Lelievre v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION NO. $ 9 /2008 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 306/06) BETWEEN ADAM LELIEVRE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 12 June 2007 Appearances: Ms M C Kavanagh for appellant Ms D S Lester for respondent Judgment: 19 March 2008 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The appeal concerns a 26% whole person impairment assessment in 2006 following a 5% whole person impairment rating assessed in 1998. The Corporation made payments on the new assessment from the date of the assessment. The appellant argued that the 1998 assessment was misconceived and based on incorrect material but the Corporation declined to backdate it to 1998. There had been no application to review the 1998 assessment and the Corporation regarded it as a valid assessment until it is eventually replaced by a new assessment. [2] Mr LeLievre was injured in a motorcycle accident in June 1994. He sustained multiple fractures to his pelvis and a fracture of his right femur. He received an independence allowance for the injuries sustained in the accident until he was ADAM LELIEVRE V ACCIDENT COMPENSATION CORPORATION DC WN DECISION NO. 2008 [19 March 2008] assessed again on 30 January 1998. That assessment was done by Dr Noonan using the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition). The assessment rated the appellant's Whole Person Impairment as 5%. [3] The Corporation issued a decision on 27 May 1998 based on Dr Noonan's assessment that the appellant no longer had an entitlement to the independence allowance. The decision was not reviewed or appealed. Mr LeLievre says that he did not challenge the decision in 1998 because he believed that he could not receive an independence allowance while he was working. He had recently gained employment and he did not realise that the independence allowance was not means tested. [4] In January 2006, Mr LeLievre made a further application for an independence allowance and the assessment was done by Dr Bernard, who assessed his final Whole Person Impairment rating at 28%. A subsequent peer review by Dr Kanji confirmed this was appropriate. Payments for independence allowance then resumed. [5] Mr LeLievre applied for review of the 2006 assessment, contesting only the date from which this entitlement ought to apply. He sought backdating of the independence allowance to 1998 on the ground that the 1998 assessment was wrong or incomplete, although the time to apply for a review of that decision is long expired. The claim for backdating of the 2006 assessment is an attempt to circumvent the time limit for applying for review. The Reviewer decided that there was no jurisdiction to backdate and confirmed the Corporation's position with a minor adjustment. Medical assumptions [6] Dr Noonan's whole person impairment rating in 1998 contained the following injury description: "ASSESSMENT For his fractured femur there was no impairment rating for loss of motion, for leg length discrepancy, or muscle atrophy or for any neurological damage Because new x-rays were unable to be organised to determine the present stability of his pelvic fracture, then an estimate had to be done based on the probable present state. The operation report of 5/6/94 states 'an unstable pelvic rim fracture with the pubic rami both fractured and hinging outward at the left SI joint ... good stabilisation of the iliac crests obtained'. X-rays of 1 1/6/94 show 'some inferior subluxation of the left pubis remaining at the symphysis. The bilateral inferior pubic rami fractures are uniting' It is likely that he has at best "healed fractures with displacement, deformity and residual signs involving bilateral rami'. From the table on page 131 this gives a 5% whole person impairment rating. SUMMARY From the information available to me, Adam Lelievre's whole person impairment rating based on the AMA Guides to the Evaluation of Permanent Impairment 4th edition is 5%. If however new information becomes available to determine the exact nature of his pelvic fractures then this assessment would have to be altered." [7] There was no apparent error in the application of the Guides, but Dr Noonan made his assessment without new x-rays and on the basis of his clinical examination with the assistance of the operation report and accompanying information. Ms Kavanagh submitted that this was not a proper assessment and that the Corporation should not have issued a decision based on Dr Noonan's estimate. Comparison with the 2006 impairment assessment of a 28% WPI for the same injuries reinforces the submission. In 2006 Dr Bernard reported: "In 2000 Adam's general practitioner sent him back to his Orthopaedic Surgeon and removal of the intramedullary nail was organised. The procedure has not helped Adam's pain significantly. He has tried to work but still experiences a lot of pain. There are times when he makes a move and his body 'paralyses' - he stiffens with the pain and sometimes remains very disabled by it for one to two weeks. Adam has an ungainly gait - he sways his body like a person with a congenital dislocation of hip. He has been told that no more can be done for him, and he has to live with the recurring pain. He has had x-rays taken quite recently (this year) and he brought them with him. I did not see a report but was fascinated to note the following on checking the films: 1. The pelvis rim is grossly distorted. It is almost triangular. 2. There is a 3-4mm step down from the right to the left at the symphysis pubis. 3. There is a 1.5cm gap (?site of past un-united fracture) in the middle of the right inferior pubic ramus. 4. There is a metal plate with screws in the dorsal part of the left sacro- iliac joint area and another in the left upper pubic ramus. 5. There is a metal fragment about lem across just above the right hip joint 6. There appeared to be normal cartilage intervals in both hip joints. 7. The anterior superior iliac spines appear level and the lower spine is straight but the right hip joint is 3-4cm higher than is the left hip joint (I understand that the film was taken supine). I could see no specific abnormalities in the lower spine but of course there was no report with the films for me to check." [8] Under the heading of Assessment, Dr Bernard wrote: "Adam's general practitioner commented in June 2000 that Mr MacDiarmid 'did an absolutely wonderful job rebuilding' Adam. He had had a quite major disruption of the pelvic ring but no significant injuries o intrapelvic organs. Adam's stance and gait now appear to cause chronic lower back and right hip muscular pain, which can at times be very disabling. This has worsened with time and has not been significantly improved by removal of the intramedullary nail. A fragment of metal near the right hip joint capsule is supposed not to be causing pain. Nevertheless Adam is disabled by both recurring low back muscle spasms and his shortened right leg. He appears to be significantly disabled. ..." [9] He then applied the Guides page 131. I note that page 3/131 of the Guides, under "3.4 The Pelvis" lists "impairment values associated with selected disorders of the pelvis" and allocates fixed percentages to healed fractures depending on the level of displacement, deformity and residual signs. Only one category requires evaluation on the basis of restricted motion of the hip joint. Otherwise the results are fixed by the table set out in the Guides. The assessment appears to depend on imaging information. Appellant submissions [10] The appellant submits that he was wrongly affected by a flawed or invalid assessment in 1998 and that he should have continued to receive his independence allowance as it was then, or should now have his independence allowance backdated at the rate of 28%. Ms Kavanagh submitted that the purported assessment of 1998 is so flawed that it is a nullity and there was in effect no assessment at all. Therefore Mr LeLievre's independence allowance entitlement should have continued at the same level that he was being paid before the 1998 assessment, or the new entitlement should be backdated to 1998. In support, Ms Kavanagh referred to Administrative Law in New Zealand Phillip A. Joseph, 2nd ed., for authority that a decision-maker must address relevant considerations, and must hear all the relevant evidence and not act arbitrarily or unreasonably. [I1] It is submitted for the appellant that it was arbitrary for the medical assessor to guess Mr LeLievre's impairment in the absence of essential x-rays, and it was wrong for the Corporation to issue a decision based on such an assessment. It was submitted that the doctor was driven to guess what the claimant's level of impairment was without reference to all of the information. Precise information was required by page 3/131 of the Guides and the specific need for x-rays was stated by Dr Noonan in his assessment report. Respondent submissions [12] Ms Lester for the respondent submitted that the assessment cannot be regarded as a nullity because it was done by an appropriate assessor and there is no medical evidence that Dr Noonan could not make an assessment in the absence of x-rays. The Corporation then acted on the basis of an assessment report prepared by an appropriate assessor. She submitted that the level of the 2006 assessment cannot be assumed to be the level that should have been fixed in 1998 because there may have been deterioration in the intervening eight years. It is noted that Dr Bernard reported that the appellant told him that he worked hard until the year 2000, when increasing pain led to his being put on an invalid benefit, so it is submitted that there is evidence of progressive deterioration. Dr Bernard said that the condition of stance and gait, causing chronic lower back and right hip muscular pain, has worsened with time. If that is so, the 1998 assessment might well have been correct. [13] Ms Lester submitted that the appellant's submissions, which referred to a breach of natural justice, are misguided and not of assistance to this Court in determining the issues at hand because they should have been addressed by a review of the decision that ceased the appellant's entitlement in 1998. He did not review because he was mistaken, and would have no ground for an extension of time to appeal until 2006. Ms Lester made the point that Mr LeLievre did not dispute the conclusions in Dr Noonan's report, but was influenced by his own mistake that he was not eligible for an independence allowance while working. In that case he could have applied for a review against the substance of the report to protect his position if he ceased working. Alternatively he could have applied for a new assessment when he stopped working. Apart from those grounds for justification of the 1998 decision, Ms Lester submitted that it has to stand because it was not reviewed. Section 63 [14] Both parties also made submissions concerning the effect of clause 63 of the 1998 Act which was then in force and which provided: 63. Payment of Independence Allowance - The following provisions apply to the payment of an independence allowance: (a) The insurer is not liable to pay an independence allowance for any period before 1 July 1992: (b) The insurer is liable to pay the independence allowance on and from the date on which the insured lodged the claim for cover for the personal injury from which the impairment results (c) The insurer is liable to pay the independence allowance quarterly in advance for any period after the completion of the assessment of the degree of impairment: (d) The insurer must not take any action to recover the whole or any part of a quarterly payment of an independence allowance in respect of a quarter in which - (i) The insured's impairment decreases; or (ii) The insured's entitlement to an independence allowance ceases: (e) An adjustment to the level of entitlement of the independence allowance necessitated by a reassessment under clause 61 takes effect on and from the date of the next quarterly payment: (f) The insured's entitlement to an independence allowance he or she was receiving at the date of his or her death ceases on that date. [15] Ms Kavanagh submitted that, even if there was a valid 1998 assessment, there could still be a backdated 2006 assessment because cl 63(e) does not catch an adjustment from zero to an assessed level of independence allowance, it only affects an adjustment between two "levels". She submitted that zero is not a level. Mr Lester submitted that the argument was tenuous and unsupported by logic or authority. She referred to Bland (273/05) in which the Court refused to backdate to the date of an earlier zero assessment. Decision [16] The appellant raises the question whether there was merely a flawed assessment in 1998, or whether the report by Dr Noonan was so defective that there was no assessment at all. The 1998 assessment was expressed in a provisional way, that is to say that if new information became available to determine the exact nature of the appellant's pelvic fractures, then the assessment would have to be altered. In effect Dr Noonan was stating that he could not complete the assessment because he had no x-rays. There is a viable argument that the assessment was not a true current assessment, but an assessment of whole person impairment as it would have been made from x-rays in 1994, whereas what is required is an assessment on the basis of impairment at the time of assessment. There is also a countervailing argument that Dr Noonan was entitled to make an assessment on available materials. In my view the question does not have to be determined in this appeal. [17] The problem for the appellant is that if the decision was based on a flawed assessment, there was an available remedy of review and appeal which he did not take up. In other jurisdictions it might be possible to obtain a declaration by judicial review that the decision was a nullity, with the result that the previously payable allowance might continue to accrue. However in this jurisdiction there is a privative clause in s133 of the 2001 Act, and the same provision appeared in s134 of the 1998 Act. Section 133(5) states: (5) If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides. Remedies are therefore restricted to the statutory rights of review and appeal which have well expired. [18] The only decision that can be considered in the present appeal is the decision of 13 March 2006 in which the Corporation advised the amount of the independence allowance based on a new assessment, and that payments would run from the date of application for entitlement. In fact, under s 63(e) the adjustment takes effect from the next quarterly payment, but that is a minor point which there is no need to address in this appeal. [19] Ms Kavanagh argued that s 63(e) does not apply because it relates to "an adjustment to the level of entitlement of the independence allowance" which logically refers to an adjustment from one level of entitlement to another level of entitlement, whereas this case concerns an adjustment from nil to a new level of entitlement. It was submitted that there can only be an adjustment to a level of entitlement where a claimant is actually receiving an entitlement, and that no entitlement at all cannot be considered a level of entitlement. The argument is that cl 63(e) does not then apply to prevent Mr LeLievre's entitlement from being backdated. Clause 63(b) would then apply, with the result that the insurer is liable to pay on and from the date on which the insured lodged the claim for cover for the personal injury from which the impairment results. [20] At best, the argument could apply to a claimant whose first and immediately preceding independence allowance assessment is invalid, but the appellant's submissions record that the appellant received the independence allowance for these injuries from 1994 until 1998. Therefore cl 63(b) could not backdate the payment to the date of lodgement of the claim for cover. [21] There are various possible combinations or chronologies in which nil, invalid or liable independence allowances might occur in various cases. Bland (273/05) was an appeal in which a claim for backdating was refused when the Court rejected an argument that the process was an assessment and not a reassessment. The approach taken by Judge Beattie in that judgment was that the process was a reassessment under the authority of the transitional s 377 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 and cl 61 of the 1998 Act. That is the same basis for assessment as in this present case. The language of cl 61 is directed explicitly at reassessment. Once reassessment is done under s 61, the payment provisions of cl 63 apply and under subclause (e): (e) An adjustment to the level of entitlement of the independence allowance necessitated by a reassessment under clause 61 takes effect on and from the date of the next quarterly payment: [22] Once there is a liable level of assessment, it follows that any adjustments are necessitated by the reassessment that has taken place under clause 61. Subclause (e) is the only provision determining the starting date for payments. I agree with Ms Lester's submission that there is no statutory indication that the adjustment to which subclause (e) refers is confined to an adjustment between different percentage based levels of entitlement. The appellant's argument rests on the fact that a percentage or adjusted percentage under 10% does not give rise to any level of entitlement, so there is no adjustment to the level of entitlement, only to the level of impairment. The expression "adjustment to the level of entitlement" must be read according to its context and in the light of its purpose. The evident purpose is one of adjustment following reassessment according to a statutory process. The provision as a whole should not be read down by an interpretation of "adjustment to the level of entitlement" that suggests an oddly narrow application of the subclause. In broader terms, the purpose of cl 63 is to fix a payment date and subclause (e) determines the payment date following reassessment. [23] With reference to the appellant's argument that the prior assessment was invalid, there may well be a future case in which a prior assessment could be declared invalid in the review or appeal process and such an argument might prevail. In such a case the supposed "reassessment" might be found in the particular circumstances to be an original assessment, by default as it were. However in this case there is no basis for the reassessment of the appellant's whole person impairment rating to be regarded as an original assessment. There is the additional factor in this case that the original assessment was made before 1998 and the 2006 exercise could only be regarded as a reassessment. [24] I find that there is no statutory authority for the 2006 whole person impairment assessment to be backdated. [25] For those reasons the appeal is dismissed. [26] I regret that issuing this judgment was overlooked and apologise to the parties for the delay. Judge D A Ongley District Court Judge