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Accident Compensation Cases

Te Huia v Accident Compensation Corporation (DC, 09/05/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal is whether the respondent was correct to decline the appellant's application for an independence allowance, the respondent's decision being given on 15 August 2001. 
[2]
The relevant facts in this appeal are not in dispute and may be stated as follows: 
The appellant was granted cover for two injuries under the Accident Compensation Act 1982, those injuries being a foot injury and for industrial deafness. 
The appellant received lump sum compensation in respect of those two injuries, such lump sum being based on 20% for his hearing loss and 9% for his foot injury. 
In September 1999 the appellant applied for an independence allowance and following assessment that application was declined. The respondent's decision was confirmed on appeal to this Court. 
On 27 November 2000 the appellant made application for a further reassessment for an independence allowance and was referred to Dr Andrew Porteous for assessment. 
On 25 July 2001 Dr Porteous assessed the appellant's foot injury as having 1% impairment and his hearing loss as 26%. Dr Porteous assessed the appellant's whole person impairment at 27%. 
By decision dated 15 August 2001 the respondent advised the appellant that he had no entitlement to an independence allowance as his residual whole person impairment, after deducting the percentage of lump sum payments made, was less than the 10% minimum required for entitlement. 
The appellant sought a review of that decision and by review decision dated 15 October 2001 the Reviewer confirmed the respondent's decision that no entitlement to an independence allowance existed. 
Since that review decision a further hearing assessment has been undertaken by Mr Cecire, Otohinolaryngologist, and Mr Cecire has assessed the appellant's impairment of hearing loss as being 20% of whole person impairment. 
[3]
In submissions to the Court the appellant, in essence, contended that his hearing impediment was considerable and that he did not think it proper that the percentage of permanent loss for which a lump sum had been paid some considerable time ago should be brought into the calculation as his hearing impairment continued. 
[4]
Miss Thompson, counsel for the respondent, submitted that the assessment carried out by Dr Porteous could not be brought into question, indeed it being a higher percentage than that assessed by Mr Cecire. Counsel further submitted that Section 442 of the Accident Insurance Act 1998 required the percentage of permanent loss for which a lump sum had been paid under the 1982 Act to be deducted from the percentage of impairment assessed. 
Decision 
Clause 58 of the First Schedule to the Act provides that a person has an entitlement to an independence allowance if they have an assessed whole person impairment from a covered injury of 10% or more. 
[5]
Section 442 of the Act provides that any person applying for an independence allowance and who has received a lump sum payment in respect of that injury under the Accident Compensation Act 1982 must have deducted from any whole person impairment assessed, any percentage permanent loss or impairment for which payment of a lump sum was made under the Accident Compensation Act 1982. 
[6]
In the case of this appellant he had received a lump sum payment under the Accident Compensation Act 1982 based on an impairment of 29%. Thus it was that percentage that was required to be deducted from any whole person impairment which might be assessed under the AMA Guides when considering whether the appellant had an entitlement to an independence allowance. 
[7]
The assessment carried out by Dr Porteous identified a 27% whole person impairment and the simple mathematical calculation that must follow, which requires the sum of 29% to be deducted therefrom, means that there is a negative percentage situation, certainly not a positive 10% or more as would be required under the Act. 
[8]
Dr Porteous's assessment has not been called into question and indeed his assessment of the hearing disability of the appellant is greater than that which was carried out independently by Mr Cecire at the appellant's direction. 
[9]
The Court notes that this is the second time that the appellant has applied for an independence allowance and the assessed impairment has been identified as not having a residual whole person impairment of 10% or more. If the appellant was in some state of confusion as to the correct legal principles that needed to be applied when considering any entitlement he may have to an independence allowance, then that confusion ought surely by now have been dispelled as the Court took some time to explain to the appellant what the position was. 
[10]
For the avoidance of doubt this appellant would need to establish a whole person impairment from his covered injuries of not less than 39%. The latest assessment of the appellant's impairment in relation to his foot injury was 1% and earlier it was 3%. The Court can infer from those assessments that there is unlikely to be any significant movement in the whole person impairment assessed for his foot injury. 
[11]
If that situation is taken as more or less given, then the situation is that the appellant is unlikely to ever be entitled to an independence allowance for his two injuries as the relevant Table of the AMA Guides, namely Table III on page 228, indicates that 100% of binaural hearing impairment, which is total deafness, equates to a whole person impairment of 35%. Thus it is the case that even if the appellant were to be totally deaf he would have at most a whole person impairment of 35% which would be less than the threshold that he would need to pass before entitlement to an independent allowance arose. 
[12]
The foregoing is provided as some explanation to the appellant so that he may fully understand his position in relation to his entitlement to an independence allowance. 
[13]
For the foregoing reasons the respondent's decision to decline the appellant's request for an independence allowance is confirmed and this appeal is dismissed. 

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