Fitzgerald v Accident Compensation Corporation

IN THE DISTRICT COURT AT ROTORUA [2014] NZACC 318 ACR 353/09 ACR 233/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN BARRY FITZGERALD Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 17 July 2014 Appearances: Mr Carlyle for the appellant Mr McBride for the respondent Evidence completed: 10 September 2014 Judgment: 28 November 2014 RESERVED JUDGMENT OF JUDGE DENESE HENARE [1] The appellant, Mr Fitzgerald challenges two decisions of the Corporation, upheld at review, in these appeals: [i] A decision of 14 October 2008 finding he no longer had vocational independence from 20 March 2005; [ii] A decision of 1 November 2012 agreeing to pay backdated attendant care for the period 30 December 2010 to 4 September 2011 as directed by review decision 272587 (dated 18 March 2012). Sleepover care was not included in the backdated payments for Mrs Fitzgerald because "ACC is unable to pay for sleepover care that is done by a family member". Background [2] On 12 June 1991 Mr Fitzgerald sprained his back while working for Ansett Airlines for which he received cover and entitlements. From January 2002 Mr Fitzgerald was found to have achieved vocational independence. Mr Fitzgerald challenged this decision, which was upheld on review. However Mr Fitzgerald did not appeal the reviewer's decision. [3] In early 2004 Mr Fitzgerald was certified unfit to work and received benefit support from Work and Income (WINZ): On 13 February 2004 Dr Hughes completed a sickness benefit certificate stating Mr Fitzgerald was unfit to work for a month. However Dr Hughes ticked the box that Mr Fitzgerald was permanently and severely restricted in his capacity to work. Dr Hughes also recorded Mr Fitzgerald had ongoing problems with severe back pain with any manual work. Dr Hughes recommended that Mr Fitzgerald be assessed for an invalid benefit. On 23 March 2004 Dr T Coulter issued a sickness benefit certificate, stating Mr Fitzgerald was unfit to work for two months. In a question on the form that asked whether the work restrictions were permanent, Dr Coulter ticked they were not. On 17 May 2004 Dr Loan, issued an invalid benefit certificate noting Mr Fitzgerald was severely restricted in his ability to work because he was unable to undertake a range of physical activities, although it was noted Mr Fitzgerald could undertake sedentary work. [4] Between 2003 and 2005 Mr Fitzgerald saw Mr Stanley-Clarke, an orthopaedic surgeon with regard to his back injury. Mr Stanley-Clarke did not comment on Mr Fitzgerald's capacity to work on the five occasions he saw him. [5] In March 2005 Dr Hughes reported Mr Fitzgerald had attempted to operate a small business but the strain had proved too much and it was likely his capacity for work had changed, although she indicated she would not comment until he had been assessed by a pain clinic. On 4 April 2005 Dr Prestige, occupational and musculoskeletal specialist reported Mr Fitzgerald's spine was sound, that conventional medical intervention had failed and he recommended Mr Fitzgerald receive pain management. On 12 July 2005 Dr Kahan, occupational medicine specialist assessed Mr Fitzgerald and found him vocationally independent in one work type of a general manager. [6] On 22 August 2005 the Corporation issued a decision that Mr Fitzgerald retained vocational independence. This decision was challenged by Mr Fitzgerald, and the parties went to mediation, and settled on the basisthat Mr Fitzgerald had suffered deterioration. [7] On 21 July 2008 Dr Epp certified incapacity from June 2008 and commented: Continues not to be able to work as from last ACC payment May 2002. Unlikely will ever be fit for work.' [8] On 14 October 2008 the Corporation determined that weekly compensation should be reinstated from 20 March 2005. The Corporation indicated reinstatement could occur upon receipt of an authority to receive WINZ benefit information. This decision is the subject of the first appeal. The First Appeal [9] The issue in the first appeal is when did Mr Fitzgerald's vocational independence cease? Or Epp's comment is handwritten and not clear. The Court has relied on the certificate referred to in the Review Decision of 16 July 2009, and as confirmed in counsel's submissions. The case for the appellant [10] Mr Carlyle submitted that the WINZ medical certificates should be accepted by the Corporation as evidence of Mr Fitzgerald's incapacity to work. [11] Relying on Dr Epp's comment of July 2008, Mr Carlyle submitted that Mr Fitzgerald had been continually incapacitated since January 2002. However, Mr Carlyle conceded there was evidential difficulty in supporting this argument from 2002 because the vocational independence decision of 2002 was not challenged. The case for the Corporation [12] Mr McBride submitted the Court does not have jurisdiction in respect to the Corporation's decision of 22 January 2002 finding Mr Fitzgerald was vocationally independent because that decision was reviewed and upheld, and was not appealed by Mr Fitzgerald. On that basis, the principle of issue estoppel or res judicata applies, which prevents the Court from opening a matter that has already been subject to previous proceedings.2 [13] Mr McBride submitted when the Corporation made its decision in October 2008 it did not have the medical certificates. The certificate provided by Dr Loan, is sufficient to indicate, on the balance of probabilities, that vocational independence ceased on 17 May 2004. On that basis, the review decision should be modified. Discussion and analysis [14] Mr Carlyle contends that Dr Hughes' certificate of 13 February 2004 should be relied upon. The difficulty with Dr Hughes' medical certificate of 13 February 2004 is that in the section of the form regarding work capacity, Dr Hughes considered Mr Fitzgerald unfit for work for a period of only a month. Whilst Dr Hughes ticked "yes" to the question that Mr Fitzgerald is "permanently and severely restricted in his capacity to work" she qualified this answer by recommending that Mr Fitzgerald be assessed for an Invalid Benefit. See Contact Energy v Attorney General [2009] NZCA 351, Rabson v Attorney General [2013] NZHC 1018 [15] Dr Loan conducted this assessment in May 2004 and indicated the employment activities for which Mr Fitzgerald was severely restricted and unlikely to improve. I find that the earlier certificates of Dr Hughes and Dr Coulter indicating Mr Fitzgerald unfit for limited periods are consistent with a short term incapacity, rather than a long term loss of capacity. [16] Whilst Mr Carlyle argued that Mr Fitzgerald does not accept he was vocationally independent, I find that is not a question I have the jurisdiction to deal with in this appeal. The 2002 decision was not appealed, and the doctrine of res judicata applies. Conclusion [17] On the basis of the evidence, particularly relying on Dr Loan's medical assessment certifying Mr Fitzgerald as permanently unable to work, and accepting the concession of the Corporation agreeing to modify its earlier decision as to the date of cessation of vocational independence, I conclude that vocational independence ceased on 17 May 2004. Result [18] Accordingly the appeal is dismissed. The review decision of 16 July 2009 is modified, so that the material date when Mr Fitzgerald ceased vocational independence is 17 May 2004. The Second Appeal [19] The second appeal arises from the Corporation's decision of 1 November 2012 to backdate home help and attendant care. The Corporation's decision provides: ACC's recent decision dated 10 October 2012 approves 23.00 hours per week of home help and attendant care combined for the period 3 September 2012 to 3 March 2013. The same decision includes 7.0 nights per week sleepover care for the period 8 October 2012 to 2 December 2012. Further to the reviewer's direction, ACC's decision dated 10 October 2012 and the newly approved hours are to be backdated starting from 30 December 2010. I have calculated the backdated hours you are entitled to be paid less any hours that have already been paid for attendant care during the periods outlined. ACC will backdate the cares between 30 December 2010 and 4 September 2011. The reason that the backdated payment ends on 4 September 2011 is because your wife Philippa had moved out of the home and was no longer providing personal care to you. Healthcare New Zealand had taken over the care hours from 5 November 2011 that was in place at that time. ACC cannot pay you for attendant care when Philippa was not providing them to you. [20] In respect to the claim for sleepover care, the Corporation's decision provides: Sleepover care is not included with the backdated payment. Philippa was your care giver during this time and ACC is unable to pay for sleepover cares that are done by a family member living in the home with you. There were also two periods excluded with the final calculation, they are 11 February 2011 to 23 February 2011 and 28 February 2011 to 20 March 2011. Philippa was away from your home during these two periods due to personal reasons and ACC cannot pay for attendant care that was not being done by Philippa. Healthcare New Zealand was providing the cares based off the hours that were approved at the time. ACC will shortly pay you a total of $7506.42 for the owed backdated care as directed by the review decision numbered 272587. Background [21] Mr Fitzgerald has a number of covered injuries, including: A back sprain and chronic pain from an injury in June 1991; Contusions to the head and chest, and sprain of the right shoulder and wrist due to an assault in May 2006; and An infection to the right shoulder as a result of a treatment injury from surgery in December 2008 [22] Mr Fitzgerald also has non-accident conditions which give rise to needs independent from any accident. The file review and examination of Mr Fitzgerald resulted in a report of Dr Ruttenburg of 2 February 2012 which refers to accident and non-accidents needs. [23] On 30 July 2009, the Corporation issued a decision approving 44.75 attendant care hours per week from 26 July 2009 to 19 September 2009. Mr Fitzgerald applied for review of this decision. In a review decision of 27 May 2010, the reviewer (M Donovan) determined that the Corporation was required to fund 55 hours and 25 minutes of weekly attendant care for the period 26 July 2009 to 19 September 2009. [24] The reviewer noted that her decision was limited to that period, and the Corporation had issued further decisions for different periods that were unaffected by her decision. The decisions on attendant care that the reviewer referred to were: Decision letter dated 21 September 2009 - 44.75 hours per week from 20 September 2009 - 31 October 2009; Decision letter dated 6 November 2009 - 44.75 hours per week from 1 November 2009 - 30 January 2010; Decision letter dated 22 January 2010 - 44.75 hours per week from 31 January 2010 - 13 March 2010;n and Decision letter dated 20 April 2010 - 44.75 hours per week from 25 April 2010 - 5 June 2010. [25] Mr Fitzgerald did not challenge these decisions. [26] The Corporation back paid the attendant care in accordance with the review decision of May 2010 for the period 26 July 2009 to 19 September 2009. Attendant care remained funded at 44.75 hours per week until November 2010. 4 November 2010 Decision [27] On 9 August 2010 a social rehabilitation and assessment report was provided by Focus on Potential that recommended 4 hours and 5 minutes of attendant care per week for Mr Fitzgerald. The assessment noted previous reports had identified a need for 44 hours per week of attendant care but: It is noted that no apportionment of the above [non-injury] limitations was made on the long list of non-injury issues recorded in the same report and no mention is made of the fact that Mr Fitzgerald's partner would have been performing the same tasks for herself or from the perspective of her natural support for her husband. [28] Whilst noting many of Mr Fitzgerald's needs related to non-injury factors, Focus on Potential recommended that Mr Fitzgerald and his wife discuss needs assessment and respite care with their local district health board in order to add to the assessments provided by the Corporation. In a decision letter of 4 November 2010, the Corporation advised Mr Fitzgerald that his attendant care hours would be reduced to 4 hours per week from 8 December 2010. Mr Fitzgerald's advocate, Mr Carlyle requested the Corporation carry out a further assessment. [29] The Corporation agreed to undertake a further needs assessment which was carried out in December 2010. A report dated 17 December 2010 by Needs Assessment Service limited recommended a total of 5 hours and 50 minutes weekly attendant care. [30] On 11 January 2011, Mr Carlyle wrote to the Corporation noting that no decision had been issued following the latest assessment and advised that the Corporation should provide 44 hours per week attendant care in the interim, and contended that this issue "is still to be addressed for the time periods outside the review decision" [31] On 27 January 2011, the Corporation issued a decision and advised Mr Fitzgerald that: It would fund 5.5 hours of attendant care from 30 December 2010 to 9 March 2011 based on the Needs Assessment Service report; and It had funded 4 hours per week from 8 December 2010 to 30 December 2010 based on its decision of 4 November 2010, now confirmed by the Needs Assessment Service assessment. [32] On 1 February 2011 Mr Carlyle wrote to the Corporation advising that "no decision has yet issued to reduce attendant care from 55 hours per week. 33] On 25 March 2011, Mr Carlyle wrote to the Corporation disputing the decision of 27 January 2011 was a decision and contended that Mr Fitzgerald should be provided attendant care of 55 hours per week until death. 4 April 2011 Decision [34] On 4 April 2011, the Corporation issued a new decision advising Mr Fitzgerald he was entitled to 6 hours of attendant care per week from 21 March 2011 until 29 May 2011. [35] On 15 April 2011, Mr Carlyle wrote to the Corporation stating he considered there was a deemed decision in Mr Fitzgerald's favour (by reason of the delays by the Corporation in managing the claim). [36] A further assessment of accident related needs was undertaken by an occupational therapist and registered nurse from Needs Assessments Service Limited. As a result, a report of 29 August 2011 assessed the accident related needs and assessed 7 hours attendant care and 3 hours of home help per week. Based on this assessment, the Corporation issued a decision of 6 September 2011 adopting the assessed levels of attendant care and home help. Mr Fitzgerald challenged this decision. In the review decision of 18 October 2011, Mr Fitzgerald's contention for entitlement of 55 hours attendant care (by reason of the review decision of 27 May 2010) was dismissed. Mr Carlyle's argument about a deemed decision was also dismissed. No appeal was filed. [37] As a result of that decision, there was a direction from the reviewer to the Corporation to obtain a report from Dr Ruttenberg to discern which of Mr Fitzgerald's needs were caused by covered injury and then to revisit matters in light of that report. [38] On 2 December 2011, Dr Ruttenberg examined Mr Fitzgerald and reported that only limited symptoms were accident related. Review Decision 18 March 2012 [39] This is decision numbered 272587 referred to in the Corporation's decision letter of 1 November 2012. [40] At review, Mr Fitzgerald contended entitlement to 55 hours ongoing attendant care, again relying on the 27 May 2010 review decision. The review was dismissed by consent of the parties (Consent Decision), subject to conditions, including further assessment of attendant care needs. [41] On 27 July 2012 an assessment was undertaken by Ms Smith, occupational therapist of Step Ahead Therapy. A report was also received from Dr Stefan Neff of 1 June 2012 which identified Mr Fitzgerald's medical problems. Dr Neff reported that Mr Fitzgerald had 'walked out' of supervisory care. As a result, the opportunity to consider how to manage his pain could not be resolved. [42] The Corporation issued a decision dated 10 October 2012 which fixed cares as comprising 7 sleepovers per week, plus 23. additional hours per week. This decision was not reviewed. [43] By a decision of 1 November 2012, the Corporation considered historical needs for specified periods of time. This decision determined that backdated payments be made for the period between 30 December 2010 and 4 September 2011. Mr Fitzgerald lodged an application for review of this decision. The review decision of 3 April 2013 upheld the Corporation's decision of 1 November 2012. It is that decision which is subject to appeal. [44] The issue is whether the Corporation has exercised its discretion (as directed by the review decision of 18 March 2012) on a wrong principle. The case for the appellant [45] Mr Carlyle provided two sets of submissions dated 20 January 2014 and 7 September 2014. [46] Mr Carlyle submitted the attendant care daily hours should be fixed at 55 hours as determined by M H Donovan in review decision of 27 May 2010. [47] Mr Carlyle conceded in respect to payment of sleepover care from 4 September 2011: It is not possible to back pay hours from 4 September 2011 when Philippa left nor to back pay attendant care when no one was present. A decision fixing full time attendant care, day and night, will mean ACC must provide such until Barry dies or is hospitalised. [48] Mr Carlyle also raised an issue of costs which were not awarded at review. [49] In his amended submissions of 7 September 2014, Mr Carlyle submitted the claim is for the Corporation: [a] To pay 55 hours 25 minutes from 19 September 2009 to 5 October 2012. [b] To pay Philippa for night care from 19 September 2009 to 4 September 2011. [c] To provide full time attendant care from 5 October 2012. [d] The Corporation "is effectively the party with sole responsibility for Barry". The case for the Corporation [50] Mr McBride submitted the review decision of 27 May 2010 addresses different factual circumstances and does not create an ongoing "entitlement". [51] Mr McBride submitted there can be no challenge to an assessment. The challenge is to the Corporation's decision which resulted from the exercise of discretion. In Mr McBride's submissions, the assessed and approved payments of 23 hours per week of home help and attendant care for the period 30 December 2010 to 4 September 2011 were properly made and there is no error in the Corporation's discretion. In respect to sleepovers, the corporation did not think it was "appropriate to paying Mrs Fitzgerald's wife to sleep in her own bed". [52] Mr McBride also submitted a primary issue in the appeal is the extent of Mr Fitzgerald's accident caused need, which is covered by the Corporation, as opposed to non-covered needs, which are addressed by the public health system. Discussion and analysis [53] Under ss 81-84 of the Accident Compensation Act 2001, the Corporation must provide key aspects of social rehabilitation. This obligation is subject to conditions that the need is a direct consequence of the personal injury for which a claimant has cover (s 81(4)(c) following an objective assessment of need by a duly appointed assessor (s 84(2)), and takes into account a number of contemporary circumstances (s 84(4)). Once an assessment is undertaken, and needs are identified then the Corporation has a broad discretion, including as to funding of such needs under Schedule 1, clauses 14 and 17. [54] Any decision on attendant care or home help is first based on an assessment. Whilst the Corporation's decision is subject to review and appeal, the same cannot be said of an assessment. In Smith v ACC the position was stated: [27] The Court is not equipped to make its own assessment based on evidence of needs and estimates. That is done by an assessor under relevant legislative provisions. It is difficult for a claimant to accept that attendant care and home help depends on the opinion of one assessor, employed by the Corporation and not completely independent in the sense that the assessor is likely to rely on the Corporation for work. However there is no more rigorous system available and the process adopted by the Corporation complies with the legislation. As with any challenge to the exercise of discretion, it must be demonstrated that the discretion has been exercised on a wrong principle or that it has not correctly identified the statutory requirements under which that discretion is to be exercised." The issue is then whether the assessor approved payments for the particular detailed historical period were ones properly within the exercise of the Corporation's discretion, or conversely whether some administrative law wrongfulness is established. It is not sufficient that a different view is taken. [55] At the outset, I observe the decision letter of 1 November 2012 sets out the basis for payment of the backdated payments 'in line with the review decision numbered 272587'. This is the Consent Decision of the parties of 18 March 2012 recorded by the reviewer, Mr Woodhouse. I also observe that Mr Woodhouse links this decision to his earlier decision numbered 205859 of 18 October 2011. The link is referred to in the March 2012 decision, as to the evidence upon which agreement followed, and the ongoing consideration being given by the Corporation of the [2012] NZACC 233 See Tuhakaraina 138/06; Chittock 122/09 and Howell [2013] NZACC 38 directions from the earlier decision. The October 2011 decision was quashed by Mr Woodhouse, with directions. [56] Having regard then to the factual matrix upon which the 1 November 2012 issued, I turn to consider the heads of claim submitted by Mr Carlyle. Payment of 55 hours 25 minutes from 19 September 2009 to 5 October 2012 [57] This head of claim arises from the review decision of 27 May 2010 which quashed the Corporation's decision of 30 July 2009 approving 44.75 hours for the period 26 July 2009 to 19 September 2009. The reviewer found that Mr Fitzgerald was entitled to attendant care hours of 55 hours 25 minutes weekly attendant care as recommended by Ms Hall, assessor. However, the reviewer's finding was limited to a specific period: I find that ACC's decision approving 44.75 hours for the period 26 July 2009 to 19 September 2009 cannot be maintained and must be quashed. I find that Mr Fitzgerald was entitled to have attendant care hours of at least 55 hour 25 minutes as recommended by Ms Hall following her assessment of his needs at that time. But I also fine that the period in which those hours were to be provided must be limited to the period 26 July - 19 September 2009. That is because since the present decision was issued, a new decision on entitlement - both attendant care hours and period of application of those hours has been issued. [Emphasis added] [58] There are two matters that I take into account in respect to this decision. First, the assessment of Mr Fitzgerald's needs was for the period 26 July 2009 to 19 September 2009. That is the period for which the 55 hours and 25 minutes was determined by the reviewer. The Corporation back paid attendant care for this period in accordance with this review decision. [59] Secondly, attendant care remained funded at 44.75 hours per week for periods identified in the decisions set out at paragraph [26]. These decisions were not reviewed. The reviewer was aware of these decisions. However, she had no jurisdiction to deal with these other periods. [60] The Corporation elected to maintain the 44.75 hours attendant care and agreed to undertake further assessments. It was open to Mr Fitzgerald to have applied for review of those decision letters. He did not do so. [61] In consequence, I have no jurisdiction to deal with the period 19 September 2009 to 5 October 2012. To pay Philippa for night care from 19 September 2009 to 4 September 2011 [62] Mr Carlyle submitted, based on the decision of the Court of Appeal in Idea Services v Dixon', that the Corporation pay Mr Fitzgerald's wife for sleepover care. This decision is directed to employees who are required to sleep away from their own homes for the purpose of employment, as care givers, and is distinguished on the facts of this case. [63] There are a number of decisions in the District Court where it has been found that while family members should provide some unpaid assistance, "account must be taken that such family members have their own lives to lead ". I observe that Mr Woodhouse, in his decision of 17 October 2011, was cognisant of the stresses that impacted on Mrs Fitzgerald when she gave evidence at review: If Mrs Fitzgerald's evidence is to be accepted (and I have no reason not to accept it), she has in recent times experienced, to use her words, a 'breakdown' and needed to leave the family home which she states was due to demands in relation to her husband's care. That would be strong evidence that the burden placed on her is simply too great. If that burden was due to injury related causes for Mr Fitzgerald, then that would show ACC's decision has over estimated the reasonable contribution to the applicant's care from his wife [64] The review decision of 3 April 2013 refers to evidence from Mrs Fitzgerald that if the Corporation had funded a greater number of attendant care hours "she would not have collapsed". [65] The assessment report of 27 July 2012 noted that Mr Fitzgerald's wife no longer lived in the family home and she moved out on 4 September 2011. However, [2011] NZCA 14 the report of Mrs Kenny of 29 August 2011 noted Mrs Fitzgerald had moved out in late July 2011 or early August 2011. Mrs Fitzgerald was also not living in the home from 27 January 2011 until 23 February 2011. [66] Having looked carefully at the materials before me, it appears there is a period from December 2010 to late July or early August 2011, when Mrs Fitzgerald was providing both daytime and night time care and trying to maintain her own work as an ambulance officer. The evidence of Mrs Fitzgerald at review, was also provided by her in the assessment of this period. I find this evidence provides a background for the directions in review decision 272587. [67] Having regard to the Consent Decision of 18 March 2012, and the directions linked to the review decision of 17 October 2011, I find the decision of 1 November 2012, to exclude sleepover care for Mrs Fitzgerald for the period 10 December to September 2011 appears flawed. The Corporation does not appear to have taken into account the evidence about Mrs Fitzgerald's role as a care giver (night and day) and when she was working. A role which Mr Woodhouse described as placing a burden on her. In Knighton terms, that appears unreasonable in the circumstances. [68] I direct the Corporation undertake a further review of sleepover care for Mrs Fitzgerald for the period December 2010 to July or August 2011 when she moved out. The period when Mrs Fitzgerald was not in the home should be excluded. Provision of Attendant Care from 5 October 2012 and the Corporation has sole responsibility for Barry [69] Mr Carlyle's submissions refer to a decision of 5 October 2012. There is reference in the 1 November 2012 decision letter to a 10 October 2012 decision. This decision letter refers to a period from 3 September 2012 to 3 March 2013. I turn to consider the submission that the Corporation 'has sole responsibility for Barry' and should provide full time attendant care. Knighton 65/2005 [70] A condition in the Consent Decision (272587) provided: Mr McBride agrees that ACC will issue a decision regarding the extent of the covered injuries (as was directed in my previous review decision), within 2 weeks of receiving any report from Dr Neff. [71] The Corporation sought a report from Dr Ruttenberg regarding accident and non accident related needs. Whilst Dr Ruttenberg was able to identify the covered injuries, he found it difficult to assess which sequelae related to covered and non covered injuries, particularly in regard to chronic pain. [72] The integrated assessment report of 19 July 2012 undertaken by Ms Smith, Occupational Assessor of Step Ahead Therapy noted 'a combination of NASC and ACC funded attendant care' with 'NASC funding 3 hours home help and 22 hours attendant care'. The report noted that Mr Fitzgerald walked away from supervisory nursing which had been provided to monitor his medication and pain levels. I observe that it will be difficult to achieve a clear assessment of these issues in the event Mr Fitzgerald chooses not to complete his treatment. The report noted that both the public health system and the Corporation were continuing to share funding for Mr Fitzgerald's needs. [73] The Corporation's responsibility to provide key aspects of social rehabilitation is set out in the 2001 Act. I have referred to the applicable provisions earlier in this decision. It is clear that need must be a direct consequence of the personal injury for which a claimant has cover. Dr Ruttenberg's report refers to a knee problem of Mr Fitzgerald, which Dr Ruttenberg noted was not covered. Dr Neff's report lists Mr Fitzgerald's medical problems. I observe that some of these problems do not appear to arise from an accident, for example hypertension and chronic sinusitis. Based on these reports, I can see no basis for the submission that the Corporation has sole responsibility to provide for Mr Fitzgerald's needs. [74] It is not disputed that Mr Fitzgerald has substantial needs. The issue is that the cause of those needs is only partially accident related. The Corporation's liability is to provide support for those needs as a result of accident caused circumstances. The benchmark for the provision of any attendant/ home help arises from an assessment of needs. [75] I find that the history of Mr Fitzgerald's health issues shows both accident and non accident related needs and in consequence, a dual responsibility for these needs is provided by the Corporation and the local Heath Board. Cost Issues [76] I turn to consider Mr Carlyle's submissions that costs should be paid to the ACC Advocacy Trust for the review. Mr McBride submitted the "review costs issue is in the realms of abuse of process". [77] Having looked at all of the review decisions referred to in the background section of this judgment, I find there has been a variable approach to the award of costs. Some decisions have awarded costs. The review decision of 3 April 2013 did not. However, the reviewer noted the Corporation did not object to costs being awarded in other cases. [78] I observe the Consent Decision of 18 March 2012 awarded costs and noted "Mr McBride had no objection to an award of review costs, beyond noting the approach taken by the Court in requiring that any costs which are awarded, be awarded in relation to costs incurred by claimants". That approach has been accepted in the District Court. [79] Mr McBride drew my attention to a decision of Judge Joyce QC in Swinburne v ACC,' who dismissed an appeal from the ACC Advocacy Trust, finding there could be no justification for an award of costs, when none such had actually been incurred. There is no evidence before me as to the terms of the advocacy service agreement. [80] I take into account the history of the costs awards in review decisions challenged by Mr Fitzgerald which have been allowed. I particularly take into account the fact that the Corporation's decision of 1 November 2012 arises from a [2013] NZACC 407 direction in the Consent Decision of 18 March 2011 where costs were agreed. In the circumstances, I find that reasonable costs incurred at review should be awarded. [81] Summary of Results of the Appeals [i] Appeal No 353/09, the first appeal is dismissed. The review decision of 16 July 2009 is modified, so that the material date when Mr Fitzgerald ceased vocational independence is 17 May 2004. [ii] Appeal No 233/13 is dismissed. However, I direct the Corporation to undertake a review of the sleepover care provided by Mrs Fitzgerald in the period 1 December 2010 to either late July or early August 2011, when she moved out of the house. I also find that reasonable costs incurred at review should be awarded. Genese & Herave Judge Denese Henare District Court Judge ACR 233-13 and ACR 353-09-Fitzgerald.doc(aw)