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Accident Compensation Cases

MAIKA v ACCIDENT REHABILITATION & COMPENSATION INSURANCE CORPORATION (DC, 07/12/94)

Headnote - Brookers Accident Compensation Reports

Judgment Text

DECISION ON THE PAPERS 
Judge A W Middleton
I have received submissions from Mr R A C Small on behalf of the appellant, and from Mr N G Morrison on behalf of the respondent, with the request that I issue a decision on the papers. 
The issue is whether the respondent should provide financial assistance for the purchase of a bed. 
The appellant suffered personal injury by accident to his back in December 1987 while employed as a machine operator in the timber industry. The appellant is now aged 30. The appellant underwent investigative and surgical procedures to his back and this was followed by a request for assistance to provide a firm mattress or futon. 
The appellant's Orthopaedic Surgeon issued a certificate on 16 July 1992 in which he stated: 
“I would support the use of a firm mattress or futon. ”
The appellant's general practitioner, Dr J D Armstrong, on the same day, issued a certificate in which he said: 
“Firm mattress or futon as suggested by Dr I McDonald. Could ACC assist in this?? ”
The submissions were supported by Fiona Gray, Assistant Charge Occupational Therapist at Queen Elizabeth Hospital, Rotorua, who requested the respondent to give consideration to and approval for the provision of a “Posturest queen-size bed and Postureflex GR natural mattress.” 
Miss Gray stated: 
“It has been found that his present bed is not supportive enough which aggravates his back and affects his sleep patterns which is not conducive to his condition. ”
On 12 March 1993 the respondent advised the appellant that the request for the bed was declined because regulation (7) of the Accident Rehabilitation and Compensation Insurance Act 1992 (Social Rehabilitation - Aids and Appliances Regulations) specifically excludes beds. The appellant applied for a review of that decision and the Review Officer referred to the Regulations and found that: 
“In my view that particular provision is for a bed which has the capacity to specifically and a particular treatment and cannot apply in the present case which according to the recommendation from the Queen Elizabeth Hospital is simply to afford better sleep and avoid aggravation and not for a specific treatment purpose. ”
The appellant was not legally represented at the review hearing but subsequently sought advice from Mr Small's office. Mr Small applied for leave to introduce additional evidence and this is granted. That evidence included a report from Mr McDonald dated 21 September 1993 in which he said: 
“I would indicate that Anthony Maika continues to have low back pain which may well be related to a degree of disc degeneration at the site of his previous laminectomy in 1988. I believe his condition would benefit from the provision of a firm support mattress. ”
In addition, Mr Small provided a copy of Miss Gray's report of 13 October 1992 together with advertising material in relation to the bed proposed to be purchased. Included in that material is the statement: 
“It has integrated disc pegs to allow for even greater tension adjustment and correct spinal alignment. ”
And further: 
“It provides relief to respiratory ailments, spinal disorders, hiatus hernia, cardiac conditions, tension, poor circulation, thrombosis, M.S., rheumatism, varicose veins and less common medical conditions. 
The Autoflex bed also incorporates several superior features: infinitely variable adjustment, silent duomat motor, automatic neck adjustment, deluxe slat system, tension adjustment, optional massage unit. ”
Mr Small referred to the various medical reports and the fact that Dr Armstrong and Dr McDonald had each recommended the provision of a firm bed to give support to the appellant's back. Mr Small submitted that the crucial issue is whether or not the bed will “aid treatment”. He then provided me with various dictionary interpretations of the word “aid”. He submitted further that the use of the word “beneficial” by Fiona Gray was consistent with the design of the bed being beneficial in the treatment of the appellant's back problems and that this was supported by the quotations from the literature relating to the beds advantages. 
Mr Morrison submitted that the issue was governed by the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992. Regulation (3) of which states: 
“3. Application — Subject to these regulations, these regulations shall apply - 
(a)
To any application received on or after the 1st day of July 1992 from a claimant for payment for an aid or appliance; and 
(b)
To any request for the purchase or hire of a wheelchair or other aid for daily living pursuant to section 37(3)(f) of the Accident Compensation Act 1982 where the Corporation has not approved the expenditure on or before the 30th day of June 1992. ”
Regulation 7 of the same Regulations states: 
“7. Scope of aids and appliances — 
(1)
Subject to subclauses (2) to (5) of this regulation, without otherwise limiting the scope of aids and appliances that may be approved, the aids or appliances that the Corporation or exempt employer may approve shall include aids and appliances or a kind specified in the First Schedule to these regulations. 
(2)
Subject to subclause (3) of this regulation, the Corporation shall not, and an exempt employer shall not be obliged to, approve payment for the purchase of any aid or appliance of a kind described in the Second Schedule to these regulations. 
(3)
The Corporation or exempt employer 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 or exempt employer 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. 
(4)
No payment shall be made under the Accident Compensation (Prescribed Artificial Limbs, Aids and Prosthetic Appliances Costs) Regulations 1990 (SR 1990/244) for the purchase of an aid or appliance of a kind specified in the First Schedule or Second Schedule to these regulations. ”
Regulation 8 of the same Regulations states: 
“8. Conditions of approval — 
(1)
The Corporation shall not, and an exempt employer shall not be required to, approve payment for the purchase of an aid or appliance which the Corporation or exempt employer 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. 
(2)
No approval for payment for the purchase of an aid or appliance shall be given by the Corporation, or be required to be given by an exempt employer, after the expiry of 13 weeks from the date of the personal injury unless the payment for the purchase of the aid or appliance forms part of an individual rehabilitation programme approved under section 20(4) of the Act. ”
The First Schedule to the Regulations referred to in regulation 7(1) includes as item 16: 
“Specialised mattress design for persons with disabilities. ”
The Second Schedule which is referred to in regulation 7(2) includes as item 4: 
“Beds, including water beds. ”
The Third Schedule which is referred to in regulation 7(4) includes as item 1: 
“Beds, (hilo, turning or otherwise designed to aid treatment), but excluding waterbeds. ”
Mr Morrison submitted that the appellant's application is for a bed which is covered by the exclusionary item (4) in the Second Schedule. He accepts that both the specialist and the general practitioner have suggested a firm mattress or futon. The bed suggested by Fiona Gray is not one which is designed to aid treatment which would be allowed under the Third Schedule. 
I take the view that the Regulations clearly indicate that the type of aid which may be provided is one that will have specific properties to assist in treatment of the injured person. I consider it is for this reason that the examples of “hilo, turning or otherwise designed to aid treatment” in the Third Schedule are included to specify the type of bed for which it is envisioned approval may be granted. This is further supported by the fact that there is a blanket prohibition of “beds, including water beds” in the Second Schedule. 
Accordingly I agree with the decision of the Review Officer that the request for financial assistance must be declined because this is not an aid or appliance which is manufactured specifically to provide treatment for the appellant. (emphasis mine) 
The appeal is dismissed. 

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