Mulder v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 235/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOHANNES EDUARD MULDER of Waikanae Appellant (Appeal No. DCA 79/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of November 1997 APPEARANCES Appellant in person J D Palmer for respondent DECISION OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the Review Officer upholding the respondent's primary decision that the appellant is not entitled to the payment of an independence allowance. 2 The facts which give rise to the appeal are that the appellant severed his left index finger in an accident on 2 October 1992. On 24 September 1993 the appellant was assessed for the purpose of calculating his entitlement to an independence allowance with the result that on the basis set out in the regulations his degree of disability was assessed at 14% which entitled him to a weekly allowance of $4 from the date of the assessment. On 11 November 1993 the appellant applied for a review of the respondent's calculation of his independence allowance. This was based on the fact that while the assessment of his disability score was 16.5, this translated to a degree of disability of 14%. When the appellant then queried the delay in making his assessment, the respondent agreed that the independence allowance should be backdated to commence from 13 weeks after 2 October 1992 and the appropriate amount was then paid. On 23 September 1996 the respondent notified the appellant that he was to be reassessed for the purpose of his calculating his independence allowance entitlement. This reassessment was completed on 3 October 1996 when it was found that as his disability score of 3.4 translated to a degree of disability of less than 10% he no longer had an entitlement to receive the independence allowance. The appellant objected to the assessment and a further assessment was undertaken on 10 November 1996. The result of that assessment was that the appellant had a disability score of 10 which again translated to a degree of disability of less than 10%. The respondent notified the appellant on 15 November 1996 that because of the reassessment, he no longer had an entitlement to an independence allowance. The appellant applied for a review of that decision but the Review Officer held that the appellant's claim was unsuccessful. The appellant's principal submission is that he has found it difficult to understand that because of the increase pain as a result of the loss of his finger, the independence score has decreased from the original assessment rather than increased. The appellant submitted that the pain in his hand has become far worse over the years with a result that he considers that he has a greater degree of disability than immediately after the accident. He is particularly concerned that as the degree of disability in September 1993 was assessed at 14%, it is difficult to understand how , by 10 November 1996, it has become less than 10%. The appellant also submitted that he found it difficult to comprehend how the assessment could be made on the basis of having to answer some 136 questions, very few of which had any relevance to his particular ailments. I explained to the appellant that the basis for assessment is fixed by the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1993 which set out the basis upon which assessment has to be made and which includes the requirement to answer the 136 questions which have been specifically formulated for that purpose. I explained to the appellant that neither the respondent nor this Court have any discretion in this matter and that the answer is a purely mathematical one which is arrived at by applying the requirements of the legislation. While I agree with his complaint that it seems unusual that with the increase in pain between the first and last assessment his 3 score should have gone down. I accept his statement that in each case he has truthfully answered each question to the best of his ability and that he now considers that he is being penalised. Unfortunately the issue must be decided on the result of the assessment and the appeal is therefore dismissed. DATED at WELLINGTON this 2O'day of November 1997 A W Middleton District Court Judge dca79-97.doc (nr)