Knuckey v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 50 /96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 22 / 96 / 0028 IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ETHEL KNUCKEY of Auckland Appellant (Appeal No. DCA 20/96) 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 I have been requested by the appellant and by Ms P Zumbach, counsel for the respondent, to issue a decision on the papers. Both parties have provided me with submissions. The issue is the quantum of the appellant's entitlement to an Independence Allowance under s.54 of the Accident Rehabilitation and Compensation Insurance Act 1992. The facts which give rise to the appeal are that the appellant suffered lacerations when she hit her head on a window frame on 11 April 1995. The appellant is now aged 56. On 30 June 1995 the appellant applied for an Independence Allowance and the assessment was carried out on 11 September 1995. The result was that the appellant was assessed as suffering a 69% degree disability which entitled her to an Independence Allowance of $15.41 per week under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Independence Allowance) Regulations 1993. The respondent notified the appellant of that decision on 13 October 1995 and the appellant applied for a review of the decision. As the appellant requested the review to be determined on the papers the review officer 2 issued a decision confirming the respondent's primary decision. It is against that decision which the appellant now appeals. In her Notice of Appeal the appellant has stated that she is not in any fit, emotional or psychological condition to attend a Court hearing and has therefore requested a decision to be made on the papers. . She submitted that she has suffered a very complex and complicated medical past in recent years which has included numerous consultations with her general practitioner and with a consultant psychiatrist. She has submitted that these persons can verify as to her general health, her personal situation and "doleful circumstances". She has submitted that she has a history of emotional/ psychological setback and has for a long time been under professional care for this problem. The appellant's principal concern seems to be that the assessment of her entitlement is too low having regard to her medical and psychological state of health. Ms Zumbach submitted that the decision of the review officer correctly followed the requirements of the Act and Regulations. Section 54 of the Accident Rehabilitation and Compensation Insurance Act makes provision for the granting of an Independence Allowance which can only be made after an assessment of the degree of disability has been made by persons authorised to make such assessments. The respondent arranged for a National Research Bureau to have an assessor visit the appellant in order to complete the necessary questionnaire required under the provisions of the Act. That questionnaire form contains 136 questions which the applicant for an Independence Allowance is required to answer. The questionnaire (which is specified in the First Schedule to the Accident Rehabilitation and Compensation Insurance (Independence Assessment) Regulations 1993) was completed in the presence of the assessor and the result was a disability score of 37.5 which converts to a 69% degree of disability. The respondent is then required to refer to the Second Schedule to the Regulations which sets out the amount of the weekly rate of Independence Allowance for a person with a 69% disability. The amount is $15.41 per week. While I appreciate that the appellant is concerned about her physical, psychological and emotional state, that has nothing to do with the amount of the Independence Allowance. The respondent is required to have regard to the Act and the Regulations which do not allow any discretion which would permit the respondent or this Court to award a figure other than that assessed according to the requirements of the Act and Regulations. Accordingly, I have to agree that the decision of the review officer was correct and the appeal is dismissed. DATED at WELLINGTON this 25 th day of July 1996 A W Middleton District Court Judge dc2096.doc(rd)