Estate of Patrick McGinty v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. [2010] NZACC /K9 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an Appeal pursuant to Section 149 of the Act BETWEEN THE ESTATE OF PATRICK MCGINTY (Al 230/09) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 12 July 2010 APPEARANCES Ms J. Andrew, Counsel for Appellant. Mr A. D. Barnett, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] This Appeal relates to the lump sum compensation entitlement of the now deceased, Patrick McGinty, in respect of his covered personal injury of pleural plaques and asbestosis. [2] The Respondent's primary decision, following a whole person impairment assessment carried out on 29 June 2007, was issued on 28 September 2007 and determined that the deceased was entitled to lump sum compensation based on whole person impairment of 22 percent. [3] That primary decision was taken to review by representatives of the deceased's Estate, the deceased having died on 20 September 2007, and in a review decision dated 8 May 2009, the Reviewer modified the Respondent's primary decision by increasing the deceased's whole person impairment to 44 percent. 2 [4] That decision is now the subject of the Appeal to this Court and where it is contended for on behalf of the Estate, that the deceased's whole person impairment should have been determined as being 80 percent, and it is on the basis of that contention that this Appeal has been brought. [5] There is no cross-appeal from the Respondent, it accepting the Reviewer's decision. [6] The background facts relevant to the issue in this Appeal may be stated as follows: . As of the date of the assessment for lump sum compensation, which is now in issue, the deceased was aged 67 years. . Between 1960 and 1972, the deceased was employed as a furnace operator, in the course of which he wore asbestos gloves. . In or about 2002, the deceased began to develop shortness of breath, cough and copious white phlegm. In 2005, a CT scan showed pleural plaques, emphysema and interstitial changes with fibrosis, honeycombing and traction bronchiectasis. The deceased's condition was diagnosed as a mixture of asbestosis and emphysema, the deceased having been a long time tobacco/cigarette smoker. . In October 2005, the deceased lodged a claim for cover in respect of his work related asbestosis and cover for same was duly granted. In December 2005, the deceased made application for lump sum/Independence Allowance. In April 2006, the deceased was assessed for his covered injury by Doctor Tom Bracken, duly appointed assessor. At the time of that assessment, it was identified that the deceased had other non-covered medical conditions being emphysema, carcinoma of the pancreas, right inguinal hernia and chronic back pain. Dr Bracken assessed the deceased's whole person impairment in respect of his asbestosis as being 10 percent. 3 The deceased sought a review of that decision, and that application for review caused the Respondent to reconsider its position, and in the light of a recent Court of Appeal decision in the Estate of Priddle, it determined that the deceased was eligible for lump sum compensation rather than an Independence Allowance, and it determined that he was entitled to lump sum compensation based on whole person impairment of 10 percent. . That decision was reviewed and in a decision of 5 March 2007, the Reviewer directed that the deceased be reassessed for lump sum compensation, and that assessment take account of a recent respiratory function analysis conducted by the Auckland District Health Board. . Consequent upon the Reviewer's direction, the Respondent referred the deceased to Professor Ross Mccormick for assessment, and Dr Mccormick carried out an assessment on 29 June 2007. Whilst Dr Mccormick had relevant medical reports for reference, he did not have a report dated 2 March 2007 from Dr John Kolbe, Respiratory Physician, to whom the deceased had been referred by his GP. Dr Mccormick's report dated 6 September 2007 determined that the deceased's impairment rating was 49 percent but that this figure needed to have non covered injury factors, principally emphysema deducted and his final whole person impairment for the covered asbestosis was determined as being 22 percent. The Respondent issued its primary decision, the forerunner of the decision now under Appeal, on 28 September 2007, determining that the deceased was entitled lump sum compensation based on a whole person impairment of 22 percent. At the date that the Respondent issued that decision, it was not aware that the deceased had died on 20 September 2007, as a consequence of pneumonia against the backdrop of his asbestosis. The deceased's Estate sought a review of the Respondent's decision and by the time the matter came to a review hearing in February and April 2009, further reports from Dr Mccormick and Dr Kolbe had been introduced, as had details of the cause of the deceased's death from a Pathologist. Prior to the review hearing, the Respondent had asked Dr Mccormick to consider the report of Dr Kolbe of January 2009, which report had stated that an assessment of the deceased's pulmonary impairment should involve consideration of his DLCO (gas transfer). In a review of his assessment, in the light of Dr Kolbe's advice, Dr Mccormick adjusted his assessment by accepting that the deceased's asbestosis was the dominant factor in his impairment, and he therefore, advised that the correct whole person impairment was in fact 90 percent of 49 percent, namely 44 percent WPI due to asbestosis. It was on the basis of Dr Mccormick's revised assessment that the Reviewer, Mr Dunn, modified the Respondent's primary decision to show a WPI of 44% and in respect of which the deceased's Estate was entitled to lump sum compensation. For the purposes of the Appeal to this Court, further reports from Dr Kolbe and Dr Mccormick have been introduced. [7] In this case, the Appellant was seeking lump sum compensation for respiratory impairment caused by his asbestosis and in accordance with the AMA Guides, 4th Edition, the assessment of impairment is identified after carrying out various tests, the 3 main tests being: i. FVC - Forced Vital Capacity; ii. FEV - Forced Expiratory Volume in the first second; and iii. DCO (or DLCO) - Diffusing Capacity of Carbon Monoxide. It is the latter measurement, which is the most relevant in this case and where in the Guides, it is stated that the DCO is primarily of value for persons with restrictive lung disease. [8] Under Table 8 on page 162 of the Guides, those various categories of measurements are shown in 4 classes; and where in Class 3, described as moderate impairment, the whole person impairment is between 26 percent and 50 percent; FVC is between 51 percent and 59 percent of predicted; FEV between 41 percent and 59 percent of predicted; and DCO between 41 percent and 59 percent of predicted. 5 (9] Class 4 of Table 8, which is described as severe impairment, namely 51 percent to 100 percent, where FVC is less than 50 percent of predicted, FEV less than 40 percent of predicted and DCO less than 40 percent of predicted. [10] In the first assessment conducted by Dr Bracken in April 2006, he was provided with computerised spirometry ratings which had been carried out by the Adult Respiratory Function Laboratory at Auckland Hospital, and the two tests measurements used by Dr Bracken gave a FEV of 75 percent of predicted normal and a FVC of 98 percent, which Dr Bracken identified was at the lowest end of mild impairment in Class 2, and which he then translated into 12 percent WPI, and from which he deducted 2 percent of the respiratory impairment for the emphysema, leaving an impairment due to asbestosis of 10 percent. [11] When Dr Mccormick came to conduct his assessment, he was provided with pulmonary function tests which had been carried on the 27 February 2007, and where the 3 tests measurements were as follows: i. FVC - 67 percent of predicted; ii. FEV - 80 percent; and iii. DCO - 42 percent. [12] Using those figures as the basis for his assessment, Dr Mccormick stated as follows: Impairment rating: Table 8 pg 162 of the AMA Guides would rate Mr McGinty's pulmonary function as 19% whole person impairment (based purely on his FVC result), or as 49% (based purely on his DCO result). His FEV1 result was normal. His FVC is a reflection of restrictive lung disease and his DCO is a reflection of his emphysema and of his asbestosis in approximately equal measures considering the views of Dr Kolbe and Dr Monigatti. Mr McGinty thus has 22% whole person impairment due to his asbestosis." "Whole person impairment percentage: 22%." "Mr McGinty has impairment due to his asbestosis. His problems are permanent and stable according to the ACC definition of stability. The data I have used is objective and measured. No known other medical condition has contributed to Mr McGinty's assessed respiratory percentage impairment. I have explained why I have selected each portion of the Guides at the appropriate point in this report." "Note that should Mr McGinty develop mesothelioma or other more severe asbestosis related lung disease he would automatically justify a high respiratory impairment percentage and his permanent impairment percentage should be reassessed." [13] In January 2009, Dr Kolbe provided a report to Ms Andrew in which he noted that the deceased had a complex lung disease, being a combination of chronic obstructive 6 pulmonary disease (COPD) and being pre-dominantly emphysema and a form of diffused interstitial lung disease (DILD) specifically that of asbestosis. He then went on to advise that in his opinion, using FEV/FVC were not appropriate to identify the degree of pulmonary impairment. He advised that the most appropriate figure was that of the DCO (gas transfer). He then went on to state as follows: "Some of the occupational medicine assessors have tended to attribute the impairment of pulmonary function equally to the two conditions; COPD and asbestosis. However, the pattern of abnormality of lung function is that of restrictive lung disease, suggesting that the asbestosis was the prominent cause of the pulmonary impairment and thus of the patient's disability." [14] That report was provided to Dr Mccormick for him to comment and which he did on 10 February 2009 and which he took account of when he reassessed the degree of impairment of the emphysema and which he stated as follows: 'Impairment rating: Table 8 p 162 of the AMA guides would rate Mr McGinty's pulmonary function as 19% whole person impairment (based purely on his FVC result), or as 49% (based purely on his DCO result). His FEV1 result was normal. His DCO result is a reflection of his emphysema and his asbestosis. Dr Kolbe used words such as "dominant" and "much more likely" when ascribing cause of respiratory impairment to Mr McGinty's asbestosis rather than his emphysema. Interpreting dominant to mean "90% of, Mr McGinty has 90% of 49% = 44% whole person impairment due to his asbestosis." [15] The final word on the matter, as presented to the Court was a letter from Dr Kolbe dated 11 March 2009 to Ms Andrew and which he stated inter alia as follows: "Mr McGinty died on 20 September 2007. The last detailed tests of pulmonary function were undertaken on 27 February 2007." "Mr McGinty had severe respiratory impairment and was clearly deteriorating. Further lung function testing would have likely caused the patient distress and would not have influenced patient management." "On 27 February 2007 his DCO (gas transfer) was 42% predicted. His DCO was 59% predicted in May 2005. He had deterioration in his respiratory status between February 2007 and his terminal illness. Certainly on 29 August 2007 there had been a deterioration in his FEV1 to 64% predicted; in February 2007 this had been 80% of predicted." "Therefore it seems very reasonable to assume that he would have had further fall n DCO between February 2007 and his death. As such, it is likely that his DCO would have fallen below 40% predicted. As such, he would be in Class 4 Impairment (51-100% of the whole person)." [16] For the sake of completeness, it should be noted that the cause of the Appellant's death, as identified by the Pathologist, was that of acute pneumonia in association with the interstitial fibrosis due to asbestosis. Dr Kolbe commented that the deceased's proven underlying lung disease would have reduced the likelihood of his being able to survive such an insult. 7 [17] Another feature commented on by Dr Kolbe was the fingertip clubbing which is referred to in the post mortem report of Dr Vuletic, Pathologist, and where it is described that the deceased had a severe degree of clubbing on the hands and feet. The clubbing referred to is explained by Dr Kolbe as being a change in the profile of the finger tips associated with some form of lung disease including asbestosis. [18] Ms Andrew, Counsel for the Appellant, placed prime importance on the expressions of opinion of Dr Kolbe, including his opinion that the asbestosis was the prominent cause of the pulmonary impairment suffered by the deceased, and of his opinion that subsequent to the last measurement of the deceased's respiratory status in February 2007, and prior his terminal illness, there would have been a deterioration, particularly in the DCO, and that the correct assessment of impairment must bring it within Class 4 of the Guides. [19] Counsel submitted that the Reviewer ought to have identified that further deterioration and made an allowance accordingly in line with Dr Kolbe's opinion. She submitted that a WPI of 80 percent was appropriate. [20] Counsel in effect submitted that as of the date of death, or shortly prior thereto, the evidence is that there had been a further deterioration of the Appellant's lung disease, that deterioration in part being identified because of the fingertip clubbing, and therefore a higher percentage of impairment was warranted than that which was given by Dr Mccormick and adopted by the Reviewer. [21] Mr Barnett, Counsel for the Respondent, submitted that the only assessment of whole person impairment is that of Dr Mccormick, the reports of Dr Kolbe do not amount to an assessment within the meaning of the Act. [22] Counsel further submitted that the opinion of Dr Kolbe was that the asbestosis was the prominent cause of the pulmonary impairment not the dominant cause, which seems to be the assertion of Counsel for the Appellant. [23] He further submitted that whilst it is accepted that the DCO reading is crucial, this was accepted as such by Dr Mccormick and for this reason, the deceased was placed in Class 3. Mr Barnett identified that there was no subsequent DCO testing and that in any event, Dr Mccormick placed the deceased at the top end of Class 3, and that it cannot be predicted what any further reading might have been in September 2007. [24] Counsel also referred to the fact that the cause of the deceased's death was pneumonia and that this was not a medical condition which the deceased had at the 8 time the assessment was done and the assessment for the asbestosis must not be confused with what ultimately came to be the immediate cause of death. [25] Finally Counsel submitted that Dr Kolbe could say no more than in his opinion the deceased had probably gone into the Class 4 category but he was not able to state any figure between 51 percent and 100 percent. Counsel submitted that it would not be appropriate for the Court to step in and give a figure. DECISION [26] This Appeal relates to the quantum of lump sum compensation to which this deceased was entitled arising from his covered personal injury of asbestosis. [27] Clause 60 of Schedule 1 to the Act notes that the Corporation determines an amount of lump sum compensation based on an assessment of whole person impairment under clause 59 and the regulations under clause 56. The assessment tool provided for in regulations made under that clause is the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) and the ACC User Handbook to AMA (4th Edition). [28] Clause 59 requires an assessor to exclude from the assessment any permanent impairment that does not result from the personal injury for which the claimant has cover. Thus, in the case of the deceased, his diagnosed emphysema from long time smoking had to be taken into account and if applicable, to have any impairment from that source deducted from the overall percentage of impairment. [29] In that regard, it was noted that in the first assessment of Dr Mccormick, he considered that the Appellant's overall lung disease impairment was equally as a consequence of the asbestosis and emphysema, but it was this aspect that was significantly modified by Dr Mccormick, where the emphysema was only identified as contributing 10 percent, and in line with the opinion of Dr Kolbe, the prominent cause of the deceased's pulmonary impairment was the asbestosis and which in effect, Dr Mccormick translated into 90 percent. [30] The assessment carried out by Dr Mccormick in June 2007, was the only assessment in terms of the Act and for that assessment Dr Mccormick had the results of the pulmonary function tests carried out on 27 February 2007 and it is the case that Dr Kolbe did not have any other test results to refer to when he gave his views on the matter. 9 [31] It is to be noted that Dr Kolbe's primary point of difference with Dr Mccormick on the assessment was simply the percentage by which the WPI needed to be adjusted to take account of the emphysema and I find that indeed, Dr Mccormick accepted and adopted Dr Kolbe's opinion that in the case of this deceased, the DCO (gas transfer) measurement should be the measurement upon which to determine the degree of impairment. I find that it cannot be questioned that Dr Mccormick giving 10 percent for the emphysema is not appropriate as the 90 percent remainder would be regarded as being at the top end of prominent which was Dr Kolbe's expression. [32] The final report from Dr Kolbe, being his letter to Counsel on 11 March 2009, is simply him surmising that the DCO would have had a further fall prior to the deceased's death from that which was measured in February 2007. I find that whilst it was open to Dr Kolbe to make such a supposition, it cannot be translated into a factor upon which some new impairment assessment could be made. [33] In the circumstances of this case, I find that as a matter of law, the Respondent carried out an assessment as was required of it and it made a decision which was subsequently modified at review. I find that there is no evidence to suggest that the Reviewer's decision was not in accord with the established facts, which by that time included the considerable lessening of the impact of impairment from emphysema. [34] If it had not been the case that pneumonia overtook the deceased's medical condition, it would have been open for a further assessment to have been carried out at the expiry of twelve months from the date of Dr Mccormick's June 2007 assessment. It would have been at that point, that any deterioration, which may have resulted in an increased impairment, would have been able to be identified and any such increase recognised by way of increased lump sum. [35] As a matter of law however, there has been no further assessment, nor could there be one, and I find as a fact, and as a matter of law, the opinion expressed by Dr Kolbe as to what the deceased's impairment situation may have been in September 2007, cannot affect the validity of the assessment that was made in June 2007. The date and time of Dr Mccormick's assessment was a snapshot in time and there is simply no evidence to establish that as of that snapshot, the criteria upon which he was relying was other than correct and appropriate. [36] As I have noted, a subsequent snapshot may have identified a different picture but that, regrettably, could not come about. In terms of clause 60 of Schedule 1, the assessment carried out by the Corporation under that provision and the other relevant 10 clauses constitutes the assessment upon which the quantum of lump sum compensation is to be determined. (37] A final matter raised by Counsel for the Appellant was the Reviewer's decision on the question of costs relating to the review. It is the case that the Reviewer did not award costs but rather only allowed the disbursements for Dr Kolbe's report. The Reviewer has given no reason for not awarding costs and in view of the fact that the applicant was significantly successful in that Review, I find it most surprising. Accordingly, I direct that the Respondent pay Review costs applicable for a successful application for review in accordance with the regulations. The deceased was, of course, represented by Ms Andrew, at that Review. [38] The jurisdiction of this Court, is limited to a consideration of the Review decision in question only, and Counsel for the Appellant's request that the Appeal Notice be amended to include a claim for Review costs in respect of another Review decision relating to fatal entitlements cannot be had, as such Review decision is not before the Court in terms of section 149 of the Act. (39] In summary therefore, the Appeal against the Review decision in relation to the deceased's assessed whole person impairment is dismissed but the Appeal is allowed in relation to the determination as to entitlement to Review costs. The Appellant being unsuccessful on the substantive issue, I make no order for costs. DATED this day of September 2010 M J Beattie District Court Judge