Payton v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 1 199 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 PHILLIP JAMES PAYTON DCA 148/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION "a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of December 1998 APPEARANCES: Mr P J Payton in person Ms K Tahana counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the decision of the Corporation to decline to contribute towards the purchase price of an automatic motor vehicle for the appellant was correct. 2 BACKGROUND The appellant was a farm worker by occupation and in November 1988 he suffered a fall from a farm bike while chasing stock. He suffered a back injury in that fall. About a year later he suffered a second injury to his back when in the course of drenching cows, he suffered a crush injury against a rail. Since that second injury the appellant has been incapacitated and has been in receipt of weekly compensation. The medical advice is that the appellant is unlikely to be able to resume his former employment. On 25 August 1997 the Corporation received a written request from the appellant and the exact words he used in his letter of request were as follows: "Seeing as it was our decision to purchase a van (coach) for the purpose of being able to participate as a family and also allow me to get independent in transport (it is automatic) the wife's car is manual. I feel if assistance is available I consider one third of the cost of $16,000 would be fair. Once I say I am not and was not prepared to gamble yours or my money. What I have achieved since being incapacitated has taken a lot of strain and stress off my family. I feel I have now attained a level to which I feel I can live with my disability. I will still keep ACC informed of progress healthwise as well as income wise. The respondent treated that as an application for the purchase and modification of a motor vehicle under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992. That application was considered and on 2 September 1997 the respondent advised the appellant that his request for assistance with the purchase of his motor vehicle had been declined. The reason for declinationequired prior approval in 3 writing before any contribution could be made and in this case prior approval before purchase had not been sought. The appellant sought a review of that decision. At the review hearing evidence was given that by 30 July 1997 a rehabilitation plan was in place but purchase of a motor vehicle had not been considered as part of that plan. The appellant stated he could not drive a manual car because of his back and neck problems but that he could drive an automatic car or van. The Review Officer considered that the Act and Regulations only allowed the Corporation to make provisions for cost of rehabilitation where there has been prior approval given as part of an individual rehabilitation programme and that, as this had not been done or sought by the appellant the decision to decline was confirmed. RELEVANT STATUTORY PROVISIONS Section 3 of the Act defines "rehabilitation" as meaning: "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. " 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. 19. Provision of rehabilitation --- (1) Except as provided in subsection (2) of this section, the Corporation shall not provide or meet the costs of rehabilitation for persons who have cover under this Act unless that rehabilitation is provided under an approved individual rehabilitation programme. (2) The Corporation may provide rehabilitation within the first 13 weeks following the personal injury in the absence of an approved individual rehabilitation programme. " Section 20 of the ARCI Act provides, inter alia: 20. Individual rehabilitation programme --- (1) Every individual rehabilitation programme referred to in subsection (2) of this section shall be designed to identify the person's entitlement to rehabilitation as described in section 18 of this Act; and shall include identification and facilitation of such other rehabilitation services as may be appropriate to further the rehabilitation of the person. Such identification and facilitation of other rehabilitation services shall not impose any responsibility on the Corporation to provide or fund rehabilitation beyond that otherwise imposed by this Act or regulations made under this Act. (2) Each individual rehabilitation programme shall consist of those elements of social and vocational rehabilitation as are appropriate to the individual and shall be prepared in compliance with this Act and any regulations made under this Act. . .. (4 ) Before any individual rehabilitation programme is implemented, the Corporation may approve the programme in whole or in part and shall meet only the costs of matters in respect of which and to the extent to which the Corporation has given its prior approval. 5 (5) No individual rehabilitation programme shall be submitted to the Corporation under subsection (4) of this section unless it has first been agreed to by the person for whom it is prepared or a person acting on that person's behalf if that person is unable to so agree. ... Section 26 of the ARCI Act provides: 28. Objective of social rehabilitation -- (1) The Objective of social rehabilitation is to restore the independence of a person to the extent that the person's independence has been lost by personal injury covered by this Act. (2) In this Act, 'social rehabilitation' includes, without limitation, -- (b) Purchase of, and modifications to, motor vehicles and other means of transport; and" At the hearing of this appeal Mr Payton indicated that he was not necessarily requesting assistance towards the purchase of the particular motor vehicle that he had earlier acquired but rather, was seeking the assistance for the purchase of or modification to a suitable motor vehicle, that is one that might be purchased in future. It is to be noted that in the transcript of the evidence before the Hearing Officer the appellant sought to explain that he was not necessarily asking for the particular vehicle that he had acquired but this seems to have been lost on the Review Officer. Ms Tahana, counsel for the respondent, submitted that the respondent can only act in accordance with the statutory provisions and that it can only deal with the matter in the context of the particular vehicle that the appellant had purchased and in respect of which he had requested financial assistance. She submitted that as the vehicle had 6 been purchased in 1996 and it was not until August 1997 that he sought assistance, the provisions of the Act made it clear that the Corporation could not provide assistance as prior approval to its purchase had not been obtained. She further noted that the purchase of a motor vehicle did not form part of the individual rehabilitation programme. DECISION Despite the submissions made by the appellant that he was, in effect, asking for assistance for the purchase of a suitable motor vehicle rather than the particular vehicle, the matter did proceed solely along the lines of considering whether the Corporation could provide assistance to the purchase price of the motor vehicle already purchased. Although it has not been spelt out in so many words, it seems from the written submissions of counsel for the respondent that the respondent accepts that the appellant's injuries are such that he can only physically drive an automatic motor vehicle and that he would likely "qualify " under the assessment procedures required in the Purchase and Modification of Vehicles Regulations. However, that stage has not been reached as the decision thus far has been to the effect that the Corporation has no authority to make a contribution because its prior approval was not sought. For the purposes of this appeal the Court cannot include consideration of the appellant's request that his application be considered as an application for a suitable motor vehicle rather than the motor vehicle which he did in fact purchase, as the Corporation's decision relates only to the latter. With that constraint the answer is quite clear, that whilst the appellant has an entitlement prima facie to assistance with the purchase of or modification to a motor vehicle as part of his rehabilitation, that entitlement can only be given within the statutory framework provided. The provisions of section 20 make it clear that the purchase of a motor vehicle would have to be included as part of the appellant's rehabilitation as identified in a rehabilitation programme and that such costs would only be met if prior approval for 7 same is obtained. The procedure for that prior approval would of course include the assessment procedures provided for in the Purchase and Modification of Vehicle Regulations 1992 and that is surely the principal reason why prior approval must be obtained. The appellant's eligibility for assistance has not yet been determined and this would be an additional reason why, as at the present time, his application for assistance must be declined. However, the Court observes that it is open to the appellant to again make application and this time seek to have the necessity of a motor vehicle of particular modification included as part of his rehabilitation programme. That is a matter that the Corporation would need to consider as and when such an application was lodged. However, in the context of this appeal and in the narrow confines within which it must be considered, this Court confirms that the Corporation's decision to decline assistance was correct and accordingly, this appeal is dismissed. DATED at WELLINGTON this 5 TH day JANUARY 1999 Deaths MJ Beattie District Court Judge Payton.doc(gm)