Gerard v Accident Compensation Corporation

IN THE DISTRICT COURT WELLINGTON REGISTRY [2011] NZACC 162 Al 785/10 UNDER The Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to s. 149 of the Act BETWEEN MRS R GERARD Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 27 May 2011 DATE OF THIS DECISION 1 June 2011 APPEARANCES The appellant on her own behalf Ms S L Scott, counsel from ACC RESERVED DECISION OF JUDGE P F BARBER The issue [1] This appeal concerns ACC's decision to reduce the appellant's home help assistance from four hours per week to two hours and forty-five minutes per week. Background [2] On 12 November 1999 the appellant sustained a neck and spine injury in an accident in an elevator to which I refer further below. The appellant's diagnosis is currently cervicalgia and neck sprain. [3] An assessment of the appellant's home help needs was performed on 10 March 2009. That resulted in an assessment of four hours per week home help requirement. Accordingly, ACC issued a 12 March 2009 decision funding four hours of home help per week until 19 April 2010. 2 [4] On 20 April 2010, ACC referred the appellant for an updated assessment to be performed. The assessor, Ms Stickney from the Total Back Institute, assessed the appellant's need for assistance with housework as two hours and 30 minutes per week. [5] On 7 May 2010 ACC issued the appellant a decision advising it would provide home help at two and a half hours per week from 8 June 2010 until 6 June 2011. [6] Upon receipt of the 7 May 2010 decision, the appellant contacted ACC objecting to the decision's outcome. It was agreed between the parties that ACC would request a fresh assessment with an assessor of the appellant's choosing. 7] A fresh assessment was subsequently conducted on 14 May 2010 by Ms Cooney, an occupational therapist employed by Independent Living Ltd. That assessor determined that the appellant required two hours 45 minutes home help for housework. (8] On 27 May 2010 ACC issued an updated decision to the appellant advising that from 8 June 2010 until 6 June 2011 ACC would provide two hours and forty five minutes per week of home help assistance. [9] The appellant sought a Review of ACC's decision. The Review decision [10] The review of ACC's decision was conducted on 4 October 2010 by Reviewer Mr R Woodhouse who dismissed the appellant's application for review by his decision of 15 October 2010. [11] The Reviewer considered that the fact that the assessment provided by Ms Cooney and Ms Stickney are materially consistent (with the exception of the need for assistance with ironing considered in Ms Cooney's assessment) argues against either assessment being flawed. The Reviewer noted, inter alia, that the further injury of a twisted leg, sustained by the appellant at about that time when carrying laundry downstairs, did not show a flaw in the assessments; because there was sufficient allocation within the home help assessment for that duty to be performed. He found no correlation between the injury sustained carrying the laundry and the original covered injury. [12] Mr Woodhouse's Review decision is thorough with a close analysis of the assessments in relation to the concerns of the appellant. Inter alia, the Reviewer noted that ACC's 12 March 2009 decision to provide four hours home help per week was made on the basis that it expire on 19 April 2010. As he also noted, ACC was then entitled to reassess the appellant's need for that social rehabilitation pursuant to s.84 of the Act; and that resulted in the new decision of two and three quarter hours of home help per week as at 20 April 2010 until 6 June 2011. [13] The Reviewer correctly put it that the onus was on the appellant to show she is eligible to regain the home help entitlement of four hours per week. I accept the Reviewer's finding that no flaw has been shown in the assessment on which ACC based its 27 May 2010 decision. The submissions of the appellant [14] In typed submissions, the appellant detailed her household duties with much reference to the health problems of her husband and herself. Sadly, a theme is that she suffers constant pain, particularly, from her neck, back, and legs. She feels that the assessors did not comprehensively absorb the layout of her home property and that they were not provided with sufficient information about her medical problems such as her permanent spinal injury. [15] The appellant referred to her need for home help being related to covered accident injuries. She particularly described a medical treatment accident which seemed to have also triggered symptoms of her previous spinal injury. She rejected suggestions that she should have been cured from that within six weeks of the accident [16] The appellant also addressed me orally. She referred to an accident of 12 November 1990 to her neck and cervical spine, and I also understood that is the cause of her chronic pain in her view. I also understood that the accident of 12 November 1990 was caused by her being trapped in a violently osculating lift for at least 45 minutes. Indeed, in her oral evidence to me she described that rather frightening event and its effect on her body and, particularly, on her neck and spine. She feels that her subsequent various accidents were due to weaknesses cause by that terrible event. She does not accept ACC's view that she should by now be long cured of all that. Although it seems to be accepted that she experiences chronic pain. [17] Although English is not the appellant's first language, I found her easy to understand and intelligent (as one would expect from a former science teacher although, at material times, she seemed to have been an office worker). I am not clear whether she has ever been on much weekly compensation, but that point is now academic because she is aged over 65 years. [18] I understood that at some stage the appellant developed carpal tunnel syndrome for which she had surgery and that the home help situation arose from that. [19] Regrettably, the appellant feels badly treated by ACC and considers that the said formal assessments are over-meticulous, expect her to adopt unusual methods of housekeeping, and do not allow for her chronic pain. Relevant law [20] Of course Ms Scott, as had the Reviewer, referred to the detail of s.81 of the Accident Compensation Act 2001 which sets out ACC's liability to provide key aspects of social rehabilitation. There was also reference to s.84 of the Act which relates to "assessment and reassessment of need for social rehabilitation" and enables ACC to either undertake an assessment or reassessment itself or "by using appropriately qualified assessors employed by the Corporation". That provision also holds that a claimant's need for social rehabilitation "may be reassessed from time to time". Section 84 also sets out a range of considerations which must be taken into 4 account and, in terms of s.81, further considerations are set out in cl. 17 of Schedule 1 to the Act which relates specifically to home help. However, all these factors were taken into account by ACC and its assessors. Discussion [21] It is submitted by Ms Scott (for ACC) that the decision to reassess the appellant's home help needs was a valid exercise of ACC's discretion under s.84(3) of the Act (which provides for ACC to reassess a claimant's need for social rehabilitation from time to time). I agree. [22] Further, (as Ms Scott puts it) the decision was based on two assessments, which were almost identical in their conclusions as to the appellant's needs. The only difference was that the second assessor included 15 minutes for ironing. ACC recognised this by amending the decision to include that additional 15 minutes. [23] The assessments show that the assessors looked at the specific tasks for which the appellant required assistance. They noted that she had difficulty managing the heavier aspects of household cleaning. The assessments took this into account in allocating time for vacuuming, cleaning the bathroom and kitchen, changing sheets, and assistance with the heavier aspects of laundry [24] The main difference between the previous assessment in 2009 and the 2010 assessments was in allocation of time for doing laundry, and dusting. The assessors have determined that the appellant is able to perform the lighter aspects of laundry, but requires assistance with hanging out of linen and towels. In the view of both assessors, 30 minutes was allocated as adequate for that. Both assessors considered that the appellant is able to perform her own dusting with the assistance of the telescopic duster which ACC had provided since the previous assessment. [25] To the extent to the assessments differed from the previous regime of four hours home help per week, I agree with ACC that reflects the value judgement of the assessors, and that their reasoning is clearly contained within their respective assessments. [26] I also agree with Ms Scott that, given the similarity in the two recent assessments, and the clear explanations given in each assessment for the conclusions reached, it cannot be said that ACC has made its decision by application of a wrong principle. [27] With regard to these types of cases, in which a claimant's need for home help assistance is assessed objectively by others, I have always been concerned that assessors, or someone at ACC, could become restrictive, pedantic and/or arbitrary. One might think that four hours home help per week is little enough for a person with the appellant's accident residue health problems without that being reduced by an hour and a quarter per week which, relatively, is quite a substantial reduction. I think it important that ACC never be niggardly in such situations. [28] However, in the present case a proper process has been followed which was not in any way flawed. Also, there is no independent evidence available to support the stance of the appellant. Although it is disappointing for the appellant that a rather 5 modest provision for home help has been trimmed by professional reassessment on expiry of the original grant, this appeal is dismissed for the above reasons. Judge P F Barber District Court Judge WELLINGTON Al 785-10.doc(aw)