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Accident Compensation Cases

Aalderink v Accident Compensation Corporation (DC, 12/09/14)

Judgment Text

Judge D A Ongley
This is an application for leave to appeal to the High Court against a judgment of His Honour Judge M J Beattie Aalderink v ACC [2012] NZACC 405Has Litigation History which is not known to be negative[Blue]  issued on 18 December 2012, 
The judgment dismissed an appeal against a Reviewer's decision confirming the Corporation's decision to pay an independence allowance based on an assessment by Dr Ross McCormick on 19 August 2011 (amended on 30 August 2011). 
Dr McCormick's assessment was a Whole Person Impairment (WPI) rating of 14% based on two injuries and a consequential further injury. They were: 
4 February 1991 loss of tip of left index finger 
6 January 1994 severing of left Achilles tendon 
a consequential injury (worsening after tendon repair) 
There had a history of inconsistent assessments: 
an assessment in 1994 of 24% 
a reassessment in 1999 of 10% (2% finger and 8% foot) 
an assessment in 2010 of 5% (Dr C Bennett) (1% finger and 4% foot) 
Mr Aalderink lodged a late review of the 1999 assessment but the application was out of time and was dismissed. An application for review of Dr Bennett's assessment was unsuccessful and the appellant filed an appeal in this Court. The appeal was heard and dismissed by Judge Roderick Joyce QC on 17 April 2012. For the purpose of that appeal, Mr Aalderink sought a second opinion from Dr Chris Walls, occupational physician. Dr Walls' opinion did not support Mr Aalderink's case on appeal. Dr Walls stated: 
“Doubtless Mr Aalderink will be disappointed that my assessment is so similar to the ACC assessors. The problem is that warts and all one must use the AMA 4th Edition Guides as stated and that ACC has declined to update the version specified in their procedures. ”
Mr Aalderink was referred to an orthopaedic foot and ankle specialist, Mr Matthew Tomlinson. In a letter of 15 June 2011 Mr Tomlinson stated that there was convincing evidence of almost complete loss of function in the posterior and tibial nerve distribution in the appellant's left foot. That is a diagnosis which Mr Aalderink places foremost in his argument on appeal and on this application for leave. 
Dr McCormick's assessment in August 2011 was peer reviewed by Dr Rob Percival who confirmed the impairment rating in the assessment and commented: 
“Peer Reviewer advises that the latest Impairment Report by Dr McCormick has the advantage of the information in the Specialist Report by Dr M Tomlinson of 15/6/11. 
Peer Reviewer advises that the prior Impairment Reports of 2/6/10 amended 30/9/10 had not included all of the rating methods in Dr McCormick's Impairment Report. ”
The Corporation then issued its decision on 21 September 2011 revoking its previous decision based on Dr Bennett's assessment, and assessing an independence allowance based on a WPI rating of 14%. The decision was confirmed on review. 
In his judgment dismissing the appeal against the review, Judge Beattie noted Mr Aalderink's argument that Dr McCormick wrongly purported to act as a specialist and exceeded his area competence. Judge Beattie noted that Mr Aalderink sought to identify some factors that were not assessed in relation to the nerve injury affecting his foot, but did not introduce any medical evidence by way of commentary on Dr McCormick's assessment, or offering a contrary opinion. Judge Beattie accepted that Dr McCormick was qualified as a duly authorised assessor in terms of the approval provisions in the Act, and found no basis to conclude that his assessment was incorrect. The Judge also declined to direct a further specialist evaluation of the injuries because he considered that a need for further assessment was not founded on the evidence 
Application for leave to appeal 
The broad ground of appeal is that Judge Beattie did not consider a range of arguments advance by Mr Aalderink. It is however apparent that he did not do so because he considered that the scope of the appellant's objections to the assessment went beyond the power of the court to intervene without medical evidence challenging the basis of Dr McCormick's findings 
On the application for leave, Mr Aalderink asks the Court to again consider his arguments in full as a basis for the submission that the Judge was wrong in law. At the outset, Mr Aalderink recognises that leave to appeal is available only on a point of law, possibly including a question whether findings of fact could not reasonably have been reached on the evidence. 
Failure to consider an injury 
Addressing the main heads of argument, the first is that the assessment did not acknowledge a further injury suffered as a consequence of medical treatment of his foot injury that was originally caused by accidental disruption of the left Achilles tendon and an associated nerve injury. Mr Aalderink referred to an ACC decision letter of 11 July 1995 accepting cover for the consequence of medical treatment. A copy of the letter does not appear to be available, but it is common ground that there was a consequential injury for which cover was available under s 20(2)(d) of the Act, which provides cover for: 
personal injury that is a consequence of treatment given to the person for another personal injury for which the person has cover ”
It is true that Dr McCormick did not specifically list a covered consequential injury, but he described the medical conditions that he took into account in assessing impairment. They were: 
“Left index finger partial amputation. 
Sensory loss left index finger tip. 
Reduced range of motion left ankle and hindfoot. 
Absent posterior tibial pulse left foot. 
Left calcaneal nerve numbness. 
Lateral and medial plantar nerve dysesthesia and numbness. 
Loss of power muscles of left foot. ”
The respondent submits that the consequential injury was covered in the assessment even if it was not listed as a separate injury. The question is not whether the question of cover was identified, but whether the impairment from the injury was identified. While it is quite possible that failure to identify cover could lead to an error in assessment, there is no indication in this case that it actually did so. 
In his report, Dr McCormick referred to Mr Tomlinson's opinion and said: 
“A 1994 attempted repair of his left posterior tibial nerve was not successful. He now has total loss of power of the muscles served by this nerve's branches in the foot, dysesthesia and numbness in his left lateral and medial plantar nerve and numbness in his left calcaneal nerve. He has wasting in the intrinsic muscles of his left foot. He now walks with clawing of his left toes. ”
In his assessment, Dr McCormick went on to refer to Mr Aalderink's description of his impairment and the results of Dr McCormick's physical examination. Within the scope of that assessment, there is no strong reason to conclude that an element of impairment was omitted. Mr Aalderink's argument challenges the detail but does not raise a serious doubt about the conclusion. 
An impairment assessment is concerned with impairment from covered injuries at the time of assessment. If a consequential injury is not separately listed in an assessment it does not follow that the impairment from the injury has not been assessed. Reading Dr McCormick's assessment as a whole, it is clear that he did assess the consequence of an unsuccessful repair of the posterior tibial nerve. Whether or not the assessment was complete and correct is a medical question which would ordinarily require expert medical commentary on the assessment. That kind of evidence was not provided in Mr Aalderink's appeal. 
In his judgment, Judge Beattie referred to two injuries, the finger injury and the Achilles tendon injury. That was a broad description of the injury sites. The appellant's argument that the omission to refer to the consequential injury as a separate item of cover was an error of law is not an arguable question for the purpose of further appeal to the High Court. 
Loss of function 
Mr Aalderink submits that Dr McCormick failed to adopt Mr Tomlinsons' opinion that he suffered complete loss of function of the posterior tibial nerve, and that Dr McCormick substituted his own opinion, without having professional competence to do so. Mr Aalderink submitted: 
“With reference to Par. [3.14] of the appellant's written submissions, the AMA4 Guides consider 95-100% to represent almost total impairment. Dr McCormick did not follow ACC policies and procedures by diverting from the conclusion by Dr Tomlinson and as a result, controverting the clinical evaluation of a specialist medical practitioner without requesting further specialist medical evaluations, as is required by ACC policies and procedures. ”
The Corporation's response is that Dr McCormick was a duly appointed assessor under cl 58 of the Act. Under that clause: 
“In appointing a person to be an assessor, the Corporation must have regard to the skills, qualifications, and training the Corporation considers appropriate for a person to do the assessments under those clauses. ”
The Court may set aside an assessment where there is a manifest flaw or where the assessment is materially contradicted by responsible medical opinion. In this case the appellant submits that there are two reasons in combination, first that Dr McCormick reached a conclusion different from Mr Tomlinson, and secondly that Dr McCormick was not competent to form an independent specialist opinion. The submission is essentially an argument of fact and not law. There is no rule that an assessor must have specialist qualifications. In fact an assessor is frequently required to address a range of injuries that fall into various areas of specialist expertise. What is necessary, is the professional competence to have regard to prior medical opinions and assessments and to reach an independent assessment after discussion with the claimant and physical examination. 
Mr Aalderink submits that there is a contravention of the requirements of the New Zealand Medical Council, and that “providing his own unqualified medical evaluations as the basis for the impairment assessment is an offence against section 7(2) of the Health Practitioners Competence Assurance Act 2003”. But there is no factual basis to suppose that Dr McCormick was “practicing” outside his scope. The submission supposes a direct correlation between assessing and practising, but there is no evidence of rules of medical practice to support the appellant's argument. Dr McCormick was practicing as an assessor, authorised by the Accident Compensation Act 2001, and for a limited purpose that did not include medical treatment. 
Whether Dr McCormick did contradict Mr Tomlinson's opinion in a manner that would expose a flaw in his assessment is a question of fact. Whether a proper medical assessment should have directly followed Mr Tomlinson's opinion of “almost complete loss of function in the posterior and tibial nerve distribution in the foot” is a medical question involving both diagnosis of disability and application of the Guides. It does not involve a significant question of law. 
Mr Aalderink submits that his appeal can be argued without medical evidence contradicting the assessment, because “any knowledgeable person can compare the clinical findings with the Guides criteria and determine whether or not the impairment estimates reflect those criteria and this is what the appellant has done in his submissions”. That overlooks the point that evaluation of clinical findings requires expertise. Mr Aalderink's approach would permit an interpretation of clinical findings by an unqualified person. Such an approach could not prevail over an assessor's opinion. By the same reasoning, the question whether an assessor should have taken a different view of a specialist opinion is also a medical question. That is why the Judge expressed his decision in short order in the following paragraph 
Dr McCormick is a duly authorised assessor in terms of the Act, and his assessment was peer-reviewed by another authorised assessor, and on the basis of those two assessments and there being no contrary assessment, I find that there is simply no basis for a determination that the respondent's decision was not correct as it pertained to the appellant's Whole Person Impairment as of August 2011 when that assessment of Dr McCormick was carried out. ”
Judge Beattie went on to refuse a direction for further specialist evaluation for the same reasons. In this application for leave to appeal, Mr Aalderink states that he sought specialist medical reports for five aspects of his covered injuries. He stated that it is ACC policy that such reports are requested as part of the assessment process. This submission is incorrect for the reasons that I have endeavoured to explain. Furthermore, there is no precise reference to an ACC policy that Mr Aalderink asserts. Whether a specialist report is needed in individual cases is a matter of judgment. There is no arguable question of law in that point. 
Once again, the argument that Mr Aalderink adopts cannot be advanced unless it is supported by a medical analysis of error from a medical professional with knowledge of the impairment and understanding of the proper application of the Guides 
The appellant's extensive submissions traverse a range of fact arguments bearing on the points that I have briefly covered in this judgment none of the arguments raise a genuinely arguable question of law. 
For those reasons, the application for leave is refused. 
I apologise to the parties for the delay in issuing this decision. 

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