Petersen v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 249 198 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 SUSAN PETERSEN DCA 157/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 12th day of November 1998 APPEARANCES: Miss S Petersen in person Ms L Rice, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation was correct to rule that the appellant was no longer entitled to an Independence Allowance. Background In August 1995 the appellant then aged 43 years suffered an injury to her back whilst bending and stretching to pick orchids. The medical diagnosis was a lumbar disc 2 strain L4-5. The initial treatment prescribed was a course of physiotherapy. X-rays taken on 28 August 1995 disclosed: Minimal rotary scoloisis are present, convexed to the left, centered at L3. Slight hyperlordosis of lumbar spine is also shown. Minimal narrowing of L5/SI disc is within normal limits. There is no evidence of fracture. displacement or of focal bony lesion. Facet and sacro-iliac joints are within normal limits. On 20 November 1995 Mr Duthie Mills, orthopaedic surgeon, reported to the appellant's GP that the ex-rays taken were unremarkable and that a Ct scan reported a "mild central posterior disc bulge at the L5/S1 level." Mr Mills concluded that it was likely that the appellant's symptoms were caused by a minor lumbar disc protrusion at the lumbo sacro junction. He referred the appellant for an epidural steroid injection at the pain clinic at Middlemore Hospital. On 20 November 1995 the appellant applied for an Independence Allowance and an assessment was carried out in accordance with the then Independence Allowance Assessment Regulations 1993 by the National Research Bureau at Auckland. The assessment carried out was that of the Functional Limitations Profile Questionnaire and the appellant was assessed as having a disability score of 28.5 which equated to 34% and an entitlement of $7.52 per week. On 1 July 1997 section 54 of the Act was repealed as were the regulations relating to Independence Allowance made under it. As from that date a new regime was implemented which provided a different system for the assessment of entitlement to an Independence Allowance, the emphasis shifting from assessment of disability to one of whole person impairment, such assessment being required to be carried out by a medical practitioner duly appointed under the Act using the American Medical Association Guide to the Evaluation of Permanent Impairment (4th ed.) In August 1997 the appellant sought a reassessment of her entitlement on the basis that her condition had deteriorated since the last assessment. 3 On 25 September 1997 Dr Hollister-Jones carried out an Independence Allowance assessment and his report stated as follows: Susan moved freely when walking, although sat stiffly. On examination of the lumbar spine there was no wasting, although significant bilateral muscle spasm and reduced lumbar lordosis. She had only a few degrees of lumbar flexion whilst standing but in fact was able to put her socks on whilst sitting on the bed. She was tender about L5/SI but also generally up into the thoracic spine. Straight leg raise was negative. There was altered sensation in both feet of a glove and stocking distribution, although somewhat worse along the outer aspect of both legs and the lateral border of each foot. Power, tone and reflexes were normal in both lower limbs although affected by giving-way weakness. Rectal examination revealed a minor reduction in anal sphincter tone. He noted that the x-ray of the appellant's lumbar spine in August 1995 revealed minimal narrowing of L5/S1 disc which was within normal limits and reference to the AMA Guides determined that she had a 5% impairment of the lumbar spine but no impairment in respect of her bladder and bowel. Patient has voluntary control but is impaired by urgency and incontinence. Absence of CT findings suggesting nerve root impingement makes it highly unlikely that her back injury has caused bladder or bowel impairment... . Clearly the injury in 1995 resulted in acute back pain. It is unclear as to what extent this injury has resulted in chronic pain. In addition, the lack of CT findings makes it difficult to link her bowel/bladder symptoms to a back injury. Ms Petersen has a number of features consistent with a chronic pain syndrome including dramatisation, lack of effect of common analgesics, dependency, depression and loss of function through disuse. Dr Hollister-Jones noted that her condition was stable and that his findings were consistent with those found by previous examiner. On 30 September the respondent advised the appellant that she was no longer entitled to receive the Independence Allowance as her impairment, due to personal injury, was less than 10%, being the minimum percentage allowable under the Act as amended. The appellant sought a review of that decision and in her decision dated 12 March 1998 the Review Officer found that the statutory provisions had been followed and 4 the assessment so made was correct and the Corporation's decision to cancel her entitlement was thereby confirmed. For the purposes of her appeal to this Court the appellant obtained leave to produce medical reports from Duthie Mills and Mr B J Thorn. In his summary Mr Mills stated: Miss Petersen is best accounted to have suffered chronic low back strain but there is certain features of her presentation which indicate abnormal illness behaviour. I doubt that further referral to the Pain Clinic would be of any benefit this time. I have suggested that Miss Petersen obtain a series of exercises and stretches from her physiotherapist so that she can undertake an exercise programme in her own time. Mr Thorn's report dated 6 August to the appellant's GP stated inter alia: On examination she presented in a straight forward manner with normal gait pattern. I noted spinal tenderness throughout the course of the spine from the occiput to the sacrum which was perhaps maximal in the lower lumbar spine. Movements of the back are severely limited when formally examined, fingertips barely reaching knee level in very limited extensions. Of note, her low back and leg pain was aggravated by forced neck extension and forehead compression and her low back pain alao aggravated by neck inflexion. She could just manage to heel and toe walk. When the patient was examined supine straight leg raise on the left side induced pain in the low back at about 30% and of note this was pain which was not aggravated by dorsi flexion of the foot but was bya plantar flexion of the left foot. On the right side there was similar limitations of straight leg raise, again with symptoms worsened by foot plantar flexion which interestingly also brought on posterior leg painand only minimally affected by dorsi flexion of the foot. She had a stocking type distribution of altered subjective sensation, but her reflexes were symmetrical and brisk, plantars were down going and test of muscle power revealed no obvious abnormality. The most recent x-ray was taken at Bay Radiology on 14.4.98 and this shows slight loss of height of the LS/SI disc space and a mild lumbar scoliosis convexed to the left. No other structural abnormality was seen. I note from one of Mr Mills' reports that a CT scan performed at some stage at Middlemore Hospital shows mild bulging of the L5/SI disc. This in my view would be consistent with the disc height narrowing noted on current x-rays. It is difficult to provide Mrs Peterson with a precise diagnosis of the cause of her back complaint, although injury to the lumbo sacro disc may have precipitated her current symptoms. I do not believe that Ms Peterson would be well served by surgical treatment at this point. There are some features of the clinical examination as pointed out in this report which would suggest that there has been prolonged difficulties in coping with her back complaint and we do not have good clinical evidence of single level disc prolapse. She has a very poor range of motion in her back with pain aggravated by other activities such as neck movement and the signs in her leg would not support a diagnosis at nerve root tension. Relevant statutory provisions Section 54 of the ARCI Act provides, inter alia: 54. Independence allowance- (1) Subject to this section, every person who has cover under this Act is entitled to receive an independence allowance at the appropriate prescribed rate if the person's personal injury has or personal injuries have resulted in a degree of whole-person impairment of 10 percent or more. Section 54A of the ARCI Act provides, inter alia: 54A Assessment and reassessment - (1) For the purposes of section 54 of this Act, a whole person's whole-person impairment shall be assessed in accordance with regulations made under this Act. The Accident Rehabilitation & Compensationn Insurance (Independence Allowance Assessment & Rates of Payment Regulations) 1997 came into force on 1 July 1997. Regulations 3 and 4 provide: 3. Assessment of whole-person impairment - Assessment of a person's whole-pereson impairment, for the purposes of sections 54 and 54A of the Act, must be carried out by an assessor using the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed.). 4. Assessors - The Corporation must appoint as many persons as it considers necessary to carry out assessments under regulation 3. In her submissions to this Court Miss Petersen related the difficulties her injury caused her in her day to day living and of the many activities that she was now no longer capable of doing. She related occasions when she was rendered immobile when her back and legs seized up. She felt that she was really only a quarter of a whole person in what she could do and that she was in constant discomfort and pain. She submitted that on the basis of what her limitations were, and of the opinions of 6 orthopaedic surgeons, she could not understand how her whole-person impairment could be assessed as being so little, especially having regard to the disability percentage that the first assessment had established. Ms Rice, counsel for the respondent, submitted that the criteria for assessment under the AMA Guides was completely different from that applied under the Functional Limitation Profile previously used. She stated that the FLP assessment was a subjective assessment requiring some 120 odd answers by the claimant to various questions. She submitted that what was obtained was a snapshot of that person on the day and was really a subjective perception of how a person's disability was affecting them. She submitted that the new system for assessment was wholly objective and was required to be carried out by persons specially trained and appointed for the purpose. She submitted that the respondent had carried out the assessment in accordance with the Act and regulations and there was no evidence to suggest that the assessor had made any error in the manner of his assessment. Decision As was stated by Ms Rice, counsel for the respondent, the method of assessing entitlement to Independence Allowance now is entirely different from that which formerly applied when the 1992 ARCI Act was enacted. It might be said that the assessment of disability in percentages would be similar to that which had previously applied for determining lump sum payments under the 1972 and 1982 Acts. However the evidence that this Court has heard in the various appeals that have come before it on this question of Independence Allowance assessment would indicate that there is no corelation between a percentage disability under the FLP assessment and that of whole-person impairment under the AMA Guides. The present appellant's circumstances are a case in point, where a percentage disability of 34.4% is translated into a 5% whole-person impairment even though her orthopaedic specialist would suggest that her condition had deteriorated since the time of that earlier assessment. 7 This Court is required to interpret the law and determine whether or not it has been applied in any particular case. An analysis of the reports of Duthie Mills and Mr Thorn would indicate that they are not seeking to question the assessment made by Dr Hollister-Jones, indeed their reports do not even refer to that assessment. I find that they are looking at the matter from quite a different perspective, more so from a functional disability perspective than that of whole-person impairment. There is no evidence to suggest that the assessment carried out by Dr Hollister-Jones was not correctly carried out or that he did not properly interpret and adhere to the AMA Guides. His report is quite specific and would be open to question should there be grounds for so doing. His assessment was reviewed and considered by the respondent's branch medical advisor who confirmed the correctness of same in the absence of any evidence to the contrary and this Court must accept that the assessment of the appellant has been carried out in accordance with the Act and the regulations made under it. In those circumstances, despite the obvious sympathies the Court can have for the appellant's predicament and her being perplexed at the position she now finds herself in, it has no option but to confirm the correctness of the decision to revoke her allowance on the basis that her whole-person impairment is less than the statutory minimum. For this reason this appeal must be dismissed. DATED at WELLINGTON this 1st day of December 1998 M J Beattie DISTRICT COURT JUDGE Petersen.doc