Anderson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. 286 199 IN THE MATTER of the Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN LEONIE ANDERSON DCA 174/99 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 13th day of September 1999 APPEARANCES: The appellant in person Mr N Dentice, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant was correctly assessed as having no entitlement to an independence allowance pursuant to section 54 of the Act. The facts which are relevant to this appeal are as follows. The appellant is now aged 60 and is a trained masseuse. In May 1990 she suffered an injury to her back in a fall 2 whilst going up some stairs. She developed low back pain with left buttock pain and some discomfort radiating down into her left thigh. She received treatment by physiotherapy and analgesics but her pain continued and she was referred by her GP to Bruce Hodgson, Orthopaedic Surgeon, in 1992. Mr Hodgson arranged for a bone scan to be carried out and this revealed increased uptake over the posterior aspects of L5 on the left side in the region of the pars interarticularis. A CT scan revealed sclerosis in the pars of LS bilaterally as well as degenerative changes in the L5/S1 facet joints on the left side. He also concluded that she had a stress fracture and for that she was placed in a plaster jacket. She remained in that plaster jacket for three months and following removal of the plaster there was an improvement in her back pain but she did continue to endure ongoing back pain. In a subsequent examination by Mr Hodgson in March 1994 he noted that a further CT scan revealed that the stressed fracture had united but that she continued to suffer back pain some of which he considered arose from the degenerative changes at the L5/S1 facet joints posteriorally. In 1998 the appellant sought an independence allowance and for that purpose she was referred to Dr Alastair McDonald for assessment, Dr McDonald being a duly appointed assessor under the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessments and Rates of Payment) Regulations 1997. Mr McDonald examined the appellant on 21 September 1998 and for the purposes of the assessment he had copies of all relevant medical reports on the appellant, including the reports of Mr Hodgson, Mr John Caulder, Orthopaedic Surgeon, and Mr Howie, Spinal Surgeon. In his assessment report Dr McDonald identified the injury as being that of low back pain and in the course of his examination the appellant described a constant pain in her left buttock at a low level which increased with activity, she could stand and sit 3 comfortably for only short periods and she had paraesthesize affecting both heels and soles of her feet. Dr Mcdonald then noted his examination findings, including the fact that she could flex to her ankle, that there was minimal lumbar tenderness. He further noted that the hip range of movement was minimally restricted and that there was no clear objectively verifiable signs of neurological dysfunction of the lower limbs. Dr McDonald then referred to the AMA Guides to the Evaluation of Whole Person Impairment (4th ed.) and he found that the appropriate reference was 3/110 T72 DRE Impairment Cat. II - 5% impairment of WP. Thus Dr Mcdonald's assessment of the appellant's whole person impairment by reference to the AMA Guides was 5% and on the strength of that assessment the respondent advised the appellant that she was not entitled to an independence allowance as her whole person impairment was less than the 10% minimum which the Act required for such entitlement. The appellant sought a review of that decision and at the review hearing the appellant did not seek to adduce any independent medical evidence which would cast doubt on the assessment of Dr Mcdonald, but she queried the format of the assessment, particularly as it related to her pain and the limitations which her injury had on normal living. It was noted by the Review Officer that the appellant had received a lump sum payment of the maximum sum for the loss of amenities and the capacity for enjoying life and had also received a 10% permanent disability award under section 78 of the 1982 Act. The Review Officer found that the assessment had been carried out in accordance with the Act, Regulations and the AMA Guides and confirmed the decision that she was not eligible for an independence allowance. 4 For the purposes of the appeal to this Court from that decision no expert evidence was adduced by the appellant but the respondent did produce a report from Dr Kevin Morris who is National Manager Medical Services of the respondent and who was the principal architect of the introduction of the AMA Guides and for the appointment and training of assessors. Dr Morris reviewed the file and Dr Mcdonald's assessment and it was his opinion that the assessment carried out gave an accurate whole person impairment rating for the appellant. Submissions It was the appellant's principal submission that the assessed 5% whole person impairment failed to reflect the extent of her condition, particularly the pain aspect and the effect that had on her daily life. The appellant further submitted that the particular category of the Guides that Dr Mcdonald applied was not the correct category for her particular injury and that this category ignored her mechanical dysfunction. It was her submission that the correct category was DRE (diagnosis-related estimate) 175 - whole person impairment due to specific spine disorder. She contended that spondyloysis, as diagnosed by Mr Hodgson, was a specific spine disorder and therefore that category T75 was the correct table for her injury. Mr Dentice, counsel for the respondent, submitted that in his assessments Dr McDonald has assessed all facets of the appellant's condition and that there is no evidence upon which the Court could act which casts doubt on the validity of his assessment and his use of the Guides. Decision The thrust of the appellant's submission is that Dr McDonald has not applied the AMA Guides correctly in that he has identified the appellant's condition as coming under Table 72-DRE Lumbo-sacral Spine Impairment Categories, and in his judgment 5 the DRE impairment category is Category II, being minor impairment: clinical signs of lumbar injury are present without radiculopathy or loss of motion segment integrity. It is for that diagnosis that the Guides provide a 5% whole person impairment . The appellant submits that the assessor should have used Table 75 - Whole-person Impairment Percents due to Specific Spine Disorders. She then identifies the specific spine disorders as being fractures of L5 and S1 and in respect of which the combined values chart should be used to determine the whole person impairment. In that regard the appellant identifies a Category II intervertebral disc or other soft tissue lesion of her lumbar spine and that Category III - spondyloysis not operated on, each having a percentage of 7% and which on the combined values chart gives a whole person impairment of 14%. Those submissions were put to Dr Morris and it was his advice that Dr Mcdonald had correctly applied the Guides. It is noted that the appellant has not submitted any expert evidence which could counter the evidence of both Dr McDonald and Dr Morris on the correct application of the Guides as they have asserted. This Court has stated on many occasions that on the question of assessments, which is a matter wholly medical, this Court is not competent itself to examine the matter and form its own opinion on whether or not the Guides have been correctly applied, such is the province of duly qualified medical practitioners who have knowledge of the workings of the Guides and whose opinion can be said to carry weight. The appellant herself does not purport to be an expert and she is simply proffering her opinion based on her assessment and interpretation of the Guides. In her written submissions the appellant has identified a considerable number of passages from the Guides which she says are relevant and which make statements on various aspects of the rules for evaluations. In particular she identified the need to 6 take into account the activities of the person and it is noted that on the subject of pain the Guides advise: in general, the impairment percent 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. In his assessment Dr McDonald has taken full account of the appellant's pain and also of the limitations on her daily living that that pain causes. It is his diagnosis-related estimate that her condition falls into Category II, that is clinical signs of a lumbar injury without radiculopathy. It is to be noted that Category III requires the presence of radiculopathys to a layman it would seem that the appellant could not qualify for a more serious impairment category. In an appeal of this nature the onus of proof is upon the appellant to establish on the balance of probabilities that the assessment so carried out was in some way flawed or incorrect. The burden which this raises for an appellant is one that requires credible expert evidence directed at the specific aspects of the assessment which are said to be incorrect. As noted, the Court has had no such evidence upon which it could act and it has the evidence of two persons duly qualified and cognizant with the Guides who assert that the assessment is correct and has been conducted in accordance with the Guides. In those circumstances this appeal cannot succeed and the decision of the respondent that the appellant has no entitlement to an independence allowance is confirmed. This appeal is dismissed DATED at WELLINGTON this 12 day of October 1999 withe M J Beattie District Court Judge 174.99.Anderson.doc