Steele v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 44 /2000 DCA 167/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KERRY PATRICK STEELE Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARING at WHANGAREI on the 23rd day of November 1999 DATE OF THIS DECISION: 21 5+ March 2000 APPEARANCES The appellant (with his mother) Ms S L Scott, counsel for respondent DECISION OF JUDGE P F BARBER The Issue At issue in this appeal is the Respondent's decision of 7 December 1998 that the appellant is not entitled to an independence allowance as his whole-person impairment, assessed in accordance with section 54A of the Act, is less than 10%. 2 Background The appellant lodged a claim with the respondent in 1993 in relation to an injury suffered when the appellant fell off a brick wall on 3 March 1993 while working for Taskforce Green. The respondent accepted the appellant's claim. In October 1993 the appellant applied for an independence allowance. The appellant was assessed under the functional limitation profile questionnaire (FLP) as having a 100% disability, and was awarded an independence allowance in accordance with that assessment. The appellant was reassessed under the FLP assessment in February 1994 and November 1995. In November 1995 he was assessed as having a 40% disability. In June 1997 the respondent advised the appellant of the process for reassessment of the independence allowance following the change in the relevant legislation. The respondent forwarded an application and medical certificate form to the appellant for completion in conjunction with the appellant's general practitioner. On 9 November 1998 the appellant provided the completed form and medical certificate to the respondent. The medical certificate confirmed that the injury was stable and that it was likely that the injury had resulted in impairment. The respondent referred the matter to Dr M P O'connor, a qualified assessor to undertake an assessment. Dr O'connor's report dated 17 November 1998 assessed the appellant under the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, ("the AMA Guidelines") as having a total whole- person impairment rating of 5 %. Dr O'connor said inter alia: "Based on the clinical findings and on the clinical records available to me, I think it is reasonable to conclude Mr Steele has damaged a lumbar disc, probably L3/4. There are no convincing signs today of radiculopathy ... I would conclude Mr Steele's DRE impairment category is (II) which gives a percentage impairment of the whole-person of 5%". The respondent referred Dr O'connor's report to Dr Porritt, branch medical advisor for comment. Dr Porritt's view was that Dr O'connor's assessment had been undertaken in accordance with the guidelines. She agreed with the assessment of 5%. On 7 December 1998 the respondent notified the appellant of their decision that the appellant did not qualify for an independence allowance. The appellant applied for a Review on 14 December 1998. An administrative review was undertaken and the matter was once again referred to Dr Porritt. In her review Dr Porritt raised the question whether the back injury was the respondent's responsibility. However, she confirmed that the examination undertaken by Dr O'connor, and the other medical evidence on file, supported a selection of Category Il under the said AMA Guidelines. Dr Porritt said: 'The assessor makes specific mention of Mr Steele not having muscle guarding, however the GP clinical notes on 30/1 1/93 state "paraspinal muscles hard on right, less so on left" and I have interpreted this as being synonymous with muscle guarding and accepted 5% WPI on this basis. There is also mention of referred pain into the legs which may qualify as non- verifiable radicular complaints, further supporting the selection of category in II". The Review was held on 2 March 1999 and the decision was released on 17 March 1999. The Review Officer noted: "I explained that the Independence Allowance Assessment and Rates of Payment Regulations required the Corporation to appoint assessors and only those appointed assessors may carry out the assessment. They must be carried out in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4 edition. I explained that Dr O'connor was such an assessor. The assessment was meant to be an objective assessment of impairment on the day. While Dr O'connor had been provided with all the medical background information relevant, the idea was that a doctor not necessarily known to the patient carried but an objective assessment. That had been done in this case. I said a 5% impairment was not insignificant or trivial. I do not accept that Mr Steele's power of communication is limited to the extent that he needs to be reassessed with somebody else present to help him". The Appellant filed a notice of appeal in relation to that decision of the Review Officer. The Law The sections of the Act referred to were s.54 (Independence Allowance), s.54A Assessment and Reassessment pursuant to regulations). Of course, there was reference to Regulations 3 and 4 of the Accident Rehabilitation & Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 ("the Regulations"). There was also reference to s.27 of the Accident Rehabilitation and Compensation Insurance Amendment Act (No. 2) 1996. Regulations 3 and 4 of the regulations provide: "3. Assessment of whole-person impairment--- 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 (Fourth Edition). 4. Assessors--- The Corporation must appoint as many persons as it considers necessary to carry out assessments under regulation 3". 4 An assessor is defined in the regulation 2 as a person who is appointed under regulation 4. In Petersen (Decision no. 249/98), Judge Beattie considered whether the Corporation had correctly calculated the claimant's entitlement to the independence allowance. The claimant had been in receipt of the independence allowance following an FLP assessment. However, following an assessment using the AMA Guides, the Corporation determined that she was no longer entitled to receive the independence allowance. In addressing the method of assessing entitlement to the independence allowance Judge Beattie noted: "... the method of assessing entitlement to independence allowance now is entirely different from that which formerly applied when the 1992 ARCI Act was enacted. It might be said that the assessment of disability in percentages would be similar to that which had previously applied for determining lump sum payments under the 1972 and 1982 Acts. However the evidence that this Court has heard in the various appeals that have come before it on this question of independence allowance assessment would indicate that there is no correlation between a percentage disability under the FLP assessment and that of whole- person impairment under the AMA Guides. The present appellant's circumstances are a case in point, where a percentage disability of 34.4% is translated into a 5% whole-person impairment even though her orthopaedic specialist would suggest that her condition had deteriorated since the time of that earlier assessment." In Gowthorpe (Decision no. 252/98) Judge Beattie noted: "The fact that there is a considerable discrepancy between his assessment of whole body impairment and the percentage of disability under the former Functional Limitations Profile is simply an indication of the difference between these two concepts of impairment or more particularly the difference between the concept of subjective assessment of disability as opposed to an objective assessment of impairment." Reasons for Decision I can only agree with Ms Scott's most helpful decisions which I incorporate into my reasoning below. The issue to be decided by this Court is whether, as at 7 December 1998, the respondent was correct to determine that the appellant is not entitled to receive an independence allowance. It is clear from section 54(1) of the Act that a claimant is now only entitled to receive an independence allowance if his or her whole-body impairment is rated at 10% or above under the AMA Guides. The earlier assessment under the FLP scheme applied quite different criteria. When the legislation was amended in 1997, it was necessary for the appellant to be reassessed under the new criteria. Once the appellant had provided an application and medical certificate in accordance with section 52(2), it was then incumbent upon the respondent to follow the procedure set out in the Act and regulations to assess the appellant. 5 The regulations determine the steps which must be taken for a valid assessment to be completed, including the fact that an assessor must be appointed under Regulation 4 and must undertake the assessment in accordance with the AMA guidelines. Dr O'connor is an appointed assessor. It is apparent from his assessment that it was carried out in accordance with the AMA guidelines. Dr Porritt confirmed this in her initial peer review. Dr Porritt further confirmed this was the case in the Corporation's administrative review of the assessment. The only medical evidence provided by the appellant is from the appellant's General Practitioner, Dr G Stokes who has not undertaken an assessment based on the AMA Guidelines. Dr Stokes' letter of 24 June 1999 raises several issues including: "... account does not appear to be taken of the whole-person. For example a lumbosacral spine injury affecting a person of high intellect and with high level of functioning and adaptation would be less of an impairment than such an injury affecting the person with an intellectual deficit, and low level of adaptability ... The AMA guidelines are clear and provide an objective test of "impairment" which is defined in the glossary of the guidelines as follows: "Impairment is the loss, loss of use, or derangement of any body part, system or function". The subjective effect of the impairment on the individual, due to their intellectual ability, may affect the level of their disability but is not relevant to the assessment of impairment under the Act. Had Dr O'connor taken this into account in the assessment, the assessment would have been invalid. Both sections 54(1) and 54A(1) require an assessment of "whole-person impairment". Dr O'connor expressly says the "percentage impairment of the whole person [is] 5%". Therefore, account has been taken of the whole person in accordance with the criteria set out in the AMA Guides. Dr Stokes also stated: "... medical guides are in general supposed to help provide information and assist in making decisions, not be prescriptive and inflexible...". As noted in paragraph 4.2 above, the respondent is bound by law to obtain an assessment made in accordance with the AMA Guidelines (Regulation 3 of the Regulations). This is prescriptive and there is no power to deviate from the guidelines or to exercise discretion in the implementation of the guidelines. Dr Stokes stated: "... there could also be a debate as to whether there is a degree of radiculopathy in view of the MRI findings." Category II of the AMA Guidelines refers to minor impairment. Category Ill refers to Radiculopathy. The description and verification of Radiculopathy is set out at page 3/102 of the AMA Guidelines as follows: "The patient has significant signs of radiculopathy, such as relevant reflex(es), or measured unilateral atrophy of greater than 2cm above or below the knee, compared to measurements on the contralateral side of the same location. The impairment may be verified by electrodiagnostic findings..." 6 It is clear from the above that a finding of Radiculopathy must be based on clinical findings of signs of radiculopathy upon examination. This may be verified by electrodiagnostic findings. However, electrodiagnostic indications are not sufficient to meet the criteria as these may not in fact result in the relevant clinical symptoms in the patient. Dr O'connor has addressed this issue in his report and has stated "there are no convincing signs today of radiculopathy". This is clear clinical evidence that the appellant does not come within Category III of the AMA Guidelines. Dr Stokes' observations that there could be a "debate" as to whether there is a degree of radiculopathy based on the MRI scan is not the relevant test to be applied under the AMA Guidelines. The medical evidence therefore supports the assessment of the appellant's whole- person impairment at 5%. Once the respondent had undertaken the appropriate assessment in accordance with the Act and regulations, the respondent was bound by statute to advise the appellant that he was not entitled to an independence allowance. The appellant's mother, quite understandably, expressed concern that an amount of about $11.00 per week (apparently) had been taken away from her son, the appellant, yet he is unable to work and, she said, his pills cost more than $11.00 per week and, indeed, cost about $35.00 per week. She felt that he was not being looked after and that they are people who have never broken the law and just need a little help from the State. She feels that the current assessment situation for this allowance is unreasonable and tough. She handed over a medical report dated 18 November 1999 from Mr D Lyon, an orthopaedic surgeon of Whangarei. Mr Lyon details the appellant's situation and concludes with the following paragraph: "Mr Steele gives a history from his General Practitioner records of significant back problems prior to his injury in 1993. However, accepting that his injury in 1993 was a significant contributor to his current disability and looking at his impairment alone, the diagnosis related estimate model (DRE) would place Mr Steele in the lumbosacral category II level, that is, minor impairment 5% However, using the whole person impairment chart in 3/113 of the American Medical Association Guides, Mr Steele could be placed in Section 2c, that is, unoperated on, stable, with medically documented injury, pain and rigidity associated with moderate to severe degenerative changes on structural tests; including unoperated on herniated nucleus pulposis with or without radiculopathy giving him an impairment of 7%. In my opinion using the range of motion model his impairment would be at a similar level, that is, 7%." With regard to the report of Mr Lyon, Ms Scott emphasised its reference to there being some degenerative changes at the upper lumbar vertebra and to Mr Lyon being unable to determine whether they were longstanding degeneration or secondary to the injury. Naturally, Ms Scott focused on the fact that, in any case, Mr Lyon was only able to assess a whole-person impairment, under the new assessment regime - i.e. the AMA Guides, at 7% which is, of course, below the 10% legislative threshold. 7 For the reasons set out above I have no alternative but to confirm the decision of the Review Officer. Accordingly this appeal fails and is hereby dismissed. Judge P F Barber District Court Judge WELLINGTON DCA167-99.do