Martin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 198 197 HELD AT TE AWAMUTU IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN KAHAKORE MARTIN Appellant (Appeal No. DCA 158/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of September 1997 APPEARANCES S R Clark for appellant F M Patterson for respondent DECISION OF JUDGE D A ONGLEY This is an appeal against the decision of a review officer given on 2 May 1997, confirming decisions of the Corporation. The first decision of the Corporation was one dated 11 February 1997 reducing the appellant's home help, and the second was a decision of 28 February 1997 reducing the appellant's attendant care provision. The appellant suffered personal injury by accident when she fell into a hot bath at her home on 7 December 1991. She suffered from undiagnosed Alzheimer's disease. She had run the bath herself and was locked in the bathroom. Her severe burns required double amputations below her knees. She had full thickness burns to her buttocks, perineum and feet. Because of her age she was never fitted with prostheses and has since been confined to a wheelchair. - 2. Before the accident the appellant lived in her family home with her husband, who has since died, and her daughter Maria and members of her daughter's family. Her daughter remained living in the home until August 1993, but after that the appellant lived alone. She is assisted by another daughter, Mrs Kahutotara Adams, who lives nearby and is the appellant's welfare guardian. Home help and attendant care entitlements have been dealt with over the years. In order to trace the basis of the entitlements and the decisions which have been made it will be best to deal with them separately. Attendant Care The earliest assessment was dated 11 March 1992. It is headed Assessment for Home Help, but it seems to have been directed to assessments of either home help or attendant care. The benefits were not then classified distinctly under regulation as they are under the Accident Rehabilitation and Compensation Insurance Act 1992. The assessor noted that the appellant's mobility had been greatly impaired because of the accident, and she had to be physically assisted with all personal requirements, including moving the wheelchair. A recommendation was made for a contribution of 20 hours attendant care per week. A note was made on the assessment that "I must take into account that prior to this accident IP was unable to prepare her own meals and a family member was always available so that she was not left alone, while Maria was at work. This need has not changed, however IP's dependence has increased." That remark is noted at this stage but it has a more direct bearing on home help entitlement than on attendant care. An assessment of attendant care was made on the basis of 20 hours per week which was increased in April 1992 to 24 hours per week at $10 per hour, and that assessment was reviewed and continued from May 1992. Attendant care was reassessed at 10 November 1993. By then the appellant was living alone. A score of 89 on the attendant care schedule was increased by a modifying factor of 1.427 because the appellant was living alone. She was assessed for $370 per week. That continued to be paid apart from a short period when it was reduced to $320 per week but it was shortly afterwards restored to $370 by a decision on review in which the factor of 1.427 was reinstated. In that review decision, the Review Officer referred to a letter of Dr Paul Friedman, geriatrician, in which he stated his opinion that "more than 90% of Mrs Martin's current care requirement is not accident related (due to dementia and diabetes). In other words without dementia, diabetes or heart failure, Mrs Martin would need very little help: help mowing the lawn, gardening and doing heavy house cleaning. Her current requirement for 24-hour per day personal care is not accident related. " The Review Officer said "That comment is probably quite true in the manner that Dr Friedman is looking at the situation. However I believe Mrs Martin's case must be considered from the point of view that she has a disability resulting from the injury and so long as that disability remains then the Corporation has a responsibility." The assessment was last confirmed on 20 January 1997 when it was continued at $480 per week. - 3. Shortly thereafter the Corporation obtained from Dr Friedman a further letter dated 17 February 1997. He referred to the fact that the appellant's husband had died about 18 months before. He stated that her family considered that before the accident she could clean the house, iron clothing, do the washing, garden and shop. He referred to her past medical history, including diabetes mellitus for six years, congestive heart failure with two hospital admissions since 1994, and dementia (Alzheimer's) since 1988 according to Waikato Hospital. In the course of the proceedings the family has objected to the description of dementia as indicating insanity, but I think that they have now accepted that it means no more than a deterioration of the mind through age Dr Friedman stated his understanding that the appellant had to be moved by a hoist from bed to chair and commode to wheelchair. She was showered on a shower chair in a level access shower, and caregivers dressed her and put her into the wheelchair. She was able to propel herself around the house and the caregivers would take her outside using a ramp. The appellant would take a rest after lunch and caregivers turned her every two hours while she rested and also overnight. She attended day care and the family organised caregivers using a log of visitors and care providers. The family care and organisation was commended. In preparing his report, Dr Friedman had interviewed the appellant to ascertain her medical condition independently of her injuries. He found that she could not remember daily events such as meals or who visited her. He said that she talked about events 50 years ago as if they were occurring now, but she was able to sleep through the night, enjoyed watching television, spoke Maori fluently and sang and played musical instruments. She exhibited good functional use of both arms, strong grips and ability to propel her wheelchair. Her skin was in good condition and her amputation stumps were healthy. Dr Friedman noted constant chewing motions consistent with dementia, mood fluctuations during the examination, significant cognitive impairment, and he commented that she had an in-dwelling urinary catheter. Therefore he diagnosed advanced dementia with controlled diabetes on insulin, and controlled heart failure. Dr Friedman attributed a good deal of her care requirements to her other medical conditions, particularly dementia. He considered that a bilateral amputee would otherwise be able to transfer themselves on and off wheelchair and commode, but that the appellant could not because of her health problems and her age. He said also that even without her burn injuries she would require assistance with showering, dressing, cooking, cleaning the house and either toileting or supervising an in-dwelling catheter. He therefore isolated her care requirements resulting from the injury to transfers and mobility, that is to say that her only injury related to care requirements with the need to be transferred between bed and chair and commode and chair. He said again that 90% of her requirements relates to her medical conditions, particularly the dementia but also the heart failure and diabetes, rather than the accident leading to bilateral amputations in 1991. On the hearing of the appeal, leave was given to hear evidence of the appellant's son- in-law Mr Tui John Adams. Mr Adams, in his evidence, said that there was a cultural difficulty in assessing the degree of dementia by Dr Friedman. The appellant spoke - 4 - mainly in Maori. Mr Adams, who was present at the interview, said that the appellant's apparent fluctuation of mood during the interview was wrongly interpreted by Dr Friedman as an indication of dementia, whereas it was in fact caused by pain. It was submitted that if the appellant had been examined by a Maori speaking person, or at least a person with cultural understanding, the assessment may well have been different. Such an assessor would have been better able to evaluate the appellant's mood, and would certainly have had a better ability to understand her speech and to judge her mental acuity. A second criticism of the assessment was that it did not take into account the special needs of the appellant for the care and maintenance of her badly burned skin, thighs, muscle tissue, vaginal membrane and urinary tract, and the supervision of the in-dwelling catheter. There is some substance in those criticisms. Dr Friedman's assessment was no doubt competent and it may have been highly reliable. It is not known whether he has experience in dealing with elderly Maori, but it is likely, as a geriatrician, that he would have such experience. There is the difficulty that the appellant has not put forward any expert evidence to indicate that Dr Friedman's assessment should be discounted. To some extent it is speculative to suggest that he may not have been in a position to make an accurate assessment. The language difficulty is, however, something more concrete. Neither the Corporation nor the appellant's representatives appear to have questioned Dr Friedman concerning the degree he relied on his judgement of oral expression in deciding on the degree of dementia. I think that it is a matter that requires further exploration. But in the absence of evidence, it does not seem to me to be a basis to revoke the Corporation's decision, rather a basis for the Corporation to exercise its discretion to obtain another assessment with the assistance of a culturally appropriate health professional. In the event of a different view emerging, then the February 1997 assessments should also be reviewed. In the course of deciding this appeal I can go no further than to make a recommendation. It is also open to the appellant to obtain independent medical advice in order to prevail upon the Corporation to change its assessment. The assessment of the effect of non-accident disability should take into account the individual circumstances of a claimant. It is possible that a person affected by dementia and without any family support may be almost completely unable to keep house, but a person benefiting from a degree of oversight from family living nearby may have a significantly greater ability to cope despite the effects of age-related mental deterioration. That kind of assessment may better be carried out by a professional with insight into social and cultural features of the appellant's Maori family. It is possible that Dr Friedman's assessment has already compensated for such aspects. Those questions do not arise directly on this appeal and cannot be determined in the absence of appropriate evidence. From the appellant's standpoint the question of her degree of mental deterioration is very important. Before her accident when the appellant was 79, she had developed some degree of dementia, but it was not particularly noticeable to her family. She was able to carry out quite a few household tasks. There is of course the disturbing factor that the accident itself was quite likely to have been caused by a mental disorientation. The question now is whether at the age of 84 she is a person who would require attendant care irrespective of her amputations and burns. I think it is - 5 - fair that the appellant should have the benefit of an assessment by a health professional who has some expertise in the area of Maori health and, if possible, a person able to converse in Maori with the appellant. It may be difficult to locate a person with those skills who is sufficiently qualified in occupational or geriatric health. The Corporation will have to exercise its discretion, taking account of needs and availability. There is another difficulty with the assessment. The attendant care assessment that is now in question is an assessment of 25 February 1997. The schedule score was reduced by the medical factors indicated in Dr Friedman's letter but the result appears to have been unfair. In particular, Mr Clark submits that no points have been included for "Skin care" when in fact the appellant requires attention to her skin care needs because of severe burns. He refers also to "Dressing" which the appellant is to a great extent prevented from doing because she has no balance. But for her amputations, there is no reason to suppose that she would not be able to dress herself to a good extent, even if not perfectly. Mr Clark also notes that no score at all is allocated to "Grooming", another area of simple self care which the appellant would be able to attend to if she had her mobility and balance. He notes that there are specific tasks that are made necessary by her disability; having to put on stump socks, and having to be strapped to her chair or bed because she has lost balance, mobility or leverage through her amputations. For the same reason she cannot balance on her commode. There seems to be merit in those submissions. They are scoring omissions that are not adequately explained. For that reason, I consider that the Corporation's assessment should be set aside or revoked to the extent that it must be done again. That will not have the consequence that the old rate should continue from the time it ceased in February 1997, but that the Corporation should review its assessment taking the foregoing matters into account in order to produce an assessment that is not influenced by any mistake in evaluation of the degree of dementia, and which takes full account of the personal care that the appellant is prevented from doing because of her lack of balance and mobility, and the attendant care that is additional to that required by an uninjured person. The resulting calculation should apply from the starting date of the February 1997 assessment which it replaces. Home Help The assessment of 11 March 1992 contained the comment, already referred to, that the appellant was unable to prepare her own meals. The writer of the assessment had also noted that the appellant's Alzheimer's had been getting progressively worse. The writer said that prior to the accident the appellant's daughter had arranged a family member to check on the appellant in mornings and at lunch time, and they would take the appellant with them and continue with their own chores. It is appeared from the information that was obtained in that assessment that the appellant was able to maintain a degree of independence with sufficient support from her family to enable her to continue living in her own home. It appears that she was not truly independent because her ageing and the effects of Alzheimer's would not have allowed her to live on her own without the close support that she had from her family. Evidence was given by Mr Adams, at the review hearing and on the appeal, that the family had - 6- always contended that before the accident the appellant was able to get her own meals when necessary, and was also able to provide meals for her late husband. He said that she was also able to do most of the household duties of cleaning, laundry and maintaining her gardens. He said also that she could walk the half mile to the local dairy to make her grocery purchases, and she could travel to the city by bus, shopping at least once a week. Maria Martin, who was living with her, had a full-time job and her son was at school so that she was only able to attend to the evening meal. On that basis, counsel for the appellant submitted that home help should have been provided from the time when Maria Martin left in August 1993. In fact, it appears to have been provided from the date when an assessment was eventually made on 7 November 1994. The appellant was assessed on that date for home help of $260 per week. She was not reassessed until February 1997. The new assessment was based partly on the comment that had been recorded in March 1992, that the appellant had been unable to prepare her own meals. Mr Adams clarified that the assessment contained also an incorrect statement that the family had no real concerns over home help levels when that was in fact wrong. The 1997 assessment was made with regard to Dr Friedman's view of the help which the appellant would have needed regardless of her amputations. The complaints about the home help assessment are as follows: 1. In relation to meal preparation the assessment notes that the claimant had not been mainly responsible for the task before her injury. This may be based on the definitions in the First Schedule of the Social Rehabilitation Home Help Regulations 1992. It is not clear whether the Corporation is using the schedule or a discretionary assessment under the amended s 26 of the Act. Mr Clark submitted that a proper reading Part I of the First Schedule is that where a claimant is living alone the assessment is to be made without regard to whether the claimant was predominantly responsible for the task before the personal injury occurred. I think that interpretation is correct. If the schedule is used, it has to be read as applying to the present when the appellant is living alone. Although at the time of the accident she lived with her daughter and was not predominantly responsible for a task, her home help needs have to be measured today when she lives alone and she may be unable to do her meal preparation and cooking. If it is decided that she cannot do those tasks, then the only remaining question is whether she would be able to do them but for her personal injuries. The appellant's case is that she could do some of those tasks, but the way the assessment has been made she has been barred from any assistance because she was not responsible for the tasks before her injury. I find that the assessment on its face indicates an incorrect exclusion of home help for meal preparation. 2. The hours of help needed each week are understated. Her assessment includes, for instance, a half hour for the week's dish washing. That does appear to be a miserly assessment. In view of those defects I revoke the Corporation's decision so that the assessment can be done again. It would be pointless for the Court to speculate on the amounts of time that should be allowed for various items. It is a matter of approaching the problem anew, making a fresh evaluation of the effects of other aspects of the - 7- appellant's health, correcting the mistaken approach of eliminating any allowance for tasks done by her daughter in an earlier time when her daughter was living with her, and making a reasonable assessment of the amount of time required for each task. It is a matter of judgement and calculation which cannot be done by the Court on the available evidence. Home Help Arrears It is unreasonable to expect that the appellant should have realised that on the commencement of the Home Help Regulations she was required to make an application under reg 3, and obtain an assessment under reg 4. The appellant had cover under the 1982 Act and she had already been assessed for attendant care, using a form entitled "Assessment for Home Help". She or her family were entitled to understand that she had been assessed for home help. It seems that they were unaware that attendant care and home help were separate benefits, but in essence they had applied for whatever assistance was available for the appellant in respect of her personal requirements and domestic tasks. I do not think that her entitlement should have been excluded by a matter of mere formality in failing to make an application under the particular regulations. The Corporation should now assess the entitlement to home help from August 1993 when the appellant was living alone until November 1994 when she was assessed for home help. However, the Corporation is entitled to take into account a proper assessment of the need for help resulting from personal injury, and excluding the need for home help resulting from other medical conditions. That may be difficult in retrospect. I consider that the Corporation is not bound to assess home help on the same generous basis on which it assessed attendant care. It can look at the matter in the light of the information it now has. Furthermore, the commencement of home help should date from the time when the Corporation first became aware that the appellant was living alone. These are matters upon which there has been no originating decision. It is doubtful whether there is jurisdiction to review that particular question. The appellant has referred to the authority of decisions including Savill v Chase Holdings (Wellington) Lid [1989] 1 NZLR 257 as to the scope of the grounds of appeal that may be advanced. I prefer to leave that matter as a recommendation to the Corporation to enable it to make an original decision. The appeal is allowed to the extent that the February reassessments are revoked in order to enable the Corporation to perform those assessments again, taking into account the appropriate considerations. The appellant will have costs of $800. DATED at WELLINGTON this 23M day of September 1997 D A Ongley District Court Judge