Layton v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 5 3 195 HELD AT WELLINGTON 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 LORNA JANET LAYTON 63/ 94 / 0057. Appellant (Appeal No. DCA 33/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent Appeal considered on the papers. DECISION OF JUDGE D A ONGLEY This appeal relates to the purchase of a computer to assist the appellant in writing for the purpose of management studies connected with her employment as a prisons unit manager. The appellant claimed that computer purchase assistance of $5,871.92 given by the Corporation was inadequate. The provision was made under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992. The appellant suffered personal injury of her right wrist by an accident on 5 October 1989 while she was restraining an inmate at Arohata Prison. She was consequently unable to write legibly. Her job description was then changed to that of a unit manager involving mostly administrative work and required a lot of writing. Her first application for assistance in purchasing a computer was dated 13 January 1992. This is an earlier date than the letter of 17 September 1993 to which the Review Officer referred in his decision. She said: '1. As a result of a wrist injury, I have sustained a permanent disability that looks likely to jeopardize my continuing employment as a prison officer. - 2 - 2. With this in mind I have embarked upon an academic programme that will equip me with the skills to continue to be a productive member of the work force. 3. As a result of two previous operations and an impending third operation my ability to write is becoming increasingly limited and this is directly limiting my ability to continue studying. 4. I am currently completing two different qualifications, a Diploma in Business Studies Endorsed Management. This I am doing extramurally through Massey University. Secondly, a National Certificate in Business Studies through the Open Polytechnic in Lower Hutt. Both of these courses require passes in computer papers as core subjects. 5. To date I have successfully completed one paper out of six required for Massey and three out of twelve for Polytechnic. I am also provisionally enrolled in both institutes for this academic year subject to the outcome of this application." Her application was promptly declined on grounds that her injury did not prevent her doing her present job, but it was then discovered that her employer was trying to accommodate her by placing her on special duties and her position was at risk if her condition did not improve. On the file there is a copy of a fax message from the appellant to the rehabilitation officer at Levin enclosing quotes for computer purchase and referring to a discussion at a meeting on 7 July 1993. In that message the appellant said that she was aware that the Corporation could not provide more than $4,000 and she said she would pay the excess which she then believed would be $329. There is no other memorandum of the meeting but the appellant's individual rehabilitation programme was prepared and dated 7 July 1993. It stated "Outcome Goals: To be fully employed in a job sustainable with injury within the Justice Department. Immediate Goals: Surgery to wrist Computer to aid degree course at Massey Home help Driver to get to work Driving assessment" In a letter of 14 September the appellant submitted that the provision of a computer was a vocational rehabilitation issue because it was necessary to keep her in her current position at work. She referred to a report of 30 July 1993 by Gleny's A Denyer, Occupational Therapist. That report stated: "Difficulties associated with Job ... All Unit Managers at the prison are having to upgrade their management skills through further study at tertiary level. Mrs Layton has completed six of the twelve papers of the NCB course at Polytech, and is at the same time studying Business Management at Massey University. She has completed three of these papers and - 3 - aims to achieve six per year to complete her degree in Business Management. She is currently working on two of these papers. She is managing the course by having her paper typed at a computer centre in town. She will be in hospital having the arthrodesis during the next block of vacation studies, so will need to have the lectures and tutorials audio-taped in order for her to complete the assignments. She does not have the means to do this and has requested a dictaphone from ACC to enable her to do this. A dictaphone is probably not as necessary as a simple cassette deck. Equipment Required to overcome her Handicap, and Enable her to Maintain her Current and Future Job at Manawatu Prison Manawatu Prison are currently upgrading to computers in all units using IBM and IBM compatible computers with Windows on Windows software incorporating word processing/spreadsheet/database. This requires the use of a mouse. The human resources contacted previously felt that this would help Mrs Layton overcome her writing difficulty; that is, by using her left arm working with the mouse. While this may seem to be the answer at face value, I am concerned that it may being about a problem of Occupational Overuse Syndrome, and will clarify it towards the end of the report. Mrs Layton needs equipment to overcome her writing handicap to her studies. The writing need only be carried out at home, because her studies are extra-mural. She can overcome the vacation course note-taking by using a tape-recorder. She requires a personal computer (PC) which is IBM compatible. Because of the nature of the studies she will require software which gives her word processing, spreadsheet and database facilities...." The question of Occupational Overuse Syndrome was referred to Dr Geard who considered that it could be limited if she had proper training with worksite modifications. Copied from the invoice of 8 September 1993 provided by the appellant, the equipment which she purchased was: "IBM Brand 33 MHz 486SX Computer with 4Mb Ram 1.44 Mb 3.5" floppy drive 1.2 Mb 5.25" floppy drive 14" Colour Monitor + SVGA Graphics card 120Mb Hard Drive Dos 5.0 Operating System Windows 3.1 Software PS/2 Mouse $3,685.00 Summit SE250 internal tape backup unit $570.00 Hewlett-packard DeskJet 500C colour printer $920.00 Suite Dreams Package: Word Perfect for Windows Quattro Pro for Windows Paradox for Windows $950.00 - 4- Subtotal $6, 125.00 + GST 765.62 Invoice total $6,890.62 Paid (G Layton) 1,018.70 Paid (ACC) 5,871.92" The basis of the assistance to be provided under the Act was set out by the Corporation's District Rehabilitation Advisor in a memorandum of 19 September 1993: "Based on the assessment and information provided by the claimant, the computer system is required for use at home to undertake studies in management. This application needs to be considered under social rehabilitation. As the claimant is experiencing difficulty in writing her assignments for study. Mrs Layton meets the criteria that she is unable to effectively communicate in writing and the supply of the computer at home is necessary in order to assist the claimant to achieve independence in daily living. Under s 26 Social Rehabilitation 4(f) provision of, or payment for Wheelchairs and any other aids and appliances likely to assist independence in daily living. Includes the computer. 26(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. Therefore the computer system can only be considered under the restrictions within the Aids and Appliances Regulations; Up to $4,000 including peripherals. But in addition the claimant could obtain the balance in computer costs from "other" $5,000 allocation, at the discretion of the Corporation Recommendation Computer system approved under social rehabilitation $4,000 and remainder from $5,000 other. The costs approved are to be based on the assessment and quote obtained from the second supplier. The Corporation is able to obtain a second opinion, if it is warranted and I would consider this to be the situation in this case." That was the basis on which the Corporation provided assistance. An important factor in the decision to provide assistance under the category of social rehabilitation is that the purpose of the provision was to compensate for the claimant's writing handicap but not for the purpose of vocational re-training. I find that the decision expressed in that memorandum was wrong in law. Section 26(4) and (7) read together do indeed restrict the category under which the Corporation may make provision for aids and appliances: "(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 (c) Modifications to residential premises; and (d) Provision of, or payment for, household help; and (e) Provision of, or payment for, child care; and - 5. () Provision of. or payment for, wheelchairs and any other aids and appliances likely to assist independence in daily living; . .. (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." The interpretation adopted by the Corporation's officer is one that is available on a literal wording of the subsections (4)(f) and (7) but leads to a possibly unfair result when the aid or appliance has a multiple purpose of assisting independence in daily living and providing vocational assistance as well. A computer is a multi-purpose instrument which can be "likely to assist independence in daily living" for a person who is unable to write or communicate easily. The same instrument is capable of sophisticated functions which might in the modern world be essential vocational requirements for some occupational groups. It would be not be consonant with the purposes of the Act for such a instrument or "aid" or "appliance" to be excluded from provision by the Corporation to a claimant as vocational rehabilitation just because it is also likely to assist independence in daily living. "Rehabilitation" is defined in the Act to mean a process of active change by which a person who has suffered personal injury regains or acquires and uses the skills necessary for optimal physical, mental, vocational, and social function; thus it includes acquisition of skills for vocational function. Section 18 provides: "18. Right to rehabilitation - Every person who has suffered personal injury for which the person has cover under this Act is responsible for his or her own rehabilitation to the extent possible having regard to the person's condition and is entitled to the extent provided by this Act to rehabilitation necessary to enable the person to lead as normal a life as possible, having regard to the consequences of his or her personal injury Section 22 provides: "22. Right to vocational rehabilitation - (1) Vocational rehabilitation shall be available to - (a) Those persons who are entitled to compensation for loss of earnings under sections 38, 39, and 44 of this Act: (b) Those persons who are entitled to compensation under section 45 or section 46 of this Act: (c) those persons who are likely, without rehabilitation, to be entitled to compensation for loss of potential earning capacity under section 46 of this Act upon the attainment of 18 years. (2) the objective of vocational rehabilitation is - (a) To restore the person, to the extent practicable, to his or her former capacity for work in the occupation engaged in prior to the commencement of incapacity or a similar occupation; or (b) In any other case, to enable the person to have a capacity for work. - 6 - (3) The Corporation shall not make any provision or payment in respect of vocational rehabilitation unless it is satisfied that the provision or payment is necessary to enable the person to obtain or maintain employment, and is expected to be cost-effective for the Corporation. (4) The conditions under which vocational rehabilitation can be provided or paid for and the maximum amounts which may be spent on vocational rehabilitation may be prescribed in regulations made under this Act. No regulations have been promulgated, but they are not required for the effective operation of s 22 because, unlike s 26 relating to social rehabilitation, s 22 is not limited to provision specified in regulations. It is limited by the necessity and cost effectiveness tests in subsection (3) In order to assess whether the Corporation's contribution should have provided equipment suitable to meet the needs of social rehabilitation, the Review Officer adjourned the hearing to obtain a qualified opinion from a Mr Ellis, an independent computer dealer. Mr Ellis' opinion suggested that the IBM computer appeared to be expensive and that the average amount for a genuine IBM PS/1 486 SX-25 computer system would be $2,800 + GST, the specifications being better than those listed by Massey University. Mr Ellis said that the other components purchased by the appellant were quoted at average prices. He said the reason for the tape backup unit is to enable an easy recovery of the information and programs kept on the hard disc of the computer and that it would be a long and laborious process to backup the hard disc to floppy discs. The appellant's submissions on appeal raised a question whether the parties were given an opportunity to be heard in respect of the views expressed by Mr Ellis. There is some basis for that submission, but the material has now been fully canvassed on this appeal and if there has been any deficiency in the review process that can now be remedied. In his decision, the Review Officer said he approached the matter on the basis that the appellant required the computer because acquiring a management qualification was necessary for her to retain her job. He referred to the submissions made for the appellant which covered particularly the lack of proper explanation by the Corporation of the provisions under which assistance was available, and also covered the reasons for the equipment specification which the appellant said was needed for effective rehabilitation. He referred to the principle which the Appeal Authority stated in the case of Down that caution should be exercised before interfering with the Corporation's decision in the specialised field of accident rehabilitation. He said that he was satisfied that the Corporation correctly regarded the claim as a social rehabilitation claim (as distinct from vocational rehabilitation). I interpolate here that if acquiring a management qualification was necessary for the appellant to retain her job it does not necessarily follow that the Corporation has a responsibility. If the job was an improvement on her previous designation and terms of employment then it was a process of advancement in the prison service from which she may have benefited quite independently of the unfortunate consequences of her injury. The need for a computer for course requirement would have arisen even if she did not have a disability. That is a factor which seems not to have been fully explored either by the Corporation or on the review. - 7- The Review Officer referred to criticism by the appellant of Mr Ellis' opinion because prices had fallen between the time when the appellant had made her purchase in August 1993 and the time when Mr Ellis gave his opinion. Mr Ellis had apparently adhered to his opinion as a professional view of the fair and reasonable price at the time of purchase. On the basis of that evidence the Review Officer considered that the Corporation's decision was reasonable. In support of the appeal, the appellant provided evidence that the computer that Mr Ellis had used as a price guide had not come on the market until a week after the appellant had purchased her computer. The Corporation in turn furnished some advertising material to support its contention that equipment was available in August 1993 at lower prices than that paid by the appellant and the appellant then made some written submissions on the evidence about specification and price of the computer equipment and software. The quality of the computer equipment was reflected in its cost and it is clear enough that adequate equipment and software could have been obtained at less cost if the only consideration was the appellant's writing disability. Apart from the general attributes of computing speed and data storage capacity, two specific matters relevant to cost are these: 1. The tape backup unit enables a convenient backup of everything on the computer's hard disk including the computer operating programmes and applications. It provides a complete back up rather than a partial backup of individual files. The alternative is that the appellant could back up the individual files on which she has worked on a floppy disk, which would not be difficult but it would be less convenient. In the event of a breakdown the computer programmes and applications could be re-installed from the disks on which they were originally supplied, an operation which would probably require some expert assistance. The possibility that delays could result in failing an assignment is no more than a suggestion. It would be unduly harsh for a supervisor to refuse an extension of time in such circumstances. It is very doubtful whether the need for a tape backup unit has been established if the computer is being regarded as an aid or appliance for writing. 2. The two floppy disk drives are for the purpose of flexibility in loading university data or programmes that are furnished on either 3.5" or 5.25" disks. That is not an aspect of an aid or appliance for writing but rather the provision of sophisticated equipment for computer aided course studies. If it is a necessary part of the course then the appellant would have had to provide the equipment even if she had not suffered personal injury by accident. Further full written submissions accompanied this appeal. The appellant repeated the point she had earlier made that employees of the Corporation had told her that the claim would be considered as vocational rehabilitation. That is a central issue that has caused difficulty with this case from the beginning. As I see it, the Corporation decided that the appellant was not entitled to vocational rehabilitation; by implication that must have been because she did not qualify under s 22 of the Act, possibly because under s 22(3) the Corporation was not satisfied that provision of computer equipment was necessary to enable her to obtain or maintain employment, and is expected to be cost-effective for the Corporation. - 8- I agree with the Review Officer's finding that the Corporation's decision under the Aids and Appliances regulations was reasonable. The equipment which was subsidised more than compensated for the appellant's writing disability and has also provided a degree of vocational assistance. For that reason the cost issue has been rather a red herring. But I am not satisfied that the Corporation has ever adequately explained to the appellant that it could only provide vocational assistance under a rehabilitation programme addressing the criteria under ss 22 and 23 of the Act. The appellant has not been given an opportunity to address those matters and the Corporation's determination that the claim must be dealt with only as social rehabilitation was in my view based on wrong reasoning and did not consider the appellant's circumstances. The appeal is therefore allowed but it does not follow that the appellant will obtain further assistance. The decision of the Corporation is confirmed to the extent that the assistance provided to the appellant was sufficient for the purpose of social rehabilitation to enable her to write legibly. If requested to do so the Corporation will still have to consider whether the appellant should have further assistance by way of vocational rehabilitation DATED at WELLINGTON this day of May 1995 D A Ongley District Court Judge - --