Rouse v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 272 198 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 CHARLES LEO ROUSE DCA 187/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 30th day of November 1998 APPEARANCES: Mr A J Prenderville, advocate for appellant Mr JD Palmer, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to contribute the sum of $7,000 towards the purchase of a suitable motor vehicle pursuant to Regulation 6 of the ARCI (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992 was a proper exercise of its discretion. 2 A subsidiary issue is whether the appellant is entitled to the benefit of an order under section 90(9) of the Act in relation to an application for review filed by him in respect of a decision letter dated 30 October 1997 in which an application for review was not actioned. within the stated three month period. Background The appellant suffered an injury to his back in 1983. At the time of that injury x-rays disclosed that he had well established degenerative changes in his lumbar spine. In addition he also had a problem with his left hip and as a consequence of this his left leg was shorter than the right. He had a history of pain in his right leg as well. Nevertheless the Corporation accepted his claim and the incapacity that that injury caused. In 1984 he underwent surgical decompression at L4 and L5 level and in 1995 he underwent further spinal surgery. In 1996 the appellant applied for assistance to purchase a motor vehicle that he would be able to drive. Initially the Corporation's assessment indicated that he was not eligible but after the matter went to review a decision was made that he was a person who was permanently unable to drive an unmodified car. Having established a prima facie entitlement the appellant was assessed to determine the type of modification that would be required in order that he be able to drive safely. The recommendation was that he required a two-door four-wheel drive automatic with power steering. In August 1997 a further assessment was carried out by Barbara Brook, Occupational Therapist, and Ms Brook provided a report dated 18 August 1987. For the purposes of this assessment the appellant used his Obus Forme seat which he had had for some six years and which had been supplied by the Corporation to assist in his seating in various motor vehicles. In respect of the seating in the vehicles which were tested Ms Brook stated: 3 In both vehicles Mr Rouse was able to sit in a much more upright position and he used the Obus seat which alleviated some of his back pain and helped to place his fixed left hip in a comfortable position. These vehicles also have a long wheel base and superior suspension which reduce the pain level from vibration that Mr Rouse normally experiences. Some seat modification to provide lateral and lumbar support would be essential then Mr Rouse would not have to use his Obus seat. A swivel-out seat is not essential and Mr Rouse was able to access both driver and passenger seats. The assessment concluded that an essential modification was seating alteration to provide additional lumbar and trunk support. In view of the fact that Ms Brook had noted that he was able to use his Obus Forme seat for the purposes of the assessment the Corporation sought further opinion from her on the essentiality of modified seating. In a further report which is also dated 18 August Ms Brook noted the fact that the appellant had used his Obus seat in all three vehicles that he was assessed in and that the Obus seat alleviated some of his back pain and helped place his fixed left hip in a comfortable position. She concluded by stating: Desirable modification would be alteration to seating to provide additional lumbar and trunk support (instead of the Obus seat) and hand grips above the door. On 30 October 1997 the respondent wrote a letter to the appellant advising him that his request for assistance for the purchase of a motor vehicle had been declined. The reason for the declination given as being that firstly the occupational therapist's report had advised that he was able to drive a motor vehicle without modification and secondly the motorised home the appellant owned did not come within the definition of "vehicle" and therefore as the appellant did not own a motor vehicle prior to his incapacity he did not qualify under the regulations for assistance. That letter went on to advise that if the appellant was not satisfied with that decision he had a right of review and review rights were notified in the letter. 4 It subsequently transpired that the letter of declination not intended to be sent to the appellant until the whole question of his request for assistance had been considered by Head Office. That letter was intended to be a draft of a declinat should it be the decision to decline. Whatever, that was certainly not known to the appellant who received the letter in the usual way and filed an application for review. That application clearly states that the decision sought to be reviewed is that of the letter of 30 October 1997. It is a fact that the appellant's request for assistance was considered by the respondent's Head Office and a notation was placed on the copy of the letter of 30 October that was sent to Head Office as follows: Approved contribution of $7,000 towards purchase of vehicle as recommended in assessor's report of 18 August 1987. No essential modifications required. That decision was confirmed by the Manager of Support Services and by letter dated 8 December 1997 the respondent wrote to the appellant and advised him the Corporation had agreed to contribute $7,000 towards the cost of the purchase of a motor vehicle. It advised that it would not contribute the cost of any modifications as the necessary features were commonly available in vehicles appropriate for his needs. The appellant filed a notice of review of that decision, stating that the amount was insufficient and that he required a sum of $3,000 towards modifications. In his decision the Review Officer acknowledged that the appellant's application for review of the letter of 30 October had not been heard within the time limit prescribed by section 90(9). However he found that the decision that was the subject of that review had essentially been overtaken by the subsequent decision of 8 December 1997. Insofar as the substantive question was concerned, the Review Officer found that modifications to a suitable vehicle were not required, that the Orbus seat was satisfactory and had been used by him successfully for the past six years in various 5 motor vehicles. He finally noted that the Corporation had a complete discretion as to the quantum of any entitlement and that the amount proposed was fair and reasonable in the circumstances. The Corporation's decision was accordingly confirmed. The various statutory provisions relevant to this appeal are as follows. Section 26 of the ARCI Act provides, inter alia: 26. Objective of social rehabilitation - (1) The objective of social rehabilitation is to restore the independence of a person to the extent that the person's independence has been lost by personal injury covered by this Act. (2) In this Act 'social rehabilitation' includes, without limitation ... purchase of, and modifications to, motor vehicles and other means of transport... ." Section 90(9) provides: (9) Where the hearing of a review has not been commenced within three months after the lodging of the application for review, and the delay is not caused or contributed to by the applicant, the application shall be deemed to have been determined in favour of the applicant. Section 67A of the ARCI Act provides: 67A Revision of decisions - (1) The Corporation may revise any decisionmade by the Corporation if it appears to the Corporation that the decision has been made in error, whether by reason of mistake or by reason of false or misleading information having been supplied or by reason of fresh evidence or for any other reason; and the Corporation may - (a) Amend the decision; or (b) Revoke the decision and substitute a new decision. (2) Every amendment to a decision or substituted decision shall constitute a fresh decision of the Corporation for the purposs of this Act. Regulation 6 of the ARCI (Social Rehabilittion - Purchase and Modification of Vehicles) Regulations 1992 provides: 6. Approval of purchase of and modification to a vehicle - (1) On receipt of an assessment undertaken pursuant to regulation 4 of these regulations, the Corporation or exempt employer shall give approval in principle for the purchase of and modification to a vehicle as recommended in the assessment, to the extent that the Corporation or exempt employer 6 considers the purchase of and modification to a vehicle is necessary and cost- effective in order for the claimant to achieve independence in daily living (2) Following approval in principle under subclause (1) of this regulation, the Corporation or exempt employer shall arrange, at the expense of the Corporation or exempt employer, for any drawings, plans, or specifications necessary to obtain quotations. (3) For the purposes of obtaining final approval of the Corporation or exempt employer in respect of modifications to a vehicle, the claimant shall, at the expense of the claimant, obtain - (a) In the case of modifications expected to cost not more than $2,000, at least one binding written quotation in respect of the proposed modifications; (b) In the case of modifications expected to cost in excess of $2,000, at least two binding written quotations in respect of the proposed modifications. In his submissions to this Court Mr Prenderville submitted that the Corporation never sought to advise the appellant that the letter of 30 October 1997 had been sent in error, even after the application for review had been filed. He submitted that the appellant was entitled to the benefit of provisions of section 90(9). Insofar as the Corporation's decision of 8December is concerned, he submitted the decision made was done so without any reference to the cost of any vehicle the appellant may be required to purchase. In fact he went further and suggested it was a sum which was approximately half of the cost of a motor vehicle that had initially been mooted but which had been subsequently considered as not being suitable. He submitted that without some knowledge of the cost of suitable motor vehicles the Corporation could not be said to have looked at the matter from the correct standpoint. In that regard he produced quotes for two suitable vehicles of $56,000 and $22,000 respectively. He further submitted there was an over emphasis on the appellant's pre-existing disabilities unrelated to the accident as being causal of his restriction in driving. To counter that the appellant had given evidence that he was a capable and safe driver before his accident and he indulged in competitive go-kart racing. Mr Palmer for the respondent submitted that there was nothing sinister in the fact of the Corporation seeking clarification of Ms Brook's first letter and the essentiality of 7 modified seating. He submitted that it was quite open to the Corporation to seek such clarification and the subsequent advice of Ms Brook was in line with the facts of the matter, namely that he had been able to use his Obus seat quite satisfactorily in the past. Counsel further submitted that the Regulations gave the Corporation a discretion, the upper limit was $12,000 and the only criteria was that the assistance had to be necessary and cost effective. He submitted that it was quite proper for the Corporation to have regard to other causes of the appellant's immobility, these being set out in the Brook reports. He submitted that, in line with the decision in Meehan (decision 193/97), the Court was quite entitled to take into account that the appellant did own two motor vehicles. Counsel submitted that the decision purportedly contained in the letter of 30 October was not such a decision as it had not been intended that it be sent to the appellant but was only to form part of the draft of the submissions by the branch office to Head Office regarding the appellant's application. In any event he submitted that the decision supposedly given in that letter was revoked by the subsequent decision of 8 December. Decision Dealing first with the issue of whether section 90(9) applies to the letter of 30 October 1997, I find that whilst it may have seemed to the appellant to be a "decision" letter, it was not so intended by the Corporation and I find that it was sent in error and was not intended to be sent to the appellant before the whole question had been further considered by Head Office. Although on the face of it it may have seemed to be a decision letter I find that there was no intention by the Corporation that it be so and therefore it cannot be said to be so. In the event that that finding should be proved wrong in law, I note that the decision purportedly made was impliedly revoked by the subsequent decision of 8 December 1997 and therefore the adverse effect of that earlier decision was effectively nullified. Furthermore, it is to be noted that if section 90(9) were to be invoked it would simply put the appellant in the same position he was in at the time his application was being further considered by Head Office. A favourable decision to provide assistance towards purchase would not include the amount of any such financial assistance, that would be given by a "further decision" and therefore the appellant would be no further ahead than he was by the Corporation's decision of 8 December 1997. Accordingly I find that the provisions of section 90(9) cannot and do not apply on the particular facts of this case. Dealing now with the decision of 8 December 1997, I find that there is no evidence that the Corporation has exercised its discretion on any wrong principle. I find it was quite entitled to seek further clarification from Ms Brook about the suitability of the Obus seat as an alternative to modifying the actual seating of the vehicle. Such an enquiry would be right and proper having regard to the requirements in the Regulation as to necessity and cost-effectiveness. Insofar as the sum of $7,000 is concerned, I find that there is no evidence to suggest that it was fixed by having regard to some purchase price of a vehicle that was not relevant to the application. Rather it was fixed by having regard to the statutory maximum of $12,000 and to the fact that the appellant was suffering from certain disabilities which were not connected with the personal injury by accident for which he had cover. Furthermore, the sum took account of the fact that the appellant did own two motor vehicles which were available to be applied towards any purchase price. I find there is no evidence to suggest that the figure of $7,000 was determined by any wrong principle. 9 It has been stated on many occasions by the High Court and Court of Appeal that an appellate court ought not to interfere with the exercise of a discretion given to the Tribunal appealed from unless it is shown that that discretion has been exercised on a wrong principle, or not at all, or that there has been a miscarriage of justice. See Fletchers v Commerce Commission 6 NZAR 37. I find that this principle is applicable in this present case. No factors have been put forward by the appellant which would show that the Corporation's exercise of its discretion was so affected. Also I find that the decision of the Corporation was fair and reasonable having regard to the constraints of necessity and cost-effectiveness. For the foregoing reasons this appeal is dismissed. DATED at WELLINGTON this 16+ day of December 1998 Jes the M J Beattie District Court Judge Rouse.doc