KMN v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 288 /00 HELD AT DUNEDIN No. DCA 163 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") BETWEEN: K MN Appellant AND: ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Heard at Dunedin on the 13th day of April 2000 Date of Decision: 30" October 2000 Counsel: Mr D.D. Vincent for Respondent Mr J.A. Farrow and Miss M. Bartlett for Appellant DECISION OF JUDGE P F BARBER Issue The issue is whether the respondent's decision of 6 February 1999 to modify the appellant's impairment assessment to 30% is correct. This decision resulted from an assessment on 23 December 1998 that the appellant has a "whole-person impairment" relating to the sexual abuse of 30%. This relates to the quantum of the appellant's Independence Allowance. Background The appellant suffers from a severe anxiety disorder and other problems relating to a sexual trauma. The appellant claimed under the Act in 1997 and was accepted for cover for condition relating to sexual abuse. The appellant also suffers from a severe anxiety disorder and panic attacks compounded by her longstanding alcohol dependence and abuse. These conditions are not covered by the Act. The appellant was first assessed for an independence allowance on 26 May 1997 under the previously prescribed method of assessment, the Functional Limitations Profile Questionnaire ("FLPQ"). The appellant's disability was assessed at 100% in respect of her sexual abuse and, from 3 June 1997, she was given an independence allowance of $43.82 per week. On 8 December 1997, and again on 26 May 1998, ACC's Sensitive Claims Unit advised the appellant that her independence allowance would be reassessed. She was re-assessed on 22 September 1998 under the new American Medical Association Guides to the Evaluation of Permanent Impairment ("the original AMAG assessment"). Dr Caradoc-Davies, an assessor approved by the respondent, found the appellant had an impairment of 20% due to her sexual abuse. The appellant had a 50% whole person impairment overall due to both her sexual abuse and the conditions not covered by the Act. By letter dated 10 October 1998, the respondent informed the appellant that the degree of impairment was 20% and the appellant would now receive $17.62 per week. On 16 December 1998 the appellant lodged an application for review of that decision. She provided a letter of support (dated 17/11/98) from Dr Christopher Wisely, her psychiatrist, which stated: 3- "You requested that I make an assessment of your degree of impairment for the ACC. I understand you were recently assessed as being at somewhere in the 20 percent disability region. You are far more compromised than that. You have a severe anxiety disorder with panic attacks compounded by your longstanding alcohol dependence and abuse. You also have severe problems relating to the previous sexual trauma and this may be the underlying cause of your other anxiety disorders and your drinking. I would consider your impairment to be at least 80 percent and at times 100 percent. At the moment your condition is in a degree of abeyance in that you are not requiring to spend up to ten hours a day waiting outside hospitals with your fear of illness. This is however not unknown for you, and may return. I believe the recent death of your father has also exacerbated your anxiety. " ACC asked Dr Caradoc-Davies to comment on this, and she provided a further report dated 23 December 1998 (the second AMAG assessment), which assessed the impairment relating to the sexual abuse issues as 30%, so that the whole person impairment became 60%. In a letter to the respondent dated 25 January 1999, the respondent's Medical Advisor, Dr Porritt, supported the result reached by Dr Caradoc- Davies and commented: "Dr Caradoc-Davies' report was in accordance with AMA Guides Fourth Edition. She fully explained and justified how she arrived at her rating of 20%, as is appropriate in her role as a trained AMA Guides Fourth Edition assessor. Or Wisely is not a trained AMA Guides assessor, and this is the chosen tool for Independence Allowance rating. He considers 80-90% to be a fair assessment and has not deducted for factors impacting on impairment which are unrelated to the cover issue. In using the AMA Guides, 100% essentially equates with death (page 8) and 80% indicates the claimant is in need of 24 hour supervision and direction and would usually be in some form of institutional care. Dr Caradoc-Davies has considered Dr Wisely's comments, and as a result increased the estimated whole person impairment from 50% to 60% She still feels that the degree of impairment unrelated to sexual abuse is 30% and has deducted accordingly. Dr Wisely's letter would also seem to support that some impairment is unrelated to the impact of sexual abuse in that he writes, 'You have a severe anxiety disorder with panic attacks compounded by your longstanding alcohol dependence and abuse. You also have severe problems relating to the previous sexual trauma...' This implies that he sees the physical abuse and sexual abuse as having different impacts on the claimant. Or Caradoc-Davies had deducted for the impact unrelated to sexual abuse. She has not deducted for the impact of the claimant's father's death, although Dr Wisely feels this further impacts on the claimant's impairment. In summary, Dr Caradoc-Davies has carefully considered Dr Wisely's letter and also reconsidered her initial report. She has modified her final whole person impairment to 30%. I recommend accept this (sic)." In a letter dated 6 February 1999, the respondent informed the appellant that Dr Caradoc-Davies had considered Dr Wisely's report and as a result had increased the appellant's disability from 20% to 30%. A further letter from the respondent, dated 12 February, informed the appellant she would now be entitled to an independence allowance of $24.97 per week. On 26 February 1999, the Review Officer modified the respondent's decision of 10 October 1998 (based on a 20% whole person impairment) to reflect the 30% whole person impairment in the second AMAG assessment. On 8 April 1999, the respondent lodged a notice of appeal of the Review Officer's decision. The appellant obtained a further medical report from Dr Wisely dated 10 April 2000 which states: "The final point I would like to make is that guidelines are just that, guidelines. I am not a qualified ACC assessor with regard to the AMA guidelines but I would be surprised if anyone were to ever believe that a generalised guideline to cover all types of trauma and disability were to be as relevant to an individual patient as thousands of hours of contact with that person on a daily basis and the families over a protracted period of time." The Legislation On 1 July 1997, a new form of assessment for independence allowances was introduced. Section 54(1) of the Act as amended provides: .5 - "Subject to the provisions of this section, every person who has cover under this Act is entitled to receive an independence allowance at the appropriate prescribed rate if the person's personal injury has or personal injuries have resulted in a degree of whole-person impairment of 10% or more." "Impairment" as defined in section 3 of the Act means: "Any loss or abnormality of the psychological, physiological or anatomical structure or function." Section 54A(1) of the Act states that a "whole-person impairment" must be assessed in accordance with the regulations made under the Act. Regulation 3 of the Accident Rehabilitation & Compensation Insurance (Independence Allowance Assessments and Rates of Payments) Regulations 1997 ("the Regulations") states: "Assessment of a person's whole person impairment, for the purposes of sections 54 and 55A of the Act, must be carried out by an assessor using the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition)." An "assessor" for the purposes of regulation 3 is a person appointed by the respondent under regulation 4. Subsequent Evidence By consent, a detailed affidavit of the appellant sworn on 24 March 2000 was filed. She was then 37 years of age and in receipt of a sickness benefit. The appellant explains that on 7 April 1999 she applied to the respondent for treatment and rehabilitation as a result of the sexual abuse she had suffered between 1977 and 1984 from a particular man whom she first met when she was aged 13 and he was then aged 18. She described many incidents of sexual abuse of her by that man commencing when she was only 13 years of age. She also detailed physical beatings from him. The affidavit makes very sad reading. 6 - Inter alia her experiences at the hands of this man caused her to commence drinking all day and night and "in the end I admitted myself to Cherry Farm to seek help for my drinking. I was soon moved to another unit to deal with the sexual abuse issues as the doctor said it was the problems arising from this that was making me turn to the alcohol..." Inter alia, the appellant refers to being first admitted to a psychiatric ward at the age of 14 12 and to having had numerous other such admissions since then as a result of acute anxiety, suicidal thoughts, fear of death and alcohol abuse. Having outlined her sad state of past and current illnesses, the appellant stated that she feels she has no life and is still in constant need of psychiatric help "to get by". She cannot understand how the respondent can say that she has a 30% whole person impairment "when for 23 years my whole life has revolved around the anxiety and fears which arose from the rape, sodomy, and other sexual assaults that Frank inflicted on me amongst physical beatings and threat of bodily harm and death. Every day I think I am going to die, no matter how many hospitals and doctors tell me it is just anxiety, so I just sit where I feel safest and wait for it to happen... I feel totally alone and frightened." A Summary of the Submissions for the Appellant In the first submissions for the appellant the issue was put as whether the respondent's 6 February 1999 decision to modify the appellant's impairment assessment to 30% is correct. That decision resulted from an assessment on 23 December 1998 that the appellant has a whole person impairment of 60% but only half of the impairment is related to sexual abuse or matters coverable by the Act. The appellant accepts that the assessor is approved by the respondent and by the AMA Guidelines in reaching her assessment of a whole person impairment of 60%; and that only impairment related to the sexual abuse issue is covered by the Act and assessable for an independence allowance. It is submitted for the appellant that the assessor erred when allowing a 50% reduction from an assessment of 60% whole person impairment to 30% whole person impairment due to non abuse issues. Counsel refer to the assessor stating that the onset of anxiety dated from the attempt by the abuser to push the appellant over a particular cliff; and the symptomotalogy related to anxiety disorder is that which is most crippling to her. Her affidavit shows that the attempt to push her over the cliff was made by her abuser at a time contemporaneous with the sexual abuse. The 10 April 2000 report of Dr Wisely considers that this had an effect on the appellant which was inextricably intertwined with the sexual abuse. Counsel for the appellant then dealt with the medical evidence. In particular they referred to the further report of Dr Wisely dated 10 April 2000 and emphasized that Dr Wisely is the Appellant's Consultant Psychiatrist who continues to have contact with her, often on a daily basis and at least three or four times each week. In response to the First and Second AMAG Assessments and the letter to the respondent dated 25 January 1999 from its medical advisor, Dr Porritt, Dr Wisely completed a report of 10/4/2000 challenging the assessment made by Dr Caradoc-Davies and, at page 1, commenting: "I am absolutely mystified as to how one can delineate or dissect out the amount of disability relating to separate parts of this man's traumatic abuse of Karen. All the acts were perpetrated during this period of time by the same man, and I find it remarkable that someone can assume the major impact only occurred when he threatened to throw her off a cliff. This actually occurred shortly after yet another episode of sexual abuse, and in my mind they are inextricably intertwined and effectively inseparable." Doctor Wisely comments further at page 2 of that report: "... The injuries together add up to a greater impact on ability than a single injury. This is precisely the case with the combination of sexual and physical abuse inflicted by Mr McBride and later in horrific circumstances by the Mongrel Mob." 8 - Counsel for the appellant concluded their first set of submissions as follows: "Conclusions Issue is not taken that the assessor applied the AMA Guidelines correctly in reaching her assessment of a whole person impairment of 50%. However, there is no justification for a 50% reduction due to disability not related to abuse issues as the evidence shows that: (a) The threat by the abuser to put the Appellant over the cliff was effectively part of the sexual abuse; and (b) One cannot delineate or dissect out the amount of disability relating to separate parts of the abuser's traumatic abuse of the Appellant. The physical abuse and sexual abuse are inextricably intertwined and effectively inseparable. Doctor Wisely is an experienced Consultant Psychiatrist who deals with victims of trauma on a daily basis and engages regularly in forensic work regarding victims of sexual assault and physical trauma. Dr Wisely has treated the Appellant for seven years and treats her on an ongoing, generally daily, basis. Doctor Wisely is qualified to provide expert evidence as to the effects of the physical abuse and the sexual abuse on the Appellant. Remedies For the abovementioned reasons, the Appellant seeks the following remedies: (i) A decision that the Respondent's decision of 6 February 1999 that 50% of the Appellant's disability was not coverable by the Act is revoked; (ii) A decision that the question of the Appellant's entitlement to an independence allowance be remitted back to the Respondent for the Review Officer to direct that the Appellant be reassessed for entitlement to Independence allowance by either. (a) another duly appointed assessor (in receipt of Dr Wisely's report); or (b) by Dr Caradoc-Davies (in receipt of Dr Wisely's report) in consultation with Dr Wisely. 9- (ifi ) Costs of an incidental to the Appeal. " In final typewritten detailed and thoughtful submissions counsel for the appellant stated, inter alia, as follows: The AMA Guidelines are based on the DSM IV Manual. The DSM IV Manual is a diagnostic manual widely recognised as having a high level of validity and reliability across culture and time. The DSM IV criteria are used by the Australia and the New Zealand College of Psychiatry and also by the English College of Psychiatrists. Both Dr Wisely and Dr Caradoc-Davies are trained to apply DSM IV criteria and there would therefore be a high level of correlation in terms of their assessment of any patient. Summary of Submissions of Appellant The Appellant submits that: The decision of Bull v ARCIC 1/7/99, Judge Beattie, DC Auckland 168/99, establishes that the AMA Guidelines do not have a particular magic which is unable to be contraverted by expert evidence provided by a qualified health professional. Dr Wisely, is an experienced Consultant Psychiatrist engaging regularly in forensic work regarding victims of sexual assault and physical trauma. Dr Wisely has spent many clinical hours with the Appellant, and is qualified as an expert to provide evidence in this matter. Dr Wisely's evidence is that one cannot delineate the incapacity relating separately to sexual abuse as opposed to physical abuse when the acts occurred contemporaneously and from the same abuser. There was not sufficient medical evidence for Dr Caradoc-Davies to make the 30% incapacity determination. The report of Dr Wisely is evidence that the AMA Guidelines have not been correctly interpreted in the assessment of the percentage impairment and that Dr Caradoc-Davies has not taken into account all factors of impairment that ought to be considered when considering the whole person impairment of this particular claimant... Dr Wisely has spent many clinical hours in observation and in contact with the Appellant and her family. While Dr Wisely is not qualified as an assessor to use the AMA Guidelines, the AMA Guidelines are based on the DSM IV criteria which both Dr Wisely and Dr Caradoc-Davies apply with regard to patients by the AMA Guidelines, and further by Dr Caradoc-Davies in her second assessment... - 10 - "... The AMA Guidelines (based on DSM IV criteria) allow for assessment of percentages of incapacity. Such percentages are based on diagnosed symptoms. The issue in this instance however concerns the origins of the symptoms as opposed to the symptoms themselves." Dr Caradoc-Davies says, in effect, that she cannot attribute a certain percentage of the Appellant's impairment to sexual abuse as opposed to physical trauma. Dr Wisely states on a diagnostic basis that it is impossible to delineate the incapacity relating to sexual abuse as opposed to physical abuse when the acts occurred contemporaneously from the same abuser. While it is accepted Dr Caradoc-Davies' knowledge of the AMA Guidelines is superior to that of Dr Wisely, the DSM IV is used by both psychiatrists. The issue, at this level, is a difference of opinion as to whether a professional can accurately, in the Appellant's specific circumstances of prolonged physical and sexual abuse by the same abuser, assess any percentage at all. Bull states that each "challenge" should be on a case by case basis. In the face of conflict, the evidence of Dr Wisely should be preferred due to his greater experience by way of clinical observation of this particular patient and her family. There is compelling expert evidence presented by Dr Wisely that illustrates the Guidelines were not correctly interpreted. Based on DSM IV diagnosis, Dr Wisely states there is not the evidence available to enable the effect of the physical abuse to be delineated from the effect of the sexual abuse when the acts occurred contemporaneously from the same abuser. Further, Dr Caradoc-Davies has taken into account non-DSM IV factors in her assessment, being the "abnormal illness" or care-eliciting behaviour referred to in her second report. Dr Caradoc-Davies specifically acknowledges that including the abnormal illness behaviour in her assessment is extraneous to DSM IV. There was insufficient medical evidence available for Dr Caradoc-Davies to support her assessment of a whole person impairment of 50% reduced to 20% for sexual abuse issues. Dr Caradoc-Davies' conclusions drawn on the basis of one interview and notes, cannot be equal to Dr Wisely's numerous hours of clinical observations. Further, that Dr Caradoc-Davies could arbitrarily provide a second report estimating a whole person impairment of 60% reduced to 30% for the sexual abuse issues, after only receiving a two paragraph length letter from Dr Wisely, indicates strongly that the original assessment did not arise from a carefully constituted application of the Guidelines. Dr Caradoc-Davies states she spent considerable time eliciting the onset of the Appellant's anxiety disorder as being an attempt by the abuser to "push" the Appellant over the cliff. Dr Caradoc-Davies indicates no - 11 - awareness of the actual facts as appear in the Appellant's affidavits dated 24 March 2000. In particular that the "push" over the cliff was actually a threat to drive in the car over the cliff. Also, that the threat to drive the Appellant over the cliff was preceded by rape and sexual abuse, and possibly followed by further sexual abuse. Incorrect Application of Guidelines Dr Wisely's report is based on the DSM IV diagnosis, upon which the AMA Guidelines are based. The Report states Dr Caradoc-Davies was incorrect in interpreting that the effect of the sexual abuse and the physical abuse can be delineated. Dr Caradoc-Davies has also included in her diagnosis the abnormal illness behaviour which is not a valid DSM IV criteria. Dr Caradoc-Davies' arbitrary decision to change the percentage is strongly indicative of the fact she did not correctly interpret the Guidelines in the first assessment which subsequently taints the second. That Dr Wisely's clinical observations have not been considered by the assessor in the original decision, nor to any extent in the subsequent decision, means that not all factors that ought to be considered, actually were. That Dr Caradoc-Davies based her assessment largely on a mistaken belief in a threat to "push" the Appellant over the cliff supports this. Dr Wisely does not give an alternative view of what the final percentage should be in his report, but maintains that the effects of the sexual abuse and the physical trauma are inextricably intertwined and effectively inseparable and finally states in the circumstances of this case the effects of the brutal assaults by the same man cannot be dissected out for the convenience of disability guidelines. Remedies The circumstances of this case meet the exception in Bull. It is appropriate for the matter to be referred back to the Corporation for re- determination by either Dr Caradoc-Davies in consultation with Dr Wisely, or another approved assessor in consultation with Dr Wisely. Where the Appellant has contemporaneously suffered sexual abuse and physical abuse at the hands of one abuser over a prolonged period of time, it is impractical and by evidence impossible to delineate the effects of abuse to any certainty (if at all). With the assistance of Dr Wisely's numerous hours of clinical observation and his ability to apply the DSM IV diagnostic criteria, an assessment may be undertaken which would take into account all the appropriate factors. - 12 - Where there is direct conflict of evidence based on the DSM IV criteria, it is appropriate that the professionals resolve this matter in consultation rather than a Court being required to do so. The Court in Bull appropriately referred the matter for the Appellant to be reassessed. In these circumstances and due to the dearth of expert evidence available, the collaboration would seem to be the most effective, pragmatic, and efficient means of resolving this matter. " Reasons for Decision | incorporate Mr Vincent's submissions for the respondent into my reasoning below. Both parties referred in some detail to Judge Beattie's decision in Bull v ARCIC (Decision No. 168/99) where he revoked the respondent's decision declining Mr Bull an entitlement to his independence allowance and remitted the matter back to the respondent for reassessment by another duly appointed assessor. I note, in particular, the following statements of Judge Beattie in Bull:- "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..." 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 of 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 undertaken. I find in the present case it is this latte aspect which raises 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 - 13 - 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. Essentially, the case for the appellant is that the assessment of Dr Caradoc-Davies is contrary to that of Dr Wisely in such a way that it is appropriate, overall, for me to refer the matter back to the respondent corporation for re-determination by either Dr Caradoc-Davies in consultation with Dr Wisely, or another approved assessor in consultation with Dr Wisely, and that where there is such a direct conflict of evidence based on the DSM IV criteria, I should not be resolving matters but medical professionals should be doing so. There was much emphasis on the theme that Dr Caradoc-Davies does not have a doctor-patient relationship as is the basis of Dr Wisely's report, and that Dr Caradoc- Davies had just a one-off interview with the appellant. There has been, of course, the emphasis that Dr Wisely is equally as well qualified as Dr Caradoc-Davies. There is a submission that, on the balance of probability, Dr Wisely's evidence (through his reports) shows that the AMA Guidelines may have been incorrectly applied and a wrong percentage arrived at. Mr Vincent submits that Dr Caradoc-Davies' conclusions are justified on the medical evidence and that Dr Wisely has taken into account external exacerbating factors which are not linked to the appellant's sexual abuse. Mr Vincent submits that a flaw in the appellant's submissions is that the appellant has not shown that the AMA Guidelines are flawed or have been misapplied. Mr Vincent correctly pointed out that Bull v ARCIC is quite distinguishable from the present case because, there, another doctor had applied the AMA Guidelines and obtained a different assessment from that of the respondent's assessor in that case; and that is not the position - 14 - here as there has been no reference to the AMA Guidelines by Dr Wisely who states that he is not a qualified AMA assessor and is simply not familiar with the AMA Guidelines upon which this case pivots. I can only agree with Mr Vincent that there is no evidence that the AMA Guidelines have not been properly applied by Dr Caradoc-Davies nor that she has considered incorrect factors. It seems to me that if a professional assessor has applied the AMA Guidelines in terms of the above legislation in a professional manner then, at least prima facie, that assessment must be accepted and applied by this Court. That is what has happened here. There is no evidence to shake the integrity of that assessment. Accordingly, the appellant cannot possibly discharge her onus of proof to show that, on the balance of probability, the assessment is wrong and why it is wrong. To do that she would need expert evidence in her favour based on the AMA Guidelines and that has not been obtained. The assessment of the appellant for an independence allowance complies with the Act. The assessor was approved by the respondent; and used the AMAG correctly. Only the impairment relating to the sexual abuse issue is covered by the Act and is assessable for an independence allowance. The impairment related to the sexual abuse issue has been assessed at 30%, and the appellant is entitled only to a payment reflecting that disability level. An independence allowance may only be provided in accordance with the Act. In Daniels v ARCIC 235/98, Judge Middleton said: "Neither the respondent nor the Court has the ability to interfere with an assessor's assessment of an applicant's disability or impairment." This was affirmed in Nicholl v ARCIC DCA 247/98 when Judge Middleton again held the respondent and the Court were bound to accept an assessment and said at page 3: - 15 - "The Regulation sets out the basis on which the independence allowance becomes payable and once that assessment is made it is binding on the respondent and on this Court." The present case is analogous with several others where a claimant has been re-assessed under the new AMAG at less than a previous assessment under the FLPQ. The assessment of "impairment" under the AMAG is an objective clinical medical finding. This may be compared with the FLPQ assessment, which was a subjective assessment of a "disability". The AMAG are to be applied by registered medical practitioners only, whereas the FLPQ could be used by non-medical personnel. The FLPQ had the disadvantage of creating wide discrepancies in entitlements due to the subjective criteria. Analogous cases include Hanvey v ARCIC DCA 278/99; Andrews v ARCIC DCA 188/99; Monkhouse v ARCIC DCA 48/99; Eisenhut v ARCIC DCA 184/98; Box v ARCIC DCA 229/98; Petersen v ARCIC DCA 157/98; Gowthorpe v ARCIC DCA 252/98; Daniels and Nicholl. The appellant must show on the balance of probabilities that she is entitled to an independence allowance based on an impairment level greater than 30%. She was dissatisfied with the original AMAG assessment and has provided an alternative medical opinion by Dr Wisely which suggests the appellant's disability should be rated at 80% to 100%. However, this opinion does not impact on either AMAG assessment for the following reasons: (i) Dr Wisely is not a trained AMAG assessor and is therefore unable to provide an assessment in terms of section 54 of the Act. He did not refer to or use the AMAG, and did not prepare his report with reference to the definition of impairment under the Act. In contrast, Dr Caradoc-Davies is trained to use the AMAG and is an "assessor" in terms of section 54 of the Act; and (ii) Dr Wisely has not deducted factors impacting on impairment which are unrelated to the sexual abuse cover issue. As - 16 suggested by Dr Porritt, Dr Wisely's letter of 17/11/98 acknowledges that some impairment is unrelated to the impact of sexual abuse. He writes: You have a severe anxiety disorder with panic attacks compounded by your longstanding alcohol dependence and abuse. You also have severe problems relating to the previous sexual trauma... (ifi) Both AMAG assessments deduct 30% for the impairment not covered by the Act. I uphold the respondent's decision of 6 February 1999 to modify its original decision in order to reflect the second AMAG assessment. In short, there is no medical evidence to support the appellant's contention that the guidelines have been applied incorrectly but there is adequate evidence to support Dr Caradoc-Davies' assessment of 30% impairment due to sexual abuse. I am not prepared to refer this matter back for further reconsideration by the respondent and/or medical experts because it does not seem to me that there could be available evidence to persuade an assessor to apply the guidelines in a different manner. I consider that any further reference could have no useful or practical consequences. This appeal is hereby dismissed. Judge P F Barber District Court Judge Wellington