Lovelace v Accident Rehabilitation and Compensation Insurance Corporation

IN. THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 125 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN AARON SHANE LOVELACE of Christchurch Appellant (Appeal No. DCA 424/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 17th day of March 1999 APPEARANCE/COUNSEL Mr N R Lovelace advocate for appellant Mr A D Barnett for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the assessment of the appellant for his entitlement to an independence allowance was correct. Background On 27 August 1995 the appellant suffered an injury to his back and was granted cover under the Act. N On 19 June 1997 the appellant applied for an independence allowance in respect of that injury. On 27 June 1997 the appellant was assessed for an independence allowance, such assessment being conducted using the Functional Limitation Profile questionnaire and that assessment determined that the appellant was entitled to the maximum independence allowance, he being assessed as having a 100% disability. The appellant was duly notified of this assessment and payment of his independence allowance commenced. On 1 December 1997 the respondent wrote to the appellant advising that as a consequence of a change in the Act, independence allowances were to be assessed in a different way and that eligibility for an independence allowance was to be based on whole person impairment as assessed by an independent assessor. The letter went on to state: "The changes require all claimants who currently receive an independence allowance to be reassessed. To be reassessed you need to complete the enclosed application and take it to a registered medical practitioner. " The respondent's file discloses that the "application" was in fact the ARC54 form which is an application for independence allowance with medical certificate. That form was duly completed by the appellant and his GP, and the medical certificate indicated that the appellant's injury was stable, that it had resulted in an impairment and that the level of impairment was the same as previous. An assessment was duly carried out by Dr Schousboe who was a person duly appointed as an assessor under the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997. Dr Schousboe's assessment determined that the appellant had a 10% whole person impairment and he duly reported same to the respondent. The assessor's report was considered by Dr Morris, the respondent's Southern Medical Advisor, who determined that 3 the assessment had been carried out in accordance with the AMA Guides and confirmed the correctness of the whole person impairment of 10%. The appellant was duly notified of that assessment and the decision to pay an independence allowance based on that 10%. The appellant sought a review of that decision, contending that the assessment was unfair and unjust in the way it was conducted. At the review hearing the appellant contended that he ought not to have been required to undergo a reassessment as the medical certificate had not indicated any increase or decrease in his level of impairment and that his existing level of impairment ought to have remained. In his decision the review officer held that the Corporation was within its power to obtain evidence on which to base a reassessment for the purposes of s.54A(3) or (4) and that the assessment was carried out in accordance with the Act, as amended, and the Regulations and accordingly he confirmed the Corporation's decision. The appellant now appeals to this Court. Relevant Statutory Provisions Section 54 and 54A were enacted by the 1996 amendment to the Act and came into force 27 on the 1 July 1997. Section 54 as originally enacted was repealed and the Amendment Act provided for transitional provisions relating to independence allowances, that transitional provision is stated as follows: "27. Transitional provisions relating to independence allowance - (1) Any person who was, immediately before the date of commencement of this section, receiving the independence allowance shall be deemed to have been assessed under section 54 of the principal Act (as substituted by section 13 of this Act) as having a degree of whole-person impairment of 10 percent or more and, until reassessed under section 54A of that Act (as so substituted), shall continue to receive the allowance at the rate payable on that date. 4 (2) On the reassessment of the person under section 54A of that Act (as so substituted), any adjustment to the rate at which the independence allowance is being paid shall, -- (a) If the entitlement is to be reduced or is to cease, be effective 3 months after the date on which the person is notified of the Corporation's decision in respect of the level of impairment: (b) If the entitlement is to be increased, be effective as from the date of the certificate verifying the increase in impairment or from the date of commencement of this section, whichever is the later. " The relevant parts of ss.54 and 54A as enacted by that 1996 Amendment are as follows: "54. Independence allowance - (1) Subject to this section, every person who has cover under this Act is entitled to receive an independence allowance at the appropriate prescribed rate if the person's personal injury has or personal injuries have resulted in a degree of whole-person impairment of 10 percent or more. (2) No person's entitlement to the independence allowance shall be assessed or reassessed until - (a) The Corporation has received a certificate from a registered medical practitioner to the effect that the person's condition arising from the personal injury has stabilised and that it is likely that there is impairment resulting from the personal injury; or (b) Fifty-two weeks have expired since the date of the personal injury and the Corporation has received a certificate from a registered medical practitioner to the effect that, despite the fact that the person's condition arising from the personal injury has not yet stabilised, it is likely that there is impairment resulting from the personal injury, - whichever first occurs. 5 (4) The assessment of a person's entitlement to the independence allowance shall be carried out in accordance with section 54A of this Act and if, and only if, the entitlement is established by such an assessment, it shall be payable in accordance with subsection (7) of this section." Section 54A of the ARCI Act provides, inter alia: "54A. Assessment and reassessment - (1) For the purposes of section 54 of this Act, a person's whole-person impairment shall be assessed in accordance with regulations made under this Act. . .. (3) If the injured person's impairment increases after the date of assessment, the corporation shall reassess the person following verification, by a certificate from a medical practitioner, of the increase in impairment, but not more than I such reassessment (other than a reassessment under subsection (2) of this section) shall be undertaken in any 12-month period. (4) If the injured person's impairment decreases after the date of assessment, the Corporation may reassess the person, but not more than I such reassessment (other than a reassessment under subsection (2) of this section shall be undertaken in any 5- year period." The Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 provide as follows: "3. Assessment of whole-person impairment - Assessment of a person's whole-person impairment, for the purposes of sections 54 and 54A of the Act, must be carried out by an assessor using the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition). 4. Assessors - 6 The Corporation must appoint as many persons as it considers necessary to carry out assessments under regulation 3." An assessor is defined in Regulation 2 as a person who is appointed under Regulation 4. Submissions Mr N R Lovelace representing his son the appellant, submitted that the respondent had directed the appellant to be reassessed for the purpose of reducing his independence allowance and he questioned whether there was an entitlement to require that reassessment when his doctor had certified that his level of impairment was the same rather than there being an increase or decrease in impairment as the Act stated. Mr Lovelace submitted that the form provided for use, being ARC54, was not the correct form and what is the point of obtaining a doctor's certificate when the respondent is simply going to refer the claimant to an assessor for reassessment and use that reassessment as the basis for changing entitlement to the independence allowance. Mr Barnett submitted that there was no evidence adduced by the appellant that the assessment carried out by the duly appointed assessor was incorrect and therefore the decision to amend the appellant's independence allowance in line with that reassessment must be confirmed. Counsel submitted that when the respondent received the appellant's request for reassessment and the certificate regarding the stability of the injury, the respondent was entitled to seek a reassessment of the appellant's entitlement under s.54. He submitted that there is no requirement in either s.54 or 54A that the certificate referred to in s.54(2) must be the same as the certificate referred to in s.54A(3). Decision The facts of this case disclose that just three days before the provisions of the Act relating to the assessment for independence allowance using the Functional Limitation Profile 7 methodology was repealed, this appellant was assessed under the Act as it then stood and was determined as having 100% disability. By virtue of s.27 of the 1996 Amendment Act the appellant was deemed to have been assessed under s.54 of the Act as amended and be entitled to receive the allowance at the rate payable for the amount for which he had been so assessed until he was reassessed under s.54A. Section 27(2) provided that upon reassessment under s.54A the independence allowance payment would be adjusted in line with any increase or decrease in level of impairment. That transitional provision did not make any requirement for the reassessment of transitional claimants but stated that they would be required to be reassessed under s.54A. That provision states that a claimant can seek reassessment on production of a certificate from a medical practitioner of an increase in impairment, but s.54A(4) does not require any medical certificate before reassessment for a decrease in impairment. Section 54A(4) in my view is permissive and it entitles the respondent to reassess a person if that person's impairment decreases after the date of the earlier assessment. I find that this particular subsection is not as clear as it could be, but I find by reference to, say, s.73 of the Act that the phrase "if the injured person's impairment decreases" does not necessarily require the respondent to be so satisfied as a condition precedent, of that fact before requiring a person to be reassessed. Section 54A is a new section and contains some of the provisions formerly contained in the repealed s.54 and it is noted that s.54(12) of that repealed provision states: "The Corporation may, on its own motion, or at the request of the injured person, reassess the degree of disability of that person and make any appropriate adjustment to the independence allowance payable as from the commencement of the next quarter, but not more than one reassessment may be undertaken in any 12-month period. " 8 That provision is quite clear and indicates the maximum frequency with which reassessments can be made. It is to be noted that in the case of this appellant the reassessment was done within 12 months and certainly the decision to reassess was made within six months of that initial assessment. In that regard I note a memorandum on the respondent's file from the appellant's case manager which states as follows: "Noted on monthly stats list that Aaron's classification of IA is Extreme .. high priority for reassessment with new impairment assessment." It is also to be noted that the respondent's manual relating to procedure for transitional claimants states as follows: " 4. Procedure for transitional claimants Use this procedure to establish a transitional claimant's ongoing eligibility for the independence allowance. All claimants receiving an independence allowance before 1 July 1997 must be reassessed under the new regulations. 4. I Send the Transitional independence allowance claimant letter and the ARC54 (Independence allowance application and medical certificate) to the claimant. 4.2 Make sure the claimant has completed all of their details on the form. If the details are not complete, return the form to the claimant to complete. 4.3 Make sure a registered medical practitioner has certified that the claimant's impairment has changed. If the medical practitioner has certified there is a change, the claimant is eligible for reassessment. 4.4 If the claimant is not eligible for an assessment, send the Transitional independence allowance decline letter. 4.5 If the claimant is eligible for an assessment, do the following ...". 9 It is somewhat surprising to note the contention that all claimants must be reassessed and that if a medical practitioner were to certify that the claimant's impairment had not changed, as in this case, the claimant is not eligible for assessment, then if 4.4 is to be interpreted correctly, the claimant's independence allowance would be cancelled. The factual circumstances of the appellant's case did not get to that stage, as despite the medical certificate determining that his impairment was the same, nevertheless as directed by the respondent he underwent a further assessment using the new criteria for assessment. I have referred to the foregoing which appears on the respondent's file for the sake of completeness and because the question of whether the respondent could require the appellant to undergo a reassessment within a comparatively short time of his earlier assessment had been raised by the appellant in submissions both to this Court and earlier at the review hearing. However, for determination of the issue which is before this Court and which is properly an appellate issue as opposed to an issue which would require to be considered in judicial review proceedings, when questions of fairness and reasonableness could be raised, I find that the provisions of s.54(A)(4) does enable the respondent to seek a reassessment and the only limitation is that not more than one such reassessment can be carried out in any five year period. As I have previously noted, there is no requirement for any certificate from a medical practitioner and this subsection seems to be a much more clumsier restatement of the former s.54(12) referred to above. Accordingly then, I find that the respondent was correct to reduce the amount of the appellant's independence allowance in line with the reassessment which it undertook. I find that there was nothing about the carrying out of that assessment or its veracity which can be an issue and therefore the appellant is receiving exactly that to which he is entitled. For this reason the appeal must be dismissed and I decline to embark on any considerations which are entirely in the province of judicial review which is beyond the jurisdiction of this Court. 10 This appeal is dismissed and I make no order for costs. DATED at AUCKLAND this 18 day of May 1999 deathe MJ Beattie District Court Judge dca42498.doc(rd)