DC v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 121 / 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DC of Wanganui Appellant (Appeal No. DCA 165/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of September 1996 APPEARANCES Appellant in person L Mckenzie for respondent DECISION OF JUDGE A W MIDDLETON At the request of the appellant I make an order that no details of this decision which will lead to the identification of the appellant are to be published. There are two issues before the Court being: 1. The assessment of the appellant's entitlement to an Independence Allowance pursuant to s.54 of the Accident Rehabilitation and Compensation Insurance Act 1992; and 2. Whether the appellant is entitled to a grant under s.26 of the Act for the purchase and/ or modification of a motor vehicle. 2 The background to these appeals are that the appellant suffered an injury to his left forearm on 6 September 1992 which has left residual scarring. An Independence Allowance assessment was carried out as required by the legislation on 9 February 1996 which resulted in a disability score of 26.4 which translated into a 29% entitlement. Prior to the 1992 accident the appellant had suffered other serious injuries for which he had received lump sum awards under s.119 of the Accident Compensation Act 1972. As a result of the injuries sustained in 1992, coupled with his previous injuries, the " appellant applied on 12 February 1996 for assistance to purchase and/ or modify a motor vehicle. In accordance with the requirements of the legislation the respondent directed the appellant to undertake a driving assessment and the occupational therapist's opinion was: "On the basis of information available to me, I am able to advise you that DC would be able to independently drive an unmodified standard vehicle if he had access to one. His application is focused entirely on his desire to restore his family's social independence". In the case of both applications the appellant was advised that he had no entitlement in respect of either claim. The appellant has had an unfortunate background. He is now 36 years of age and has the sole custody of one son and apparently has three daughters who reside in Hawkes Bay with other members of his family. Unfortunately the appellant's wife was killed in a motor vehicle accident in 1994 which also involved the appellant's children. It is a requirement of the Family Court Order that he deliver the boy to Hawkes Bay to visit his siblings from time to time. The appellant has provided reports and commendations in respect of the manner in which he has cared for his son and for the manner in which he maintains his home. He is anxious to provide a home for his whole family and eventually anticipates a further application to the Family Court so that he can take over custody of all his children. His main concern is that he should be able to have the means of transport to and from Hawkes Bay and also for the purpose of taking his son to football practices and other activities because the boy is still having problems following the tragic accident in which he was involved when his mother was killed. In regard to the first issue on appeal, being the Independence Allowance assessment, the review officer upheld the decision of the respondent that pursuant to s.54(14) he was required to deduct from the percentage of disability assessed under the Independence Allowance assessments, the percentages of disability for which the appellant had received compensation under the 1972 Act. As his previous assessment arising out of numerous accidents amounted to 41%, the review officer held that there was no entitlement to further compensation under s.54. 3 In respect of the motor vehicle purchase, the review officer held that in view of the therapist's assessment that the appellant was able to independently drive an unmodified standard vehicle, the respondent was correct to decline his application for further assistance. As I have stated the appellant provided me with numerous testimonials regarding the manner in which he has cared for his children and various school reports showing that they are developing well. He is anxious to be able to continue to provide them with a happy home environment, particularly since they have lost their mother. His principal submission is the request for assistance to purchase a car to enable him to both care for the boy in his custody and be able to transport him to Hawkes Bay as required by the Family Court Order. The appellant claims that the form detailing entitlements to which an injured person may be eligible which was sent to him when he made his claim, indicates that he can obtain assistance for the purchase of a motor vehicle. He provided a copy of that form and referred me to it in relation to the entitlements under "social rehabilitation". I now quote from that form the particular reference to which he directed my attention which he said entitled him to obtain assistance for the purchase of a motor vehicle. I have numbered that particular clause as No. 1, but I have also added as No. 2 the clause directly beneath it, the contents of which the appellant appears to have overlooked. Those clauses read: "Social Rehabilitation 1 ACC has a responsibility to help restore your independence after you suffer an injury, so that you can lead as normal a life as possible. Assistance includes; Home help, child care, attendant care, aids and appliances, housing modifications, motor vehicle purchase and modification, and educational support. 2 You should contact your local Branch Office if you wish to apply for any of these entitlements. There are some costs that cannot be paid unless ACC gives prior approval, in writing. On the back of this form is a listing of all ACC offices who also have available pamphlets that go into more detail about the different entitlements." While the appellant considers that he only had to apply to become entitled because it was for the purpose of restoring his independence, is not correct. The form which was sent to him was merely to give him a guide as to what might possibly be available to him subject to his making application as per clause 2. When application is made the respondent is then obliged to consider the application having regard to the requirements of the Act and any regulations made thereunder. Ms Mckenzie submitted that the respondent and the review officer had both correctly applied the law in respect of each of the appellant's applications and that the review officer's decision should be upheld. 4 While I have sympathy for the appellant in the predicament he now finds himself and the fact that he has not been able to afford legal representation so as to properly appreciate the nature of the "entitlements form" In respect of the appeal in relation to the Independence Allowance I now quote s.54(14) which says: "14) Where any person who has received a payment under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982 is assessed for the purposes of establishing an entitlement to an independence allowance, the person's disability assessed under subsection (5) of this section shall be reduced by the percentage or percentages of permanent loss or impairment of bodily function upon which any payment or payments under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982 were based." For the benefit of the appellant I have underlined the portion of the section which directly affects his entitlement. As the assessment made following his application for an Independence Allowance establishes that he has suffered a 29% disability as a result of the 1992 accident, section 54(14) requires the respondent to deduct from that figure the total percentage amount of the awards previously made under either the 1972 or 1982 Accident Compensation Acts. As the appellant has previously received lump sum awards amounting in total to 41% he will see that he has already received more than the new assessment so that he is not now entitled to any further award for loss of permanent bodily function. In respect of the entitlement to assistance for the purchase and/ or modification of a motor vehicle, this issue is governed by Regulations 5 and 6 of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992 which state: "- - 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 - - in a vehicle without modifications to that 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 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. .." As the appellant is aware he had to undergo a driving assessment in order to qualify for any assistance. He will see from a reading of the regulations that before the respondent can give him any assistance it must be established that he is permanently unable to drive. The assessment made in respect of this appellant 5 showed that he is able to drive an unmodified vehicle and accordingly does not qualify for any assistance under the regulations. Accordingly both appeals are dismissed. DATED at WELLINGTON this |th day of October 1996 A W Middleton District Court Judge dc165-96.doc(rd)