Wyld v Accident Compensation Corporation

IN THE DISTRICT COURT AT HAMILTON WELLINGTON REGISTRY [2011] NZACC 18 7 Al 409/10 UNDER The Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to s. 149 of the Act BETWEEN DAWN IRENE WYLD Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at HAMILTON on 24 March 2011 DATE OF THIS DECISION 15 July 2011 APPEARANCES The appellant with her daughter Ms D S Lester for ACC RESERVED DECISION OF JUDGE P F BARBER The issue [1] Was ACC correct on 1 July 2009 in reassessing the appellant's Independence Allowance? Background [2] That decision was set out in a letter of 1 July 2009 which noted that the appellant's (Mrs Wyld) degree of whole person impairment was 45%. Her previous lump sum compensation impairment (for injuries suffered before 1 July 1992) was 30%. Therefore, her whole person impairment for Independence Allowance was 15%. However, Mrs Wyld disagrees with that assessment and notes that during the last few years her pain and disablement has been at its worst; yet the reassessment has had the effect of reducing her payable allowance from 20% to 15%. 2 [3] Mrs Wyld sustained multiple injuries in a car accident in September 1990. In 1998/1999 she was assessed for an Independence Allowance. Reports were obtained from lan Brown (orthopaedic surgeon) and Robert Craven (consultant neurologist). The Independence Allowance payable was then assessed at 20% calculated as follows: Assessed degree of impairment - 50% Less lump sum compensation paid - 30% Independent Allowance payable - 20% [4] In 2008, Mrs Wyld applied for a fresh assessment. ACC referred Mrs Wyld to Or Jean Robertson, neuropsychologist. The report from her was requested given that Mrs Wyld had suffered head injuries in the car accident of September 1990. Dr Robertson noted that the balance of evidence pointed to traumatic brain injury as being a large contributory factor in Mrs Wyld's current symptoms. [5] ACC then referred Mrs Wyld to Dr John Collier (specialist psychiatrist and psychotherapist) for an Independence Allowance Entitlement Assessment Report. He considered the reports of Drs Craven, Brown, and Robertson. His assessment report is dated 15 June 2009 and noted a 45% whole person impairment. Further, the report noted that the condition was permanent and stable. He confirmed that his assessment was conducted in accordance with the 4" Edition AMA Guides using the ACC User Handbook to calculate the impairment ratings. [6] Dr Collier's assessment was peer reviewed by Dr Rob Percival. He confirmed that the injury impairment ratings appeared correct, and that Dr Collier's awarded ratings for the appellant's injuries and current impairments conformed to the AMA Guides to the Evaluation of Permanent Impairment 4" Edition and "The ACC User Handbook to AMA4". 7] ACC then issued its 1 July 2009 decision letter noting the whole person impairment for the appellant's Independence Allowance was 15%. [8] In her Notice of Appeal, Mrs Wyld has asked the Court to consider a 10 May 2010 report from Victor Hadlow (orthopaedic specialist). This is a Medical Case Review Report. It describes the outcome of an examination of the appellant on 10 May 2010, including severe osteoarthritis in Mrs Wyld's left hip with virtual destruction of the femoral head. Early spondylolisthesis is noted at L3/4. The need for the left hip to be dealt with was noted. This report is not an Independence Allowance Entitlement Assessment Report, nor does it purport to focus on or address the issues and material relevant to such a report. The law (9] Part 3 of Schedule 1 of the 2001 Act applies to lump sum compensation for permanent impairment. Clause 59 sets out the assessment process and reads: "59. Assessment of entitlement to lump sum compensation (1) After the Corporation receives a certificate under clause 57, the Corporation must authorise an assessor to do an assessment of the claimant. 3 (2) An assessor assesses the claimant's percentage of whole-person impairment. ) In doing an assessment under this clause, an assessor must- (a) assess the claimant in accordance with regulations made under this Act; and (b) exclude from the assessment any permanent impairment- (i) that does not result from personal injury for which the claimant has cover under this Act: (ii) arising from personal injuries suffered before the commencement of this Part; and (c) include in the assessment any permanent impairment for which the claimant has received lump sum compensation under this Part. (4) Subclause (3) applies subject to any regulations made under this Act (5) A claimant who has suffered more than 1 personal injury must be assessed by establishing, in accordance with regulations made under this Act, the combined effect of those injuries. (6) However, no claimant is to be assessed as having more than 100% whole- person impairment (7) The Corporation is liable to pay the claimant's reasonable costs associated with the assessment. [10] The relevant regulations (Injury Prevention Rehabilitation and Compensation (Lump Sum and Independence Allowance) Regulations 2002 (SR 2002/22)) describe the assessment tool for assessing whole person impairment as: the American Medical Association Guides to the Evaluation of Permanent Impairment (4" Edition); and the ACC User Handbook to AMA4. [11] The applicable legal principles are well settled. As summarised in the case of W v ACC (284/2004), per Judge J D Hole issued 25 August 2004) they are as follows: [a] A mere difference of opinion between specialists is not sufficient to unseat the advice of an appointed assessor; there needs to be some compelling factor which makes it clear that the assessor has overlooked some material factor; [b] It is not for the Court to form an opinion as to whether or not the AMA Guides have been correctly applied: this is the province of duly qualified medical practitioners. The Court must rely on the evidence of the medical practitioners in this regard; [c] In order to succeed in an appeal of this nature, it is for the appellant to establish on the balance of probabilities that the assessment was in some way flawed or incorrect. This requires credible expert evidence directed at the specific aspects of the assessment which are said to be incorrect; [d] In order to upset an assessment, the Court does not necessarily have to be provided with an alternative assessment from a duly qualified expert. It is sufficient if there is expert compelling evidence either that the AMA Guides have not been correctly interpreted or that the assessor has failed to take into account all relevant factors of impairment. 4 [12] In her Review decision of 26 May 2010 Reviewer Sandra Gay found that ACC was correct in relying on Dr Collier's assessment of the appellant's impairment and that ACC's 1 July 2009 decision is correct. The Reviewer covered the evidence and the issues including evidence from Mrs Wyld about, inter alia, the pain from which she suffers and her poor health and lack of mobility. Then the Reviewer, helpfully and clearly set out her analysis as follows: "ACC is required to follow the legislation and must comply with the Regulations. The Regulations specify use of the AMA 4 guidelines. Therefore ACC was correct to use the AMA 4 guidelines. Dr Collier's report documents the history of the injury, treatment and examination findings. In completing the report, Dr Collier referred to the available medical reports. These included the recent report from Dr Robertson. Dr Collier has also pointed out that his report was completed under the AMA Guides and the ACC User Handbook. Dr Collier stated in his report that he has been trained in the use of the assessment tools. I have no reason to doubt the assessment was conducted properly. Therefore, I am satisfied that ACC was correct to rely on Dr Collier's assessment. I do not doubt Marquita's observations are relevant and based on her experience of caring for her mother. She was present at the appointment with Dr Robertson and expressed her views and concerns about her mother. Dr Collier had to rely on the information presented to him. There is no alternative assessment report to consider, save for the historic ones which are not indicative of Mrs Wyld's current state. Mrs Wyld's self-assessment of her impairment and Marquita's observations cannot override the expert assessment of Dr Collier. While I have the deepest sympathy for Mrs Wyld, for the reasons given above I can make no decision other than to dismiss the application." Views for the appellant [13] Before me, the appellant's daughter stressed that she and her mother do not believe that the reassessment was properly effected. They put it there is medical evidence, and that it is also obvious from observation, that Mrs Wyld's health has been deteriorating recently due to the motor accident of 20 years ago, and that she suffers intense pain; and, all and all, it is ridiculous to suggest that her impairment should be reassessed at a 5% reduction. There is graphic evidence about the damage to Mrs Wyld's left hip. [14] Mrs Wyld also read a statement to me and I accept that the injuries she suffered in the motor vehicle accident on 23 September 1990 were multiple and major. They included brain injuries, injuries to the eye, abdomen, a pelvis fracture, a fracture to the left fibula and to the right mid-tarsal area and to the right medial malleolus and to the left fifth meta-tarsal, and bad lacerations to the neck and elsewhere [15] It is understandable that with her mobility deteriorating and pain increasing in recent years, Mrs Wyld is shocked to be treated, as she puts it, as having made a 5% recovery. Her evidence details the problems for her way of life because of the 5 injuries. Inter alia, she mentioned that eventually on 6 May 2010 she was sent to see Mr V Hadlow. She emphasises that it has been her hip, and not her back, which has completely deteriorated so that she had surgery for a new hip on 3 August 2010. She adds that, presently, she has a painful elbow from constant use of a crutch and continuous pain in her knees, and mobility issues, although her severe pain has gone as a result of the new hip surgery: In effect, she seeks that her Independent Allowance be restored by the 5% in issue as compensation for her loss of quality of life Discussion [16] The onus of proof is on the appellant to establish on the balance of probabilities that Dr Collier's assessment was in some way flawed or incorrect. This requires credible expert evidence directed at the specific aspects of the assessment which are claimed to be incorrect [17] As also noted in W (284/2004), the Court does not necessarily need to be provided with an alternative assessment from a duly qualified expert. It is sufficient that there is expert compelling evidence either that the AMI Guides have not been correctly interpreted or that the assessor has failed to take into account all relevant factors of impairment. [18] In this case, there is no alternative medical evidence which is directly relevant. This means I need to consider whether there is compelling evidence that either the AMI Guides have not been correctly interpreted, or that the assessor has failed to take into account all relevant factors of impairment. However, there is no compelling evidence adduced on behalf of the appellant either as to the AMI Guides not being correctly interpreted or that the assessor has failed to take into account all relevant factors. [19] The appellant has referred to Mr Hadlow's "Medical Case Review Report" of 10 May 2010. As mentioned above, this is of limited relevance to the issues which are now before me. That report primarily focuses on spinal and hip issues, and only touches on the road accident of September 1990. It is not a report prepared to meet the legal criteria contained within Part 3 of Schedule 1 to the 2001 Act. Neither does it reflect the assessment tool prescribed in the regulations (i.e. The American Association Guides to the Evaluation of Terminal Impairment (4" Edition) and the ACC User Handbook to AMA4). Conclusion [20] Like Ms Lester, I can only express much sympathy for Mrs Wyld and her suffering, but note that I must deal with the legal framework process which seems to me to have been properly followed and applied. It simply has not been shown that Or Collier's report is in any way flawed. In effect, there is no alternative specialist medical evidence on behalf of the appellant regarding the process followed and outlined above leading to the reassessment in issue. Dr Hadlow's report does not, and was not intended to, relate to the reassessment process of impairment percentage for Independence Allowance. Sympathetic as one must be to the pain and suffering experienced by Mrs Wyld, I find that the proper legal process has been applied. 6 [21] There is insufficient relevant evidence to satisfy me that Dr Collier's report is flawed, or incorrect, or otherwise cannot be relied upon. Accordingly, this appeal must fail. [22] Having said that, it is concerning that the impairment allowance has been reduced when the appellant and her daughter maintain there is no commensurate improvement in the appellant's position. To the contrary, the appellant's daughter has noted that her mother's head injury symptoms had worsened. However, from the relevant legal approach, that factor is of limited relevance to the issues before the Court, which must focus on Dr Collier's report, and whether that is sufficiently flawed or otherwise cannot be relied upon. [23] It follows this appeal must fail and it is hereby dismissed. Judge P F Barber District Court Judge WELLINGTON Al 409-10.doc(aw)