Jamieson v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 29/2003 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN LORRAINE LUCY JAMIESON of Tauranga Appellant (Appeal No. AI 139/99) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M J Beattie delivered on 14 October 2002 under No. 282/2002. [2] The issue before the Court was whether the respondent was correct in its decision of 14 May 1999 that the appellant’s entitlement to an independence allowance should be based on a whole person impairment of 25%. [3] The evidence before the Court included: [a] An assessment made by the appointed medical assessor, Dr Bernard, on 4 March 1999 in which he concluded the whole person impairment at 50%. [b] A peer review by Dr Shoemack on 4 April 1999 in which he concluded that Dr Bernard had, in part, incorrectly applied the AMA Guides. [c] An assessment dated 12 May 1999 by Dr Bernard, in which he took into account the issues raised by Dr Shoemack, and reduced the assessment to 25%. [d] A peer review by Mr Fong directed by the respondent following submissions from the appellant’s Solicitor. Mr Fong assessed the impairment at 25% but for reasons slightly different from Dr Bernard. 2 [e] A report provided by the appellant from Mr Partridge dated 22 November 2000 in which he assessed the impairment at 50%, although he did not refer to the AMA Guides. [f] A report from Mr Partridge dated 11 April 2001 in which he concluded that by reference to the AMA Guides the assessment was between 50-55%. [g] A report from the respondent’s Corporate Medical Adviser, Dr Morris, on 9 August 2001 in which he considered the methodology applied by Mr Fong was more consistent with the clinical findings. [h] An affidavit from Mr Partridge dated 20 May 2002 submitted to the Court in support of the appeal in which he concluded that the impairment was at least 50%. [4] Judge Beattie decided that he considered Mr Fong’s assessment should be preferred. [5] Applications for leave to appeal to the High Court are governed by s.165(1) of the Accident Insurance Act 1998 which provides: “165 Appeal to High Court on question of law (1) A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.” [6] The appellant submits that “it is unfair to uphold a decision which does not meet the legislation and policy required for reassessment for Independence Allowance entitlement.” She submits further that the decision was based “on reports of the assessor [which] were flawed.” This submission is based on Judge Beattie’s statement: “Whilst it seems clear that the method by which that percentage was originally obtained, and on which the respondent’s decision was based, has proven flawed. Nevertheless the subsequent assessment from Mr Fong, confirmed as it is by Dr Morris, I find is determinative of the matter and that the respondent made the correct decision on 14 May 1999.” [7] The appellant has also made a number of submissions in which she disputes various aspects of the medical evidence. [8] Section 165(1) states that leave can be granted only where the Court’s decision is wrong in law. [9] In this case Judge Beattie was confronted by two competing fields of medical opinion, while he acknowledged that there was a flaw in Dr Bernard’s original assessment that had been remedied by the subsequent reports. The discrepancies between the assessments involved the method by which the respective assessors applied the AMA Guides. The decision which Judge Beattie had to make was therefore a decision as to which of the assessments he considered was the correct medical interpretation of the facts. 3 [10] I consider that Judge Beattie’s decision was a decision made on the facts and that no question of law was involved. [11] The application for leave to appeal to the High Court is declined. DATED at WELLINGTON this 11th day of March 2003 _____________________________ A W Middleton District Court Judge ai139-99.doc(aw)