Rudolph v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 91 195 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KARL JAMES RUDOLPH of Kelston 45 / 93/ 0346- Appellant (Appeal No. DCA 161/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of July 1995 APPEARANCES Appellant in person. P J Zumbach for respondent DECISION OF JUDGE A W MIDDLETON There are two issues involved in this appeal, being: 1. The decision of the respondent to decline a suspensory loan application; and 2. The decision of the respondent to decline to contribute towards a motor vehicle purchase and modifications. The appellant suffered personal injury by accident to his right leg in September 1981. The respondent accepted his claim and various awards of compensation were made. In October 1990 the appellant was assessed for rehabilitation assistance when he was seeking to adapt a vehicle so that he could operate as a taxi driver. The appellant was then to become self-employed and the assessor noted: "Although Karl is able to drive short distances in an unadapted vehicle he is unable to use his right leg on the accelerator for any longer than two or three hours at a time. At this stage it becomes so painful that he is unable to drive ..." 2 On 23 November 1990 the appellant applied for financial assistance to enable him to commence a taxi business. A Rehabilitation Co-ordinator visited the appellant and explained to him that his application was unlikely to succeed because the amount requested was far in excess of grants then being made. Subsequent discussions and correspondence took place until September 1991 when the appellant indicated that he was not taking his proposal any further. In December 1992 the appellant again requested information as to whether he was entitled to assistance for the purchase and modification of a vehicle. On 19 February 1993 the appellant was advised that the respondent could not approve his application because: "You do not meet the criteria for entitlement in the Social Rehabilitation - Purchase and Modification of Vehicles Regulations 1992, which specify that in order to have entitlement to such modifications you must be permanently unable to drive. Our decision is based on the fact that the driving assessment that was obtained by the Corporation indicates that you can drive a vehicle even though with some difficulty, and also on the absence of medical evidence indicating your injury precludes you permanently from driving." The appellant applied for a review of that decision and stated that he also required a self-employment suspensory loan. The respondent advised the appellant that it had previously advised him that he did not meet the criteria for a self-employment suspensory loan and that such loans were then no longer available. Ms Zumbach submitted that no previous decision had been made on the suspensory loan which was included with the application for the purchase of a vehicle and was an integral part of the business proposal because the respondent had said he was not going ahead with it. It was not until the appellant applied for a review in April 1993 that he again raised the question of a suspensory loan. I agree with Ms Zumbach that the respondent was correct in concluding that this approach constituted a fresh request for entitlement as the earlier application had been withdrawn in September 1991. The introduction of the Accident Rehabilitation and Compensation Insurance Act 1992 changed the respondent's position because it makes no provision for the grant of a suspensory loan. Under s.136(1) of the 1992 Act, which came into force on 1 July 1992, a person who has had a claim for cover accepted under the 1982 Act shall have his entitlement to rehabilitation assistance determined under the 1992 Act as if the personal injury by accident suffered by the applicant was personal injury covered by the 1992 Act. I agree with Ms Zumbach that the respondent was therefore correct to consider the appellant's request in terms of the 1992 Act and the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992 of which Regulation 5 provides: "To be entitled to payment for the purchase of and modification to a vehicle the claimant must, by reason of a long term disability, be - 3 (1) Permanently unable to drive; or (b) Unable to travel as a passenger - in a vehicle without modifications to that vehicle." Regulation 6 provides: 6. Approval of purchase of and modification to a vehicle - (1) On receipt of an assessment undertaken pursuant to regulation 4 of these regulations, the Corporation or exempt employer shall give approval in principle for the purchase of and modification to a vehicle as recommended in the assessment, to the extent that the Corporation or exempt employer considers the purchase of and modification to a vehicle is necessary and cost-effective in order for the claimant to achieve independence in daily living. (emphasis mine) Ms Zumbach submitted that the appellant requested assistance for the purchase and/ or modification of the vehicle in order to obtain employment but that there was no evidence on the file that the appellant needed the vehicle to achieve independence in daily living. Prior to the hearing of the appeal Judge Imrie had raised the question that s.26(1) of the 1992 Act prohibits payments in respect of social rehabilitation except as required or permitted by the regulations under the Act. Judge Imrie noted that the regulations define a "vehicle" and that the definition includes a transport service vehicle which is the purpose of the appellant's application. At the hearing the appellant said that he did not want to limit his application to a taxi but merely as a vehicle for his own use. However, I explained to him that I did not have jurisdiction to consider that statement but could only consider his application on the basis on which it was made viz for a taxi business. I explained to the appellant that if his condition deteriorates he may well be able to make a new application for assistance but that on the basis of the application before me the Review Officer was correct. The appeal is dismissed. DATED at WELLINGTON this 22nd day of August 1995 A W Middleton District Court Judge DC161-93.doc(]9)