Schischka v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. [2011] NZACC 37 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN MICHAEL SCHISCHKA (Al 228/09) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 10 November 2010 APPEARANCES Mr P Schmidt, Counsel for Appellant. Mr D Tui, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 15 September 2008, whereby it declined to provide financial assistance towards the modification of a motor home. The grounds for such declinati decision, were that under the Housing Modification provisions of the Act, a motor vehicle did not meet the definition of a home, and under the Transport for Independence provisions, it did not meet the definition of a motor vehicle for modification, as it was not intended as the primary means of transport. [2] The background facts relevant to the issue in this appeal may be stated as follows: The appellant is now aged 49 years, is married and lives with his wife at Whangaparaoa, north of Auckland. 2 . In 1987 the appellant suffered severe injuries in a fall from a balcony and those injuries have caused Tetraplegia. The appellant has some independent body movement, but suffers from paralysis in major parts of his body and legs. The appellant is currently in receipt of a number of key aspects of social rehabilitation, and in the recent past has had ACC assistance with modifications to the family home and with a motor vehicle, the latter being so modified as to enable the appellant to independently drive. In mid-2008, the appellant made an application to the respondent for assistance with the cost of modifying a large truck which had been purchased with the intention of modifying it to become a motor home. Consequent upon that application, the respondent commissioned a motor home configuration assessment and such assessment was carried out by Sarah Fisher, Occupational Therapist of Ergowise Ltd. Ms Fisher provided a report dated 9 July 2008, identifying the nature of the modifications that would be required to transform that vehicle into a motor home suitable for the appellant. Whilst that report was received, it would seem to be the case that the respondent's decision of 15 September 2 determined the matter from the applicability of the relevant statutory provisions, rather than any issues relating to the nature or extent of the modifications sought. The appellant sought a review of that decision, and a review hearing took place on 6 April 2009, at which there was no appearance on behalf of the appellant. In her decision dated 7 May 2009, the Reviewer, Ms S Gay, considered the appellant's application from the statutory standpoint, and determined that modification of a motor vehicle for a motor home did not come within the statutory provisions of 3 the Act pertaining to the respondent's duties to provide key aspects of social rehabilitation. She therefore confirmed the respondent's decision to decline to contribute to the costs of such modification, as had been sought. An appeal was lodged to this Court from that decision, and it is the case that by the time the appeal was in train, the factual situation had changed somewhat, in that the truck which had been the original vehicle sought to be modified had been sold and replaced with a more purpose-built motor home, described as an LDV, and it is that vehicle which the appellant now seeks to have the respondent contribute to the modifications required for his particular needs. [3] In May 2010, the appellant obtained an assessment report pertaining to the LDV motor home which had been purchased, and that report has been introduced in evidence for the purposes of this appeal. [4] The report identifies the limitations of function which the appellant has, and it is to be noted that the appellant, as a general rule, is wheelchair-bound. [5] Some of the main points noted by the occupational therapist in her report were as follows: Mobility & Movement: Michael has full head and neck movement with good muscle strength. Michael is independent in transferring, using a transfer board, but requires standby assistance, however Michael is experiencing bilateral shoulder pain and weakness. Michael has paralysis of his body and legs. Michael has full movement of his left arm and hand but reduced strength and reduced movement and strength of right arm and hand. Michael reports that he has sensation over his body and lower limbs but that this sensation is altered and presents like the feeling of numbness. Michael is able to independently drive a modified vehicle from his wheelchair and has recently been provided with a Caravelle van. Michael is not independently mobile in bed and requires his wife Cheryl to assist him to turn. Michael experiences ongoing issues of wound oozing around the site of his suprapubic catheter site which requires daily attention and dressings. Personal Care: Michael requires assistance to complete his personal cares, washing and dressing. Michael requires complete assistance to complete and manage domestic activities, household cleaning, washing of clothes and kitchen duties and meal preparations. [6] The final part of the report refers to the modifications that the motor home requires, and in the main these consist of the following: Cassette hoist/repositioning of rear door: Fitting of a cassette hoist under the floor of the vehicle, (levelling internal floor), and repositioning the door to the rear of the vehicle will allow Michael to access the vehicle independently. Wet area shower/toilet: Utilising the area at the rear of the vehicle to accommodate a wet area shower with toilet that can be accessed using a shower commode. Storage space for off road chair: Utilising space at rear of vehicle to accommodate ACC funded off road 4 x 4 wheel chair, which can be stored onto the vehicle by way of the cassette hoist . Pressure relieving bed and mattress: Due to his reduced movement and altered sensation Michael needs to sleep on an appropriate pressure relieving mattress to promote skin integrity and comfort. Kitchen: As this is to be a holiday home Michael would like to be able to assist Cheryl in the kitchen and be able to make himself a light snack there for the motor home requires a kitchen area which Michael can access from his manual wheelchair with low bench tops. 5 Driver's seat: Michael would like to be able to drive the vehicle and therefore would like the driver's seat to be a seat that he could transfer into, and also turn so that it can be used as a seat for him in the living area of the motor home. [7] Finally, the occupational therapist considers the background to the present claim from a need perspective, and that situation has been the basis for Mr Schmidt's submissions in this appeal. The reason stated was as follows: Accessing and locating motels with appropriate facilities to meet Michael's needs is difficult. Accessing motel sites via the web page does not identify if a motel has the necessary facilities. Loading up the motels home page also will not provide Michael with the information he requires to know, so he has to resort to calling the motels individually to discover the facilities they have. However, even this does not guarantee that the motel will be suitable. Michael reports calling a hotel in Rotorua and being informed that it was wheel chair accessible but on arriving at the facility discovered it had 10 concrete steps at the main door and no ramp access entrance for Michael to access the hotel he needed to go through the kitchen which is not a suitable or safe option. [8] In his submissions in support of the appellant's claim, Mr Schmidt submitted that the statutory provisions applicable were Clauses 21 and 22 of Schedule 1 to the Act, and he submitted that the wording of Clause 21(1)(g) indicated that assistance with modification costs is not limited to one vehicle. Counsel further submitted that the appellant suffers from life-long serious injuries and as such, circumstances such as his can give rise to more extensive need for support and assistance. [9] Counsel submitted that the appellant was simply seeking the freedom to travel to other locations around the country on holiday, something he was able to do and did enjoy prior to suffering his injuries. 10] Counsel referred to the situation that the cost of the proposed modifications would be a one-off cost and which would satisfy the appellant's wider transport needs for the remainder of his life. [11] Finally, Counsel submitted that the appellant was only seeking a fair contribution to the modification costs, and was not seeking that the respondent contribute to the purchase cost. He submitted that a contribution of 50% towards the costs of modification would be fair, as that would then, in effect, mean that the appellant, having already spent $45,000 on the purchase of the vehicle, and with the likely modifications involving a cost of between $40,000 and $50,000, and 6 with the respondent meeting 50% of those costs, it would mean that the appellant had, in effect, met 75% of the total costs of the completed vehicle. [12] Mr Tui, Counsel for the Respondent, submitted that the starting point must be that the respondent is only able to provide entitlements in accordance with the provisions of the Act, and he referred to the provisions of the Act pertaining to entitlements to social rehabilitation. He submitted that the claim could not come within the modification to the home provisions, as the motor vehicle did not come within the definition of 'home', and that in any event, the appellant already has a home duly modified for his requirements. [13] Counsel submitted that the claim does not come within the requirements for assistance for Transport for Independence, as defined in Clause 12 of Schedule 1, and he submitted that the purpose of the holiday motor home was not transport related. Its primary purpose was in respect of holidays. Counsel therefore submitted that the appellant's claim does not fit within either of those two key aspects of social rehabilitation, and therefore there is no statutory basis which would allow for funding of the modifications which are sought. DECISION [14] This is an appeal from the respondent's decision determining that the particular financial assistance which the appellant sought did not come within the relevant statutory provisions which allowed for such financial assistance. It is not a case where the respondent has made a decision granting some limited contribution and the issue is whether that contribution is fair and reasonable in the circumstances, but rather it is whether the particular type of assistance sought, is one which can be had. [15] In those circumstances this is not a case where the Court can consider the matter from the perspective of whether or not the respondent has fairly and reasonably exercised its discretionary powers, as that situation would only arise if, as a matter of law, the respondent can be determined as being obliged to provide a contribution to the costs being sought. [16] Although the appellant's initial claim may have started off seeking to include the wider perspective of home modifications, as an alternative to assistance to Transport for Independence, that aspect has not been asserted by Mr Schmidt in 7 the appeal, and I therefore propose not to spend further time considering that issue, save to say that the appellant's present claim could not come within the social rehabilitation provisions relating to home modifications. [17] Mr Schmidt has submitted that the appellant's claim does come within the provisions of the Transport for Independence provisions of the Act, being identified in Section 81 as being one of the key aspects of social rehabilitation, for which the Corporation is liable to provide. [18] Clause 12 of Schedule 1 sets out the definition of Transport for Independence and that definition states as follows: Transport for independence - (a) means assistance with the cost of, for example, - (i) escorted travel by vehicle; ii) modifying a vehicle; (ifi) purchasing a vehicle; (iv) travelling by public transport; (v) travelling by taxi. [19] As noted, Transport for Independence includes assistance with the cost of modifying a motor vehicle, but that provision relating to modification must be considered in relation to the matters to which the Corporation must have regard, as contained in Clause 21 of Schedule 1. Particularly relevant is Clause 21(1)(c) which states as follows: 21 Transport for independence (1) In deciding whether to provide or contribute to the cost of transport for independence, the Corporation must have regard to - . .. ( c ) the difficulties faced by the claimant in doing the following in relation to the transport used by the claimant before his or her personal injury, without the transport for independence service for which he or she has lodged a claim: (1) driving or operating the vehicle; (ii) gaining access to the vehicle; (iii) enjoying freedom and safety of movement in the vehicle: 8 [20] I find it is clear from that statutory provisions that assistance with transport for independence by way of modification of a motor vehicle is wholly associated with the providing of assistance to a claimant to enable that claimant to drive or be driven or to travel as a passenger in a vehicle, being something that the claimant could not do without modification to a vehicle for the purpose. [21] The whole of the statutory framework pertaining to Transport for Independence, relates to providing a claimant with a means of transport which the claimant would not otherwise have without assistance. Thus it is assistance with transport, that is, getting from a to b, and as much as possible enabling the claimant to have the ability to access transport as near as possible as was that person's needs and usage prior to suffering injury. (22] It is of course the case that the appellant has already received assistance with the modification of a motor vehicle to allow him to have the freedom that the provisions of Transport for Independence contemplate, and I find it is the case that the modifications to the motor home, for which a Corporation contribution is sought, are modifications wholly unrelated to the statutory criteria applicable to provide for Transport for Independence. [23] It is the factual situation that the modifications are sought to provide for what is described as a holiday motor home, that will enable the appellant and his wife to travel on holiday and stay in their own motor home whilst on holiday rather than have to search out suitable holiday accommodation which would cater to the appellant's particular needs. [24] I find that the notion that providing for holidays in this fashion can somehow come within Transport for Independence, is seeking to stretch statutory entitlements beyond any interpretation that could be drawn from the relevant statutory provisions. [25] In basic terms, the appellant is seeking a contribution from the respondent towards the funding of a holiday motor home, and whilst the modification of that motor home to cater for his specific requirements is no doubt something that would be pleasurable for the appellant, I find that it cannot come within any aspect of the statutory provisions permitting contribution or assistance from the Corporation. [26] Allied to the finding I have made, is the fact that the appellant does have a suitably modified motor vehicle that satisfies the requirements for his Transport 9 for Independence, and that motor vehicle does satisfy all the appellant's requirements in that regard and it is simply that the statutory provisions do not allow for a contribution to the modification of a motor home intended for holiday use, and where the emphasis is on the 'living in' but not 'the travel in' the proposed modified vehicle. [27] For the foregoing reasons, therefore, I find that the respondent was correct to decline to contribute to the funding of modifications for the appellant's motor home. This appeal is therefore dismissed. DATED this 7 day of February 2011 M J Beattie District Court Judge