Gowthorpe v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 2 52 198 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN EVELYN ANN GOWTHORPE DCA 252/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 10th day of November 1998 APPEARANCES: Mrs E A Gowthorpe in person Ms S Scott, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to cancel the appellant's Independence Allowance entitlement was correct. 2 The underlying issue in this appeal is whether the methodology for her assessment under section 54 of the Act was correctly carried out by the assessor. Background On 23 February 1993 the appellant suffered a wrenching injury to her right arm and elbow. At the time of the accident the major problem was with the left elbow and arm but she also did have some pain in the right elbow and arm as well. She has had extensive treatment for the left elbow, initially being conservative treatment of medication and physiotherapy but without improvement. A lateral release was undertaken in January 1994 but she continued to experience pain and in August 1994 surgery to decompress the left radial nerve was carried out. T appellant continued to experience pain in her left elbow and forearm, however she also has problems with her right elbow and the right arm symptoms have become more of a concern because of her disability with the left arm. She is left-handed but with having to do more activities with the right arm, this has caused increased right elbow and arm symptoms. It was the opinion of Mr C J Dawe, the orthopaedic surgeon who had been treating her since the time of her injury, that the right elbow and arm symptoms were caused by the same injury that had resulted in the left elbow symptoms. As a consequence of her injuries the appellant has received entitlement in various forms, including Home Help, and on 17 February 1997 she was assessed for an Independence Allowance. That assessment gave her a disability score of 43.6 under the Functional Limitations Profile Questionnaire format. This resulted in her being assessed as having a 100% disability and she received a weekly entitlement commensurate with that level of disability. In 1997 the provisions of the Act and regulations relating to independence allowance were amended and as from 1 July 1997 a new form of assessment was established. As it was entitled under the Act so to do, the respondent sought to have the appellant reassessed under the new scheme and the appellant was so assessed in December 1997 by Dr Noonan, a duly appointed and accredited assessor for the purpose. It was Dr Noonan's advice that under the Whole Person Impairment regime which the new format of assessment created, the appellant's impairment was 8% and therefore as that figure was less than the 10% minimum impairment required to qualify for entitlement, the appellant's right to an Independence Allowance was lost and she was duly notified of that fact. The appellant sought a review of that decision and for the purposes of that review she produced a report from Mr Dawe in support of her claim. The Corporation's branch medical adviser, Dr Loughlan, commented on the matters raised by Mr Dawe and it was his opinion that Mr Dawe's report did not conflict with Dr Noonan's assessment and its objective findings and that there was nothing incorrect in the method of assessment or procedure adopted which would indicate that that assessment by Dr Noonan was not carried out in accordance with the requirements of the Act. The Review Officer accordingly confirmed the Corporation's decision. For the purposes of appeal to this Court no further medical evidence was produced but the Court was given further details relating to the AMA Guide to the Evaluation of Permanent Impairment which is the model adopted for the purposes of assessing percentage of Whole Person Impairment and thereby eligibility for an Independence Allowance. In terms of the Act the statutory provision is quite clear. Section 54(1) as it was amended from 1 July 1997 states: 4 Subject to this section every person who has cover under this Act is entitled to receive an Independence Allowance at the appropriate prescribed rate if the person's personal injury has or personal injuries have resulted in a degree of Whole Person Impairment of ten per cent or more. Section 54A(1) states that a Whole Person Impairment shall be assessed in accordance with regulations made under the Act. Regulation 3 of the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payments) Regulations 1997 state: Assessment of a person's Whole Person Impairment for the purposes of section 54 and 54A of the Act must be carried out by an assessor using the American Medical Association Guide (AMAG) to the Evaluation of Permanent Impairment (4th ed.). An assessor for the purposes of Regulation 3 is a person appointed under Regulation 4. "Impairment" as defined in section 3 of the Act means "any loss or abnormality of physiological, psychological, or anatomical structure or function". In his written assessment Dr Noonan states: "Her medical condition is not clearly defined in the AMA Guide to the evaluation of permanent impairment (4th ed.). The only objective verifiable measure of her impairment is the loss of range and motion of her left wrist. From figure 6 page 36 flexion of 20 degrees gives a 7% impairment of the upper extremity and extension of 30 degrees gives 5% impairment. From figure 29 page 38 20 degrees ulna deviation gives an impairment of 2% 20 degrees of radial deviation gives 0% impairment. As per instructions on page 38 these impairments are added to give a 14% upper extremity impairment. From table 3 page 20 a 14% upper extremity converts to toan 8% Whole Person Impairment. Based on the AMA Guides Evelyn Gowthorpe has a Whole Person Impairment of 8%. Her disability however is considerable and this impairment rating has a very poor correlation with her disability." 5 Submissions The appellant questioned the validity of the AMA Guide's applicability to determination of Whole Person Impairment as that word is defined under the Act in comparison with the concept which impairment is given in the Guides. The appellant stated that impairment is defined in the Guides as "an alteration of an individual's health status." Impairment is a deviation from normal in a body part or organ system and its functioning. Secondly the appellant submitted that different measurement criteria are needed to measure the loss or abnormality to psychological function resulting from injury and that the Guide has no consideration to measure the impact of pain. In the Guide she says that it is difficult to compare pain as an impairment. The Guide considers that pain and pain related behaviour is not an impairment. She finally submitted that in no way was the assessment she underwent an assessment of impairment in terms of the definition in the Act nor within the scope of the Corporation's expanded interpretation of daily living. Finally the appellant submitted that the AMA Guide was established to relate to the average American which she says must have involved a consideration of the various racial mixtures that make up a typical American, that that profile is quite different from the person who is said to be a typical New Zealand citizen. Ms Scott, counsel for the respondent, submitted that Dr Noonan had all the necessary medical information on the appellant, had carried out his assessment in accordance with the instructions and terms of the Guide, that all the statutory requirements of the Act had been fullfilled and that there was no evidence that the assessment was not carried out in accordance with the Guide. She further submitted that the report of Mr Dawe did not conflict with the assessment by Dr Noonan and was not an assessment carried out using the criteria of the Guide. 6 Counsel further submitted that the Guide does not ignore pain or restriction in daily living but that the figures used in the Guide are an objective measure and are based on what the authors considered to be the average level of impairment for a person with that injury. She submitted that the impairment figure takes account of pain and daily limitations which medical specialists would expect a person to experience if they suffered an injury which fits within a certain clinical description. While this figure may not correlate with disability (ie the alteration of an individual's capacity to meet personal, social or occupational demands because of an impairment) Parliament has chosen to focus the Independence Allowance assessment on impairment not disability and the Corporation is bound by that choice. Finally counsel submitted that the Independence Allowance and home help entitlement are quite separate, that just because a person has a home help entitlement does not mean a corresponding entitlement to an Independence Allowance. The Independence Allowance focusses on objective levels of impairment whereas entitlements such as home help focus on a claim of disability. Decision It is noted that the appellant obtained a score of 43.6 under the previous Independence Allowance criteria based on the Functional Limitations Profile. That profile was to enable the level of disability from personal injury to be assessed. The questionnaire used in that profile is wholly subjective, of over 120 questions, and calls upon the subject to answer those questions as opposed to the answers being obtained from some objective devices. For almost all the questions the subject simply states whether she agrees or disagrees with a particular statement. For whatever reason Parliament determined that an entirely new criteria would be set in place to determine entitlement to an Independence Allowance and it adopted the AMA Guide to the Evaluation of Permanent Impairment (4th ed.). The methodology for assessment under the Guide is wholly objective and the enquiry is to be carried out by a qualified medical practitioner appointed for the purpose as opposed to non medical personnel instructed under the old regime, which in the case of this appellant's earlier assessment, was a person employed by the National Research Bureau. In his advice to the Review Officer Dr Loughlan, branch medical advisor, noted: 'The problem here is the purpose of the AMA Guide, the concept of permanent impairment being used as an objective measurable criteria and therefore one which is repeatable as against the concept of disability which is subjective and relative to person, occupation and activities." He also noted that pain and extremes of movements as with the case of this appellant is a subjective response and is not an objective measurement of impairment. This point is noted by Dr Noonan in his final comment in that her disability has a poor correlation with impairment. Having regard to the medical evidence that has been presented for the purposes of this appeal this Court must find that Dr Noonan carried out his task as an assessor in accordance with the provisions of the Act and the AMA Guide and there is simply no evidence to suggest that he did otherwise. The fact that there is a considerable discrepancy between his assessment of whole body impairment and the percentage of disability under the former Functional Limitation Profile is simply an indication of the difference btween these two concepts of impairment or more particularly the difference between a concept of a subjective assessment of disability as opposed to an objective assessment of impairment. It is to be noted that the inability of a claimant to carry out normal household and other related tasks because of disability is taken account of for the purposes of Home Help and the concept for Home Help and the need for same must be kept quite separate from the concept for Independence Allowance and the entitlement to same. 8 In the AMA Guides it is stated "chronic pain and pain related behaviour are not, per se, impairments but they should trigger assessments with regard to the ability to function and carry out daily activities." It is to be noted that Dr Noonan's assessment was not only considered by Dr Loughlan, branch medical advisor, but subsequently by Dr Kevin Morris, acting Corporate medical advisor and who was the person who was responsible for setting up the system for the use of the AMA Guides in New Zealand. For that purpose he travelled to the USA and arranged for experts to come to New Zealand. He set up the training programme for assessors and he can be regarded as the main medical authority on the use of the Guides in New Zealand. In his critique of Dr Noonan's assessment he states that Dr Noonan has not identified any impairment beyond the restriction in the range of movement of the left wrist but he correctly arrived at an impairment figure. He states that the disparity between disability and impairment rating is common. There is no correlation between the two concepts. Noting and accepting that statement as I do, I find that one point which the appellant made in relation to the marked differences between the two concepts is quite pertinent, namely the implications of section 54A(7). That provision requires a deduction of any percentage for lump sum permanent loss to be deducted from the person's impairment as assessed under this section. Using the appellant's case as an example, it would mean that even a substantial objective impairment rating would be likely to be less than any previous disability rating and therefore the provisions of subsection 7 would deny further entitlement. This even though the two concepts are said not to be comparable. However this situation has not yet arisen in practice to the Court's knowledge. It does not pertain in the present case. 9 This Court finds that the assessment conducted by Dr Noonan was carried out in accordance with the Act and Regulations in every respect and the Corporation's decision to cancel the appellant's entitlement by reason of the assessment being less than the minimum the statute provides, was correct. Accordingly this appeal is dismissed. DATED at WELLINGTON this day of 1998 M J Beattie DISTRICT COURT JUDGE Gowthorpe.doc