Box v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 276 198 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 DAVID OWEN BOX DCA 229/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 2nd day of December 1998 APPEARANCES: Mr DO Box in person Ms K Tahana counsel for respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision of 7 November 1997 to cease the appellant's entitlement to an independence allowance, was correct. On 25 August 1994 the appellant suffered multiple fractures to his right leg. This necessitated surgery and rods and pins were inserted in his leg. 2 In January 1995 the appellant was assessed for independence allowance pursuant to the then assessment criteria of the Functional Limitation Profile Questionnaire. Under that system he was assessed as having a disability of 100%. In July 1996 he was again assessed and again his percentage of disability was 100%. Following the coming into force of the new statutory provisions and regulations regarding independence allowance in July 1997, the appellant was reassessed, this time the assessment being carried out pursuant to the new criteria of assessment as set forth in the American Medical Association's Guides To The Evaluation of Permanent Impairment (IV Edition). The assessment was carried out by a duly authorised assessor, Dr Milne, who assessed the appellant's whole body impairment as being 7%. On 7 November the Corporation advised the appellant that he was no longer entitled to an independence allowance because the whole body impairment as assessed was less than the 10% minimum required under the Act. On 12 November 1997 the appellant's medical practitioner, Dr Ellison, wrote to the Corporation stating that he considered the appellant's impairment to be greater than 10% and that he ought to be entitled to an independence allowance. The appellant sought a review of the Corporation's decision and the Review Officer found that the assessment had been carried out in accordance with the AMA Guides, that the assessor's assessment had been checked and confirmed by the Corporation's Branch Medical Advisor, and that the 7% whole of personal impairment which had been assessed was correct under that system of assessment. The appellant duly appealed to this Court against that decision. In his submissions on appeal he stated that he had had a car accident and a motorbike accident in which he had suffered injury to his head, knee, ribs, neck and shoulders. He stated he suffered a lot of pain and discomfort from these various injuries and that he contended that his whole disability was greater than 10%. 3 Counsel for the respondent advised the Court that the only personal injury by accident which the Corporation had noticed of was the injury to the appellant's right leg and it was the whole of life impairment created by that injury which was assessed and the Corporation had no knowledge of any other personal injuries which may be affecting the appellant. For the purposes of this appeal the only issue that can be before this Court is whether the assessment carried out by Dr Milne, and the decision taken as a consequence of it were correct. The appellant has not sought to adduce any evidence which would establish that that assessment was not carried out in accordance with the statute and the regulations made thereunder and the legal position is that, if that assessment results in whole person impairment of less than 10% than, there is no entitlement to an independence allowance. It may well be that if and when the appellant lodges a claim for cover in respect of these other injuries that he has referred to in his submissions, then a revised assessment may need to be carried out to take account of any whole person impairment that those injuries are causing, but until such time as a claim for cover in respect of those injuries has been lodged, the Corporation in the first instance, and this Court on appeal, can take no account of any such injury. Accordingly for the foregoing reasons, the decision of the Corporation to cancel the appellant's entitlement to an independence allowance was correct and this appeal must be dismissed. DATED at WELLINGTON this 215+ day of December 1998 M J Beattie District Court Judge Box.doc(gm)