Neal v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 32 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CHARLES FREDERICK NEAL of Palmerston North Appellant (Appeal No. DCA 259/ 95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 18th day of September 1996 APPEARANCES Appellant in person T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to private hospital costs under the Accident Rehabilitation and Compensation Insurance (Supplementary Treatment Costs) Regulations (No. 2) 1993. The appellant suffered a hernia on 3 July 1995 when he was stretching to wipe the wet windows in his conservatory and fell. He thought he had pulled a muscle and it was not until he consulted his doctor on 17 July 1995 that it was found that he had suffered a left direct inguinal hernia. His doctor referred him to Mr Rajaratnam, an Adult and Paediatric Urological Surgeon. 2 On 18 July 1995 Mr Rajaratnam completed a request for approval of private hospital treatment in order to undertake the necessary surgical repair of the hernia. In the application Mr Rajaratnam stated that the appellant "cannot perform any heavy work - mowing lawns, etc". Mr Rajaratnam advised that the earliest date upon which treatment could be available in the public hospital was between 12 and 18 months. The appellant's general practitioner was asked to provide details of the reason why private hospital treatment was necessary and Dr Booth advised the respondent on 24 July 1995 "Mr Neal is the main caregiver for his emphysematous wife". The appellant explained to his case manager that he is required to give assistance to his wife for her personal needs, particularly as she gets short of breath and then needs help. The respondent notified the appellant on 28 July 1995 that he did not meet the criteria under the Regulations and his application for private hospital treatment costs was declined. The appellant applied for a review of that decision. At the review hearing the appellant explained that he was responsible for a great part of the domestic duties in the house, including dusting and taking care of rubbish, but that his wife shared other duties with him. He also said that he had to be available to assist his wife when she was taking a bath because she often became short of breath and needed assistance and occasionally needed to help her dressing. The appellant also said that he assisted with vacuuming, cleaning windows and did the gardening, but his wife did some housework, although she had to take her time and spread out the tasks which she could accomplish. The appellant also did the gardening around the house. The review officer concluded that the respondent was correct in holding that approval should not be given because the operation was not necessary for the due restoration of the appellant to his principal economic activity. The appellant has appealed against that decision. In the course of his submissions in which the appellant repeated the statements which he had previously made to the respondent and to the review officer, the appellant told me that after Dr Booth had referred him to Mr Rajaratnam, Mr Rajaratnam advised him that it was necessary for him to have an operation as soon as possible and in fact completed the application form for private hospital treatment costs on the occasion of the appellant's consultation with him. I therefore advised the appellant and Mr Cleary that I required a report from Mr Rajaratnam as to the reasons for his request. I have now received a copy of his report which is dated 16 October 1996 and states: "Mr Neal was referred to me by Dr Booth 18 July, 1995, with a history of pain and a swelling in his left groin. This came about at the time when he was cleaning his conservatary (sic) roof. He informed me that while he stretched himself across to reach a window pane he strained himself and noticed pain in his left groin. Soon after that he developed a lump. This hernia was painful to him and it interfered with his day to day duties. At that time I saw him I advised that he should not perform any heavy duties, lift anything, and to take it easy. As the hernia was tender and painful to him I advised that he should undergo urgent surgery. The other reason for the need to undergo urgent surgery is that a painful hernia can undergo strangulation compared to long standing hernias which are 3 usually asymptomatic. The pain he was experiencing was also rather distressing to him. If the surgery had been delayed for 2 years, the chance of the hernia strangulationg is great, and he would have required urgent major surgery. Such a complication may not occur if the patient lead a sedentary life and wore a truss to control his hernia until such time surgery was available. I advised Mr Neal at the initial consultation that he should have surgery performed to correct his hernia as soon as it was possible. This advice was given as he was in pain, the hernia was tender to touch, and the chance of strangulation was there." Mr Cleary submitted that there have been numerous previous appeals in relation to these particular Regulations which demonstrate that it is a question of fact in each case whether the appellant can bring himself within the requirements imposed by the definition of 'principal economic activity'. He submitted that in this case the appellant is a retired person whose responsibility in the home was mostly dusting and taking care of the rubbish and that he shared all other duties with his wife. He submitted that the appellant would not have qualified for home help had he been incapacitated by the injury, although he did help his wife on occasions to get in and out of the bath and to help her with her dressing. He submitted that the appellant does the gardening and helps with vacuuming and cleaning the windows. Mr Cleary submitted that the review officer found as a fact that the appellant's wife was not incapacitated by her emphysema to the extent that she needed the care of the applicant. Mr Cleary submitted that the Court has recognised that strict interpretation of the Regulations is appropriate and that the review officer's decision was correct The relevant Regulation is No. 11 which insofar as it affects this appeal states: "(2) Except as provided in subreg (3) of this regulation, the Corporation shall not give the approval referred to in subreg (1) of this regulation unless it is satisfied that it is necessary for the due restoration of the claimant to his or her principal economic activity or would enable the claimant to undertake remunerated employment that the treatment be provided." Principal economic activity is defined in the Regulations as: "Principal economic activity includes study activities and domestic household activities that are not directly remunerated; and in the case of domestic household activities shall be determined without regard to whether or not the person has a spouse or other household member who is able to perform those activities." While the review officer held that the appellant's wife did not require full-time care from the appellant it does seem to me that his presence in the household was necessary because of her problems with emphysema and that his assistance was a necessary adjunct to the running of the household duties. I consider that having regard to the fact that the appellant undertook a great number of duties around the house and garden albeit some shared with his wife it can be said that those duties fall within the definition of principal economic activity. However, having obtained Mr Rajaratnam's report it is obvious that immediate surgery was necessary because a delay in undertaking that surgery, having regard to the nature of this appellant's problem, could have resulted in strangulation which would have posed far more serious and long lasting problems for the appellant. Moreover, delay would have caused increasing difficulties in his being able to perform his principal economic activity. Accordingly, I consider that the review officer who did not have the benefit of Mr Rajaratnam's report came to the wrong conclusion and the appeal is allowed. DATED at WELLINGTON this ! " day of March 1997 queunadub A W Middleton District Court Judge dc259-95.doc(rd)