Bull v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 168 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN GRAEME BULL of Palmerston North Appellant (Appeal No. DCA 256/98) ---- -= AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at PALMERSTON NORTH on the 8th day of February 1999 APPEARANCE/COUNSEL Mr A R V Rowlett advocate for appellant Mr L T Davies counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cancel the appellant's entitlement to an independence allowance. Associated with that issue is whether the assessment of a duly appointed assessor under the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 can be challenged. 2 Background In October 1996 the appellant lodged a claim for cover in respect of an injury to his right wrist suffered on 28 October 1996 and which was diagnosed as being an aggravation of an earlier injury to his wrist suffered in October 1994. In June 1997 the appellant applied for an independence allowance seeking consideration of that wrist injury as well as an earlier injury to his back suffered in 1987 and in respect of which he had been granted cover. On 28 June 1997 the appellant was assessed using the then assessment criteria of the Functional Limitation Profile Questionnaire. He was assessed as having a 99% disability and after deducting the 10% lump sum payment he had received in respect of his back injury, his ---. -- . independence allowance was fixed at a weekly sum based on a net disability of 89%. In September 1997, the respondent requested the appellant to be reassessed following the implementing of new Independence Allowance Regulations which came into force on 1 July 1997. On 30 October 1997 the appellant was assessed by Dr Karsas, a duly appointed assessor under the Independence Allowance Regulations and Dr Karsas reassessed the appellant using the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition). The appellant was assessed as having a 5% whole-person impairment for his back injury and a 7% whole-person impairment for his wrist injury. The combined whole-person impairment was assessed at 12%. The appellant was advised of that assessment and of the new rate of his independence allowance. At this point the respondent had not taken account of the 10% lump sum payment which had been made in respect of the 1987 back injury and it did not deduct that percentage from the percentage assessed by Dr Karsas. Nevertheless, the appellant sought a review of the Corporation's decision and for the purposes of that review the appellant, through his advocate, sought the opinion of Mr Peter Grayson, an 3 Orthopaedic Surgeon, as to whether or not the assessment which had been undertaken by Dr Karsas was correct. The appellant submitted Dr Grayson's report to the review officer at the review hearing, that report indicating that in his assessment, using the AMA Guides, the portion of the whole- person impairment attributable to the back injury was 12.5% and the whole-person impairment relating to the wrist equated to 9.6% and he considered those to be the correct figures. In his 6-page report Mr Grayson did identify certain matters which he considered had not been taken into account by Dr Karsas, particularly the presence of radiculopathy. In her decision the review officer ruled that Mr Grayson was not an assessor appointed under --- -- the Act or Regulations therefore his opinion was only that and could not carry weight in challenging the assessment that had been made by a duly appointed assessor. She also found that his assessment had not had regard to the rules of evaluation contained within the AMA Guides. The review officer found that the assessment had been properly carried out and therefore the percentage so assessed was correct. In her decision she took account of the 10% lump sum payment which had been previously made to the appellant and after deducting that sum from the 12% which had been assessed by Dr Karsas the percentage left was less than the 10% minimum that the Act required and accordingly she ruled that the appellant did not have an entitlement to an independence allowance. The appellant lodged an appeal against that decision contending that the Regulations did not bar a challenge to the validity or accuracy of any assessment carried out by an assessor under those Regulations. In response to that the respondent obtained leave to produce a memorandum from Dr Kevin Morris, Acting Corporate Medical Advisor for the respondent, who had been instrumental in the appointment of assessors to conduct assessment under the AMA Guides criteria and had also been involved in the training programmes for those assessors in conjunction with one of the authors of the AMA Guides. In that memorandum Dr Morris contends that Mr Grayson has not in fact applied the criteria of the Guides but has in fact questioned its use as being appropriate. Dr Morris contended that Mr Grayson had not correctly applied his examination findings to the Guides. When this matter came on for hearing, Mr Rowlett, advocate for the appellant, sought the opportunity to refer Dr Morris's memorandum to Mr Grayson and for leave to file any further report from Mr Grayson in relation to Dr Morris's report. Accordingly, after hearing general submissions in relation to the principal issue, leave was given to both parties to file further submissions following the introduction of any further evidence from Mr Grayson. A response to Dr Morris's memorandum was made by Mr Grayson and has been produced to -- -- -- the Court together with further submissions from both the appellant and the respondent. It is Mr Rowlett's submission on behalf of the appellant, whilst Mr Grayson's letter goes beyond the question of whether his earlier recommendation could be supported by the AMA Guides, he confirms clinical features which would justify the percentage indicated. He further submits that these clinical features were not noted in the assessment by Dr Karsas and that they demonstrate the difference that can exist between a GP and a specialist. Counsel submitted that Mr Grayson's opinion was sufficient evidence on which to contend that the assessment ought to be revoked and that a new assessment be undertaken by an assessor who is also an Orthopaedic Surgeon. Mr Davies, counsel for the respondent, has submitted that in effect Mr Grayson is questioning whether or not the AMA Guides are the applicable method of measuring impairment. He further submits that the AMA Guides are specifically stated in the Regulations as the Guides to be used. The Corporation must use those Guides whether or not they are considered suitable and that further, the question of suitability of the Guides is not a question for this Court to consider. 5 Counsel further submits that Mr Grayson appears less than objective as he has identified his dislike for the AMA Guides and their application and that therefore his ability to show that the Guides have been applied correctly or not is unlikely to be from an independent position. Finally, counsel for the respondent submits that the question of whether assessors ought to be GPs or specialists is not a question for this Court. Relevant Statutory Provisions Section 54A states: "(1) For the purposes of section 54 of this Act, a person's whole-person impairment shall be assessed in accordance with regulations made under this Act. (2) If the initial assessment is carried out after the expiration of the 52-week period referred to in section 54(2) (b) of this Act, but before the Corporation has received a certificate from a registered medical practitioner to the effect that the person's condition arising from the personal injury has stabilised and that it is likely that there is impairment resulting from the personal injury, the person shall be reassessed following the receipt of such a certificate. (3) If the injured person's impairment increases after the date of assessment, the Corporation shall reassess the person following verification, by a certificate from a registered medical practitioner, of the increase in impairment, but not more than 1 such reassessment (other than a reassessment under subsection (2) of this section) shall be undertaken in any 12-month period. (4) If the injured person's impairment decreases after the date of assessment, the Corporation may reassess the person, but not more than I such reassessment (other than a reassessment under subsection (2) of this section) shall be undertaken in any 5-year period. 6 (5) If a reassessment is undertaken in accordance with this section, the Corporation shall make any necessary adjustment to the level of entitlement to the independence allowance with effect on and from the date of the next quarterly payment. (6) An assessment of a person's whole-person impairment under this section shall not include as impairment any impairment that does not result from personal injury that is covered by this Act or that does not result from personal injury by accident in respect of which a claim has been accepted under the Accident Compensation Act 1972 or the Accident Compensation Act 1982. (7) If any person who has received a payment under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982 is assessed for the purposes of establishing an entitlement to the independence allowance, the percentage or percentages of permanent loss or impairment of bodily function upon which any payment or payments under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982 were based shall be deducted from the person's impairment as assessed under this section. (8 ) Every assessment and reassessment of a person's impairment under this section shall be undertaken by or on behalf of the Corporation and at its expense." 2. Regulation (3) of the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 provides: "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). " As an assessor as defined in Regulation 2 is a person appointed under Regulation 4. Regulation 4 provides that: 7 "The Corporation must appoint as many persons as it considers necessary to carry out assessments under Regulation 3. " Decision The assessment carried out by Dr Karsas is stated as having been conducted in accordance with ACC Policies and Procedures for assessing impairment for independence allowance in accordance with the AMA Guides. In the body of his written assessment Dr Karsas makes reference to various tables in the Guides to which he has referred for the determination of percentages for the impairment that he has diagnosed. Dr Karsas's assessment was reviewed by Dr Morris and in Dr Morris's opinion that assessment is a correct assessment having regard to the Guides. There is no dispute that Dr Karsas is a duly appointed assessor under the Independent Allowance Regulations. From the appellant's perspective, it is contended that Dr Karsas's assessment does not take into account the presence of radiculopathy. In his critique of Mr Grayson's first report Dr Morris states: "In his assessment he uses a category for the back impairment which requires that there is radiculopathy found on examination. His examination does not demonstrate the presence of radiculopathy - nor did the examination of Mr Karsas. He also chooses a category from the Guides that requires there to be a loss of motion segment integrity. Again such a loss is not documented in his report." In his response to that Mr Grayson states: "Both Mr Jamieson (Orthopaedic Surgeon) and myself demonstrated by the left straight leg raise test that there was sciatic nerve root compression in Mr Bull's case. Further I see from my notes of an examination carried out on Mr Bull on 9.4.90 that I recorded the observation that he had nerve root irritation into his left leg at that time also. Mr Bull has longstanding radiculopathy, it is understandable that Dr Karsas did not 8 comment on its presence, as it is a condition not normally required of a general practitioner to assess. " Mr Grayson went on to state: "I would aver that Mr Bull's lumbar spine is severely compromised at all levels." It is noted that the report of 9 April 1990 from Mr Grayson to ACC, was one of the documents to which Dr Karsas had reference for the purpose of his assessment. Further, Dr Karsas had reference to Mr Jamieson's report as well, that report also containing reference to radiculopathy as advised by Mr Grayson. -----= It is contended by counsel for the respondent that any challenge to an assessment would have to be made by another assessor who had been appointed by the respondent and to challenge the first assessor's use of the AMA Guides. I find that such a submission cannot be sustained. There has been no evidence to suggest that the AMA Guides have some particular magic in that they can only be interpreted by the persons appointed by the respondent to carry out assessments for independence allowances. The respondent's contention has never been the position that this Court has adopted, although it has said in earlier decisions that for an assessment to be brought into question it would require evidence that the assessment had not been carried out in accordance with the Act and Regulations. It goes without saying that the Court would be required to weigh up any such evidence that was produced, particularly as to the calibre of the person who was promoting that contrary view. In the present appeal the Court has had evidence from a very experienced Orthopaedic Surgeon who has indicated that he is familiar with the AMA Guides, although he has made it clear that he is not in favour of it as being the yardstick for determining disability and/or whole- person impairment. In the particular case of this appellant, Mr Grayson has identified an area of impairment, namely radiculopathy which is the disease of the nerve roots in the appellant's spine and that no allowance has been made for the impairment caused thereby. 9 This Court does not need to be provided necessarily with an alternative assessment from the expert expressing the opinion. Suffice is to say that if there is expert evidence which is compelling that either the AMA Guides have not been correctly interpreted in the assessment of the percentage impairment or that the assessor has not necessarily taken into account all factors of impairment that ought to be considered when considering the whole-person impairment of any particular claimant, then the Court will direct that any decision affecting a claimant based on that assessment be revoked and a new assessment be undertaken. I find in the present case it is this latter aspect which rasies a serious question, namely, the presence of radiculopathy. There is the evidence of Mr Grayson that this has not been considered when he, in conjunction with another Orthopaedic Surgeon, Mr Jamieson, had previously diagnosed the appellant as suffering from radiculopathy and it is a condition which impacts on whole-person impairment. In such circumstances it does bring the validity of the ---- - - . assessment into question. For the avoidance of doubt, I find that the assessments by assessors appointed under the Act and Regulations are not sacrosanct and that any challenge to the accuracy of an assessment must be considered on a case by case basis and each "challenge" must be considered on its own merits. Having regard to the evidence of Mr Grayson, I find that a question has arisen as to the correctness of Dr Karsas's assessment and that the appellant ought to be reassessed by another duly appointed assessor. No doubt that assessor can be provided with the diagnosis and opinion of Mr Grayson along with the other reports and medical data which are relevant for an assessment. Accordingly then the respondent's decision declining the appellant an entitlement to his independence allowance is revoked and the question of the appellant's entitlement to an independence allowance is hereby remitted back to the respondent pursuant to Regulation 16(2) of the Appeals Regulations for the review officer to direct that the appellant be reassessed for entitlement to independence allowance by another duly appointed assessor. 10 The appellant is entitled to costs which I fix at $800, together with the costs incurred in obtaining the further evidence of Mr Grayson. DATED at AUCKLAND this 1 St day of July 1999 M J Beattie District Court Judge dca25698.doc(rd)