Jacka v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No 222 198 IN THE MATTER of the Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to s.91 of the Act BETWEEN GLEN ANNE JACKA (DCA 155/98) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD ON: 1 October 1998 APPEARANCES: Mr R Bell Counsel for Appellant Mr D Tui Counsel for Respondent JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Respondent's decision to cancel the Appellant's entitlement to home help was correct. 2 Background On 25 August 1993 the Appellant suffered an injury to her back when she slipped and fell. Since the time of her injury she has suffered regular muscle spasms in her back and neck. She has been unable to work and has been in receipt of weekly compensation. In February 1995 she was assessed for the purposes of needing home help and as a consequence of that assessment home help of $100 per week was approved for kitchen cleaning, vacuuming-sweeping, bed making, drying, dusting and cleaning bathroom/toilet. Further assessments were carried out from time to time. Those assessments being carried out by the establishment named Lotas which provides the assessment service to the Corporation for home help. In December 1996 the Corporation instructed Mr Gary Heynen to examine the Appellant and give advice tot he Corporation on the following matters: i. Diagnosis of her back condition. ii. Advise future management. ifi. Incapacity in her future work situation as a counsellor and for the home help tasks listed above. iv. Do you consider that a functional capacity evaluation in this Jacka case? V. Prognosis. vi. Any other relevant information which would assist any further development of a rehabilitation plan. Various medical reports were provided to Mr Heynen and included in the letter of instruction was advise as to the particular tasks for which the Appellant was receiving home help as set out above. Dr Heynen reported to the Corporation on 10 February 1997 and in terms of the question of home help Dr Heynen stated: "Ms Jacka is a very overweight 46 year old woman who appears to be coping reasonably well in terms of activity levels, and on examination from today, I find there is no indication for the requirement of further assistance from ACC in the form of acupuncture, osteopathy or home help. " In another passage he stated: "In terms of her home help, I feel there is no indication from my examination today that she could not manage her own household and therefore do not feel she requires ACC help in relation to her spine or knee problems." On the strength of Dr Heynen's advice the Corporation advised the Appellant that home help payments would cease as at 31 March 1997. The Appellant sought a review of that decision and a review hearing took place on 24 November 1997. For the purposes of that hearing the Appellant produced a report from Dr Graeme Perry, rheumatologist, dated 22 October 1997. Dr Perry had previously seen the Appellant in 1994 and therefore was aware of her history and of the nature of her injuries from her fall. Dr Perry examined her and it was his opinion that the current symptoms which she displayed, and which he detailed, were similar to those that she displayed when he saw her in 1994. At the review hearing the Appellant also gave evidence that her condition then was much worse than when she had been examined by Dr Heynen. She stated that at the time she was seen by him she was receiving regular treatment for her injuries but because at the time home help had been cancelled, payment for treatment had also been cancelled, she had been unable to afford further treatment and it was this lack of treatment which had caused her injury to deteriorate. As a consequence of Mr Perry's report and Ms Jacka's evidence, the review officer determined that she should again b examined and assessed by Mr Heynen. However, the Appellant refused to be so examined, she contending that Mr Heynen's remarks suggesting that her injury existed mostly in her mind and that she lacked any motivation demonstrated bias against her. She therefore considered that she could not have any confidence in any assessment by Mr Heynen. The Appellant did not in fact advise reasons for her refusal to return to Mr Heynen and it was simply her silence that caused the Review Officer to there upon deliver his decision based on Mr Heynen's original advice. He ruled that a specialist such as Mr Heynen was perfectly appropriate to determine an assessment for home help, that is whether the Appellant's injury was such that she was unable to carry out the physical tasks for which home help had been granted. He found that Mr Heynen's opinion that she was so capable was conclusive of the matter. Accordingly the Review Officer upheld the Corporation's decision to cancel home help. In submissions to this Court Mr Bell, Counsel for the Appellant, submitted that the Review Officer should not have relied on the report of Mr Heynen in view of the fact that later medical reports, particularly that of Dr Perry established a need for home help. He submitted that the Corporation could not invoke s.73(1) to cancel home help without making a finding that other evidence, which indicated to the contrary, must be rejected. Counsel for the Appellant further submitted that the referral of the matter to Mr Heynen was in fact an abdication of the Corporation's requirement to assess a claimant's entitlement to home help and was thereby a wrongful delegation of that power. He submitted that invariably trained assessors carry out such assessments and that Dr Heynen was not such an assessor. Mr Tui, Counsel for the Respondent, submitted that the Corporation was entitled to rely on the specialist medical advice of Mr Heynen in determining whether the Appellant was capable of performing the household tasks which had formed the basis for her entitlement. He further submitted that the Home Help Regulations do not prescribe how the Corporation is to assess the claimant's ability to undertake the household tasks referred to in the first schedule, nor do those regulations specify any particular person as being as assessor for the purpose. Counsel further submitted that the Lotas assessment is primarily subjective, based on information provided by the claimant, and that the Corporation may seek to verify that by reference to a medical practitioner. He submitted that it is the Corporation which determines entitlement not the medical practitioner. Counsel finally submitted that this particular case was one which was similar to the decision in Smith (209/98) where this Court ruled that the assessment had been carried out in accordance with the terms of the Act and could not be upset, but nevertheless where fresh evidence indicated fresh entitlement, application for such entitlement should be made by the claimant. Decision Despite there being some evidence from Dr Perry to the effect that the Appellant's condition was similar to that when he had last examined her in January 1994, I find that the Corporation was quite entitled to rely on the advice of Mr Heynen who had been specifically directed to consider the question of home help and the Appellant's ability to perform the tasks for which the Corporation had been providing home help.. There was nothing in Dr Perry's report which would indicate that she wasn't capable of carrying out those household duties. He notes in his report that since her move to Whangarei her son has been handling the animals and she has been restricted to domestic duties and her part-time voluntary counselling. Nowhere in Dr Perry's report does he address her ability or otherwise to carry out those household duties. It is noted that the Review Officer was not informed of the Appellant's reason for refusing to return for further examination by Mr Heynen and in the circumstances I find he was quite entitled to conclude that the matter could not be further progressed in that way. He was quite entitled to deal with the matter on the basis of the medical evidence which he had at that time. Under the Home Help Regulations it is the Corporation's responsibility to assess the amount of a claimant's entitlement and for that purpose must conduct that assessment by using the numerical rating for each task as set out in the schedule to those regulations. However where the question is one of eligibility, where physical inability or otherwise is the issue, the Corporation is quite entitled to seek the opinion of the appropriate health professional rather than rely on the subjective statements of the claimant made to an assessor. The Appellant is entitled to make a claim for home help at any time it can be established that there is a need. The fact that the Corporation has determined that at a particular point and time there is no such need does not mean that that situation is inmutable. For so long as the Appellant has cover under the Act in respect of her injury sustained on 21 August 1993, she can apply for any entitlements she believes the Act may allow her. On receipt of an application the Corporation is obliged to look at the matter and apply the correct criteria for determination of eligibility. If there is fresh evidence that since the decision to cancel was made, there has been a change in the Appellant's physical ability to perform those household tasks, then subject to the Corporation being satisfied that the Appellant does require home help, that home help must be made available to her to the extent that the appropriate assessment determines. 7 Accordingly it is open to this Appellant to apply at any time for home help entitlement. However, this appeal is concerned only with whether the Corporation's decision to cancel home help was correct at the time it was made. On the evidence which it then had, and subsequently the Review Officer had, I find that the decisions so made were correct. Accordingly then within the narrow confines of this appeal, determining as it does that at a particular point in time the Appellant's entitlement to home help had been validly cancelled, this appeal must be dismissed. DATED at Wellington this 16 day of October, 1998 M J Beattie District Court Judge RS/A:JACKA.DOC