Rogers v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 221 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN HELEN SUSAN ROGERS of Newlands Appellant (Appeal No. DCA 62/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr D Jaques, husband of the appellant and from Ms K Tahana, counsel for the respondent, with the request that I issue a decision on the papers. The issue is the decision of the review officer confirming the respondent's decision to approve a grant of $5,068 for kitchen modifications in the appellant's home pursuant to the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation Modifications to Residential Premises) Regulations 1992 The appellant suffered personal injury by accident on 31 December 1986 and her claim for cover was accepted by the respondent. There is no doubt that her physical ability has been seriously depleted by the compression fracture of the first lumbar vertebra in her spine which occurred on that date. The appellant and her husband proposed building a new home and requested the respondent to contribute towards the cost of kitchen variations to meet the appellant's needs because of her disability. The respondent arranged for an 2 occupational therapist, Jackie Doherty, to confer with the appellant as to her special needs. In her report of 5 July 1995 Ms Doherty indicated that the appellant would require roll out pan drawers and shelving, roll out ironing board required in the kitchen or laundry and wall oven and hob housing units also needed. She recommended that specifications should be prepared by Mr J Sutherland whom she described as an architect but who in fact appears to be an architectural draughtsman. After that report was received the appellant requested Mr Sutherland to draw up the necessary plans for the kitchen but he advised that he did not draw kitchen plans and only considered modifications to existing plans. As the appellant and her husband had previously had discussions with Ms Willmot, a design consultant with a firm known as The Kitchen Studio, the appellant and her husband spent some hours with Ms Willmot who produced a kitchen design specifically for the appellant's need. In subsequent evidence to the review officer Ms Willmot explained that The Kitchen Studio is a large franchise organisation which designs kitchens for people with disabilities. Ms Willmot had previously been involved in teaching but had undergone specialist training with The Kitchen Studio for the design of kitchens for persons with special needs. Her quotation for the kitchen which she considered necessary for the appellant was in excess of $18,000 but she indicated that the quote for a standard kitchen would have been $9,533. She concluded that the special features required to cope with the appellant's handicap would cost $10,684. The quote for special features was: "I have completed the design for the new kitchen for Helen Rodgers (sic). The kitchen has been designed with accessories to ease the problems created by her back disability. To follow is a list of special features. 1 Corner pantry with base to step on to reach high shelves Full cost: $1732 ACC 50% contribution $866 2. ) Wall oven unit $1214 b) Caribbean oven } to fit into unit (customer to purchase hob) $1799 3. Cabinet with 3x Hettich slide out baskets $474 4. 2 full corner cupboards with lazy susans fitted $2238 5 . Angled wall cupboard (improves accessibility) $434 6 . Side pull-out unit under sink for cleaners $151 7 . Rubbish bin mounted on door $79 8 . Pot drawer unit $840 9 . Easy slide drawer unit for cutlery $892 10. Cabinet for ironing board (slide out) with 2x Hettich baskets below $905 11. Installation of joinery is $1320 This is to supply and fit 15 units plus accessories. 9 of these units have special requirements. 9/15 installation is $792 Total cost of special features $10684.00 Should you have any queries regarding this kitchen, please contact me." 3 When that quotation was received by the respondent it wrote to the appellant on 3 July 1996 indicating that it did not consider it reasonable that the respondent should pay for the major cost of a new kitchen. In that letter the respondent indicated that the correspondence from The Kitchen Studio, together with Ms Doherty's assessment did not provide it with sufficient information. The respondent then referred the application to Ms Doherty and to Mr Sutherland for their assessment of the cost of installing a modified kitchen. Further the respondent requested the appellant to permit an assessment to be made by two additional occupational therapists, being Ms Zame and Ms Lucas. After some additional correspondence and advice from Ms Doherty the appellant agreed that Ms Lucas could make a further assessment. In a report dated 19 August 1996 Ms Lucas stated: "Functional Status Mrs Rogers presents with a limited range of movement throughout her lumbar spine effecting functional tasks within the kitchen such as bending, reaching, crouching, pulling, and pushing. This results in difficulty with accessing high and low cupboards or shelves. Static standing and sitting tolerance is limited to approximately 20-30 minutes before pain and discomfort set in. The pain is felt dominantly across the lumbar area of her back. Recommendations Mrs Rogers and Mr Jaques are currently in the process of having a new home built. It is necessary that consideration be taken when designing the kitchen to allow for the limitations Mrs Rogers experiences as a result of her back injury. The special items Mrs Rogers requires are as follows: 1. Wall oven and housing unit positioned at suitable height 2 . Mid range level-cupboards and/or shelving 3 . Pull-out baskets and lazy suzies installed within suitable cupboards Deep pot drawers 5 . Easy slide drawers Attached is a list of these special additions and the estimated extra cost involved. Mrs Rogers and Mr Jaques have planned a kitchen which will provide Mrs Rogers with easier access when working within this area. However, more mid-range level cupboards instead of lower cupboards would have been more beneficial but due to the final layout of the kitchen, this is not possible. . .. SUMMARY ... In my opinion it is appropriate that ACC consider funding the difference between cost of purchase and installation of standard kitchen items and the special kitchen items necessary. Jeff Sutherland, architect is now involved as requested, to look more closely at different costings. We are meeting on Wednesday 21.08.96 to discuss this and will feedback to you. The additional items necessary in the client's newly designed kitchen as a result of her disability are listed under each area as follows: ... The total extra cost of special kitchen items required as a result of Mrs Rogers back injury on the above is $4,103 (plus any pantry costs). Carolyn Lucas, (Occupational Therapist, Dip. OT)" On 28 August 1996 Mr Sutherland advised the respondent that it should not contribute to the corner pantry unit and he gave as his assessment of the total cost of the installations recommended by Ms Lucas as $4,058. The appellant then signed a rehabilitation plan with the respondent which included the estimate of $4,103 for housing modifications. Subsequently Mr Jaques indicated that in order to include all the fittings required in the kitchen it would be necessary to move one wall. As a result the respondent obtained quotations for the wall adjustments and also considered the request for an adjustable ironing board in the laundry. The respondent advised the review officer, who at that stage had adjourned the review hearing, that it considered a quote from Trios Plumbers of $630 for the moving of the wall was the appropriate quotation to be accepted, together with the sum of $380 plus GST for additional kitchen furniture resulting from the wall alterations. The respondent also advised the review officer that as a result of consultation with Ms Lucas it did not consider that a fold/ slide out ironing board was necessary. Ms Lucas had advised that such a board was not necessary as the appellant would not aggravate her back and although such an ironing board might be desirable it was not considered essential as a result of her injury. The review officer then confirmed the respondent's submissions that final funding should be fixed at $5,068.50. The appellant submitted: 1. That decisions in relation to the moving of the partition wall and the pull out ironing board made by the review officer on the recommendation of the respondent during the course of the review hearing had been made without the appellant having an opportunity to be heard on those submissions. 5 2. That the appellant should therefore have the opportunity of a second review hearing in respect of those two issues. 3. That the review officer was wrong to rely solely on the report of Ms Lucas as being the only suitably qualified person when Ms Willmot had given evidence as to her expertise in the field of kitchen design for persons with special needs. 4. That the respondent's submission that it may only consider recommendations by an occupational therapist is wrong and does not comply with the requirements of Regulation 4(2) of the Regulations. 5. That a quotation from a plumbing firm to carry out building work was not appropriate and furthermore the plumbing firm stated that it could not carry out the work. Ms Tahana submitted: 1. That as provided by Regulation 4(1) the respondent took all necessary steps to have the appropriate occupational therapist's investigation into the claim. 2. That under Regulation 5(1) the respondent is only required to give approval to modifications recommended in the occupational therapy assessment to the extent that it considers such modifications are cost effective and necessary to enable the appellant to achieve independence in daily living. 3. That by adopting Ms Lucas's assessment the appellant complied with the requirements of the Regulations. 4. That the respondent agreed to deal with the issue of the ironing board and moving of the kitchen wall at the request of Mr Jaques made during the review hearing and that its decision was appropriately based on a further report from Ms Lucas. The respondent is required under s.26 of the Act to provide for the social rehabilitation of the appellant by the restoration of her independence to the extent that it has been lost by reason of personal injury. To that end it is permitted to make contribution towards the modification of residential premises. The Regulations provide that the respondent is required to engage an occupational therapist to undertake an assessment of the appellant's requirements insofar as modification to the residential premises are required. Such assessment is to be made by the occupational therapist in consultation with the appellant. Approval of modifications is a discretionary matter but in exercising that discretion the respondent is required to be satisfied that the modifications are both necessary and cost effective in order for the appellant to achieve independence in daily living. I am concerned that the issue between this appellant and the respondent has developed into an unfortunate saga. The appellant clearly recognised that as she was 6 building a new home she could not claim the total cost of a completely modified new kitchen. She recognised that she would have to pay the basic cost of a normal kitchen of the size originally contemplated and that the only contribution she could receive from the respondent was the additional cost of items assessed to be necessary by way of modification in order to restore her independence in daily living provided that it is cost effective. The first assessment made by Ms Doherty set out certain items which she considered essential in the kitchen by way of extras as opposed to a standard kitchen. When the position was further examined by Ms Lucas it seemed to me that the basic essentials that the appellant required were similar to those originally suggested by Ms Doherty. The appellant was then directed to consult with Mr Sutherland who is not an architect but is an architectural draughtsman and whose only input into the issue has been to provide a costing of the items specified by Ms Lucas. The appellant had consulted with Ms Willmot of The Kitchen Studio who has experience in providing specialist kitchens for persons with disabilities. The appellant and her husband spent a considerable number of hours discussing proposals with Ms Willmot which resulted in her submitting a plan for the kitchen, together with her estimate of the costs. The only major item which appears to be in any sort of dispute between the parties is the question of the corner pantry. Mr Sutherland did not consider this to be necessary although Ms Lucas in her assessment on 19 August 1996 included the words "plus any pantry costs". I agree with Mr Jaques' submission that the respondent's submission that "under Regulation 4(2) the Corporation is directed only to consider an assessment undertaken by an occupational therapist" is wrong. Regulation 4(2) does not limit the respondent's duty in that way but makes a requirement that the respondent must engage an occupational therapist to undertake an assessment. I consider that in reaching a decision in which it must exercise a discretion the respondent is obliged to consider all the evidence available to it. In this particular case Mr Sutherland has given evidence but only on the basis of his estimate of costings. On the other hand, assessments have been provided by Ms Doherty and Ms Lucas and as I have already said they all acknowledge the requirement for very similar modifications to the appellant's proposed kitchen. Ms Willmot gave evidence that in making the recommendations she did she was looking at a cost effective way in that the items she recommended would be the most suitable for the appellant's daily use and the most suitable having regard to her particular restrictions. The issue which concerns me is that when Ms Willmot's quotation was provided the respondent took no steps to adequately check it. I would have considered that the proper approach to an issue such as this would have been to obtain a quotation from another supplier of kitchens or a duly qualified architect to give a quotation for the cost of an equivalent sized standard kitchen and an estimate of the cost of the modified kitchen. This then would have produced the answer which the respondent had been endeavouring to find. I do not consider that it was reasonable in the 7 circumstances that it relied on the estimates provided by Mr Sutherland who is an architectural draughtsman but who may not be conversant with full costing. A quote from a contractor along the lines I have suggested would appear to have been a very simple solution to the whole problem. I consider that having regard to all the evidence the provision of the foldaway ironing board is a cost effective means of providing for the appellant's daily needs and that the suggestion that the ironing board merely stand in the laundry would constitute a hazard, particularly in the event of fire. Furthermore, the provision of the pantry also appeared to encompass Mrs Lucas' anticipated requirements which I consider should have been included in the costs for a cost effective modification for the restoration of the appellant's independence. I consider that the appeal should therefore be allowed and that the total contribution to be made by the respondent towards the cost of the kitchen installation, including the moving of the wall and the provision of the foldaway ironing board is the total sum of $8,000. As Mr Jaques is the husband of the appellant and is himself a part-owner of the property I do not consider that there should be any award for his costs of assisting his wife in this appeal. DATED at WELLINGTON this 7th day of November 1997 A W Middleton District Court Judge dea62-97.doc(rd)