Elkerbout v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 119 / 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOSIE SWBHASINI ELKERBOUT of Wanganui Appellant (Appeal No. DCA 143/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of September 1996 APPEARANCES A R V Rowlett for appellant T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the appellant's entitlement to child care under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Child Care) Regulations 1992. The respondent had accepted that the appellant suffered a work injury by way of a gradual process strain to her lower back while lifting boxes at work. The claim was accepted in March 1993. The medical reports indicate that the appellant suffers fibromyalgia which Mr R D Wigley, a Consultant Rheumatologist described as "being 2 a chronic painful condition [which] inevitably leads to depression." All the reports indicate that the problems are severe and extremely debilitating. The appellant has a son who is now aged 14 and who suffers an intellectual disability. A report from Mr N G Mackenzie, a Paediatrician dated 24 July 1995 states: "This is to certify that Esmond has significant intellectual delay and is extremely demanding, requiring very considerable and consistent care and input from mother. This is ongoing and if mother is unable to care for him she would need help to ensure Esmond's needs are continued to be met." In June 1993 the appellant was granted $100 per week child care to enable her to attend at Polytech. On 7 November 1995 the respondent obtained an assessment from Mr TJ Dunn, and Occupational Therapist whose report states: "Fortunately I was finally able to visit Josie at home on Ist November 1995 (with Leanne Poynter, Occupation Therapy Student). During the interview Josie was very quietly spoken and initially would not disclose much information. She sat in a lazyboy chair in such a position as not to offer a great deal of back support, though did not show any signs of discomfort. When mobilizing she appeared to have a good pain free range of movement. From observation and discussion with Josie I was able to obtain the following information: Personal ADL Skills - Josie states she is mostly independent with showering/toileting, though at times experiences discomfort when drying her hair or back. Josie has been issued with a raised toilet seat and shower stool in the past, though does not always use them, stating she doesn't want to become reliant. Domestic ADL Skills - Josie is currently receiving homehelp who assists with vacuuming, dusting, ironing and some meal preparation. Josie was somewhat vague about exactly when she receives this serving stating that she calls on "a couple of people" when need be. She states she experiences differing pain when attempting to attend to these tasks and that her abilities fluctuate. Much of the pain described by Josie was in her hands, arms, shoulders, though not necessarily lower back. From my assessment I would envisage that Josie possesses the range of movement to attend to some lighter task on an intermittent basis. 3 Mother/Carer Rose - Josie has a 13 year old son who she states has an intellectual disability. I have not seen her son, though Josie's description would indicate that he is developmentally delayed and has a short attention span. He is away most of the week at Wanganui Intermediate School and home in the evenings/weekends. Although Josie stated he required considerable assistance/supervision, it was not apparent that he required a great deal of "physical" help, i.e. no lifting or transferring. Josie states that he needs supervision with some dressing and generally occupying. Summary From my visit to and assessment of Josie, it is apparent that she is a rather depressed and anxious person. Of her own admission she stated that her back pain was not a prime concern, more the psychological effects of this. While I have no doubt that this lady requires considerable support and assistance at home, I feel many symptoms displayed to me may be more related to her Fibromyalgia and general psychological state. I feel she may be able to take more responsibility for some lighter household tasks and that if unable, it would not be primarily due to her back injury. Although Josie is somewhat restricted in her activity level I feel the support/assistance needed to care for her son is largely in a manner of entertaining him, as Josie appears to find this stressful." In another assessment also in November 1995 another assessor concluded: "I was unable to reduce this client's hours, I feel that another assessor should be appointed as I don't appear to be able to change the situation. I am inclined to agree with the Occupational Therapy report and really feel that child care should not be included from ACC. However, the client feels the need is directly related to her condition." Subsequently a further assessment was completed in February 1996 by another Assessor, M Hawken, whose conclusion was that: "Clients need for child care is to provide outgoings and entertainment for Esmond during evenings and weekends. He is able to carry out selfcares with normal supervision and is independently mobile so needs minimal physical assistance. Client told me she is in receipt of disability allowance DSW for Esmond which can be used for his child care. I cannot support Mrs Elkerbout's request for child care under these circumstances." However, after Mr Dunn's assessment, the respondent ceased the payment of child care to the appellant. The appellant applied for a review of that decision. In her evidence to the review officer, the appellant explained that she required assistance with her son because while he was able to manage certain normal daily activities for himself they still required supervision. In her evidence she said: "Just dressing him and certain things in his hygiene as well and when he is eating he doesn't wash his hands or clean his face and also taking him out to like sports and stuff The answer to the question of "can he go on his own?" she said: "No he can't, he has to have somebody with him all the time wherever and whenever he goes to do things." Later in her evidence she said: "If he is tying his shoe laces and they are tied in knots he cannot undo that, and he just sort of damage it other than doing it properly or if it is hard to do or something it has to be done for him." The appellant also explained that following her husband's death she had been assisted in the care of Esmond by a friend from Fiji from whence she had immigrated. However, that person was merely living in the home and had assisted her as best she could. The appellant's concern is that there are certain activities which she would like her son to undertake but he cannot do so on his own because of his mental condition, so that in her opinion constant supervision and care is necessary . The review officer concluded that on the basis of the assessments, the appellant was capable of providing supervisory care which her son required. The review officer's finding was: 'It appears that all he really needs is instruction or reminder about activities he is physically able to do himself. In any event, the fact that he has special needs is something which the applicant would have had to cope with even if she had not been disabled." Mr Rowlett submitted that the review officer had failed to give sufficient weight to Mr Mackenzie's prognosis regarding the demands of the appellant's son. He submitted also that while the definition of child care in the regulations included the words "personal care or supervisory care" the assessors appeared to consider that supervisory care was not the responsibility of the respondent. Mr Cleary submitted that there was no suggestion that the appellant was unable to provide supervision and personal care for her son's outings and that her son is able to carry out self-care with normal supervision and is independently mobile. 5 I consider that on the totality of the evidence, and particularly that of Mr Mckenzie, the appellant's son would appear to require constant supervisory care in spite of his age and his other abilities. I agree with Mr Rowlett's submission that the definition of child care includes both personal care or supervisory care. Accordingly, I consider that the appellant is entitled to receive child care and the appeal is allowed. The file will be returned to the respondent to enable it to make the necessary assessment. There will be costs of $700 to Mr Rowlett DATED at WELLINGTON this 18 day of October 1996 A W Middleton District Court Judge dc143-96.doc (nr)