Miller v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 34 199 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN PAULINE RUTH MILLER DCA 297/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE M J BEATTIE ON THE PAPERS The parties to this appeal have requested that it be determined on the papers. The issue in this appeal is whether the date to which the appellant's Independence Allowance was backdated was the correct date. BACKGROUND On 4 August 1995 the appellant lodged a claim with the Corporation for medical misadventure when she suffered a detached retina to her left eye following surgery on 8 June 1995. 2 The appellant 's claim for cover was initially declined on the advice of the Medical Misadventure Advisory Committee but further submissions and expert evidence were provided and that decision was reversed and acceptance of the claim was made on 21 July 1997. Following acceptance of the claim the appellant sought various entitlements in respect of her eye injury and included in this was a claim for an Independence Allowance. The Independence Allowance/Medical Certificate form was signed by the appellant's GP, Dr Hastilow, on 11 August 1997 certifying that the injury was stable and that impairment had resulted. On 20 October 1997 Dr Finalyson examined and assessed the appellant to determine her incapacity for the purposes of an Independence Allowance. His report dated 8 November 1997 stated that she suffered from a 34% total impairment disability. At the time the appellant sought assessment for an Independence Allowance in respect of her eye injury she was in fact already in receipt of an Independence Allowance in respect of an injury to her right hip which she had suffered in a fall in March 1994. Her Independence Allowance in respect of that injury was assessed at 24% in February 1995. On the basis of that fact, the Corporation in its decision letter of 27 February 1998 determined that under the transitional provisions of the 1996 Amendment, the increase in impairment caused by the eye injury meant that that increase could only be backdated to the date of the certificate verifying the increase namely, 11 August 1997 when her GP so certified, rather than backdating it to the date of the lodging of the claim as section 54(7)(a) provided in the amended provision of the principal Act. It is that decision which the appellant disputes and which is the issue for determination in this appeal. In her submissions in support of her appeal the appellant makes much of the fact that her claim, lodged as it was in July 1995, was not determined in her favour until July 1997 and she contends that she has been disadvantaged by that length of time. The appellant contends that it should not be she who has to suffer the consequences of the failure to make the correct diagnosis of her eye condition which was the essence of the medical misadventure. The appellant did not make any submissions on the statutory provisions which were contended by the Corporation as being the basis for its decision. However, she did produce various medical reports pertaining to her eye injury which predated the certificate from her GP which the appellant contends clearly established that she suffered impairment, and in her submission fulfilled the requirements of section 54(2) relating to the certifying of the fact of impairment and it being stabilised. Counsel for the respondent submitted that the matter was governed by Section 27 of the 1996 Amendment which was the transitional provision relating to persons who at the date of that amendment were in receipt of an Independence Allowance and who suffer an increase in impairment. Counsel further submitted that the provisions of section 54(5) of the 1992 Act as substituted by the 1996 Amendment, which states that no person shall at any time receive more than one Independence Allowance irrespective of the number of claims lodged, determines that the appellant's second injury and the entitlement to an Independence Allowance for increased impairment as a consequence of that injury was nevertheless simply an increase in the Independence Allowance which she already had and was not a new or separate Independence Allowance which might allow for a backdating of payment to the date when the claim for cover was lodged. Counsel for the respondent referred to the decision of this Court in Bryant (211/98) where this Court ruled that that interpretation was the correct interpretation of the transitional provisions. Counsel submitted that in terms of the transitional provisions the appellant's assessment in respect of her eye injury was in fact a reassessment of her entitlement to an Independence Allowance. 4 RELEVANT STATUTORY PROVISIONS: Section 27 of the 1996 Amendment Act provides that: "(1) Any person who was, immediately before the date of commencement of this section, receiving the independence allowance shall be deemed to have been assessed under section 54 of the principal Act (as substituted by section 13 of this Act) as having a degree of whole-person impairment of 10% or more, and, until reassessed under section 54A of that Act (as so substituted), shall continue to receive the allowance at the rate payable on that date. (2) On the reassessment of the person under section 54A of that Act (as so substituted), any adjustment to the rate at which the independence allowance is being paid shall, - if the entitlement is to be increased, be effective as from the date of the certificate verifying the increase in impairment or from the date of the commencement of this section, which ever is the later. " Section 54 of the 1992 Act (as substituted by the 1996 Amendment Act) provides that: "(5) No person shall- (6 ) At any time receive more than one independence allowance,- irrespective of the number of claims lodged by that person." (7) The following provisions apply in relation to payment of Independence Allowance: (a) except where section 54A(5) of this Act applies on the reassessment of a person's whole personal impairment, the date on and from which the Independence Allowance is payable is the date on which the person to whom it is payable lodged a claim for cover in respect of the personal injury from which the impairment results." Section 54A: "Assessment and Reassessment (1) For the purposes of section 54 of this Act, a person's whole-person impairment shall be assessed in accordance with regulations made under this Act. (3) If the injured person's impairment increases after the date of assessment, the Corporation shall reassess the person following verification, by a certificate from a registered medical practitioner, of the increase in impairment, but not more than one such reassessment (other than a reassessment under subsection(2) of this section) shall be undertaken in any 12 month period. 5 ) If a reassessment is undertaken in accordance with this section, the Corporation shall make any necessary adjustment to the level of entitlement to the independence allowance with effect on and from the date of the next quarterly payment." DECISION One of the purposes of the 1996 Amendment to the principal Act was to introduce a new system for assessing eligibility for an Independence Allowance. Prior to this Amendment the assessment criteria for determining disability and therefore entitlement to the Independence Allowance was based upon a subjective assessment known as the Functional Limitations Profile. The new system introduced by the 1996 Amendment was to be an objective assessment of whole person impairment based on the American Medical Associations Guides to the Evaluation of Permanent Impairment. Thus as the whole system for assessment was changing it required transitional provisions to enable existing beneficiaries of Independence Allowances to continue on under the new regime and one of the principal provisions of the transitional provision was that all recipients of an Independence Allowance based on the functional limitations profile system were deemed to have a degree of whole person impairment of the same percentage until re-assessed. Section 54A of the Act made provision for assessment of new claimants and reassessment of existing recipients. It is to be noted that the assessment system is to determine the level of whole person impairment resulting from personal injury and the Act recognises that a person can have more than one cause of his/her whole person impairment as in the case of this appellant who had a certain level of whole person impairment from an injury to her right hip and a further level established by the injury to her eye. 6 Having regard to the provisions of section 27 of the 1996 Amendment I find that the appellant was a person to which that provision applied and as such when she applied for an Independence Allowance in respect of her eye injury on 11 August 1997 she was in effect seeking a reassessment of her whole person impairment. The provisions of section 54(5) of the Act make it clear that a person is only entitled to one Independence Allowance, irrespective of the number of claims lodged, and therefore if a person is already in receipt of an Independence Allowance, then a claim for an assessment in respect of a further injury for which cover has been granted is in fact a reassessment of whole person impairment. In the context of the circumstances of this appellant, her earlier Independence Allowance having been granted prior to the Amendment Act of 1996 coming into force, she was a person to whom section 27(2)(b) of that Amendment Act applied and the new rate for her Independence Allowance is effective from the date of the certificate verifying the impairment, which in this case was the doctor's certificate of 1 1 August 1997. The submission by the appellant that there were earlier medical reports which satisfy the formalities of certifying an impairment and may justify an earlier date cannot be accepted as it must be remembered that the appellant was not granted cover under the Act until 21 July 1997 and thus a claim for an entitlement could not be made or received prior to the granting of cover and as such the requisite certificate could only be made and received after cover had been granted. Finding as I do that the assessment carried out by Dr Finlayson was in fact a reassessment, the increased percentage of whole person impairment which resulted in an adjustment to the rate at which the Independence Allowance could only be paid, in terms of section 27(2)(b) of the 1996 Amendment, from the date on which the certificate verifying the increase in the impairment was given. That date is 1 1 August 1997, and it is from that date that the appellant was entitled to receive the adjusted Independence Allowance. That is the date from which the Corporation have in fact made such adjusted payment. 7 The position would have been different had the appellant not already been in receipt of an Independence Allowance at the time she sought assessment to take account of her eye injury. In such circumstances, the provisions of section 54(7)(a) would have applied and the allowance would have been backdated to the date she lodged her claim. However for the reasons given, the appellant is subject to the provisions of section 27 of the 1996 Amendment Act and the Corporation's decision to commence payment from 11 August 1997 was correct and this appeal is therefore dismissed. DATED at WELLINGTON this 18 day of February 1999 M J Beattie District Court Judge Miller.doc(gm)