Woodward v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 319 199 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 JUNE WOODWARD DCA 255/99 Appell ant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD on the 2nd day of November 1999 APPEARANCES: Mrs A de Jonge advocate for appellant Mr M H L Morrison counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to determine that, following her reassessment, the appellant was no longer entitled to an independence allowance pursuant to section 54 of the Act. The facts which are relevant to the determination of this issue are as follows: 2 The appellant is now aged 51 years. In November 1989 she suffered an injury to her back in a fall. She did not claim cover for her injuries until October 1992. Her history is best set out in the report from Dr Paul Friedman in November 1998: 'June injured her back in November 1989 when she fell on the steps at home striking her back while landing on concrete. In June 1991 she developed left sciatica while in the U.K. X-rays were said to show a small fracture in an osteophyte on the body of L3. In 1992 she was admitted to Waikato Hospital for bed rest and an epidural steroid injection Mr Grant Cowley assessed June in December 1992, noting mild weakness in the extensor of her left great toe and straight leg raising limited to 50 degrees. Mr Don Allen admitted June to the orthopaedic ward in July 1993; a CT scan was said to show mild spinal stenosis and sic bulging. MRI scan of the lumbar and thoracic spine in June 1994 was said to show reduced disc space at L4-5 and L5-SI with central disc prolapse at LS-SI with no nerve root compression and minimal spinal stenosis. She has had several epidural steroid injections. Current pain is in the lumbosacral junction and left upper buttock. The left posterior thigh and left foot feel numb. She takes no medications for back pain. Past medical history includes: Recurrent depression 2. Obsessive compulsive disorder. 3 . Right hemiplegia at age 37 (1975) due to stroke 4. Hypertension treated by medication" In May 1994 the appellant was assessed for an independence allowance, that assessment being conducted under the then statutory criteria provided in the Act of Functional Limitation Profile Questionnaire (FLP) and the assessment of her disability under that method of assessment was fixed at 94%. The appellant duly 3 commenced receiving an independence allowance based on that percentage of disability. In 1998 the respondent sought to have the appellant reassessed for the purposes of her continuing entitlement to an independence allowance and for that assessment she was referred to Dr Paul Friedman, a duly appointed assessor under the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997. For the purposes of his assessment Dr Friedman was provided with all previous medical reports from specialists and the appellant's GP, and he carried out his assessment on 18 November 1998. Dr Friedman carried out an examination of her and then referred the results of that examination to the appropriate Table of the AMA Guides to the Evaluation of Permanent Impairment (4" Edition). In his report he stated as follows: Impairment Rating of Body Parts, Functions, and Systems: I used the Spine DRE (Diagnosis Related Estimates) from the Guides. There are no structural inclusions such as vertebral body fractures or dislocations, spondylolysis, spondylolisthesis or prior spinal surgery. There are no bladder or bowel symptoms or long-tract signs to suggest cauda equina syndrome. Reflexes are symmetrical. She has clinical signs of left sciatica as evidenced by sensory loss in the left LS and SI roots. Therefore she has a category II impairment of the lumbosacral spine. Whole Person Impairment Percentage: Using Table 72 on page 110 of the Guides, a category II impairment of the lumbosacral spine equates to a 5% whole person impairment." As a consequence of Dr Friedman's report the respondent advised the appellant by letter dated 1 December 1998 that she no longer had an entitlement to an independence allowance as her whole-person impairment percentage did not meet the 10% threshold required to establish entitlement to the allowance under the Act. The appellant sought a review of that decision and gave evidence at the review hearing, that evidence being directed at the difficulties and the pain that she suffered on a daily basis and of the restrictions that it caused her in normal daily life. She did not seek to bring any medical evidence to question the assessment made by Dr Friedman. In her decision the Review Officer noted that the assessment had been carried out by Dr Friedman in accordance with the AMA Guides and that the legislation required the whole person impairment to be not less than 10%. In the circumstances she confirmed the respondent's decision. For the purposes of appeal to this Court the appellant introduced a letter from the appellant's GP, Dr Scarlet, to Mr D E Allen, Orthopaedic Surgeon, and Mr Allen's reply of 15 June 1999. Dr Scarlet sought Dr Allen's opinion as to an assessment of her level of disability. In his report Mr Allen stated: "Thank you for referring this patient who has a persisting, fluctuating level of low back discomfort and occasional episodes of left sided sciatica. After clinical and radiological review, and discussion with Mrs Woodward:- 1. In relation to the degenerative change in the lumbar spine, I would advise maintaining a conservative attitude, and Mrs Woodward appreciates this revolves around her maintaining mobility, a good level of general fitness, and taking the usual precautions regarding care of the back. 2. In relation to the sciatica, I have advised a further M.R.I scan. Mrs Woodward agrees, a request has been faxed to A. C. C., Mrs Woodward will ring on receipt of A. C. C. decision, and make another appointment after the M.R.I." An MRI scan was carried out on 5 August 1999 and the results of that scan as interpreted by the respondent's branch medical advisor indicate that the assessment of Dr Friedman is supported by that MRI scan. No further report has been produced from Mr Allen. In her submissions to this Court Mrs de Jonge, advocate for the appellant, stated that it was not fair that a change in the legislation had caused the appellant to be denied her ongoing entitlement. She further stated that persons such as the appellant have difficulty in obtaining medical evidence seeking to question the accuracy of the assessment carried out by the respondent's duly appointed assessor. Mr Morrison, counsel for the respondent, submitted that the appellant had been properly and correctly assessed under the Act and the Regulations and that the respondent's decision to cancel was correct in the light of the assessment so made. DECISION The circumstances of this appellant are similar to many which have come before the Court over the past two years, since the coming into force of the 1997 Amendment to the Act which took effect on 1 July 1997 and which provided for a new regime of assessment for an independence allowance. That amendment altered the criteria for assessment from the former subjective criteria contained in the Functional Limitation Profile Questionnaire to the wholly objective criteria contained in the American Medical Association Guides to the Evaluation of Permanent Impairment (4" Edition). It is to be noted that the entitlement to an independence allowance is now to be based upon the degree of whole-person impairment as assessed, rather than the degree of disability assessed. 6 The meaning of "disability" under the Act was "Any restriction or lack (resulting from impairment) of ability to perform an activity in the manner or within the range considered normal for a person". Whereas impairment, as defined, means "any loss or abnormality of psychological, physiological or anatomical structure or function". Thus, it can be seen from those two definitions that the concepts are different, the most obvious difference being that disability is largely viewed from a subjective perspective whereas impairment is wholly an objective assessment of the loss of function. It is for this reason that there have been so many instances which have come before the Court of what appears to be a gross disparity between the subjective assessment of disability under the FLP criteria and the whole-person impairment assessment under the AMA Guides criteria. In the case of this appellant Dr Friedman has assessed that the appellant's condition is a category II impairment of the lumbosacral spine. This Court has received no evidence that would cast any doubt on that assessment and in accordance with the Guide that category II impairment equates to a 5% whole-person impairment. That is the plain fact of the matter. This Court has observed on several occasions that if it receives evidence which puts into question the accuracy of any assessment carried out by the assessor appointed by the respondent, then it will direct that a new assessment be carried out by some third assessor. There is no such evidence in the present case which purports to cast doubt on Dr Friedman's assessment and accordingly then there is no basis for this Court to interfere with the decision of the respondent, acting as it has on that professional advice. For the appellant herself, it is to be noted that the effect of the respondent's decision is simply to state that as at the date of its decision she has no entitlement to an independence allowance having regard to the degree of whole-person impairment that she then had. That is not to say that at some stage in the future her whole-person impairment could increase, and be attributable to the effects of her accident. In which case she would be entitled to be re-assessed and have the question considered afresh. Indeed, the Act permits such a re-assessment to be sought upon appropriate certification from her GP after one year from the date of the last assessment. That is a matter for the appellant in the future. The present circumstances are that this appeal must be dismissed DATED at WELLINGTON this 12" day of November 1999 olecthe M J Beattie District Court Judge 255.99Woodward.doc(gm)