Abbis v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 294 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ANNETTE PATRICIA ABBIS of Palmerston North Appellant (Appeal No. DCA 40/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at PALMERSTON NORTH on the 14th day of September 1999 APPEARANCES/COUNSEL A R V Rowlett, advocate for appellant A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant was correct to cancel the appellant's entitlements and, particularly, the independence allowance without obtaining a prior reassessment of impairment. The appellant reinjured her back in a fall on 3 March 1996. The respondent accepted that she was entitled to cover. Prior to that incident the appellant had had a long standing hip and back complaint with which she was not the responsibility of the respondent. The appellant was assessed for an independence allowance in May 1996 2 and her disability was assessed at 100% using the earlier subjective form assessment which has now been superceded by the assessment using the American Medical Association Guide. In 1998 the respondent commenced a reassessment process when it was ascertained that the appellant had a significant pre-accident history of hip and back problems. As a result, the respondent requested information from the appellant's General Practitioner, Dr D B Fulton, who advised the respondent on 3 August 1998 that "it is also my opinion that the incapacity suffered now is not a result of the injury in 1996 but a continuation of her previous back disabilities." The respondent then issued its decision on 7 August 1998 advising the appellant that as her ongoing problems were not related to the accident of 1996 but to pre-existing problems, she had no further entitlement under the claim for the 1996 accident, including the payment of the independence allowance. The Review Officer upheld the respondent's decision and it is against that decision which she now appeals. Mr Rowlett's principal submission is that the respondent was not entitled to cancel the independence allowance without having a reassessment. He submitted that Dr Fulton was not a duly appointed Assessor so that his opinion was insufficient to enable the respondent to make its decision to cancel the independence allowance. He submitted that where an assessment was made under the now revoked section 54 the same assessment regime should apply to any reassessment and in support of the submission referred to subsections 11 and 12 of that section. Mr Barnett submitted that there was no need to have the appellant reassessed for the independence allowance because a prerequisite to any entitlement, including the independence allowance, was that the appellant must have a "personal injury" which is covered or which continues to be covered by the Act. He submitted that it is a medical question whether or not the appellant suffers from a personal injury. He submitted that unless the appellant suffers a continuing personal injury then there is no entitlement to any such compensation under the Act. The issue as far as the Court is concerned is quite clear. Before the appellant can be entitled to any form of compensation under the Act, she must suffer from a personal injury covered by the Act. Dr Fulton's opinion, which is the only medical opinion on the file, states that the appellant's ongoing problems are not as a result of the personal injury suffered in March 1996 but related to earlier hip and back problems. I agree with Mr Barnett's submission that it is a prerequisite to any entitlement under the Act that there must be ongoing problems arising from a personal injury. While Mr Rowlett submitted that before the independence allowance could be cancelled it was necessary for the respondent to arrange for a reassessment, I do not accept that submission. Mr Rowlett submitted that by having regard to the original provisions of section 54 and in particular subsections 11 and 12, the appellant was entitled to a reassessment before the cancellation. However, that submission cannot be accepted because it is noted that subsection 11 refers to "the degree of disability of [each injured person]" (emphasis mine). The medical evidence is quite straightforward and confirms that any disability from which the appellant suffers is not a disability 3 arising from personal injury for which the appellant has cover under the Act. In particular, it is not attributable to the accident on 3 March 1996. Accordingly the appellant is not entitled to any payments under the Act, including the independence allowance. The appeal is dismissed. DATED at WELLINGTON this 18th day of October 1999 A W Middleton District Court Judge dca40-99.doc (nr)