Aalderink v Accident Compensation Corporation [2014] NZHC 3071 (4 December 2014)

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UNDER	the Accident Compensation Act 2001
IN THE MATTER	of an application for special leave to appeal to the High Court pursuant to s 162 of the Act
BETWEEN	WILLEM AALDERINK Appellant
AND	ACCIDENT COMPENSATION CORPORATION _Respondent

Hearing:	2 December 2014
Counsel: Appearance:	FL Becroft for respondent W Aalderink, appellant in person
_Judgment:	_{4 December 2014}

This judgment was delivered by me on 4 December 2014 at 11:30 am pursuant to Rule 11.5 of the High Court Rules.

Aalderink v Accident Compensation Corporation [2014] NZHC 3071 [4 December 2014]

[1] The appellant applies for special leave to appeal to the High Court pursuant to s 162(3) of the Accident Compensation Act 2001. The application is made in respect of the District Court decision delivered on 18 December 2012 concerning the appellant’s entitlement to an independence allowance. His application for leave from the District Court to appeal to the High Court was declined on 12 September 2014.

[2] The approach which is followed by the High Court on an application for special leave is as follows:¹

...The general principle is that special leave should only be granted if a material error of law is shown as capable of bona fide and serious argument. The alleged error must have materially affected the decision under challenge. The appellant’s case must not be just arguable, but well arguable.

By the terms of s 162(1) of the Act, appeals to this Court must be on a question of law. But regard must also be had to wider considerations including the general importance of the questions raised, and whether the interests of justice might be served by allowing the appeal to proceed. Although the classes of consideration are clearly not closed, it will usually be necessary for the prospective appellant that there is an issue of principle at stake, or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success.

[4] An independence allowance is a monetary award culminating on a weekly basis. Payments are generally paid out quarterly. It is based on a medical assessment of a claimant’s injury related impairment. Impairment is rated in percentages.

[5] Independence allowances replaced lump sum awards. They were introduced from July 1992 with the Accident Rehabilitation and Compensation Insurance Act

¹Van Helmond v Accident Compensation Corporation [2014] NZHC 2750 at [12] – [13]; Smith v

[6] The Accident Compensation Act saw the return of lump sum awards but only in relation to injuries suffered after the 2001 Act came into force on 1 April 2002. Sections 337 and 378 reserved independence allowances for personal injury suffered before 1 April 2002. Claimants who qualified prior to 1 April 2002 could continue to be assessed for, and receive, independence allowances under the 1998 Act provisions.

[7] The assessment process is set out in Part 4 of Schedule 1 to the 1998 Act at cls 58 to 63.

[8] An assessment must be undertaken by a qualified medical assessor. The assessor must apply both the 4^thedition of the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA4”) as well as the ACC User Handbook to the AMA4.

[9] AMA4 is a book designed for use by medical practitioners. It rates impairment using charts, tables and percentages.

• The appellant has cover for two personal injuries, the first being a partial amputation of his left index finger suffered in February 1991, and the second being for the severing of his left Achilles tendon in January 1994.

• An assessment report for an independence allowance in 1999 identified a combined Whole Person Impairment of 10% and the appellant began receiving an independence allowance based on that figure.

• In April 2010, the appellant sought a reassessment of his independence allowance entitlement and an independence allowance assessment was carried out in June 2010 by Dr C Bennett, and he

identified a total impairment of only 5%, being 1% for the 1991 injury and 4% for the 1994 injury.

• As a consequence of that assessment the respondent issued a decision on 14 June 2010 determining that the appellant was no longer entitled to an independence allowance on the basis that his assessed impairment was less than the 10% minimum required under the Act.

• The appellant sought a review of that decision and for the purposes of that review hearing the appellant obtained an independant assessment report from Dr C Walls, Occupational Physician, and who assessed the appellant's Whole Person Impairment as being 2% for the hand and 9% for the lower limb.

• Despite that competing assessment the Reviewer confirmed the respondent's primary decision, determining that the assessment of the duly appointed assessor, Dr Bennett, was to be preferred.

• In June 2011, shortly after that review decision, the appellant made application for a reassessment of his independence allowance.

• On 9 August 2011, Dr R McCormick, a duly appointed assessment medical practitioner, carried out an assessment of the appellant's then covered injuries, and he identified a combined impairment percentage of 14% being 3% arising from the 1991 injury and 11% from the 1994 injury.

• Dr McCormick's assessment was peer-reviewed by Dr R Percival, who confirmed the correctness of the assessment made by Dr McCormick.

• Consequent upon Dr McCormick's assessment the respondent issued a fresh decision on 21 September 2011 determining that the appellant was entitled to reinstatement of his independence allowance based on the Whole Person Impairment of 14%.

• The appellant was not satisfied with that decision and lodged an application for review of same.

• In a decision dated 16 April 2012, the Reviewer confirmed the respondent’s primary decision, identifying that no contrary medical evidence had been provided to unseat Dr McCormick's assessment.

• It was following that review decision that the appellant then lodged an appeal to this Court.

[11] Judge Beattie recorded a summary of the appellant’s submissions as follows:³

The appellant's submissions to the Court in this appeal relate to his opinion that Dr McCormick is not a specialist and therefore not a suitable person to carry out an assessment for an independence allowance, and he sought to

identify some factors which he considered had not been identified by the assessor, in particular, that there had been no proper assessment of his nerve injury and the correct amount of impairment to his foot.

The appellant did not introduce any specialist medical evidence in support of his contentions and it was, in effect, his principal submission that this Court should accept his contention about the unacceptability of the assessment of Dr McCormick, and direct that a specialist assessment and evaluation be undertaken.

Despite the appellant having an independence allowance decision in his favour, he has appealed against that decision on the basis that the assessor was not a person sufficiently qualified to carry out the assessment of the appellant's covered injuries, and the appellant requests that the respondent be directed to refer the appellant back for further assessment from a specialist assessor.

In this case there is no evidence from any specialist commenting on the assessment carried out by Dr McCormick, and further, Dr McCormick had the benefit of two assessments which identified a Whole Person Impairment in excess of 10°/o but in fact less than the amount identified by Dr McCormick.

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.

Whilst the appellant is seeking to have this Court make a direction that a specialist evaluation be undertaken, I find that such a direction is not appropriate and is certainly not one upon which the evidence which has been presented to the Court would suggest is a reasonable proposition.

Under the provisions of the Act it is open to a claimant to seek to have his assessment reviewed after the expiry of 12 months from the last review if it can be identified that there may have been a change in his medical condition, and it is that legal provision which the appellant can engage if there is evidence to support a possibility of an increase in the Whole Person Impairment percentage.

It is of course the case that upon the appellant's earlier request in June 2011 a further assessment was carried out which was beneficial to the appellant.

Having regard to the medical evidence which is relevant to the issue in this appeal, I find that there is simply no basis for determining that the assessment carried out was not correct, and it is therefore the case that this appeal must be dismissed.

[14] Judge Ongley declined the application for leave to appeal to the High Court.

[15] He considered the first argument, which was that the assessment did not acknowledge a further injury suffered as a consequence of medical treatment to the appellant’s foot injury that was originally caused by accidental disruption of the left Achilles tendon and associated nerve injury. He considered there was no indication that failure to identify cover had led to an error in assessment. He said that reading Dr McCormick’s assessment as a whole it was clear that he did assess the

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.

[16] Judge Ongley next dealt with the argument that Dr McCormick had failed to adopt Mr Tomlinson’s opinion. Mr Tomlinson is an orthopaedic foot and ankle surgeon. He reported on Mr Aalderink’s injuries in a letter dated 15 June 2011. The argument advanced as the Judge recorded was that Dr McCormick had substituted his own opinion without professional competence to do so to the opinion of Mr Tomlinson. The Judge recorded that the Court may set aside an assessment where there is a manifest flaw or where the assessment is materially contradicted by responsible medical opinion. He held that the appellant’s argument that Dr McCormick was not competent to form an independent specialist opinion was an argument of fact and not law. He refused the application for leave to appeal.

(a) Dr McCormick was not qualified to assess the appellant’s whole personal impairment and, accordingly, was acting unlawfully when he purported to do so;

(b) The District Court failed to have regard to the specialist evidence of Mr Tomlinson, which evidence the appellant says controverts the assessment of Dr McCormick;

[18] The appellant submits that a significant matter of public interest will be served by determining the grounds that are advanced.

[19] The appellant provided detailed submissions. Unfortunately, they were not specifically focussed on the question that I must determine, namely whether there is a question of law which justifies leave being granted to appeal to the High Court.

[20] The appellant submitted that the whole person impairment assessment is part of an assessment system which contravenes the purpose for which it was introduced. He records that the maximum weekly amount on which allowances are based has not been adjusted in accordance with rights resulting from that legislation. He submits that many parts of the assessment system are flawed, effectively assessing disability rather than impairment.

[21] He submitted that the AMA4 guides were chosen as the tool to assess levels of impairment, but the two definitions of impairment in the guidelines are different

from the definition used in the Accident Compensation Act. That Act defines impairment as:

a loss, loss of use, or derangement of any body part, organ system, or organ function

The appellant submits that this definition does not leave any room for assessing activities affected by the impairment. Disability is a wider term and includes activity limitations. In the guides, impairments are defined as conditions that interfere with an individual’s activities of daily living. The appellant submits that it is clear that the assessor based his assessment on the impact on activities of daily living rather than on the fact that his posterior tibial artery was completely severed. The appellant queries whether the Corporation could have made a correct decision on the appellant’s whole personal impairment, knowing that the assessor assessed disability rather than impairment.

[22] He further submits that as the permanent impairment assessment was not carried out by a medical specialist any trust which the Minister placed in the manager of the Corporation to have assessments by medical specialists has resulted in a breach of the principle that the law should have safeguards against the abuse of wide discretionary powers. The appellant queries whether the court considers the safeguards which were put in place against the abuse of wide discretionary powers delegated to the respondent are sufficient. He submits that the design of the assessment system may have created another breach of the rule of law, as it allows unfair discrimination.

[23] He outlines a number of his concerns about the independence of a peer review of the assessments.

[24] He also submits that the District Court did not correctly identify the issues on appeal.

[25] The respondent opposes the appellant’s application for special leave on the basis that the appellant’s grounds of appeal do not constitute arguable questions of

law. Ms Becroft gave a summary of the appellant’s grounds of appeal. Ms Becroft submitted that all the challenges amounted to questions of fact, which have little or no merit. She submitted that the fundamental problem with the appellant’s case in the District Court was the lack of evidential foundation to support the argument that the impairment assessment was flawed. She submitted that problem still exists, as the appellant’s challenge of Dr McCormick’s assessment relies on the appellant’s analysis of AMA4 and the ACC User Handbook. The appellant has no medical evidence to support his analysis.

[26] She submitted that the suggestion that Dr McCormick’s assessment is contrary to Mr Tomlinson’s opinion is the appellant’s opinion only. She further submitted that the submission that Dr McCormick did not have sufficient medical information available to him is without substance. She then referred to the appellant’s criticisms of the way the legislation came into force and submitted that those submissions have no place in the context of an application for special leave to appeal. She further submitted that the appellant’s references to the New Zealand Bill of Rights Act 1990 are not relevant having regard to the issues that are raised in this case.

[27] Any application for special leave must be brought on a question of law. This is not the appropriate forum for dealing with the appellant’s concerns over the suitability of AMA4 to assess impairments. Any concerns the appellant has in this regard are better directed to Parliament as the use of AMA4 is prescribed by statute.⁷

[28] The allegation that the process of assessing impairment ratings is unfair and discriminatory is only relevant in this case if it is arguable if the appellant’s assessment was conducted in an unfair and/or discriminatory manner. There is no evidence of that and, as such, it is not seriously arguable.

[29] The challenge to Dr McCormick’s assessment does not have an evidential basis. It is simply based on the appellant’s unsubstantiated opinion. I had a

considerable discussion with the appellant as to why he did not start the process again, and if there is contrary medical opinion place that before the Corporation. It would still seem to be an option open to him. However, for the purpose of the application that I must determine, my conclusion is that there are no questions of law involved in accepting the validity of Dr McCormick’s report, either on the basis of the Doctor’s qualifications or on the basis of the information before him.

[30] The appellant’s criticisms of the peer review are, at best, questions of fact. In any event, the peer review is not part of the prescribed process. That issue certainly cannot justify a ground for special leave to appeal.

[31] I have referred briefly to the appellant’s reference to the New Zealand Bill of Rights Act. That Act does not give rise to any right of appeal against a decision of the respondent. I cannot see, on the information placed before the court, how that Act has any particular relevance to the process that was followed in this case.

[32] I conclude therefore that the appellant has not made out a case for special leave to appeal and that the application should be declined. The District Court, in fact, determined the matter on the facts. Its decision was open to it, given the nature of the available evidence.

[34] Counsel for the Corporation advised that no application for costs would be made. In the circumstances, no order is made.

High Court of New Zealand Decisions

Aalderink v Accident Compensation Corporation [2014] NZHC 3071 (4 December 2014)