Baumber v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. S/ /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DEREK BAUMBER of Auckland Appellant (Appeal No. DCA 268/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on the 17th day of February 1999 APPEARANCE/COUNSEL Appellant in person D Tui for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to assistance from the respondent by way of home help and attendant care. The appellant lodged a claim with the respondent in January 1994 in respect of injuries to his hip, right shoulder and back suffered in a cycling accident in Switzerland in October 1992. The claim was subsequently accepted and cover granted to the appellant. On 8 October 1997 the appellant had a meeting with Dr R Percival, a branch Medical Advisor to discuss his various problems. At that meeting the appellant requested that the respondent provide him with home help and attendant care. In a memorandum, Dr Percival recorded that "the attendant care 2 was to help with massage, and straighten his legs. The home help as for home assistance. I . explained to Mr Baumber that he was unlikely to qualify for these and undertook to get for him that Home Help and Attendant Care Regulations for Friday 3 October." The memorandum indicates that the appellant was unable to meet Dr Percival as had been arranged as a result of which Dr Percival sent copies of the Home Help and Attendant Care Regulations to the appellant by post. As is required by the Regulations, it was arranged that the appellant was to be assessed for home help by Ms S Nicholson, a qualified Assessor for attendant care by Ms T Reynolds, an Assessor in that field. Both Assessors attended at the appellant's home on 30 October 1997. In her report, in relation to home help, Ms Nicholson recorded: "As an Assessor of need in the home, I take into account Mr Baumber's requests. I am of the opinion that Mr Baumber is capable of carrying out the duties in the home - in addition to his shopping - whilst one accepts there is a pain problem. He says himself he is succeeding in getting rid of his pain. He says standing and walking are not a problem. He says he chooses not to cook because he burns everything, but he also says if he stands still he can function quite well with his arms. He can and does drive his car. I see then, that he is capable of shopping - on his own admission he chooses not to cook. I believe if he chose to cook he could manage this task. He does not have to stand for long periods - he can sit to prepare vegies (sic) if this is more comfortable; and cooking is not standing for long periods - the stove does the actual cooking and on his own admission, he can stand and he can function quite well with his arms. Vacuuming and washing I believe could be managed. The cottage is small and compact with one bedroom only - vacuuming would take 10- 15 minutes at maximum. It seems the problem here is there is no cleaner and no washing machine and he has told Social Welfare this. I believe that if he had the equipment to carry out these duties, he could do so. Mr Baumber is not on medication. He is not having regular treatment. He ably demonstrated to us that in fact he is very agile and his movements more wide and varied." Ms Nicholson's assessment was that the appellant was not in need of either home help or attendant care at that time. In her report Ms Reynolds noted that she and Ms Nicholson observed the appellant in his home and questioned him about his various domestic activities. Her finding was: "I am unable to recommend home help or attendant care as in my view Mr. Baumber is able to do the housework by pacing himself and he is independent in selfcare. Mr. Baumber does have chronic pain. He has attended the pain clinic and he has read books on pain management. He has his own views on the cause of the pain and on the treatment of the pain." 3 When those reports were received the respondent notified the appellant on . 10 November 1997 that he did not qualify for either attendant care or home help. The appellant applied for a review of that decision. The appellant attended the review hearing and explained the background to his problems. The Review Officer recorded some of the medical history and the reports from Ms Nicholson and Ms Reynolds. The Review Officer concluded that on the evidence it appeared that what the appellant was seeking was "some form of physical therapy which is not, I believe, purpose of the attendant care regulations and is more appropriately addressed under the referred treatment regulations." The Review Officer therefore declined the application for review. The appellant now appeals against that decision. I explained to the appellant that by reference to the home help and attendant care regulations, copies of which had been provided to him by Dr Percival, he would be aware that the respondent is unable to provide assistance in either of these areas until assessments have been made by duly qualified Assessors in each particular field. The appellant expressed his concern that the visit by Ms Nicholson and Ms Reynolds appeared to him to be of very short duration and that they did not fully consider his complaints regarding his physical disabilities. He considered that they did not give adequate attention to those complaints. I explained to him that irrespective of the manner in which the assessments were undertaken neither the respondent nor the Court has the jurisdiction to override them. If the appellant is dissatisfied with the manner in which the assessments were undertaken, the remedy available to him is to make further applications for home help and attendant care when it may be that the respondent can arrange for Assessors other than Ms Nicholson and Ms Reynolds to interview and assess the appellant. I consider that at the end of the hearing the appellant appeared to understand the explanations which I had made to him that the Court was unable to interfere with the assessments and that no assistance could be given in either area without the necessary assessment indicating the type of assistance needed. The appeal is therefore dismissed. DATED at WELLINGTON this 9th day of March 1999 A W Middleton District Court Judge dca268-98.doc (nr)