Sweetman v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 109 / 96 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 2.2 95 / also AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN TH SWEETMAN APPELLANT (DCANO, 260/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act RESPONDENT Date of Hearing: 16 May 1996 Date of Decision: 11 october 1996 Appellant in person R F Irving as Counsel for Respondent DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is whether the Appellant is entitled to an independence allowance where the level of his disability is less than 10%. 2 At the conclusion of the hearing on 16 May 1996, the appeal was adjourned sine die to allow the Appellant to undergo a further assessment under section 54 of the 1992 Act in respect of an independence allowance. The Appellant was reassessed. In terms of the reassessment the Appellant achieved a disability score of 10.7. In terms of the second schedule of the independence allowance assessment regulations a disability of 0-13.1 equates to a percentage disability of 0-9. In terms of part ii) of the second schedule a percentage disability of 0-9 does not bring the Appellant within the margin for an independence allowance. As neither party wished to file further submissions the appeal was referred back to me for a decision. The background to this appeal is that on 28 March 1993, the Appellant cut his face and lips from a fall into a glass door. He endeavoured to obtain treatment from Middlemore Hospital the same day but was placed on a surgical waiting list and did not undergo surgery until four days later. On 22 April 1993 the Appellant completed a claim for cover and treatment expenses in respect of his accident which was accepted by the Respondent. The Respondent approved private surgery costs for plastic and reconstructive surgery in a letter dated 15 November 1993. About a year after the initial surgery, the Appellant was assessed by a registered psychologist on the effects of his scaring on daily living, social activities including the long terms effects if surgery was not undertaken. The registered psychologist's report documented the difficulties and problems the Appellant was having since his accident and recommended he should be compensated for a further operation to decrease the effects of the injury. The Respondent approved further surgery on 12 January 1995. Dr Donald Liggins plastic surgeon carried out scar revisions of the Appellant's mouth on 16 January 1995. On 11 March 1995, the Appellant made an application for an assessment of an independence allowance in relation to the remaining facial scarring on his top and bottom lip. On 28 March 1995 the Appellant was assessed for an independence allowance. His results sheets concluded that his level of disability was 4.0. Because the Appellant's disability was less than 10%, the Respondent concluded that he was not entitled to an independence allowance. The Appellant was notified in a letter of 12 May 1995. The Appellant was unsuccessful in his application for a review of this decision. The grounds of the Appellant's appeal is that the assessment schedule for calculating disability scores in respect of the independence allowance does not ask questions appropriate to the Appellant's type of injuries. Section 54 of the Act provides: 54(1) Subject to this section, every person who has cover under this Act is entitled to receive an independence allowance where the person's personal injury has resulted in a degree of disability of 10% or more. 54(5) The Corporation shall not pay nay independence allowance unless the assessment of the degree of disability of the person in respect of whom it is to be paid has been made in accordance with (a) scales provided under this Act which may be based on impairment or disability or a combination of impairment and disability; or (6 ) in the absence of the scales referred to in paragraph (a) of this subsection, the American Medical Association Guides to the Evaluation of Permanent Impairment (Second Edition) - and any such allowance shall be payable from the date of the assessment or the date determined under subsection (2) of this subsection, whichever is the latest. Regulation 7 of the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment) Regulations 1993 (1993/195) provides: (1) the claimant shall undergo a disability assessment carried out by an assessor using the Functional Limitations Profile set out in the First Schedule to these regulations, which profile shall be used by the assessor without reference to the weighting set out in the Functional Limitations Profile. (2) The assessor shall undertake the assessment in consultation with the claimant or, to the extent to which the claimant is unable to participate, the principal care giver or a family member acting on behalf of the claimant. Regulation 9 of the Regulations provides: Assessment Documentations - The assessor shall record the assessment on the assessment form provided by the Corporation and shall provide a copy of the completed form to the Corporation and the claimant. Regulation 10 provides: Calculation of Disability - the Corporation shall, upon receiving a copy of the completed assessment from referred to in regulation 9 of these regulations, calculate the claimant's percentage disability resulting from personal injury in accordance with Part 1 of the Second Schedule to these regulations. 5 I agree with the Appellant's submissions that the assessment schedule for calculating disability scores in respect of the independence allowance does not ask questions appropriate to the Appellant's particular type of injury despite his suffering. Bookers Accident Compensation New Zealand (Wellington) 1992 (paragraph 7.04) comments on regulation 7 and the Functional Limitations Profile as follows: "The profile in the schedule is extraordinary in that the types of questions asked and the fact that the questions are mandatory. The only discretion that the assessor had is in regard to the culture, language and gender of the claimant ... part I of the schedule also indicates that only a positive or yes answer is to be recorded" Concerns have previously been raised with questions set out in the Functional Limitations Profile in a number of District Court cases on independent allowance assessments and in particular in Boswill -v- ARCIC (63/94) and Valentine -v- ARCIC (98/94). Regrettably, in my view, there is no discretion or authority for either the Respondent or this court to depart from the assessment procedures as stipulated in the regulation. Furthermore, it has not been alleged that the assessments, were carried out incorrectly or that the calculations are incorrect or that there was any procedural unfairness in the way that the tests were carried out. 6 The Appellant will not be able to get what he regards as fair compensation for his injury through the appeal procedure. It requires the use of a different questionnaire which cannot be done without an amendment of the Regulations and Act. The appeal must be dismissed. There will be no order for costs. . ........... Jane H. Lovell-Smith District Court Judge