Cox v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 208 /2009 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN CHARMAINE FRANCES COX (Al 350/06) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 27 May 2009 APPEARANCES Mr Jonathon Miller, Counsel for Appellant. Mr D D Watterson, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] This appeal concerns the respondent's decision of 30 March 2006, whereby it determined that the appellant was not eligible for an independence allowance on the grounds that her assessed Whole Person Impairment was less than the 10% minimum required for such an entitlement. [2] At the outset it should be noted that the outcome which Mr Miller seeks on this appeal is a determination that the Independence Allowance Assessment which was carried out on 28 March 2006, was flawed, as it did not take account of the appellant's mental injury arising from her covered physical injury, and that following on from that the Court should direct that a fresh assessment be carried out which must be accepted as the first assessment for an independence allowance, so that in the event of the 350.06 (pg) 2 appellant's assessed Whole Person Impairment being determined as 10% or greater, then the independence allowance would be paid from the date of the lodging of the claim for cover, rather than from the next quarterly date following her reassessment. [3] It is the respondent's position that the Independence Allowance Assessor correctly assessed the appellant's covered physical injuries, and that at the date of such assessment no claim for cover for any mental injury had been lodged by the appellant, nor indeed was there any diagnosed mental injury existing at the time of that assessment. ] It is necessary to identify the relevant background facts, which are not in dispute, those background facts being as follows: At the date of the respondent's decision now in issue, the appellant was 37 years of age. As of the date of the appellant's application for an independence allowance, namely, October 2005, the appellant had cover for three personal injuries suffered by accident, they being as follows: (i) Injury to left thumb suffered in May 1985. (ii) Back and chest injury arising from a motor vehicle accident in June 1996. (iii) Back injury suffered in a motor accident on 24 February 2005. The appellant received a lump sum payment calculated on a 20% disability for her left thumb injury under the Lump Sum provisions of the 1982 Act. Prior to the 2005 back injury, the appellant had been suffering pain in her chest and lumbar spine which was identified as right-sided hypochondrial and chest pain and a more generalised chronic regional pain syndrome The localised area of tenderness was around her rib cage and which was described as post-traumatic neuropathic pain of the intercostal nerves. The appellant had received treatment for her condition from the Burwood Pain Clinic in 2004 and 2005. The appellant applied for an independence allowance in October 2005. . The Initial Medical Certificate which accompanied the application referred only to the 1996 injury, stating it as being "costal rib" . Further information was sought from the appellant's GP regarding the rib injury. 3 By letter dated 31 January 2006, the respondent requested Dr Schousboe, Independence Allowance Assessor, to assess the following injuries: Rib - post-traumatic neuropathic pain of the intercostal nerves. Lower back sprain/strain said to have arisen from the 1996 motor vehicle accident. (ii) Left thumb from 1985 accident. . Dr Schousboe carried out an assessment on 27 March 2006 and assessed a Whole Person Impairment of 6% comprising; Neuropathic pain intercostal nerves - 5%. Left thumb - - 1% (ifi) Lower back strain - 0%. . Following Dr Schousboe's report, the respondent issued its decision on 30 March 2006 advising the appellant that her application for an independence allowance had been declined on the basis that her net Whole Person Impairment was below the 10% minimum level required. The appellant sought a review of that decision and a Review Hearing took place on 24 July 2006, at which the appellant was represented by counsel. In his submissions to the Reviewer, Mr Miller submitted that the assessor had failed to assess the appellant's mental injury and the assessment was therefore flawed. In his decision dated 18 August 2006, the Reviewer, Mr D Walker, gave his decision in the following terms: "I find there is no cogent evidence to show that Dr Schousboe overlooked any conditions in his assessment. Although Ms Cox submits that she should have been assessed under chapter 14 for a mental injury, she is not covered for such a condition at this point. In particular, because there was no evidence available to Dr Schousboe establishing a link between her chronic pain and any of her covered injuries, his report is not flawed through any omission to consider such a link. Accordingly, I dismiss the application for review. However, I note that it is open for Ms Cox to pursue her claim for mental injury and be assessed at a later point should ACC grant her cover for such a condition." . The first mention of a claim for a mental injury was made by the appellant's GP, Dr Dashfield, in a letter to the appellant's case manager on 7 June 2006. . Dr Dashfield provided further particulars of this claim on 2 August 2006, consequent upon which the respondent contracted Dr Alan Doris, Consultant Psychiatrist, to carry out an investigation of the appellant's claim for mental injury . . Dr Doris provided a report dated 24 September 2006, in which he advised that he had diagnosed a mental injury, namely pain disorder associated with 4 both psychological factors and general medical condition, which is chronic, together with a major depressive disorder which is recurrent By decision dated 15 November 2006, the respondent advised the appellant that it had granted cover for her mental injury, that injury being described as it had been diagnosed by Dr Doris Following the granting of cover for that mental injury the appellant sought a further assessment for an independence allowance, and which assessment was to include the mental injury. Dr Schousboe again carried out the assessment and his assessment identified the impairment of the various injuries as follows: Date Type WPI 30 Jan 96 Right shoulder 2% 30 Jan 96 Back injury 15% 30 Jan 96 Intercostal Nerve Pain Including 2005 injury 30 Jan 96 Mental injury 10% 1 May 85 Left Thumb 1% Total 27% Following that assessment the respondent issued a further decision on 5 November 2007 indicating that after taking account of the previous lump sum compensation impairment of 20%, the assessed degree of Whole Person Impairment of 27% did not leave a balance of impairment of 10% or more, and accordingly it advised that the appellant was still not eligible for an independence allowance. Subsequent to that decision, the appellant sought and obtained an assessment for her mental injury from Dr Gil Newburn, Neuropsychiatrist, and his assessment, dated 8 February 2008, asserted a final Whole Person Impairment of 50% for the appellant's mental injury. Subsequent correspondence which has been had from Dr Newburn and Dr Schousboe would indicate that there is little common ground between them as to an impairment percentage for the appellant's mental injury, with them maintaining their respective 50% and 10% assessments. [5] With that as the background, it was the principal submission from Mr Miller that in terms of Section 54 of the Act, where there is a responsibility on the Corporation to make reasonable decisions in a timely manner, the Corporation should have identified the appellant's chronic pain situation and, as Mr Miller put it, "downed tools" and set 5 about investigating the circumstance and nature of the appellant's mental condition arising from her chronic pain syndrome. Mr Miller referred to the fact that the respondent's Blenheim Branch Medical Adviser had identified the appellant as having a regional pain syndrome, and it was therefore the duty of the respondent to have investigated it further. Mr Miller referred to the decision of this Court in Stockan (20/05) and he submitted that the circumstances of this appellant's situation were the same and required a pragmatic approach as had been stated in the Stockan decision and which ought to have required the Corporation to have initiated an inquiry into the nature of that injury. 6] Mr Miller then addressed the outcome which he sought and which was that the independence allowance assessment should be quashed and the Court direct that a first assessment be undertaken again with that assessment taking account of the appellant's mental injury. Counsel submitted that if this was not the way the matter was approached, the respondent would in effect be enriching itself at the claimant's expense, as any later assessment, deemed a reassessment, would have no arrears of allowance payable by virtue of the statutory provision pertaining to reassessments and commencement of payment. [7] Finally, counsel submitted that this outcome was the only way that the appellant could be considered as receiving fair treatment and with a fair determination, the concept of fairness being at the very heart of the way the Act should be both interpreted and administered. 8] Mr Watterson, counsel for the respondent, submitted that there was no obligation on either the respondent or the assessor to consider an injury for which there was no cover at the time of assessment and for this reason there is no evidence that the first assessment was in any way flawed. [9] Contrary to Mr Miller's submission, Mr Watterson submitted that there was no duty or obligation on the Corporation to "down tools" as it were, and start an investigation into some possible mental injury where no claim had been lodged, nor was there any indication of any causal nexus. Counsel submitted that in March 2006 there was no evidence of a mental injury. Counsel referred to the fact that there was no diagnosis from a suitably qualified specialist until Dr Doris' report in September 2006, which he submitted must be accepted as being the first diagnosis of a mental injury within the meaning of the Act. [10] Counsel submitted that the correct procedure for the appellant to follow was to apply for a reassessment once her mental injury had been accepted as a covered injury, and this was in fact what did occur. [11] Finally, counsel referred to the requirement in the Independence Allowance Regulations that gives precedence to the ACC User Handbook over the AMA Guides and where that Handbook identifies that a chronic pain syndrome can be assessed for mental injury only if it has been so diagnosed by a psychiatrist as arising from a covered physical injury. At the time of the first assessment there was no such psychiatric diagnosis, merely the observations of the appellant's GP. DECISION [12] When the appellant lodged her application for an independence allowance with the assistance of her GP in or about October 2005, that application was required to be considered under the provisions of the 2001 Act, and in particular the saving provision of Section 377, which allowed for persons who had suffered personal injury before 1 July 1999 to continue to make application for an independence allowance, and for that assessment to be in accordance with the provisions of Part 4 of Schedule 1 of the Accident Insurance Act 1998 [13] Section 377(3)(a) states: "Any assessment or reassessment must be done on the basis of Whole Person Impairment for the combined effect of all injuries suffered before 1 July 1999 for which the person has cover." (My emphasis) Furthermore, Clause 60(4)(b) of Schedule 1 to the 1998 Act states: "In doing an assessment under this clause an assessor must . . . exclude from the assessment any impairment that does not result from the personal injury for which the insured lodged a claim for cover." [14] In the case of this appellant, as of September 2005, she had qualifying injuries from claims arising from the 1985 and 1996 accidents respectively. Although she also had an injury from a 2005 accident, this was not an injury which could be considered, as it was an injury for which an entirely separate regime of potential lump sum entitlement was provided under the Act. 7 [15] Another statutory provision of relevance is that of Section 26 of the 2001 Act, which identifies that a mental injury is a category of personal injury if it is suffered by a person because of physical injuries suffered by the person. That concept has been stated in each of the three statutes which successively replaced the 1982 Accident Compensation Act. In that latter Act a different concept was identified, where personal injury was stated as being the physical and mental consequences of such injury or of the accident. [16] If the 1992 and 1998 statutory provisions are looked at in the round, it is clear that for this appellant to have a mental injury considered for the purposes of an independence allowance, that mental injury must be diagnosed as being such and of being a covered injury, that is, a covered personal injury. [17] It must also be recognised that the mere fact of a person having a mental injury did not, of itself, give a right of cover. Cover could only be granted if that mental injury were shown to have been suffered because of physical injuries suffered, that is, there needed to be shown a specific and direct causal nexus between the suffering of a physical injury and the onset of a mental injury. [18] In the case of this appellant the medical information supplied by her GP with the application for an independence allowance, simply stated "costal rib" and which identified the injury as having been suffered on 1 June 1996. It was that application which the respondent sought clarification of as the 1996 accident did not show any rib injury. It was then that Dr Vause, the appellant's GP, gave further particulars as follows: "Thank you for your letter concerning this lass and her rib problem. As I understand from Mrs Cox this injury dated back to 1996 and she had a claim with ACC at the time. She has had a long history of problems with this, this was described as a motor vehicle accident at that time, I have no other records of it. I am not certain of what the exact nature of the 1996 claim was and therefore cannot ain as to when she presented first with the rib problems, however / first saw her in August 2000 at which stage she had been investigated extensively for pain on the right side of her abdomen and ribs, and in fact it was only evident that this was in fact a rib trouble after further investigations." [19] When that further information was provided, and which included a report from the Burwood Pain Management Team, the appellant was advised that there would be an assessment of post-traumatic neuropathic pain of the intercostal nerves, lower back strain, and the left thumb. 8 20] It was submitted by Mr Miller that, as of that date, the Corporation was aware of the appellant's chronic pain syndrome by virtue of a report from Dr Robinson, a Musculoskeletal Physician, a comment from its own Branch Medical Advisor, Dr Welsh, and reference to the appellant's chronic pain and depressive symptoms as contained in the Comprehensive Pain Assessment of the Burwood Pain Clinic. Equally, however, it is the case that there had been no diagnosis or assessment of any mental condition by a psychiatrist and the ACC User Handbook to AMA IV did not allow for assessing any impairment pursuant to a chronic pain syndrome if that condition had not been diagnosed by a psychiatrist, and of it having arisen from a covered physical injury. [21] I cannot accept the submission of Mr Miller that upon receipt of the application for an independence allowance, the respondent ought to have altered the process of dealing with that application by referring it to an assessor, as the Act required, and to instead refer it to a consultant psychiatrist to have the appellant examined to see whether she was suffering from any mental injury that could be identified as being a consequence of a covered physical injury. [22] This proposal, I find, is just not the way the matter must be viewed. The Act has specific provisions relating to the bringing of a claim, and there is of course a responsibility on the respondent when a claim is brought to investigate it and to make a timely decision in respect of it. The Act makes it clear that the initiation of a claim must come from the claimant. At the time that the appellant made her claim for an independence allowance, the stated physical injuries were the extent of her claim. There was a responsibility on the respondent to make a timely decision in respect of that claim - see Section 54. The claim for an independence allowance made no reference to any mental injury, and I find that there was no obligation on the respondent to "down tools" and commence an investigation when nothing had been initiated by the appellant/claimant in that regard, nor indeed by those who were medically advising her. [23] I have considered the decision of Stockan (Decision 20/05) to which counsel referred as supporting his submission, and I find that the facts in Stockan were significantly different from those in the present case. In that decision, the Court found that the issue of a chronic pain syndrome was far more prominently identified by orthopaedic specialists and there was in existence at the time of making an application for an independence allowance, a considerable amount of correspondence between 9 the appellant's GP and psychiatric establishments to whom the claimant had been referred over the years. [24] In any event, the outcome in the Stockan case was that because the fact of a potential mental injury was evident, the Court directed that the respondent investigate the claimant's chronic pain syndrome and determine whether there was an entitlement for it to be a covered mental injury, and if so, for the respondent to make a fresh independence allowance determination. [25] As events have shown, this appellant did subsequently make a claim for cover for mental injury, and with that cover being granted a further independence allowance assessment was made and a further decision made by the respondent in respect thereof (26] I consider that the respondent has carried out its obligations to the appellant correctly, and that there is no basis for this Court to now rule that the first independence allowance was flawed, and for it to direct a fresh assessment, as a first assessment, which would include consideration of impairment by mental injury. [27] Looking at the matter at the point of time when the respondent received the appellant's application for an independence allowance, I find as a fact that there was no basis for the respondent to consider issues of mental injury and that its instruction to Dr Schousboe was correct in requiring him to consider only the physical injuries to which the application had referred. [28] In summary then, I find that the submission made by Mr Watterson sums the matter up, where he submitted that in the absence of cover, the absence of a psychiatric report diagnosing a clinically significant injury, and in the absence of evidence of causation, the respondent complied with its obligations under the Act. [29] For the foregoing reasons, therefore, I find that the assessment carried out by Dr Schousboe in March 2006 correctly addressed the appellant's then covered injuries. and no flaw has been shown in the impairment percentages which he allocated to those covered injuries. The respondent's decision made on the basis of that assessment was the correct decision at the time, and there is no basis, either in fact or in law, which would require that assessment to be undertaken again and in some way 10 be taken as being the first assessment arising from the appellant's first claim lodged in October 2005. [30] Accordingly, this appeal is dismissed. DATED this /7 day of Some2009 eattie District Court Judge