Gibbons v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 3 51 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ENA GIBBONS of Dunedin Appellant (Appeal No. DCA 305/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 1st day of November 1999 APPEARANCES/COUNSEL P Schmidt for appellant M B Mccarthy for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the review officer issued on 6 July 1998 confirming that the appellant was not entitled to an independence allowance. This appeal has arisen out of the fact that the appellant's original assessment using the functional limitations profile in the earlier Regulations came to a 100% disability reduced by a previous lump sum assessment of 37.5%. When a reassessment was made by Mr C B Fitzpatrick on 12 November 1997 he found that the appellant suffered a 3% whole person impairment. That assessment was challenged by the appellant's general practitioner. However, on 3 March 1998, the respondent 2 confirmed that as the assessment was less than the 10% threshold, the appellant was not entitled to an independence allowance. The appellant has asked the Court to direct that the AMA Guidelines provide a specific set of rules with which assessors must comply in all respects. Mr Schmidt provided substantial submissions on the basis that the review officer had failed to adequately consider the medical evidence. He submitted that the specialist appointed to make the assessment as required by ss.54 and 54A and the Regulations, must have available a full medical and clinical assessment of the appellant's background before making an evaluation using the American Medical Association Guides for The Assessment of Permanent Impairment (Fourth Edition) He submitted that it was necessary for the assessor to be fully aware of the appellant's previous medical history and to then follow the AMA Guidelines. He submitted that a proper assessment of a chronic pain syndrome required a functional capacity evaluation of the appellant to be undertaken. Prior to the appeal being heard Mr Schmidt had requested the respondent to provide a copy of its policy on the assessment of chronic pain in the context of independence allowance assessments. Dr K Morris, the respondent's Manager for Medical Services, provided a letter in which he stated: "The Corporation policy is that the Assessors should follow the Fourth Edition of the AMA Guides. In those Guides there is a chapter, namely Chapter 15, which is specifically on the issue of pain. This chapter gives a background to pain and gives an approach for describing and characterising pain. The question of how one translates pain into an impairment evaluation, is detailed by way of examples given on pages 312 and 313 of the Guides. From the examples it is seen that the assessor is referred back to the earlier chapters of the Guides to obtain a rating. The position, as I see it, is that an entitlement to an independence allowance is governed by the provisions of ss.54 and 54A of the Act. Section 54A(1) provides that "a person's whole-person impairment shall be assessed in accordance with regulations made under this Act." The section also provides that if the appellant has already received a lump sum award under s.78 of the 1982 Act, the percentage assessed under that Act is to be deducted from the assessment of the person's whole person impairment. Under the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 it is provided in Regulation 3 that: "Assessment of a person's whole-person impairment, for the purposes of sections 54 and 54A of the Act, must be carried out by an assessor using the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition)." 3 Regulation 4 of those regulations provides: 'The Corporation must appoint as many persons as it considers necessary to carry out assessments under regulation 3." Similar questions have come before the Court in a number of appeals in which the Court has held that it is bound to accept an assessment made by a duly appointed assessor who certifies that he has made the assessment in accordance with the AMA Guidelines as required by the regulations. While Mr Schmidt has referred to various portions of the Guidelines, I agree with the respondent's policy that "the assessors should follow the Fourth Edition of the AMA Guides". That is the function of the assessor. The Guidelines, in my opinion, are just that, they are "guides", and this is confirmed by various statements in the Guidelines which appear on pages 3 and 99 in which the authors state: "It should be understood the Guide does not and cannot provide answers about every type and degree of impairment, because of the consideration stated above and the infinite variety of human disease ... Further, human function in everyday life is a highly dynamic process, one that presents a great challenge to those attempting to evaluate impairment." "The Physician's judgment and his or her experience, training skill and thoroughness in examining the patient and applying the findings to the Guide's criteria will be factors in estimating the degree of the patient's impairment." "These attributes compose part of the 'art' of medicine, which, together with a foundation in science constitutes the essence of medical practice. The evaluator should understand that other considerations must also apply, such as the sensitivity, specificity, accuracy and interpretation of laboratory tests in a clinical procedure and variability among observers interpretation of tests and procedures." "If the physician cannot decide into which DER category the patient belongs the physician may refer to and use the range of motion model which is prescribed in Section 3.3() (page 113). Using the procedure of that model the physician obtains an impairment percent based on a patient's diagnosis with a percent based on the patient's spine motion impairment and a percent based on neurological impairment, if it is present ..." I do not consider that it can be a direction of this Court that an duly appointed assessor is required to make a meticulous check from the Guide by way of some sort of "checklist". The assessor, in my view, is required to use his skill and judgment as a medical specialist to accept the Guidelines by way of a guide only to make his assessment of the whole person impairment as a result of injury. I do not consider it is for the Court to require an assessor to tick off every particular part of the Guide as having been covered. The assessor must use his discretion based on his knowledge and experience with the benefit of the matters identified in the Guidelines. I consider that it is only necessary for the assessor to confirm that on the basis of the 4 Guidelines he has made an assessment of a particular percentage of permanent impairment. The only time when it may be necessary for the Court to be involved is if two separate assessors provide differing assessments and in that case the Court may have to go into the background of how the assessments come to vary and which is the appropriate to be upheld in the particular case. However, in this case, there is only one assessment by a duly appointed assessor and I consider that the respondent and the Court are bound by it. The appeal is dismissed. DATED at WELLINGTON this 3 rd day of December 1999 A W Middleton District Court Judge dca30598.doc(rd)