Bruce v Accident Rehabilitation and Compensation Insurance Corporation

Decision No. 61197 IN THE DISTRICT COURT DCA No. 202/96 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 G.H. BRUCE APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: 26 October 1966 and 4 February 1997 Date of Decision: 21 April 19 97 R.L. Roberts as counsel for the appellant J.D. Lee as counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE The appeal succeeds. Introduction: The issue in this appeal is the appellant's entitlement to payment from the Corporation for home help in accordance with the Act and the Accident [P:MIMRIEN\BRUCE2.DOC JAB] 2. Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) Regulations 1992. On 27 May 1994 the appellant was involved in a house fire that took the life of his partner. The appellant suffered burns to his face, neck, and hands. Subsequently the Corporation commenced payments for home help. The Corporation attempted to make re-assessments of the appellant's requirements for home help, but these attempts were hindered by the appellant's reluctance to have contact with the Corporation. On 12 September 1994 an occupational therapist was able to assess the appellant and in accordance with the Schedule to the Regulations assessed the appellant as being able to perform all tasks listed in the Schedule. The therapist therefore concluded that no further assistance was required. The Corporation wrote to the appellant by letter dated 13 September 1994 advising that his home help entitlements had been re-assessed, and payment would cease on 15 September 1994. On 19 October 1994 the appellant was re-assessed. The assessment form on the file is a little unclear. It records that Mr Bruce was unable to do the following tasks which he could do before the accident:- Task Rating Cooking Dishes Vacuuming and/or sweeping Cleaning bathroom and toilet 3. The ratings for those tasks total 23 but the rating of 11 for cooking is deleted and total shown on the form is altered from 20 to 12. The comments recorded on the report are:- "Burns Lives alone. R hand Skin . thin ' sensitive ' lacerated with light trauma. Grip - functional for light activity. Wrist some stiffness persists. Skin integrity will improve over period of 12 mths. Continues to apply prescription cream to affected areas." By letter dated 21 October 1994 the Corporation wrote to Mr Bruce advising him that he was entitled to a maximum of $80 per week for home help. The appellant was re-assessed on 20 January 1995. He was assessed as being able to undertake all the tasks in the schedule except "Dishes" with a rating of 3. In her assessment report the assessor recorded the following comments:- "Skin integrity - no lesions. Skin sensitivity - painful to touch, hypersensitive sensitive to detergents - should use cotton lined rubber gloves. Grip: Functional. Suffers from depression - motivation ,. Pre-accident condition anxiety, agorophobia. Emotionally Mr Bruce may still require some H/Help." 4. The assessor noted that the appellant required further rehabilitation in the mental area of need "Phobic Trust - non accident related." The Corporation wrote to the appellant by letter dated 24 January 1995 advising him that his home help entitlements would cease. A number of medical reports on the file detail the appellant's medical condition. In particular the reports refer to his psychological condition and the possibility that that prevented him from keeping up with the day-to-day activities involved in housekeeping. Mr Bruce was re-assessed on 2 March 1995 and the assessor advised that her impression was that if there were any difficulties with house work they were more due to a psychological disinclination and fear rather than any physical difficulties with using his hands. The assessor went on to suggest that the appellant's psychological problems may be having a significant effect on his inability to perform house work, and suggested a psychiatric assessment. By letter dated 14 March 1995 the Corporation wrote to the appellant advising that his home help payments would cease on the basis that he was physically able to perform all the assessed tasks, and advising:- "Further consideration to home help assistance can be given in respect of your psychological impairment if this is supported by a psychiatrist." 5. The appellant did not consent to a psychiatric assessment and applied for a review of the decision. The appellant did not appear at the hearing of the review and the review decision was based on the papers. The Review Officer upheld the Corporation's decision that the appellant was not entitled to home help as his physical injury no longer prevented him undertaking household chores. The officer noted that if the appellant had submitted two psychiatric assessments and the assessments were favourable the Corporation would consider his claim for home help in respect of psychological injuries resulting from the fire. The appeal was first heard on 24 October 1996. After discussion the appellant agreed to a psychiatric examination and the appeal was adjourned pending receipt of the report. The appellant was assessed by Dr Greig Mccormick, a specialist psychiatrist, and he issued a report dated 11 November 1996. The report referred to difficulties that the appellant had had throughout his life with anxiety and depression, and for which he had sought professional treatment prior to the fire, and for which he had been prescribed medication. Dr Mccormick accepted that the appellant's mental condition had been worsened to some extent by the fire, and expressed the opinion that some degree of home help should be provided by the Corporation. He noted that:- "If the Corporation were to reconsider home help assistance it would perhaps not be unreasonable to 'tie' this to a requirement 6. for Mr Bruce to receive on-going treatment so that his recovery does not stretch out with no end point." In response to an enquiry from the Corporation Dr Mccormick wrote a report dated 30 November 1996 in which he rated the appellant's disability as around 30%. He rated the difficulties that the appellant had before the fire as 10% and said that the appellant's current disability relating to the house fire was 20% (30% minus 10%). On the basis of that assessment the Corporation wrote to the appellant by letter dated 3 December 1996 stating that it would be prepared to offer 20% of his previous home help entitlement of $80 a week. The appellant declined this offer and the appeal proceeded. At the continued hearing of the appeal on 4 February 1977 Ms Roberts and Mr Lee presented written submissions and they were discussed. In her submissions Ms Roberts referred to s.26 and the Home Help Regulations and the history of the claim, and submitted that the appellant's home help entitlement should be addressed in the terms of the regulations on a task by task analysis rather than a general disability rating of 20%. The appellant sought payment of two-thirds of his weekly household costs. In his submissions Mr Lee reviewed the history of the claim and the reports of Dr Mccormick. He made the following submissions:- 7. 1. The appellant's physical condition has healed to a sufficient extent to enable him to undertake all the household tasks detailed in the Schedule to the Regulations. 2. The Corporation accepted that the appellant is suffering from a psychiatric condition which prevents him from undertaking the household tasks set out in the Schedule. 3. On the basis of Dr Mccormick's assessment the Corporation considers that the appellant should receive a home help entitlement of a maximum of 20% of his previous assessment. 4 . Section 26 sets out the objects of social rehabilitation stating:- "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." 5. The Act now enables the Corporation to use its discretion in providing an entitlement to the appellant which reflects the fact that only part of his disability is accident-related. Mr Lee referred to s.26A which reads (in part):- "26A. Provision of or payment for social rehabilitation - (1) Subject to subsection (2) of this section, the Corporation may make any provision or payment in respect of social rehabilitation 8. that is required or permitted under this Act and that is consistent with the objective set out in section 26(1) of this Act. (2) The Corporation's power, under subsection (1) of this section, to provide or pay for social rehabilitation - (a) Is exercisable notwithstanding anything in any regulations made under this Act, subject to any direction of a type referred to in section 159(2) of this Act that is for the time being in force; and (b) Is exercisable subject to any direction of any other type for the time being in force under section 159 of this Act. (3) No payment in respect of any item referred to in section 26(2) of this Act may be made by the Corporation other than under this section or section 23 of this Act. Mr Lee said that this amendment gives the Corporation a broad discretion to make provision or payment for social rehabilitation including home help. This discretion is no longer subject to the constraints of the regulations. The Corporation has yet to put in place guidelines for the exercise of its discretion. However, it would be a proper exercise of this discretion to grant the appellant a portion of his previous entitlement to home help i.e. 20%. In reply Ms Roberts advised that Mr Bruce contends that a 20% disability translates in his case to a 100% inability to perform household tasks and his entitlement is more than 20%. 9. Consideration and Conclusion: The assessments show that before the fire Mr Bruce was able to perform the household tasks set out in the Schedule. The medical evidence establishes that Mr Bruce is not able to perform any of those tasks now because of the increase in his anxiety and depression as a result of the fire and his injuries. Section 26(1) refers to the extent that the injured person's independence has been lost by personal injury covered by the Act. In the case of this appellant as a result of the personal injury covered by the Act insofar as his independent has been lost to the extent that he is unable to do the tasks in the schedule. The result is that he is entitled to payment on the basis that he cannot do tasks in the Schedule to the Regulations as a result of his psychiatric or mental condition. He is entitled to arrears for home help on that basis and should be re-assessed from time to time and receive home help entitlement on that basis. 10. The appellant is also entitled to costs. Leave is reserved to apply to have them fixed if need be. (J.W. Imrie) District Court Judge