treatment injury claim on 20 October 2014 stating the treatment giving rise to the injury was the appendicectomy, and that the description of the circumstances leading to the injury was “straining of scar had led to hernia”
[12]
The Corporation obtained a response from Dr Peter Jansen, senior medical advisor dated 19 January 2015 who concluded that: 
“Coupled with the BMI and the emergency nature of the surgery for an inflamed and infected appendix, the conversion to an open wound points to this incisional hernia being an ordinary consequence of the treatment. ”
[13]
The appellant was sent a letter dated 21 January 2015 which provided the treatment injury report which summarised the findings. 
This letter also stated that the Corporation was unable to approve the claim because it did not meet the criteria for a treatment injury. 
[14]
Subsequently Dr Hooper referred the appellant to Mr Knight, surgeon for an assessment. 
[15]
Mr Knight reported back to Dr Hooper on 4 March 2015. 
[16]
Mr Knight advised that the operation of 27 November 2013 had been carried out by his surgical registrar, Dr Hayley Waller but under Mr Knight's supervision. Mr Knight states “I was responsible for his operation”
[17]
Mr Knight states under the heading Causal medical link between the proposed treatment and covered injury that there was a “direct link between difficult operation and early incisional hernia and proposed remedy”
Review Decision 2 July 2015 
[18]
Subsequent to the Corporation's decision the appellant filed a review. The matter was heard on 10 June 2015, and a decision issued by the reviewer Mr J G Greene on 2 July 2015. 
[19]
The reviewer refers to s 32 of the Act's definition that a treatment injury must be a personal injury, but not be a necessary part or ordinary consequence of the treatment. 
[20]
The reviewer referred to the leading case concerning the meaning of “ordinary consequence of the treatment” being the decision of the Court of Appeal in McEnteer1
| X |Footnote: 1
McEnteer v Accident Compensation Corporation [2010] NZCA 126 
. The Court in that case stated: 
“We consider that s 32(1)(c) requires an analysis that is rooted in the facts of the particular case — what was the injury suffered? Was it suffered in the course of the treatment undertaken? Was that injury a necessary part or ordinary consequence of that treatment? The third question in particular requires expert opinion, but not expert opinion in the abstract; rather, it requires expert opinion reflecting what actually occurred. ”
[21]
The reviewer states: 
“Mr Carpenter's case is based on the fact that he disagrees with the opinion ACC received from its medical advisor, Dr Peter Jansen. However, he has not provided any expert medical opinion to support his case, other than the brief opinion from his treating surgeon, Mr Knight, who simply states ‘direct link between difficult operation and early incisional hernia and proposed remedy’. ”
[22]
The reviewer continued: 
“I find the statutory definition of treatment injury (in particular that the treatment injury not be a necessary part, or ordinary consequence, of the treatment taking into account all the circumstances of the treatment) is not satisfied. ”
He accordingly dismissed the appeal. 
Applicant's Case 
[23]
In the notice of appeal of 24 July 2015 the grounds are stated as: 
“The decision appealed against includes the following mistake: the incisional hernia that subsequently appeared was due to the appendix operation performed and is not an expected outcome of an appendix operation. The injury occurred because the wound was not attached properly and the hernia bulged through. ”
[24]
In the submissions by Ms Williams, advocate, she outlines the facts of the emergency appendicectomy and the subsequent hernia that was diagnosed some ten months later. 
[25]
She refers specifically to ss 20, 26, 32 and 62 of the Act. 
[26]
Section 32 of the Act states: 
“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. 
(2)
Treatment injury does not include the following kinds of personal injury: 
(a)
personal injury that is wholly or substantially caused by a person's underlying health condition: 
(b)
personal injury that is solely attributable to a resource allocation decision: 
(c)
personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment. 
(3)
The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury
(4)
Treatment injury includes personal injury suffered by a person as a result of treatment given as part of a clinical trial, in the circumstances described in subsection (5) or subsection (6). 
(5)
One of the circumstances referred to in subsection (4) is where the claimant did not agree, in writing, to participate in the trial. 
(6)
The other circumstance referred to in subsection (4) is where— 
(a)
an ethics committee— 
(i)
approved the trial; and 
(ii)
was satisfied that the trial was not to be conducted principally for the benefit of the manufacturer or distributor of the medicine or item being trialled; and 
(b)
the ethics committee was approved by the Health Research Council of New Zealand or the Director-General of Health at the time it gave its approval. 
(7)
If a person (person A) suffers an infection that is a treatment injury, cover for that personal injury extends to— 
(a)
person A's spouse or partner, if person A has passed the infection on directly to the spouse or partner: 
(b)
person A's child, if person A has passed the infection on directly to the child: 
(c)
any other third party, if person A has passed the infection on directly to that third party: 
(d)
person A's child or any other third party, if— 
(i)
person A has passed the infection directly to his or her spouse or partner; and 
(ii)
person A's spouse or partner has then passed the infection directly to the child or third party. ”
[27]
In respect of s 32(1)(c) of the Act which relates to “not a necessary part of, or ordinary consequence” the advocate for the appellant refereed at some length to the District Court decision of McEnteer2
| X |Footnote: 2
McEnteer v Accident Compensation Corporation, DC Hamilton 105/08 
until advised from the bench, and also in the submissions of counsel for the Corporation, that this decision was reversed in both the High Court and Court of Appeal. 
[28]
It is noted also that the Court of Appeal decision was referred to in the decision of the reviewer. 
[29]
Ms Williams subsequently referred to the decision of Judge Spiller in White v ACC3
| X |Footnote: 3
[2013] NZACC 189 (8 July 2013) 
where the Judge stated he was satisfied Mr White's incisional hernias were not an anticipated or expected outcome of his treatment in 2006 bearing in mind his underlying health condition. 
[30]
Judge Spiller in White preferred the views of the two medical specialists who examined Mr White, particularly his attendant surgeon Mr Rhind and Mr Keating a colorectal and general surgeon. 
[31]
In her submissions Ms Williams stated that the consulting surgeon's opinion was that the hernia was sustained as an outcome of the appendicectomy and that ACC's expert witness Dr Jansen has said the hernia was caused because the operation was difficult and because of Mr Carpenter's BMI and the difficult nature of the operation. 
[32]
She submits that appendectomies are not an uncommon operation and it is not a usual outcome to have a hernia ten months later. 
[33]
She seeks cover for the appellant's treatment injury. 
Respondent's Case 
[34]
Mr McBride filed submissions on behalf of the Corporation and orally addressed them. 
[35]
There is no dispute about the sequence of events in respect to the appellant's emergency appendicectomy, and the subsequent diagnosis of an incisional hernia some ten months later. 
[36]
In respect of the medical evidence from Dr Hooper, who seemed to suggest that Mr Carpenter would not have developed the hernia if he had not had the appendicectomy, counsel states that that is common sense. 
Counsel states this is in line with both the determination of the ACC's medical advisor Dr Jansen, and also the Ambros4
| X |Footnote: 4
Accident Compensation Corporation v Ambros [2007] NZCA 304 
decision. 
[37]
In respect of the medical evidence it is accepted that Dr Hooper submitted an ACC48 injury claim on the appellant's behalf on 25 September 2014, on the basis that the appellant had developed an incisional hernia following the appendicectomy. 
[38]
He noted Dr Hooper described what led to the injury as “straining of the scar has led to the hernia”
[39]
Mr McBride notes that the Corporation requested the relevant medical notes and records from the Hawkes Bay DHB, the report from Dr Hooper dated 17 November 2014, together with the DHB notes that were received. 
[40]
He notes that Dr Peter Jansen, senior medical advisor, Clinical Leader Complex Claims then considered the evidence for the Corporation and provided a report dated 19 January 2015. It was recommended that the claim be declined. 
[41]
The recommendation of Dr Jansen was taken to the Treatment Injury Centre's Peer Review Panel on 21 January 2015, and the Panel concurred with the recommendation. 
[42]
The Corporation telephoned the appellant that day to discuss the decision and the Corporation issued its decision by letter dated 22 January 2015 declining cover for the treatment injury claim because, in the circumstances of the case, the development of the incisional hernia was considered an ordinary consequence of the treatment required for the emergency appendicectomy. 
[43]
Mr McBride refers to post decision events that occurred and that on 4 March 2015 the appellant saw Mr Knight, General and Vascular Surgeon who reported “there was an incisional hernia in the appendix wound”
[44]
In respect to the issue of causation, Mr Knight recorded: 
“Causal link between proposed treatment and covered injury. Direct link between difficult operation and early incisional hernia and proposed remedy. ”
[45]
Mr Knight suggested a surgical repair, exploring the wound, defining muscle layers, keeping the peritoneum intact, and placing polypropylene mesh well clear of the underlying bowel. 
[46]
On 5 March 2015 Mr Knight lodged an ARPT form for repair. This noted the appellant's history including that he had made a normal post-operative recovery, being out of hospital within 24 hours, and that 10 months subsequently he had noticed a bulge with local discomfort in the wound with some consequences. 
[47]
On 11 March 2015 the Corporation declined the request from Dr Knight for the inguinal hernia repair, given its 22 January 2015 cover decision. 
Counsel states: 
“Notably, Mr Knight did not even at that point address any issues in relation to the incisional hernia and whether or not that was an ordinary consequence of the particular treatment. There was no suggestion made that the incisional hernia was other than an ordinary consequence of treatment in the circumstances. ”
[48]
Counsel also referred to Mr Jansen's report on page 10 of the bundle of documents (B of D) as being the only document which addresses the medical issues to the cause of the hernia. 
This report states the question: 
“Other than the ordinary deficiency/weakness at the incision/scar site allowing development of incisional hernia, can you identify treatment causes in the development of the hernia? Can you identify other causes? Describe how the evidence supports your conclusion. ”
[49]
Dr Jansen responded: 
“Thanks for the request. Mr Carpenter had appendicitis and needed an emergency operation for that in the Hawkes Bay Hospital. While that was planned to be a laparoscopic procedure (keyhole surgery), this needed to be converted to an open procedure because the appendix was found to be in a retrocaecal position (lying behind the large bowel). There was clearly inflammation shown within the abdomen and Mr Carpenter needed antibiotics before the operation and as he recovered to prevent infection. 
As you note Mr Carpenter has a BMI over 30 and is not diabetic and not a current smoker. Each of these increases the risk of a hernia developing at the site of the incision. 
The conversion of the laparoscopic surgery to an open procedure is important - it was necessary because of the retrocaecal position of the appendix, but it increased the likelihood of the incisional hernia developing. In addition there was inflammation present in the open procedure to access the appendix for removal led to prolonged surgery - both of which increased the risk of a later incisional hernia. 
When coupled with the BMI and the emergency state of the surgery for an inflamed and infected appendix, the conversion to an open wound points to this incisional hernia being an actual consequence of the treatment. ”
[50]
Mr McBride also made written submissions and states: 
“39.
The onus to prove that a claimant has an acceptable claim sits with the claimant, and the standard required is the balance of probabilities. ACC v Ambros [2008] 1 NZLR 340 at [55], [63]-[66] and [70]. 
40.
The requirement was specifically referred to and endorsed in the context of treatment injury in the High Court in McEnteer (above) at [25] and following (including citing the High Court's judgment in Kenyon v ACC [2002] NZLR 385): 
‘It is a persuasive principle in litigation that in the absence of some specific exception supporting by legislation or authority, the onus of proof lies upon the proponent of any proposition. ’”
41.
After full investigation, including seeking and considering medical opinion, ACC made its decision. Ultimately the only opinion that addressed the relevant issues was that of Dr Jansen. 
42.
The appellant has been diagnosed with an incisional hernia. This potentially constitutes a personal injury for the purposes of the Act. 
43.
The medical evidence does not establish a covered injury caused by treatment. Much more is required. 
44.
The incision, which was initially a keyhole procedure and had to be changed to an open appendectomy. That was itself a necessary part of the treatment required to remove the Appellant's inflamed appendix. It is not therefore covered under the Act. 
45.
Even assuming that the surgery itself was causative of the hernia, other patient factors have caused the development of the Appellant's incisional hernia even if it could be said that but for treatment (the appendectomy) the hernia would not have resulted. ”
[51]
Counsel for the appellant also specifically refers to the words “ordinary consequence” as set out in s 32(l)(c) of the Act. He states: 
“46.
The incisional hernia, is excluded from cover under section 32(1)(c) because it was: 
‘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. ’”
47.
Section 32 specifically requires a subjective assessment of the treatment, having regard to the whole factual matrix of the case, including the patient's particular circumstances and underlying conditions: McEnteer HC & CA. 
48.
When making that assessment, it is necessary to bear in mind the purpose of section 32 and the type of treatment injuries that the legislation was intended to cover. In particular, cover was never intended to encompass all less than ideal outcomes from all treatment; hence the specific exclusions in section 32. 
49.
By way of illustration, in ACC v Porter [2010] NZACC 104 (itself about development of incisional hernia), His Honour Judge Barber wrote: 
[44]
I agree with Mr Hunt that the necessary evaluation is whether the injury is an ordinary consequence having regard to all of the circumstances of his treatment, i.e. any relevant circumstance can be taken into account. Mandatory consideration is to be given to the person's underlying health condition and the state of clinical knowledge at the time. 
[45]
On this basis, the question is not whether there is evidence to show that hernias of this type are an ordinary, regular, or unusual outcome for people with Crohn's disease. The question is whether hernias were an ordinary consequence of the treatment the Respondent had, taking into account all the circumstances of his treatment, his underlying health condition, and the state of clinical knowledge at the time.” 
 
[56]
… it is submitted for ACC that the so called complications from the operation were ordinary consequences of the treatment he had in terms of his health, and that is what Mr Innes is saying in his medical reports i.e. that the hernias were an ordinary consequence of the treatment required for the Respondent in terms of his health condition. ”
(Counsel's emphasis) 
[52]
Counsel submits that in the present case the relevant factors include: 
[a]
Emergency surgery. 
[b]
Evidence of inflammation in the abdomen. 
[c]
Difficulty in the operation. 
[d]
The resulting need to convert to an open procedure. 
[e]
Prolonged surgery as a result; and 
[f]
The appellant had a body mass index above 30. 
[53]
Counsel states that each of these factors indicate significant risk to the appellant later developing an incisional hernia supported in the opinion of Dr Jansen in his report of 19 January 2015. 
[54]
Accordingly, the onus is on the appellant to show that there is a treatment injury. He must prove his claim with evidence which is credible and which tips the balance in his favour; Ambros
[55]
Counsel states no covered personal injury has been established, and no evidence here shows that. He continues: 
“54.
Treatment factors, including the incision, have contributed to the development of the Appellant's incisional hernia; however this treatment, incision, was a necessary treatment to remove the inflamed appendix and thus excluded from cover. 
55.
Further, evidence shows that the Appellant's incisional hernia was an ordinary consequence of his treatment, given all the circumstances of that particular treatment. 
56.
Because of this, the Appellant's incisional hernia is outside of ACC cover. ”
Analysis and Discussion 
[56]
Ms Williams for the appellant produced a letter from Dr Hooper at the hearing. This was dated 25 February 2015 and was addressed “to whom it may concern”. It states: 
“Mr Carpenter has developed an incisional hernia following his appendicectomy in 2013. He would not have developed the hernia if he had not had the procedure. In my opinion this is a treatment related injury. ”
[57]
It is unclear to whom this letter is addressed and the purpose of it. 
[58]
The letter also appears to be dated only a few days prior to Dr Hooper referring the appellant to Mr Knight. 
The B of D page 15 includes a letter dated 2 March 2015. This states: 
“Dear Doug 
… thank you for seeing the above patient, Curly had an emergency appendicectomy in 2013 and recovered well. 
In June 2014 he started noticing swelling and discomfort around his scar. On examination he had some bulging around the wound. I suspected he had suffered an incisional hernia. He is currently appealing a decision from ACC to reject his claim for treatment injury. He is also aware the incisional hernia is a recognised risk from any abdominal surgery. We would welcome your assessment. ”
(emphasis added) 
[59]
This communication indicates that Dr Hooper is fully aware of the fact that an incisional hernia is a recognised risk from abdominal surgery but this is not addressed by him in any report in these proceedings. 
[60]
He also makes it clear that this is information that is known by the appellant, even prior to his being assessed again by Mr Knight. 
[61]
At no stage in the information before the Court does Dr Hooper express a view of how he comes to a different conclusion himself. 
[62]
Mr Knight's report back to Dr Hooper of 4 March 2015 states: 
“Thank you for referring Brett, who, was admitted to Hawkes Bay Regional Hospital on the 27th of November 2013, with symptoms and signs suggesting an acute appendicitis so an operation was carried out initially by laparoscopic minimally invasive methods but it became apparent that the appendix was not only inflamed but in the retrocaecal or difficult position, conversion was made to open appendicectomy to allow the appendix to be mobilised and removed. 
This surgery was carried out by my surgical registrar, Dr Hayley Waller, but under my supervision by telephone and I was responsible for his operation. ”
[63]
He continues that his appendix was found to be inflamed when examined under the microscope and he made a normal post-operative recovery being out of hospital within 24 hours. He [the appellant] returned to work as an engineer but by August 2014 i.e. ten months after the operation he noticed a bulge with local discharge in the wound and that has limited his fitting of clothes and interfered with his quite heavy work. 
[64]
Mr Knight states: 
“CAUSAL MEDICAL LINK BETWEEN PROPOSED TREATMENT AND COVERED INJURY 
Direct link between difficult operation and early incisional hernia and proposed remedy. ”
[65]
His diagnosis is an incisional hernia in the appendix wound. 
[66]
It is noted the matters in his report are not consistent, in that he states that the appellant was out of the hospital within 24 hours, but this does not appear to be confirmed in the medical record from the Hawkes Bay District Health Board, which stated that the appellant was admitted on 27 November 2013 and discharged on 30 November 2013. 
[67]
The Discharge Report of the Hospital dated 30/11/2013 states: 
“Clinical Management 
Admitted to surgical ward to acute appendicectomy. 
Procedure — laparoscopic converted to open appendicectomy on 27/11/2013. 
Findings — inflamed retrocaecal, retroperitoneal appendix. Difficult dissection requiring diversion to open procedure. 
Progress — day one post op Mr Carpenter was unable to pass urine, urinary catheter was inserted. He spiked a temperature at 38.8 but was otherwise well. Blood cultures were sent. 
Day two — post op his pain was well controlled, he was mobilised on the ward. Eating and drinking. 
Prior to discharge blood cultures had no growth, remained afebrile. 
Potassium prior to discharge 3.4 giving two days script of SLOW-K. ”
[68]
It is accepted the Medical Record of the hospital stay was of some three days duration is correct. 
[69]
Mr Knight's evidence also makes it clear that surgery undertaken was of an emergency and serious nature. He refers to it being a difficult operation. 
[70]
It is also noted from the record papers from the hospital the appellant was asked to make an appointment to see his GP one to two weeks after discharge for review and was given an off work certificate for two weeks. 
He was to have a review with his GP if he remained unable to work. 
[71]
I accept the submissions of Counsel for the Respondent that the only expert medical evidence in respect to the actual events that occurred is that of Dr Jansen, whose views were also confirmed by the ACC panel on 21 January 2015. 
[72]
I do not accept the submission of Ms Williams that Dr Jansen was seeking to lay blame on the appellant for the hernia. 
[73]
At paragraph [38] of her submissions “Mr Jansen has tried to blame Mr Carpenter's underlying health”
[74]
As noted at paragraph [49], Dr Jansen refers to risk factors which are to be taken into account in the appellant's presentation. 
[75]
It is noted in Mr Knight's report he states under Relevant Pre-existing Factors: 
“Generally fit. On anti-hypertensives in the form of Plendil and statins for cholesterol but is a non smoker with no allergies. He carries a little extra weight but has good muscle tone. ”
[76]
The hospital report on discharge states “tobacco use; quit over a year ago”
[77]
Dr Jensen's report provides a Clinical Summary which states: “non smoker, non diabetic with BMI of 32.4”
This is deemed to be obese in terms of the BMI scale. 
[78]
The decision of White referred to by Ms Williams deals similarly with additional factors relating to the person's health which can play a part, of which a high BMI is a factor. 
[79]
In that decision it states: 
“[27]
Dr Moughan went on to identify factors, outside treatment, operative in this case including smoking, which impairs collagen formation, possible genetically determined factors as evidenced by previous hernia, multiple hernia within the single wound, multiple recurrent hernias despite treatment, and history of diverticular disease. ”
[80]
In paragraph [32] Mr Keating refers to Mr White as having a BMI of 40.1 and stated: 
“In patients with a high BMI, particularly someone with a BMI of 40 with a predominant abdominal obesity, the rate of an incisional hernia is very high especially in patients who have had previous inguinal hernia repairs as they are more likely to develop an incisional hernia. ”
[81]
This examination of the patient's health is not only a requirement of s 30(1)(i) of the Act, but also a recurrent theme in medical literature in respect to this condition. 
[82]
The decision of White by Judge Spiller related to a diagnosis of a right colon carcinoma. In that case a laparoscopy was advised which was a surgical procedure involving a large incision through the abdominal wall to gain access to the abdominal cavity. 
Mr White was subsequently discharged but suffered an injury in 2007, where he was struck by a steel bar in the abdomen while working as a truck driver. He had a series of further hospital admissions involving a number of presentations of hernias. In June 2010 he had a further repair for his hernia. And following surgery he developed a post operative haematoma. 
[83]
Later in 2010 he had further surgical intervention with clear evidence of recurrent hernia conditions. 
[84]
In the White decision Judge Spiller accepted the evidence of the treating specialists Mr Keating and Mr Rhine in preference to the ACC medical evidence. 
[85]
Both Mr Keating and Mr Rhine indicated gave full reports in support of their positions. 
[86]
Judge Spiller also in the White decision referred to the meaning of “ordinary consequence” in s 31(1)(c) of the Court of Appeal decision in McEnteer
[87]
The Court of Appeal decision in McEnteer5
| X |Footnote: 5
Accident Compensation Corporation v McEnteer High Court CIV-2008-485-1800, 1 December 2008 
approved the decision of the High Court where Dobson J stated: 
“[17]
… The scope of cover was to be for the unanticipated adverse outcomes arising from treatment. The comment on the definition of ‘treatment injury’ in the notes accompanying the introduction specify that it: 
‘will not cover injuries that are an anticipated part or consequence of the treatment, such as a surgical incision during an operation, or which result from the claimant's underlying health condition. ’”
[88]
The “ordinary consequences” was also considered in Judge Barber's decision in ACC v Porter6
| X |Footnote: 6
[2010] NZACC 104 
a where he stated at paragraph [58]: 
“[58]
I accept that it is over simplistic to put it, as the respondent has, that he had surgery and now he has hernias which he would not have had but for the surgery. I find that the hernias were a consequence of surgery but an ordinary consequence in terms of the respondent's health problems at the time i.e. with regard to his underlying health condition as explained above. The hernias which he developed were an ordinary consequence of the treatment he received taking all of the circumstances of treatment into account and, particularly, having regard to his underlying health condition. That means the respondent is not entitled to cover for the hernias as they do not meet the criteria of a treatment injury. ”
[89]
In the present situation the test to be applied is set out in the Court of Appeal decision in McEnteer at paragraph [20]. This has been referred to earlier in this decision at paragraph [20]. 
The analysis therefore requires the questions answered as: 
[a]
What was the injury suffered. 
[b]
Was it suffered in the course of treatment undertaken. 
[c]
Was that injury a necessary part or ordinary consequence of the treatment. 
[d]
The corollary is that the third question in particular requires expert opinion, not expert opinion in the abstract, but expert opinion reflecting what actually happened. 
[90]
In the present case it is accepted that the appellant had an emergency appendicectomy, which the operating doctor noted was a difficult dissection, and required an incision with muscle splitting. 
[91]
As stated by Mr McBride, the hernia was in the particular circumstances of the case an ordinary “if undesirable” consequence of the surgery. This has been established by the evidence. 
[92]
Dr Jansen has fully covered in his report the specific details of the procedure, and the importance of the conversion to an open procedure which increased the likelihood of the incisional hernia developing particularly given the inflammation present, and the need to access the appendix for removal, which led to prolonged surgery. 
[93]
The other factors of importance do relate to the health of the appellant who was not a current smoker, but had been in the past and his present BMI level. 
[94]
It is noted by counsel for the respondent, that the appellant's early return to heavy work may have been a factor. 
It is also noted that when he did go to his GP, some ten months later, he had additional problems feeling pain in his thigh which caused numbness which required an x-ray. In addition he had a finger accident causing damage to his joint of his middle finger. 
[95]
I prefer the evidence of Dr Jansen in respect to this matter as in his analysis of the events. 
[96]
Neither the appellant's GP, nor Mr Knight address the treatment injury definition criteria, while the report of Dr Jansen covers this and in particular the provisions of s 32(l)(c). 
That report establishes that while the applicant was receiving treatment from one or more registered health professionals the treatment injury that occurred, although caused by the treatment, was an ordinary consequence of that treatment. 
This included taking into account the emergency nature of the surgery, the medical condition of the appellant at the time and his underlying health. 

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