Puhara v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON [2013] NZACC 369 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN WILLIAM JOHN PUHARA (ACR 245/10) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 11 October 2013 APPEARANCES Ms R Wilkinson, Advocate for Appellant. Ms E Currie, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 21 November 2007, whereby it determined that the appellant was not eligible for an independence allowance on the grounds that his covered right eye injury was determined as having a Whole Person Impairment of less than 10%, being less than the required minimum percentage under the Act for an entitlement. [2] It is the case that the respondent's decision was based on the report of Dr Richard Powell, a duly authorised impairment assessor, who determined that the appellant's Whole Person Impairment arising from his covered injury was only 8%. That decision was based on an assessment by Dr Powell of the appellant on 8 October 2007. 2 [3] It is the case that for various reasons, and the fact that further specialist evidence was introduced, the review decision from the appellant's primary decision was not given until 26 March 2010. It was the Reviewer's decision that the assessment carried out by Dr Powell was not flawed in any way, and the respondent's primary decision was therefore confirmed. [4] The relevant facts in this case I find to be as follows: As of 1998, the appellant was a person who was almost wholly blind, he having a visual acuity of 1/60. On 15 November 1998 the appellant was in India with the New Zealand Blind Cricket Team, when he suffered an eye injury which ruptured a corneal graft. The respondent accepted cover for that injury condition. The appellant applied for an independence allowance in 1999 for that condition, it being the condition relating to his right eye. The assessment carried out in 1999 identified that the accident related impairment of the appellant's right eye condition was 12%, and he was therefore granted an independence allowance based on that assessment. In 2007, the appellant began suffering a deterioration of the limited right eye vision that he had, and this resulted in the complete loss of his right eye On the basis of that condition a further application for an independence allowance was made and the respondent referred the appellant to Dr Richard Powell, for an impairment assessment. Dr Powell carried out an assessment on 8 October 2007 and his report to the respondent advised that he had determined that the appellant was suffering from an 8% Whole Person Impairment. 3 . Dr Powell's report was peer reviewed by Dr R Percival, and his report of 19 October 2007, confirmed the correctness of Dr Powell's assessment. It was on the advice of those two assessors that the respondent issued its decision declining to grant the appellant an entitlement. [5] In this appeal it is the submission of Counsel for the appellant that the assessment of the appellant's injury condition ought to have been carried out by an Ophthalmologist, and he referred to the report which had been received from Professor Charles McGhee, an Ophthalmologist, who had had a significant period of care of the appellant prior to September 2008, and he commented on the fact that whilst Dr Powell was an experienced assessor, he was only a general practitioner, and it was Dr McGhee's opinion that it would be better if an assessment were to be made by someone with expertise in ophthalmology. [6] In a further report in June 2009, Dr McGhee provided an assessment of the vision loss suffered by the appellant and he stated, inter alia, as follows: ... Now that he has lost all functional vision, largely due to the loss of vision in his better (right) eye, I believe a realistic assessment of vision loss would certainly be in the region of 25%. [7] It is Ms Wilkinson's submission that the appellant's assessment for an independence allowance should have been carried out by a specialist in the particular area of the appellant's injury, that specialist being an ophthalmologist, and she referred of course to the report of Dr McGhee, who had identified a greater percentage than that which had been assessed by Dr Powell. (8] In her submissions for the respondent, Ms Currie contended that the evidence identified that the appellant had significant pre-injury impairment in both eyes, in excess of 90% and that the appellant's major problem with his eye condition had not been caused in the accident event. She further submitted that Dr Powell is a duly qualified assessor and that he followed the guidelines set out in the AMA Guidelines, and the assessment he carried out was duly confirmed by 4 the peer review assessment of Dr Percival. Counsel submitted that it could not be established that the assessment of Dr Powell was flawed. DECISION [9] This is rather an unusual case, and where it is the assertion from a specialist ophthalmologist that the impairment assessment should be as much as 25%, whereas the duly appointed assessors only identified the percentage as being 8%. [10] It is somewhat surprising that whilst the primary decision was made in 2007, the review hearing did not conclude until 2010, and now the appeal was not heard until October 2013. I find that it would have been a much better situation if the appellant had lodged a further application for an independence allowance, something that he could have done after 12 months had elapsed since the respondent's decision in question had been made, and it could have been the case that it be asserted that the assessment be carried out by a duly appointed assessor with the medical qualification of an ophthalmologist. [11] From the evidence which the Court has received, I find that it cannot be established that the assessment carried out by Dr Powell was not one which had proper regard for the relevant medical conditions, and it is the case from a legal perspective, that he was a medical assessor who was able to provide the assessment in question, and there is nothing in the Act which requires that the assessor has to be a medical practitioner of a specific medical condition. [12] I find that the evidence that has been presented on behalf of the appellant is simply that of a different opinion, and it is not a case where it can be established that the assessment carried out by Dr Powell was flawed. [13] Having regard to the fact that this decision in issue was one made back in 2007, I find that if there is to be any change in the percentage of the appellant's assessment, then it should be done by way of a further application for an independence allowance and with a specific request to the respondent that the assessor be an assessor with a specialty in ophthalmology. [14] As I have indicated, this is not a case where the current assessment can be shown to be invalid, and therefore this appeal must be dismissed 5 DATED this day of Noveruber 2013 M J Beattie District Court Judge