Butler v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 43 198 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN NEVILLE JOSEPH BUTLER of Ngaruawahia Appellant (Appeal No. DCA 335/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr N King, advocate for the appellant and from Ms S Scott, counsel for the respondent, with a request that I issue a decision on the papers. The issue is whether the appellant is entitled to apply for an independence allowance under section 148 on the basis that he has suffered deterioration of his personal injury. The facts which give rise to the appeal are that the appellant injured his left hand in the course of his employment on 16 November 1976. He was subsequently assessed on 11 January 1993 by Mr C H Hooker, an Orthopaedic Surgeon who found that he had a functional disability of 7%. As the accident had occurred in 1976 the respondent made the appropriate lump sum award under section 119 of the Accident Compensation Act 1972. 2 On 24 March 1997 the appellant lodged an application for an independence allowance. The respondent notified the appellant's advocate on 5 April 1997 that as the appellant had previously received a lump sum award, it would be necessary to supply medical confirmation that there was a deterioration of the injury. In a certificate provided by the appellant's General Practitioner, Dr S B Joe in support of the application for an independence allowance, the doctor has stated "treatment since 1992 has consisted of review of medical notes. No treatment since 1992." In a subsequent certificate from Dr Joe dated 21 June 1997, he states "I confirm that the above patient's injury has deteriorated since 1 July 1992 (even the slightest worsening)." When the respondent notified the appellant that the reports from Dr Joe were not sufficient to demonstrate deterioration, the appellant lodged an application for review. The Review Officer found that on the evidence "it is not clear whether the General Practitioner examined the applicant for the purpose of this certificate nor was he aware of the earlier assessment." The Review Officer held that it was necessary for the respondent to receive satisfactory evidence of the alleged deterioration and the subsequent degree of permanent loss before it could make any assessment under section 148. The application for review was declined and it is against that decision which the appellant now appeals. Mr King submits that the respondent is bound by the procedure it has promulgated to be filed by claimants who have received a lump sum payment. The procedure as submitted by the appellant states: "Section 3.4. If a claimant has sustained deterioration in their physical condition after 1 July 1992 and sustained personal injury by accident under the 1992 or 1982 Acts before 1 July 1992, may apply for a (sic) Independence Allowance under the ARCI Act 1992." Mr King submitted that the appellant has complied in that he has made a written request for an independence allowance and has provided medical evidence. Mr King's principal submission is that the Review Officer in finding that there was no evidence of deterioration had made "an unwarranted departure from the Corporation's accepted practice and we ask that this decision be overturned." Ms Scott submitted that there must be some satisfactory evidence of an increase in the degree of permanent loss or impairment of bodily function in order to meet the threshold required in section 148(3). She submitted that in no way could it be held that the certificates from Dr Joe established a deterioration. He had not seen the appellant since 1992 so that it could not be said that he could give a reliable assessment of possible deterioration. Section 148(3) in so far as it affects this appeal states: "... any person who suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the first day of July 1992, and who has, since the first day of July 1992, 3 suffered an increased degree of permanent loss or impairment of bodily function resulting from that personal injury by accident, may apply for an Independence Allowance under and subject to the conditions of section 54 and 54A of this Act. ..." (emphasis added) I agree with Ms Scott's submission that I do not consider that the notes from Dr Joe can in anyway be said to establish that the appellant has suffered an increased degree of permanent loss or impairment of bodily function. Since the assessment made by Mr Hooker in January 1993 it is necessary that the appellant to become entitled to an independence allowance, to provide a report from Mr Hooker or another qualified specialist who could certify that the current state of his injury constitutes a permanent functional disability in excess of 7%. Dr Joe certainly gives no details whatsoever nor is he qualified to attempt to give an assessment of the permanent functional disability. However, it is always open to the appellant at anytime to provide the necessary medical certification to support an application for independence allowance but on the evidence now available, there is certainly no support for the appellant's claim of deterioration. I do not consider that this in any way contradicts the respondent's announced procedure. The mere statement that an appellant claims to have suffered a deterioration is not sufficient. It must be supported by actual medical certification specifying precisely the amount and extent of the deterioration. The appeal is therefore dismissed. DATED at WELLINGTON this 18 day of March 1998 A W Middleton District Court Judge dc335-97.doc (nr)