Rakoczy v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 22 / 95 AT WELLINGTON DCA No. 68/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 58.94- 2220 IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN G.J. RAKOCZY APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Rotorua on: 1 December 1994 Date of Decision: 7 March 1995 Counsel: No appearance of the appellant P.J. Zumbach as counsel for the respondent RESERVED DECISION OF JUDGE J. W. IVIRIE I have decided to dismiss the appeal. 2. Introduction: The issue in this appeal is whether the Corporation's assessment under the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment) Regulations was correct. The appellant is aged 64 and a painter. On 16 June 1984 he injured his left wrist and right hand. A claim was lodged at that time on his behalf by his doctor. The Corporation accepted the claim. No entitlements were applied for until 1993. In October 1993 the appellant applied for an independence allowance assessment. This was completed on 12 November 1993 by an assessor. The appellant achieved a disability score of 8.7 which converts to a percentage degree of disability of 0-9. By letter dated 26 November 1993 the appellant was advised that the assessment showed that his level of disability was less than 10%, and that therefore he was not entitled to an independence allowance. The appellant applied for a review of that decision on the grounds that he had had to give up his job because the injury was so painful. The review hearing was on 15 February 1994. The Review Officer checked the arithmetical calculations in the assessment and found they were correct, and accordingly the decision of the Corporation was confirmed. The transcript of the review hearing indicates that the appellant had no difficulties with the questions asked or the method of assessment. The point 3. he wished to make was that he just could not work because of arthritis in his right hand. The appellant filed written submissions dated 21 November 1994. In those submissions, in summary, he makes the following points. He was assaulted on 22 June 1983. He was assaulted again on 16 June 1984. As a result of the later assault he landed heavily on his hands and felt terrible pain in his left wrist and pain in his right hand. After consulting two doctors it was established that he had a broken bone in his left wrist. At the time he had low self esteem. He went to the Corporation's office in Rotorua but did not have the confidence to make a claim. He would now like to apply to the Corporation for compensation and he has explained why he did not have the confidence to make a claim earlier. He says that his initial injuries were a broken bone in his left wrist and a swollen painful right hand which developed into arthritis. The appellant did not appear at the hearing of the appeal. Ms Zumbach presented written submissions and advised that a copy of them had been sent on 25 November to the appellant. In her submissions Ms Zumbach referred to s.54 of the Act which refers to the payment of independence allowances pursuant to the assessment of the degree of disability in accordance with the Independence Allowance Assessment Regulations 1993/195. She also referred to regulations 7, 10 and 11 which provide for assessment using the Functional Limitations Profile set out in the First Schedule, the calculation of disability, and the entitlement. She also referred to the Schedules which set out the Functional Limitations 4. Profile Assessment, the calculation of the percentage degree of disability, and the rates of allowances. She submitted that there has been no error in the calculation of the appellant's independence allowance, and that the Corporation was correct to advise him that he had no entitlement. In my decisions in Heaslip (DCA 90/94) and Bateman (DCA 168/94) I set out some circumstances which the Corporation may take into account in independence allowance assessments. However, Mr Rakoczy has not raised any questions about the correctness of his assessment. Under the regulations the appellant is not entitled to an independence allowance and the appeal is dismissed. .......... (J. W. Imrie DCJ)