Monkhouse v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 48 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MENA LILIAN MONKHOUSE of Manukau City Appellant (Appeal No. DCA 317/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on the 15th day of February 1999 APPEARANCES Appellant in person C W Bright for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to the payment of an independence allowance. The background to the appeal is that the appellant injured her left knee on 7 May 1998 when a bus on which she was travelling suddenly accelerated. The respondent accepted the appellant had cover for the injury sustained. On 28 June 1995 the appellant applied for an assessment for an independence allowance. On 10 July 1995 2 the appellant was assessed using the Functional Limitations Profile questionnaire provided by the then Regulations governing the payment independence allowances. The appellant was assessed as having 100% degree of disability. On 3 February 1998 the respondent notified the appellant that new Regulations had come into force from 1 July 1997 which created new rules for the assessment of entitlement to an independence allowance and that the appellant was to then be reassessed under the new rules. The file discloses that following the appellant's first assessment in July 1995, the respondent had referred her to Mr A Hadlow, an Orthopaedic Surgeon for examination and report. His finding was that he considered that the appellant's then problems were caused by an osteoarthritis hip rather than the injury to her knee. The appellant was not willing to accept this diagnosis but at the same time an x-ray report indicated marked osteoarthritis changes in her left hip. In March 1998 the respondent referred the appellant to Dr G Harris, an Assessor with the request that a new assessment for the payment of an independence allowance be made in accordance with the new regulations which required that Dr Harris had to apply the American Medical Association Guides to the Evaluation of Permanent Impairment. As a result of that assessment, Dr Harris concluded that the appellant's level of impairment was 0%. The respondent notified the appellant on 28 April 1998 that as a result of Dr Harris' assessment she was no longer eligible for an independence allowance. The appellant applied for a review of that decision. The appellant and her son attended the review hearing when she explained to the Review Officer that she could not understand how she could suddenly change from having a 100% disability to a 0% disability. The Review Officer explained to the appellant the difference in the method of assessment required by the Regulations which came into force in July 1997 as opposed to the previous Regulations. The Review Officer considered that the assessment had been properly made and that the respondent was bound to apply it. The application for review was unsuccessful. It is against that decision which the appellant now appeals. The appellant told me that she could not understand how there could be such a change in her condition when she still suffered from the same complications. She submitted that there was a lot of confusion about her injury with Mr Hadlow considering that it was her hip which was responsible rather than the pain which she experienced in her knee. Mr Bright provided the Court with copies of the decisions of the Court in Gowthorpe V ARCIC (252/98) and Daniels (235/98) in which the Court had held that the assessment made by a duly appointed Assessor using the AMA Guides had to be accepted by both the respondent and the Court and that the Court has no jurisdiction to overturn that assessment. I explained to the appellant that the original assessment for her independence allowance was made under the Regulations which then existed which required the 3 appellant to complete the Functional Limitation Profile questionnaire so that the assessment became a subjective one based on her own answers. There is no suggestion that in completing that questionnaire the appellant was not wholly truthful but as from July 1997 the Regulations were changed with the requirement that an independence allowance could only be paid by the respondent after an assessment had been made by a duly qualified assessment using the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition). That is quite a different type of assessment which the Assessor has to make in accordance with those guidelines and the respondent is bound to accept it. There is no discretion for the Court to go behind that assessment and as Dr Harris was a duly appointed Assessor who completed his assessment in accordance with the guidelines, the Court has no power to alter that assessment. Accordingly, the appeal must be dismissed DATED at WELLINGTON this 4th day of March 1999 A W Middleton District Court Judge dea317-98.doc (nr)