Wikaira v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 124 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MONA WIKAIRA of Kihikihi Appellant (Appeal No. DCA 375/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from the appellant and from Ms G S Hancock, counsel for the respondent with the request that I issue a decision on the papers The issue on appeal is whether the respondent was correct to decline the appellant's request for the purchase of a wheelchair. The file discloses that the appellant, who is now aged 88, fractured her wrist on 28 October 1994 when she was in hospital for treatment for osteoarthritis in her hips and knees. At that time she could only walk with the assistance of crutches. The appellant lodged a claim for cover with the respondent which was accepted and the appellant received attendant care and home help. On 3 August 1995 Ms J Williams, a Community Physiotherapist requested the respondent to assess the appellant for the purchase of a walking frame. This was approved by the respondent and the frame was purchased in August 1995. On 10 October 1995 the Community Occupational Therapist wrote to the respondent and stated: "I believe Mrs Wikaira's medical history is well known to you. Since her fall while in Queen Elizabeth Hospital, her mobility has deteriorated and she is now 2 dependent on a walking frame with gutter arm supports for mobility. This has caused a problem negotiating the step into her flat. The existing entrance needs recontouring to eliminate this step in order that Mrs Wikaira can access her home with safety." The respondent approved a modification on 27 February 1996. The appellant wrote to the respondent requesting assistance with a purchase of a light wheelchair. A letter from the appellant's General Practitioner, Dr R J Le Quesne wrote to the respondent in support of the appellant's application. In that letter he said: "Mrs Wikaira has had a permanent deformity and weakness of her wrist due to her fracture. She is not able to put any pressure on that wrist to use her walker out of doors. She has had extensive physiotherapy and has reached the limits of what can be expected. Her condition is directly related to her accident. She has also long standing osteoarthritis of her hips especially and her knees. She can not walk unaided, and cannot walk outside with her walking frame for more than ten metres. No improvement is likely as she is already 85 years old and has been trying for the last year. If ACC were to be able to help with a wheelchair, that would be most excellent." On 1 May 1996 the respondent wrote to the appellant and advised her that her application for assistance to a purchase of a wheelchair was declined because she did not meet the criteria under the Regulations. That letter states "an aid or appliance can only be approved if the need for aid is as a direct result of the injury". The appellant applied for a review of that decision. A report from the District Nurse at the Community Health Physiotherapy of 17 June 1996 states: "Because of Mrs Wikaira's fall sustaining a Coles fracture of her left wrist some time ago, she is finding it more and more difficult to maintain her mobility both within her home and when on outings for social engagements or necessary shopping excursions. Clinically; She has significant weakness of the hand, and wrist musculature. We have supplied her with a cock up splint for support whilst mobilising. She has significant pain in her wrist and forearm when trying to use her frame for ADL's, or excursions. 3 She was issued with a 'Shopper' walking frame from Cubrow, which has had to be significantly altered to a gutter support for her left side, to try and maintain her mobility and safety. At the time of the original purchase by ACC of this frame Mrs Wikaira was told she had up to $5000-00 available to use for further assistance with her mobility. The district nurses have dressed Mrs Wikaira's skin abrasions, predominantly to her legs, on 43 occasions since her fractured wrist. These occur due to Mrs Wikaira's difficulties manouvering (sic) herself, and in general using her frame for any limited length of time. It appears due to her loss of strength and control, that she is frequently sustaining leg lacerations. Mrs Wikaira was a recipient of a CBE for service to the community. She has a significant obligation to attend social events, and attending these meetings is very difficult without the use of a Transit Wheelchair. We strongly support her application for a wheelchair. Thank you for your time, we would appreciate a supportive response to this lady's needs." The appellant was unable to attend the review hearing as a result of which the Review Officer issued a decision on the papers declining her application. The appellant has now appealed against that decision. The appellant has stated that at the time of the fall she was in hospital in Rotorua for the purpose of obtaining relief for her osteoarthritis hip. At that time and for some time thereafter she has had the utmost difficulty in using sticks to walk because her left wrist will not sustain any weight. She said that she endeavoured to use a walker for short periods but this was also awkward. She said that even though she suffered from stiff hips she had been able to be independent and move around with the use of a walking stick prior to the accident. Ms Hancock submitted: 1. That the respondent can only provide rehabilitation assistance within the terms of the legislation. 2. That the regulation which applies to this appellant states that the respondent can only provide assistance if that assistance is required as a direct result of the appellant's injury. 3. That the objective of social rehabilitation is to restore the independence of a person which has been lost by personal injury covered by the Act. 4. That it is clear that the appellant was unable to walk without assistance prior to her fall because of her osteoarthritis from which she still suffers and that her inability to walk is not due to the wrist injury. 4 5. That the wheelchair is not required as a direct result of the appellant's injury but rather as a direct result of her osteoarthritis. It is clear that the provision of a wheelchair is included in the list of appliances which the respondent is permitted to provide in certain approved circumstances. Regulation 8 of the Aids and Appliances Regulations 1992 states: "8. Conditions of approval--- (1) The Corporation shall not, and an exempt employer shall not be required to, approve payment for the purchase of an aid or appliance which the Corporation or exempt employer considers is not necessary for the claimant to achieve independence in daily living or is not required as a director result of the personal injury to the claimant." (emphasis added) While the respondent has continued to emphasise that the appellant's requirement for a wheelchair is the direct result of the pre-existing osteoarthritis and not a direct result of the injury to her wrist, I do not accept this submission. The position as I see it is that prior to her accident the appellant suffered severe osteoarthritis in her hips and legs. It was for this reason that she was at the hospital where she had the fall. There is no doubt that until her fall she could get around on her crutches. She has stated that until the accident she was independent and able to carry out her normal household duties and to generally take part in a normal life. The evidence discloses that since the fall her wrist is weak and while she has been able to get some assistance from a walking frame this also is difficult for her to manage because of the condition of her wrist. It follows therefore that the direct result of her fall and the injury to her wrist is that she is not now able to move about in the same manner as she could before the fall. Both the use of crutches and a walking frame are impossible because of the state of her wrist. I consider that as a direct result of the injury to her wrist she cannot be restored to the independence she previously had without the assistance of a wheelchair. The appeal is therefore allowed. The file will be returned to the respondent to enable it to arrange for the purchase of a suitable wheelchair. DATED at WELLINGTON this 13th day of June 1997 A W Middleton District Court Judge dc375-96.doc