Chamberlain v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 331 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KELVIN JOHN CHAMBERLAIN of Mataura Appellant (Appeal No. AT15/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 4th day of November 1999 APPEARANCES/COUNSEL I S Alsweiler - advocate for appellant A H Cecil-Gibson for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct in its decision of 22 May 1997 to reduce the appellant's attendant care grant from $910 per week to $770 per week. The background to the appeal is that the appellant suffered severe head injuries in a motor vehicle accident on 6 August 1995. During his period in hospital he underwent a rehabilitation programme and when he was discharged from hospital lived for a while with his then fiancee. Since then he has returned to his parents' home in Mataura where his parents have provided attendant care. The appellant was originally assessed for a grant of attendant care by Ms J Hazlett, a consultant occupational therapist, and that assessment noted that the appellant needed constant supervision and care for 12 hours per day while he was awake and 2 an allowance of one hour of supervision every night. This made a total of 91 hours per week at a rate of $10 per hour. As the appellant's ability to take part in a number of activities improved, some of his supervision was undertaken by persons other than his parents. He was able to work for one hour per week in a local butchery and a group was formed to provide some social interaction for him. The intention was to have him involved in activities outside the home such as with the rugby club or going to a hotel. A retired teacher also assisted with some speech therapy homework. In March 1997, a case conference was convened where it became evident that the appellant was making considerable progress in most areas of his rehabilitation. It was then planned to make a reassessment of his grant of attendant care. In order to assist with the assessment Ms Hazlett arranged for the appellant's parents to keep a daily log of his activities and the need for their involvement with him. On 15 May 1997, Ms Hazlett submitted an attendant care reassessment report which set out the nature and type of attendant care which he needed at that time. In that report Ms Hazlett noted: 'It is extremely difficult to determine the hours of assistance required when family members provide the attendant care programme. It is however generally felt by the team and myself that Kelvin should not require the same entitlement as when first discharged from hospital as his needs have changed. There is no question that Kelvin continues to require a great deal of supervision with all ADL's, that he lacks the initiation of functional tasks, is highly distractable and lacks the ability to focus attention to a specific task without frequent redirection. Additionally it is acknowledged that Kelvin has no sense of danger and is very vulnerable and at a risk of becoming unsafe." Included in Ms Hazlett's report was the statement "as attached Dorothy has completed a full outline of Kelvin's day." Because of Ms Hazlett's opinion that the appellant's abilities were improving, the decision was made to provide 10 hours per day every day at a rate of $11 per hour, thereby reducing the total of attendant care from $910 to $770 per week. The appellant applied for a review of that decision. The review took place on 18 May 1999 at which the appellant's parents arranged for the production of a reassessment made by Ms F Morgan, an occupational therapist, and by Ms B Stevens and Ms I Manning, an occupational therapist and a registered nurse. Those reports made various suggestions which might assist in reducing the responsibility of the caregiver while Ms Morgan's report of September 1998 proposed 24 hour care which she considered was unlikely to need reduction in the future. The review officer concluded that as Ms Hazlett had been involved with the appellant over a long period and was well aware of his needs the review officer preferred her opinion to that of the other assessors and declined the application for review. It is against that decision which the appellant now appeals. Mr Alsweiler submitted that the appellant's parents had kept a log of his daily activities and their involvement with him. He submitted that the log demonstrated a need for constant care to be provided during the time the appellant was out of bed. 3 He submitted that the hours calculated for the payment of the grant were not correct when one considered the log compiled by the parents. Ms Cecil-Gibson submitted that regard should be had to the statement by His Honour Judge Beattie in Foulds v ARCIC (160/98) in which he said: "In practical terms the appellant in this case would be required to persuade the Court that the assessor had in some way misdirected herself on the relevant legal considerations required to be observed under the Attendant Care Regulations or that she had overlooked or failed to take heed of matters which she was statutorily required so to do. This court will not simply substitute its opinion or exercise its discretion in the place of that of the person professionally skilled and primarily required to carry out the task." The respondent must rely on assessments made by duly qualified assessors. In this case, Ms Hazlett has been involved with the appellant since the return to his parents care and has watched his progress from that time. She has made the suggestions towards his rehabilitation which have obviously demonstrated improvements in his ability to leave the home and become involved in some outside activities with the assistance of friends. The reports emphasise good steady progress with some relief for the parents. Before the reassessment was made Ms Hazlett arranged for the parents to keep a log of the appellant's daily activities and their involvement in completing her reassessment. Ms Hazlett attached to her report a copy of the daily record compiled by the appellant's mother. I cannot then accept Mr Alsweiler's submission that the report did not properly take into account the parents daily involvement. I consider that the subsequent assessments submitted to the review officer were made by people who had not had nearly the same involvement as Ms Hazlett and I consider that the review officer was correct to prefer her assessment to that of the other assessors. The appeal is therefore dismissed. DATED at WELLINGTON this 16 th day of November 1999 pwand dubin A W Middleton District Court Judge Dca 15/99.doc(rd)