Abraham v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 1 41 / 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 JANET ELIZABETH ABRAHAM of Palmerston North Appellant (Appeal No. DCA 275/96) 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 I have received submissions from Mr A R V Rowlett, advocate for the appellant, and from Ms F M Patterson, counsel for the respondent, with the request that I issue a decision on the papers. The issue in the appeal is whether the appellant is entitled to funding under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992 or the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Modification to Residential Premises) Regulations 1992. The facts which give rise to the claim are that the appellant was injured in a motor vehicle accident on 7 June 1993 when she suffered broken ribs, a head injury and soft tissue injury to her pelvis and a neck injury. On 24 August 1995 the appellant was assessed by the Domiciliary Occupational Therapy Community Health Services of MidCentral Health for the purpose of 2 identifying her functional limitation and needs. In a report of that date Ms F Lloyd, an occupational therapist made the following recommendation that: 'Janet would regain more independence with meal preparation and improve her safety with the provision of a microwave or bench top combination. This option is preferable to the more expensive one of altering the kitchen to put in an eye level oven, and the appliance could be taken with her if she moved accommodation. If you need me to obtain prices on suitable appliances please contact me. I consider the above recommendation essential if Janet is to regain independence with some of the daily tasks she currently has assistance for and provide additional safety." On 13 September 1995, the respondent informed the appellant it had received Ms Lloyd's assessment and then stated: 'With respect to both the installation of a microwave/bench top installation and specialised clothes line I advised that a decrease in your current home help entitlement will be expected. Under our current regulations these items are payable only if there is a decrease in the amount of home help assistance you need. For your information I advise that purchase of a microwave on your behalf will reduce your home help entitlement to $210.00 per week." The appellant replied to that letter on 19 September 1995 and said that it was not acceptable to her to have her home help reduced. The letter then stated: "Faye Lloyd suggested a bench height oven to replace the floor level gas one in this house as I had suffered a third degree burn to my arm when attempting to lift an item out. My home help is involved with food preparation but you will see from h. help forms that they are not here for meal times to do all the cooking. My personal safety and further accident prevention should be the Corporation's aim. I find it distasteful that your prime concern is as ever financial." On 11 December 1995 the respondent advised the appellant that Ms Lloyd had obtained quotations, but that the conditions of funding outlined in the respondent's previous letter remained. In addition, the regulations provided that ovens could not be provided under the Aids and Appliances Regulations unless there is a reduction in a claimant's home help entitlement. The respondent received a further report from Ms J Dineen-Smith of ADAPT Occupational Therapy Services dated 10 April 1996. That report concludes: 'Faye Lloyd has recommended the purchase and installation of a wall oven and this is most definitely indicated for safely (sic) reasons and will also assist Janet in some of her cooking tasks. I have doubts however that it will significantly impact the amount of home help assistance she requires as using the oven is such a small 3 part of the overall assistance she requires. Janet reports that if her home help reduces she will be unable to cope, I attempted to discuss the possible rearranging of tasks and attempting more physical tasks for very short periods throughout the day however Janet was negative about the success and stated that she was currently doing as much as she was able. I realise that 5 hours has been discussed as the appropriate decrease in home help assistance but I do not believe that installation of a wall oven will assist Janet to the extent that she needs 5 hours less home help per week. Janet does have difficulty with the existing oven in lifting dishes in and out and in cleaning but the major factor seems to be in the need to bend down to light it. I would envisage that the installation of a wall oven could warrant a decrease of the maximum of 2.5 hours per week." On 17 May 1996 the respondent advised the appellant that her application for funding for a oven was declined because it did not meet the requirements of cost effectiveness which the respondent was required to meet. The appellant applied for a review of that decision. The review application was filed by the appellant's advocate who stated that it was the level of the oven which is at issue and that as the oven will be fitted to the appellant's house the issue should have been considered under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Modification to Residential Premises) Regulations which do not require a saving in home help costs. The respondent wrote to the appellant's advocate on 17 June 1996 confirming its previous decision and also confirming that that letter constituted a decision to decline an application for modification of the residential premises under those regulations. The review officer found that the oven could not be provided under the Aids and Appliances Regulations as it did not meet the criterion of cost effectiveness by way of reduction for home help costs in the future. She also found that the respondent was correct to decline the application under the Modification to Residential Premises Regulations as they did not apply to the provision and installation of a wall oven. In making that finding the review officer distinguished the decision in Haywood (DCA 18/94) "on the basis that hoist and spa pool in that appeal added a feature whereas in this case the appellant sought to alter a feature she already had". Mr Rowlett submitted: 1. That while the appellant had submitted at the review hearing that the decision in Haywood indicated that an item requiring installation such as a wall oven fell within the provisions of the Residential Premises Regulations the review officer had held that in contrast to Haywood this appellant already had an oven and that the installation of a wall oven would not add another feature. 4 2. That the review officer was incorrect in her finding because the feature provided by a wall oven was the provision of safe cooking facilities at a height which would be manageable by the appellant. That the Residential Premises Regulations do not specifically allow for adjustments to levels and other features of stoves, but it is illogical to suggest that the regulations do not apply unless the alteration provides a totally different item. 3. That the installation of a wall oven must be an added feature and falls within the scope of the Haywood decision. 4. That the term "cost effective" in the Residential Premises Regulations is used differently from that in Regulation 7(3) of the Aids and Appliances Regulations. That in the Aids and Appliances Regulations the only reference to cost effective is where it specifies savings in other compensation and then only in relation to the schedules in the regulations which the respondent incorrectly regards as meaning savings in every other instance of compensation. 5. That the Residential Premises Regulations provided for the achievement of independence in daily living. That this should mean a cost effective to the relevant cost of achieving that independence. That this could be achieved for this appellant by the provision of the new stove which would increase the independence and safety factors and the cost of the wall oven would also be reasonable in relation to her other benefits. Ms Patterson submitted: 1. That in relation to the Aids and Appliances Regulations the installation of a new oven would not be a cost effective alternative to paying the appellant's future costs of attendant care, home help or child care as is specified in Regulation 7(3). That the preponderante of the evidence demonstrates that the aids and appliances requested would not reduce the appellant's home help requirements at all and further that in her report Ms Dineen-Smith noted that the appellant reported that if her home help was reduced she would be unable to cope. 2. That in relation to the modifications to Residential Premises Regulations the appellant's alternative argument is not established because she has not shown that the provision and installation of a wall oven is a modification to residential premises or that the provision of a bench top combination or microwave is a cost effective alternative to the installation of a wall oven. 3. That the definition of "modification" in the regulations does not allow for the installation of a wall oven. 4. That in comparison with the decision in Haywood to which the review officer referred, the Court had found in that case that the installation of a spa bath would constitute a "feature" or "fixture" in the property which would be a 5 modification. That the Court considered that a "fixture" would form part of the residential property with a consequence which follow in the case of sale or mortgage of that property. 5. That the installation of a spa bath can be distinguished from the installation of a wall oven in that it would not constitute a "feature" or "fixture" in the appellant's home and therefore could not be a modification of the residential premises; that the oven is not a feature in the appellant's home but is merely an alteration of an existing feature. 6. That even if it is held that the oven is a modification the provision of the oven would not reduce the appellant's home help requirements as the evidence of Ms Dineen-Smith showed. Regulation 7(3) of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992 states: '(3) The Corporation or exempt employer may approve, subject to these regulations, on the recommendation of the person who undertook the assessment, payment for the purchase of an aid or appliance of a kind specified in the Second Schedule to these regulations where the Corporation or exempt employer is satisfied that the payment is a cost- effective alternative to paying to the claimant future costs of attendant care, home help, or child care ..." And Regulation 5(7)(a) of the Accident Rehabilitation and Compensation Insurance Social Rehabilitation - Residential Premises) Regulations 1992 states: "(7) Notwithstanding this regulation, the Corporation or exempt employer may approve, on the recommendation of the person who undertook the assessment, - The purchase and installation of equipment and appliances, where such purchase and installation is a cost-effective alternative to a modification of a kind described in the First Schedule to these regulations." In s.2 of the Modification to Residential Premises Regulations modifications is defined as meaning "alterations to residential premises to remove structural barriers or to add features which will assist a claimant to live as independently as possible having regard to the claimants disability". The First Schedule to the Modification to Residential Premises Regulations includes "modification of electrical fittings and controls" and "adjustments to levels and other features of toilets, sinks, basins, and stoves and modification to taps, controls, and access", while the Second Schedule precludes the respondent from providing as modifications "electrical or gas appliances". 6 I agree with Ms Patterson's submission that in relation to the provision of a wall oven or bench top appliances the requirement still is that such provision is a cost effective alternative to paying to the claimant future costs of attendant care, home help, etc. That the provision is quite clear in s.7(3) and the evidence from the home help assessment is that this appellant will continue to require the same amount of attendant care and home help irrespective of the provision of an alternative cooking appliance. I do not consider that on the evidence the appellant can overcome that requirement. The evidence clearly establishes that the provision of a new cooking appliance while it may be a convenience and a safer appliance for the appellant's particular needs it will not have the cost effectiveness required by the regulations. In relation to the regulations regarding the modification of residential premises the situation is that the appellant already has an oven which is useable. Can it therefore be said that the provision of a wall oven would constitute a modification of the premises. The definition of "modification" includes alterations to the premises to remove structural barriers or to add features which will assist a claimant to live as independently as possible having regard to her disability. By Regulation 5 in such modifications must be "both necessary and cost effective in order for the claimant to achieve independence in daily living" I consider that the evidence demonstrates there are occasions on which this appellant is required to use the stove herself for the purpose of removing pre-cooked food. She has in fact burnt herself while so doing. While she receives assistance in the preparation of food she, with the assistance of her family, has to serve it. I consider that in these circumstances the achievement of her independence in daily living would be assisted by the provision of a wall oven as opposed to the present appliance. The issue then is whether that would constitute a modification within the definition in the regulations. I consider that it would constitute a "feature which will assist a claimant to live as independently as possible having regard to the claimants disability" and that it can be deemed an adjustment to the level of the stove. I do not consider that the words "cost effective" in Regulation 5 of the Residential Premises Regulations have the same meaning as the similar words in the Aids and Appliances Regulations. While the Aids and Appliances Regulations have among their objects the similar achievement of "independence in daily living" the effectiveness in those regulations is limited to the fact that it should be "a cost effective alternative to paying the claimant future costs of attendant care, home help, or child care", such a qualification does not apply to the Residential Premises Regulations. Furthermore, the question of safety as submitted by Mr Rowlett should be a primary consideration for the respondent having regard to the objects of its legislation. Promotion of safety is a prime objective for the respondent and in this case I consider that is an issue which must have some bearing on the appellant's ability to live independently. In addition, the proposed modification would provide a safer environment for the appellant which might avoid further accidents which might result in further claims on the respondent. 7 I consider that the provision of a wall oven would constitute a modification to the appellant's premises which is necessary and would be cost effective in providing additional independence in her living. The appeal is therefore allowed. There will be costs of $700. DATED at WELLINGTON this 10" day of July 1997 A W Middleton District Court Judge dc276-96.doc(rd)