Waddilove v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 162 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MALCOLM WADDILOVE of Waihi Appellant (Appeal No. DCA 113/98) --- -- AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at TAURANGA on the 18th day of May 1999 APPEARANCES Appellant in person Miss A H Cecil-Gibson, counsel for respondent RESERVED JUDGMENT OF M J BEATTIE The issue in this appeal is whether the respondent was correct to advise the appellant that he was no longer entitled to an Independence Allowance. Background On 15 August 1979 the appellant injured his left shoulder. He was granted cover under the 1972 Accident Compensation Act and ultimately received a lump sum award based on a permanent disability of 10.4%. 2 In February 1995 the appellant sprained his thumb and cracked a tooth when he tripped and fell. He lodged a further claim for cover which was also accepted. In May 1995 the appellant applied for an Independence Allowance and in June 1995 was assessed under the criteria of the Functional Limitations Profile Questionnaire and his disability was assessed at 19%. From that percentage was deducted the 10.4% for the lump sum previously received and he commenced receiving an Independence Allowance based on a percentage of 8.6%. It seems no consideration was given to the need for a minimum of 10% disability. In July 1997 the appellant sought a reassessment for his Independence Allowance ---- -= on the basis that his GP, Dr Hardie, had certified that his impairment had increased. The appellant was assessed by Dr Alastair Mcdonald, a duly appointed assessor under the Regulations and an assessment of his whole person impairment was made in accordance with the AMA Guides. Dr Mcdonald's assessment assessed the appellant's whole person impairment at 17%. On 8 October 1997 the respondent advised the appellant that after deducting the 10.4% for the lump sum payment previously made, he had an impairment of 6.6%, and that as this was less than the minimum of 10% required to be entitled to an Independence Allowance, his Independence Allowance would thereby be cancelled. The appellant sought a review of that decision. No further medical evidence was adduced for the purposes of that review and the Review Officer confirmed the Corporation's decision that the appellant was no longer entitled to an Independence Allowance. For the purposes of the appeal to this Court the appellant obtained a report from Mr Grant Cowley, Orthopaedic Surgeon, that report being obtained at the request of the appellant's GP, Dr Hardie. Mr Cowley's report to Dr Hardie, dated 5 February 1999, states as follows: 3 "Thank you for asking me to see this gentleman regarding the 'Caisson's Disease' of his shoulder. He originally had trouble with the shoulder nearly twenty years ago and has previously seen Colin Hooker for treatment and at one stage an ACC Permanent Disability Assessment (under the old ACC Regulations). He has a chronically stiff and painful shoulder which he manages by appropriate modification of activities, having previously had physiotherapy and corticosteroid injections. On examination today movements are painful with range flexion 120*; abduction 120*; external rotation 20*; internal rotation hand to posterior iliac crest. X-rays of the left shoulder show evidence of previous humeral head avascular necrosis with secondary arthritic change. There is a bony separation of the humeral head and osteophytic formation on both head and glenoid. He has a significant disability. However the precise figure to place on this is dependant on the mode of assessment and certainly hasn't improved since Mr Hooker's previous assessment about two years ago. As far as the shoulder is concerned he would be a candidate for a total shoulder replacement, if he wished to contemplate that. I have suggested that Mr Thin Hong, who subspecialises in this area would be worth seeing if he wished to pursue that further." At the hearing of this appeal the appellant submitted that Mr Cowley's opinion was that he had a significant disability and in those circumstances he ought to be entitled to an Independence Allowance. 4 Miss Cecil-Gibson, counsel for the respondent, submitted that whilst Mr Cowley identified that the appellant did have a disability, Mr Cowley did not purport to assess the appellant's whole person impairment in accordance with the AMA Guides, therefore the evidence submitted did not call into question the correctness of the assessment of Dr McDonald. Decision At the hearing of this appeal it was indicated to the appellant that in the absence of any medical evidence establishing that in some way the assessment carried out by the assessor was flawed or had not taken account of injuries for which cover had been given, then there was no basis to find that the assessment made by the ---- assessor was incorrect. The appellant accepted that finding and indicated that he could not contend that Dr Mcdonald's assessment was not correct or had not been carried out in accordance with the AMA Guides. The submission of counsel for the respondent must be accepted and carry the day in this appeal. Whilst it is true that Dr Cowley has identified that the appellant has a disability, there is no suggestion or contention that the assessment carried out by Dr McDonald was in any way incorrect. It may well be that the appellant's best course is to obtain the respondent's approval to have the shoulder replacement operation that is referred to by Mr Cowley. However that is an entirely separate issue and is not one which this Court needs to be concerned with in the context of this appeal. The assessment made by Dr McDonald established a whole person impairment of 17% and in accordance with s.54A(7) of the Act that percentage must have deducted therefrom the percentage of permanent loss in respect of which a lump sum payment has already been made. 5 Furthermore, under the provisions of s.54(1) a person is only entitled to an Independence Allowance where the assessed whole person impairment is of 10% or more and the appellant's net percentage is of course less than 10%. For the foregoing reasons therefore, the respondent's decision to cancel the appellant's entitlement was correct and this appeal must be dismissed. DATED at AUCKLAND this 29th day of June 1999 M J Beattie District Court Judge DCA113-98.doc(J9)