Gillespie v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 123 /96 HELD AT CHRISTCHURCH 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 ETHEL LILLIAN GILLESPIE Appellant (Appeal No. DCA 236/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of October 1996 APPEARANCES Appellant in person P J Zumbach for respondent DECISION OF JUDGE D A ONGLEY This appeal relates to two claims by the appellant: 1. An appeal against the Corporation's ceasing home help in June 1995. 2. An appeal against the Corporation's refusal to pay $195.00, for ambulance transport from Twizel to Timaru Public Hospital. The appellant is aged 75. She presented her own case before the review officer and on appeal. She has advanced a most reasonable claim for both of the items refused by the Corporation, but she has encountered regulations which restrict the amount payable by the Corporation, and which failed to provide for her needs. The appellant suffered injuries in a motor vehicle accident on 10th February 1995 and was admitted to Timaru Public Hospital. She was discharged on 12th March 1995 - 2- and went to a home which she had at Twizel, where the access was easier for her to come and go on crutches than it would have been in her normal residence in Timaru. On 30th March 1995 she suffered an episode of severe pain which was related to the accident. Her general practitioner admitted her to Timaru hospital, and he told her that she could not travel by car and that she must go by ambulance. She was later invoiced for the ambulance fee of $195. Section 27(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 limits the Corporation's contribution to costs of transport for the purpose of any treatment or service to the extent required or permitted by regulations made under the Act. The only regulation that covers the appellant's case is Regulation 6 of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, or Physical Rehabilitation) Regulations 1992 (SR 1992/203): "6. Other transport - (1) Subject to these regulations, where a claimant requires transport for treatment for personal injury that is not emergency transport by ambulance, the Corporation ... shall contribute to the costs incurred by the claimant -- a) An amount equivalent to the lowest fare payable for the journey on whichever is the cheapest of any available scheduled public transport: or (b) Where there is no scheduled public transport, an amount calculated at the rate of [54] cents per kilometre - irrespective of the means of transport actually adopted by the claimant. 2) Notwithstanding subclause (1) (a) of this regulation, if the cheapest scheduled public transport is not appropriate because of the condition of the claimant resulting from personal injury and is not used, the Corporation ... shall contribute to the costs incurred at the rate specified in subclause (1) (b) of this regulation if that contribution would be greater than that payable under subclause (1) (a) of this regulation." In broad terms the ambulance transport was emergency transport because the appellant suffered acute symptoms which could not have been foreseen and required hospital treatment. There was nothing to be done but for her to use ambulance transport to cope with the emergency. However, the regulations do not recognise that fact, because "emergency transport" is defined in the regulations to mean transport which commences within 24 hours of the personal injury being suffered. In other words, the regulations only allow payment for emergency transport right after the accident. In emergency transport is used at any later time, it simply does not qualify for any contribution beyond the public transport or vehicle mileage rate allowed in the regulations. There is no logic to that. It has quite an unreasonable result in this appellant's case. The regulation provides only for an arbitrary application of funds, which is likely to be fair in most cases but not in all. The review officer was unable to find any basis on which the Corporation should be required to pay the ambulance fee. Surprisingly, the Corporation had paid the appellant on the basis of the public transport fee. The review officer increased that to an amount calculated according to the kilometre rate. I regret to say that the review officer's decision was correct in accordance with the Act and Regulations, and the appeal must be dismissed - 3. Home Help The home help assessment was based, as is required by regulation, on the points allocation table contained in the first schedule to the Social Rehabilitation - Home Help Regulations 1992. Under Reg. 4(6) the Corporation shall not pay for home help where the total points rating is less than 10. In the early stages, the appellant had qualified by a total of 17 points to receive 4 hours home help per week. A point that the appellant makes strongly is that she used only about 2 hours a week thereby saving the Corporation part of the cost of home help to which she was entitled from March to June 1995, when she came to be reassessed in June the Corporation completely declined any further claim. The appellant's main home help requirement was for driving for her to get her groceries. She was 1 kilometre from the nearest store and 4 or 5 kilometres from the supermarket. She had no car. Being a resourceful person, she managed to adapt to circumstances and do most of her household tasks, but she could not shop for groceries. Inability to perform that activity gives an allocation of 6 points. Again with some eloquence and logic, the appellant submitted that if she could not shop she could not cook, so she should also be allocated home help points for being unable to cook. Unfortunately for her claim, each of those activities is regarded separately. The evidence indicates that she was physically able to perform the activity of cooking and so no points could be allocated under that part of the schedule. The items in the schedule are weighted in an attempt to lend some fairness in allowing and disallowing claims. The regulations obviously contemplate that claimants who have a degree of incapacity from performing various domestic tasks will not obtain home help. The schedule reflects a policy division between cases that will be compensated and cases that will not. The result is that a source of funds, inadequate to cover all cases, will be allocated to the most needy cases. It is impossible to compare the appellant's situation directly with others, but it is most unfortunate for her, that after she had been fair in her own dealings with the Corporation, she was then deprived of support which she needed in order to provide for her essential domestic activity. The review officer, again, made a small adjustment to the Corporation's payment, but otherwise disallowed the claim. In this case, the regulations do not permit any payment beyond that which the Corporation has made, and the appeal must be dismissed. I have indicated to the appellant that would be the likely outcome. In reviewing the file, I am unable to find anything further that is helpful to her case, and both appeals are therefore dismissed. DATED at WELLINGTON this 24th day of october 1996 D A Ongley District Court Judge