Taylor v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT GISBORNE Decision No. 3 5 / 9 Y DCA No. 112/93 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND REVIEW NO. 66/93 / 0131 IN THE MA TIER of an Appeal pursuant to Section 91 of the Act BETWEEN GRAEME JOHN TAYLOR of Gisborne Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of July 1994 APPEARANCES Appellant in person Mr N G Morrison for respondent DECISION OF JUDGE AW MIDDLETON The issue in this appeal is the decision of the Corporation to decline a request for private hospital treatment costs. The facts which gave rise to the appeal are that the appellant suffered a serious injury to his knee in a motorcycle accident on 24 September 1992. The appellant is now aged 34. On 12 February 1993 Mr IM Kelman, the appcllanes Orthopc1.edic Surgeon, lodged an application with the respondent for approval of private hospital treatment to carry out an operation on the appellant's knee. At the time the appellant was working in a sheltered workshop and was certified by his general practitioner as being fit for selected work. 7 The appellant said that o\·er the inten·ening period since the accident he had problems coping with pain and discomfort in his right knee but had endea\·oured to cope v,:ith it in order to work. As the pain increased he found that he had difficulty and on one occasion in that year his knee locked in an effort to stand after working on a sander machine. It was folloi,ving that episode that he was referred to Mr Kelman who ad\'ised him to ha\'e an operation to relieve the pain and improve mobility. The appellant stated that since that time the problem has increased to the extent that he now uses a crutch for support and has taken time off work because of the pain. He has serious mobility difficulties and although his only method of transport is a bicycle he even has difficulty operating this. It appears that the waiting time for the same procedures in the public hospital is some 18 months while the operation can be performed without delay in a private hospital. The anticipated recovery period is three weeks. The appellant had been working through the services of an organisation kno\vn as Vanessa Lowndes, Abilities (Incorporated) which reported to the respondent: 11Tlzat Mr Taylor is currently undergoing re/zabilitation and 7l'ork place training 7l'itlz our orgmzisation. He is pnid an attendnnce allowance of $35.00 per Zl'eek. If he were to be further incnpacitated by his injim;, and unable to attend lze 7l1ould not be eligible for our attendance payment." On 17 March 1993 the respondent advised the appellant that his application for private hospital treatment costs had been declined because: "The Accident Compensation (prirnte hospital treatlllent costs) Regulations 1989 outline the conditions applying to appro-ual of prirnte hospital treatment costs. One of these conditions is that apprornl slzall not be gfr1en unless tlze Corporation is satisfied tlzat the provision of tlze treatment is necessan; to the return of t/ze client to Jzis or her prillcipal eco1wmic actiz,ity. In your cnse ns you are currently in receipt of a non-taxable allowmzce and your incapacity is rnrrently due to pail! only, rce are sorry to ad,:ise but you do !lot 11/eet tlze criteria for acceptance. 11 The appellant applied for a review of that decision which was heard on 24 June 1993. In her decision the Review Officer accepted that the appellant had problems with his knee which prevented him from standing for long periods and that this effected his work. She also noted that the appellant was in receipt of a sickness benefit because of his injury but he wanted to undergo the operation because he wanted to get his life back to normal and obtain a good job. The Review Officer held that on the basis of his work history the prospects of obtaining a job e\·en if he were fit were very slight. She concluded: 3 "Frolll tltis ez,idel!Cl' l n111 Hot satisfied tltat tltc opcmtioll proposed ll'Oti!d c1111blc l'v1r Taylor to widatake rc1111u1cmted c111ploy111L'llt. It is clear tlwl tl1er1: are oll1cr b11rriers i11 tlte m1y of !1i111 fi11dillg zi·ork. l n/ll not pers11nded tltat Mr Tnylor is saiously seeking lt'ork nt tl1c 1110111ellt, n11d it is nppare11t tltat his illj11n; is not tlte only rensoll for tlzis. Nor 11111 I satisfied thnt follon·ing the operntion there would be n reasonable prospect of him obtaining employment." The appellant submitted that in spite of that finding by the Review Officer, he had made applications for jobs but because he now relies on a crutch for support he has found prospective employers will not even consider his applications because of his lack of mobility. He considers that until he is able to walk without pain he should not present himself for job applications because his present status appears to produce an immediate adverse effect "vith prospective employers. Mr Morrison referred me to Clause 11 of the Accident Compensation (Specialists Costs) Regulations (No. 2) 1990 which provides that the respondent shall not make any payment for private hospital surgical procedures as specified in the Schedule to the regulations "unless it is sntisfied tlznt it is necessnn; for tlze due restorntion of the clnimnnt to his or lzer principal economic ncti1. 1 it1; or 7l'Ollld ennble the claimnnt to undertake remunerated employment ... " . There is no argument that the procedure specified by Mr Kelman is a procedure covered by the regulations. Mr Morrison referred me to a statement by the Appeal Authority Mr Cartwright in McWhirter (92/92) in which he said: "The e11idence discloses thnt tlze Appellant wns, at tlze time of the Respondent's decision, continuing to work in lzer prillcipal economic activity, albeit with increasing difficulty. Therefore I nzllst Hphold Mr Blair's submission that the words 'dlle restoration' in the regulations refer not to restoration of mobilihJ or physical condition but to restoration to a principnl economic nctivity. The Appellant's concession that size was able to continlle u•orking, altlzouglz not totally effectiz•ely, obliges me to dismiss tlze appeal." He also referred me to Mr Cartwright's remarks in Tromp (135/92) where he said: "The Reglllations to which I have earlier in this decision are strict in nature. referred They allow for no discretion. Unless the Respondent is satisfied that the treatment in question is necessan; for tlze due restoration of the claimant to his or her principal cco110111ic activihJ, the approval sought ca11not be given. [11 tl1e case before me it is clear tlznt although tlze Appellnnt's nbility to work effccti'uely was impaired, 11e1.1ertlieless he was able to co1Ltinue worki11g. As tlie Review Officer remarked during the course of tlze hearing, it 11·11s tlze Appellant's clwice to gi1.1e up his job." Mr Morrison also referred to the decision of Sinclair (114/ 92) in which I held that the Corporation had taken a restrictive \'iew of the appellant's future projected occupations \,\'hich should be looked at in totality and that although he was a 4 student he ·was required to work in his vacations to fund his existence but was precluded this because of the condition of his knee. On the totality of the e\·idence in that case, I held that pri\·ate hospital expenses should be paid. Mr Morrison submitted that in this case the appellant is a sickness beneficiary who receives additional remuneration by way of a non-taxable allowance using woodworking skills at Vanessa Lowndes, Abilities (Incorporated). He submitted that on the evidence the need for the operation has not precluded the appellant from partaking in his principal economic activity. He has further submitted that the need for the operation has not precluded him from undertaking remunerated employment. I do not accept Mr Morrison's submission that on the basis of McWhirter and Tromp this appeal should be dismissed. The factual situation in both those cases were different in that McWhirter was working in her principal economic activity although with difficulty and it was for that reason the Appeal Authority rejected the submission that the operation would not provide "due restoratio1Z". The situation in Tromp was again the position of a worker who was working in his principal economic activity again with difficulty but had chosen to give up his job. In this case the appellant has submitted that he has not been able to obtain ·work because of the increasing problems with his knee and that prospective employers have declined to employ him because he has had to attend using the crutch for support and they have considered that in that condition he is not employable. It is interesting to note the definition of "principal economic acti-uihj'' in Clause 2 of the regulations that states: "' Principal economic activity' includes shtdy acti-uities and domestic Jzouselzold acti-uities that are not directly remunerated; and in the cnse of domestic J10usel10ld activities slzall be deterllli11ed witlzout regard to whether or not the person has a spouse or other household member wlzo is able to perform those activities." The definition contemplates that "principle economic activity" involves study activities which are not directly remunerated may be entitled to assistance even though not earning. In this case the appellant is on a sickness benefit and is receiving a non-taxable allowance while he is undergoing "rehabilitation a11d wor/...place trni11ing". In addition, one must have regard to the final part of Clause 11(2) of the Accident Compensation (Specialists Costs) Regulations (No. 2) 1990 which alternatively to the requirement for the need to restore the claimant to his or her principal economic activity provides "or would enable the claimant to undertake remunerated employment." While the Review Officer concluded that because the appellant had been unemployed for some time she was not persuaded "tlzat following tlze operation there would be a reasonable prospect of him obtaining employment, ... " I do not consider that the provision in the regulations requires that the appellant has an immediate job prospect following an operation. This appellant has found that because of his lack of mobility he is unable to successfully apply for a job. Until he is restored to mobility it is useless for him to apply for a job. He is therefore in a "cntch 22" situation. He cannot apply for a job while he ::, continues to suffer the knee problem and if the Re\'iev,; Officer's interpretation is correct he cannot ha\·e the operation until he can demonstrate that he has remunerated employment to him. I do not consider that that is the intention of the , . regula t1ons. I consider that this appellant has been marking time trying to obtain additional skills and in attempting to obtain employment but with the increasing difficulties with his knee the only way in which he can obtain remunerated employment is by undertaking the operation. I consider the sooner this is done the sooner the public purse will be relieved of the burden of maintaining him. The appeal is therefore allowed and the application for approval of private hospital costs is granted. The respondent will have to fix the details of the costs and allowances in accordance with the applicable regulations. DATED at WELLINGTON this I s,. day of August 1994 Judge A W Middleton DC112/93.doc (TE)