D v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 040/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN - D of Belfast, Christchurch Appellant (Appeal No. AI 18/03) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at Christchurch on 10 February 2004 APPEARANCES/COUNSEL Appellant in person Mr Hunt for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this case is whether or not the independence allowance was correctly assessed. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/040- 2004.doc AE Background of Claim [2] The appellant appeals against a decision dismissing her application for review dated 21 December 2002. [3] The appellant appeals against the reviewer finding that she has a 10% whole person impairment resulting from the covered injury. In substance, the appellant contends that Dr MacVicar asked irrelevant questions, and that the reviewer did not include some of her counsellor’s comments. [4] The appellant sought an increase in her independence allowance from $11.01 per week to $20 per week. [5] The review followed the lodging of a sensitive claim for a rape that occurred on 7 March 2000. The appellant’s claim for mental injury was accepted by the respondent. Initially, the appellant was granted funding for ten hours of counselling with an approved counsellor. The appellant attended counselling with Ms Diprose. [6] In June 2002, the appellant applied to be assessed for an independence allowance. Dr MacVicar completed an independence allowance assessment of the appellant. [7] On 11 September 2002, the respondent accepted the claim for an independence allowance, and the degree of impairment was assessed at 10% which gave rise to an entitlement of $11.01 per week. The Review Decision [8] The review decision dated 21 December 2002 referred to the fact that since the legislative change in 1997, entitlement to the independence allowance had to be determined by way of a medical assessor concerning the degree of impairment. The review officer said that Dr McVicar was an experienced assessor, particularly with respect to sexual abuse injuries, and that she had assessed Miss D using the American Medical Association Guides as required. Dr McVicar had estimated that the appellant had a whole person impairment of 18%, but considered that factors other than the rape injury were causing some of this impairment. 040-2004 2 [9] The review officer noted the concerns of the appellant that the appellant thought that some of Dr McVicar’s questions were irrelevant. Clause 60(4) of Schedule 1 of the Act, in the view of the review officer, required an assessor to exclude any impairment that did not result from the personal injury. It was, therefore, necessary for an assessor to consider whether a claimant’s impairment was due wholly or just in part to the covered personal injury. [10] The appellant raised in front of the review officer the fact that Dr McVicar’s report mentioned that she had suffered from depression prior to the rape, however that fact was not disputed, and further that Dr McVicar had said that the appellant had some difficulties with alcohol prior to the rape. [11] The review officer was not persuaded that the errors of fact described by the appellant would materially affect the assessor’s conclusions about the role of non-injury factors. In the view of the review officer, it was important for Dr McVicar to discuss with the appellant the circumstances of her upbringing and her pre-injury functioning. [12] The review officer in particular referred to McDonald 218/99, where it was stressed that it was necessary for an appellant to establish on a balance of probabilities that the assessment carried out was incorrect or incomplete, and that generally it could only be achieved on the basis of credible medical evidence. [13] The review officer came to the view that the appellant’s life had been greatly affected by the rape she suffered, but the review officer was not persuaded from the evidence that Dr McVicar’s report was flawed, or that the respondent had erred in relying on it. There was no evidence from any other medical expert to the effect that Dr McVicar’s report was wrong, and the only other medical practitioner who had reviewed that report, Dr Porritt, agreed with it. [14] Dr McVicar concluded that the appellant had a 10% whole person impairment resulting from the covered injury. [15] The review officer dismissed the application for review. 040-2004 3 The Medical Reports [16] I have considered the medical report of Dr A. McVicar, the date of assessment being 26 August 2002. The sensitive issue assessment is a very detailed document, as it is required to be. The assessment was conducted in accordance with ACC policies and procedures for assessing impairment for an independence allowance in accordance with AMA guides, a guidance provided during the ACC independence allowance assessor training programme. [17] I set out the estimated whole person impairment discussion: “Lynette’s background was one of difficult home circumstances, with negative, judgmental parents from her aspect, and feeling the less favoured child. Inherently she was a quiet, non-assertive child, who had difficulty expressing herself. My impression is that she has not coped well with many life stressors over the years, covering up her resentment and anxiety, but on occasions resorting to alcohol abuse in order to cope. It appears that the combination of major stressors – motorvehicle accident in 1998, followed by a relationship breakup, and the subsequent rape, plus the circumstances surrounding this have led to the requirement of treatment of a mood disorder, with equivocal response. Currently Lynette is not on medication, and there does not appear to be any residual mood disorder. There is a genetic predisposition for addiction and mood disorder apparent. The circumstances surrounding the assault event appears to be the primary difficulty for Lynette currently relating to the rape. However, her socialisation is reasonable, her sexual functioning is normal, and any difficulty with intimate relationships is associated with the dynamics of Lynette and her partner, their expectations and level of commitment. Apportionment needs to be made for her background circumstances, inherent personality, genetic predisposition for addiction and mood disorder. Deduction for impairment attributable to other causes 8% Final Whole Person Impairment 10%” [18] Dr Helen Porritt, medical advisor, provided an ACC impairment assessment peer review dated 16 October 2002. In her comments she said: “Recommend accept 10% whole person impairment. The report is in accordance with AMA Guides 4th edn, ACC impairment assessment training, and the ACC user hand book to AMA 4. Ms D has requested review of her IA as she doesn’t feel the rating is high enough. However, the rating is a reflection of Miss D’s independent function in relation to the effects of the abuse and as such I consider is a fair and reasonable estimate of impairment.” 040-2004 4 The Relevant Legislation [19] In June 2002, the appellant applied to be assessed for an independence allowance. Section 377 of the Injury, Prevention, Rehabilitation, and Compensation Act 2001 provides that ss.441 and 442 of the Accident Insurance Act 1998 continue to apply to personal injury covered by this Part of the Act that was suffered before 1 July 1999, irrespective of when the claim for cover in respect of that personal injury was or is lodged. [20] In this case the rape occurred on 7 March 2000, and consequently the provisions of ss.441 and 442 apply. Clause 60(1) of Schedule 1 of the Accident Insurance Act 1998 provides that the insurer must appoint and pay as many assessors as it considers necessary to make assessments for an independence allowance. [21] This clause also sets out in paragraph 4 how the assessment is to be conducted, and in particular, it is necessary to use the American Medical Association Guides, and to exclude from the assessment any impairment that does not result from the personal injury for which the insured lodged the claim for cover. [22] Clause 61 provides that the claimant may seek a re-assessment when the claimant produces to the insurer a certificate from the registered medical practitioner indicating that the insured’s impairment may have increased since the date of assessment. However, an insured is not entitled to more than one re-assessment in any twelve month period. Decision [23] The appellant appeared for herself. She repeated to me the arguments that were clearly put before the review officer. I felt sorry for the appellant as the appellant could not see the relevance of the wider enquiry that the medical assessor made in assessing the degree of impairment resulting from the rape. Those wider enquiries are necessary, because the independence allowance relates only to the impairment actually caused by the event. In making that assessment it is necessary to consider what other factors were present before the rape. 040-2004 5 [24] The appellant had no medical evidence apart from what has been produced. I explained to her the difficulties that arose in the absence of medical evidence. [25] For the reasons that I have given, I cannot see that the appellant has demonstrated on a probability basis that the assessment was wrong. For the reasons that I have given, I would dismiss the appeal, and there will be no order as to costs. DATED at WELLINGTON this ……..9th ….… day of ………March….….. 2004 (J. Cadenhead) District Court Judge 040-2004 6