Leeming v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 324199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN VANA MAE LEEMING of Christchurch Appellant (Appeal No. DCA 276/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 20th day of October 1999 APPEARANCES/COUNSEL I J D Hall for appellant B A Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to accept Dr Musgrove's assessment of the appellant's incapacity for the purpose of an independence allowance grant. The appellant suffered a back injury on 24 January 1994 when lifting a box of equipment. The respondent accepted her claim for cover and in 1994 she underwent a discectomy operation. Thereafter the appellant was assessed for an independence allowance carried out on the then requirement of the Functional Limitations Profile Questionnaire as included in the regulations at that time. 2 In 1998 the appellant applied for a reassessment of her independence allowance. The respondent referred her to Dr J Musgrove, a general practitioner, who is a duly appointed assessor under the Accident Rehabilitation and Compensation Insurance (Independence Assessment and Rates of Payment) Regulations 1997. His assessment was that the appellant suffered a 10% whole person impairment based on the American Medical Association Guides to the Evaluation of Permanent Impairment (4" Edition). The respondent's branch medical advisor, Dr Chambers confirmed that assessment and advised the appellant that it accepted the 10% degree of impairment. The appellant applied for a review of that decision. When the application for review was lodged the matter was again referred to Dr Chambers who provided a file memorandum in which he stated that there was a difference between using Table 72 on page 3/100 DRE category Ill on the one hand and the ROM method on the other. He said that the reason why the Guide uses the DRE method "is that it is considered that it more accurately reflects impairment and is in line with modern medical opinion". He said that: "The ROM method does not reflect impairment because it is subjective. It is notoriously difficult to measure accurately the loss of motion and repeat examinations given grade variations. Pain is taken into consideration when estimating impairment with both methods". On 28 January 1999 Mr Hall advised that the appellant had seen Mr Jones, an orthopaedic surgeon, who had diagnosed a "substantial mechanical problem" for which he arranged for x-rays. Mr Hall submitted that Mr Musgrove's assessment was completely wrong, particularly as Mr Jones, being an orthopaedic surgeon, had been able to diagnose a serious problem within a matter of 5 minutes. In a further file memorandum of 2 February 1999 Dr Chambers confirmed that he considered Dr Musgrove's examination was "perfectly adequate" and that Mr Jones had given an opinion as to a diagnosis rather than a degree of impairment. Mr Hall subsequently submitted Mr Jones' brief letter of 21 December 1998. In that letter Mr Jones stated: "I reviewed very briefly Vana Leeming this morning and arranged an xray of her lumbo-sacral spine which showed complete absorption of the lumbo-sacral disc which is responsible for her ongoing impairment. I did not sit down to assess her from the chronic pain point of view as there is an obvious mechanical problem that needs to attention. This is the direct consequence of the disc prolapse for which she subsequently had a fenestration procedure in 1994, although interestingly her initial CT scan that I reviewed showed that the lumbo-sacral disc was failing with gas within the disc at that time. 3 My recommendation to her has been to go back to see Dr Des Keenan, to be referred to Grahame Inglis for an endoscopic transperitoneal lumbo-sacral fusion, and following that, which I believe would successfully relieve her of 90% of her pain, a formal assessment as to her ongoing impairment could be made." The issues raised by Mr Jones were then referred to Dr Musgrove, who provided a report on 22 February 1999 in which he stated: "Ms Leeming was a very difficult person to assess. She was in some pain and had difficulty moving but had little in the way of neurological signs apart from limited straight leg raising. She was going through a very traumatic time because of other factors during the time after her injury. I was unable to classify her in categories IV or V because there were no X-rays showing loss of motion. The only way her impairment could have been at a higher level was if a factor for chronic pain had been included. However, pain is allowed for in the various categories so adding in a second factor for pain would have been duplicating that impairment. If there were X-rays of her spine in flexion and extension which showed a loss of motion, her impairment could be reassessed. The operation does not alter the impairment and her original impairment is based on spondylosis with radiculopathy i.e. category III. I do hope that she is helped by a further operation and her pain is relieved. However, the information given me at the time of the assessment contained opinions that a further operation would not help." On 25 March 1999 Mr MacFarlane, a neuro surgeon, reported to Dr Keenan that the appellant was concerned at the possibility of an operation to achieve a fusion at the L5/S1 level and proposed obtaining a further opinion. Mr MacFarlane said that he was obtaining an MRI scan and he subsequently reported on 15 April that that showed no new lesion but considered that the appellant should discuss the possibility of an L5/S1 fusion with her orthopaedic surgeon. As a result of that advice the appellant saw Mr J Evison, an orthopaedic surgeon, who reported to Mr MacFarlane on 19 May 1999. His recommended treatment was: "Although a significant component of her low back pain must be related to her degenerate L5-S1 disc, the fact that she has persistent extreme left sciatica concerns me in the absence of any obvious anatomical correlate. I have explained to her that her leg pain may be referred from the disc but that several other factors mitigate against a good result for lumbar or sacral fusion, in particular the length of time she has had symptoms, her heavy smoking and previous opiate intake. This doesn't preclude surgery which I have explained to her I would undertake through a posterior approach so that the left L5 root could be explored using instrumentation to augment the fusion because of her smoking. I plan to review her in 3 months time to re-visit the question of fusion and got to know her a little better." 4 The review hearing took place on 29 April 1999 when Mr Hall submitted that Dr Musgrove had failed to direct himself to the appellant's loss of motion segment integrity. He submitted that Dr Musgrove was not the appropriate person to undertake the assessment which should have been done by either an orthopaedic specialist or a neuro surgeon. The review officer concluded that the requirements of the legislation are that the entitlement to an independence allowance must be carried out by an appointed independence allowance assessor. She noted that neither Mr Jones nor Mr Macfarlane were appointed independent allowance assessors while Dr Musgrove was. She concluded on the basis of the decisions in Gowthorpe (252/98) and Daniels (235/98) that there was no discretion which permits the Court or the respondent to go behind the assessment of a duly appointed assessor. She therefore confirmed the respondent's primary decision. It is against that decision which the appellant now appeals. Mr Hall submitted that while Dr Musgrove is recognised as a longstanding and skilled general practitioner, he does not have the qualifications necessary to make an assessment under the AMA Guide in respect of an obvious orthopaedic problem. He submitted that Dr Musgrove had not considered grade IV being the loss of motion segment integrity which was readily identified by Mr Jones. He submitted that the effect of the Court's decision in Daniels was that once an assessor appointed under the regulations makes an assessment, no matter how faulty, there is no power for the review officer or the Court to intervene and find a just and fair result. He submitted that in considering the regulations it is necessary to take into account the purpose of the Guide as a while and not simply compartments of it. He quoted from the Guides at pages 3 and 99 in which the authors stated: 'It should be understood the Guide does not and cannot provide answers about every type and degree of impairment, because of the consideration stated above and the infinite variety of human disease ... Further, human function in everyday life is a highly dynamic process, one that presents a great challenge to those attempting to evaluate impairment. The Physician's judgment and his or her experience, training skill and thoroughness in examining he patient and applying the findings to the Guide's criteria will be factors in estimating the degree of the patient's impairment. These attributes compose part of the 'art' of medicine, which, together with a foundation in science constitutes the essence of medical practice. The evaluator should understand that other considerations must also apply, such as the sensitivity, specificity, accuracy and interpretation of laboratory tests in a clinical procedure and variability among observers interpretation of tests and procedures. If the physician cannot decide into which DRE category the patient belongs the physician may refer to and use the range of motion model which is prescribed in section 3.3(j) (page 113). Using the procedure of that model the physician obtains an impairment percent based on a patient's diagnosis with a percent 5 based on the patient's spine motion impairment and a percent based on neurological impairment, if it is present ..." Mr Hall submitted that the question for the Court is that in using the Guide the assessor must use "his or her experience, training, skill and thoroughness in examining patients". Mr Hall submitted that Dr Musgrove lacked training, experience and skill in diagnosing lumbar and neurological deficits. Mr Hall submitted that the effect of the decisions of this Court is that there is no jurisdiction on an appeal no matter the facts involved or the degree of impairment or if the medical assessments have been contradicted by independent evidence because the medical assessor appointed cannot be challenged. He said that if that is followed through, then there is no right of appeal or discretion to go behind even an erroneous or faulty exercise of discretion. He submitted that the effect is that the Courts elected to treat Regulation 3 as ousting the jurisdiction of first, the review process, or the appellate process. He submitted that it was open to the Court to consider the legality of the legislation if it prevents an adjudication on an appeal. Mr Hall submitted that it was not the intention of Parliament in passing ss.54 and 54A and regulations under s. 167 of the Act that the jurisdiction of this Court would be ousted and there would be no right of appeal. Mr Corkill submitted that in relation to the issue raised by Mr Hall as to whether or not the regulations are ultra vires, it is necessary to look first at s.54A which requires that the assessment for an independence allowance "shall be assessed in accordance with regulations made under this Act." He submitted that s. 167 (1)(a) empowers the Governor-General to make regulations "prescribing the assessment to be used to establish the degree of whole person impairment for the purposes of ss.54 and 54A of this Act." Mr Corkill submitted that the Court must then turn to s. 167A which empowers the Governor-General in the making of the necessary regulations for the purposes of ss.54 and 54A "to or incorporate by reference, in whole or in part, the American Medical Association Guides to the evaluation of permanent impairment". He submitted that the regulations were then promulgated with the requirement in Regulation 3 that the assessor is required to use the AMA Guides (4th Edition) in making the appropriate assessment. Mr Corkill submitted that the whole emphasis throughout those sections and the particular regulation is that it is a mandatory process. Mr Corkill submitted that the Court has the power to consider an appeal in relation to an assessment if another duly appointed assessor makes an assessment different from the original assessment. He submitted that it would then be open to the Court to consider which of the assessments was the more appropriate, having regard to the requirements of the AMA Guides. He submitted that the appellant's reliance on the failure of Dr Musgrove to diagnose the appellant's lumbar or neurological deficit was not a requirement placed on him as his duty as an assessor was to assess the appellant's "whole person impairment". He submitted that while Mr Hall had submitted that Dr Musgrove had failed to consider the evidence of pain this was identified by Dr Musgrove in his report of February 199 to be incorrect. While I have doubts as to whether this Court has jurisdiction to consider the issue submitted by Mr Hall that the regulations are ultra vires, I do not accept his 6 submission on that issue. It is quite clear that the matters identified by Mr Corkill in his submission as to the mandatory process contemplated by the Act that the regulations were properly passed and were in compliance with the requirements of the Act and they must be accepted on that basis. That being so, the Court must accept as it did in Daniels and other decisions that there is no discretion for the Court to go behind the assessment of a duly appointed assessor. The only manner in which the Court would be able to consider an assessment would be for a duly appointed assessor to provide a contrary opinion with the result that the Court would have to make a decision on the two competing assessments. However, I confirm what I said in Daniels that I do not consider that this Court has any discretion once the assessment has been made by a duly appointed assessor. It is still open to the appellant to request the respondent to have another assessment undertaken by an assessor qualified in the orthopaedic or neurological fields if that is her wish. However, that is not a matter before me at this time. I must also comment that the fact that Dr Musgrove does not practice in these fields does not mean any lack of ability to conduct an examination and make an assessment using the AMA Guide. The appeal is dismissed. DATED at WELLINGTON this 15 th day of November 1999 A W Middleton District Court Judge dca27699.doc(rd)