Fell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No.5/ 94 . ···-· - ·- -· .,, ___ ------···-- · ·-·- ·· HELD AT WELLINGTON UNDER The AcciLknt Rchahilitatitin anJ Cl)mpensatitrn Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act 57-92- 3121 BETWEEN BRONWYN PATRICIA FELL Appellant (Appeal No. De..;: W b/ct 3) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE D A ONGLEY This is an appeal against the decision of the review officer at Tauranga given on 21 January 1993 confirming the Corporation's decision not to provide a waterbed to assist _ . . the appellant with support which she needs to help alleviate back pain. The brief reason for the decision was that the Corporation is prevented by s 26 of the Accident · Rehabilitation and Compensation Insurance Act 1992 from making any provision or payment for social rehahilitation unless the provision or payment is required or permitted by regulations made under the Act. The only set of regulations which could apply is the Accident Rehahilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992 and it does not provide for the kind of assistance which the appellant seeks. The appe!Jant did not appear before the review officer and she has agreed to this appeal being dealt with on the papers. The appellant suffered a back injury in April 1989. She had a spinal fusion operation in August 1991 but she suffered continuous pain after the operation. In May 1992 she applied for contribution to the cost of a waterbed. ·1 he Corporation promptly rey_ueste<l the Tauranga hospital occupational therapy department for an assessment hut the workload at the time resulted in the assessment being deterreu so that it was not done until July 1992. The asse<;sment of an occupational therapist was that the appellant's present hed was too l s\lft and was likely tn he L'lHltrihuting tu her pruhkm-,. She had found that thL' hed that best suitt.:J her was a Skepyhead Ttir4ueLlHle -1-00 pri(eu at S2 .. W1 ) . . By that ti me the I 992 A(t was in rnrce. 1 n her appl icatinn for re, iC\\ the appel !ant said that she could be tempted lll be lien: the claim \vas held over intentinnaliy. hut she diJ rwt press the pnirit and there is no evidence suppllJ1ing it. The sta11ing point for consideration of the claim is s 26 of the Accident Rehahilitatilrn and Compensation Insurance Act 1992 26. Social rehabilitation - (I) In order to ensure - (a) Cons_istency of provision of social rehahilitatinn; and (h) Certainty of entitlement to social rehabilitation - no provision of, or payment in respect of, social rehabilitation shall be made hy the Corporation in respect of any person except as required or permitted by regulations made under this Act. .. . . (4) In this Act, "social rehabilitation" includes, hut is not limited to, - (t) Provision of, or payment for, wheelchairs and any other aids and appliances likely to assist independence in daily living .. The Corporation is therefore restricted hy section 26( 1) so that any provision of aids and appliances likely to assist independence in daily living is limited to those matters which are required or permitted by the regulations. Regulation 3. of the Aids and Appliances Regulations states: 3. Application - Subject to these regulations, these regulations shall apply - (a) To any application received on or after the 1st day of July 1992 from a claimant for payment for an aid or appliance; and (b) To any request for the purchase or hire of a wheelchair or other aid for daily living pursuant to section 37(3)(f) of the Accident Rehabilitation and Compensation Insurance Act 1982 where the Corporation has not approved the expenditure on or before the 30th day of June 1992. Regulation 3(h) applies in this case hecause s 37(3 )(t) of the 1982 Act deals with exactly the same suhject matter and it is the section which would have applied to the application hefore 1 July 1992. Turning to the regulations, the first schedule contains items which can he provided at the cost of the Corporation but the first schedule does not include heds - except for specialised mattresses designed for persons with disahilities. Those words may give rise to argument in some cases, but not in this case. Here the hec.J is not specialised hut is an ordinary commercial product. The second schedule caters for waterbeds but it is confined hy Regulation 7(3) to those cases where the Corporation is satisfied that the - 3 - payment i" a (ost-dkctin.: alt...:rnatin: to raying t11 th...: claimant future cost o!' atL<.:nJant rnr...:. h11m...: h...:lr. ur chilJ car...:. There has he...:n rl\1 ...:,·iJ...:11(...: to slw,, that th...: e(lllH>mic criteria in Reg 7(3) arpli...:-; in th...:·app...:llant·s ca,e. Her ncetl is because pf p;t"in and tlisrnmfort. It can only h...: assumetl that rnnsitlerations of pain antl discomfort \v"hich Lill ntit leatl to a neetl for attentlant care or home help are exclutletl from the regulations for policy reasnns. Reg 7(-l-) of the Aitls antl Appliances Regulations.states that nn payment shall he matle untler thnse regulatinns for aiJs or appliances of a kinJ spe(itieJ in the thirtl scheJule. The third schedule is linked tll annther set of regulations and is of no assistance tll the appellant. For those reasons I am rnmpelled to accept the submissions of the Corporation in their entirety and the appeal is dismissed. DATED at WELLINGTON this2+ct:y of Sef r-e-vvih-e/ 1994 -/2 · · ---y, DA Ongley District Court Judge