Yeoman v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. |91 /2008 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act Appeal No. Al 49/07) BETWEEN ROCHELLE YEOMAN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 20 March 2008 Appearances: Mr J Grove advocate for appellant Mr J R Sumner for respondent Judgment: 22 August 2008 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns a disputed whole-person impairment assessment. The appeal was heard on 20 March 2008 and leave was given to the respondent to file further submissions in relation to new documents produced just before the hearing. Those submissions were received in due course. The parties were asked to provide an agreed bundle of additional documents but eventually provided separate bundles, the last of which has just been received. [2] Ms Yeoman suffered a forceful twisting injury to her right knee when she was leading a stallion on her farm. The initial injury was in July 2003 and her knee remained painful despite cortisone treatment so that she was referred to Mr Fred Phillips, orthopaedic surgeon. On 6 September 2004, Mr Phillips performed an arthroscopy of the knee, excision of the prepatella bursa and a partial patellelectomy. [3] The morning after surgery, the appellant developed severe pain in the right knee and was diagnosed with necrotising faciitis. A debridement was performed by Mr Fleischl, general surgeon, removing soft tissue over the front of the right knee and the appellant was referred to the plastic unit at Wellington Hospital where Mr Gary Duncan, plastic surgeon, performed a free flap operation to cover the wound of the front of the knee. The appellant was left with a bulky soft tissue mass over the front of the knee. [4] On 8 August 2005 the appellant underwent another right knee arthroscopy, debridement of the medial meniscus, medial femoral condyle and patella, and bone biopsy. The appellant's submissions state that Mr Phillips noted the findings included: "AP laxity grade III, indicating ACL [anterior cruciate ligament] insufficiency... Medial compartment: There was marked degenerative change of the medial meniscus, and associated with this a deep chondral groove in the medial condyle, at one point through to raw bone. ACL difficult to identify, probed, suspect deficient." [5] On 30 August 2005 Mr Phillips commented: "Rochelle's knee has not really improved as might be expected following the findings, which are those of increased joint surface degeneration and probable ACL insufficiency. Pain and weakness remain an issue. Physiotherapy does not seem to be adding anything further at this stage. Eventually I feel she will come to knee joint replacement and at that stage we certainly should seek a second opinion. At present this option is not on the table. We've had quite a long discussion about the issues surrounding this, including the risk of catastrophic failure. We will try a functional knee brace and reassess. I have been asked whether she should go for a lump sum payment at this stage. I think that although the situation has not stabilised; so long as she does not prejudice entitlements it would be reasonable for her to apply." [6] Mr D A Lawson, Orthopaedic Surgeon, provided a report on 14 September 2005. Mr Lawson diagnosed post-operative clostridiuminfection with probable continuing involvement. Mr Lawson wrote: "Currently she complains of pain felt in two sites, over the back of the knee and over the medial side. The patella was also very painful if knocked. She describes the pain as an ache and has difficulty extending the knee against gravity. However once the knee is out to 20 of flexion she is able to extend the last 20 without problems. It is the initiation of an extension from the flexed position that causes problems. She is not sure whether the knee is swelling but it does click on occasions. It is not locked. From a functional point of view she can walk only 100 yards and is unable to run. She is able to stand without too many problems but has difficulty sitting, particularly if she is travelling in a car or sitting in a movie theatre. Her donor site over the right proximal thigh remains sensitive." Mr Lawson stated that the appellant's infection was "a devastating complication of what is a fairly straight forward day case procedure". [7] The appellant was seen by Dr John Kerr, Occupational Physician, on 9 November 2005 for the purpose of lump sum assessment. Dr Kerr produced an interim report that the injury could not be deemed stable until after the review findings from the orthopaedic panel were received. In March 2006 he produced an assessment of 18% whole-person impairment (WPI) under the AMA Guides. After peer review he reduced the assessment to 16%. He recommended that the impairment rating should be reassessed again after further plastic surgical intervention had been completed. [8] His first assessment took account of a skin disorder of 9% WPI and 10 % WPI for the appellant's knee calculated on the following basis: "Using Table 2 on p 280 for skin disorders she rates Class 1 and at the top end of this range with 9% WPI Using Knee Table 41 enclosed, from p 78 she has Flexion 75 deg - moderate at <80 deg which gives WPI 8% or LEI of 20% There is no varus or valgus deformity & full extension Using Estimates for Certain Lower Extremity Impairments Table 68, p 85: She has had a Partial menisectomy 1% WPI (2% LEI) She has moderate lateral collateral ligament laxity and moderate anterior cruciate ligament laxity 10% WPI or (25% LEI) She has 5mm of cartilage from XR examination which from Table 62, p 83 does not rate any impairment. Combining LEI's first using Tables on p 322 she has 27% LEI which converts by multiplication by 0.4 to 10% WPI. This is combined with her skin disorder of 9% and gives 18% whole person impairment." [9] Dr Kerr's assessment noted that he reviewed the following documentation: Referral Letter - 4 November 2005 Application for Lump Sum Impairment Allowance Medical Certificate Report, Mr Phillips, Orthopaedic Surgeon - 30 August 2005, 5 July 2005, 31 May 2005, 17 October 2005 Clinical Notes, Mr Phillips, Orthopaedic Surgeon - from 8 October 2003 to 20 August 2005 [10] The assessment did not refer to Mr Lawson's report which had given a description of the injury in September 2005. [11] On 12 April 2006 Dr Kantilal Kanji peer reviewed Dr Kerr's report and recommended a final assessment of 16%. No document was supplied to the Court, but the appellant's submissions reported Mr Kanji's peer review as follows: "Scar - Class ] upper end - 9% No symptoms recorded in history, nothing in exam other than scars. Referred to assessor to review function/AD2 range finding and justify. Knee - ROM 20, DRE 25, 2 = 27. Check matrix LE please, either DRE or ROM 27*0.4=10.8=11 Amended report received 11 + 6= 16% Rec - accept WPI 16." [12] Dr Kerr then issued another copy of the assessment in which he rated the skin disorder as 6% and knee impairment 10%, a total of 16% WPI. The second assessment was not produced to the Court but the argument proceeded on the basis that Dr Kerr had issued the second assessment after considering peer review and that this assessment was the basis for the Corporation's decision. [13] On 20 April 2006 ACC issued a decision letter advising the appellant she had been assessed as having 16% whole person impairment. [14] On 31 May 2006 Mr Lawson wrote a referral letter to Dr Frank Thomas of the Pain Clinic, in which Mr Lawson wrote: "her main problem at present is of quite severe, limiting patellofemoral pain for which I do not think there is a reliable surgical solution." [15] The Pain Clinic reported on 29 August 2006: "Rochelle reports constant pain and decreased ability to use her knee or lift her leg. Rochelle describes an intense pain when actively straightening her knee to 90 degrees from flexion, passively straightening knee to 90 degrees there is minimal discomfort. Rochelle describes her knee pain as excruciating', 'burning', "hurt', 'a pull in the knee cap and down the leg', sharp', '8-9/10 on VAS' and 'aches in the back of the knee'. The ache in the back of the knee has decreased in discomfort lately with a change in medication from Dr Frank Thomas. Rochelle also described areas of reduced sensation and hypersensitivity of the right knee." The report stated that the appellant had significant neuropathic pain that requires treatment. [16] ACC wrote to Dr Kay Bradford, psychiatrist, requesting a report on whether the appellant's mental condition was clinically significant and caused by the personal injury suffered on 20 July 2003. Dr Bradford wrote on 31 October 2006 advising that Ms Yeoman did not have a clinically diagnosable mental condition, in terms of the DSM - IV criteria. [17] On 9 November 2006, Dr Bradford wrote to the appellants advocate, Mr Grove, in relation to the appellant's whole person impairment: "As you will see from my report ACC requested answers to a number of questions and did not request a whole person impairment rating. However, if they were to ask me, my opinion would be as follows: Whole Person Impairment 30% Rochelle's impairment according to the '4th Edition of AMA Guides to the Evaluation of Permanent Impairment' and the 'ACC User Handbook to the AMA Guidelines to the Evaluation of Permanent Impairment, 4th Edn' is assessed at 30% (independence not fully effective or sustainable in all areas of function, i.e. household, job, and leisure time activities)." Review [18] On 15 November 2006 ACC issued a decision declining cover for mental injury. The appellant applied for review of the WPI assessment and the review hearing was convened on 14 November but was adjourned to enable the ACC representative to comment on Dr Bradford's opinion. The review only concerned injury for which cover had been granted at the time of Dr Kerr's assessment. The hearing was completed on 4 December 2006 and the Reviewer confirmed the respondent's decision because there was no alternative assessment provided from an equally qualified assessor and no flaws were demonstrated in Dr Kerr's assessment. [19] The Reviewer found that Dr Bradford did not present an assessment of a physical injury for which the appellant had cover but in her opinion of 31 October 2006 she referred to a mental injury, and in her opinion of 9 November 2006 she did not specify whether the impairment rating in respect of personal injury was solely for the personal injury for which the appellant had cover or for personal injury and mental injury. The Reviewer noted that the second opinion was brief and provided no rationale for the percentage arrived at. I agree with those comments. [20] The review transcript recorded the Reviewer's clear direction to Mr Grove for the appellant that the WPI assessment did not include a mental injury question, and that Dr Bradford's opinion concerning a mental injury was not part of the review. The Reviewer stated that she would certainly consider the impairment of pain consequent on the injury, but would not consider mental injury impairment for a chronic pain syndrome. [21] Under the 2001 Act, as with the earlier legislation, mental injury means a clinically significant behavioural, cognitive, or psychological dysfunction. Some chronic pain conditions such as somatoform or factitious disorders are mental injuries, but whether a chronic pain condition is to be considered as a mental injury in a particular case would depend on evidence of its nature. [22] The Reviewer wished to make two points clear. One was that there was no cover for a mental injury at the time of the assessment under review, and the second point was that Dr Bradford had not been consulted for advice on the appellant's physical injury impairment. Dr Bradford's report could not assist the appeal against Dr Kerr's physical injury impairment assessment. [23] The Reviewer also considered a submission that Dr Kerr had not seen a particular memorandum from ACC's Branch Medical Advisor, Dr Stormer. The Reviewer decided this was an internal communication and not relevant to the assessor's task. Enquiries since review [24] Mr Grove also submitted that Dr Kerr did not have a report from Mr Lawson, who was the orthopaedic surgeon best placed to assess the effect of the injury. The Reviewer accepted that Dr Kerr did not have that report initially, but found that Dr Kerr declined to give an impairment rating until it was received. The Reviewer was satisfied that the eventual rating was reached with the opinions of Mr Lawson and the panel having been made available to Dr Kerr. Those findings conform with the information presented on this appeal. (25] Mr Grove wrote again to Dr Bradford in March 2008. He referred to submissions that the Corporation had made to the Reviewer that Dr Bradford was not contracted by ACC to assess claimants for physical injuries and that it was not clear what part of the AMA guides her reference to independence not fully effective or sustainable in all areas of function is intended to relate to. Dr Bradford's reply clarified that she did not assess a mental injury but based her assessment on pain and limitation of functioning. She wrote: "I would like to point out that I referred to the AMA Guidelines to the Evaluation of Permanent Impairment and the ACC User Handbook to the AMA Guidelines to the Evaluation of Permanent Impairment, 4" Edn. It is clearly stated in the guidelines that it is necessary to assess the level of independence fully affected (sic) or sustainable in all areas of function, household job and leisure time activities. In my report I did clearly state the extent to which the claimant's independence was not fully affected (sic) or sustainable in all areas of functioning. I explained the constraints with respect to her household function; that she is able to do only the bare minimum and during those activities she has great pain. I also pointed out that she is not able to be effective in a job or leisure activities because of the limitation of functioning and the pain. I did not regard her pain and limitation of function as in any way an abnormal perception of the state of her knee joint. This is fully endorsed by a very important report of Mr D A Lawson on the 26 February 2007, where he says that in his 6" paragraph of his report 'she did have significant loss of quadriceps bulk with the necrotising fasciitis and this may well take a long time to recover, if in fact it does recover at all. She has had a significant loss of functioning of the knee and without formal assessing it I would say that she has at least 30% of loss of function of the knee. Mr Lawson is an expert in orthopaedics and he would not have exaggerated this finding." [26] It should be also noted here that 30% loss of function of the knee converts to 12% WPI. The reference to "level of independence fully affected or sustainable in all areas of function" is derived from the "Mental and Behavioural" section of the Handbook. The correct phrase is "level of independence not fully effective or sustainable". But as there was no mental injury, Dr Bradford's reference to this part of the User Handbook is puzzling and unexplained. The physical injury sections of the AMA Guides do not approach the assessment on the basis of level of independence, but on the basis of physical examination (ROM), diagnosis (DRE) or defects in gait in rare circumstances. [27] In preparation for this appeal, the appellant obtained two reports from Dr Blair Christian, occupational medicine physician, both dated 13 August 2007. These reports are well over a year after Dr Kerr's assessment and they may well show a deterioration in impairment that could justify a new assessment. But as a comparison with Dr Kerr's assessment of March 2006 the lapse of time poses a problem. In one report, Dr Christian assessed the appellant's covered physical injury and found a 20% whole person impairment. In another other report also dated 13 August 2007 Dr Christian found that the appellant had 30% whole person impairment for a mental injury. [28] In describing the physical injury and its consequences, Dr Christian wrote: "Rochelle has been left with a very poorly functioning right knee, and there is development of arthritis in the knee. It has been noted that in the future Rochelle is very likely to require a right total knee replacement, as the arthritis develops, and consideration has also been given to a patella replacement. Rochelle has constant pain in the right knee. This very significantly restricts her activity. She has pain increasing with standing and walking, and with prolonged sitting. She cannot run or jump. She has great difficulty with kneeling and crouching. Stairs and uneven surfaces and slopes are very difficult. Driving is reasonably manageable. Sleep at nights is affected by pain, with Rochelle waking as she rolls over. Rochelle has noted that the knee is less strong than the left, and can give way. Because of this she wears a rigid knee brace everyday, both at home and outside the home. This does help to some degree with support for the knee." [29] The development of arthritis seems to have been a new diagnosis. There is no indication that arthritis was present at the time of Dr Kerr's assessment. Arthritis was clearly a consideration for the future and Dr Christian's assessment also supports the case for a further WPI assessment. But it does not show that Dr Kerr was wrong at the time of assessment in March 2006. [30] In his report assessing physical impairment, Dr Christian set out his rating method: "The right knee impairment can be rated a number of ways, for example on the basis of diagnosis estimates, range of movement, or affect on gait and requirement of wearing a knee brace In my view an impairment assessed based on the affect of gait using table 36, 3/76, is the most appropriate and fair way of assessi assessing Rochelle's knee impairment. The knee clearly has a major affect on gait and also on ability to operate on uneven surfaces and stairs, and kneel and crouch. Because of this she wears a rigid knee brace. Radiological investigations have identified arthritic change in the knee. Rochelle does not use a walking stick or crutch. Use of a rigid knee brace is analogous to short leg brace for example ankle foot orthosis, which from table 36 rates as a 15% whole person impairment." [31] In relation to scarring impairment Dr Christian commented as follows: "The scarring causes Rochelle impairment also. She now wears long trousers to cover the knee. She does not wear shorts and avoids going swimming. She had not problems with this prior to the accident and subsequent operations. Rochelle notes that if ever her knee is uncovered people stare at it, make comments about it, and she finds this extremely uncomfortable. Therefore she avoids people seeing the uncovered knee. Scarring is rated using table 2, 13/280. Scarring is present continuously, there is ongoing surgery treatment required for this, le ongoing requirement for revision of the soft tissue mass and scar, there is limitation of some activities of daily living (mainly to do with avoidance of activities and situations where the knee is uncovered). Thus Rochelle rates as a class one impairment and as she is closer to class two than to having no impairment, she rates in the top third of the impairment range, ie 6% whole person impairment. The 15% and 6% whole person impairments are combined to get 20% whole person impairment." [32] Pursuant to leave to respond to late material, Mr Sumner presented a further letter from Dr Kerr date 16 April 2008. This letter was forwarded to Mr Grove for comment and leave is given to include it in evidence. The text of the letter is as follows: "A. As you state, the peer review by Dr Kanji of my report of 9 November 2005 supports a whole person impairment of 16% with an 1 1% whole person impairment related to the knee injury and 6% whole person impairment related to the skin impairment. This had been recalculated from my original whole person impairment of 18% with 9% for her skin disorder and 10% for her knee impairment. It is my understanding that the peer review process is designed to check methodology and calculations and not to repeat the impairment assessment itself. B. It appears from my reading of Dr Bradford's report of 31 October 2006 'Impairment Assessment Report' that it is an opinion in relation to mental injury and not in relation to the knee injury or skin impairment. I do not see in this report any record of a physical assessment of her knee or calculations using the AMA Guides to support this. Then on 14 March 2008 Dr Bradford states 'she has a significant loss of function of the knee and without formal assessment I would say that she has at least 30% of loss of function of the knee' Without showing evidence of consulting the AMA guides and applying the strict assessment criteria to such an injury, this must remain pure speculation. Furthermore if one were to assess the loss of function of the knee as being 30% lower limb impairment this would convert (30% x 0.4) to a 12% whole person impairment. However it is important to reiterate that there are no objective measures to substantiate such an impairment rating. Similarly Mr Lawson's estimate on 26 February 2007 that 'I would say that she has at least 30% of loss of function of the knee' is a subjective assessment of an impairment rating and does not comply with the AMA guides. C. It is important to note that Dr Christian's impairment assessment of 13 August 2007, some 9 months after my physical assessment of the claimant also concurs with the same whole person impairment for skin of 6%. As is detailed in the Counsel for respondent submissions, JE Castle, on 21 December 2007, I have used the preferred method for rating knee impairment using the diagnosis related estimates. I have taken my guidance for adopting this from the AMA guides where using gait as a method of assessment, should only be used rarely'. This is in contrast to the method that Dr Christian has applied of using 'gait or gait derangement'. As a result of this difference in methodology there are slightly different whole person impairments derived for the knee injury. However, on reviewing this information I do not see a need to change my assessment method as I feel it most closely complies with the advice given in the AMA Guides. D. I understand that Rochelle says in March 2008, that the statement on Page 5 of my report of 2005 'signs and symptoms are constantly present but only impacts on a few activities of daily living' is incorrect. This statement has been taken from my notes taken contemporaneously with the assessment process. I note that in October 2006, she has made a further statement to Dr Bradford but again this is some 1 1 months after my assessment in 2005. In addition Rochelle says on 20 March 2008 'over several consultations Mr Lawson's appreciation of the magnitude of my injury increased as is evident in his reports ...'. This raises the possibility that there may have been some change in symptomatology over this period of time. However for the purposes of the impairment rating, what Rochelle is describing here, relates to disability and not impairment and would not impact on the diagnosis related estimates, whole person impairment assessment of her knee and the final rating given for it. I was not asked to assess Mental Injury." Submissions [33] Mr Sumner submitted that the assessment of Dr Christian, dated 13 August 2007, does not specifically address the findings of Dr Kerr. The difference between the two assessors arises from their choice of rating method for knee impairment. Dr Christian uses "effect on gait" or "gait derangement", while Dr Kerr used diagnosis related estimates (DRE). Page 29 of the ACC User Handbook notes under "general comments" in relation to using gait as a method of assessment: "This method of assessment should be used only rarely (see text on AMA4 page 75). Always prefer the methods most fitting the nature of the injury." The text on page 3/75 of the AMA Guides, in relation to "gait derangement" provides: "This part may serve as a general guide for estimating many lower extremity impairments. The lower limb impairment percents shown in table 36 should stand alone and should not be combined with those given in other parts of section 3.2. Whenever possible, the evaluator should use the more specific methods of those other parts in estimating impairments." [34] Mr Sumner submitted that in using a diagnostic related estimate under section 3.2 of the AMA Guides, using the table on page 85, Dr Kerr correctly followed the AMA User Handbook. The Handbook refers to page 85 of the AMA Guides for assessing the ligament and the meniscus, in relation to the knee, as follows: "She has a partial menisectomy 1% WPI (2% LED). She has moderate lateral collateral ligament laxity and moderate anterior cruciate ligament laxity 10% WPI or (25% LED)." [35] Dr Kerr also considered the Range of Movement (ROM), method, which would have given an 8% WPI for the knee impairment. He ultimately chose the DRE method which gave an 11% WPI. Both approaches were considered by the peer reviewer, Dr Kanji, who approved Dr Kerr's finding of 16% WPI. [36] I have referred to page 85 of the Guides. Dr Kerr's assessment corresponds with the percentages for WPI. The percentages for lower limb impairment are 2% and 25%. Dr Kerr has taken the WPI ratings and combined them with the 6% impairment rating for scarring. He adopted the rating based on diagnosis which gave a more favourable outcome than a calculation based on examination based range of movement. [37] Mr Grove submitted that Dr Kerr's report was unbalanced, incorrect, inadequate and incomplete. He submitted that Dr Kerr was not supplied with all relevant reports, and in particular a report from Dr Peter Stormer, Branch Medical Adviser. In the submissions or the documents I could not find any relevant reference to anything in Dr Stormer's report that could have made any material difference to Dr Kerr's assessment. [38] Mr Grove noted that Dr Kerr quoted an extract from Mr Phillips' report as follows: "Rochelle's knee has not really improved as might be expected following the findings which are those of increased joint surface degeneration and probable ACL insufficiency. Pain and weakness remain an issue. Physiotherapy does not seem to be adding anything further at this stage. Eventually I feel she will come to a knee joint replacement, and at this stage we should certainly seek a second opinion." It was submitted that Dr Kerr ignored that report when he found that "signs and symptoms are constantly present but only impact on a few activities of normal daily living and no treatments are required". Ms Yeoman had also written a short submission pointing out that Dr Bradford was correct when she stated that "Ms Yeoman was able to do only the bare minimum and during those activities she has great pain. Neither is she able to be effective in a job or leisure activities because of the limitation of function and the pain". [39] Mr Sumner pointed out that Mr Phillips' comment was taken from Dr Kerr's reference to the impairment rating for a skin disorder, not the knee joint. It was contained in a passage in the second version of Dr Kerr's assessment (not provided) which apparently stated: "Using table 2 on page 280 for skin disorders she rates Class I and at the top/mid end of this range with 6% WPI due to the flap size. Size and symptoms are constantly present but only impacts on a few activities of normal daily living and no treatments are required." Mr Phillips' comments, were directed at the orthopaedic aspects of the knee injury and there is no contradiction between those passages in the two reports. [40] Mr Grove submitted that both Mr Lawson and Mr Phillips, despite having an MRI scan, advised Mrs Yeoman that they could only diagnose her knee injury after a surgical procedure had been performed. He submitted that it was therefore questionable what benefit Mr Kerr expected from ordering an x-ray. Mr Sumner submitted that the x-ray was ordered to assess impairment for loss of cartilage using Table 62 on page 3/83 of the AMA Guides, as Dr Kerr stated. I understand this was a standing x-ray which would show the decreased joint space from deterioration of articular cartilage. Dr Kerr noted that the appellant had "5 mm of cartilage from the xray examination which from Table 62, p 83 does not rate any impairment". Mr Sumner noted that page 28 of the ACC User Handbook, provides the following notes in relation to the loss of cartilage interval method for rating arthritis impairment: "Loss of cartilage interval This method correlates well with disease progression, as most patients with arthritis are impaired by pain and weakness secondary to advanced joint surface degeneration. Don't use this method if there is a flexion contracture of the hip or knee (use the ROM method instead) Don't routinely order x-rays. They are only indicated where there are clinical signs of arthritis, or where there is clinical documentation reporting arthritis [41] Mr Sumner submitted that it was appropriate for Dr Kerr to order x-rays to assess impairment under Table 62 for arthritis because he had noted the clinical findings of Dr Phillips that there was "increased joint surface degeneration and loss of ACL insufficiency". Dr Kerr had also noted that the April 2005 MRI results were consistent with "bone oedema". There was a clinical basis for him to at least consider assessing for arthritis impairment, but in the event no such impairment was found. [42] Mr Grove submitted that Dr Kanji, who peer reviewed Dr Kerr, had no documentation other than Dr Kerr's report. It was submitted that the usefulness of the peer review was therefore limited to technical issues regarding the application of the AMA4 Guidelines, and carried with it the same deficiencies as Dr Kerr's report. Mr Sumner submitted that the instructing letter to Dr Kanji dated 23 March 2007 infers that relevant medical reports were also provided for the peer review. The letter states: "Could you please peer review this report to determine whether: The report complies with both the AMA Guides and the ACC User Handbook for AMA4; An impairment rating has been provided for all injuries for which ACC sought a rating; The clinical findings in the medical records are consistent with those obtained in the current medical evaluation." [43] The peer review did not change the assessment. Dr Kerr considered the peer review and reconsidered his assessment. The peer review does not warrant the same scrutiny as the assessment itself. It is a communication between practitioners. Mr Sumner referred to Wylie (247/06) in which Judge Beattie commented that ACC's practice of having peer reviews of assessments is simply designed to ensure that a claimant has been treated correctly in the assessment process. Dr Kerr was to apply his own judgement to Dr Khanji's comments and decide whether to modify his assessment. The argument is that the peer review did not have all the relevant documents, and that may well be so. However there is nothing to suggest that the peer reviewer's comments were misleading to Dr Kerr. In the circumstances, I find that the peer review process and outcome was routine and does not help to show a weakness in the WPI assessment. [44] Mr Grove submitted that Dr Bradford's opinion showed that the assessment was wrong. It was submitted that, whilst Dr Bradford found no diagnosable mental condition, she had a very detailed opportunity to assess overall levels of impairment caused by the accident injury. Therefore weight should be given to her assessment of 30% WPI. It was submitted that the Reviewer wrongly failed to recognise Dr Bradford's assessment. Dr Bradford is said to be an accredited Impairment Assessor with training under the ACC Independence Allowance Assessor Training Programme, but the Reviewer found that the claim was based only on a difference of medical opinion and that Dr Bradford's report was not an alternative assessment. [45] Mr Grove submitted that when ACC sought Dr Bradford's opinion on whether the applicant had sustained a mental injury as a result of her physical injury, ACC inexplicably failed to request her opinion of the AMA rating for the physical injury. But the answer to that is that the process set out in the Act does not envisage multiple assessment and there was no need for ACC to ask for another personal injury assessment from Dr Bradford. Mr Grove asked for a copy of the letter of instructions to Dr Bradford. Why this was not always available to Mr Grove is not clear, however it was eventually furnished. The letter began: "Further to my phone call to your office, I am writing to request information from you to help determine whether Rochelle's mental condition is clinically significant and has been caused by the personal injury suffered on 20/07/2003. This will also assist us to decide whether Rochelle is eligible to receive ACC assistance for this condition." [46] The request was clearly for advice to decide whether a mental injury claim should be accepted. The text of the letter contained a summary of the nature of the physical injury and referred to enclosed reports. It went on: "Diagnosis using the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), published by the American Psychiatric Association 'In your opinion, does Rochelle have a clinically diagnosable mental condition, in terms of the DSM-IV diagnostic criteria? If so, what is the diagnosis (please define this precisely)??" [47] The letter contained a list of mental injury causation questions. The form of the questions appeared to be taken from a checklist of information required in relation to a mental injury claim, but Dr Bradford did not have to answer most of the questions because she found that the appellant did not suffer a mental injury. I can find nothing in the letter to support Mr Grove's submissions that Dr Bradford's opinion concerning the physical injury should have been accepted by the Corporation in preference to Dr Kerr's assessment, or that showed a flaw in Dr Kerr's assessment. [48] Mr Grove then asked for an opinion from Dr Bradford as to impairment resulting from the physical injury, based on AMA guidelines, but in estimating a 30% WPI Dr Bradford did not explain the basis of calculation of physical injury impairment. Her assessment gave a single percentage and it cannot be compared with Dr Kerr's in order to identify a difference in methodology or calculation. [49] Mr Grove submitted that Dr Kerr was not given Mr Lawson's letters of 14 September 2005 and 22 November 2005. It is correct that an assessor should be provided with all relevant material, including records of treatment; see Chapter 3 of the Guides para 1.2. Dr Kerr did have four letters from Mr Phillips and his clinical notes relevant to treatment. The Reviewer found that Dr Kerr obtained Mr Lawsons' reports before a made an assessment. It is not demonstrated to any degree that Mr Lawson's reports contained more information relevant to the assessment that could have made a difference to Dr Kerr's opinion. Dr Kerr later commented that Mr Lawson's estimate of 30% related to the knee, not to whole-person impairment, and that it was not calculated under the Guides. [50] Mr Grove referred to the appellant's separate application for cover for a chronic pain condition as part of the consequence of her injury. A chronic pain syndrome is sometimes assessed as a mental injury, but many cases in this jurisdiction refer to chronic pain as an outcome of physical injury without specific cover for a mental injury. In the present case, where there is clearly still a physical injury, there should be no need to get separate cover for chronic pain unless there is an identifiable mental injury. Rather, it is part of the general consequences in the appellant's case that would be considered by any reporting practitioner. The practitioners dealing with Ms Yeoman's case would have considered the effect of pain as part of her impairment and there is no reason to consider that pain has been ignored. It is quite possible that it has increased between the assessments by Dr Kerr and later assessments. It is also possible that Dr Kerr did not fully appreciate the level of pain experienced by Ms Yeoman, but for the purpose of a review or appeal against an assessment the legislation does not allow the assessment to be upset on the basis of a possibility. [51] Mr Grove provided some post-hearing submissions in which he referred to the assessment of pain described in Chapter 15 of the AMA Guides. That chapter contains is a very useful discussion of the evaluation of pain in the assessment of impairment and descriptions of the concepts, classifications and models used in understanding pain. [52] To the extent that later opinions described worse symptoms or a deterioration in the appellant's condition, the appellant could consider making an application under clause 61(4) which states: (4) The Corporation must arrange for an assessor to reassess a claimant who produces to the Corporation a certificate from a registered medical practitioner indicating that the claimant's permanent impairment is likely to have increased since the date of assessment. Decision [53] I have had a great deal of difficulty following the threads of this appeal. The problems in understanding and comparing the various assessments were difficult enough, but the material has also come to light piecemeal and the last documents were received last week. [54] The basic difficulty lies with the different approaches taken to WPI assessment. Dr Kerr took a purely diagnostic approach. Dr Bradford found there was no mental injury within the scope of the Injury Prevention, Rehabilitation, and Compensation Act 2001, that is to say no clinically significant behavioural, cognitive, or psychological dysfunction. But Dr Bradford then estimated whole- person impairment as 30% without further explanation. Dr Bradford did not explain her use of the Guides and is no evidential basis for the Court to compare the weight of Dr Kerr's WPI assessment and that suggested by Dr Bradford on the basis that she would assess 30% if she had been asked. She did not provide a reasoned assessment. [55] Dr Christian also assessed a 30% impairment in a mental injury assessment in which he took account of the impairment criteria for a mental injury, that is to say the limitations in activities of daily living, social functioning, adaptation and concentration persistence and pace. The conclusion to be drawn seems to be that the appellant is impaired in all those areas, not from a mental injury but from the ordinary emotional and psychological consequences of her serious injury. [56] The effect of the Guides is that ordinary psychological consequences are not classified as impairment, although the very same considerations would be classified as impairment if the claimant had suffered a mental injury. What is measured by the AMA Guides relating to physical injury is the objective functioning of the body parts and organ systems; see Chapter 1 of the Guides. It appears to follow that there is no assessment available for what used to be referred to in the earlier compensation statutes as "loss of enjoyment of life", at least in the absence of mental injury. These comments are necessarily tentative because there has been no argument on the point in this appeal. [57] Assessment of physical impairment is measured by the tables set out in the Guides. Regulation 4 of of the Injury Prevention, Rehabilitation, and Compensation (Lump Sum and Independence Allowance) Regulations 2002 prescribes. 4. Assessment tool for assessing eligibility for lump sum payments and independence allowance (1) Assessment of a person's whole-person impairment, for the purposes of determining the person's eligibility to receive lump sum compensation or an independence allowance, must be carried out by an assessor using the assessment tool prescribed by subclause (2). (2) The assessment tool comprises - (a) the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition); and (b) the ACC User Handbook to AMA4. 3) The ACC User Handbook to AMA4 prevails if there is a conflict between it and the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition). [58] On page 29 of the User Handbook there is a comment about the use of gait for assessment of whole-person impairment, as follows: This method of assessment should be used only rarely (see text on AMA4 page 75). Always prefer the methods most fitting the nature of the injury. Change the figures in sections i, j, and k of table 36 to i = 55% j = 60% k = 64% The value for k is then equivalent to bilateral leg amputation (40% combined with 40% = 64%), which then satisfies the whole person model Don't combine the gait table with any other lower extremity ratings. [59] Dr Kerr's assessment followed those instructions. In Dr Christian's assessment of the physical injury, he used "gait or gait derangement" and Dr Kerr later wrote that as a result of this difference in methodology there are slightly different whole person impairments derived for the knee injury. On reviewing the information he did not see a need to change his assessment method. He also noted that Dr Christian's assessment was made nine months later. In fact it was made 17 months later. Dr Kerr's report was dated 21 March 2006. Dr Kanji's peer review was 12 April 2006 and the ACC decision was issued on 20 April 2006. Dr Christian's assessment was dated 13 August 2007. The time difference is significant because the appellant's impairment may have advanced during that time. [60] Dr Christian provided a credible opinion that an assessment based on the effect of gait, using table 36, 3/76, is the most appropriate and fair way of assessing the appellant's knee impairment. Dr Christian put emphasis on the appellant having arthritic change and wearing a rigid knee brace, which he considered analogous to a short leg brace. Dr Christian's assessment does not contain any analysis of the contrasting approaches taken by him and by Dr Kerr, and does not comment on the possible deterioration over 17 months. In that respect, Dr Christian did not attempt any challenge to the correctness of Dr Kerr's report when it was made but simply put up a different assessment at a later date. [61] All this raises a question whether there should be a re-assessment, although the appellant's position for the purpose of this appeal is that she has not suffered deterioration but was already impaired to the extent observed by Dr Christian. If Dr Kerr's assessment reflects the impairment in March 2006, Dr Christian's report provides a very good basis for reassessment. [62] The User Handbook recommends using gait derangement only rarely but also recommends use of the methods most fitting the nature of the injury. In Dr Christian considered it most fitting the nature of the injury. But the opinion goes no further than to demonstrate that there were two legitimate approaches to assessment of whole-person impairment in the appellant's case. The fact remains that Dr Kerr's assessment most closely followed the User Handbook. There has been no argument in this appeal as to why the assessment should be on the basis of gait derangement. Dr Christian simply stated that as the most appropriate method, and Dr Kerr took a different view. There is no principle requiring the most beneficial calculation to be taken. The principle to be applied is that the assessment on which the respondent's decision was based must be shown to have been wrong. [63] Apart from the emotional and psychological consequences of the appellant's injury there is also a question of chronic pain caused by physical injury. The Pain Clinic report in August 2006 stated that she has significant neuropathic pain that requires treatment. It is to be noted that the assessment of chronic pain is complex. It may be relevant with or without a mental injury. Page 308 of the Guides states: "15.6 Clinical Assessment Assessing the magnitude of the patient's pain and pain-related impairment requires a multidisciplinary approach based on the biopsychosocial model. In general, the assessment calls for the traditional approach of the physician. However, assessing chronic pain is a complex and lengthy process that usually requires hours if not days to complete. In difficult cases, it may be appropriate to enlist the aid of physicians specializing in pain medicine." The need for specialist or multi-disciplinary assessment of chronic pain is another reason for a further WPI assessment. [64] There is no dispute that Dr Kerr was appointed by the Corporation to conduct a whole-person impairment assessment under the Act and that the Corporation authorised him to conduct an assessment after receiving a certificate under cl 57 of Schedule 1. The appellant alleges that the assessment was not properly conducted or was wrong for the reasons: (a) that the Corporation did not provide Dr Kerr with full documentation relevant to the assessment and he was not aware of the devastating effects of the injury described by Dr Lawson (b) that Dr Kerr did not have an internal memorandum by Dr Stormer (c) that the peer review process interfered with the assessment d) that the peer reviewer was not provided with full documentation (e) that the assessment is inconsistent with whole-person impairment assessments given by Dr Christian and supported by Dr Kay Bradford. [65] I have given my reasons in dealing with each of those points. I agree with the Reviewer that the overall conclusion is that the other estimates or assessments have not been presented in the form of a sufficiently detailed whole-person impairment assessment to compare with Dr Kerr's assessment. After considering them, I find that they are differing opinions by other practitioners and do not provide cogent evidence of a flaw in the assessment or in the process of obtaining the assessment. [66] The question of impairment through chronic pain remains of concern in this WPI assessment. The later specialist reports suggest that there is a chronic pain problem that has not been assessed. I have found that the later opinions of impairment through pain have not been presented in a way that shows Dr Kerr's assessment to have been wrong. They do however indicate that the appellant's pain condition causes a level of impairment that was not recognised at the time of Dr Kerr's assessment and therefore her permanent impairment is likely to have increased since the assessment and should be certified under clause 61. I recommend that a certificate should be obtained for a further WPI assessment, and that there should first be a specialist or multi-disciplinary pain assessment in order to fully inform the assessor. 67] For the foregoing reasons the appeal is dismissed. Judge D A Ongley District Court Judge