Nicholl v Accident Compensation Corporation

IN THE DISTRICT COURT AT ROTORUA [2015] NZACC 270 ACR 366/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN BRIAN NICHOLL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 19 August 2015 Appearances: B Nicholl in person F Becroft for the respondent Judgment: 4 September 2015 RESERVED JUDGMENT OF JUDGE A N MACLEAN [1] This is the third of three appeals I dealt with in Rotorua. The others were ACR 155/13 relating to occupational overuse syndrome, and ACR 524/13 regarding hearing loss issues. [2] This matter involves a decision by the respondent dated 19 December 2012 declining to fund various social rehabilitation entitlements. Background [3] The appellant has cover for a back strain sustained on 16 June 1996 with consequential entitlements including weekly compensation and social rehabilitation. [4] In January 2012 the respondent suspended entitlement to weekly compensation but following a successful challenge weekly compensation was reinstated in September 2010 and continues. 5] There is no need to traverse the balance of the detailed history of the matter save to note that as a result of negotiations an integrated assessment was completed on 15 November 2012 by a registered nurse and occupational therapist who were tasked to consider a number of requests for items or alterations to assist with the appellant's social rehabilitation requirements. [6] Following the advice received from the integrated assessment, the respondent on 19 December 2012 issued a decision declining home help and community support services and equipment sought concluding: We are unable to approve your application because these identified equipment needs are not considered to be an essential need, and/or an injury related need, and/or considered to be the client's personal responsibility. [7] On 13 January 2013 the appellant applied for a review of the Corporation's decision. [8] In the application for review the appellant gave his reasons why he thought the decision was incorrect or unfair and began by making reference to hearing loss issues which are discussed in ACR 524/13 and have nothing to do with the present matter. [9] Indeed much of the several pages of handwriting which accompanied the review, continued to allude to hearing loss issues but also a general perceptions of "persecution", "victimisation", "illegality" and "corruption" to name but a few. More relevantly in respect to the issues at dispute in the present appeal there were allegations of illegality regarding fitting of a handrail, health and safety issue regarding a shower coupled with a number of other rather sweeping generalisations conveying intense dissatisfaction with the respondent and many connected with it. [10] Also in the review application the appellant noted concerns of Dr Fraser, the appellant's general practitioner who wrote to the respondent advising that he thought the appellant's "home help should continue". The Review [11] On 8 May 2013 the application for review was dismissed. [12] The particular areas focused on, following the assessment report, were seven specific items of equipment namely: New bed and mattress. Locator beacon batteries. Foldable portable seat. Walker. Freestanding drying rack. Stand up shower. Path connecting wooden ramp to driveway. [13] Also no assistance was required with respect to home help or attendant care. [14] The reviewer also noted in that context, Dr Fraser's letter of 14 February 2013: I would be grateful if you could reinstate this (home help) as this is what keeps him functional in his own home and he then not having to rely on other means of support down the track. [15] He added that he had got the impression from a meeting "that the home help was going to be continued and I think this is probably fair enough" [16] It is pertinent to note that the appellant did not appear at the review hearing so the reviewer had to distil from essentially the same information I have referred to earlier, what the key areas appeared to be which he recorded as: The step in his shower is dangerous. The external ramp is inadequate and dangerous in mud and rain. Handrails which have been supplied and fitted, Mr Nicholl considers to be illegal given that they are not of perforated stainless steel construction. Home help should be provided and backdated. [17] The reviewer usefully summarised the submissions he received from the respondent which are mirrored in the written submissions before me. [18] The appellant appealed the reviewer's decision on 4 June 2013. [19] The appellant lodged two separate written submissions along with other material. [20] In his first submission received on 28 November 2014 after discussing a need for more time, which he was given, he commented on a number of specific points. These included: His need for a "new orthopaedic type bed" and mattress with a supporting letter from Mr Cowley, orthopaedic surgeon who noted: Mr Nicholl informed me his current bed is now many years old and in bad repair. He finds the bed does not provide adequate support for his lower back and is keen to obtain a new bed so his ongoing lower back symptoms can be minimised ... Mr Nicholl would appreciate ACC's consideration in assisting his purchase of a new bed. And Mr Stanley-Clarke, orthopaedic surgeon who in a letter to Dr Fraser who propos a Mattress noted: Certainly with any chronic back pain sufferer, good posture and good support is a requirement which will ameliorate symptomology. I therefore have no hesitation in indicating that a good support mattress is necessary to ameliorate the symptomatology in Mr Brian Nicholl's case ... And: All I can give is general advice and in amongst that would be a good supporting mattress. After referring to a need for a new computer laptop and television he noted a need for home modifications (shower, ramp, outside decking). [21] He also alluded to issues around travel costs amongst other things. [22] He expanded upon his submissions in a letter received 31 July 2015 which in its initial aspects seem to be focusing on concerns about the advocate who had assisted him before Judge Ongley in the context of appeals that were withdrawn which are separately referred to and discussed in ACR 524/13 and need no further mention here. The balance of those written submissions were in the form of a repeat of generalised allegations of a similar nature to those critical ones mentioned earlier and included an extract from the New Zealand Herald "justice demand for ACC claimants" Submissions before Me by the Appellant [23] On 19 August, for reasons explained in ACR 524/13, after hearing from him with respect to the other two matters and after asking Ms Becroft to reverse the normal order and briefly speak to her written submissions to help focus the appellant on the particular issues in this appeal, she explained that one of the issues relating to a beacon battery has been funded and is not now an issue and the appellant appeared to agree with that noting that was only because of the intervention of the Chief Executive Officer for whom he had the highest praise. [24] I asked the appellant to try and focus on the specifics because sweeping generalisations of the vituperationature that he kept wanting to make were not particularly helping his cause and tried to extract from him the specifics of his concerns. [25] It was difficult to do because he kept wanting to refer to the assessors as a "pack of liars", "the biggest thieves probably in New Zealand" and the like. I invited him to pick out of specific items mentioned in Ms Becroft's submissions and discuss the detail with me. [26] He said that: These assessors that have visited my place wouldn't even have the foggiest of ideas about what chronic pain syndrome is. They wouldn't have the foggiest idea and they've got no interest in it and they couldn't care less anyway. ... They are hit squads for ACC. They've got no intention of actually supplying what I need ... their job is to save money. [27] I asked him whether what he was saying is that they had "got it wrong because they haven't taken into account the pain issues ...". He replied: Yes my back's gone on me four times. If it happens in my shower actually I'd say I'd drown. You've got it - it's actually 150 mil swimming pool if you like at the base. But had nothing further to add. [28] I invited him to discuss the path and ramp issue and he said: My home help ... she wears my gumboots which I've got on now. They've put in a very small one. I think it's about 2 metres. They didn't put it to the driveway which is where they were meant to and so they talk about health and safety like for caregivers but they couldn't give a continental. Couldn't give a stuff. [29] We turned to the foldable portable seat issue and the appellant said in response to my pointing out that the comment in the assessment report was that did not seem to be a safe solution and asked him what he thought was wrong about that. He said: Basically how I've overcome that is that depending on errands I do because I have a disability card for the carpark and basically I try to get as closest to where I'm going and if I see anyone I try not to stay too long but that's only outside my house. [30] I invited him to discuss the issue with the walker but he wanted to bring the discussion back to the bed. After digressing briefly into the issue with the locator beacon batteries when I pointed out to him what the assessors had to say about that and invited his comment to the proposition that that would not be a good idea he said "I'm dealing with real bimbos, some of the biggest bimbos you'll find". He then made some general allusions to the incompetence generally of workmanship at his house. [31] We were not making very much progress, so I attempted to bring things to a head. When I pointed out to him that it seemed to me that the assessor was saying is that the appellant was independent using the equipment he has, and invited his comment. I asked him "You say they've got that wrong?" He replied: "They have but if you talk to my caregiver who's got brains and who's an honest person, very rare in this world today she would tell you the complete opposite but I really can't take it anymore actually ... I've had a stomach full. ... I carry on as best I can. Anything as regards to this they can shove it. [32] He concluded by making it clear that there was nothing further that he had to add but that he felt that he was wasting his time. [33] There was other comment made not directly relevant to the issues in this appeal. Analysis and Discussion [34] It is problematic for all concerned, including counsel, and for the respondent, the Court and the appellant in a case like this, where the appellant has fallen out with previous advisers, has an entrenched antagonistic view of the respondent and virtually any agency connected with it, and so many appeals and reviews either in the system in the past or current. [35] I did my best to try and extract from the appellant his concerns but the reality is that the procedure adopted by the respondent of engaging appropriately qualified people to respond to a request for social rehabilitation including home help, aids and appliances are set out in clauses 13 and 17 of the First Schedule to the Act governed by the principles set out in ss 70 and 79 of the Act. As the respondent submits, s 70 when it talks about a claimant being "responsible for his or her own rehabilitation to the extent practicable having regard to the consequences of his or her personal injury" supports the principle that the scheme is designed to cushion a claimant and not provide a full indemnity see ACC v Nelson . [36] Sections 81 and 84 of the Act outline the necessary prerequisite to be satisfied for an entitlement, including an assessment of the type carried out here, in accordance with the schedule including that the need requires an assessment of whether and to what extent it arises as a direct consequence of a personal injury, is of a type normally provided by a rehabilitation provider and is necessary and appropriate. [37] As the respondent correctly submits when making an assessment the respondent is exercising a discretion which means it is incumbent upon an appellant challenging the decision as was noted by Ongley DCJ in Herlihy that: An appellant must show that the decision maker acted on a wrong principle or that he failed to take into account some relevant matter or he took account of some irrelevant matter or that he was plainly wrong. [38] The specific comments of the assessors in brief were as follows: As regards the bed it provided adequate support and there is no need for a specialised pressure relieving mattress as there is a consequential risk of [1979] 2 NZLR 64 2 196/2006 developing problems and the appellant has the capability of independent movement. As regards locator beacon batteries the appellant has agreed to meet the cost of this. As regards the foldable portable seat that was seen as not satisfactory for reasons explained. As to the walker the assessor could not identify an injury related need for that nor did they consider it appropriate given that it would reduce the walking ability already possessed. As regards the freestanding drying rack it considered that there was enough dangerous clutter already in the house without adding to it and that the cost was very minor with no identified injury related need. As regards the stand up shower the assessor noted: Mr Nicholl reports that he finds the lip of the cubicle shower difficult to step over. It is approximately 150 millimetres high. He has been provided with a vertical grab rail to use to support him when transferring in and out of the shower. He is able to manage this is he is careful. He reports that he can manage to step down into his bedroom which is about the same height. He needs to continue to take care ... As to the path, the assessor noted it was not ideal because it was not sealed but was traversable as the assessors observed. As to home help the assessor could not identify any injury related need for the provision of home help. [39] In conclusion the respondent submitted that there is no independence evidence suggesting that the assessor's assessment was incorrect nor any indication of a misapprehension of the facts or approaching the assessment in an incorrect way. [40] Put shortly there is no evidence that the Corporation as exercised its discretion inappropriately, Assessment and Analysis [41] The appeal cannot succeed. It is very clear that a most unfortunate entrenched attitude has developed and this is clearly colouring the appellant's approach to the point of becoming a fixation with the consequent problem of him not being able to see the wood for the trees. By that I mean that he has so much on his plate that he has real difficulty focusing on the issues. Other than his strongly held and expressed personal views there is no objective countervailing opinion to set against the assessment aside from the two medical practitioners whose letters of support are just that, but not really a considered analysis making out a strong case for the equipment sought. Clearly both were sympathetic to the appellant's concerns, [42] Ultimately no matter what sympathy the Court, or others have for the unfortunate circumstances of the appellant, the reality is that there are clear guidelines as to the process applicable set out in the Act and the schedules as noted in Herlihy, and the appellant has not met the threshold warranting intervention by the Court in the exercise of the discretion by or on behalf of the respondent in this case. [43] Accordingly the appeal is dismissed. There is no issue as to costs. Judge A N Maclean District Court Judge ACR 366-13-Nicholl(aw)