Churton-Hughes v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 239 199 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 LARA CHURTON-HUGHES DCA 533/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 28th day of July 1999 APPEARANCES: Mr A R V Rowlett advocate for appellant Mr J D Palmer counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cancel the appellant's Home Help entitlement. 2 BACKGROUND On 10 April 1990 the appellant suffered an injury to her back when she slipped from a set of trestles. At the time of this accident she was aged 22. She is now married with two sons, aged 8 and 5, and is employed as a Communications Controller at the New Zealand Fire Service Palmerston North. The appellant has been receiving Home Help assistance for some years and her penultimate assessment for Home Help was carried out in February 1998 where the assessment allowed for her to have 10 hours per week. The period for the allowance of that Home Help was from 9 February 1998 to 4 May 1998. At the same time certain physical rehabilitative goals were provided for her to pursue. It is noted that the appellant lives with her family in Wanganui and travels the 60 kilometres to Palmerston North for her twice weekly 12 hour shifts at N.Z.F.S. On 8 May 1998 the appellant was further assessed for Home Help by Occupational Therapist, Margaret Hawkin. She recommended that the Corporation purchase a trolley for the appellant as the one on trial had proved successful and the appellant was able to transport items with ease about the house and lessen the amount of walking and lifting which exacerbated her back and neck pain. That recommendation was accepted by the Corporation. Ms Hawkin also recommended that the appellant's physical ability and requirements for assistance be assessed by FCE Systems New Zealand Limited. She gave as her reason for this "The appellant's tolerance to driving and to work indicates that she can manage quite a high level of physical activity and then the fact that she has quite so much limitation at home brings into question what her functional level is." The appellant was duly assessed by FCE Systems NZ Limited, FCE being Functional Capacity Evaluation. The report of the FCE stated, inter alia, the following: "Behavioural Profile Symptom exaggeration appears to exist. - There is a non-organic component present. Her movement patterns were inconsistent throughout the FCE. The patient's report of pain and disability was HIGH. The evaluator's observation of impairment and movement dysfunction was LOW. Thus, Mrs Churton-Hughes' pain and disability do not correlate to her impairment and movement patterns. . . . Pain . .. Her general ease of mobility and lack of compensatory movements are strong indicators that her actual pain and disability is significantly less than she reports. . .. Work ability - Now . . . I estimate that she is capable of fulltime of a physical demand capacity of at least "Light". . .. Vocational Planning 4 Her normal patterns of movement suggest that she has a reasonable capacity for all activities, including working on activities at any height. Light work would involve her doing little more than she is currently doing at home. She reports that she stands, walks or sits for 16 hours per day. . .. Treatment There is no indication that home help is necessary. Her injury is no longer in an acute phase and a return to normal function is now indicated." On the basis of that FCE report the respondent advised the appellant on 28 May 1998 that her Home Help entitlement was being terminated. The appellant sought a review of that decision contending that the FCE was a one off measurement of what activity was possible and did not include follow-up to measure the ongoing effects of those activities. A copy of the FCE report had been provided to the appellant's GP, Dr Mcmenamin, and he responded to the points made in that report as follows: "Lara has chronic back and neck disability which fluctuates in severity. Her FCE assessment has stated that 'there is no indication that active physical exercise will harm you' and that 'there is no indication that Home Help is necessary'. I understand these comments are based on her evaluation when she went through a series of tests. The difficulty with such an evaluation is that it assesses a person over a relatively brief timespan and therefore lacks any longitudinal input. This seems to be the situation with Lara's case. Her back and neck disabilities fluctuate and she has variability in symptoms. For example, although she was capable of undertaking the tests at FCE, she returned to Wanganui with a marked exacerbation of pain and in considerable distress as a consequence of undergoing such physical testing. Lara is currently undergoing further assessment from Mr J Van Dalen, an orthopaedic surgeon whose clinical opinion pending MRI investigation is that Lara has discongenic low back pain with nerve root impingement causing intermittent sciatica. Therefore, it seems reasonable to conclude that physical activity will sometimes exacerbate Lara's condition and that she will at times be unable to manage without home help." As was noted in Dr Mcmenamin's report the appellant was also being assessed by Mr van Dalen, Orthopaedic Surgeon, and his report stated, inter alia, as follows: "... When I was involved with the management of her lower back pain six years ago, consideration was made then for a lumbar steroid epidural but when she became pregnant, it was decided against this option. She has since managed relatively well despite ongoing problems with her lower back and intermittent left sciatica, and has been able to hold a job within the workforce during this time. 6 Her current symptoms are chronic lower back pain around the lumbar sacral area referred to the left buttock which can at times go down to around the ankle associated with paraesthesia and numbness to the outer toes and on the sole of the foot. She has not had any history of weakness in the left foot recently, but of interest, she has had to resort to using a right elbow crutch whenever she has significant left sciatica. Just putting weight on the left leg will tend to provoke symptoms. She wakes up in the morning with a dull back ache associated with stiffness and usually takes approximately five minutes for her to move freely. The low back ache tends to persist during the day and to help ease it, she takes Voltaren 50mg twice daily and then Panadol or Digesic during the course of the day. If she has a bad day which is not infrequent she will then take Voltaren 75 mg bd. Round the house, chores such as vacuuming, bed making and mopping the floors tend to aggravate her lower back ache. Putting out the washing tends to provoke symptoms in her neck. She is now working full time as an advertising agent for a magazine company. Up till recently she was having home help, ten hours a week, but I understand this has been terminated by ACC." In light of the ongoing problems, I believe an MRI scan is warranted and I will thus submit an application to ACC for consideration of the cost towards an MRI scan. I would also suggest that home help should be recommended, not necessarily ten hours per week, but at least four hours. I understand that she is now paying for her own home help, as just two weeks of doing home chores aggravated her lower back significantly. This would obviously compromise her being able to continue working within the workforce if the home help could not be continued." These reports were considered by the Review Officer and his decision was as follows: 7 "Where the question is one of eligibility, where physical inability or otherwise is the issue, the Corporation is quite entitled to seek the opinion of an - appropriate health professional. In this case the Occupational Therapist who visited the applicant recommended the provision of a trolley to assist in household chores and also recommend an assessment in regards to the applicant's functional level bearing in mind it appeared she could manage a high level of physical activity. Both applications were accepted by the Corporation help entitlement continuing in the meantime. It was submitted the functional assessment undertaken was not specific to the household tasks which were undertaken. However I find it specific to the applicant's functional capacity. This application is concerned only with whether the Corporation's decision to cancel home help was correct at the time it was made. On the evidence which it then had, I am satisfied that the decision so made was correct. " No further evidence was sought to be adduced for the purposes of this appeal. SUBMISSIONS Mr Rowlett, advocate for the appellant, submitted that the FCE ought only to be an aide to diagnosis and that following the FCE report the appellant's case should have been referred back to the Home Help Assessor for her to make the recommendation as to whether or not Home Help was warranted. He also submitted that the Home Help Assessor would have and ought to have taken account of the views of Dr McMenamin and Mr van Dalen. In essence it was the appellant's submission that the FCE report alone was insufficient to substantiate cancellation under section 73(1) without a further assessment being carried out. Mr Palmer, counsel for the respondent, submitted that the Corporation's procedure under its Social Rehabilitation Home Help provisions involve more than simply an assessment carried out in the claimant's home and in this case the Home Help Assessor herself recommended an FCE to better determine the appellant's true functional level and need for assistance. Counsel submitted that the Corporation had exercised its discretion after taking account of all relevant matters and insofar as the reports of Dr McMenamin and Mr van Dalen are concerned, counsel noted that their comments were very much dependant upon what the appellant told them and it had already been noted by the Home Help Assessor and the FCE Assessor that the appellant appeared to over state her case. Counsel further noted that if fresh evidence becomes available and there is a change in the appellant's physical abilities then she has the right to reapply and at such time the respondent would be required to look at the matter again and apply the criteria set down to determine eligibility. DECISION Section 26A of the Act sets out the meaning and objectives of Social Rehabilitation and provides for the provision of or payment for social rehabilitation at the discretion of the Corporation. In the case of this appellant an experienced assessor had identified an apparent divergence between what appeared to be her level of physical activity as opposed to the limitations she proclaimed she had. It was for this reason that the Home Help Assessor recommended that a Functional Capacity Evaluation (FCE) be undertaken. The Court has seen and examined that FCE report and it is extremely comprehensive and its conclusions must be given respect. That report, under its heading Behavioural Profile, indicates that the appellant's pain and disability do not correlate to her 9 impairment and movement patterns. In other words she overstates her case and the assessor notes that a non organic component may be present. That report would seem to confirm the assessment previously made by the Occupational Therapist and would seem to reinforce that assessor's view that the appellant was not in need of Home Help assistance at that time. In view of the assessment made by the FCE Assessor as to the appellant's behavioural profile, I find that it would have been superfluous for the matter to have been referred back to the Home Help Assessor for further assessment and that in not so doing it cannot be said that the respondent has exercised its discretion on improper grounds. The Court notes the reports of Dr Mcmenamin and Mr van Dalen and it is to be noted that Dr Mcmenamin's report must be wholly reliant on that which was told to her by the appellant and similarly with Mr van Dalen. The FCE report is far more comprehensive and purposive than the general inquiries made by the doctors of the appellant. The FCE report looked beyond what the appellant said she could or could not do or what she said she did or did not experience and addressed the matter objectively and drew its own conclusions from objective tests rather than simply relying on the appellant's statement. The entitlement to Home Help is always there for a person who has cover under the Act and who can establish the need. It is noted that Home Help is always given for a fairly limited period of time before a person is re-assessed. If the appellant contends that her physical condition has changed since the Corporation's decision to cancel then it is quite open to her to reapply and for a further assessment to be made. The decision which the respondent made is not a decision which is forever disentitling of the appellant. In the present case, I find that no fault can be found with the way in which the respondent exercised its discretion to determine that the appellant was no longer in 10 need of Home Help based on the information that it had at the time it made that decision. For this reason therefore, this appeal must be dismissed. DATED at WELLINGTON this 25 day of August 1999 M J Beattie District Court Judge 533-98Churton-Hughes.doc(gm)