Bracanov v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 228 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN BUDIMIR BRACANOV DCA 303/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 28th day of October 1997 APPEARANCES: Mr D Jacobson for appellant Ms L Rice for respondent DECISION OF JUDGE MJ BEATTIE The issue in this appeal is whether the Corporation's decision to decline to provide payment for the purchase and modification of a motor vehicle with hand controls was correct. 2 Background Facts The appellant injured his back while lifting on 29 June 1987. Since that date he has been unable to work. On 11 July 1995 the appellant applied to the Corporation for the purchase, inter alia, of a motor vehicle modified with hand controls. The Corporation referred this matter to Lois Hembrow Occupational Therapist. Ms Hembrow reported back to the Corporation on 4 October 1995. She recommended that an opinion be obtained from an Orthopaedic Surgeon in order to address some of the issues raised in her assessment in relation to the claim for the modified motor vehicle. The appellant was referred to Mr R G Keddell, Orthopaedic Surgeon, and his report stated inter alia: "Mr Bracanov presents with a painful stiff lumbar spine. This has been considered in the past to be due to a generate thoraco lumbar spine of long standing duration which was aggravated specifically by an accident in 1987. He did, at that stage, have radiological features of a degenerate lumbar spine. However the dramatic x-ray appearance of Mr Bracanov's thoraco lumbar spine is due to the condition of the diffuse idiopathic skeletal hyperostosis which is idiopathic in origin and not related to injury. It does cause loss of movement of the spine but is otherwise asymptomatic. It is my opinion therefore that some of the features of his presentation are due to an underlying condition although as noted above this condition is not considered to be painful and therefore we can assume that the low back pain Mr Bracanov presents with may be related to his injury but the stiffness and the x-ray features are not. With regard to his specific requests, I would agree that an automatic garage door opener would be of assistance to Mr Bracanov and his condition does justify that. I am not convinced however of the requirement for modification of his motor vehicle. Mr Bracanov has requested hand controls but it would be my opinion that his physical state does not justify that extent of vehicle conversion at the Corporation's expense." By letter dated 6 June 1996 the Corporation declined the appellant's request for the purchase of and modification to a motor vehicle, such decision being made in reliance on the medical evidence of Mr Keddell. At the time this request was made the appellant was the owner and driver of a Toyota Hiace. This vehicle had manual transmission and no power steering. Following the Corporation's decision letter the appellant consulted an occupational therapist, Mary Hodson, who carried out a driving and vehicle assessment. In the introduction to the assessment she made she states: "Buddi attended for an assessment of his driving ability because he is concerned about his ability to drive safely and within the confines of the Road Transport Act 1962. Buddi believes that his driving skill is impaired as a result of his back injury sustained in 1987. The evidence he cites is a spate of small accidents in which he was unable to apply sufficient force to the brakes. Buddi also recognised that he is having significant difficulty turning to check over the left and right sides of the vehicle and to pull the car around tight bends and corners." The report indicated that the appellant's needs were: 4 Automatic transmission. power steering, power brakes, power windows on driver's side. ii) Hand controls and steering spinner tii) Purpose built driver's seat with additional lumbar support and lateral blocks. Door closing hook. The stated justification of need for the above were: unable to turn to check over left and right sides of car it) difficulty turning to check side mirrors iti) unable to exert sufficient force on brake pedal unable to sustain foot on accelerator without causing sudden and severe pain and increasing level of constant back pain maintaining both hands on the steering wheel at the required 10 to 2 position without increasing level of constant pain vi) insufficient muscle strength in range of movement in right shoulder to pull the car around tight bends and corners viz) difficulty opening and closing the driver's side window vili) unable to lean over to shut the passenger door Computerised assessment of speed of reaction time revealed that Buddi's response times for I/foot co-ordination are impaired and below the acceptable drive limit for driving." It was Ms Hodson's conclusion that the appellant was unable to exert sufficient control over a vehicle within the requirements of the Land Transport Act and should take steps to rectify this situation. 5 This report was submitted to the Corporation for consideration but the Corporation refused to alter its earlier decision as contained in its letter of 6 June 1996. At the review hearing the evidence above referred to was presented and the Review Officer's decision was to the effect that the functional difficulties which the appellant had insofar as driving a motor vehicle was concerned were not the result of the accident injury and the fact that he suffered pain in carrying out some functions did not significantly interfere with his driving ability. The Review Officer's decision was that the appellant's need for a modified vehicle was not as a consequence of accident related injury. Counsel for the appellant submitted that the Review Officer was incorrect in holding that pain, in the absence of loss of muscular function does not meet the criteria of Regulation 5 of the Purchase and Modification of Vehicles regulations. It was his submission that the definition of "long term disability" only requires a lack of ability to perform an activity that the claimant was able to do before the personal injury, where that lack of ability results from personal injury covered by the Act and is persistent injury. Counsel for the appellant further submitted that the Review Officer had misunderstood the opinion of Mr Keddell. It is his submission that the medical evidence was that the non-accident related condition of the appellant was not considered painful and that the stiffness and x-ray features are non-accident related. However, Mr Keddell found that the lower back pain that Mr Bracanov presents with was related to his injury. Counsel contends that in forming his opinion Mr Keddell placed too much emphasis on the effects of the lumbar spine disease rather than the pain which Mr Bracanov claimed was the reason he could not drive safely. 6 Counsel submits that the proper inference to be drawn from Mr Keddell's evidence, in the light of the evidence of Ms Hodson, is that it is accident related pain which is responsible for his inability to drive safely. He therefore submits that the appellant's inability to drive safely is a long term disability within the meaning of Regulation 5. Counsel for the respondent submits that in order for the appellant to succeed, he must establish on the balance of probabilities, that he is permanently unable to drive an unmodified vehicle due to a long term disability caused by personal injury covered by the Act. Counsel submits that if one has regard to the definition of personal injury which in this context means a "physical injury" he submits that the driving functions which are impaired are not due to personal injury which is covered by the Act. Rather his impairment is due to the degenerative condition of his back rather than pain. Relevant Statutory Provisions This appeal concerns Regulation 5 of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992. This reads as follows: 5 . Entitlement to assistance - To be entitled to payment for the purchase of and modification to a vehicle a claimant must, by reason of a long term disability, be - a ) Permanently unable to drive; or b ) Unable to travel as a passenger; 7 in a vehicle without modifications to that vehicle. "Long term disability" is defined as meaning "any restriction or lack of ability to perform an activity to the extent that the claimant was able to do so before the personal injury or, in the case of a claimant under the age of 16 years, within the range considered normal for a person of that age where that restriction or lack of ability - a) Results from personal injury covered by the Act and b ) Is expected persist or does persist for a period of more than three months after the date of the first discharge from inpatient services following initial treatment for the personal injury." For the purposes of this appeal the appellant provided a further assessment from Ms Hodson following a further test of him on 26 May 1997. This test took place in a dual control vehicle with manual transmission and power steering. It was Ms Hodson's opinion that the appellant did not drive well enough to score a pass in either tests. Her report lists the appellant having difficulty with the following functions: "1. Pulling the car around bends and corners because he has limited right shoulder movements. He requires power steering because it will reduce the range of movement/degree of strength required. 2. Operating foot controls because he is slow and jerky, moving foot from accelerator to brakes. He requires hand controls on left because they will eliminate the need to use foot pedals. 8 3. Turning his trunk to get in and out of the car because he has limited spinal movements. He requires a swing out car seat base mechanism because it will eliminate the need to turn the trunk. 4. Turning to check over the right and or left side of the vehicle because he has limited movements in spine. He requires a 1800 rear view vision mirror and two blind spot mirrors because they will ensure that the client has an adequate view of either side of the vehicle. 5. Sitting to drive for sustained periods because of pain and limitation of spinal movements. He requires a purpose built driver's seat with additional lumbar and lateral support because it will provide better support for the trunk and facilitate sustained sitting. 6. Reaching leaning over to lock and unlock the passenger's doors because he has limited spine movements, he requires central locking because it will eliminate the need to reach/lean over. 7. Winding the window up and down because he will be using his hands to operate hand controls. He requires a power window on the driver's side to ensure that the vehicle is adequately controlled at all times. 8. Control levers on the right because he will be using his left hand to operate the hand controls. He requires all levers on the right. The appellant's entitlement to assistance under the Act is dependent upon him establishing that by reason of long term disability he is permanently unable to drive without modifications to that motor vehicle. The expression "long term disability" must be a consequence of the physical injury sustained in the accident and the fact that the appellant may indeed be permanently unable to drive a motor vehicle would not bring him within the entitlement 9 of Regulation 5 unless that permanent inability was a consequence of the physical injuries sustained by him in the accident. The report of Mr Keddell establishes that the degenerate aspects of the lumbar spine, namely skeletal hyperostosis, are the reason for his lack of movement in the spine. The low back pain of which he complains and which is present as a result of the accident affecting the pre-existing degenerate thoraco lumbar spine is present when he carries out certain actions to do with driving, principally when he flexes his thigh to put his foot on the brake. It is not suggested that he is physically incapable of putting his foot on the brake, rather it is a manoeuvre which causes pain. In the reports of Ms Hodson, the various driving manoeuvres which he cannot do to a sufficient standard and which would bring him within the meaning of being permanently unable to drive without modifications are, on analysis, all related to the degenerate and pre-existing condition of his lumbar spine and which have caused him sufficient loss of movement so as to be unable to carry out the manoeuvres there stated. At most the evidence establishes that when he puts his foot on the accelerator or brake he sustains an increase in the level of back pain. Accordingly, I find that the only accident related factor which could be advanced by the appellant towards his driving ability, or lack of it, is that in conducting some manoeuvres he experiences an increase in the level of his constant back pain. Similarly, I find that it is the non-accident aspect of his back which physically prevent him from carrying out manoeuvres which are essential for safe driving. In a nut shell the condition of his back prevents him from being able to drive but, if it were not for that, back pain alone would not be a disabling factor. 10 In the decision of Rogers v ARCIC (108/96) His Honour Judge Middleton was called upon to consider the very question of whether the pain alone met the criteria required of Regulation 5. In that case the claimant suffered pain whilst driving, there were certain movements in her driving which were restricted but, nevertheless, she measured up to the required standard of being able to carry out the driving activity with safety, measured by the standard care of a reasonable and skilful driver. His Honour had adopted that test from the decision of His Honour Judge Ongley in Meehan v ARCIC (89/95). His Honour went on to note that: "In many cases such a vehicle (automatic) can be of assistance to people with injuries but the requirement of the regulation is that the appellant is permanently unable to drive". I find as a fact that this appellant is permanently unable to drive and that he does not meet the test that I adopt from the decision of Meehan. However that inability to drive does not arise from the appellant's "long term disability" as that term is defined under the Act. I find that to be pain only. Therefore applying the decision in Rogers, pain alone in these circumstances does not meet the test required by Regulation 5. Accordingly, this appeal is dismissed. DATED at WELLINGTON on this /1 day of November 1997. Death M J Beattie District Court Judge Bracanov.doc(gm)