Adams v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 116 97 (Appeal No. DCA 370/96) UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ROSEMARY ANNE ADAMS of Auckland Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 6th day of May 1997 APPEARANCES Mr G D Stringer for appellant MS R F Irving for respondent DECISION OF JUDGE P F BARBER The Issue The issue in this appeal is whether the appellant is entitled to assistance under the Accident Rehabilitation & Compensation Insurance (Social Rehabilitation Purchase and Modification of Vehicles) Regulations 1992 ("the Regulations") in the respect of motor vehicle purchase assistance. 2 The Facts On 22 October 1995 the appellant strained her right forearm while using a weed- eater. She made a claim upon the respondent for cover in respect of her strained right forearm, and cover was granted. Her condition has subsequently escalated to a somatic pain syndrome affecting all of the right side of her body and causing her considerable incapacity especially in the shoulder and neck area. The appellant has been granted a number of entitlements under the above Act and these include payment of home help, and an independence allowance. In early 1996 the appellant applied to the respondent for the purchase and/ or modification of a motor vehicle to assist her because her independence was severely limited by her inability to drive due to her incapacity. After receiving the appellant's application for motor vehicle purchase assistance, the respondent arranged for her to be assessed by a driving instructor. That instructor's report is dated 4 March 1996 and concluded that the appellant was permanently unable to drive legally and safely in any vehicle with manual transmission and non power steering. By letter of 1 July 1996 the appellant was informed by the respondent that her said application had been declined. She lodged an application for review which was heard on 18 October 1996. The Review Officer's decision delivered on 30 October 1996 upheld the respondent's decision to decline motor vehicle purchase assistance. The ground relied upon by the Review Officer was that the appellant did not meet the regulatory definition of "long term disabled" so that her application for review could not succeed. This appeal is against that decision of the Review Officer. The Law The Regulations govern the eligibility of claimants for the purchase of modifications to vehicles. Regulation 5 provides for entitlement to assistance. That regulation sets out: "5. Entitlement to assistance - To be entitled to payment for the purchase of and modification to a vehicle a claimant must, by reason of a long term disability, be - ( a ) Permanently unable to drive; or (6 ) Unable to travel as a passenger - in a vehicle without modifications to that vehicle." 3 Accordingly, a claimant is only entitled to a motor vehicle purchase assistance if the claimant's inability to drive (permanently) or travel as a passenger is due to a long term disability. "Long term disability" is defined in Regulation 2 to mean: "Long term disability' means any restriction or lack of ability to perform an activity 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 - (a) Results from personal injury covered by the Act; and ( 6 ) 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:" This definition of 'long term disability' was added by amending Regulations effective 1 May 1993. There is no definition of "in-patient services". The requirement for a claimant to have been discharged from "in-patient services" in order to be defined as having a long term disability was considered in Haar -v- ARCIC (Decision No.19/97). There, Judge Middleton accepted the submission of counsel for the Corporation that, on its ordinary meaning, the term "in-patient services" contemplates at least an overnight stay in a hospital where treatment for the injury is given. This concept was contrasted with a "day surgery" basis of treatment. Judge Middleton considered that the wording of the regulation was quite clear and specific, and allows no discretion whatsoever. Reasons for Decision Clearly, the appellant must bring herself within the requirement of the above Regulation 5 that she suffers a long term disability as a result of personal injury. Otherwise she is not entitled to any motor vehicle purchase assistance. To establish that she had a long term disability, she must show that she received "in- patient services following initial treatment for the personal injury" in terms of the above definition of "long term disability" . As Mr Stringer has admitted, there is no evidence that she has ever received in-patient services in respect of the said injury which she suffered on 22 October 1995. This was the finding of the Review Officer. Also, this is confirmed in a letter dated 13 December 1996 from Dr Michael J. Butler, a Rheumatologist (who had assessed the appellant in April 1996), which notes (inter alia):- 5 principal issue in that case was the Review Officer's finding that it was necessary in order to comply with the regulations that the appellant should receive "in- patient services" before her condition could meet the requirements of "a long term disability". Towards the end of his decision in that case, Judge Middleton said:- "While there is no definition of 'in-patient services', I accept Mr Cleary's submission that on its ordinary meaning the term contemplates at least an overnight stay in a Hospital where treatment for the injury is given. I consider that the wording of the regulation is quite clear and specific and allows no discretion whatsoever. Unfortunately, this appellant did not receive in-patient treatment initially and accordingly I am forced to uphold the finding of the Review Officer that she does not therefore bring herself within the requirement that she suffers a long term disability as a result of her personal injury. I consider that as this appellant does suffer an injury as a result of an accident and that that injury precludes her from driving a motor vehicle, and the only factor which prevents her qualifying under the Regulations is that she did not initially receive in-patient treatment as a result of the accident. I consider that is now a matter of public knowledge that surgical procedures are more likely than not to be undertaken on a 'day surgery' basis in order to avoid in-patient treatment, and that the nature of this appellant's injury was such that she did not require 'in-patient treatment. Notwithstanding that she does suffer a permanent injury which precludes her driving an unmodified vehicle. In many cases of accidents causing injury such as that suffered by this appellant, the initial treatment would be undertaken without the need for in-patient service, but with the same long term incapacity which is suffered by this appellant. I consider that the affect of the regulation is unjust both to this appellant and probably to many others who would otherwise normally qualify for assistance but for the requirement of'in-patient treatment. Accordingly, I direct the respondent to bring this decision to the attention of the appropriate Minister for that Minister's attention." I can only re-echo the above reasoning and sentiments of Judge Middleton. I understand the submissions of Mr Stringer based on equity and the object and intent of the legislation. However, in the above words of Judge Middleton, the wording of Reg 5 is quite clear and specific and allows no discretion whatsoever to this Court. I cannot act contrary to the regulation or case authorities which properly interpret that regulation. Mr Stringer asks me, inter alia, to go behind the regulation and case authorities "in the interests of justice", but those interests cannot be contrary to the law. In the case now before me, even though the appellant is unable to drive a vehicle which is manual or devoid of power steering and must labour under that disability for the foreseeable future, she does not come within the Regulation 2 definition of having "a long term disability". Therefore, she cannot qualify under Reg 5 for motor vehicle purchase assistance. It follows that this appeal is hereby dismissed. 6 DATED at WELLINGTON this 9 day of June 1997 Judge P F Barber District Court Judge adams.doc(sh)