Redpath v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 119 199 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 WILLIAM DENNIS REDPATH DCA 308/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of April 1999 APPEARANCES: Mr C Hutchison advocate for appellant Mr A D Barnett counsel for respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to rule that the appellant was not entitled to assistance from the respondent for the purchase of a 2 motor vehicle pursuant to the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992. BACKGROUND The appellant is now aged 65 years and is a beneficiary. On 9 September 1975 he injured his right knee in a motor cycle and on 9 September 1994 he injured his left knee in a fall from a ladder. Both knees have required extensive surgery including joint replacement (left knee) and arthrodesis (right knee). He has been incapacitated from work since mid 1995. In August 1995 the appellant applied for assistance for the modification of the controls of his motor vehicle to hand controls. This application was followed by a further application that the appellant be given financial assistance for the purchase of another vehicle more suitable for his then disabilities and that that be the vehicle adapted to hand controls. The respondent sought advice upon the matters, including advice as to the situation of his present motor vehicle, a 1985 automatic Holden Commodore. The advice was that this vehicle was suitable for modification and that it had some years of motoring left in it. On that basis the respondent advised that it would agree to pay for the costs of modifying his Holden motor vehicle to hand controls but would not make a grant towards the purchase of another motor vehicle. A separate matter which was being considered by the respondent at the same time was the appellant's need for a wheelchair and in that regard there were two options, the first being a folding frame wheel chair known as a Kurschell Classic costing $1,885.00 + GST and the second option was a fixed frame ultra light weight "Panther" custom made in New Zealand at a cost of $2,900+ GST. The advice of the Occupational Therapist was that option 2 was more desirable for the appellant's requirement. In a separate decision the respondent ruled that it would pay the cost of the Kurschell Classic. The two separate decisions of the respondent namely, declining a grant for the purchase of a new motor vehicle and the agreement to purchase the cheaper and less suitable of the two wheelchairs was thereupon taken on review. It is to be noted that there is no dispute that the appellant satisfies the necessary criteria in the Act and the Regulations for entitlement for assistance under those regulations for the purchase and modification of a motor vehicle and the only issue is whether or not its decision against a grant is one that is reasonable in the circumstances. These two matters came on for hearing before Mr Winter, Review Officer, in June 1997, and in a decision dated 27 July 1997 and the Review Officer ruled that the appellant was entitled to be reimbursed for the purchase of the Panther Wheelchair which he had in fact purchased and that it was recognised that this was the more suitable wheelchair for his use. Insofar as the vehicle purchase - modification was concerned, it was determined that before such a decision on that matter be made it would be desirable to determine whether the appellant's Holden motor vehicle was suitable for the transportation of the wheelchair and that this question should be addressed before any decision be made finally on the matter of modification of that vehicle to hand controls or the provision of a grant towards the purchaser of another motor vehicle more suitable for transportation of the wheelchair. For that purpose the Review Officer again commissioned Ms Leanne Leadbetter, Clinical Manager, Occupational Therapy Department Burwood Hospital, to report to him on that matter. Ms Leadbetter had previously been advising the respondent on the question of the wheelchair and also co-ordinating the advice regarding the 4 suitability of the Holden vehicle for modification prior to the wheelchair factor being introduced. The hearing of the review was therefore adjourned to await this further report. It should be noted that certain aspects of the suitability of the Commodore to transport the wheelchair had been raised by the appellant's advocate at that hearing and therefore, I propose to set out the letter of instruction from the Review Officer to Ms Leadbetter which sets out the areas of contention. "In evidence, a number of matters were raised relating to your latest report which I would appreciate your clarification on. Mr Redpath said that he was unable to fit his panther wheelchair in the front seat of his Commodore car. He said that it fitted in the back seat although no space was left for seating. (ie: no back seat passengers could be carried). Mr Redpath said that his panther wheelchair could also be stored in the boot of his car utilising an elastic tie-down system. He said however, that he was unable to see through his rear window when storing his wheelchair in this manner. His advocate, Mr Hutchison, commented that this was a dangerous practice and he submitted that the wheelchair was likely to deteriorate rapidly being stored in this way (ie exposed to the elements). Mr Hutchison indicated that a "hatchback" with a low rim would be more appropriate given Mr Redpath's circumstances. It would assist me if you could comment on the claims made by Mr Redpath and Mr Hutchison as noted above and I take it that you will contact the claimant direct should you need to see him again. Obviously, there is some dispute as to whether his panther wheelchair will fit in the front seat of his Commodore car." Mr Leadbetter reported to the Review Officer by letter dated 27 March 1998 and her report states as follows: "Re: William Dennis REDPATH REVIEW NO. R89/97/923 With reference to your letter dated 25 March 1998 the following information pertains to your queries. 1. Mr Redpath being unable to fit his Panther wheelchair in the front seat of his Commodore car. His Panther wheelchair can fit in the front seat of the Commodore car easier than the back seat. There is plenty of room in this space. 2. Mr Redpath stated he fitted the Panther wheelchair in the back seat although no space was left for seating. The wheelchair can fit in the back seat although it is difficult to store it here, especially behind Mr Redpath's seat as he has the seat well back so he can drive the car using his legs. 3. The reduction of passenger seats when the wheelchair is stored inside the car. This point was discussed with Mr Redpath when the wheelchair assessment was completed. I recommended to him that a folding frame would be a far easier wheelchair because it could be stored on the roof or in the boot of the car. Mr Redpath understood the implications of his decision to mobilise in a fixed frame wheelchair. 6 4. Storing the Panther wheelchair in the boot of the car using an elastic tie-down system. Mr Redpath was fully aware that this would have to occur in his present vehicle when his car had passengers. He was anticipating a change in vehicle in the future, and said he would make sure that the next vehicle that was purchased would have an appropriate boot that this wheelchair could be stored into. When the boot is tied down with an elastic tie down system, the restricted view at the back is minimal. 5. Deterioration of the wheelchair while stored in the boot using the tie down system. This wheelchair is a hard wearing wheelchair being top of the line fixed frame wheelchair. It is very unlikely that it would experience rapid deterioration being stored in the boot in this way. The boot is close to closing using the tie-downs with a small gap exposing the wheelchair to the elements. In summary, when a new vehicle is purchased for Mr Redpath he would need to make sure he purchased a vehicle which had an appropriate boot to store his wheelchair. I am unable to comment on whether because of the choice of wheelchair Mr Redpath has selected has contributed to the vehicle being unsuitable for a disabled person to drive. As stated in my report dated 24 December 1996, Mr Redpath is at risk driving his vehicle using his feet. The question is whether we should modify his current vehicle (at the cost stated in the above report), or modify a new vehicle which would meet all his needs, including storage of a fixed frame wheelchair in the boot. His current car has had major motor repairs completed on it. It is suitable in meeting Mr Redpath's needs as a driver (when modified with 7 hand controls), with the only disadvantage of this vehicle being that the boot is not big enough for his new fixed frame wheelchair. There is space in the front seat of this car to store the wheelchair, and when Mr Redpath has a passenger sitting in the front, the passenger can store the wheelchair in the back seat." Following the receipt of that report from Ms Leadbetter the hearing of the review reconvened on 19 March 1998. Unfortunately, no transcript of that hearing survives. Mr Hutchison represented the appellant at that review hearing and he informed me that submissions were made and evidence given that the Holden Commodore was not a suitable vehicle for the transportation of the appellant's wheelchair and that it could not be satisfactorily stored in the front seat or the boot as had been reported by Ms Leadbetter. Mr Hutchison said he advised the Review Officer that the vehicle and the wheelchair were available close at hand for inspection by the Review Officer and for him to form his own judgement, but that he declined to do so. Subsequent to the hearing and before a decision was made Mr Hutchison produced photographs of the car and the wheelchair showing it in various positions with a view to demonstrating that the vehicle was not suitable for the transportation of the wheelchair. In addition to the photographs, he produced a report from a Ms Fitzgibbon, Occupational Therapist, and the relevant details of her report are as follows: "Mr Redpath has been assessed as requiring a fixed frame Melrose wheelchair with knee support. He is dependent on the wheelchair for transport outside of the home environment owing to his limited mobility and asthma. The problems 1. For several physical reasons Mr Redpath requires a fixed frame chair which he is currently lifting, with great difficulty, into the front or back of the car. 2. The front is inadvisable as this is hazardous and would interfere with driving. 3. Although physically able to manage the back seat, lifting a chair of this weight and bulk, given Mr Redpath's medical history is unsatisfactory and more likely to result in further injury. 4. The boot is not a viable option due to the height of the door and the size of the chair - it will not close. 5. Mr Redpath requires a four seater car to transport a son and daughter who also have medical problems. Solution I support Mr Redpath's concern regarding the transport of his wheelchair. I can see no quick solution to these problems unless Mr Redpath buys a new car." In his decision the Review Officer again recorded the fact that there was no dispute that Mr Redpath was permanently unable to drive in a vehicle without modifications and that his inability to drive is the result of a long term disability. The Review Officer found that the appellant's present car could accommodate his wheelchair and he found that the evidence confirmed that there were three options available for storing his wheelchair, albeit with some problems with each. The Review Officer preferred the advice of Ms Leadbetter and considered that the photographs were not helpful and stated that there may even be some element of 9 subterfuge in them. The Review Officer went on to say "I appreciate that Mr Redpath may encounter some difficulties when transporting other people in his car although this does not really come into the equation in when considering whether the purchase of a new vehicle is necessary for him to achieve independence in daily living. " He noted that a claimant cannot expect the subsidy from the state for a vehicle to transport children and he noted that the appellant's wife also owned a motor vehicle. The appellant now appeals to this Court against that decision and no further evidence was sought to be adduced for the purposes of this appeal. The relevant regulatory provision is Reg. 7 of the Purchase and Modification of Vehicles Regs. 1992 which states: "The Corporation shall not be required to (a) Contribute to the purchase of a vehicle where a vehicle owned by the claimant or a person proposing to transport the claimant, is suitable for modification in order for the claimant to achieve independence in daily living." SUBMISSIONS Mr Hutchison, on behalf of the appellant, submitted that it was wrong of the Review Officer not to witness a practical demonstration of the unsuitability of the Holden Car for the transportation of the appellant's wheelchair and that it was quite wrong and unfair to then comment on the photographs that were produced as containing an element of subterfuge. Mr Hutchison further submitted that the evidence was that the Holden could not accommodate the wheelchair and that this was demonstrated both in the photographs and in the advice of Ms Fitzegibbon, Occupational Therapist. 10 Counsel further submitted that the Review Officer was incorrect to state that the appellant's wife owned a motor vehicle and that this may have been an influencing factor when considering whether the Holden vehicle was required to be used as the family vehicle for transporting the appellant, his wife and other members of the family. Counsel submitted that in order for the appellant to achieve independence in daily living it was essential that the Motor Vehicle be able to transport his wheelchair and that he be put in the same position as any other person insofar as the use and availability of a motor vehicle for family purposes. Mr Barnett, counsel for the respondent, submitted that Regulation 7(1)(a) states that the Corporation "shall not" contribute... . Thus, where a person's car is suitable for modification the Corporation's expressly prevented from contributing to the purchase of a new car. Counsel submitted that the evidence is clear that the appellant's Holden car was suitable for modification. Counsel submitted that nothing should be read into the fact that the Review Officer did not accept the invitation to see a demonstration of the wheelchair in the car. He submitted that it was beyond the expertise of the Review Officer to consider the physical capabilities of the appellant and suitable storage options for a wheelchair. He submitted it was appropriate that he relied on the expert advice he received rather than drawing his own conclusions on the basis of viewing photographs or inspecting the car. Counsel accepts that the Review Officer was mistaken in believing that the appellant's wife had a car but submits that that fact is not important in the context of the decision, as in terms of the appellant's responsibilities for transporting his family, it was Ms Leadbetter's view that the wheelchair could be carried in the boot leaving more room for passengers. 11 Counsel finally submitted that whilst a hatchback motor vehicle may be the ideal solution for transporting the appellant's wheelchair the purchase of a hatchback is not necessary for the claimant to achieve independence in daily living. DECISION The issue in this appeal requires this Court to form a value judgment as to whether or not a contribution to the cost of purchase of a more suitable motor vehicle for the transportation of the wheelchair, was necessary for the claimant to achieve independence in daily living, that being the objective of the relevant regulation. In the circumstances of this case and having regard to the issue that was ultimately before the Review Officer, I find it astonishing that he did not elect to see for himself whether the panther wheelchair could fit into the Holden satisfactorily in any one of the three locations stated by Ms Leadbetter. I find that particularly so in view of the fact that there was the evidence of the appellant that the wheelchair could not do what Ms Leadbetter contended and secondly there was the subsequent advice of another occupational therapist to the same effect. This Court has viewed the photographs, which are several in number, showing the wheelchair in its fully set up position and in its folded position and then showing how that wheelchair fits in the front seat, the back seat, and the boot. The Court was informed that it was the evidence of the appellant that the wheelchair encroached into the "driver's zone" when in the front seat and interfered with normal driving. It did fit in the back seat but left no room for any passenger and was quite difficult to remove. Insofar as the boot is concerned, the photographs clearly show that even in its collapsed form the boot is far from nearly closed and does constitute an obstruction to rear vision. 12 It is also common ground that a hatchback type motor vehicle would not present any problems for the transportation of the appellant's wheelchair. Having considered the facts as they have been presented in the photographs and in the reports of the two occupational therapists I find that the appellant's Holden Commodore is not suitable for the transporting of his wheelchair either from a traffic safety point of view or from the perspective of the appellant's ability to manoeuvre and deal with it having regard to his incapacitated condition. I further find that the expectation that the vehicle can be used by the appellant himself and that other members of the family are not a consideration for determining the claimant achieving independence in daily living, is not the case. There is the factor of his wife not owning a motor vehicle and contrary to the submission of counsel for the respondent I find that this was likely to have been a weighty factor in the Review Officer's decision. In this case I find that the failure of the Review Officer to view the wheelchair and the vehicle probably accounts for the reason he came to the decision he did. I reject counsel for the respondent's submission that he was entitled to rely on the opinion of Ms Leadbetter rather than drawing his own conclusions. I find that no particular expertise is required in looking at a wheelchair in a motor vehicle and seeing whether, both from a utilitarian and from a safety point of view, that wheelchair can be safely transported. Such an assessment is surely within the competency of a Review Officer. This is a situation where the respondent, by a separate and independent decision, has acknowledged that the particular wheelchair now provided to the appellant is the correct one and therefore there needs to be the corresponding ability to transport it. For the reasons given, I find that at present there is not that corresponding ability and therefore the decision of the Review Officer must be revoked. 13 I find that this appellant is entitled to have the respondent contribute towards the purchase of a suitable motor vehicle which is necessary in order for him to achieve independence in daily living. The appellant is entitled to costs which I fix at $800.00. DATED at WELLINGTON this | Itday of May 1999 Denthe M J Beattie District Court Judge Redpath.doc(gm)0