Estate of R Bindon v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2014] NZACC 289 ACR 629/12 UNDER THE ACCIDENT COMPENSATION ACT 200 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ESTATE OF ROY BINDON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 1 September 2014 Appearances: H J Peart for the appellant F L Becroft for the respondent Evidence completed: 2 September 2014 Judgment: 30 October 2014 RESERVED JUDGMENT OF JUDGE L G POWELL [1] At the time of his accident Roy Bindon was an energetic and active 82 year old. Although Mr Bindon had a number of significant health problems including respiratory issues and leukaemia these did not stop him continuing to work on his farm in Hokiunga, as well as enjoying recreational fishing. [2] On 2 April 2011 Mr Bindon slipped over on his farm and fractured the neck of his right femur. Although the initial prognosis appeared good, following surgery he developed a range of serious post-surgical complications including bowel obstruction, intra-abdominal sepsis, anterior wall extension and caecal perforation, subsequent respiratory failure and, in addition, contracted a super bug (ESBL) while in hospital. [3] There is no question whatsoever that these conditions were severe and far reaching and, by the time he was discharged from hospital in June 2001, Mr Bindon was left considerably frailer, with ongoing health issues from which a complete recovery to his pre-injury state of fitness was unlikely. [4] Against this background in October 2011 Mr Bindon applied for a lump sum payment from the Corporation in respect of the impairment he had suffered as a result of both the initial accident and the post-surgery issues. The assessment was undertaken by Dr Graeme Fenton on 22 November 2011. Dr Fenton concluded that Mr Bindon had a whole person impairment rating of 66%, a figure subsequently confirmed in the course of a peer review undertaken by Dr Kantilal Kanji. As a result, on 9 December 2011 the Corporation issued a decision approving a lump sum payment based on an impairment rating of 66%. [5] Mr Bindon none the less sought a review of the decision on the basis that the impairment percentage did not adequately reflect his actual level of impairment and sought a reassessment of his impairment accordingly. [6] In the meantime however, Mr Bindon's condition deteriorated quickly, and before the review or any reassessment could take place he passed away on 18 March 2012. [7] Since his death Mr Bindon's estate has continued his challenge to the Corporation's decision of 9 December 2011. The review was dismissed on 26 September 2012 on the basis that there was no evidence that Dr Fenton's report was flawed, and the estate has now brought the present appeal. [8] The issue before me is whether there is any basis for concluding that Dr Fenton's assessment did not reflect Mr Bindon's actual impairment as at the date of the assessment undertaken on 22 November 2011. The Case for the Estate [9] Mr Peart, as counsel for the estate, submitted that Dr Fenton's report was flawed because in assessing Mr Bindon's level of impairment the assessment did not take into account that his condition was in fact terminal. As a result it was Mr Peart's submission that the resulting impairment rating was too low. In support of this proposition Mr Peart relied on a comment made by Dr Fenton in January 2014 where, after confirming that he considered his assessment was correct, stated: The deterioration soon after the assessment, resulting in Mr Roy Bindon's death, barely three months later, in my opinion, reflects further impairment, and requires further assessment. [10] In Mr Peart's submission the evidence shows that Mr Bindon's condition was terminal at the time he was assessed by Dr Fenton and that the Corporation also accepted that Mr Bindon's covered injuries were the cause of his death. More specifically in Mr Peart's view, from around November 2011 Mr Bindon was in "a state approaching death" which should have therefore reflected impairment of between 95 and 100%, or at the very least should have placed Mr Bindon into the same type of category as for other terminal cases recognised by the Corporation, with Mr Peart noting in particular: counsel understands that the rating is usually 80% whole person impairment (or higher) for terminal cases, such as mesothelioma following asbestos exposure. [11] As a result Mr Peart sought that the Corporation's decision be quashed on the basis that Dr Fenton's assessment was incomplete and that in order to complete the assessment, a duly qualified assessor needed to take into account "what happened to Mr Bindon after he was examined as part of the assessment process" and thereby "revisit the permanent whole person impairment rating for Mr Bindon". The Assessment Process [12] The lump sum compensation applied for by Mr Bindon is governed by paragraph 3 of Schedule 1 to the Accident Compensation Act 2001. Those provisions specify that Mr Bindon's assessment was undertaken pursuant to r 4 of the Injury Prevention, Rehabilitation, and Compensation (Lump Sum and Independence Allowance) Regulations 2002 which provides: Assessment tool for assessing eligibility for lump sum payments and independence allowance (1) Assessment of a person's whole-person impairment, for the purposes of determining the person's eligibility to receive lump sum compensation or an independence allowance, must be carried out by an assessor using the assessment tool prescribed by subclause (2). (2) The assessment tool comprises- (a) the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition); and (b) the ACC User Handbook to AMA4. (3) The ACC User Handbook to AMA4 prevails if there is a conflict between it and the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition). [13] As a result Mr Bindon's whole person impairment was required to be assessed specifically in terms of the AMA guides and ACC user handbook, with a lump sum only payable if the whole person impairment exceeded 10 percent. [14] The case law is well settled that in order to succeed in an appeal of this type 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, but does not require a full alternative assessment.' Discussion and Analysis [15] In starting my analysis I note that with the exception of whether the ultimately terminal nature of Mr Bindon's injuries should have been taken into account in determining Mr Bindon's level of impairment Mr Peart did not otherwise call into question Dr Fenton's assessment. Instead Dr Fenton's assessment was not only confirmed by the peer review undertaken by Dr Kanji, but in addition Dr Fenton's assessment was subsequently reconsidered in detail and largely confirmed in July 2014 by Dr Ben Cheesman, a senior medical adviser with the Corporation. In confirming Dr Fenton's approaches and concludions, Dr Cheesman helpfully set out how Dr Fenton reached his conclusions although he also did identify that Dr Fenton had in fact made an error in his calculation of Mr Bindon's level of hip impairment. On this issue Dr Cheesman calculated that the correct level of impairment was in fact 18% which raised the final whole person impairment for Mr Bindon to 67%, and the Corporation has accordingly requested that this change be given effect as part of this judgment. [16] As a result of the approach taken by the estate two issues arise: [a] Does the fact that a condition is terminal result in further impairment in and of itself? and [b] If the answer to [a] is yes, was there evidence to show that Mr Bindon's condition was indeed terminal as at the date of the assessment? Does the fact that a condition is terminal result in further impairment in and of itself? [17] This issue was addressed by Dr Cheesman in the course of his reconsideration of Dr Fenton's assessment. In Dr Cheesman's view: The impairment rating method derived from AMA 4, as evaluated using the ACC user handbook to the AMA "guides to the evaluation of permanent impairment" 4" edition, rates the individual as they present at the time of assessment. To be rateable injuries should be both permanent and stable. This implies that the injury has been static or stabilised and is not likely to change with or without medical treatment. There is no specific rating for terminal illness the rating is of the condition not the prognosis. In cases of terminal illness the guides can still be used to provide a rating, lung cancer is one example. This is rated using the respiratory system, page 164 table 10 explains the process whereby the rating is "severe" initially but potentially reviewed one year later depending on progress. Other cancers where there is terminal illness are also rated as the client presents at the time of the assessment. In most cases the rating is obtained by See for example Wv Accident Compensation Corporation (284/2004) per Judge J D Hole, 25 August 2004 reviewing a generic table relating to the appropriate body part, for example a bowel cancer rating would be obtained using the digestive system rating page 23 of the handbook. Progression is addressed by further rating if and when this occurs. [Emphasis added] [18] As Dr Cheesman notes the AMA guides do not have a specific rating for terminal illness. In any assessment the assessor is required to address the covered injury against the relevant section of the guides in order to determine the resulting level of impairment. In Mr Bindon's case it is apparent through considering both Dr Fenton's assessment and Dr Cheesman's reconsideration that the covered injuries assessed involved his skin disorder, hip and digestive system. In terms of the AMA guides this required consideration of chapters 13 (The Skin), 3 (The Musculoskeletal System) and 10 (The Digestive System) of the AMA guides, and then apply the various criteria for impairment contained in those chapters to the various injuries identified. In none of those chapters is the fact that a condition may be terminal identified as a relevant factor in assessing impairment. Instead the focus is entirely upon the level of impairment imposed by the condition itself and the extent to which that condition imposes limitations upon the claimant.? As a matter of fact therefore the terminal nature of a condition is not per se a matter of impairment and does not reflect how the AMA guides actually work. [19] Mr Peart's reference to Mr Bindon having been in a "state approaching death" and therefore in a range of 95-100% impairment likewise misconstrues both the AMA guides and the ACC handbook. This reference (which is contained in the ACC handbook ) far from suggesting that impairment results from the "state approaching death" rather notes that regardless of the degree of impairment assessed it still can never exceed 100%, and that if a person's combined impairment was ultimately to be identified as being in the vicinity of 95-100% that person would be quite literally in a state approaching death. Put another way, the comment reflects what an extreme For example see table 2, chapter 13, page 280 of the AMA guides regarding the impairment classes and percentages for skin disorders or table 6 in chapter 10 at page 245 of the AMA guides regarding classes of liver and biliary tract impairment. At page 12 assessed level of impairment would mean in real terms rather than identifying how impairment is to be assessed. [20] Similarly, Mr Peart's reference to other "terminal cases, such as mesothelioma" also does not assist the estate in the present appeal. With regard to this issue Dr Cheesman noted: The only cancer that is treated differently currently is mesothelioma. This cancer almost exclusively attracting cover in the ACC context as secondary to work related exposure to asbestos and has been treated differently following ACC internal advice directing to rate at 80% at time of diagnosis. The nature of this condition is that it is not amenable to curative treatment and is invariably progressive. This approach has not been extended to other conditions or cancers and at present is an anomaly based on ACC advice to assessors where the standard rating approach from the guides have not been applied. [21] Notwithstanding this statement, at the hearing I requested the Corporation to provide any relevant policy documents as well as a sample of redacted assessments of mesothelioma sufferers in order to provide context to Dr Cheesman's statement. It appears in fact that the Corporation has no published policy regarding mesothelioma, and instead the two redacted assessments provided demonstrated that the impairment for mesothelioma was in fact assessed in broadly the same way as was undertaken by Dr Fenton in his assessment of Mr Bindon. In particular the impairment of those diagnosed with mesothelioma was assessed with reference to the AMA guides and, in particular, with regard to chapter 5 (The Respiratory System). Although mesothelioma is not specifically mentioned, in both cases the claimants were assessed with reference to Table 8 in chapter 5 at page 162 of the AMA guides, which identifies classes of respiratory impairments, with both claimants being assessed as class 4 severe (51-100%, severe impairment of the whole person), with Table 10 from chapter 5 page 164 of the AMA guides also noting that all persons with lung cancers are "considered to be severely impaired at the time of diagnosis" The degree of severity of impairment of this type of condition is accordingly primarily established by the AMA guides themselves, albeit that the final level of impairment adopted appears standardised at 80%. Importantly however for the purposes of this appeal the level of impairment attributed to those diagnosed with mesothilioma is the result of the application of a particular chapter of the AMA guides with no application whatsoever to Mr Bindon's assessed level of impairment.+ [22] Notwithstanding these comments it should however be noted that one of the assessors on one of the redacted mesothelioma assessments went on to state: A 2005 ACC impairment assessor refresher work shop agreed that having a diagnosis of mesothelioma or being terminally ill with a very short life expectancy from some other condition would rate 80% whole person impairment. [23] While this statement does suggest a wider policy, such a statement is inconsistent with Dr Cheesman's statement on behalf of the Corporation that mesothelioma is in fact an exception, and given my questions of counsel have failed to turn up any wider policy, I am satisfied in terms of the evidence before me that this statement by an assessor does not constitute evidence of any such broader policy that could be relied upon in the present appeal. [24] Accordingly, I conclude that whether or not a condition is terminal does not of itself mean greater impairment for the purposes of the AMA guides, while other than the possible exception of mesothilioma (which is in any event assessed separately within the AMA guides) there is no general policy assessing a level of impairment for terminal conditions. As a result on this basis alone I would dismiss the appeal. Was there evidence to show that Mr Bindon's condition was indeed terminal as at the date of the assessment? [25] Even if I am wrong in concluding that the fact a condition may be terminal does not of itself reflect additional impairment in the alternative I also do not accept that on the evidence before me it has been established that Mr Bindon's condition was in fact terminal as at the date he was assessed by Dr Fenton. I note for the sake of completeness that Mr Bindon did have respiratory issues prior to his accident in April 2011 and while these were aggravated as a result of the accident and subsequent post surgical complications, were not assessed as giving rise to permanent impairment. In addition no issue has been taken with regard to the fact that respiratory issues did not form any part of Dr Fenton's assessment of Mr Bindon. [26] Although with the benefit of hindsight it is now apparent that Mr Bindon did succumb to his injuries in March 2012 and that fact is acknowledged by the Corporation, it does not follow that his condition was terminal at the time he was assessed by Dr Fenton. As Ms Becroft for the Corporation submitted there is in fact no medical evidence before the Court that Mr Bindon's condition was terminal at the time he was assessed. On the contrary even Mrs Bindon in her evidence at review (prepared after Mr Bindon passed away) noted: In November 2011 Roy was assessed by Dr Graeme Fenton for lump sum. Dr Fenton said to us that the injuries were very serious and Roy's condition was due to those injuries (and not any other health problems). He found a 66% impairment rating. At that stage all of us, including Dr Fenton, hoped that Roy might recover to some extent, or at least be able to manage well with his injuries. There was no suggestion at that time that his condition was terminal. . . . I believe Dr Fenton should be given the opportunity to revisit his assessment. I cared for Roy day and night, from his injury until his death, and it is my evidence that he deteriorated significantly during the early part of 2012. Our GP has verified this and so will the hospice records. The injury and its consequences were simply worse than we hoped and feared. [Emphasis added] [27] Likewise Mr Peart himself acknowledged in his submissions that: In November 201 1 when Dr Fenton assessed Mr Bindon, it may well not have been apparent that the injuries would prove fatal, and there may still have been some cause for optimism. [28] Similarly Mr Peart went on to comment as well that "the fatal nature of the injuries and the infection was not known at the time". [29] As a result of a complete absence of evidence that Mr Bindon's condition was in fact terminal at the time of the assessment there can be no basis for saying Dr Fenton's assessment was therefore incomplete, and as a result, on this ground also, the appeal cannot possibly succeed on the facts before me. Decision 30] As a result of the conclusions I have reached, with the exception of modifying the decision of the Reviewer dated 26 September 2012 and the decision of the Corporation dated 9 December 2011 to reflect a final whole person impairment rating of 67% as suggested by Dr Cheesman rather than the 66% recorded in those documents, the appeal is otherwise dismissed. There is no issue as to costs. Judge L G Powell District Court Judge ACR 629-12-Estate of Roy Bindon.doc(aw)