Gibson v Accident Rehabilitation and Compensation Insurance Corporation

ARIC IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 98/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN EMILY CHRISTINA GIBSON of Dunedin Appellant (Appeal No. DCA 346/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS The appellant has appealed against the decision of the review officer who held that she was not entitled to the payment of an independence allowance. The facts which give rise to the appeal are that in July 1986 the appellant sustained a compression fracture to her back as a result of an accident. On 25 September 1987 the respondent accepted that for the purpose of s.78 of the Accident Compensation Act 1982 the appellant had suffered a 25% permanent impairment which entitled her to an award under that section. Following the introduction of the Accident Rehabilitation and Compensation Insurance Act 1992 the appellant underwent an assessment for an independence allowance. Such an assessment is carried out in accordance with the provisions of the 1992 Act and the Regulations made thereunder. As a result of that assessment it was found that the appellant's current disability amounted to 34%. On 18 March 1997 the respondent notified the appellant that as she had already received compensation under s.78 of the Accident Compensation Act 1982 based on a 2 25% disability, that assessment of 25% was required to be deducted from the new assessment of 34% leaving a balance of 9%. As s.54 of the 1992 Act requires that the degree of permanent disability has to be more than 10% if an applicant is to qualify for an independence allowance the respondent declined to pay an allowance to the appellant. The appellant applied for a review of that decision. While the appellant submitted to the review officer that the nature of the questions posed in the Functional Limitations Profile Questionnaire were difficult to answer because her condition varied from day to day, the review officer held that both he and the respondent had to be bound by the answers as given by the appellant. He concluded that because the disability was assessed at 34% it was necessary to deduct the amount paid under s.78 of the 1982 Act and the resulting 9% therefore did not qualify the appellant to an entitlement because she had not reached the threshold of 10% required by s.54(1) of the 1992 Act. It is against that decision that the appellant now appeals. The appellant's principal concern appears to be the answers which she gave to the questionnaire. She has indicated various activities which she finds difficult and painful. While the Court can appreciate the difficulties she has, the requirements of the Act are that the questionnaire has to be answered and then a qualified assessor has to make an assessment of the permanent disability which is the figure the respondent is required to use in making its decision. The court has no ability to deal with the questions posed by the questionnaire which are standard and are fixed by the Regulations under the Act. Once the assessment is made the respondent is bound to apply the provisions of s.54 details of which, as they affect this appellant, are quoted in the review officer's decision. Since the review officer's decision was issued the same question came before the High Court in the decision in ARCIC v Allen, an unreported decision of the High Court issued at Wellington on 14 May 1997 under Number AP 100/96. The issue in that appeal involved the question of the payment of an independence allowance to an appellant who had already received an award for a percentage disability under s.78 of the 1982 Act. In that decision the High Court confirmed that the approach adopted by the respondent in this case was the correct approach. Accordingly the Court has no option but to dismiss the appeal. DATED at WELLINGTON this day of May 1998 A W Middleton District Court Judge de34697.doc(rd)