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Huntley v Accident Compensation Corporation  NZACC 4 (15 January 2001)
IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 4/2001
(Appeal Nos. Al 165/99 & Al 161/99)
UNDER The Accident Insurance Act 1998
IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN J C HUNTLEY
AND ACCIDENT COMPENSATION CORPORATION
HEARD at WELLINGTON on 12 October 2000 DATE OF DECISION: 15 January 2001 COUNSEL:
Mr J M Miller for appellant
Mr A D Barnett for respondent
DECISION OF JUDGE P F BARBER
 Originally these two cases involved the two separate issues of whether the appellant is entitled to an independence allowance and whether he has cover in respect of a claimed medical misadventure. The latter issue was abandoned at about the outset of the hearing before me because Atkinson v ARCIC (AP 25/00, High Court, Wellington, 16/8/2000, Ellis J) makes it clear that it is a necessary component of a medical misadventure that there be a causal link between the medical treatment and the claimed injury, and that the onus of proof lies upon the
claimant to the standard of the balance of probabilities. Mr Miller seemed to concede that, at present, the appellant has not made out medical misadventure and this case proceeded on the issue of entitlement to an independence allowance.
 The appellant suffered an injury in 1977 when a boulder hit him on the neck and left shoulder while doing a cliff-face rescue exercise as part of his job as a Senior Fireman at Wellington. He has cover for this personal injury.
 The appellant was admitted to Wellington Hospital for investigations in July 1979. A cervical myelogram was performed, using Myodil as the contrast medium.
 A skull x-ray performed at Wanganui Hospital in September 1990 indicated a residual contrast material in the basal part of the inter-cranial cavity.
 On 13 May 1994 the appellant lodged a claim for cover for medical misadventure, namely, for injury consequential upon the myelogram performed in July 1979. The claim was considered by the Medical Misadventure Advisory Committee which sought a further specialist opinion.
 On 7 December 1995 the Medical Misadventure Advisory Committee determined that a causal link was not established between Mr Huntley's symptoms and the residual Myodil, and there was no evidence of medical error. The Committee advised its opinion in March 1996. The respondent's primary decision issued on 28 March 1996 declined cover.
 On 27 June 1996 an application for Review was lodged. That matter came on for Review on 12 August 1999. In a comprehensive 22 page review decision, the Review Officer determined that, on the balance of probabilities, the evidence did not support a finding of medical error and that the medical opinion indicated that there was no causal relationship between the retained Myodil and the symptoms. Accordingly, the application was unsuccessful. An appeal was filed.
 On 24 September 1998 the Corporation issued a decision declining any entitlement to an independence allowance in respect to the November 1977 personal injury by accident for which the appellant has cover. This decision was based on the assessment of Dr A K Wilson who had assessed a 10% Whole Person Impairment.
 The appellant has previously received a lump sum payment for a permanent impairment amounting to 8.25%. This percentage was required to be deducted from the 10% assessment. Thus the appellant fell below the 10% threshold required for the payment of the independence allowance. This decision was upheld on Review in a decision dated 3 September 1999. This decision of Review Officer Mr M J Dunn is now appealed.
Reasons for Decision
 To dispose of the medical misadventure aspect for the present, I record that I can only agree with the submissions on the point by Mr Barnett that, on the basis of a significant body of medical opinion in this case, the Medical Misadventure Advisory Committee concluded that a causal association between the myelogram, which the appellant underwent in 1979, and any injury suffered by the appellant was not proven.
 While it is the belief of the appellant that there is a causal association between the myelogram and the injury or some of the injuries he suffered, this is not established on the medical opinion. Even if a causal association were established between treatment and injury, the evidence in the present appeal does not establish that there has been a medical error. Nor does the evidence establish that there is a medical mishap in that it is neither shown that the claimed injury was a rare consequence of the treatment nor a severe consequence.
 In any case, as already mentioned, Mr Miller seemed to concede the medical misadventure
The Independence Allowance Issue
 The appellant's initial injury occurred on 20 November 1977. Persistent pain in his left arm resulted from that injury. He has developed a wide range of pain symptoms in his head, neck, arms, chest, hips, feet and legs. However the Review Officer found:
It is evident from the information available that the Corporation appointed Dr Wilson, an approved assessor under Regulation 4 to carry out an assessment of the applicant's Whole Person Impairment because of the personal injuries indicated on the independence allowance application. Based on the information provided to him by the Corporation, and the applicant's General Practitioner Dr Wilson carried out the assessment in accordance with the AMA Guidelines and concluded that the applicant's Whole Person Impairment was 10%. In addition, Mr Huntley had also received lump sum payments under previous Acts. These payments were based on an 8.5% assessment.
As explained above, from I July 1997 a person has to reach a threshold of 10% Whole Person Impairment before they are eligible for an independence allowance. Therefore, based on Dr Wilson's report and the previous lump sum assessment the applicant is not entitled to receive an independence allowance, as his Whole Person Impairment is less than the threshold of 10%.
I note there was some confusion over the actual amount awarded in lump sum payments. The Corporation advised 8.5% in the decision letter, Mr Huntley considered that he had previously received a 20% lump sum payment from the Corporation for permanent disability. Even deducting the smaller figure from the impairment as assessed Mr Huntley is well below the required threshold.
There was no evidence of any flaw in procedure with Dr Wilson's report. Consequently, the Corporation's decision of 24 September 1998 is confirmed and the review is unsuccessful ... If
 Mr Miller submitted that the appellant's present injury situation is still linked back to that 1977 accident as a fireman, and he submitted that the appellant still has cover even though he cannot show medical misadventure. This leads on to the independence allowance issue. The respondent's stance pivots on a full independence allowance assessment report from Dr. A K Wilson dated 23 June 1998. This assesses the appellant as having a 10% Whole Person Impairment "resulting from the described injuries consisting of a cervical spine injury, the investigations, the surgery that followed and the chronic pain syndrome that has developed as a consequence". All those matters arise out of the said injury of 20 November 1977.
 Mr Miller referred to the appellant being adamant that his present incapacity is due to medical misadventure, but to the ACC Medical Misadventure Committee and the Review Officer, not accepting that but appearing to accept that the medical evidence indicates that the appellant's incapacity was due to the physical and mental consequences of the said 1977 accident. Mr Miller then opines that there is nothing to be gained by a finding of medical misadventure as full entitlements will flow from the 1977 accident.
 Mr Miller noted that the appellant was assessed as having a 10% Whole Person Impairment from which 8.25% was deducted for a previous lump sum
payment so that no independence allowance has been paid. Mr Miller submitted
that if the present physical and mental consequences of the original 1977 injury are to be taken into consideration, then the percentage impairment will be considerably increased.
 Accordingly, Mr Miller's main submission is that there should be a fresh assessment to take into account those physical and mental consequences.
 Mr Miller then proceeded to analyse Dr Wilson's said independence allowance assessment report on the theme that it is inadequate so that I should require a further assessment. He also appeared to be criticising the Review Officer's interpretation of Dr Wilson's said report. He emphasised that Dr Wilson is "only a GP" and that disorders being suffered by the appellant involve psychological and psychiatric matters. He submitted that in terms of the way such issues are dealt with in the American Medical Association Guides (to the Evaluation of Permanent Impairment — 4th Edition) and especially with regard to Chapters 14 and 15 of those AMA Guides, there are doubts whether Dr Wilson's assessment has been properly carried out. He submitted that Dr Wilson's report is flawed on its face and should be more specific.
 Inter alia, Mr Miller submitted that when dealing with the issue of "pain" in terms of Chapter 15 of the AMA Guides and referring to the aspect of the appellant's chronic pain, Dr Wilson has not made it clear whether or not he has considered the appellant's case in the light of Chapter 15 only of the AMA Guides, which deals with "pain", or whether he has also considered this case in the light of Chapter 14 dealing with "Mental and Behavioural Disorders", or vice versa. Mr Miller seemed to be submitting that there should not be an encapsulation of the concept of mental disorders in to chronic pain syndrome when the AMA Guides have a separate chapter about mental and behavioural disorders. I certainly accept that "pain" and "mental and behavioural disorders" are quite different issues and sufferings but, no doubt, they may combine.
 The appellant's contention is that if the physical and mental consequences of the 1977 injury are properly taken into consideration, the percentage impairment will be greatly increased.
 Mr Barnett submits that the independence allowance assessment completed by Dr Wilson discloses that he has taken into account both the physical impairment suffered by the appellant and the impairment associated with the chronic pain syndrome, and that these were the consequences of both the original injury and the resulting medical investigations and surgery.
 Dr Wilson writes in his assessment at page 6:
"fi I consider that Mr Huntley has a 10% Whole Person Impairment resulting from the described injuries consisting of a cervical spine injury, the investigations, the surgery that followed and the chronic pain syndrome that has developed as a consequence".
 Accordingly, Mr Barnett submits that there is no medical evidence, or not sufficient medical evidence, that would enable the assessment of Dr Wilson to be set aside.
 Mr Barnett emphasised that he regarded Mr Miller's submissions as "short on detail" and containing material not previously raised with the respondent or the Review Officer. Mr Barnett then addressed Mr Wilson's said report and pointed out that the heading on page 5 "(e) Impairment Rating of Body Parts, Functions and Systems" was all based on appropriate references to the AMA Guides. Mr Barnett submitted that despite the argument of Mr Miller to the contrary, Dr Wilson's report is clearly made taking into account the whole range of the
appellant's suffering and the whole range of guides on the ingredients of such
suffering, as set out in the AMA Guides. I agree, although Dr Wilson has
specified more about pain under the said Chapter 15 of the AMA Guides than about the content of Chapter 14; but he also records at page 6 of his report
"(iii) I have incorporated Mr Huntley's other psychological and psychiatric effects, outlined by Dr G Newburn, into the chronic pain syndrome and have rated them as part of this.
This assessment was conducted in accordance with the ACC Policies and Procedures for Assessing Impairment for Independence Allowance in accordance with AMA Guides, the Guidance provided during ACC Independence Allowance Assessor Training Programme."
 I also consider that Dr Wilson has adequately considered the mental and behavioural disorders concepts.
 Mr Barnett also referred to Dr Wilson's conclusion at "(f)" on page 6 under the heading "Whole Person Impairment", which I have set out above, and which I agree shows that Dr Wilson has considered the total possible and extended situation of the pain and injury experienced by the appellant.
 I also agree with Mr Barnett that if the assessment of Dr Wilson is to be challenged, then there needs to be a properly formulated and separate medical opinion adduced as evidence. In my view, one can only conclude from Dr Wilson's report that his assessment for independence allowance purposes has been carefully and properly compiled. Dr Wilson seems to me to have considered all the consequences of the injury and consequential treatment and surgery. Without any other medical opinion to contradict Dr Wilson in any way, and in view of the manner in which that report has been expressed, one could not possibly regard Dr Wilson's report as flawed, and it must stand.
 Mr Barnett conceded that if I were to find ambiguity in something Dr Wilson has said, then I could ask Dr Wilson to provide a further commentary or supplementary report. However, I cannot find any ambiguity, and to me there can be no suggestion from the report that it is in any way inadequate. I do not think there can be any suggestion that Dr Wilson has in any way misapplied guidelines under Chapter 14 or 15 of the AMA Guides, or in any other part of those Guides, or in terms of his own experience.
 Inter alia, both counsel referred to the fairly recent decision of Judge Beattie in Nansen v ACC (No. 216/2000, 8 August 2000). There, he referred to the statutory provisions and regulations regarding the system of assessment for independence allowance, but they are not in issue in this case. It is not being suggested that Dr Wilson is not a proper "assessor" for the purposes of the regulations. In Nansen Mr Miller was counsel for the appellant and he did not seem to suggest that the assessor in that case was unsuitable, but did submit that she was not a specialist in the field of psychiatry and he therefore submitted that it must be axiomatic that she could not give a specialist assessment on the particular facets of that appellant's personal injury from sexual abuse.
 In Nansen, Judge Beattie refers to a submission from Mr Miller that an assessment under the AMA Guides required more than simply "following the book". Mr Miller seemed to be making that sort of submission in the present case. However, I can only agree with Judge Beattie's disposal of that submission at page 6 of his decision in Nansen as follows:
"Whilst I find that Mr Miller's submission has certain logic and reason, nevertheless I must hold as a matter of law that there is nothing in the Act, or indeed its predecessor, which would
enable this Court to rule that unless a specialist was appointed to assess, the assessment could
not be valid and the appointment of a person who was not a specialist was not a proper
exercise of the Corporation's discretion. It cannot be found in the language of the Act or
indeed from its scheme or intent. The fact that the statute is silent on any qualification being
required for an assessor appointed under the Act must surely militate against Mr Miller's argument as a matter of law, however sensible and reasonable as a matter of practice it might seem to be.
Having regard to the power given to the Corporation under the provisions of Clause 60 and the wide parameters for the appointment of an assessor that the Act allows, I cannot find that as a matter of law, the Corporation improperly exercised its discretion in requiring this appellant to be seen and assessed by Dr Williams, a General Practitioner.
Insofar as Mr Miller's second ground is concerned, I have had no evidence that any matter of substance is contained in the ACC Instruction. I note that the instruction relates to Content and Format of an Impairment Instruction Assessment Report and I accept Mr Barnett's submission that that instruction simply relates to the way that the assessment report should be set out as a matter of format.
In the particular assessment of this appellant it is to be noted that it covers 26 pages and is particularly detailed and identifies all the personal injuries for which the appellant is to be assessed and then deals with them individually and comes to individual conclusions and assessments before providing a combined impairment rating at the end of the assessment.
In summary therefore, I find that there is nothing in the Act, either expressed or implied, which requires the Corporation to refer a claimant to a specialist in the particular field of expertise which identifies with the nature of the injury, or impairment from injury, that is required to be assessed.
There being no evidence to give rise to any suggestion that the assessment of Dr Williams was in fact in any way flawed, that assessment must be accepted and the Whole Person Impairment that was so assessed, after deduction of the previous lump sum disability, percentage, does not give rise to an entitlement to an independence allowance under the Act. The respondent's
decision to find so is therefore confirmed."
 When I stand back and look at this situation overall, it seems to me that the proper procedures have been followed by the respondent with regard to obtaining a proper assessment of integrity for independence allowance purposes. There has been a hearing before a Review Officer and an appeal to this Court. There is simply no evidence to counter the assessment of Dr Wilson and, from my point of view, Dr Wilson's report seems excellent and comprehensive and is the main evidence before me. There is no other medical evidence to counter the assessment of Dr Wilson. Nor is there anything in his report which should alert me, in terms of common-sense, to query his assessment or require further commentary. There is nothing which suggests that an alternative independence assessment is needed.
 Mr Miller must be submitting that the pain and suffering of the appellant is such that, even from a layperson's perspective, the percentage assessment is clearly too low, so that as a precaution I should obtain a further and different independent assessment. However, there is nothing to flag that approach to me.
 Accordingly, this appeal is hereby dismissed.
Judge P F Barber
District Court Judge