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Accident Compensation Cases

Bland v Accident Compensation Corporation (DC, 24/11/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 19 August 2002, whereby it determined that the appellant was not entitled to an independence allowance on the basis that her assessed whole person impairment, after deducting a 12.5% lump sum impairment, was less than 10% being the minimum requirement under the Act. 
[2]
The independence allowance assessment on which the respondent made its decision was an assessment carried out by Dr T J Mason on 10 July 2002, and which assessment had been directed to be undertaken by this Court's decision of 13 February 2002 in decision no: 47/02. In that decision, the Court revoked the respondent's earlier decision determining the appellant had no entitlement to an independence allowance and directed that the appellant be referred to another assessor for re-assessment and for that assessor to be provided with the details of the previous assessments made by three different assessors on three earlier occasions. 
[3]
By way of background it can be noted that the appellant has a substantial history of personal injury by accident claims dating from January 1989 onwards and in all total some 15 injuries and claims down to 2000. 
[4]
It is also the case that the appellant received a lump sum payment based on a disability of 12.5% in respect of the injury to her coccyx and lumbar spine. 
[5]
Dr Mason, a duly appointed independence allowance assessor, carried out an assessment of the appellant's whole person impairment on 10 July 2002. His assessment comprises 4½ pages and he indicates the particulars of all the medical information that he received to assist him with his assessment. In addition to that information, Dr Mason identified the various injuries for which cover had been granted to the appellant and in respect of which there was a potential for impairment. 
[6]
Dr Mason carried out a thorough examination, having obtained a history from the appellant, and he identified three regions where there was an identified impairment. These three reasons were: 
(I) 
Cervicothoraicic 
5% 
(II) 
Lumbosacral region 
5% 
(III) 
Coccyx 
5% 
Dr Mason identified the various pages of the AMA Guides which he used as reference to determine the percentage of whole person impairment. 
[7]
In a discussion of his assessment, Dr Mason noted that some of the injuries over-lapped, particularly with regard to her neck, shoulders and lumbar spine. He considered that there was no basis in the Guides for an impairment rating for her bilateral archilles tendinitis in the absence of a loss of range of movement and he gave this as the same reason for making no allowance for the epicondylitis of both elbows. 
[8]
Dr Mason also advised that, in accordance with the Guides, he made no specific allowance for pain which he noted was the major feature of the appellant's symptoms. He noted that impairment due to pain was considered as part of the impairment assessed in the categories where a percentage of impairment was allowed. 
[9]
Dr Murray commented on the variations which had occurred in the earlier assessments by Dr's Fleischl, Summers and Murray and stated as follows: 
“Dr Fleischl and Dr Summers found some impairment of movement on the shoulders, but Dr Murray does not mention this in his report. Dr Fleischl included shoulder impairment in his assessment of impairment but Dr Summers considered that any shoulder impairment was not based on reliable figures. In the opinion of this assessor, any restriction of the shoulder movement was not consistent and impairment of the shoulders was adequately covered by the impairment to the cervicothoraicic region already included. ”
[10]
Following receipt of Dr Mason's report, the respondent referred it to Dr Shirer, its Branch Medical Advisor at Lower Hutt, for opinion and review. Dr Shirer confirmed that the assessment Dr Mason had made was in accordance with the requisite provisions of the AMA Guides IVth Edition. Dr Mason's assessment was also further confirmed by Dr Kevin Morris, the respondent's Corporate Medical Advisor. 
[11]
The appellant made lengthy written submissions in support of her appeal but she has not presented any medical evidence which would call Dr Mason's assessment into question. This Court has indicated in a number of its decisions that an assessment carried out by a duly appointed assessor will not be questioned in the absence of cogent evidence that assessment was not carried out correctly or did not identify the range of injuries for which the application related. Any such medical evidence would have to establish that the assessment was clearly wrong. 
[12]
In the case of this appellant's earlier independence allowance assessments, it was the situation where three separate doctors had come to separate opinions and each of them had in some way failed to take account of all the injuries which the appellant had suffered and for which there was a potential entitlement. This is not the case with Dr Mason who has carried out a thorough examination and has identified all aspects of the appellant's whole person impairment. 
[13]
One of the main complaints of the appellant is that the assessor took no regard for pain and did not include any separate assessment for what has been described as the appellant's chronic pain syndrome. As previously noted, Dr Mason advised that pain was not separately identified and in a subsequent letter to the respondent dated 30 August, he stated: 
“It is my opinion that an impairment due to the pain that Mrs Bland undoubtedly has, has been taken into account in the assessments already made, and that any further allowance for pain would be likely to be doubling up and the allowances made, unless mental injury is diagnosed in addition to the physical injuries already diagnosed. ”
[14]
In furtherance of that indication the appellant was referred to Dr R Edwards, Consultant Psychiatrist and his advice was that there was no evidence that the appellant was suffering from any psychiatric disorder or diagnosis. Thus there was no evidence of any mental or behavioural disorder that would bring it within the criteria of DSM IV. 
[15]
A further criticism which the appellant had was that no account was taken of a medical report of Dr Waterworth, Rheumatologist. That report is dated 5 February 2003 and of course post dated the assessment by some six months. The only point in Dr Waterworth's advice in any event was that there was an indication that her shoulders were not normal. Dr Waterworth does not give any indication of any impairment but in any event the question of the shoulders has been well considered by Dr Mason, and indeed by others, and I am satisfied that the assessment made by Dr Mason, at the time he made it, was correct. 
[16]
The appellant in her submission seeks that the Court orders yet a further assessment. This Court chooses not to take that course and it does so for the reason that it is satisfied that the assessment was correct and accurate at the time it was so made. If indeed the appellant contends that her situation has changed since the date of that assessment, and I note in that regard she may be relying on the advice of Dr Waterworth, then it is open to her to make a further application for re-assessment now that 12 months have elapsed since the date of her last assessment. 
[17]
For the reasons given I find and rule that the appellant was properly and correctly assessed by Dr Mason and that the consequence of that assessment is that she has a net whole person impairment of less than the statutory minimum of 10%. The respondent's decision to decline her application was therefore correct. 
[18]
This appeal is dismissed. 

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