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Accident Compensation Cases

Downey v Accident Compensation Corporation (DC, 01/03/07)

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 10 June 2004, whereby it determined that the appellant was not entitled to an Independence Allowance on the grounds that his assessed degree of Whole Person Impairment, after deduction of the percentage of permanent impairment paid by Lump Sum, was less than the 10% minimum impairment level required under the Act. 
[2]
It is the appellant's contention that the Independence Allowance Assessment carried out by Dr Alan Walker on which the respondent made its decision, was less than satisfactory and was done whilst he was fully clothed. The appellant also referred to earlier assessments which had given more favourable percentages of impairment. 
[3]
The appellant has a number of covered injuries which were included in the assessment, in particular a neck/back of head injury of 25 February 1986, back/spine injuries of May 1987, August 1987 and January 1991 and a face/dental injury of 24 October 1992. 
[4]
The lumbar spine injury originally suffered in May 1987, and aggravated in August 1987 and January 1991, was the subject of a Lump Sum Payment under the 1982 Act based on an assessed total disability of 30%, that assessment being carried out by Mr Anthony Griffin, Orthopaedic Surgeon of Wellington, and on which assessment the respondent made payment of the appropriate Lump Sum. 
[5]
Following the commencement of the Accident Rehabilitation & Compensation Insurance Act 1992, the appellant sought an Independence Allowance for those previous injuries. In June 1996 an assessment was carried out under the then assessment criteria of the Functional Limitations Profile Questionnaire and which assessed the appellant's disability at 100%. He commenced receiving an Independence Allowance based on a net 70% disability after deduction of the Lump Sum percentage previously paid. 
[6]
In November 1998 the appellant was reassessed following the introduction of the amendment to the Act which provided that the new assessment criteria was to be that contained in the American Medical Association Guides. Under that Assessment the appellant was identified as having a 10% Whole Person Impairment. That assessment resulted in the appellant ceasing to be entitled to an Independence Allowance. 
[7]
In or about July 2000 the appellant applied for a reassessment of his Independence Allowance entitlement and a fresh assessment was carried out by Mr K M R Fong, Orthopaedic Surgeon of Wellington. Mr Fong assessed the back injury as having a 10% Whole Person Impairment and the 1986 neck injury as having a 5% impairment. A separate assessment was carried out by Dr Begg, Oral Surgeon, in relation to the dental injury, and that assessment was 13% impairment. 
[8]
However, after taking account of the previous Lump Sum compensation percentage, the appellant was not eligible for an Independence Allowance and a decision to that effect was made on 20 November 2000. 
[9]
In March 2002 the appellant suffered a fresh injury to his shoulder. In June 2003 the appellant sought a further assessment for an Independence Allowance entitlement and an assessment was carried out on 10 June 2003 by Dr J Schousboe. 
[10]
Dr Schousboe considered the pre- 1999 injuries in one category and the shoulder injury of March 2002 in another category, as was required by the Accident Insurance Act 1998. The later shoulder injury was assessed as having a 13% Whole Person Impairment and an Independence Allowance was thereupon implemented for that injury separately. The remainder of the appellant's injuries were assessed as a combined percentage of 15% Whole Person Impairment, but again with the requirement that the percentage for Lump Sum Payment be deducted, no Independence Allowance was payable in respect of those pre-1999 injuries. 
[11]
It was that as a background that the appellant was assessed once again on 14 May 2004 by Dr Alan Walker. Dr Walker was only required to assess the pre-1999 injuries and his assessment resulted in the back/spine injury being given a 5% Whole Person Impairment and the dental injury 1%. Dr Walker had a substantial number of medical reports for reference, including the previous Independence Allowance Assessments. 
[12]
Consequent upon Dr Walker's assessment, the appellant issued its decision on 10 June 2004 declining an Independence Allowance on the basis that the assessed degree of impairment of 6% was of itself less than the 10% threshold required and in addition there would be the need to deduct the 30% previously paid by way of Lump Sum. 
[13]
At the hearing of this appeal the appellant did not present any contrary medical evidence which would call Dr Walker's assessment into question, and the Court notes that Dr Walker's assessment was itself peer reviewed prior to the respondent issuing its decision. 
[14]
In submissions made to the Court, the appellant indicated that he had been under the care and treatment of Mr Penney, Orthopaedic Surgeon, and the Court was led to believe that it was Mr Penney's opinion that his back injury was now considerably more troubling than it may have been hitherto. No report or evidence however, was forthcoming from Mr Penney in that regard. 
[15]
Mr Castle for the Respondent submitted that the assessment of Dr Walker had been carried out in accordance with the provisions of the Act, had been peer reviewed, and there was no competing evidence which would call the correctness of that assessment into question. He submitted that in those circumstances Dr Walker's assessment must be accepted and therefore the respondent's decision based on that assessment must stand. 
Decision 
[16]
One of the matters raised by the appellant was that in addition to his criticism of the way he considered Dr Walker had carried out his assessment, he wished to have a new assessment, particularly in relation to his back/spine injury. It was in that context that he referred to the advice that he had received from Mr Penney. 
[17]
In the context of this appeal, I find that it is not appropriate for the Court to direct that a fresh assessment be carried out because I have come to the clear view that the assessment carried out by Dr Walker was correctly carried out, there simply being no evidence that it was not so correctly carried out. In addition, there was the peer review of that assessment by Dr Percival. 
[18]
As was submitted by Mr Castle, it has been the consistent practice of this Court to accept the correctness of the assessment carried out by the duly authorised assessor, in the absence of clear and cogent medical evidence to the contrary which would bring that assessment into question. No such evidence has been presented in the present case. The Court cannot have regard to the hearsay comments made by Mr Downey at the hearing of what Mr Penney may or may not have said to him. 
[19]
Whilst it is not within the Court's jurisdiction in the context of this appeal to direct a new assessment, I note that the assessment under appeal was carried out in May 2004 and therefore more than 12 months has now elapsed since that assessment. It would therefore be possible for the appellant to apply for a further reassessment if he can provide a certificate from a registered medical practitioner indicating that his impairment may have increased since the date of the last assessment. 
[20]
This is a matter for the appellant to consider and I simply make the observation that this procedure is available if the necessary medical certificate is forthcoming. 
[21]
This appeal related to the correctness or otherwise of the respondent's decision of 10 June 2004 and I find that decision was correct, based as it was on the assessment of Dr Walker, which assessment is accepted by the Court. For these reasons, therefore, this appeal is dismissed. 

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