ACC Declined Funding for my Cochlear Reimplantation

Ugh.

It happened. ACC denied me funding to fix my defunct, not working Cochlear Implant. It didn't come as a surprise - I had had a really bad feeling about ACC right from the beginning. Probably not helped by the case worker who had been trying to PHONE me despite me putting on my forms that I was unable to hear on the phone!!!

Anyway - their letter verbatim......

We’re sorry, we can’t approve your claim
We’ve been told you were injured on 12/11/2008 while being treated by a health professional. After careful consideration, we’re sorry to say your claim has not been approved.
Why we can’t approve your claim
We’re unable to approve your claim because it does not meet the criteria for a treatment injury.

It goes on to say...

For ACC to approve cover for a treatment injury claim, the following must apply:

*There must have been a personal injury, which occurred when you were seeking or receiving treatment from, or at the direction of, one or more registered health professionals
*The personal injury occurred as part of treatment
*The treatment can be shown to have directly caused the personal injury; and
*The personal injury is not excluded from cover (for example, the injury must not have been mainly due to an existing underlying condition)

The following condition was not identified as being related to treatment in this case:
*Failure of the right Cochlear implant
This is because:
*The treatment you received did not directly cause the condition in question.

A report from the surgeon Mr R Gunn states “At the re-implantation procedure, Robyn was found to have some fibrous scar tissue in the cochlea, and it was only possible to insert 17 of the 22 electrodes. A post-operative x-ray showed that the electrode was well in position”.

In recent months you have had a progressive deterioration in your hearing and non-auditory symptoms which is said to be due to the stimulation of the more proximal electrodes. More and more electrodes have needed to be switched off to eliminate the non-auditory symptoms, so your hearing has deteriorated accordingly.

An x-ray of the implant in late October 2008 confirmed that the implant array has been progressively migrating out of the cochlea. Mr Gunn states “we assume that this is occurring because of scar tissue contraction within the mastoid bone, through which the electrode passes in between the internal receiver/stimulator unit and the intra-cochlear electrode array. This is an unusual complication which has been reported by some cochlear implant clinics elsewhere”.

The claim has been lodged to replace the implant.

Mr Gunn further comments that the migration of the electrode out of the ear “is certainly not simply a function of a disappointing result from the implant replacement operation”.

The underlying hearing loss was present prior to the cochlear implant but you were “hearing very well with her new cochlear implant until the electrode migrated out”.

This is considered to be a rare but already reported complication in some overseas cochlear implant clinics.

External Clinical Advice was obtained by ACC from the ENT surgeon Mr Philip Bird, who specialises in cochlear implant surgery. Mr Bird states that in terms of a physical injury “…the implant itself is not damaged but the electrode has been displaced, possibly by contraction of scar tissue. The extrusion of the electrode meant that the implant is no longer effective. In this respect I think is almost certainly a physical injury given that the device has not been damaged per se. Scar tissue causing migration of the implant necessitating further surgery is not a necessary consequence of surgery. It has certainly been described and is incredibly rare both in the New Zealand experience and the overseas literature”. In fact he notes the incidence is a fraction of 1%.

Legal ECA from Mr Bruce Corkill, QC Barrister. Mr Corkill states:
With regards to a physical injury he states “In the circumstances of this case, the medical evidence is that a physical injury has occurred, namely the scar tissue which is having a critical impact on the implant. However, there is no evidence as to how the scarring was caused – which it would be essential to have if the scarring were to be regarded as a personal injury.”

He goes on to state that with regards to the physical injury being caused by treatment – “The final and critical question is whether that “treatment” is causing the “personal injury”. “Here, it appears that the reverse has occurred. It is the scar tissue which is causing the failure of the implant. On those grounds, then, it is not possible to conclude that there is a treatment injury here, unless it can be shown that the failure of the implant is in some way causing the scarring.”

Claims about scars as personal injuries caused by treatment provided by or the direction of one or more registered health professionals have been the subject of many previous claims over the years. Scars have long been determined to not be personal injuries caused by treatment.

A scar that results from the healed surgical incision is part of the healing process of the body. A scar can grow in claw-like manner into normal skin or other internal body parts such as the ear.

A scar is not a personal injury caused by treatment under the treatment injury provisions. It is the host body’s ordinary mechanism to heal wounds that are the cause of a scar. The incisional wound is a necessary part of the treatment.

The Complex Claims Panel concurred to decline the claim for cover.

*Based on the medical information available, ACC considers that failure of the right Cochlear Implant is not an injury caused by treatment. The desired results have not been achieved in this case. Additionally an injury caused by treatment cannot be found. Accordingly the claim for cover is declined.


So that's it in a nutshell - No reimplantation for me as yet. Funding will have to be found elsewhere to go ahead.