Nicholl v Accident Compensation Corporation (Social Rehabilitation)

IN THE DISTRICT COURT AT ROTORUA ITE KOTI-A-ROHE KI TE ROTORUA-NUI-A-KAHUMATAMOMOE [2018] NZACC 178 ACR 405/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN B NICHOLL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 28 September 2017 Final Memorandum filed: 5 November 2018 Appearances: The appellant in person S Churstain for the respondent Judgment: 8 November 2018 RESERVED JUDGMENT OF JUDGE DENESE HENARE Social Rehabilitation - ss 79 and 81 Accident Compensation Act 2001] [1] The issue in the appeal is the Corporation's decision dated 8 April 2016 declining funding for a satellite telephone on the basis Mr Nicholl already had equipment that had a similar function to a satellite telephone, that being an emergency locator beacon. [2] The case put by Mr Nicholl was that a satellite telephone was required because he lives remotely outside of Taupo and if he had a problem with his back he would not be able to contact medical services. [3] The position for the Corporation is that Mr Nicholl has an appliance which has a similar function; that a satellite telephone is not a device required as a direct consequence of his lumbar sprain and a satellite telephone is not normally provided by a rehabilitation provider. Appeal hearing [4] Having heard Mr Nicholl's evidence directly from him during the hearing about the unreliability of existing communications equipment, particularly if required in an emergency, I made enquiries of Ms Churstain whether there were options the Corporation could explore to assist Mr Nicholl who lives alone. Matters since hearing [5] By memorandum of 8 December 2017, Ms Churstain indicated the Corporation had funded a new emergency beacon for Mr Nicholl which had been collected by him. [6] Notwithstanding, the Corporation's decision of 8 April 2016 declining funding for a satellite telephone, Ms Churstain submitted the Corporation was willing to reconsider the request for a satellite telephone but an assessment would be required. Ms Churstain made further enquiries of Mr Nicholl. By minute dated 10 April 2018 I issued directions as follows: [8] Directions are, Mr Nicholl is to receive a copy of Ms Churstain's memorandum of 9 April 2018 together with a copy of this minute and notify the Registry by 27 April 2018 whether he is prepared to participate in the assessment or not. [7] Mr Nicholl agreed to participate in the assessment, subject to conditions that included his ability to discuss the assessment report with the assessor, and to check for factual accuracy. [8] By Minute of 3 August 2018 I requested an update whether the social rehabilitation assessment in respect of the need for satellite telephone had taken place. [9] Ms Yiavasis filed a memorandum dated 22 August 2018 noting that: 3 Post hearing, counsel for the respondent has sought instructions from the respondent and been advised as follows: 3.1 Although outside of the issue at appeal, the respondent has now funded a new emergency beacon for the appellant at a cost of $529.99. The appellant has collected that new emergency beacon from the approved store; 3.2 The respondent has reconsidered its 8 April 2016 decision declining funding of a satellite phone for the appellant; this being the issue at appeal. As per the letter annexed hereto and marked "A", the respondent has instructed counsel that: (a) The respondent is willing to reconsider the appellant's request for a satellite phone provided that the appellant participates in a personal safety communication needs assessment. Without the completion of an assessment, the respondent is not in a position to establish whether the appellant has an assessed need for a satellite phone pursuant to section 81(4)(a) of the Accident Compensation Act 2001 ("the Act"); ) From the appellant's comments at the appeal hearing, it is understood that the appellant does not want an assessment to be completed at his home and/or to allow any assessor(s) into his home. For this reason, the respondent is willing to arrange for the assessment to be completed at an alternative ocation (such as at the Taupo Medical Centre, where he sees his General Practitioner); and (c) The respondent is now awaiting confirmation from the appellant regarding whether he wishes to proceed with an assessment. [10] By Minute dated 5 November 2018 the Court sought further update as to matters specifically whether an assessment report had been provided in this case. [11] On the same date Ms Yiavasis filed a memorandum noting that: 2 The assistive technology assessment report ("the report") completed by Chris O'Hara, Occupational Therapist, is enclosed with this Memorandum. 3 Mr O'Hara as assessed the appellant's personal locator beacon ("PLB") as being sufficient, and has declined to recommend a satellite phone as being an essential, injury-related need. 4 Mr O'Hara discussed the report with the appellant before submitting it to the respondent. The possibility of a trial of a satellite phone arose from the discussion. 5 Counsel is instructed the respondent is open to arranging a trial of a satellite phone, at the appellant's request. If the appellant is interested in pursuing this trial, he should contact his case manager, Katrina Baddeley, directly. [12] A copy of the report dated 24 August 2018 was attached to the memorandum of Ms Yiavasis. The recommendations and rationale of the report was stated by Mr O'Hara as follows: Although potential benefits to the use of a satellite phone over a PLB have been identified, significance of benefit is limited. The inability of a satellite phone to be used indoors (where it is seen as more of an injury related need) without connection to an external antenna would minimise the potential benefit of this device over the PLB. As such it is not felt that provision of a satellite phone can be recommended as being an essential, injury related need at this time. [13] Mr O'Hara went on to note that Mr Nichol's comments: Brian feels strongly that a satellite phone is the only suitable alternative for his needs. He raises the ability to have 2 way communication in an emergency as essential for his needs. 14] Mr O'Hara also stated he discussed the report with Mr Nicholl. He stated that: This report was discussed with Brian prior to being submitted, to allow him to check the report for factual accuracy and discuss the contained recommendations. Brian was not aware that satellite phones will not work indoors, and although he reports he has no reason to not believe this, he would like to test a satellite phone in his house to know this with certainty. As Talk Link do not regularly use this type of equipment, and does not have access to a trial satellite phone, understanding as to the limitations of the device is based on best information available via research and conversation with three suppliers of satellite phones. [15] Mr O'Hara indicated if the Corporation wished to provide a device for testing then this could be completed under a particular purchase order. Mr O'Hara stated: Discussion was also carried out with Brian around options to increase the ease of carrying his PLB with him when required (such as following a period of back pain), and he reports he has self funded a pouch which he can use to carry it with him, and he will attempt to use this more regularly. Assistance can also be given to check Brian's home phone to assist him in getting the answer machine working if ACC wishes for this to be completed. Conclusion [16] It is apparent that over the course of some 13 months since the hearing, Mr Nicholl has been provided with a new emergency beacon and he has also participated in a further assessment in respect to a satellite telephone. Ms Yiavasis has indicated the Corporation is open to arranging a trial of a satellite telephone if Mr Nicholl wishes to take advantage of this opportunity. [17] The Court considers by the significant efforts of Ms Churstain and Ms Yiavasis that so much has been achieved for Mr Nicholl. [18] It is now clear that the issues raised at hearing in September 2017 have been overtaken by the post hearing events in the appeal. For this reason, there is no live issue existing in the appeal for the Court to determine given: . The Corporation has provided Mr Nicholl with a new GPS emergency locator beacon; and . Post hearing events have eclipsed the Corporation's decision of 8 April 2016 and the Corporation has agreed to arrange a trial of a satellite telephone at Mr Nicholl's request. Result [19] For these reasons, the appeal is now dismissed. There is no issue as to costs. Anese I Herace Judge Denese Henare District Court Judge Solicitors: Ford Sumner, Wellington for the respondent ACR 405-16-Nicholl