Reddell v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 18 / 2000 IN THE DISTRICT COURT DCA No. 56/99 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN DAVID GEORGE REDDELL Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Heard at Auckland: 21 December 1999 Date of Judgment: 9 February 2000 Counsel: Appellant in person D Tui for respondent RESERVED JUDGMENT OF JUDGE G.V. HUBBLE Solicitors: Johnson Prichard Fee & Partners, PO Box 1115, Auckland, for respondent [I:JUDICIAL\Hubblej\Reddell.doc s] 2. The issue in this case is whether or not the Corporation correctly exercised its discretion to decline to make a payment by way of vocational rehabilitation for the retraining of the appellant as a helicopter pilot. Background: On 11 April 1998, Mr Reddell fell from his motor bike and suffered a compression fracture of the T12 vertebrae as well as cervical whiplash and left shoulder dystonia. The appellant's work history indicates that he has been employed primarily as a photo lithographer in the printing industry, and has had experience as a graphic artist and paste-up artist. He was unfit for work for many months, but in July 1998 he applied to the Corporation to be trained a commercial pilot. This action was declined under both s. 18 and s.22 with the Corporation advising inter alia as follows:- "David has many qualities which if fully focussed would enable him to achieve the goals he desires. It is a matter of channelling his actions to obtain a mutually desirable result such that can at a later date fulfill his ambitions. These could lead to a variety of career options. I suggest he explore options with the Air Force in the first instance. He is to consider options in extending his printing industry experience as a tutor or trainer. Provision of training to enable you to become a helicopter pilot would only be appropriate and cost effective if this was the only option available to return you to some employment. There are obviously a number of alternatives to be explored which involve consideration of your transferrable skills." On the above basis his application was declined. He applied for review of that decision in August 1998. It is interesting to note that as late as October 1998 Dr Emery reported:- "He is only able to put his shoes and socks on with great difficulty. ... He is currently unfit for employment. Rehabilitation cannot be commenced until further healing has taken place." 3. Throughout 1998, numerous reports were obtained by an employment advisory service, Cranston Hunt & Associates. They commented that Mr Reddell had an overwhelming desire to become a helicopter pilot, but also said that he had many other possibilities in the graphic/photo/lithography arena in which he was well qualified. It is recognised by all parties that before the occupation of helicopter pilot can even be considered, Mr Reddell would have to be able to establish that he was medically fit for that occupation, and what has ensued over the last twelve months are numerous attempts by Mr Reddell to obtain medical support for the view that he is fit to fly. The principal support that he has mustered is from his General Practitioner, Dr Beer, who considers that the flying option would be a "good alternative"; Dr Michael Rochford, an Osteopath, who considered that the pilot option would be an "excellent occupation for the appellant", and Mr Scott Booth, Chief Flying Instructor for Helisika Flight Training, who apparently has taken the appellant for a ride and considers he would, with training, be able to carry out the job. In August 1999, he was examined by Dr Daniels, an authorised medical assessor designated by NZ Civil Aviation. Dr Daniels at the time of his report in August 1999, was not prepared to pass Mr Reddell, principally it appears because he was still incurring considerable pain and was taking a daily dose of Voltaren of 75mg twice a day, in addition Codeine Phosphate as pain killers. He noted that when sitting Mr Reddell was unable to 4. reach forward, and accordingly had some doubts about his ability to use the controls of a helicopter, and when standing he was unable to bend down or to pick up objects from the floor with ease. He was not prepared to certify him. Under s.23 of the Act:- "The Corporation may make any provision of or payment for vocational rehabilitation if it considers it appropriate in the circumstances and the provisional payment is expected by the Corporation to be cost effective." On this basis the Review Authority was not prepared to overturn the decision, and this appeal was accordingly lodged. At the review hearing reference was made to the case of Barnes 158/98, a decision of Judge Beattie in which the claimant, who was a qualified fitter and welder, expressed the wish to train as a helicopter pilot and was ultimately granted this wish. However, the following needs to be noted:- 1. Mr Barnes was found medically fit to operate the helicopter. 2. The Court noted that the appellant had relevant background experience to assist with his training as a helicopter pilot. 3. The Court noted the appellant's desire was more than a fanciful wish. 4. That the evidence indicated that employment opportunities at that time for B were very good. 5. 5. The Corporation had previously provided payment for retaining for helicopter pilots on at least three other claimants demonstrating that they do consider it a cost effective option on some occasions. 6. The appellant had the proven academic ability having obtained top marks in earlier tertiary studies. The principal difference between Mr Reddell's case and the Barnes' case appears therefore to be that his medical fitness is in doubt. Messrs Cranston Hunt have carried out extensive investigations into employment opportunities for trained pilots. In their view the current situation is that the prospects are not particularly good, and given Mr Reddell's background and nature of his injuries, it is unlikely that passenger carrying services would be interested in employing him. This matter has already arrived at a hearing on two occasions. The last was on 9 November 1999, when it was further adjourned to enable Mr Reddell to carry out the following:- (a) To obtain costings for the training as a helicopter pilot; (b) Comparative costings with other courses; (c) A medical report supporting his fitness; (d) A report from his trainer. 6 . At the most recent hearing the trainer's evidence was again unavailable. Mr Reddell produced a report from a designated medical examiner for Civil Aviation Authority, Mr Andrew Tse, which read as follows:- "I confirm that I examined Mr Reddell on 1.11.99 for the purposes of applying for a commercial pilots licence. He was involved in a motorcycle accident 18 months ago in which he suffered a compression fracture to his T12 vertebra and loss of consciousness. On examination his T12 compression fracture did not limit his mobility for that required for piloting an aircraft. He still has some residual pain that he tells me has improved markedly such that he no longer requires strong analgesics. Provided that the progressive improvement of this pain along with strengthening of his paravertebral muscles occurs then his long-term career in aviation should be unhindered by this problem. Issuance of his pilot medical certificate is pending a report from a neurologist and final assessment by the Civil Aviation Authority." Mr Reddell himself impresses as a person who is totally dedicated to the cause of becoming a helicopter pilot. He says that he has been exercising extensively and has got himself off pain killers. Mr Reddell has also produced a report from a neurologist, Elizabeth Walker, which notes that there are no neurological symptoms of note. It appears therefore from the medical evidence produced by Mr Reddell that he is at a point when a final assessment can be made by the Civil Aviation Authority as to whether he is medically fit to fly. The point however, which is made by Mr Tui is that on this appeal we are considering the circumstances confronting the Corporation in its decision in July 1998 and not November 1999. I accept that my jurisdiction at this stage is to consider a review of the decision made in July 1998, and not the circumstances 7. which pertain at the present stage which, if reconsidered by the Corporation, may well produce a different result. That this is the appropriate approach was made clear in the case of Paris 63/98. In Barnes' case the appellant was able to go to the Authority with clear evidence that he was certified fit to fly by an authorised Civil Aviation examiner. Mr Reddell is not yet in that situation. I recognise that it must be frustrating for Mr Reddell who is so dedicated to this cause, and has spent many months getting himself fit and attempting to obtain medical support for his case. It is not however, the function of this Court to usurp the decision making process of the Corporation. In my judgment their decision in 1998 to decline Mr Reddell's application was right at the time. Accordingly, this appeal must fail. What Mr Reddell must now do is assemble all of his medical evidence, his evidence of costing and his evidence of job availability, and of course, he should again present himself to a designated aviation medical examiner for certification before reapplying to the Corporation for reconsideration of his case. Provided he is certified as fit by an appropriate examiner, the Corporation would have to have clear reasons for declining his application, given the prior history of assistance to others in this area. (G.V. Hubble) District Court Judge