Court rules ACC liable despite 'degeneration'

ACC initially refused Alan Lyth's claim for surgery. Photo / Steven McNicholl

ACC has been ordered to pay for the neck surgery of an injured claimant, even though he was "predisposed" to spinal problems because of degeneration.

The Accident Compensation Corporation can use age-related degeneration as a reason for disqualifying a claimant for surgery but only if a personal injury is caused "wholly or substantially" by ageing.

Alan Lyth, the principal of Bairds Mainfreight Primary School in Otara, fell 3m in June 2008 from a ladder that was leaning on his home after cleaning leaves off the roof.

Aged 59 at the time, he suffered injuries to his right buttock, right shoulder and neck.

His orthopaedic surgeon, Rodney Gordon, recommended a spinal operation, but ACC refused to pay after receiving a report from one of its medical advisers, orthopaedic surgeon Ray Fong, which concluded: "... this is a degenerative condition rendered symptomatic following an accident."

A reviewer agreed, but in appeal evidence given to District Court Judge Martin Beattie, Mr Gordon said the ladder accident was the "majority" cause of Mr Lyth's needing spinal surgery, although he acknowledged there were degenerative changes in his neck.

He was "somewhat predisposed" to developing neck problems from these degenerative changes, but before the accident he had not experienced any of the neck pain or stiffness associated with such problems.

"On the balance of probabilities it is my opinion that the injury certainly caused more than 25 per cent of the problem for which surgery was required."

In a decision issued last month, Judge Beattie said the pre-accident absence of neck symptoms was significant, because the type of neck injury Mr Lyth had suffered - separate from the degeneration - was one that caused symptoms.

His degenerative condition merely made it more likely that accident trauma such as the fall would "tip the nerve system over the edge and bring about [nerve] entrapment".

He ordered ACC to pay for the surgery - plus legal costs of $2500 and disbursements.

Mr Lyth has already had the $13,000 operation, courtesy of health insurer Tower, which has now been repaid.

He said yesterday the pain in his neck and right arm had 98 per cent resolved since the operation.

He was annoyed by the drawn-out legal process because he had been paying income tax and ACC levies since he was a young man.

"Then all of a sudden they say you are not entitled to this ... I think it's ridiculous. There was no question that the problem was brought on by the fall."

John Miller, head of the firm which employs the lawyer who represented Mr Lyth, said the case was an important judgment because it highlighted ACC's liability when degeneration was present but not the whole or substantial cause of the personal injury.

"... ACC says, 'Degeneration, end of story'; we say, 'Not end of story."'

Meanwhile, ACC Minister Nick Smith said he had stated his concern to ACC about the number of complaints he was receiving, and had instructed the corporation that it had to fairly meet its legislative obligations when surgery was required because of an accident.

He said ACC would consult external stakeholders in its internal review of the decision-making process, which he expected to be completed in March.

The ACC Futures Coalition said an independent inquiry was now needed.

THE ACC BOARD

*Peter Neilson, ACC's deputy chairman and the chief executive of the Business Council for Sustainable Development. A former Labour MP and former minister of revenue.

*Marie Bismark, a health law specialist

*Philippa Dunphy, a director of NZ Post

*Rob Campbell, an investment director and former union leader

*Murray Hilder, an actuarial consultant

*Jane Huria, a director of HSR Governance

*John McCliskie, a director of Nelson Electricity and numerous other companies