Van Essen v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 171 /2009 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN BRUCE VAN ESSEN (Al 158/08) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at DUNEDIN on 19 August 2009 APPEARANCES Mr W Forster, Advocate for Appellant. Mr I Hunt, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 7 August 2007, whereby it declined to pay transport expenses being incurred by the appellant when driving to and from his home and Abbotsford School where he undertook volunteer work. [2] The reason given by the respondent for its decision was that the particular travelling expenses did not come within any of the categories of statutory criteria for the granting of same. [3] It is submitted for the appellant that the particular transport expense claimed is for an ancillary service related to rehabilitation and as such comes within Clause 11 of Schedule 1 to the Act. 2 [4] The background facts relevant to this issue are not in dispute and may be stated as follows: . The appellant is described as a long-term ACC claimant and at all material times has been in receipt of weekly compensation. . One of the vocational rehabilitation initiatives supported by the respondent was the up-skilling of the appellant in computer technology. . Following the completion of that course the respondent arranged for a work trial for the appellant as a Teacher's Aide at Abbotsford Primary School . One of the functions which the appellant performed at this trial was looking after the school's computer systems. . It seems to be accepted by both parties that the appellant's injuries prevented him from carrying out all the duties required of a Teacher's Aide, and this fact was confirmed by an assessment carried out by Dr Ching, when it was identified that the appellant was unable to sustain that occupation for 35 or more hours per week. . Following the cessation of that work trial the appellant continued to work at Abbotsford School on a voluntary basis, confining himself to matters pertaining to its computer system. . It seems that this arrangement has proved mutually satisfactory and the appellant has continued in his voluntary work with that school and which the Court understands still continues. [5] The appellant was travelling each day from his home to Abbotsford School in his own car, and in 2007 he lodged a claim with the respondent for reimbursement of his travel at the rate of 62 cents per kilometre. It was that application which the respondent declined in its decision now the subject of this appeal. [6] It is accepted by the appellant that his voluntary work at Abbotsford School is simply that, and is not a continuing work trial or a state of affairs preparatory to obtaining any full-time employment at the school. [7] The respondent's decision was reviewed at a Review Hearing on 4 March 2008, and the Reviewer, Mr W L Shirley, issued a decision on 28 March 2008 determining that the volunteer work carried out by the appellant was not rehabilitation within the meaning of the Act and therefore the transport costs as claimed could not be met 3 [8] Mr Forster, Advocate for the Appellant, submitted that the appellant's volunteer work was in the nature of rehabilitation and he identified the following matters in support of that claim. (i) Participation in the community to the maximum practicable extent reducing the overall cost of the appellant's injury upon society (ii) Provision of important social interaction rather than isolation. (ii) Promotion of mental health and reduction of the effects of mental injury. (iv) Maintenance and continuation of development of skills in information technology. [9] Mr Forster then submitted that the appellant's claim was supported under Clause 11 of Schedule 1 and that this clause applied in cases where the criteria of the relevant regulations, namely the Injury Prevention, Rehabilitation and Compensation (Ancillary Services) Regulations 2002, did not cover the matter. Counsel's submission was that in cases involving transport for rehabilitation that do not fit within Regulation 5, those regulations do not apply and the status quo ante regulations apply, namely the Schedule, and in particular Clause 11 of the Schedule. [10] Mr Hunt, Counsel for the Respondent, submitted that the starting point must be the nature of the appellant's activities and from the accepted facts of those activities it cannot be considered rehabilitation nor is it seeking to achieve a purpose stipulated in Section 80 of the Act. [11] Counsel further submitted that the Ancillary Services Regulations could not apply as the same are all related to treatment and no acts in respect of treatment arise in the present case. [12] Finally counsel submitted that in terms of Section 87 the volunteer work cannot be said to be likely to achieve the relevant purpose in terms of rehabilitation, and is unlikely to be cost-effective in terms of Section 87(1)(b). DECISION [13] It is a core principle of Accident Compensation legislation that the Corporation is only empowered to make payment to claimants of entitlements for which there is statutory authority to so make. Under the current legislation, namely the 2001 Act, and various regulations made thereunder, numerous entitlements are provided for and almost all such entitlements are required to come within specified statutory criteria. There is little room for discretionary decisions. [14] In the present case, the appellant was seeking reimbursement for transport costs incurred by way of petrol when travelling between his home and Abbotsford Primary School and return. [15] The Court was not informed what the distance involved was but it does note from the evidence given at Review that the appellant had at some time been receiving reimbursement from the school at the rate of 59 cents per k, and which translated into $50.00 per week. [16] One of the statutory entitlements to which a claimant is entitled, is that of Vocational Rehabilitation and the respondent has an obligation to provide same. Section 80 of the Act states as follows: 80 Purpose of vocational rehabilitation (1) The purpose of vocational rehabilitation is to help a claimant to, as appropriate, - (a) Maintain employment; or (b) Obtain employment; or (c) Regain or acquire vocational independence. (2) Without limiting subsection (1), the provision of vocational rehabilitation includes the provision of activities for the purpose of maintaining or obtaining employment that is - e for the claim (b) appropriate for the claimant's levels of training and experience. [17] Sections 86 and 87 are further provisions relating to matters to be considered when deciding whether to provide vocational rehabilitation and in the present case Section 87 is relevant, the particular parts of that section applicable in the present case being as follows: 5 37 Further matters to be considered in deciding whether to provide vocational rehabilitation In deciding whether to provide vocational rehabilitation, the Corporation must have regard to - (c) whether to vocational rehabilitation is likely to achieve its purpose under the . . . . claimant's individual rehabilitation plan; and (d) whether the vocational rehabilitation is likely to be cost-effective, having regard to the likelihood that costs of entitlements under this Act will be reduced as a result of the provision of vocational rehabilitation; and (e) whether the vocational rehabilitation is appropriate in the circumstances. . . ". [18] The Ancillary Services Regulations make specific provision for the cost of ancillary services related to treatment, with Clause 3(b) being the particular clause. That clause cannot apply in the present case, as the cost of transport must be related to transport for treatment. [19] Similarly, Clause 5 of the Regulations cannot apply in the present case as the appellant could not come within any specified ancillary service referred to in Regulations 6 to 17, and Mr Forster accepts that Regulation 5 cannot apply. However, it is on the basis that the regulation does not apply that he contends Clause 11 of Schedule 1 of the Act does apply, that clause stating as follows: Ancillary services related to rehabilitation 11 When Corporation is liable to pay or contribute to cost of ancillary services related to rehabilitation (3) The Corporation is liable to pay or contribute to the cost of any service reasonably required by the claimant as an ancillary service related to rehabilitation, such as accommodation, escort for transport, and transport, if the service facilitates rehabilitation . . . (20] Finally, the statutory definition of rehabilitation as contained in Section 6 of the Act, states: (a) Means a process of active change and support with the goal of restoring, to the extent provided under Section 70, a claimant's health, independence and participation; and (b) Comprises treatment, social rehabilitation and vocational rehabilitation. [21] As earlier noted, Mr Forster submitted that the beneficial effects of the appellant's voluntary work, as listed in para [8] above, are related to rehabilitation and which allow for cost of transport involved in that rehabilitation to be met by the respondent. 6 [22] As noted from the statutory and regulatory provisions, the transport cost which is claimed must be a cost incurred as a part of an accepted and identified rehabilitation initiative being undertaken. [23] On the facts, it cannot be found that the appellant's transport is transport in relation to vocational rehabilitation. It is accepted that his work is voluntary work and it is not done as a pre-cursor to obtaining employment or acquiring vocational independence, being the statutory requirements set out in Section 80 of the Act. [24] Furthermore, the provisions of Section 87 would provide an effective barrier to any formal request that the appellant's present arrangement be considered vocational rehabilitation. [25] The key to the issue in this appeal is whether or not the transport cost claimed relates to transport necessary for rehabilitation and the answer to that is that it does not [26] The evidence is that the appellant's work at Abbotsford School was initially a work trial and it was subsequently medically identified that the appellant was physically unable to carry out the work duties of a Teacher's Aide, and that it was only the one aspect, namely looking after the school's computer, that the appellant was able to do. This was certainly not a task which would permit of formal employment and hence the appellant has elected for his own reasons to continue it on a voluntary basis. [27] Contrary to Mr Forster's submission, I find that Clause 11 of Schedule 1 cannot assist in this appellant's claim, but it is the case that Clause 11 is subject to any Regulations made under the Act, and as I have already found, the Ancillary Services Regulations, which are the applicable regulations, cannot provide an entitlement in the circumstances. [28] For the reason that the cost claimed cannot be considered a cost associated with rehabilitation, it cannot therefore be a cost for which the respondent is liable to meet, either under the provisions of the Act or Regulations made under it. 7 [29] For the foregoing reasons, therefore, the respondent's decision to decline the appellant's application for reimbursement of transport costs was correct and this appeal is dismissed. DATED this 8 day of October 2009 M J Beattie District Court Judge