Treatment injury

Contributed by Morgan Speight and current to 1 March 2017

Treatment injuries can be found at sections 32 and 33 of the Accident Compensation Act 2001

Scope Of 'Treatment'

Treatment is a wide term, and any injury that you sustain may be covered by ACC if it happens during:

• Receiving treatment (includes surgery, provision of medication, wearing contact lenses);
• Having your condition diagnosed;
• A decision of what kind of treatment to give;
• A decision not to treat;
• An investigation;
• Receiving medical advice;
• Being monitored;
• Because of a failure to provide treatment, or failure to provide treatment in a timely way;
• Being provided with prophylaxis (an agent which prevents the spread of disease);
• Failure of equipment used for the treatment;
• The application of a support system that was used by the organisation that was responsible for providing the treatment - this includes administrative systems, policies, processes and practices.

The injury must be caused by the treatment, it must be established that it was more likely than not that the injury was caused by the treatment - Accident Compensation Corporation v Ambros [2007] NZCA 304; [2007] NZCA 304; [2008] 1 NZLR 340

Health Care Providers

ACC will cover your injury if the treatment was provided by a health care professional. This includes more than just doctors and nurses, and will usually cover people that you could choose to seek treatment from.

Is the practitioner covered by ACC?

• Anaesthetist
• Chiropractor
• Doctor
• Dentist
• Dental technician
• Medical laboratory technologist
• Medical radiation technologist
• Midwife
• Nurse
• Occupational therapist
• Optometrist
• Pharmacist
• Physiotherapist
• Podiatrist
• Psychologist
• Surgeon

Limitations on Cover

The following circumstances or influences on your injury may mean that ACC won't cover your injury

• The injury was a necessary part of the treatment.
• The injury was an ordinary consequence of the treatment - this will depend on the circumstances of the individual case, and will depend on the clinical knowledge of at least one of the medical professionals that were responsible for your case at the time of the treatment ( McNaught v Accident Compensation Corporation [2008] NZACC 163). The court tests whether something is an ordinary consequence by looking at the likelihood of the injury occurring - taking into account your underlying condition, the nature of the treatment required and what actually happened at the time of treatment. The more likely the injury is to occur, given all the circumstances, the more likely it would be considered an ordinary consequence of the treatment - Accident Compensation Corporation v Porter [2010] NZACC 104).
• The injury was more likely to be caused by something other than the treatment.
• Your underlying health condition was wholly (ie entirely), or mostly responsible for the injury.
• The injury was caused only by a decision that was made about how health resources are allocated (this may include a decision about where you are on a waiting list).
• Your injury was caused because you withheld or delayed your consent to treatment, and that your decision to do so was unreasonable.
• The injury is only suspected to be caused by the treatment - decided in Karmarkar v Accident Compensation Corporation [2010] NZACC 76
• The treatment did not have the desired result.

Examples Of Qualifying Personal Injuries:

To qualify for cover, the injury that you have suffered needs to be a physical injury.

The following are examples of physical injuries that do qualify for ACC cover:

• Avoidable injury sustained because the treatment was "significantly deficient" - Crampton v Accident Compensation Corporation [2013] NZACC 182
• Stroke caused by chiropractor manipulating the neck - Brash v Accident Compensation Corporation [2013] NZACC 23

The following are examples of claims that the Courts found did not to qualify for cover.:

• Hair loss following chemotherapy (although this is covered by a different grant from the Ministry of Health)
• Double vision following bilateral orbital decompression surgery - Lennon v Accident Compensation Corporation [2013] NZACC 220
• Adverse effects as the result of taking the wrong kind of medication - Meneses v Accident Compensation Corporation [2012] NZACC 328
• Unwanted infertility - S R v Accident Compensation Corporation [2011] NZACC 355
• Sexual dysfunction without an identifiable physical cause - Stanley v Accident Compensation Corporation [2011] NZACC 269
• Tinnitus - Neeson v Accident Compensation Corporation [2012] NZACC 214]
• Pain or stiffness where no underlying physical condition was identified - Accident Compensation Corporation v Studman [2013] NZHC 2598
• Loss of a chance or recovery (includes temporary recovery) - Estate of Sheppard v Accident Compensation Corporation [2013] NZACC 117
• Failure to diagnose a condition earlier, when earlier treatment would not have changed the outcome - Accident Compensation Corporation v Robertson [2011] NZACC 327; Robertson v Accident Compensation Corporation [2014] NZHC 762
• Failure to diagnose a condition at an earlier time, where it could not have been diagnosed earlier, or when earlier diagnosis was not feasible - Baker v Accident Compensation Corporation [2009] NZACC 70
• Symptoms of osteoarthritis only showing after you have had treatment in that area - Cooper v Accident Compensation Corporation [2010] NZACC 100
• Injury that was an ordinary part of the disease - Baker v Accident Compensation Corporation [2009] NZACC 70

Infections

If a patient suffers an infection as the result of a medical treatment, and it is not disqualified by one of the listed features above, then the illness may be covered by ACC for more than just the infected patient. It could also cover people who became sick as a result.

An infection that is passed directly from the original patient, to another person (such as their spouse or partner, their child, or any other person that they come into contact with) will be covered if the original patient became ill as a result of a treatment injury.

Clinical Trial

If you are injured because your treatment was part of a clinical trial, then you will only be eligible for ACC if:

• The trial was approved by an ethics committee; and
• The trial was not mainly for the benefit of the maker/distributor of the treatment being trialled; and
• You did not provide written consent to the trial.

Hair Loss Following Chemotherapy

If you undergo chemotherapy treatment and lose your hair because of that treatment then it is unlikely that you can get cover for a treatment injury. There is, however, a separate grant provided by the Ministry of Health that can help to cover expenses. The grant can cover things like:

• Wigs or hairpieces;
• Eyebrow wigs;
• Headwear or scarves.

Your GP or medical specialist will be able to issue you with a medical certificate, which you can take with you to a wig supplier. Once you have chosen the item or items that you wish to buy, you can either ask the supplier to make a claim to Sector Services for you, or you can make the claim yourself.

When you were injured

The date that you are considered to have suffered a treatment injury is the date that you first seek treatment for the symptoms of the injury as stated in CB v Accident Rehabilitation and Compensation Insurance Corporation [1997] NZACC 70. It does not matter whether you sought treatment late because you did not realise that the symptoms that you had were a treatment injury.

It is important to note that the date of your injury can affect the entitlements you receive. This means that if you resign from your job or are made redundant before you seek treatment, and are no long considered to be an "earner" by ACC, even if you were employed when you received the treatment that caused the injury. (see section on weekly compensation for more detail)

Review and appeal

A registered health professional or organisation cannot apply for a review. If you ask for a review the health professional or organisation that was responsible for the treatment has no right to appear at any review or appeal. For more information on having the decision as to whether your injury was a treatment injury, see the sections on reviews or appeals.