Williams v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 121/95 HELD AT TAURANGA 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 57 94 / 3124. BETWEEN KENNETH LAN WILLIAMS Appellant (Appeal No. DCA 13/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the Ist day of August 1995 APPEARANCES Mr M J Sharp for appellant Mr A E Howman for respondent DECISION OF JUDGE D A ONGLEY This case involves a question relating to assistance by the Corporation for farm vehicles under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992. I have decided that there is no regulatory provision under the Accident Rehabilitation and Compensation Insurance Act 1992 for assistance to purchase farm vehicles. The appellant suffered a serious chain saw injury to his arm while tree cutting on 1 October 1993. He and his wife farmed an extensive dairy and kiwifruit operation south of Katikati, employing one full-time general farm hand. The appellant worked full time and his wife carried out separate duties working 30-40 hours per - 2 - week. The appellant used ten different motor vehicles in the course of his employment. To enable him to be independent he first applied for assistance to modify a Datsun 1500 Utility to provide power steering and automatic transmission. That would not have been cost-effective and instead the Corporation granted up to $15,000 for purchase of a suitable vehicle. The grant was made on 23 December 1993 and was taken up in full in February 1994. The appellant then applied for assistance to modify an Iseki 4510 horticultural tractor. The tractor was used, for mowing and for spraying kiwifruit vines, an operation requiring the driver to control precise steering and manoeuvring while at the same time operating the power take off and spray controls. Modifications would have cost $4,000 but was not recommended by the Corporation's adviser on grounds that they were not practical or economic. It was suggested that replacement be considered. Application was made then for $60,000 assistance in providing a replacement for the Iseki Tractor and also a Bedford truck to enable the appellant to carry out farm work.. The application was declined and the appellant applied for review of the Corporation's decision. In justification of the cost-effectiveness of the claimed expenditure, the appellant submitted the Corporation that he would be able to save gross annual costs of $23,000 assessed as follows: Tractor Spraying - 20 canopy hectares x 9 @ $50 per ha 9, 000.00 Mowing - 400 man hours @ $12.00 per hour 4,800.00 13,800.00 Truck Cartage & spreading of fertiliser - 55 tonne @ $38.00 per tonne 2, 090.00 Cartage of kiwifruit bins - 1400 @ $5.00 7,000.00 Sundry other work 1,000.00 10,090.00 23,890.00 The appellants compensation is calculated at $258.43 per week based on his share of partnership profits for the farming year ended 30 June 1993. Income was abnormally low for that year because of non-recurring expenditure involved in the purchase of a new orchard and extraordinary payment for kiwifruit packaging. The accounts were also affected by a delay in Kiwifruit Marketing Board payments. The annual income was less than half the previous year. The review decision was delivered on 16 January 1995. At the review hearing the appellant-reviewed his estimates of cost and said a suitable truck could be purchased for about $12,500 and a second hand tractor for about $22,000 after allowance for trade in. He regarded the tractor as the main need. The Review Officer commented that it seemed the question of need was not an issue as far as the Corporation was concerned, it was more a question of cost effectiveness. - 3 - The Review Officer stated that the appellant's earnings related compensation could not exceed about $13,400 per annum and that it was very likely to be reduced by his earning farm income attributable to at least the limited work that he could perform with his injured arm and hand. Assessment of his income for the current year would not be available until after June 1995 and the Review Officer made a working assumption that his weekly compensation might then be calculated at $8,000 per annum or less. He decided that payment of $60,000 could not be cost effective but he considered that there may be some figure that the Corporation could consider to be cost effective. The Corporation's decision to decline payment of $60,000 was therefore confirmed. At this stage of his recovery the appellant has reduced strength and range of movement in his left hand and wrist with severely reduced sensation. It is not disputed that he cannot operate the tractor and that he needs the two vehicles. There is a legislative difficulty in dealing with an application for assistance for any off road vehicle. The reason is that under r 2 of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992 "vehicle" is defined as a motorcar, a motorcyle or a moped. In addition, r 7(4) provides that the Corporation shall not approve purchase of and modification of a vehicle principally designed for use for any motor sport or for use off a road. The definition in the regulations is a more restrictive one than in s 2 of the 1992 Act which states that "motor vehicle" has the same meaning as in section 2 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986. That definition encompasses a vehicle drawn or propelled by mechanical power but excluding certain mechanical appliances, none of which are relevant here. The limiting effect of the Purchase and Modification of Vehicles Regulations is brought about by s 26 of the Accident Rehabilitation and Compensation Insurance Act 1992, set out here for reference: 26. Social rehabilitation - (1) In order to ensure - (a) Consistency of provision of social rehabilitation; and (b) Certainty of entitlement to social rehabilitation - no provision of, or payment in respect of, social rehabilitation shall be made by the Corporation in respect of any person except as required or permitted by regulations made under this Act. (2) The objective of social rehabilitation is to restore the independence of the person that has been lost by personal injury covered by this Act (3) Any regulations referred to in subsection (1) of this section shall apply in respect of all persons, conditions, or items that are of the same class or category. (4) In this Act, "social rehabilitation" includes, but is not limited to, - (a) Provision of, or payment for, attendant care; and (b) Purchase of, and modifications to, motor vehicles and other means of transport; and . ........ - 4- (5) The Corporation may provide or meet the cost of modifications to residential premises or purchase of or modifications to motor vehicles in respect of any rehabilitation programme at intervals of- (a) Not more frequently than 5 years; or (b) Less then 5 years only if the Corporation is satisfied that such purchase or modifications are necessary to enable the disabled person to obtain or maintain employment, and are expected to be cost-effective for the Corporation. (6) Nothing in subsection (5) of this section shall be so construed as to oblige the Corporation to provide or meet the cost of any purchase or modifications within or outside any 5-year period. (7) No payment in respect of any item referred to in subsection (4) of this section may be made by the Corporation other than under this section. By subs (4) and (7) any payment for the purchase or modification of motor vehicles may not be made other than under s 26, and by subs (1) and (4) no payments can be made except as permitted by regulations. There are no applicable regulations other than the Purchase and Modification of Vehicles Regulations 1992. Thus the limiting definition in the regulations prevents any claim for vehicles like a truck or a tractor. The regulations go further and exclude a transport service vehicle or any off road vehicle or motor sport vehicle, the latter in r 7(4). This claim for provision to purchase a motor vehicle to assist in a business falls more naturally within the framework of vocational rehabilitation under s 22 of the Act. That is the source of the cost-effectiveness argument that was dealt with by the Review Officer and argued also on appeal. The Corporation's officers appear to have acted without being aware that no motor vehicle payments can be made by way of vocational rehabilitation. The intention of the Act may have been to include all motor vehicles, not just "motorcars", within the scope of social rehabilitation. If so, it has not been carried into effect by the regulations. In this Court there is no remedy even if the regulations are capable of review in another jurisdiction, which is doubtful. This question was raised during the hearing of the appeal, rather as an afterthought. It was raised specifically with reference to r 7(4) but it was thought that the truck might still qualify under the regulations because it is not an off road vehicle. But of course on referring to r 2 it is apparent that the regulations cannot be applied to either vehicle. I then gave counsel the opportunity of making further submissions. The appellant then accepted that the claim could not be brought under the aforesaid regulations but submitted that it could be considered under the Aids and Appliances Regulations 1992 which are one of the sets of regulations providing for social rehabilitation under s 26 of the Act. An "aid or appliance" is "a manufactured item for use in New Zealand likely to assist a person with a disability to achieve independence in daily living". It was submitted that it must have been intended by s 26 to provide for all kinds of motor vehicles within the broad definition contained in the Act, as opposed to the narrower definition in the regulations, so that it is reasonable to look for the source of the provision in other regulations issued under s 26. The concept of "independence in daily living" includes independence in the claimant's daily work, enabling him to dispense with hiring people to carry out the tasks of spraying vines and carting kiwifruit at harvest time as he did before his disability. - 5- The respondent submitted that the social rehabilitation purpose of restoring the appellant's independence in daily living does not overlap with vocational rehabilitation which has the purpose of restoring a claimant to his or her former capacity for work. That is clearly expressed by s 26(7). Mr Howman submitted that the Aids and Appliances Regulations refer to small appliances such as reading devices, walking frames, guide dog kennels, tape recorder equipment and voice communication devices. I accept Mr Howman's submission that applying an eiusdem generis process of interpretation indicated by the categories in the schedules to those regulations there is no room to stretch the concept of achieving independence in daily living to include vocational rehabilitation. The Act sets out to demarcate two kinds of rehabilitation which it describes in terms of social and vocational rehabilitation. There is some general scope to merge the reasons for and objectives of those two kinds of rehabilitation but the Act evinces a clear intention to prescribe different remedies for vocational and social needs with different tests to ascertain whether a claimant qualifies. There may well be claims that could fall under either provision but I do not think that this is one. Independence in daily living is evidently intended to be restricted to essential personal functions such as mobility, self-care, communication and sensory function reflected by the kinds aids and appliances listed in the first schedule. The second schedule contains an extensive but not exclusive list of items that the Corporation is not permitted to provide. That list includes power tools, calculators, chairs not specifically designed for disabled persons, desks, books and laboratory equipment - to mention just a few examples. There is a general exclusion for "other equipment or furniture not specifically designed for use by people with disabilities. It would be hard to find a logical basis to exclude all those items but to permit payments for purchase of motor vehicles. For those reasons the appeal is dismissed. DATED at WELLINGTON this 6 th day of October 1995 D A Ongley District Court Judge