Hodgson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 5 2 195 HELD AT CHRISTCHURCH 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 83 93 0163 BETWEEN REGINALD DAVID 83/ 93 / 069 7. HODGSON Appellant (Appeal No. DCA 158/93) 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 April 1995 APPEARANCES Mr C Hutchison for appellant Ms J W Saxton for respondent DECISION OF JUDGE D A ONGLEY This appeal concerned the Corporation's power to provide assistance for a bed under the Accident Rehabilitation and Compensation Insurance (Aids and Appliances) Regulations 1992. The appellant suffered a back injury in 1985 but did not make a claim until 26 February 1990. The claim for cover was accepted and a lump sum payment was made. In September 1991 the appellant made a claim for assistance for purchase of a bed. In support of his application he referred to a letter of 20 June 1991 from Rose Hurst, Staff Physiotherapist at Christchurch Hospital. There is a note on the file indicating that Mr Hodgson was told he would not be likely to be successful in obtaining assistance in purchasing a bed. The reason for that, which is now apparent, is that the Corporation adopted a guideline threshold of 20% disability for cases in which it would assist with the purchase of a bed. The appellant's disability had been assessed at only 15% - 2 - On 31 March 1992 The Corporation requested a report form Professor A G Rothwell, the Orthopaedic Specialist who had previously examined Mr Hodgson. The letter asked that the report should cover the following points: "I Present condition/prognosis 2. Your opinion on client's need for a special bed for relief of back pain. 3. Whether client's back injury is responsible for this inability to seek employment. 4. Any other relevant comments." Professor Rothwell reported on 4 May 1992 'Mr Hodgson states that he has had his bed assessed by an occupational therapist and in her report she indicated that the mattress is too soft and that he would be much better off with a firmer mattress. Mr Hodgson stated that he does have a box base but the springs are starting to protrude from out of the sides of base and that the mattress is very soft and lumpy. On occasions when he has slept in a much firmer bed such as when visiting his mother in Blenheim he is much more comfortable at night and gets off to sleep much quicker and is woken less frequently. A symptom which has become more prominent over the last year is morning stiffness when first getting out of bed. Mr Hodgson has to lever himself up from the stoop position in order to free up his back and become mobile. . . ... "It would appear that Mr Hodgson's bed is less than satisfactory for somebody who does have a chronic ongoing back problem. The question is whether the present bed is salvageable by re-springing and perhaps an opinion could be sought from Brownies the mattress people. I do not believe that Mr Hodgson needs a special bed but just an ordinary bed with a firm base and firm mattress. Mr Hodgson tells me that he has such a bed in mind at a cost of $700 and this has been put aside for him." This report caused the Corporation's client officer to note on the file that: "Prof. Rothwell does support client in this & suggest that we check this with Brownies the mattress people to see if his present bed could be repaired adequately to provide the support that he needs I suggest we ask Brownies to assess whether or not this can be done before considering new purchase options." Another Corporation officer responded with a memorandum that: '(Mr Hodgson) has a 15% disability in relation to his back injury. Mr Rothwell states he does not believe Mr Hodgson needs a special bed just an ordinary bed with a firm base & firm mattress. I agree check first if something can be done to bring his old bed up to scratch." On 10 June 1992 the Corporation wrote to Brownies to assess whether the existing bed could be repaired. No reply had been received by the time the Accident Rehabilitation and Compensation Insurance Act 1992 came into force on 1 July 1992. - 3 The appellant says that the Corporation had delayed either deliberately or unnecessarily and that the application could easily have been dealt with before the new Act came into force. This Court cannot deal with that question when exercising powers of appeal under the 1992 Act. Apparently the Accident Compensation Appeal Authority would not have power to deal with the question by way of appeal under the 1982 Act either, because there was no determination to appeal against. There is no right of appeal of which Mr Hodgson can avail himself. An independent civil proceeding against the Corporation for alleged failure to carry out a duty, or unreasonable delay in doing so, would no doubt be difficult to argue and would be met with a difficulty in showing that Mr Hodgson suffered any loss through the Corporation's delay. Once the 1992 Act came into force the Corporation could only make provision authorised under that Act. The categories of compensation were divided into vocational rehabilitation, social rehabilitation, earnings related compensation, independence allowances and death benefits. This claim had to be treated as social rehabilitation and the Corporation was constrained by s 26 to provide compensation only as required or permitted by regulations: 26. Social rehabilitation - (1) In order to ensure - (a) Consistency of provision of social rehabilitation; and (b) Certainty of entitlement to social rehabilitation - no provision of, or payment in respect of, social rehabilitation shall be made by the Corporation in respect of any person except as required or permitted by regulations made under this Act. When the appellant's application was under consideration in July 1992, regulations had not been issued for payment by the Corporation for beds to assist rehabilitation. The only regulations which could possibly apply were the Accident Compensation (Prescribed Artificial Limbs, Aids and Prosthetic Appliances Costs) Regulations 1990 which had been preserved by s 179(4) of the 1992 Act. The "items" covered by those regulations were defined in r 2 as "any artificial limb, aid, or prosthetic appliance". By r 4 such an item could be provided where it was "prescribed by a registered specialist for the claimant as a result of personal injury". Whether an ordinary bed could be an "aid"" and whether it could be "prescribed by a registered specialist" was an open question. The applicability of the regulations was narrowed when the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992 came into force on 9 October 1992. Those regulations listed beds as follows: 1. The second schedule listed "beds"; but the regulations permitted provision of beds under that schedule only if the Corporation is satisfied that the payment is a cost- effective alternative to paying to the claimant future costs of attendant care, home help or child care: r 7(3). In this case there is no medical evidence to assess that question - but it is still a question which the Corporation may consider if it receives appropriate medical reports. - 4 - 2. The third schedule listed "beds (hilo, turning, or otherwise designed to aid treatment)" as aids which could be provided only under the Prescribed Artificial Limbs, Aids and Prosthetic Appliances Regulations. The result is to bring beds under the Aids and Appliances Regulations where they are a cost effective alternative to attendant care etc., but to leave them under the Artificial Limbs, Aids and Prosthetic Appliances Regulations where they are prescribed special beds. But from 1 July 1992 to 9 October 1992 those limitations did not apply. The Corporation's file indicates that the application was not considered under the Aids and Prosthetic Appliances Regulations. Possibly the Corporation's officers considered that there was no specialist prescription on the Corporation's file for a bed to be provided for Mr Hodgson. Prof. Rothwell's report contained only an opinion. It was expressed rather tentatively by stating that "it would appear that Mr Hodgson's bed is less than satisfactory for somebody who does have a chronic ongoing back problem". It was expressed more directly when Prof. Rothwell said "I do not believe that Mr Hodgson needs a special bed but just an ordinary bed with a firm base and firm mattress". The report was a response to the Corporation's request for his opinion. It was an opinion or recommendation. It was not expressed as a prescription or a directive, although if the question had been put to Prof. Rothwell in a different way he could have considered whether to prescribe a firm bed for treatment of Mr Hodgson's back pain. The Court cannot speculate whether a prescription would have been furnished if it had been requested. Once the Aids and Appliances Regulations were passed on 9 October 1992 the earlier regulations were made to apply only to special beds, in particular to beds "designed to aid treatment". Despite Mr Hutchison's argument, I am unable to accept that the concept of beds designed to aid treatment extends to beds which are suitable to assist in control of symptoms. An ordinary firm bed was recommended. Certainly such a bed would have been of a design that would aid the appellant in treatment or control of his back pain and associated problems. It might be assumed that it would have been designed to provide support for the very purpose of aiding correct spinal position while sleeping and preventing back problems or alleviating symptoms. It would be unduly stretching the meaning of the regulations to hold that the purpose or design of benefiting the health of users generally during the essential human activity of sleeping could amount to "aiding treatment". Furthermore, the schedule invites application of the eiusdem generis principle of interpretation; the phrase "hilo, turning, or otherwise designed to aid treatment" appears to refer to special attributes beyond the ordinary functions of a bed. It may be a matter of degree; some commercial beds may be so special or sophisticated as to be "designed to aid treatment" but the evidence in this case does not go so far and the question does not have to be considered. In light of the Corporation's stance that it would not have provided assistance under the 1982 Act it is difficult to understand why so much time was spent investigating the cost of repairing the appellant's own bed. The appellant's complaint throughout has centred on delay. The matter is not trifling, Mr Hodgson is a large man and was undoubtedly suffering by virtue of inadequate support. However I am left with the conclusion that the Corporation eventually acted correctly in declining the claim although there were unfortunate delays and there is the possibility that if the claim had been handled - 5 - differently Mr Hodgson could have obtained some assistance. It is a pity that he could not, because he eventually had to obtain a loan from Social Welfare for $1.343 to obtain a suitable bed to alleviate pain caused by his accident. For the above reasons the appeal is dismissed. DATED at WELLINGTON this 1 day of MAY 1995 D A Ongley District Court Judge