Nicholl v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 258 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BRIAN WILLIAM NICHOLL of Taupo Appellant (Appeal No. DCA 247/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS The appellant has appealed against the decision of the Review Officer issued on 29 May 1998 upholding the decision of the respondent that the appellant has no entitlement to an independence allowance. The facts which give rise to the appeal are that the appellant suffered an injury to his back in July 1996 which was accepted for cover under the Act and for which the appellant became entitled to receive an independence allowance. It appears that in November 1996 a reassessment of his independence allowance established his permanent disability at 100% from which an earlier lump sum assessment award of 13% had to be deducted giving a total disability allowance of 87% for which independence allowance payments of $25.78 per week became payable. On 19 November 1997 the appellant lodged an application for reassessment of his independence allowance. His General Practitioner, Dr White, noted that there had been an increase in the appellant's impairment since the previous assessment. The appellant was then referred to Mr lan Brown, an Orthopaedic Surgeon for the 2 purposes of assessment. Mr Brown reported to the respondent on 22 December 1997 that having made the assessment under the AMA guides the appellant's whole person impairment was equivalent to 7%. On 1 January 1998 the respondent notified the appellant that as the assessment of his degree of impairment was less than 10%, he no longer qualified for an independence allowance. The appellant applied for a review but the review application was declined and it is against that decision which he now appeals. The appellant has expressed astonishment that in the period in question his permanent disability had reduced from 100% to 7%. In support of his appeal he has provided the Court with numerous newspaper reports which he considers demonstrates a lack of faith on the respondent and its staff. He considers that they have failed in their duty not only to rehabilitate him but also other persons mentioned in the various articles. In addition, he has submitted various pamphlets provided by the respondent which set out the various duties that the respondent is required to undertake in order to rehabilitate accident victims. He has submitted that on the basis of those articles and pamphlets, it is astonishing that he should now find himself being treated in the manner he has. He has gone to considerable lengths to provide me with submissions in which he considers he has been unfairly treated by the respondent but unfortunately they have no bearing on the appeal before me. The jurisdiction of this Court can only be on the question of whether the decision of the respondent issued on 1 January 1998 as confirmed by the Review Officer was correct. The problem for both the respondent, the Review Officer and the Court is that the appellant's first assessment for an independence allowance was made under the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment) Regulations 1993 under which the assessment was based on a subjective questionnaire completed by the appellant. It was on the basis of that assessment that the independence allowance was first paid to the respondent. At the time that he applied for the reassessment in November 1997, the 1993 Regulations had been replaced by the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 which came into force on 1 July 1997. Under section 54A of the Act an independence allowance can only be paid by the respondent after there has been an assessment of the appellant's impairment made in accordance with the Regulations made under the Act. As the 1993 Regulations have been replaced by the 1997 Regulations as from 1 July 1997, the respondent was obliged to apply those Regulations and, in particular, Regulation 3 which states 'assessment of a person's whole - person impairment, for the purposes of section 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 (4th edition)." It was therefore necessary for Mr Brown to make his assessment in accordance with the requirements of Regulation 3. 3 While the appellant has expressed concern at the extreme variation in the two assessments, the appellant will recall that when he first made application for the independence allowance he was required to complete the Vocational Limitations Profile questionnaire which constituted a set of 136 questions which he was required to answer. It was on the basis of that subjective analysis that the original independence allowance was assessed. The position, however, is now that the 1997 assessment has to be an objective one made on the basis of the American Medical Association guide by an independent assessor and that is what was undertaken by Mr Brown. Neither the respondent nor this Court has any power to change that assessment. The Regulation sets out the basis on which the independence allowance becomes payable and once that assessment is made it is binding on the respondent and on this Court. While the appellant made numerous complaints to both the Review Officer and the Court as to the problems he has had in relation to his various claims with the respondent, they are not issues with which either the Review Officer or this Court can take cognisance. The limit of the jurisdiction of the Review Officer and the Court was whether or not an assessment had been made under Regulation 3 of the Regulations, and it has. The respondent and the Court are bound to accept that assessment. The appeal must therefore be dismissed. DATED at WELLINGTON this. 4th day of . .December . 1998 burmadubai A W Middleton District Court Judge dca247-98.doc (nr)