Robertson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NAPIER Decision No. 138/95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 68 95/0133. BETWEEN KAREN ANN ROBERTSON of Napier Appellant (Appeal No. DCA 159/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of November 1995 APPEARANCES Appellant in person supported by Ms CL Farquharson and Ms L Bryant P J Zumbach for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the respondent's decision of 8 February 1995 advising the appellant that it would not assist her with the purchase of her motor vehicle. The appellant suffered a back injury in January 1983 while working as a nurse. She subsequently received a variety of rehabilitation assistance from the respondent up until June 1993 when she was certified fit for work. In February 1994 as her condition had deteriorated she was again certified fully unfit for any type of work. On 31 January 1995 the appellant applied for entitlement to an award for modifications to her car. In her application she stated that she had had the same car for 12 years but found that she could not drive it during the past year 2 as it was too heavy for her to steer. On 28 December 1994 she had traded the car for a 1988 Honda Prelude which had power steering and big doors and was low to the ground thereby making for easier access. She stated that she was not aware until 31 January 1995 that she could have been entitled to assistance from the respondent in respect of the purchase. She said that it was then that she had met her Case Manager for the first time and the Case Manager had informed her that the respondent would have assisted her to obtain a new vehicle to the value of $12,000 but that because she had already purchased it it was too late to make an application. The appellant was concerned that as she had struggled in the past to maintain her independence from the respondent and had not sought help for some time the increase in her disability should qualify her for some assistance. The respondent's letter of 8 February 1995 referred the appellant to the provisions of section 26 of the Accident Rehabilitation and Compensation Insurance Act 1992 and to the provisions of regulation 9 of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992 which provided that the respondent could not give approval for the assistance requested after the expiry of 13 weeks from the date of personal injury unless the purchase of and modification of a vehicle forms part of an Individual Rehabilitation Programme approved under section 20(4) of the Act. On the basis of that provision the appellant's request for assistance was declined because there had been no prior approval, nor was the provision of the vehicle part of an Individual Rehabilitation Programme. The report from an Occupational Therapist on 17 February 1995 confirmed that the appellant was not able to drive a vehicle without power steering and after the appellant applied for a review of the respondent's decision a further report was obtained from an Occupational Therapist. That report which is dated 20 March 1995 confirmed that the Occupational Therapist had not seen the appellant's previous vehicle nor had she been able to assess her needs using that vehicle but she had confirmed that "no modifications would have improved the access of the four door vehicle to equal that of the two door vehicle". The review officer who heard the appellant's review, while sympathetic to the appellant's needs, confirmed the respondent's primary decision. The appellant provided me with a written statement in which she said that she was concerned at the failure of the respondent to previously inform her of her entitlements. She did not have an Individual Rehabilitation Programme and said that she was unaware of and had not have been informed of any entitlement to possible assistance with the purchase or modification of a car or her in respect of her housing requirements. She had received financial assistance from Ms Bryant in order to purchase the car and would not have done so at that time had she been aware that she could have been entitled to assistance from the respondent. She considered that she had been let down by the respondent which had not informed her of her rights and which had declined her application strictly on the basis of the Regulations and the Act. Ms Bryant and Ms Farquharson supported the 3 appellant's appeal and told me of the difficulty she had had in driving her old car and how much better she had been with the new car. Ms Zumbach referred me to section 26 of the Accident Rehabilitation and Compensation Insurance Act and in particular the provision in relation to Social Rehabilitation which stated that the respondent could make no provision or payment in respect of any person "except as required or permitted by regulations made under this Act". The particular provision of section 26 as they apply to this appeal related to "purchase of, and modifications to, motor vehicles and other means of transport". The relevant Regulations are Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modifications of Vehicles) Regulations 1992 which apply to the assistance which can be given for the purchase of or modification of a motor vehicle. Under the Regulations the respondent has to arrange for an assessment of the extent to which the purchase or modification to the vehicle is necessary for the claimant to achieve independence in daily living and regulation 7 insofar as it applies to the appellant states: "(1) The Corporation shall not... (a) Contribute to the purchase of a vehicle where a vehicle owned by the claimant, ... is suitable for modification in order for the claimant to achieve independence in daily living; or (b) Contribute to the purchase of a vehicle, if a vehicle previously owned by the claimant ... was suitable for modification in order for the claimant to achieve independence in daily living, and that vehicle was disposed of by the claimant ... after the date the claimant is deemed to have suffered a personal injury." Regulation 9 sets out the conditions for approval of application as follows: "9. Conditions of approval -(1) The Corporation shall not, and an exempt employer shall not be required to, approve modifications which the Corporation or exempt employer considers are not necessary for the claimant to achieve independence in daily living or are not required as a direct result of the personal injury to the claimant. (2) No approval shall be given by the Corporation, or be required to be given by an exempt employer, after the expiry of 13 weeks from the date of the personal injury unless the purchase of and modification to a vehicle forms part of an individual rehabilitation programme approved under section 20(4) of the Act." Ms Zumbach submitted that the legislation clearly contemplates that the respondent has to have an opportunity to assess a claimant's needs before assistance is provided. She submitted further that before an Individual Rehabilitation Programme is implemented the respondent must approve the programme and can only meet costs in relation to such a programme to the extent to which it has given prior written approval. She submitted that in the case of this appellant no prior written approval for the purchase of the motor vehicle had been obtained as the vehicle was purchased on 28 December 1994 while the application 4 was not lodged until 31 January 1995. Ms Zumbach submitted further that the purchase was not made as part of the Individual Rehabilitation Programme and that such a programme was not implemented until after the purchase of the vehicle. While I am sympathetic to the appellant's position in that she has endeavoured to avoid being a liability on the respondent and has used her endeavours as best as she could to rehabilitate herself, the wording of the legislation is clear and while it might appear to be strict the respondent is bound by it. There may have been an unfortunate breakdown in communication between the respondent and the appellant whereby a Case Manager was not appointed until late in the piece but unfortunately there is no discretion in the legislation whereby the respondent or this Court can approve the purchase of the vehicle after the event. The appeal is dismissed. DATED at WELLINGTON this 28+ day of November 1995 A W Middleton District Court Judge dc159-95.doc (nr)