James v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 186 /99 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ALICE JAMES DCA 401/98 Appellant -- -- -- AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of May 1999 APPEARANCES: Mrs A James in person Ms A H Cecil-Gibson, counsel for respondent JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to rule that the appellant is no longer entitled to an Independence Allowance. At the hearing of this appeal I indicated to the appellant that her appeal could not succeed but that I would give brief reasons in writing later. 2 The appellant in this case is another example of a person who has suffered an injury for which cover was granted and has then subsequently been assessed for an Independence Allowance under the former assessment regime of the Functional Limitations Profile Questionnaire (FLPQ) where her disability was assessed as being 74%. That disability is in relation to her left shoulder which she injured when she slipped and fell down some stairs. She continued to have what is described as rotator cuff tendonitis but her condition is worsened by the fact that she also has developed degenerative arthritis in her left hip and requires hip replacement. The appellant was reassessed on 19 May 1998 under the new American Medical Association Guides to the Valuation of Permanent Impairment (AMA Guides) by Dr Learner, a duly approved assessor appointed by the respondent for the purpose, and his assessment was that the appellant had a whole person impairment of 8%. -- -- - As that percentage was less than the 10% statutory minimum required under the Act for an entitlement, the respondent did, by letter dated 5 June 1998, advise the appellant that she was no longer eligible for an independence allowance. As has been previously noted in appeals to this Court on a large number of occasions, the appellant comes to this Court pointing out the pain and discomfort that she is suffering from the injury for which she was granted cover, the comparatively high percentage of disability that had formerly been assessed and contrasting this with the very low percentage which has been established by the reassessment under the AMA Guides and cannot understand how this has come about. At the hearing I did give the appellant an outline of the change in the methodology of assessment that had occurred from 1 July 1997 when the wholly subjective assessment methodology of the FLPQ was replaced by the wholly objective assessment contained in the AMA Guides as a consequence of an amendment to the Act. As has been the case in all these appeals, the appellant cannot produce any expert medical evidence which could put in question the way in which the assessor has 3 interpreted those guides as it applied to the particular injury that was being considered, and in those circumstances there is nothing upon which this Court could seize to find that there was some error in the assessment carried out. The Court is aware that these assessments are reviewed by the respondent's own medical staff before being confirmed in the decision that is then made. Although it is no comfort to this appellant, she is one of a considerable number of recipients of an independence allowance who have had that allowance terminated as a consequence of a radical reduction in the percentage of whole person impairment that has been determined using the AMA Guides in contrast to the seemingly high level of disability formerly assessed under the FLPQ system. As has been noted the main difference between the two systems is that one was -- -- -- wholly subjective and the other is wholly objective. In the case of this appellant it must be recognised that the assessment can only take account of her shoulder injury and not have any regard to the severe disability and discomfort that she is experiencing from her left hip. For the foregoing reasons the decision of the respondent to terminate the appellant's independence allowance is confirmed and this appeal is dismissed. DATED at WELLINGTON this 12 th day of July 1999 M J Beattie District Court Judge 401.98.James.doc