Kennedy v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 243 /99 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 GRAHAM KENNEDY DCA 537/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th day of July 1999 APPEARANCES: Mr A R V Rowlett advocate for appellant Ms A H Cecil-Gibson counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the assessment of the appellant for an independence allowance was correctly carried out as required by section 54A of the Act and the regulations made thereunder. 2 The facts which are relevant for this appeal are as follows: The appellant is now aged 47 years. When aged 12 he fractured his proximal right ulna and when aged 19 he had a plate inserted. In 1990 he knocked his right elbow which caused some pain and which lasted approximately six weeks. In October 1993 he again knocked his elbow when he banged it on a post and it was this injury which caused him to seek cover under the Act. At the time of this accident the appellant was employed as a machine operator but since the date of that accident (26 October 1993) the appellant has not worked. At the time of this accident the appellant underwent nerve conduction studies which suggested that he may have carpal tunnel syndrome and he underwent carpal tunnel decompression surgery in February 1994. This operation did not relieve any of the symptoms of swelling and paraesthesia and since that time he has had ongoing numbness and swelling in his right arm. The appellant has had increasing pain in his arm and also swelling. Associated with those symptoms has been aching in his joints, blotchiness, sweating and abnormal coldness of his arm. He describes a burning pain. The appellant has had multiple investigations and seen numerous specialists over the years. He has tried multiple medications for pain relief. He was referred to rehabilitation pain clinic and it is noted that he was said to have suffered from reflex sympathetic dystrophy (RSD) of the right forearm and had been unresponsive to multiple ganglion blocks. In May 1998 the appellant was referred to Dr Lynne Harvey for assessment for an independence allowance. Dr Harvey is a duly appointed assessor. For the purposes of the assessment Dr Harvey was provided with the various medical reports which had been compiled over the years, including that of Dr Brougham, Orthopaedic Surgeon, who in September 1995 had reported to the appellant's GP that it was his diagnosis that the appellant suffered from reflex sympathy dystrophy in his right upper limb. Dr Harvey carried out her examination of the appellant on 18 May 1998 and, despite the fact that the appellant appeared to have little or no use of his right arm, it was her assessment that the appellant suffered from complaints or symptoms rather than any documented, reproducible medical findings and he therefore had no impairment rating assessable under the AMA Guides. On the basis of that nil rating the appellant was not entitled to an independence allowance. The appellant sought a review of that decision and for the purposes of that review a report from Mr Brougham was submitted, he being asked to comment upon the assessment report of Dr Harvey. In his decision the Review Officer found that Mr Brougham had not disagreed with the findings of Dr Harvey on the basis of the objective medical findings and as it could not be said that the assessment had not been carried out in accordance with the Act and the Regulations so that the assessment was flawed, the decision based on that assessment was correct. For the purposes of appeal to this Court the appellant obtained leave to introduce a further letter from Mr Brougham and also a letter from Mr Richard Morbey dated 15 June 1995 to Mr Brougham. The issue in this appeal as I have identified it requires this Court to consider the assessment procedure as carried out by Dr Harvey and to determine whether it was correctly carried out in accordance with the Act and the Regulations. This of necessity requires the Court to determine whether the assessor has carried out the assessment in accordance with the AMA Guides. Those guides deal wholly with medical matters and therefore this Court is entirely dependent upon evidence of a medical nature from experts in this field. In this case the appellant relies upon the evidence of Mr Brougham and I set out firstly the report of Dr Harvey which is her assessment under the Act and then the two letters from Mr Brougham to the appellant's advocate which make comment on Dr Harvey's assessment. Dr Harvey's assessment states as follows: EXAMINATION On examination of Mr Kennedy he has no evidence of abnormality in his lumbar spine or lower limbs. He has no evidence of any abnormality in his left upper limb with good strength, range of movement, normal reflexes, sensation and pulses. He has a full range of movement in his cervical spine but some pain in the right aspect of his neck on right lateral flexion. On examining his right arm he has scars present in his right elbow and right forearm from two previous operations. He also has a small scar from median nerve decompression at the wrist. He complains of complete absence of sensation in the whole of his right arm apart from a few scattered patches but this certainly does not correspond to any nerve roots and at the same time he also has hyperpathic sensation which tends to count against a true loss of sensation in this limb. The skin does appear slightly more mottled but there was no evidence of increased sweating, no evidence of oedema or atrophy and he had normal peripheral pulses and reflexes. He had difficulty in all movements of his right arm although had full range of movement in his right elbow and right wrist and right hand, but found he was not able to demonstrate any significant movement in his right shoulder but was unable to explain why this was so and just felt it was not able to work. He had grade 2 to 3 power in the whole of his arm, including his shoulder and was unable to grip my hand or even oppose finger to thumb. He was reluctant to do these activities as he felt they would increase his pain. IMPAIRMENT RATING Mr Kennedy has history of a fracture to his right forearm as a youngster and right tennis elbow surgery prior to two trivial elbow traumas which have resulted in an inability to use his right arm and chronic pain syndrome. On examination he claims to have absence of global sensation in the whole of his right arm although he at the same time declares that his arm can be extra sensitive to the touch. There is no evidence of muscle atrophy and he has normal reflexes and no evidence today of increased sweating or oedema, he has normal pulses, although the skin does look slightly mottled. He came in wearing a splint for support. He has a global weakness in the whole of his right arm from his right should to his fingers. There are no significant abnormalities otherwise on general examination. In examining his medical records he has had multiple investigations and assessment performed. A bone scan seems to show no underlying problems such as Suddeck-s atrophy. An EMG performed in 1994 showed no abnormality apart from some minor changes consistent with Carpal Tunnel Syndrome. He has been assessed by several Specialists and described as suffering from Chronic Regional Pain Syndrome with significant functional overlay. Therefore in summary whilst the shows a global weakness in his right arm associated with an objective numbness and sensations of swelling and chronic pain, he does not show any documented medical evidence of any significant pathology and that he has had a normal EMG apart from the possible Carpal Tunnel Syndrome, normal Xrays and bone scan apart from the pre-existing mild osteo-arthritis in his right radial head due to its injury in the 1960's, and he has gained no benefit at all from any of the regional nerve blocks or medication or therapies employed. In particular, although he has been unable to work for the past 41/2 years due to his injuries, there is no evidence of muscle atrophy to support a diagnosis of true muscular weakness. As Mr Kennedy suffers from complains or symptoms rather than any documented reproducible medical findings he therefore has no impairment rating assessable under the AMA Guides." That assessment was referred to Mr Brougham, Orthopaedic Surgeon, for the purposes of the review hearing by the appellant's advocate and it should be noted that Mr Brougham is responding to Mr Rowlett's request which he stated in his letter of 7 October as follows: "I would be grateful for your opinion regarding this assessment and whether you will agree that normal use of the AMA Guides would disallow assessment of any impairment in this case. It is not necessary for you to actually assess impairment." To that request Mr Brougham replied on 10 October 1988 as follows: "It is possible utilising the AMA Guide to the Evaluation of Permanent Impairment 4th Edition to produce a nil impairment for this man. This is obviously being based upon conflicting clinical findings of subjective weakness and sensory changes without clearly being able to document objective changes. Clearly Dr Harvey has ultimately concluded in light of her clinical examination findings and the results of tests presented, the subjective symptoms being complained of have no objective pathological basis. Patients such as Mr Kennedy present an extremely difficult challenge for the assessor of permanent impairment. As stated above, if you stick very closely to objective findings as the rating scale for impairment then these patients do not tend to do very well at all. The 6 alternative way to look at such a patient is in terms of their overall function. This ignores the dilemma of sorting out the true underlying pathology. However, I believe this alternative way is fairer to the patient as it is actually what they perceive as ongoing incapacity. In Mr Kennedy's case this would therefore warrant a compromise impairment assessment rated on loss of use of his right upper limb. In the old terminology, this would equate to a percentage of upper limb amputation or similar." For the purposes of the appeal to this Court Mr Rowlett again sought further opinion from Mr Brougham and his letter to him stated as follows: "It is noted in the assessment report from Dr Harvey that Mr Kennedy suffered from reflex sympathetic dystrophy. This condition is covered in page 56 of the AMA Guides as per the copy attached. Dr Harvey does not appear to have taken the steps set out to derive impairment. Do you consider that an impairment rating of higher than 0% would result had this part of the guide been followed? Mr Brougham replied to that on 2 June 1999 as follows: "I have reviewed the report undertaken by Dr Lynne Harvey dated 18.5.98. I have noted the information provided regarding the guide to the Evaluation of Permanent Impairment for causalgia and reflex sympathetic dystrophy. One assumes that the category of causalgia and reflex sympathetic dystrophy most closely approximates this man's diagnoses of a chronic regional pain syndrome. On this basis, utilising the guide in reviewing the clinical examination undertaken, there should have been impairment ratings in association with a loss of movement at the right shoulder, weakness throughout all muscle groups of the right upper limb and wide spread sensory changes. Part 4 of the guide suggests that all three elements are combined to produce an upper extremity impairment. It is clear that using this guide Mr Kennedy should have been rated with an impairment above 0%. My interpretation of the report suggests that Or Harvey did not feel that these findings were truly objective and therefore did not include them. It is my opinion that in the chronic pain situation, it is often hard to be totally objective and one needs to accept the clinical findings at face value. Finally the letter from Mr Morbey to Mr Brougham of 15 June 1995 really does not add any new evidence but simply indicates that Mr Morbey had the same view as had 7 Mr Brougham at that time that the appellant was displaying features of reflex sympathetic dystrophy. In the light of the foregoing medical opinions Mr Rowlett submitted that Dr Harvey's assessment takes no account of the condition diagnosed as reflex sympathetic dystrophy and that there is a specific procedure for determining impairment in such cases in the AMA Guides and that Mr Brougham supports an assessment using this part of the Guides and that if it had been so then the appellant would have rated a whole person impairment above 0 percent. Mr Rowlett further submitted that whilst Dr Harvey may have mentioned the three components of the assessment for RSD, she did not measure them or attempt an assessment under that part of the AMA Guides and therefore in those circumstances her assessment did not conform with an assessment required under the Act and the Regulations. Ms Cecil-Gibson, counsel for the respondent, submitted that Dr Harvey was cognisant of the diagnosis of RSD, has looked at the matter objectively as is required and has made her assessment under the guides. Counsel further submitted that the medical evidence is that whilst the appellant has features of RSD all the experts are of the opinion that the appellant suffers from Chronic Regional Pain Syndrome. Finally counsel submitted that Dr Harvey applied the purely objective criteria required under the guides and that in so doing it cannot be submitted that the application of purely objective criteria is an appropriate ground for the Court to consider that assessment invalid. RELEVANT STATUTORY PROVISIONS Section 54(4) states: 8 The assessment of a person's entitlement to the independence allowance shall be carried out in accordance with section 54A of this Act and if, and only if, the entitlement is established by such an assessment, it shall be payable in accordance with subsection (7) of this section. Section 54A(1) states: For the purposes of section 54 of this Act, a person's whole-person impairment shall be assessed in accordance with the Regulations made under this Act. Regulation 3 of the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessments and Rates of Payment) Regulations 1997 states: 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 (4th Edition). DECISION As I have indicated earlier on in this decision this Court is not competent to itself examine the methodology of Dr Harvey and make a determination of whether she did or did not carry out her assessment of the appellant using the AMA Guides as the Regulation requires. The Court can only act upon appropriate expert evidence and after weighing that evidence come to a decision based on that evidence. In the preamble to her assessment Dr Harvey states that the assessment has been conducted using the AMA Guides and as such it ensures that: The impairment rating is consistent with and justified in accordance with ACC instructions regarding Content and Format of an Impairment Assessment Report, the guidance provided during the ACC independence allowance assessor training programme, and by the appropriate use of the AMA Guides. In the summary of her report she notes that whilst the appellant has weakness in his right arm associated with an objective numbness and sensations of swelling and 9 chronic pain he does not show any documented medical evidence of any significant pathology. In his first comment on Dr Harvey's report, Mr Brougham acknowledges that it is possible using the AMA Guides to produce a nil impairment for the appellant. He notes that this is done on the basis that Dr Harvey has looked at the matter objectively, as the guides require, and that the appellant's subjective symptoms of which he complains have no objective pathological basis. Mr Brougham does not disagree with that finding and the alternative that he proposes, namely to look at it from the patient's position, but he acknowledges that to do so ignores the dilemma of what is the true underlying pathology. Whilst Mr Brougham considers this suggested method as being fairer, there is no statement from which this Court could determine that this was the method required under the Guides. Indeed it is proffered as an alternative, or to use Mr Brougham's other description, a compromise impairment assessment. Such a "compromise impairment assessment" does not conform with the criteria under the AMA Guides and in those circumstances, I find that it would be not in accord with section 54A or Regulation 3. In his later advice of June 1999 Mr Brougham is giving advice on an assumption that the category of causalgia and RSD most closely approximates the appellant's diagnosis of chronic regional pain syndrome. Again however, Mr Brougham does not say that the assessor has not applied the Guides, and again he indicates that there would need to be a departure from the objective stance in order to have regard to the appellant's condition. I find that Mr Brougham's advice of June 1999 to be simply a refinement of the earlier advice given and again it cannot be said that it establishes that Dr Harvey has not correctly applied the AMA Guides when conducting her assessment. 10 There is no evidence before this Court that would cause it to find against Dr Harvey's assessment where she has found, without dissent, that there is no pathological basis for the symptoms the appellant complains of and as such he has no impairment rating assessable under the AMA Guides. In summary therefore this Court finds that there is no basis upon which it could rule that Dr Harvey has not conducted her assessment or made her finding by incorrectly applying the AMA Guides. The mere fact that some compromise or alternative assessment might be fairer having regard to the particular symptoms which this appellant complains of is no basis to rule that the assessment is invalid, in fact the opposite is the case. In those circumstances, the decision made by the Corporation consequent upon that assessment that there is no entitlement to an independence allowance was correct. For the foregoing reasons therefore this appeal is dismissed. DATED at WELLINGTON this 30 day of August 1999 M J Beattie District Court Judge 537-98Kennedy.doc(gm)