Rees v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 133 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN GLENDA ANN REES of Paraparaumu Appellant (Appeal No. DCA 495/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 28th day of April 1999 APPEARANCE/COUNSEL J F Cuttance, advocate for appellant L Dall for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to assistance to purchase and modify a motor vehicle. The appellant sustained a soft tissue injury to her left lower abdomen and pelvis on 23 April 1997 when she had a collision with a trolley in the supermarket where she worked. 2 The respondent accepted that the appellant was entitled to cover and she received weekly compensation. A certificate from her General Practitioner on 23 June 1997 noted that the appellant still suffered symptoms in her left hip and groin which affected her ability to walk and sit comfortably, and her ability to drive. The appellant resigned from her position in the supermarket and obtained alternative employment at a boutique. As she continued to suffer symptoms that prevented her working she was referred to Mr L F Hass, a Neurologist whose report of 23 December 1997 states: " Glenda Rees was seen again today, 11.12.97. Without having an explanation for the pain in her groin and left leg, the chances are that there will be long term disability for those symptoms and though I don't have a specific diagnosis, the symptoms followed a collision with a supermarket trolley and I have to assume the result is from personal injury. She has great difficulty driving a motor car because of the symptoms but if she didn't have to move her left leg Glenda feels she would be able to drive independently and this could be achieved by an automatic car where she didn't have to manipulate the clutch to change the gears with her left leg. The pain that she experiences is brought on by rapid walking, climbing steps, to a lesser extent walking long distances on the flat but also with driving, " particularly when she needs to manoeuvre the car such as at traffic lights or giving way at an intersection. It also occurs sitting for greater than 10 minutes, including in a car. I have put it to Glenda would she still have a problem with driving because of the symptom precipitation by sitting and she felt that wouldn't be the case if she did have an automatic car. Before going to the expense of providing her with such a vehicle, it would be prudent to have her test drive to see if that is the case." Following receipt of that report the appellant was referred to Mr K F O'Leary, an Occupational Therapist for a driving assessment. When the assessment was undertaken the appellant owned two vehicles, being a manual Toyota and an automatic Mitsubishi which she had purchased in January 1998. The conclusion in Mr O'Leary's report of 12 February 1998 was: "Assessment confirms Glenda meets the Corporation criterion of being physically unable to drive. Glenda demonstrated during the On Road assessment that she was physically unable to safely control the car while driving especially accelerating, slowing and stopping. The lack of control while driving ranged from unsafe to potentially dangerous. The lack of control was such that Glenda would not be able to pass a standard police road test in a manual car. The safety problems associated with driving a manual car are totally eliminated with an automatic car. Minor foot rest modifications will improve driving comfort and decrease hip and groin pain by allowing for multiple changes in leg position. Observable and demonstrable left leg weakness occurred while using the left leg on the clutch pedal. 3 COSTS The cost of converting a manual car to an automatic has been established at $3 000-00 to $3 500-00 including GST. The cost of the foot rest modification has been quoted at $213-75 including GST by Kapiti Car N Bike. The existing manual car is inappropriate to convert to automatic due to the car's age (12 years old) mileage (180,000 kms) and condition (no Warrant of Fitness) The cost of repairs, the car's existing value and overall age means modification is not a cost effective option as the car is unlikely to last the minimum period of five years. RECOMMENDATION 1) Contribution to the cost of changing the car up to the level of modification to an automatic transmission ($3 500-00). 2) Installation of a modified foot rest at a cost of $213-75 including GST." On 6 March 1998 the respondent notified the appellant that her request for assistance with the purchase and modification of a motor vehicle was declined because she did not have a "long term disability" as defined in the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992. The appellant applied for a review of that decision. With her application for review, the appellant submitted a report from her then General Practitioner, Dr L Roche, dated 20 March 1998 in which she stated: 'I am Glenda's GP, and have been caring for her since her injury in April 1996. With regard to purchase/ modification of her vehicle, I can confirm her assertion that she is unable (permanently) to drive a manual car. Her difficulty with her driving is to such a degree that she is a danger to herself and would endanger others were she to be driving a manual vehicle. Glenda was never admitted to hospital following her injury, but was assessed at the Emergency Department. I would have liked her to be admitted on occasion, but Glenda decided to have her extensive investigations done on an outpatient basis. Glenda found it a lot less emotionally stressful to rest at home between her hospital appointments, and I supported this. Neither of us was aware her not being admitted would preclude her from cover under the Act." The Review Officer confirmed the respondent's primary decision and it is against that decision which the appellant now appeals. In support of the appeal, Mr Cuttance submitted: 1. That the definition of "long term disability" in regulation 2 of the Regulations was in conflict with the definition of disability as defined in section 2 of the 4 Accident Rehabilitation and Compensation Insurance Act 1992 and was therefore ultra vires. 2. That the appellant has suffered a disability which should entitle her to social rehabilitation assistance by way of assistance with the purchase of a motor vehicle or modifications to a vehicle. After hearing the respondent's submissions, I granted leave to Mr Cuttance to file additional submissions in reply in relation to the issue of whether or not having regard to the decision of the High Court in Haar (an unreported decision issued on 4 March 1998 under number 255/97 by Justice Gallen) the appellant suffers from a long term disability which entitles her to assistance with the purchase of the vehicle. In those submissions Mr Cuttance noted that immediately following the accident the appellant had been referred to the Accident and Emergency Department at the Hutt Hospital where she remained for some hours and where she received a medical examination and initial treatment for her injury, shock and pain. Mr Cuttance noted that in his decision the Review Officer recorded "Mrs Rees did not receive inpatient services initially. She was treated and discharged home for rest and ongoing care." Mr Cuttance submitted that on the basis of the finding of the Review Officer that she was "discharged" it must be assumed that before being discharged the appellant had to be "admitted" Ms Dall submitted: 1. That the issue of the validity of the Regulation was considered in Haar and the appellant has not raised any new matters which would permit the Court to depart from the decision of the High Court regarding the validity of the Regulation. 2. That section 26 of the Act provides that the objective of social rehabilitation is to restore the independence of the appellant, to the extent that it has been lost by personal injury. That the provision of assistance for the purchase and modification for motor vehicles arises under the scope of the Regulations provided the appellant satisfies the requirements of having a "long term disability". 3. That in order to bring herself within regulation 5 the High Court in Haar found that it was the fact of admission for treatment that was important rather than the requirement that there be an overnight stay in hospital. 4. That the appellant did not receive inpatient services in respect of her personal injury which is supported by the statement of Dr Roche that the appellant was "never admitted" to the hospital but was assessed at the Accident and Emergency Department. That on that basis it could not be said that the appellant had received inpatient services in respect of her personal injury so that she cannot bring herself within the definition of having sustained a "long term disability". 5 The relevant law is provided by section 26 of the Act which states: " 26. Objective of social rehabilitation---(1) 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. (2) In this Act, 'social rehabilitation' includes, without limitation, -- (a) Provision of, or payment for, attendant care; and (b ) Purchase of, and modifications to, motor vehicles and other means of transport; and (c ) Modifications to residential premises; and (d) Provision of, or payment for, household help; and ( e ) Provision of, or payment for, child care; and Provision of, or payment for, wheelchairs and any other aids and appliances likely to assist independence in daily living; and (8) Provision of, or payment for, teacher aides, teacher aid hours, and transport to or from school for a child requiring special assistance as the result of personal injury covered by this Act to enable the child to receive education." In so far as it applies to the issue of appeal, section 26A states: -- " 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 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 payment for social rehabilitation-- (a) Is exercisable notwithstanding anything in any regulations made under his 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." The term "long term disability" is defined in regulation 2 of the Regulations as: "'Long term disability' means any restriction or lack of ability to perform an activity to the extent that the claimant was able to do so before the personal injury or, in the case of a claimant under the age of 16 years, within the range considered normal for a person of that age, where that restriction or lack of ability - (a) Results from personal injury covered by the Act; and (b) Is expected to persist, or does persist, for a period of more than 3 months after the date of the first discharge from in-patient services following initial treatment for the personal injury:" 6 While regulation 5 provides: "5. Entitlement to assistance 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." In the decision in Brown (169/98) Judge Beattie noted the requirements which an appellant must satisfy in order to qualify for assistance as: "... to come within the definition of long term disability the following factors must be established: (i) a restriction or inability to perform an activity to the extent able before a personal injury. . (ii) that. restriction or lack of ability persists or is expected to persist for more than three months. (iii) that 3 month period must commence from first discharge from hospital following initial treatment for personal injury." As I explained to Mr Cuttance at the hearing, I did not consider that this Court had jurisdiction to consider the question of the validity of the Regulations which was an issue already satisfied by the High Court in Haar. The issue therefore is whether in order to satisfy the requirements of section 26 the appellant is entitled to assistance with motor vehicle purchase and modification in order to restore her independence to the extent that it had been lost by reason of the personal injury she suffered. In order to qualify for that it is necessary for the appellant to establish that she does suffer a long term disability. In Haar the decision in the District Court which led to the appeal to the High Court was that the use of the word "inpatient services" in the definition of long term disability in the Regulation required an overnight admission to a hospital. However, on appeal to the High Court, Justice Gallen held that all that was needed was "admission" to the hospital and no requirement for an overnight stay. In this appeal the respondent relies on the statement by Dr Roche that the appellant was "never admitted" to the hospital. This raises the interesting question of what constitutes "an admission" to hospital. This appellant attended a hospital but because the evidence disclosed that she had previous unhappy experiences when staying in hospitals she did not wish to be admitted overnight, she was therefore treated in the Accident and Emergency Department for the injury she had sustained. I consider that taking a broad view of the section and having regard to the words of Justice Gallen, that an overnight stay is not imported into the use of the word 7 "admission" the treatment received by this appellant at the outpatients department of the hospital constituted 'inpatient services" within the meaning of the definition of long term disability. She clearly attended at the hospital and her fear of staying in the hospital precluded admission on a longer stay basis with the result she was treated for the injuries resulting from the accident and discharged. I consider that she must therefore have been admitted to the hospital for treatment which must qualify her for entitlement as suffering a long term disability. As the issue before me is the question of entitlement to assistance for the modification or purchase of a motor vehicle, I find that on the medical evidence and having regard to the Act and Regulations, the appellant does suffer from a long term disability to the extent that she is permanently unable to drive a vehicle without modifications and that she is therefore entitled to assistance from the respondent for this purpose. As the Court is not involved in the question of quantum, the file will be returned to the respondent to fix the quantum of assistance to be given. The appeal is therefore allowed and there will be costs to the appellant of $800. DATED at WELLINGTON this 28 7 day of 1999 A W Middleton District Court Judge dca495-98.doc