Richmond v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 135/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ROBERT MALCOLM RICHMOND of Te Awamutu Appellant (Appeal No. DCA 238/96) 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 M J Hammond, counsel for the appellant and from L Rice, counsel for the respondent with a request that I issue a decision on the papers. The issue before the Court is whether the appellant is entitled to a contribution towards the cost of a massage chair. The facts which give rise to the appeal are that the appellant lodged a claim for cover with the respondent on 11 February 1994 in which he stated that following a fall at work he suffered an acute right sciatica, cervical spinal injury and a sprained left fourth finger. The appellant was a Contractor by occupation and as a result of the injuries was referred to a Chiropractor for treatment. On 31 August 1994 the appellant's General Practitioner, Dr A R Marshall wrote to the respondent and confirmed that the appellant's then problem was low back pain and sciatica which had aggravated an old injury. He said that the appellant suffered major restrictions in lifting, with aggravation of symptoms while driving. However, 2 he noted that the appellant at that time had increased his work to twelve hours per week which he expected to increase over future months. In September 1994 Dr Marshall supported a claim by the appellant that a massage pad which he had then recently purchased provided relief for his back pain and supported a claim to the respondent to cover the costs of that pad. This claim was supported by a letter from Dr A Doube, a Rheumatologist to Dr Marshall dated 19 October 1994 in which he stated: "I was very impressed with the improvement in Mr Richmond's symptoms in response to his local massage devices. He has not needed formal physiotherapy or medical attention for his back over the last six months and is able to continue working, mostly driving trucks. You will remember that previous physiotherapy and manipulative therapy etc etc had all been unsuccessful. I am happy to endorse his use of his Trive 307A handy massager and heat massage pad. Both of these are supplied by Integrity Health Systems New Zealand and I understand have been quite expensive. Given the reduction in use of health resources that has resulted from their use I would hope that ACC will be able to contribute to their costs." The respondent reimbursed the appellant for the cost of the items referred to in the report. On 9 December 1994 Dr Marshall reported to the respondent that the appellant had shown a steady improvement and that he had advised the appellant to steadily increase the amount of work which he was doing. On 10 July 1995 Dr Doube wrote a further report to Dr Marshall in which he said: "Thank you for asking me to see this man again. He continues to have difficulty with his back, particularly with his cervical spine. On examination today he is (sic) restricted flexion and extension and rotation to the right. Side bend is restricted also. His purpose in attending today was to seek my approval regarding a massage chair that he tried at the field days recently. This is the ultimate massage chair, model JH2100. It comes with a price of $4,500 and he will approach ACC to see if they will fund this. I would support its purchase. He has needed frequent chiropractic attention (up to three times weekly) with only short term relief - measured in hours. I think in the long term it would be cost effective if he was able to manage his pain at home. I will await a request for a report from ACC." On 27 July 1995 the respondent notified the appellant that his application for assistance with the purchase of the massage chair was declined because it considered the purchase of the chair was not necessary for the appellant's rehabilitation nor was it cost effective. The appellant applied for a review of that decision. 3 In his decision the Review Officer revoked the appellant's primary decision and directed that the respondent obtain a physical capacity evaluation of the appellant. In a report dated 4 April 1996 the Occupational Therapist noted: "According to his demonstrated performance, his physical capacities would fall in the sedentary work level lifting 5 kgs or less infrequently. Information received during the assessment does not indicate the need of a massage chair." The respondent then referred the appellant to Mr C H Hooker, an Orthopaedic Surgeon who provided a report dated 14 April 1996 in which he stated: "Mr Richmond indicates that, in his opinion, there is some confusion in the records and documentation of the Accident Compensation Corporation in relation to his injuries and his current condition, pointing out that 11 February 1994, the date indicated on the request form for this report, was not the date on which he injured his lower back. In summary, Mr Richmond explains that in May or June 1984, in his work as a Portable Sawmilling Contractor, he fell in the bush. He recalls experiencing pain in his lower back at that time, but he continued with his work, and then a week or two later, with residual pain in his lower back, the pain became significantly worse when he was involved in machinery maintenance, stooping over using a welding machine. Mr Richmond states he attended his Doctor with his worsening low back pain in 1984, and his Doctor referred him to the Te Kuiti Hospital where he states he was admitted and where he remained an in-patient for about three weeks. He had conservative treatment for his low back pain and after he left hospital, chiropractic treatment Mr Richmond states he did not return to his work as a Portable Sawmilling Contractor, but in due course commenced work as a light truck and tractor driver, work that was light and not involving heavy lifting or straining, and he did this work on a part time basis until about one and a half years ago. Over those years he states his low back pain became gradually worse and he also developed pain and stiffness in both shoulders. On the basis of these worsening symptoms, he states that about one and a half years ago his Doctor placed him on an invalid pension. He has not worked, apart from occasional, causal, light work since that time. CURRENT STATUS - 12 April 1996 Mr Richmond is not working, except for occasional, part time, light truck driving jobs Mr Richmond states that he boards, he does some light housework, cooking some meals and looking after his room, but he is not otherwise active. He does not 4 garden or play sports, but he states he likes to walk on most days for exercise. He can, however, walk, he states, only for about a quarter of an hour, needing then to rest because of low back and leg pain. Similar symptoms limit his sitting in a car to about ten minutes. He then has to move about. Mr Richmond's shoulders are very stiff and he states that he currently attends a Chiropractor, having manipulative treatment for the shoulders. EXAMINATION - 12 April 1996 Thoraco Lumbar Spine There was no deformity, but diffuse tenderness which appeared to be maximal at the thoraco lumbar junction. There was a complaint of thoraco lumbar junctional pain limiting forward flexion movement to about three quarters of the expected normal range, and similarly limiting lateral flexion movements both ways. Extension and rotation movements appeared to be relatively full and pain-free. Lower Limbs There was no intrinsic abnormality. Upper Limbs Both shoulders were very stiff with pain on attempted abduction beyond about eighty degrees. OPINION Mr Richmond is certainly a very physically disabled man of fifty two years of age. I have not had the benefit of viewing x-rays of his spine, but suspect that his spinal condition is on the basis of degenerative change. He has symptoms and clinical findings suggestive of bilateral deep tendon pathology in both shoulders. In my opinion, Mr Richmond is not capable of other than a very limited range of light work on the basis of his multiple musculo-skeletal disabilities. The particular point in requesting this report was for my opinion on the justification for the Corporation to purchase for Mr Richmond a Massage Chair. It is my opinion that there is not sufficient evidence of the therapeutic value of a Massage Chair, particularly in the long term, to justify the considerable expense to the Corporation that this purchase would involve. I cannot, therefore, support such a purchase." On 30 April 1996 the respondent notified the appellant that following the advice of the Rehabilitation Institute and Mr Hooker, his application for assistance in the 5 purchase of a massage chair was declined. The appellant applied for a review of that decision. In a letter dated 8 July 1996 Dr Marshall stated: "This man has had a number of accidents including a lower back injury which disable him for a considerable time. Malcolm purchased a massaging chair, after considerable research, recently. Since he has been using this chair he feels his legs and back are more mobile and has been able to do more. It seems to me that there has been a clinical improvement manifest by decreased stiffness in the hips and lumbar spine. Also he has reduced his medications. I would recommend a favourable decision on funding support for this aid." The appellant gave evidence at the review hearing. In his decision the Review Officer found that if the appellant had a need for the chair that appeared to be the result of multiple problems, all of which were not due to accidental injury and were due to degeneration or disease or congenital factors. He declined the application for review. It is against that decision which the appellant now appeals. After the notice of appeal was filed the appellant has provided a further report from Dr A Doube on 5 August 1997 in which he states: "In my opinion Mr Richmond has mechanical back pain, related to his occupation. For many years he has driven mechanical equipment requiring twisting to look behind him. This activity is of a nature that might well cause cumulative injury of the type that is generally accepted by ACC as relevant to low back pain etc. My opinion is supported by my colleague Dr M Wong (refer letter 11/4/91). Plain x- rays of his spine have shown some minor degenerative change and an MRI scan has shown an osteophytic bar. These changes are of doubtful significance and do not particularly indicate any degenerative or medical condition. Indeed their relationship to Mr Richmond's symptoms is debatable since they are often seen to the same degree in asymptomatic people. Mr Hooker's contention that Mr Richmond's problems were on the basis of degenerative change has no basis. Therapeutic value of the chair has been adequately documented although Mr Hooker may not have been in receipt of that evidence. A wide variety of therapies had been unsuccessful in easing his symptoms (refer Louise Rudge letter 1/12/93) and he required frequent manipulative treatments (refer letter A Double 10/7/95). With the use of his massage chair he has been able to reduce his reliance on external practitioners to occasional (letter A Double 22/8/96). The ACC argument regarding cost effectiveness appears related to its therapeutic benefit (ACC letter 3/4/96 from Rochelle Edwin) but it would appear that its therapeutic benefit has been adequately demonstrated. 6 In my opinion Mr Richmond has a significant mechanical problem in his back, related to his occupation. There was no degenerative or medical condition contributing. His need for treatment by a physiotherapist, chiropractors etc has been significantly reduced by the use of his massage chair." While Dr Doube considered there were degenerative conditions contributing towards the appellant's problem, earlier medical reports discount those observations. As early as April 1991 Dr M L Wong, a Specialist Physician (Rheumatology and Rehabilitation) had stated: "... had intermittent episodes of back pain for the last 2 or 3 years which he describes as being due to his vertebra going out, and has frequently attended a chiropractor. He also wears a lumbar brace. About 12 months ago, without any obvious precipitating factors, he suddenly developed what he called paralysing pain down the lateral aspect of his right lower limb. The pain is persistent and it intermittently worsens without any obvious precipitating factors. .. Formal examination of his cervical and lumbar spine apparently showed very restricted movement, but this was not consistent with what was observed during spontaneous activities when he in fact had a full range of forward flexion of instance of the lumbar spine. Similarly, formal neurological examination revealed apparent weakness of dorsi flexion and plantar flexion of the ankle and the spontaneous movements. He had reduced sensation to light touch of the whole of the lateral half of the right lower limb. X-rays do show very minor degenerative changes in the lumbar and cervical spine I have explained to him that he has mechanical spine pain related to his occupation After both counsel had filed submissions the issue of a decision was delayed pending the issue of a decision in the High Court in the appeal by Haar as to the meaning of "long term disability" as referred to in the definition in Regulation 2 of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992. In Haar this Court had held that the definition required an overnight stay in hospital but the High Court has now found that the definition does not go that far and all that is necessary is that an applicant need only have an admission for hospital treatment and a discharge there from in order to comply with that requirement of the Regulation. 7 Mr Hammond submitted: 1. That the appellant has long term difficulties for which he originally received inpatient hospital treatment for some three weeks. 2 . That the overwhelming effect of the evidence is that the appellant suffers long term problems arising out of the accident. 3 . That the appellant's Medical Advisor supported the use of the massage chair for the relief of the appellant's pain and for his general rehabilitation, particularly having regard to the nature of his occupation as a contractor. 4. That Dr Doube and Dr Marshall's reports indicate a problem which still persists and the availability of the massage chair gives him relief. 5 . That Drs Marshall and Doube discount degenerative problems as being the cause of the appellant's condition. 6. That the massage chair in question is specifically designed for disabled persons and therefore falls within the First Schedule to the Regulations. Alternatively, that the appellant comes within regulation 7(3) as the chair would be a cost effective alternative to other treatments. Ms Rice submitted: 1. That unless a particular aid or appliance is specified in either the First or Second Schedule of the Regulations, the respondent is precluded from assisting with its purchase. 2. That notwithstanding the support of Drs Marshall and Doube, the criteria provided in the Regulations have not been met to the extent that the respondent is able to assist with the purchase of the chair. 3. That while the appellant contends that he suffers a long term disability within the concept of Haar, this is disputed. That the appellant claims that the inpatient treatment he received was as a result of a back injury in 1984 and that the injury in 1994 is merely an aggravation of the earlier injury. That while the appellant did receive inpatient treatment as a result of the 1984 injury he did not receive inpatient treatment in respect of the 1994 injury so that he must establish that the 1994 injury is a continuation of the 1984 injury. 4. That the 1984 injury affected the lower back while the 1994 injury involved his cervical spine. This is particularly noted by Dr Doube in his report of 10 July 1995. 5. That the additional reports provided by various health professionals indicate long term significant neck problems predates the 1994 injury. 8 The appeal falls to be determined under section 26 of the Act which provides that in respect of social rehabilitation the respondent may only provide assistance which is required or permitted by the Regulations made under the Act. The regulations applicable are Regulations 2, 6, 7 and 8 of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992 which in so far as they apply to this appeal state: " 2. Interpretation--(1) In these regulations, unless the context otherwise requires , - 'Long term disability' means any restriction or lack of ability to perform an activity to the to the extent that the claimant was able to do so before the personal injury or, in the case of a claimant under the age of 16 years, within the range considered normal for a person of that age, where that restriction or lack of ability- ) Results from personal injury covered by the Act; and (b ) Is expected to persist, or does persist, for a period of more than 3 months after the date of the first discharge from in- patient services following initial treatment for the personal injury. (2)In these regulations, unless the context otherwise requires, expressions defined in or for the purposes of the Act have the meanings so defined. 6. Limitations---The Corporation shall not, and an exempt employer shall not be required to- (c) Contribute to the purchase of any aid or appliance unless the claimant has a long term disability. 7. Scope of aids and appliances---... (2) Subject to subclause (3) of this regulation, the Corporation shall not ... approve payment for the purchase of any aid or appliance of a kind described in the Second Schedule to these regulations. (3) The Corporation ... may approve, subject to these regulations, on the recommendation of the person who undertook the assessment, payment for the purchase of an aid or appliance of a kind specified in the Second Schedule to these regulations where 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. ... 8. Conditions of approval---(1) The Corporation shall not, ... approve payment for the purchase of an aid or appliance which the Corporation ... considers is not necessary for the claimant to achieve independence in daily living or is not required as a direct result of the personal injury to the claimant." The medical evidence satisfies me that this appellant has had longstanding back problems, all of which are not necessarily accident related. There is clear evidence in the medical reports of the existence of degeneration some years prior to the accident in 1994. Furthermore, I do not accept the appellant's submission that the accident in 9 1994 was merely an aggravation of the injuries received in 1984. The medical evidence quite clearly specifies that in 1984 the accident injured his lower back while the 1994 accident injured his cervical spine. Consequently there can be no suggestion that the 1994 accident aggravated the problems which may have existed as a result of the 1984 injury. Accordingly, on the basis of the decision in Haar, while the appellant has longstanding back problems, it cannot be said that he has a "long term disability" because following the 1994 injury he was not admitted to hospital for treatment. That pursuant to Regulation 7(1) of the Regulations the respondent is permitted to make payment for the purchase of an aid or appliance of the kind specified in the First Schedule to the Regulations and under Regulation 7(2) it is not permitted to approve the purchase of an aid or appliance mentioned in the Second Schedule. The First Schedule refers to chairs designed for use by a disabled person while the Second Schedule refers to chairs not specifically designed for the disabled person. It therefore follows that the respondent can only provide assistance for the purchase of this chair if the conditions of aids and appliances regulations are met. Under Regulation 6 the respondent shall not be required to assist with the purchase of any aid or appliance unless the appellant satisfies the Court that he suffers a long term disability. As I have already found, I do not consider that the appellant has satisfied this requirement. Regulation 7(3) permits approval to be given if the person undertaking the assessment in respect of aid or appliance specified in the Second Schedule to the Regulations is satisfied that the proposed payment is a cost effective alternative to paying the appellant's future costs of attendant care. However, notwithstanding that provision, it is necessary that the requirement for the chair is the direct result of personal injury. As I have already stated, I do not consider that the appellant's ongoing problems are the direct result of the injury sustained in the accident in 1994. In the circumstances, therefore, I do not consider that the appellant has satisfied the onus on him and the appeal is dismissed. DATED at WELLINGTON this 29th day of June 1998 bweem adlibin A W Middleton District Court Judge dc238-96.doc (nr)