Lovelace v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 41/2002 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN PATRICIA CAROLE LOVELACE (DCA 454/98) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent APPEARANCES Mr N R Lovelace, advocate for appellant Mr A D Burnett, counsel for respondent DECISION OF JUDGE M J BEATTIE [1] This appeal came on for hearing before me on 17 March 1999. The issue in the appeal was whether the appellant’s claim for an independence allowance had been correctly assessed by the respondent’s appointed assessor, Dr Marshall. [2] At the hearing, the appellant’s advocate had submitted that the AMA Guides required the assessor to measure the strength of the appellant’s pinch-grip by using a measuring instrument known as a Jaymar Dynamometer. It was common ground that the assessor had not so measured the pinch grip using any instrument. [3] In those circumstances I adjourned the hearing to enable counsel for the respondent to make further submissions relating to that contention of the appellant. [4] A further report from Dr Marshall was produced and this was responded to by a report from Professor H C Burry dated 16 April 1999. DCA 454 98 (jed) 2 [5] Following receipt of those reports I issued a Minute dated 10 June 1999, in which I stated: “In view of the evidence of Professor Burry, serious doubt must be placed on the accuracy of the appellant’s assessment and this Court can indicate that it will be unlikely to uphold the veracity of Dr Marshall’s assessment. Having indicated that however, the Court in the context of this appeal could do little else but to direct that the appellant be reassessed by another duly appointed assessor and this time directing that the assessor ensure that all aspects of the AMA Guides were adhered to.” [6] The matter was then left to counsel to determine what should be done in relation to this appeal and it seems that the step that was taken was to have the appellant reassessed by another assessor, Dr J N Robinson, that assessment being carried out on 21 December 2000. [7] The Court has been provided with a copy of that assessment but all it can do is to note that a different whole person impairment percentage has been assessed and that in addition to the fact that the Jaymar Dynamometer was used by the assessor, the assessor also noted that there appears to have been a severe deterioration in the appellant’s condition since the previous assessment. [8] It is not within this Court’s jurisdiction, in the context of the present appeal, for it to make any decision relating to the assessment carried out by Dr Robinson. Indeed the Court is not aware of whether the respondent has in fact made any decision based on that assessment. [9] It does seem however that the Court’s indication as contained in the Minute of 10 June 1999 has been taken up and in a letter from Mr Barnett to Mr Lovelace of 16 October 2001, he advises that the respondent has completed a revised independence allowance assessment of 41% of personal impairment and that assessment has been back dated to the date of the original independence allowance assessment. DCA 454 98 (jed) 3 [10] In those circumstances it seems to me that the purpose of this appeal has largely been achieved and I consider that the appropriate course now is to formally find that in view of the evidence of Dr Burry, the assessment carried out by Dr Marshall dated 26 June 1998 cannot be relied on. Accordingly, the decision of the respondent dated 8 July 1988 that the appellant was no longer entitled to an independence allowance is formally revoked. [11] In view of the events which have occurred subsequent to the hearing of this appeal it is probable that the respondent has made a further decision relating to the appellant’s independence allowance entitlement but that decision is not one to which this Court can have regard within the framework of this appeal. [12] Finally, my notes of the hearing indicate that the appellant sought costs. However, it is the practice in this jurisdiction not to award costs for appellants who are essentially appearing in person and in this case Mr Lovelace was representing both himself and his wife in their respective appeals. However, I do note that the report from Professor Burry was obtained for the purposes of this appeal and I consider that the cost of same is certainly an expense which should be reimbursed to the appellant and I therefore direct that the cost of Dr Burry’s report be reimbursed to the appellant. DATED at WELLINGTON this 5th day of February 2002 M J Beattie District Court Judge DCA 454 98 (jed)