Jus­tice fight for mesh suf­ferer

One woman’s de­ter­mi­na­tion could win ACC for hun­dreds, writes Cate Broughton.

Sunday News - - NEWS -

Jim Pen­man, founder of Jim’s Mow­ing, one of the world’s big­gest lawn-mow­ing fran­chises, said de­mand for mow­ing lawns was still go­ing up.

‘‘The in­ter­est in lawns is not dy­ing,’’ Pen­man said.

In the past year Jim’s Mow­ing had 10,000 new New Zealand cus­tomers. An­other 5000 were turned down be­cause it didn’t have enough fran­chises to cope with the de­mand, he said.

Most peo­ple weren’t aware of the en­vi­ron­men­tal is­sues around lawns, or they just didn’t care, he added.

New Zealand Crown re­search in­sti­tute Land­care ecol­o­gist Colin Meurk said too much her­bi­cide was be­ing used on lawns and we should in­stead be grow­ing self­sus­tain­ing shrub­lands or forests.

‘‘We cre­ate a prob­lem for our­selves when we fer­tilise, wa­ter and her­bi­cide our lawns – we then have to mow them more fre­quently,’’ Meurk said.

‘‘If we let them run down and be­come less fer­tile they would be more in­ter­est­ing in terms of wild flow­ers, both na­tive and ex­otic, and they wouldn’t re­quire such fre­quent mow­ing.’’

AUT his­tory pro­fes­sor Paul Moon said man­i­cured lawns orig­i­nated from the ru­ral to ur­ban drift, when new­com­ers to the city at­tempted to psy­cho­log­i­cally bring the farm with them. ‘‘It’s there al­most as an echo from a nos­tal­gic past,’’ he said.

But ro­man­tic as wild­flower meadow verges sounds, he was not con­vinced they would catch on. ‘‘They’ll dis­cover there’s a lot of work, off-sea­sons, deal­ing with weeds.

‘‘Af­ter a year or so they’ll dis­cover it’s not all roses.’’ A man­ager whose ca­reer was cut short af­ter suf­fer­ing chronic post­surgery pain hopes her High Court case against ACC will bring jus­tice to thou­sands of peo­ple who have been shut out of com­pen­sa­tion.

Auck­lan­der Shereen Moloney, 66, had a her­nia re­pair pro­ce­dure with sur­gi­cal mesh in 2008 and has suf­fered ‘‘burn­ing’’ pain and loss of feel­ing in her ab­domen ever since.

Moloney, who de­scribes her­self as a ‘‘very pri­vate, quiet, and re­served’’ per­son, said she was ‘‘out­raged’’ over her treat­ment by ACC. The ex­pe­ri­ence mo­ti­vated her to seek jus­tice in the High Court and speak out about her long bat­tle.

The for­mer se­nior health man­ager was dev­as­tated when, over­whelmed by pain, she was forced to quit her well-paid job in 2009.

Her plan to help her hus­band to get their fi­nances in or­der in the decade be­fore re­tire­ment van­ished in the face of treat­ment costs and lost in­come.

Moloney’s claim for ACC treat­ment in­jury cover was de­clined in 2010 on the grounds there was no ev­i­dence of a phys­i­cal in­jury.

‘‘So it just seemed ob­vi­ous to me that there had been an in­jury dur­ing the surgery and I had the symp­toms of that, which was pain.’’

The mother and grand­mother has been fight­ing the de­ci­sion ever since.

Last year Moloney took her case to the Dis­trict Court, and was as­tounded when the judge sided with ACC de­spite ev­i­dence from a pain physi­cian that she was suf­fer­ing as a re­sult of dam­age to her nerves.

Judge Grant Pow­ell con­cluded there was a lack of ev­i­dence to show an ab­nor­mal re­growth of Moloney’s nerves had re­sulted in post-op­er­a­tive pain, and that ev­i­dence pro­vided in court did not spec­ify which nerve had been dam­aged.

Moloney con­sid­ered giv­ing up, but this week agreed to con­tinue her bat­tle.

‘‘I just feel so out­raged by the jour­ney that I’ve had to go on that I feel I need to change that process and hold them to ac­count, not just for me but for other peo­ple who ex­pe­ri­ence this as well.’’

Her lawyer, bar­ris­ter War­ren Forster, filed an ap­pli­ca­tion for leave to ap­peal to the High Court.

Forster be­lieves the case could be a ‘‘game-changer’’ in terms of the way the law is in­ter­preted and ap­plied by ACC and the courts.

Un­der the ACC Act claimants for treat­ment in­jury cover have to prove a phys­i­cal in­jury oc­curred dur­ing the treat­ment. Con­se­quen­tial pain fol­low­ing surgery is not cov­ered.

If Moloney suc­ceeds at the High Court it could open the door to ACC cover for hun­dreds of sim­i­lar claimants, Forster said. ACC fig­ures show nearly 5000 of the 13,825 treat­ment in­jury claims in 2015-2016 were de­clined.

Nearly three­quar­ters of the de­clined claims were turned down be­cause there was no in­jury from the treat­ment or they did ‘‘not meet the tests to be a treat­ment in­jury’’.

Hun­dreds of pa­tients at pain clin­ics around the coun­try suf­fer from post-op­er­a­tive neu­ro­pathic pain.

Christchurch pain medicine spe­cial­ist Dr John Alchin said most of these pa­tients are di­ag­nosed with­out phys­i­cal ev­i­dence of dam­age to spe­cific nerves as this is not pos­si­ble in most cases.

Forster said neu­ro­pathic pain should be re­garded as a grad­ual process in­jury and these should be cov­ered by the act as treat­ment in­juries.

I need to change that process and hold them to ac­count, not just for me but for other peo­ple who ex­pe­ri­ence this as well.’ SHEREEN MOLONEY, ABOVE

Re­porter James Pasley needed first-hand ex­pe­ri­ence of mow­ing lawns. And his news di­rec­tor needed his Auck­land lawns mowed ...

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