Henderson v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT NELSON Decision No. | 3 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 78-94-0661 BETWEEN IRENE ERICA HENDERSON of Nelson Appellant (Appeal No. DCA 87/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 31st day of January 1995 APPEARANCES Appellant in person A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the respondent declining to accept her application for home help assistance. 2 The appellant suffered personal injury by accident in 1991 when she suffered an abrasion to her left leg which became infected with cellulitis which occasionally flared up. In December 1993, the appellant applied for home help entitlements and her general practitioner, Dr Loveridge, certified that she needed 1 - 2 hours home help weekly and referred to a letter from Dr D. Short. Dr Short had reported to the respondent on 12 October 1993 as follows: "Major problems of gross obesity (126kg) restricted mobility and impossibility of keeping the infected leg elevated except when in bed defy immediate solution. Mrs Henderson relies on her husband for much housework and all transport. She finds all high cleaning, window cleaning and general household chores very difficult. The leg is very large in any case but is considerably swollen permanently. Small abrasions have to be watched carefully and she has to protect the leg at all times from minor trauma. The leg aches a lot and there are feelings of pins and needles along the other calf. Knee instability is a problem with concern about possible falls. She has great difficulty negotiating steps and stairs both going up and down. A general eczematous body rash also affecting the lower leg adds to the difficulties because of itching." Dr Short concluded: " I recommend that home help for 1 - 2 hours a week be provided to give Mrs Henderson help with chores she physically cannot manage." The appellant suffers serious mobility problems and has difficulty in house work, gardening, cleaning windows, and getting in and out of motor vehicles. The respondent arranged for an assessment to be made under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Home Help) Regulations 1992 in which the assessor indicated that the appellant was able to cope with her duties with the help of her husband, although she had some problems with cooking, spring cleaning, washing walls and ceilings and cleaning out cupboards. The respondent then issued a decision on 13 December 1993 declining home help assistance. The appellant was concerned at the result and applied for a review, but prior to the review hearing the respondent arranged for a further assessment by another assessor whose assessment rating came to 6. The assessor considered that although the appellant suffered from cellulitis in her left leg she had said that she could manage most tasks although she found vacuuming difficult because of her angina. A rating of 6 is less than the minimum rating of 10 required by the regulations and accordingly the appellant did not qualify for home help. Mr Barnett submitted that unless it was possible to demonstrate some error on the face of the assessment, then the appeal cannot succeed. He carefully reviewed all the items of the assessment in order to satisfy the appellant that the assessment had been carefully made in accordance with the regulations and that on the face of it there was no item which would indicate that the assessor had not properly concluded the assessment. When Mr Barnett had made this careful analysis and 3 explained it to me, and to the appellant, she appeared to understand the problem which I faced in that I have no discretion to overrule the assessment result. The appellant's husband was also present at the hearing and he told me that the appellant's condition has seriously deteriorated since the assessment was made. If that is the position, a new assessment may now provide a favourable answer, but it will be necessary for the appellant to apply for it to be done. Accordingly, the decision of the Corporation and the Review Officer must stand and the appeal is dismissed. DATED at WELLINGTON this 1b day of February 1995 A W Middleton District Court Judge dc87-94.doc(mh)