Daniels v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 235 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MARK IAN BARRY DANIELS of Waikari Appellant (Appeal No. DCA 235/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 21st day of October 1998 APPEARANCE/COUNSEL Appellant in person J D Palmer for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant appealed against the decision of the review officer who held that he was not entitled to payment of an independence allowance as the assessment required to be made under the Act did not disclose an impairment as a result of injury by accident. The appellant lodged a claim with the respondent in May 1994 for repetitive strain injury to both his wrists as a result of his work as a freezer hand which claim was accepted for cover. In September 1998 the appellant applied for an independence 2 allowance. The appellant then underwent the required questionnaire which assessed his disability at 94% on the basis of which he was paid an independence allowance of $31.84 per week. In March 1995 the appellant was reassessed when his disability score was again 94% as a result of which the independence allowance continued at the same rate. A reassessment in July 1996 resulted in a score of 39% as a result of which his independence allowance was reduced to $7.52 per week. In September 1997 the appellant applied for a reassessment supported by a medical certificate which indicated that his impairment had increased. The respondent then referred that application to Dr J Robinson, an approved assessor, who assessed the appellant following the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment. The result of that assessment was that his injuries were not work related but that he suffered from chronic pain syndrome. On the basis of that assessment the respondent notified the appellant on 23 December 1997 that his impairment had been assessed at 0% with the result that he did not qualify for an independence allowance. The appellant then applied for a review of that decision. The review officer concluded that while the appellant had a "disability" under the old subjective Functional Limitations Profile Questionnaire method of assessment, the reassessment under the new objective tests of the AMA Guide provided a nil assessment which the respondent was correct to accept. It is against that decision which the appellant now accepts. In a written submission, the appellant has quoted from the AMA Guide which notes that " impairment" is "an alteration of an individual's health status". He said that the pain he now gets was not present some 5 years previously so that on that basis his health status has altered. He submitted that an impairment is a deviation from normal and as far as he is concerned some part of his system has deviated. He submitted further that in comparison with impairment a disability constitutes "an alteration of an individual's capacity to meet personal social or occupational demands or statutory or regulatory requirements because of an impairment". He submitted further that "disability" refers to an activity or task the individual cannot accomplish. He submitted that he cannot understand how the result of the AMA assessment is so different from the previous assessment. As I explained to the appellant at the hearing, neither the respondent nor the Court has the ability to interfere with an assessor's assessment of an applicant's disability or impairment. The Act under which the independence allowance is paid requires that before the respondent can make a payment to the appellant a duly qualified assessor has to make an assessment of the appellant's impairment as a result of his personal injury. Regulation 3 of the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 states: "Assessment of a person's whole-person impairment, for the purposes of section 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)" (emphasis mine). There is no discretion whereby the respondent can go outside that requirement. 3 While the appellant considers that the position has worsened over the years, the responsibility of the respondent is to obtain an assessment by an approved assessor which it must accept. In this case the assessor, Dr Robinson, has assessed the appellant's whole personal impairment as 0%. The respondent is bound to accept that assessment and accordingly the appeal must be dismissed DATED at WELLINGTON 1I" day of November 1998 A W Middleton District Court Judge Dca23598.doc(rd)