Poihegatama v Accident Compensation Corporation

IN THE DISTRICT COURT AT DUNEDIN [2015] NZACC 35 ACR 225/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN JASON POIHEGATAMA Appellan AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 15 September 2014 Appearances: The appellant in person C Light for the respondent Interim judgment: 19 December 2014 Judgment: 18 February 2015 RESERVED JUDGMENT OF JUDGE L G POWELL 1] The present appeal involves a challenge to a whole person impairment assessment carried out in respect of the appellant, Jason Poihegatama, by Dr Rosy Fenwicke on 20 October 2012.' [2] In my interim judgment dated 19 December 2014 and for the reasons set out in that judgment I concluded that Dr Fenwicke's report was flawed and must be set aside. Having reached that conclusion I gave Mr Poihegatama the opportunity to choose one of two options identified by Mr Light as counsel for the Corporation. In particular Mr Light had accepted at the hearing that Dr Fenwicke's report was flawed It should be noted that Dr Fenwicke subsequently issued an amended report on 17 November 2012 although her conclusions remained substantially the same. 2 [2014] NZACC 333 but as well as offering Mr Poihegatama the opportunity for a reassessment from a different assessor, Mr Light indicated that the Corporation would also be prepared to give Mr Poihegatama the chance to be reassessed by Dr Fenwicke, with Dr Fenwicke this time taking appropriate account of the fact that Mr Poihegatama was diagnosed with a major depressive disorder. Having noted the options given, it seemed to me important that a time limit needed to be imposed on any offered reassessment by Dr Fenwicke as it would be unreasonable to require the Corporation to be expected to make Dr Fenwicke available for any length of time to undertake a reassessment. My conclusions were accordingly summarised in the interim judgment as follows: Given these matters I consider it appropriate to issue this interim judgment confirming that there are sufficient grounds to set aside the decision of the Corporation and giving Mr Poihegatama until 30 January 2015 to accept either of the options proposed by the Corporation and for the parties to confirm the position to the Court. In the event that Mr Poihegatama chooses not to accept one or other of the options by 30 January 2015, I will then issue my final judgment confirming that the Corporation's decision is to be set aside and directing that Mr Poihegatama be assessed by a new assessor on the basis set but by Mr Light in his second option which I consider to be consistent with the redress sought by Mr Poihegatama on filing the appeal and in the course of the hearing before me. [3] No communication of any description was received from either of the parties by 30 January 2015. As a result I now confirm that for the reasons set out in the interim judgment the appeal is allowed, the review decision dated 14 December 2012 is quashed, and the decision of the Corporation dated 30 October 2012 is set aside. There is no issue as to costs. [4] As per Mr Light's second option the Corporation is now to arrange for a different assessor to assess Mr Poihegatama's percentage of whole-person impairment with Mr Poihegatama able to choose that assessor from a list of approved assessors who are available to undertake the assessment provided by the Corporation. [5] Once the new assessment has been completed the Corporation will issue a new decision on Mr Poihegatama's entitlement to lump sum compensation based on the new assessment of whole-person impairment, and that new decision will have review rights. For completeness I also specifically note that the Corporation will not seek to recover any amount paid to Mr Poihegatama, if his degree of whole-person impairment is assessed at less than 15% (the basis on which the previous payment of lump sum compensation was made). Judge L G Powell District Court Judge