Holmes v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN WELLINGTON REGISTRY Decision No. 11 /2009 Al 109/08 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN KEVIN B HOLMES Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at DUNEDIN on 1 April 2009 DATE OF THIS DECISION 22 June 2009 COUNSEL Ms T Geraghty for appellant Mr I Hunt for ACC DECISION OF JUDGE P F BARBER The Issue [1] The issue is the correctness of ACC's 29 June 2007 decision declining the appellant's application for an independence allowance. [2] In context, the issue is whether ACC correctly applied the relevant provisions of the Act, in particular s.377 (set out below). Did ACC deduct the percentage impairment determined under s.78 of the Accident Compensation Act 1982 from the percentage of a combined whole-person impairment assessment, in accordance with s.377(3)(a), on the basis of whole-person impairment for "the combined effect of all injuries suffered before 1 July 1999 for which [the appellant] has cover"? [3] The further context is that, pursuant to s.78 of the 1982 Act, the appellant received an award of 20% loss of bodily function and commensurate lump sum compensation; and that an independence assessment conducted by Dr A Walker (on 21 March 2007) disclosed a whole-person impairment rating of 16%. 2 [4] A particular issue is whether the impairment assessment report, upon which ACC based its decision, was materially flawed in that it failed to make a separate rating for physical injury. Background [5] The appellant has cover for leptospirosis with meningitis, joint involvement and neurological sequelae, which he contracted in February 1985 while handling meat during the course of his employment as a meat inspector. He received lump sum compensation under ss.78 and 79 of the 1982 Act in respect of this work-related infection. The s.78 award was based on a loss or impairment of bodily function of 20%. He received the maximum compensation available under s.79 for non- economic loss. 6] On 19 June 1985 Dr J J Reid wrote to the Ministry of Agriculture & Fisheries advising that the appellant suffered from complications from leptospirosis, including "joint involvement, eye and also meningeal". Dr Reid wrote to ACC advising that the appellant "suffered meningeal, ocular, joint and peripheral nerve complications as a result of his disease" [7] On 20 May 1987 Mr D A Peart, Ophthalmologist, wrote to ACC advising that the appellant continued to suffer from photophobia, the onset of which followed the onset of uveitis caused by the leptospirosis. [8] On 30 September 1988 Dr T W McKergow wrote to ACC advising: "... [Mr Holmes] suffered a number of complications of this acute infection, the sequelae of which has left him with a chronic pain syndrome involving the left shoulder, left arm and the right side of the neck and upper back. He also has a degree of photophobia, lacks energy, is easily fatigued, experiences poor sleep and is frequently irritable ..." 9] Early documentation of the appellant's symptoms refers to him suffering from headaches, severe persisting pains on various parts of his body, trouble with his vision (including photophobia and an inability to drive at night), chronic fatigue, radical loss of fitness and difficulty walking. [10] At about this time many of the medical professionals professed a degree of scepticism concerning the ongoing nature of the appellant's symptoms. Their opinions were usually prefaced with a general inability to understand the aetiology of the symptoms. However, the general consensus appears to be that there was a strong cause and effect relationship from his covered condition, and that his symptoms were genuine. [11] Over the years there have been a number of medical reports and they include general practitioner, neurological, medical, ophthalmological, neuropsychiatric, rheumatological, psychiatric, and orthopaedic opinions. [12] There was an ACC decision issued on 12 February 1988, following a reconsideration of a claim to lump sum compensation under s.79 of the 1982 Act, to increase an earlier award of $2,000.00 so as to make a total award of $10,000.00, the maximum available. 3 [13] In a 22 September 1989 letter, ACC advised the appellant that no award had been made under s.78 of the 1982 Act: "because medical information on file indicates that neither loss nor impairment is evident, at this stage. Your injury is covered under the Accident Compensation Act 1982 but it appears medical specialists are of the opinion that no neurological disability is evident at the moment which can be attributed to leptospiral meningitis". [14] However, a letter of 6 November 1990 provided to ACC by Dr J J Reid, a general practitioner, advised as fo "... I have given due consideration to [the appellant's] subjective disability following his contracting occupational deptospirosis in 1985. I will not reiterate the history and sequel of events that have followed - they are all well known to the ACC, and are already well documented. I have also reviewed the reports of the various doctors who have been consulted over the last 5 years. I am of the opinion that, putting aside medical aetiology and the lack of physical signs, his perceived symptoms are genuine and are causing genuine disability. Given the current set of circumstances, some 5 years down the track, I am also inclined to the opinion that these symptoms are of a permanent nature. Under these circumstances, it is extremely difficult to place a permanent percentage impairment on these disabilities, but I believe that a figure of 20% would be realistic, under s. 119, with a lesser impairment of 10% under s. 120". (Emphasis added) [15] In November 1990, a decision to award an entitlement of 20% under s.78 was made. As the Reviewer (Ms K Stringlemon) noted in her decision of 11 March 2008 (referred to below), it is debatable whether this award was appropriate in the absence of any finding of permanent loss or impairment of bodily function, as required by s.78, and an award under s.79 would have been more appropriate. [16] From the numerous medical reports sought and obtained, it is evident that the task of actually identifying a connection between the appellant's symptoms, and his initial contraction of leptospirosis was extremely difficult, and very unclear. Other confounding factors, identified (for example) in a letter of 14 October 1987 from Dr Robinson to Dr Ellis-Pegler of the Auckland Hospital Infectious Diseases Unit, noted that while the appellant had undoubtedly developed leptospiral meningitis, he also appeared to suffer from another non-accident related condition of haemochromatosis. The significant number of psychiatric reports on file also reflected a general consensus that there was a very significant organic component to the appellant's condition. [17] An extract from one of the reports (Dr Ellis-Pegler, Infectious Disease Physician, to Professor Richard Robinson dated 10 November 1987) gives an indication of the difficulties the various practitioners and specialists found when assessing the appellant: 'On examination I could find no abnormality at all, in particular no adanopathy and his liver was low and I did not think clinically enlarged. Examination of his central nervous system was normal, although he was subjected altered light touch sensation down the left side of his body. 4 I ordered no investigations on this man as he has been extensively investigated in the past and I can think of none which would contribute usefully to diagnosis or management. I told him that there was no way I could accept his general state of health now in November 1987 as being in any way related to acute leptospirosis in February 1985. I do not know of such a syndrome being associated with such an infection and that is the scientifically appropriate response to the ACC request. Exactly what his symptoms are due to is unknown to me, except that I can only say that all of us see individuals with this sort of symptomatology from time to time. It gets various sorts of names and I am not sure that they help us. I also told him that at another level of my relationship with him, in terms of a patient seeing me as a physician, I would not argue strongly against the notion that his present abnormal illness behaviour is not related to that infection in 1985. Acting in that role, the only thing that matters is to get this man back to work and clear of this particular medico legal discomfort. I believe he understands that medical dilemma that to some extent we are all in". (emphasis added) [18] A 9 May 1988 report to ACC by Dr Martin Pollock, Neurologist, stated: "This man has no_neurological disability which could be attributable to_his leptospiral meningitis. His sensory impairment has a non_anatomical distribution, is unassociated with sensory symptoms and does not tie in with his excellent dexterity and movement. His lack of energy, poor sleep and his poor mood in the mornings and decreased sexual function would all be compatible with_depression. I have encouraged him to continue to see, if at all possible, the psychiatrist Dr Mckergow. In summary therefore I cannot ascribe any of his present neurological difficulties to a work related infection." (emphasis added) [19] Nonetheless, while there was no evidence of physical disability, there was sufficient to indicate what now would probably be described as a chronic pain syndrome. [20] On 19 December 2006, the appellant applied for an independence allowance. He claimed that he was suffering a mental injury and was referred by ACC to Or Bruce Spittle, Psychiatrist, for a psychiatric opinion. In January 2007, the appellant was diagnosed by Dr Spittle as having an adjustment disorder. Dr Spittle stated that this condition was a consequence of the leptospirosis for which the appellant had cover. [21] On 2 January 2007, ACC issued a decision letter accepting cover for mental injury as a result of a physical injury. [22] ACC then referred the appellant to Dr Alan Walker for an impairment assessment. This assessment was conducted on 21 March 2007. In a comprehensive assessment report of 24 March 2007, Dr Walker set out his finding. His conclusion was that the appellant had a mental impairment of 16%, and that this impairment was: "Within the mild category (independence not fully effective or sustainable in some areas of function)". 5 (23] Dr Walker's general screening examination revealed no abnormalities in the applicant's sight, smell, or taste, and showed that his spine and all of his limbs had a full range of movement, there was no wasting, and all muscle groups had grade 5/5 power. Dr Walker concluded: "There doesn't appear to be any grounds for a separate impairment rating in terms of the leptospirosis diagnosis (there doesn't appear to be any physical impairment currently attributable to the leptospirosis, other than in relationship to the mental injury)". [24] On 29 June 2007, ACC issued a decision letter which advised the appellant of the results of Dr Walker's assessment and read in part: "You have previously received lump sum compensation for injuries before 1 July 1992, and this payment must be taken into account when ACC calculates any new amount payable to you. This calculation is as follows. Assessed degree of whole person impairment 16% Previous lump sum compensation impairment 20% Whole person impairment for independence allowance -4% Your net percentage of impairment is below the 10% level that is the minimum required for payment. As a result, you do not qualify for payment of an independence allowance and your application is declined." [25] The appellant applied for a Review of this decision of 29 June 2007. The WPI Assessment [26] As indicated above, Dr Alan Walker, a duly approved assessor, completed a whole person impairment assessment on 24 March 2007. The claims he noted were of leptospirosis and mental injury (adjustment disorder). His report records that he spent 75 minutes with the appellant on 21 March 2007, and that he received and reviewed a comprehensive series of reports, including a report of Dr Spittle dated 11 January 2007, and numerous reports from Drs Reid, Mckergow, Ellis-Pegler, Mcleod and others. On page 3 of Dr Walker's report, he set out the following advice to the appellant as to the effects of the injury: "What are the ongoing effects of this mental injury? He has had severe chronic pain since the injury. He is able to do most things physically but he subsequently gets an increase in pain. He copes with this pain by using distraction. For example if he is feeling pain he will go and saw up some wood for firewood. He finds this helpful even though he has more pain after he has stopped doing the activity. This pain tends to come in cycles. He is not really sure what a mental injury is. He knows that his life has been changed in terms of his social functioning and in relationship to his family. He now feels that he is a loner and cut off from society. He has learnt to live with this position. Before Christmas he had a very bad flare up of his pain. He has these flare ups of pain from time to time. He describes how his left forearm is affected by the feeling that he likens to static electricity. Every 7 seconds he gets a burst of pain. Usually when these episodes happen the pain goes on for 6 a total of 24 to 36 hours but in November last year this went on for 11 days. Each shock that he receives is of variable severity. When the jerks are particularly bad they can lift him off his seat or off his mattress. This really gets to him. However he won't take pain killers. When he was in hospital with meningitis he was given some pills under the tongue, he thinks they were yellow, he feels they produced a "trip". After that he swore off taking pain killers. He finds he can cope with things by distraction. The episode in November however was particularly bad he felt like he was hitting his head against a brick wall. These episodes come in cycles about every 8 weeks and last for 24 to 36 hours. The medication he is taking is doxepin 100 mg at night which was started by Dr Mckergow. He is not sure that helps but he knows he can't go on without ... When he had leptospirosis his vision was effected which he describes as being like a sheet over his eyes. He was seen by his doctor shortly after discharge from hospital and referred then to the eye clinic where he was treated by Professor Molteno. He had an injection of steroid around the eye. This improved the situation but he feels his eyes are still not 100% although does have 20/20 vision. He prefers to wear tinted glasses which adjust to the amount of light present." [27] A detailed history is provided of the appellant's then current circumstances, his daily living activities, his social functioning personal history, medical history including family medical history, mental status and consideration of his ability to concentrate persist and pace himself, and adaptation/decompensation. Page 8 of Dr Walker's report provides a full account of the general screening examination undertaken, and s comprehensive. Dr Walker's report then deals with the question of mental injury impairment, working through different categories including activities of daily living (in espect of which 15% is the figure applied being at the lower end of the range 10- 35%); social functioning where again 15% applies, also being within the lower end of the 10-35% range, similarly with concentration persistence and pace. In respect of adaptation and decompensation, where the range is also, in terms of class 2 between 10-35%, a greater degree of impairment is noted and 20% is applied. [28] In respect of overall impairment, Dr Walker said: "An overall rating within the mild category (independence not fully effected or sustainable in some areas of function) appears appropriate and 16% is applied. There doesn't appear to be any grounds for a separate impairment rating in terms of the leptospirosis diagnosis (there doesn't appear to be any physical impairment currently attributable to the leptospirosis) other than in relationship to the mental injury". [29] Dr Walker did not find any grounds for apportionment, so that his final whole person impairment rating assessment was 16%. This rating was peer-reviewed and endorsed by Dr Hancock, on 25 August 2007. After deduction of the earlier lump sum award, a final award came to -4% and, obviously in that circumstance, no independence allowance was payable. The Review [30] The issue whether the appellant was entitled to an independence allowance was heard on review by Ms K Stringlemon on 28 February 2008. In a comprehensive and clear decision of 11 March 2008, she set out her conclusions as follows:- "Conclusions [31] Dr Walker found no measurable impairment currently attributable to the leptospirosis infection, which is the physical injury for which the applicant has cover. [32] Dr Spittle's conclusions do not show that Dr Walker's conclusion was unsustainable. Dr Spittle concluded that the applicant's emotional and behavioural symptoms had developed in response to the identifiable stressor of having leptospirosis. He stated that the leptospirosis was the cause of the applicant's mental condition, but there is nothing in Dr Spittle's report on which to base a finding that the applicant has a physical impairment, as distinct from the mental impairment. [33] Mr Holmes has received a maximum award of compensation under the 1982 Act in respect of the disabilities which cause him loss of enjoyment of life and pain and suffering. Additionally, and probably incorrectly, he received an award under s. 78 of that Act for impairment and loss of bodily function, although this award was made in respect of subjective disabilities, as discussed by Dr Reid. In the circumstances ACC was correct to deduct the s.78 impairment from the whole person impairment assessed by Dr Walker. [34] The medical evidence does not support the submissions made on behalf of the applicant that there should be an impairment rating for physical injury in addition to the impairment caused by his mental injury. There is no evidence that the applicant currently has a physical impairment which should have been included in the whole person impairment assessment. [35] ACC has correctly applied the requirements of s.377, by deducting the previously assessed 20% loss of bodily function from Dr Walker's whole person impairment assessment of 16%. There are no grounds on which to find that the impairment of 20% assessed in 1990 should stand and that there should be an additional rating for the mental injury. (36] For these reasons, the application is dismissed." Relevant Law [37] Section 377 of the 2001 Act provides: "377 Independence allowance for personal injury suffered before 1 July 1999 (1) On the commencement of this section, sections 441 and 442 of the Accident Insurance Act 1998 cease to have effect (2) A person who suffered personal injury before 1 July 1999 is entitled to be 8 assessed for an independence allowance under Part 4 of Schedule 1 of the Accident Insurance Act 1998, irrespective of when the claim for cover for the personal injury was or is lodged, subject to the modifications set out in subsection (3). (3) The modifications are that- (a) any assessment or reassessment must be done on the basis of whole-person impairment for the combined effect of all injuries suffered before 1 July 1999 for which the person has cover; and (b) the percentage of impairment for which any lump sum compensation was received under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982, or both, must be deducted from the percentage of combined whole-person impairment assessed in accordance with paragraph (a); and (c) the independence allowance based on the first assessment is payable as from, - () in the case of a person who has received lump sum compensation under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982, or both, the date of the application for an independence allowance; or (ii) in any other case, the later of the date on which the claim for cover was lodged or 1 July 1992." [38] Because it is claimed that the appellant has suffered mental injury due to physical injuries suffered by him, the date of that mental injury is the date on which the physical injuries were suffered (see s.36(2) of the 2001 Act). [39] Section 377 makes it clear that the percentage of impairment, for which lump sum compensation has previously been received by the appellant, is to be deducted from the percentage of combined whole person impairment assessed in terms of s.377(3)(a). [40] In terms of challenges to independence allowances, reference is made to Bymes (73/04) (so considered in Downey (41/07) in which it was noted: "The legal principle that has evolved in decisions relating to independence allowances is that, in the absence of clear and cogent evidence that the assessment was wrong, the assessment of the duly appointed assessor must be accepted". [41] in EF (71/06) an appeal was dismissed because there was no alternative medical assessment provided. [42] There is no focus in this appeal on a challenge to Dr Walker's assessment of impairment within a range. However, I note that where an assessor provides an assessment of impairment (i.e. an opinion) based on the application of the AMA Guides, but fixes a percentage that is within a range, if it is claimed to be flawed then 9 clear and cogent evidence is required to overturn the percentage impairment given, (Rollo, 83/2006). Submissions for the Appellant [43] Ms Geraghty accepted that the User Handbook to AMA 4 prevails over any other impairment assessment material. The ACC User Handbook now has legislative authority by r.4(3) of the Lump Sum and Independence Allowance Regulations 2002 which states that the handbook prevails if there is a conflict between it and the AMA Guides 4" edition (AMA4). [44] Ms Geraghty submits that Dr Walker's Impairment Assessment Report of 24 March 2007 is materially flawed as it makes no separate assessment for covered physical injuries in addition to the assessment of impairment from mental injury. She refers to Dr Walker's position, that "(there doesn't appear to be any physical impairment currently attributable to the leptospirosis) other than in relation to the mental injury" requiring acceptance that Mr Holmes! symptoms only impair him at a psychological level, or that impairment for physical injury is adequately addressed through a chapter 14 assessment; and submits that is clearly incorrect. It seems to me that Dr Walker has assessed for covered physical injuries. [45] Ms Geraghty notes that Dr Spittle's 25 January 2007 report confirmed that Mr Holmes continues to suffer from physical symptoms in relation to the covered injury of leptospirosis, namely, pain, visual disturbances and sensory changes. Dr Spittle is also clear that Mr Holmes' symptoms are causative of the mental disorder, rather than symptoms of any mental condition. At page 16 of his January 2007 report, Dr Spittle specifically states that Mr Holmes is not suffering from a DSM-IV pain disorder. At page 14 Dr Spittle identifies that the stressors causing adjustment disorder are pain, sensory changes and visual difficulties which have been present since February 1985. I take all that into account. [46] Ms Geraghty submits that as Mr Holmes' symptoms are both ongoing and causative of his mental injury, Dr Walker has erred in failing to rate them separately. She submits that, in order to see the flaw in Dr Walker's assessment, careful scrutiny of the User Handbook to AMA4 and the AMA4 is required in relation to Mr Holmes' ongoing symptoms. [47] She then Addresses Visual Disturbances. [48] In May 1987 Mr D A Peart advised that the visual disturbance which the appellant was suffering from was photophobia, the onset of which followed the uveitis caused by the leptospirosis. Ms Geraghty notes that page 55 of the User Handbook to AMA4 allows for otherwise unspecified ocular abnormalities to be considered where those abnormalities do not result in diminished visual acuity; and specifically notes that photophobia may be such an abnormality [49] She also notes that page 71 of the handbook provides a visual impairment worksheet. This worksheet states that an assessor may combine 5-10% impairment for an ocular abnormality or dysfunction which is not adequately reflected in the visual acuity, visual fields, or diplopia testing. Any rating must be justified within the assessor's report. The assessors are referred to page 209 paragraph 3 or the AMA4 for further guidance. Page 209 paragraph 3 of the AMA4 states: 10 'If an ocular or adnexal disturbance or deformity interferes with visual function and is not reflected in diminished visual acuity, decreased visual fields, or ocular motility with diplopia, the significance of the disturbance or deformity should be evaluated by the examining physician. In that situation, the physician may combine an additional 5% to 10% impairment with the impaired visual function of the involved eye. Abnormalities that might result in such impairments include media opacities, corneal or lens opacities, and abnormalities resulting in such symptoms as epiphora, photophobia, or metamorphopsia.' [50] Ms Geraghty noted that Dr Walker referred to Mr Holmes' history of uveitis at page 2 of his report; and, at page 3, of Dr Spittle's reference to visual difficulties being one of the stressors causing his adjustment disorder. At page 4 Dr Walker noted Mr Holmes' symptoms as: "When he had leptospirosis his vision was affected which he describes as being like a sheet over his eyes. He was seen by his doctor shortly after discharge from hospital and referred them to the eye clinic where he was treated by Professor Molteno. He had an injection of steroid around the eyes. This improved the situation but he feels his eyes are still not [one] hundred percent although [he] does have 20/20 vision. He prefers to wear tinted lenses which adjust to the amount of light present." [51] However, in his general screening examination of Mr Holmes (page 8 of his report), Dr Walker's only reference to visual disturbance is where he notes "VA=6/6, 6/6". VA is taken to mean visual acuity. [52] It is submitted for the appellant that Dr Walker's report disregards provisions within the handbook and the AMA4 specifically allowing for impairment assessment in relation to visual difficulties not reflected in diminished visual acuity; that although noting the symptoms of the photophobia within his report, Dr Walker's general screening examination does not mirror the assessment criteria found within the more thorough visual impairment worksheet provided at page 71 of the handbook, and consequently no rating for photophobia has been made; that any assessment failing to take into account covered injuries in the manner prescribed within the User Handbook to AMA4 must be considered materially flawed; and that Dr Walker's chapter 14 assessment, which considered activities of daily living, social functioning, concentration, persistence, and pace and adaptation/decompensation, does not address issues of impairment which may arise as a result of photophobia as these categories make no such consideration. [53] Ms Geraghty then addresses pain and sensory changes which first appear together in the handbook at page 19 where it is noted that the initial claimant interview should record pain such as thalamic pain, phantom limb pain, and causalgia. The assessor is also referred to page 140 of the AMA4 in relation to "sensory disturbances", which states: "While patients' descriptions of sensory disturbances may be fairly typical, the evidence gathered during the medical examination may be of only limited value. Thalamic pain, phantom limb sensations, causalgia and other disturbances of sensations may be of such_duration and severity as to be classified as impairments. Judgment on the part of the physician is needed in deciding 11 whether a sensory disturbance qualifies as a "permanent" impairment ..." [Emphasis added by Ms Geraghty] [54] On page 21 of the handbook, assessors are advised: "For sensory abnormality, refer to the relevant section in this document (Vision, etc)". On page 42 of the handbook assessors are advised: "Pain is not separately rateable, except where specifically noted in AMA4. (In general, the AMA4 percentage for the various organ systems already make allowance for accompanying pain)." The examples noted where pain is rateable include causalgia, cervical spine, chronic pain syndrome, peripheral nerve pain syndrome, phantom limb pain, thalamic pain, and trigeminal neuralgia. [55] Ms Geraghty submits that the above passages indicate that pain and sensory changes are not usually separately rateable as this would lead to impairment being counted twice; once for impairment to a specific body site or organ system, and then again if a separate pain assessment were to occur; but puts it that leptospirosis is not an injury to a specific body site or organ system, but a disease, the aetiology of which is not entirely understood; and the handbook makes no mention of how to assess leptospirosis. She submits that, in situations where the handbook and AMA4 are silent on how to rate a disease, the approach identified at page 10 of the handbook should be followed. Page 10 of the handbook advises: "In rare circumstances; AMA4 may not quote an impairment rating. If so, determine the rating by comparison with a similar impairment of a similar body site. Also read AMA4 page 9 paragraph 2 of right hand side. Note: If you establish a rating by analogy, justify your chosen approach in your report." [56] AMA4 page 9 paragraph 2 of the right hand side advises: "Pain In general, the impairment percents shown in the chapters that consider the various organ systems make allowance for the pain that may accompany the impairing conditions. Chronic pain, also called the chronic pain syndrome, is evaluated as described in the chapter on pain (p.303)." [57] Those are thoughtful submissions. [58] Ms Geraghty notes that if an assessor then refers back to page 42 of the handbook, the assessor would note that in order for chronic pain syndrome to be taken into account, the condition must be diagnosed as a mental injury by a psychiatrist against the criteria provided in DSM IV. [59] Mrs Geraghty refers to the 1998 and 2001 Acts defining mental injury as "a clinically significant behavioural, cognitive or psychological dysfunction". The handbook states that ACC's policy is to confirm by psychiatric assessment that the claimant is suffering a mental injury as diagnosable by DSM IV (Chapter 14). As previously noted, Dr Spittle specifically stated that the appellant is not suffering from a pain disorder that meets the DSM IV criteria. Ms Geraghty submits that as the appellant does not suffer from a specific injury to a specific body site, or damage to a specific organ system, or even a specific pain disorder assessable as a mental injury, 12 his situation is one of those rare situations where page 10 of the AMA4 will apply and comparison with a similar impairment must be made i.e. by analogy (to the peripheral nerve systems). [60] Throughout the history of the appellant's claims, his symptoms have been documented with various descriptions indicating nerve involvement, such as pain with peripheral nerve complications; severe persisting pain, and pain as a result of neurological impairment. Assessment of peripheral nerve pain allows for pain ratings in relation to both the upper and lower extremities. The assessor is also referred to various pages of AMA4 (e.g. page 46), that which how to rate sensory deficits and pain, and tables (such as table 11 on page 48) specifically dealing with abnormal sensations and pain. [61] In light of this, Ms Geraghty submits that the closest match for assessment of 'similar impairment" within the handbook is that of impairment to the peripheral nervous system, as found at page 43, or, alternatively, the appellant should be entitled to have his pain separately rated. The rationale in the handbook stating pain is not usually separately rated is that "the AMA4 percentages for the various organ systems already make allowance for accompanying pain". Accordingly, she submitted it follows that if the condition being assessed does not allow for the rating of a specific body site or organ system, then a separate pain rating can be made. [62] Ms Geraghty then referred to chapter 14 of the AMA addressing "impairment due to mental disorders and considers behavioural impairment that my complicate any condition," and allowing for impairment to be assessed insofar as the disorder affects the claimant's activities of daily living; social functioning; concentration, persistence and pace and adaptation/decompensation. She submits that the Chapter 14 assessment completed by Or Walker could only deal with mental disorder and behavioural impairment as a result of the adjustment disorder Mr Holmes was diagnosed with; and that, as Dr Spittle was clear that Mr Holmes was not suffering from a pain disorder that met the criteria of a mental injury, a chapter 14 assessment was clearly not an appropriate method of dealing with impairment in relation to his pain and sensory changes. The assessment involved a general screening examination in which no reference to photophobia, pain or sensory changes were made, and no impairment ratings were attempted. She put it that actual impairment ratings were only attempted as part of the chapter 14 categories. [63] Ms Geraghty then addressed the deduction of previous lump sum. Pursuant to s.377 of the Act, lump sum payments for impairment resulting from injuries which occurred before 1 July 1992 are deducted from the independence allowance so that a person is not compensated twice for the ongoing impact of the same injury. Subsection (3)(a) requires that any assessment must be done on the basis of whole person impairment for the combined effects of all injuries suffered before 1 July 1999 for which the person has cover. [64] Ms Geraghty submits that subs.(3)(a) confers on the assessor a duty to ensure that a reasonable attempt is made to assess all injuries, physical and mental, in order to fairly calculate previous impairment that may have been the basis of a previous lump sum award; that the previous 20% lump sum award paid to the appellant was made in relation to the ongoing physical symptoms associated with leptospirosis; and that the award was not made in relation to any mental injury, and Dr J J Reid confirmed this in his letter of 4 November 2007: 13 "... My assessment of 6 November 1990, followed a protracted negotiation with ACC, and followed a large number of assessments by various doctors. My assessment at that time was related to Mr Holmes continuing symptoms and did not relate to his adjustment disorder, which did not become apparent until much later than 1990." [65] Ms Geraghty submits that Dr Walker's approach assesses only the adjustment disorder, without separately rating the photophobia, pain and sensory changes for which the initial lump sum award was made; and, as a result impairment in relation to the previous award has not been adequately assessed, and that Mr Holmes has ended up with final whole person impairment rating of -4%, despite the fact that, in addition to his physical symptoms, he also has a mental injury. She submits that Dr Walker's approach to the assessment is materially flawed and results in a manifestly unfair result; and does not show adequate consideration all of Mr Holmes' injuries. [66] She further submits that ACCC should be directed to obtain a new assessment which rates the appellant's physical injuries; and that the assessor must have regard to the criteria within the handbook and, specifically, a visual impairment worksheet (page 71 of the handbook) should be completed and an assessment of "similar impairment" for pain and sensory changes should be made. The latter as that found within the guidelines for impairment to the peripheral nervous system (page 43 of the handbook) Analysis [67] Despite the well-presented submissions of Ms Geraghty, I consider Mr Hunt's submissions for ACC to be clear and correct so that they form my reasons for decision below. [68] The appellant submits that Dr Walker's report and assessment is flawed and that ACC should be directed to obtain a new assessment rating of the appellant's physical injuries, having particular regard to the criteria within the AMA Handbook, and a visual impairment work sheet which ought to have been completed, together with an assessment of "similar impairment" for pain and sensory change such as that exhibited at page 43 of that Handbook. Ms Geraghty puts it that Dr Walker's approach is flawed because he failed to separately rate photophobia, and pain and sensory changes which were relevant to the original lump sum award; and that, therefore, impairment in relation to what was the subject of the previous award had not been adequately assessed; and this has resulted in the appellant being allocated a whole person impairment rating of -4%, despite him now having a mental injury as well as his physical symptoms. [69] It is submitted for ACC that Dr Walker's assessment has not been shown, by clear and cogent evidence, to be flawed in any material respect; nor has it been shown that the assessment failed to give adequate consideration to all relevant Injuries. I agree. It seems to me that Dr Walker appropriately and adequately dealt with issues such as optical impairment, pain or sensory changes, and had adequate regard to the impact of the adjustment disorder which Dr Spittle had identified the appellant as suffering from. [70] As Mr Hunt submits, the first difficulty faced by the appellant is that Dr Walker's report is entitled to hold sway unless his assessment was wrong; and no contrary clear and cogent evidence from any recognised medical expert has been adduced. 14 (refer Bymes and EF supra). For that reason alone, the appellant cannot discharge his onus of proof. [71] I agree that it may be evident on face value whether an assessment and report has been undertaken in accordance with the relevant handbook and guides. Given that an independence assessor's report requires judgments and assessments to be made, it will almost always be impossible for an appellant, in the absence of contradicting medical opinion from a recognised expert, to show that an assessment process carried out by a duly appointed and authorised assessor has been conducted contrary to the requirements of the handbook and guides, and to set it aside on the basis, essentially, of a submission alone. It seems to me that Or Walker's assessment was careful and thorough and based on his skill and experience. [72] With regard to Ms Geraghty's submission that Dr Walker's report is materially flawed "as it makes no separate assessment for covered physical injuries in addition to his assessment of impairment for mental injury"; Dr Walker stated in his report, that: "There doesn't appear to be any grounds for a separate impairment rating in terms of the leptospirosis diagnosis (there doesn't appear to be any physical impairment currently attributable to the leptospirosis) other than in relationship to the mental injury". In relation to that statement, it is submitted for the appellant that Or Walker's opinion: "Requires acceptance that Mr Holmes' symptoms only impair him at a psychological level, or that impairment for physical injury is adequately addressed through a chapter 14 assessment. It is submitted that this is clearly incorrect". [73] However, I agree with the Reviewer that this is not a submission which can be sustained. Dr Walker had a comprehensive set of earlier medical opinions available to him which he clearly reviewed (there are references to these reports throughout Dr Walker's report (Drs Mckergow, Caradoc Davies, Wright, Mr Jones, and Dr Spittle among others)). Further, within Dr Walker's report, in a section dealing with the ongoing effects of the mental injury, there is a detailed reference to pain suffered by the appellant, and the consequences of this. Also, the question of pain is referred to further at page 7 of Dr Walker's report under the heading of adaptation/decompensation; and, on page 8, a detailed screening examination and its results are set out. Over all areas, and set out in that report, all results were normal. It was on the basis of these findings that Dr Walker concluded that there was no measurable physical impairment which could be attributed to leptospirosis. [74] In support of the submissions for the appellant, reference is made to Dr Spittle's 25 January 2007 report. As a psychiatrist he was asked to "help determine whether Mr Holmes has a mental condition which is clinically significant and has been caused by the personal injury suffered on 6/02/1985". While Dr Spittle found, and addressed at pages 14 and 15 of his report, that the leptospirosis was a material and necessary cause of the mental condition of which he diagnosed the appellant as suffering from, his expertise is not that of Dr Walker in applying the handbook and guides. .In any event, Dr Walker had available to him Dr Spittle's report. Nor does Dr Spittle profess to be an expert in these areas 75] Submissions were made for the appellant about pain. There is reference to various passages in the handbook including that, generally, allowances for percentage impairment also include allowance for pain accompanying the impairing condition (AMA 4 page 9 para 2). However, it is then submitted that, in order for a 15 chronic pain syndrome to be taken into account, this must be diagnosed as a mental injury against the criteria provided in the DSM IV; and that, given the definitions in the 1998 and 2001 Acts of mental injury and ACC policy being "to confirm by psychiatric assessment that the claimant is suffering mental injury is diagnosable by DSM IV (Chapter 14)", the appellant's situation is one of those rarities where a comparison with similar impairments needs to be made because Dr Spittle had not diagnosed the appellant as suffering from a pain disorder meeting the DSM IV criteria [76] While Dr Spittle did not consider the appellant to suffer from a DSM IV pain disorder, he concluded: "It [is] more appropriate to describe his mental condition as an Adjustment Disorder, unspecified, chronic 309.9 in DSM IV, rather than as a Pain Syndrome". This condition was considered by Dr Spittle to be both stable and permanent. The reason Dr Spittle did not consider the appellant to suffer from a DSM IV pain disorder was that, for that diagnosis to be made, "psychological factors" need to be shown to have had an important role in the onset, severity, exacerbating or maintenance of the pain; and in Dr Spittle's opinion: "The onset of the pain experienced by Mr Holmes was .related to the leptospiral infection rather than psychological factors. I did not find evidence that psychological factors had an important role in the severity, exacerbation, or maintenance of the pain" [77] As Mr Hunt put it, such psychological causes are what other specialist expertise, and an assessor such as Dr Walker, would be concerned to look out for but, as noted above, no evidence calling into question Dr Walker's assessment has been adduced. I am therefore left with a rather theoretical submission for the appellant, as against a proper assessment for ACC which does not show that the appellant continues to suffer physical impairment as the result of a covered injury. He clearly suffers a mental impairment. That outcome is consistent with other medical evidence on file [78] The appellant's submissions also note: "Dr Spittle was clear that Mr Holmes was not suffering from a pain disorder that met the criteria of a mental injury" and therefore a Chapter 14 assessment was "clearly not an appropriate method of dealing with impairment in relation to his pain and sensory changes". I disagree. As Mr Hunt put it, an adjustment disorder as diagnosed by Dr Spittle is a recognised mental condition meeting the definition of mental injury. It follows that the approach taken by Dr Walker was perfectly appropriate in order to deal with the nature of the impairment the appellant had. It cannot be said that he failed to take into account the issue of pain. [79] There is also the Issue of Deduction of Previous Lump Sum. [80] Reference is made for the appellant to Dr J J Reid's letter of 4 November 2007, in which he confirmed that his assessment 17 years previously (in November 1990) related to the appellant's continuing symptoms, and not to his adjustment disorder, which did not become apparent until much later than 1990. [81] None of that is in issue, but it does not lead to the conclusion that there is something wrong in the way Dr Walker's assessment, and the calculations arising from it, have been undertaken. It is not in doubt that the appellant has a mental injury; this has been accepted by ACC. Nor is it in doubt that this impairment, as assessed by Dr Walker, leads to a justified finding of whole person impairment. However, it seems to me the fact that the appellant was assessed with final whole 16 person impairment rating of -4% is simply a consequence of the correct operation of the Act and the fact that, previously, the appellant has received lump sum compensation under s.78 (see Fenemor (2008); NZCA, 241, 17 July 2008; and White (38/09)). Dr Reid's 4 November 2007 report supports the correctness of this. He indicates that his earlier report was relied upon to sustain the 20% award under s.78 without any reference to mental injury. [82] The award considered appropriate by Dr Walker was, therefore, primarily related to the question of impairment as a result of mental injury, and with a rating of 6% reached in the absence of evidence of physical impairment. [83] There is no doubt that the appellant has a mental injury, but application of s.377 is obligatory. If it were possible to show that Dr Walker had failed in his obligation, pursuant to s.377(3)(a) of the 2001 Act, to assess the appellant's whole person impairment for the combined effects of all his injuries, or to fail to properly assess and report on the extent of physical impairment simply on the basis that that task had already been completed by virtue of some earlier assessment, the appellant would have a valid argument. However, there is no evidence to show that by virtue of a flaw in his application of the handbook and guides, or in some other way, Dr Walker's assessment was flawed. . As already indicated, it seems a careful and thorough assessment to me. The overall evidence does not warrant my requiring a new assessment at ACC's expense. I feel that the pain and mental health issues have been fully assessed in terms of the appellant's physical injuries. Conclusion [84] For the above reasons this appeal is dismissed. Judge P F Barber District Court Judge WELLINGTON Al 109-08.doc(aw)