Law for Lump Sum Compensation from ACC

Below are copy and paste extracts from a court document from a District Court judge in New Zealand. It's from my lump sum compensation appeal hearing for mental injury (PTSD). It's pretty generic and most of the same parts were used for the relevant law for the independent review hearing stage. The first part is from the Accident Compensation Act 2001 and the rest is from previous cases ('case law').
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In plain English, it means that an impairment assessment can only done by a doctor trained by ACC (using what some doctors say are outdated and biased assessment tools) and it is almost impossible to challenge it, as it's protected legally. My case involved two conflicting impairment assessment reports two psychiatrists, then a third psychiatrist acting as a peer reviewer chose the report that went against me.

I will write a few plain English blog posts about what was involved with my representing myself in an independent review hearing and then to a rehearing at the District Court. Hopefully, this will help others who are navigating this. 

I have reformatted this copy-and-paste extract slightly for clarity.
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Relevant Law

Clause 54 of Schedule 1 of the Act provides:

Lump sum compensation for permanent impairment
   (1) The Corporation is liable to pay the claimant lump sum compensation in accordance with this schedule, if--
      (a) the claimant has suffered personal injury, after the commencement of this Part, for which he or she has cover; and
      (b) the claimant--
         (i) has survived the personal injury for not less than 28 days; and
         (ii) is alive when assessed under clause 59; and
     (c) an assessment carried out under clause 59 establishes that the claimant’s personal injury has resulted in a degree of whole-person impairment of 10% or more.

​  (2) To avoid doubt, there is no entitlement to lump sum compensation in respect of personal injury suffered before 1 April 2002 or in respect of any subsequent consequences of any such personal injury.

The provisions governing the assessment of lump sum compensation are found at clauses 58 to 61 of Schedule 1. The assessment must be undertaken by an 10 assessor (clause 58(1)). The assessor must assess the claimant in accordance with regulations made under the Act (clause 59(3)(a)). The Injury Prevention, Rehabilitation, and Compensation (Lump Sum and Independence Allowance) Regulations 2002, regulation 4, provides:

Assessment tool for assessing eligibility for lump sum payments and independence allowance

  (1) Assessment of a person’s whole-person impairment, for the purposes of determining the person’s eligibility to receive lump sum compensation or an independence allowance, must be carried out by an assessor using the assessment tool prescribed by subclause (2).

   (2) The assessment tool comprises--
      (a) the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) [AMA4]; and
         (b) the ACC User Handbook to AMA4.

  (3) The ACC User Handbook to AMA4 prevails if there is a conflict between it and the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition).

In Robinson,{1} Judge Beattie stated:
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     The jurisprudence in the field of Lump Sum/Independence Allowance assessments is now well settled, and it is the case that the assessments upon which the respondent based its decision to provide for Lump Sum, must be shown by clear and cogent evidence to be flawed in the way in which the AMA Guides have been interpreted or where it is shown that all aspects of injury were not considered. The mere expression of an alternative opinion is not sufficient.

In Gilbert,{2} Judge Beattie stated: 

     … the assessment made by Dr Bracken is to be regarded as being the measure of impairment of the covered personal injuries as at the day of that assessment. The fact that there may have been a deterioration in the appellant’s medical condition since that assessment does not affect the validity of that assessment. 

In Crouchman,{3} Judge MacLean stated:

    As was outlined in W v Accident Compensation Corporation [2004] NZACC 284 and Robinson v Accident Compensation Corporation [2008] NZACC 121, the principles underlying a challenge to an independence allowance assessment are well settled including:

    • It is not for the Court to form an opinion as to whether or not the AMA guides have been correctly applied - this is the province of duly qualified medical practitioners. The Court must rely on the evidence of medical practitioners in this regard.

   • To succeed in an appeal it is for the appellant to establish on the balance of probabilities that the assessment was in some way flawed or incorrect. This requires credible expert evidence directed at the specific aspects of the assessment which are said to be incorrect.

    • In order to upset an assessment the Court does not necessarily have to be provided with an alternative assessment from a duly qualified expert but it is sufficient if there is expert compelling evidence either that the AMA guides have not been correctly interpreted or that the assessor has failed to take into account all relevant factors of impairment.

In Williams,{4} Judge Powell stated: 

   The case law is well settled that to succeed in appeal of this type it is for the appellant to establish on the balance of probabilities that the assessment was in some way flawed or incorrect. Generally this will require credible expert evidence directed at the specific aspects of the assessment which are said to be incorrect although it does not require a full alternative assessment, and an assessment can also be flawed or incorrect in the event that there has been an error of law or it is otherwise flawed on its face.

Footnotes

{1} Robinson v Accident Compensation Corporation [2008] NZACC 121.
{2} Gilbert v Accident Compensation Corporation [2009] NZACC 166.[
{3} Crouchman v Accident Compensation Corporation [2016] NZACC 29. The judgment reflects the approach earlier taken in Anderson v Accident Rehabilitation and Compensation Insurance Corporation [1999] NZACC 286, and King v Accident Compensation Corporation [2004] NZACC 4, at [13].
{4} Williams v Accident Compensation Corporation [2018] NZACC 13.