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Accident Compensation Cases

MEEK v ACCIDENT REHABILITATION & COMPENSATION INSURANCE CORPORATION (DC, 18/05/94)

Judgment Text

DECISION OF JUDGE D A ONGLEY 
D A Ongley Judge
This appeal is against the determination of the review officer confirming the Corporation's decision declining to continue to pay for a “Neva Alone” unit which had previously been provided to the appellant under provisions of the Accident Compensation Act 1982“the 1982 Act”
The “Neva Alone” unit is a device used to alert the Armourguard Security and Communications organisation in an emergency when the user cannot reach or use a telephone. The unit consists of a pendant worn around the user's neck and a receiving device attached to an ordinary telephone. By pressing a button on the pendant the device is activated and a signal relayed on the telephone line to an Armourguard Communications centre. Armourguard has an arrangement to contact persons recorded on the user's list until a response can be obtained and help can be provided. The unit provides a very valuable protection for the appellant, enabling him to continue living on his own as he has done for more than 40 years. He has fallen three times since December 1992 and, for the purpose of this decision, it may be regarded as probable that he could not continue living on his own without the security and protection provided by the “Neva Alone” unit. 
The Accident Compensation Corporation met the rental cost of $17.43 per week. Following repeal of the 1982 Act any continuing authority for the Corporation to pay for the unit has to be found in the Accident Rehabilitation and Compensation Act 1992“the Act”. There is no evidence identifying the particular section of the 1982 Act which was originally invoked as authority for the payment. The Corporation considers that the payments were made pursuant to s 80 of the 1982 Act which provided: 
“80. Compensation for pecuniary loss not related to earnings: 
(1)
Where a person suffers personal injury by accident in respect of which he has cover .. the Corporation, having regard to any other compensation payable and any rehabilitation assistance to be provided, may, under this subsection, pay to him .. compensation of such amount (if any) as it thinks fit for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury .. ”
Section 80 is preserved to a limited extent by s 149(1) of the Act. 
“149. Compensation for pecuniary loss not related to earnings - 
(1)
Where any person was receiving or entitled to receive any compensation under .. section 80 of the Accident Compensation Act 1982 immediately before the 1st day of July 1992, that section shall continue to apply to payments in respect of that person until the 31st day of December 1992 as if those sections had not been repealed. ”
If s 149 was the only provision preserving his payments for the Neva Alone unit, the appellant would then have to find some provision in the 1992 Act. The only applicable section would be s 26: 
“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. 
(2)
The objective of social rehabilitation is to restore the independence of the person that has been lost by personal injury covered by this Act. 
(3)
Any regulations referred to in subsection (1) of this section shall apply in respect of all persons, conditions, or items that are of the same class or category. 
(4)
In this Act, ‘social rehabilitation’ includes, but is not limited to, - 
 
(f)
Provision of, or payment for, wheelchairs and any other aids and appliances likely to assist independence in daily living; and 
 
(7)
No payment in respect of any item referred to in subsection (4) of this section may be made by the Corporation other than under this section. ”
It was not disputed that the Neva Alone unit was within the description of s 26(4)(f) but the respondent considers that it is not permitted by regulations under the Act. Before examining Mr Blathwayt's argument it is appropriate to mention that the only applicable Regulations are the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992. Those Regulations define “aid or appliance” as: 
‘Aid or appliance’ means a manufactured item for use in New Zealand likely to assist a person with a disability to achieve independence in daily living: ”
The scope of the definition is modified by Regulation 7(2): 
“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 and appliances that the Corporation or exempt employer may approve shall include aids and appliances of a kind specified in the First Schedule to these Regulations. 
(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. ”
The First Schedule includes the category: 
“6.
Telephones and telephone modifications specifically designed for use by a disabled person. ”
The Second Schedule, which excludes categories of aids and appliances, refers to: 
“36.
Any other equipment or furniture not specifically designed for use by people with disabilities. ”
Finally, as to the basis for payment under the Regulations: 
“5. Approval of payments for aid or appliance - 
(1)
On receipt of an assessment undertaken pursuant to regulation 4 of these regulations, the Corporation or exempt employer shall give approval in principle to the purchase of any aid or appliance recommended in the assessment, to the extent that the Corporation or exempt employer considers necessary in order to assist the claimant to achieve independence in daily living. ”
The Corporation takes the view that the “Neva Alone” unit is not a telephone modification, furthermore that it is, in any case, not specifically designed for use by a disabled person, and finally, that the payments to Armourguard are not in the nature of a purchase under regulation 5 but they include a periodic payment for a monitoring service. Therefore the Corporation is unable to find any authority for continuation of the payments. That is not to say that the unit does not provide a very important safeguard for the appellant and that safeguard may well be essential to his continuing ability to care for himself independently. 
I accept the Corporation's submissions that expenditure on the unit is not independently authorised under the new Act. It is an aid or appliance in the terms of Regulation 2 of the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992. It is specifically designed for use by a disabled person, in the sense that it is designed for the use of a person temporarily disabled by a fall or in some other way immobilised at a distance from the telephone. No argument has been heard on the meaning of the expressions “disabled person” and “people with disabilities” contained in the Schedules to the Regulations. On considering the definitions in the Act I am drawn to the conclusion that those expressions are limited by the scope of the Act and are not wide enough to include persons temporarily disabled by a fall. Under s 2 of the Act: 
‘Disability’ means any restriction or lack (resulting from impairment) of ability to perform an activity in the manner or within the range considered normal for a person. ”
In interpreting the Act and Regulations, “disabled” should receive a similar interpretation. The interpretation is further restricted by the definition under s 2 of impairment: 
‘Impairment’ means any loss or abnormality of psychological, physiological, or anatomical structure or function. ”
The unit contemplates use by people who are at risk, through being isolated or elderly without necessarily suffering a disability. It is not specifically designed for use by people with disabilities, that is the difficulty. When the unit is actually used in an emergency for which it is intended, there is nearly always likely to be an accompanying loss of physiological or anatomical function because the user cannot mobilise his or her body to get to a telephone or dial a number. However, the unit assists independence by providing a safeguard in emergencies. Its users include people who are not impaired but are only at risk of loss of bodily function in an emergency. While it is obviously of benefit to disabled persons, It can not be regarded as being specifically designed for use by disabled persons. For those reasons, I reach the conclusion that it is not an aid or appliance which satisfies the categories in the schedules of the Regulations. 
The appellant advances another argument resting on s 136 of the Act. The appellant does not accept that the original payments were made under s 80(1) of the 1982 Act but suggests they could well have been authorised under s 36 and s 37 relating to the duty of the Accident Compensation Corporation to promote rehabilitation. The distinction is not however essential to the appellant's argument because, it is submitted, s 136 of the Act can be read together with s 149: 
“136. Rehabilitation after 1 July 1992 - 
(1)
Subject to section 149 of this Act, the entitlement to rehabilitation of any person who has had a claim accepted for personal injury by accident with the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 shall be determined under this Act as if that personal injury by accident was personal injury covered under this Act. 
(2)
No individual rehabilitation programme shall be required for rehabilitation provided before the 1st day of October 1992. 
(3)
Any approval of expenditure on any purchase of or modification to motor vehicles, modifications to residential premises, or provision of or payment for wheelchairs or any other aids and appliances likely to assist independence in daily living under the Accident Compensation Act 1982 shall be deemed to be approved as part of an individual rehabilitation programme under this Act. 
(4)
Where a person is in receipt of vocational rehabilitation immediately before the 1st day of July 1992, the limitations on the provision of or payment for vocational rehabilitation under section 23 of this Act shall apply as if the provision of or payment for that rehabilitation had commenced on the 1 st day of July 1992. ”
Whether or not the payments were initially approved under the rehabilitation sections of the 1982 Act, they certainly fall within the description in s 136(3). There is no automatic date under this section for payments to lapse. Section 136 does not continue the payments indefinitely but deems the approval of expenditure to be part of an individual rehabilitation programme under the 1992 Act. The consequences which would then flow are, firstly that the appellant would qualify for payment for the device notwithstanding the new and limited authority which the Corporation now has under the above-mentioned Regulations, and secondly, that the qualification for payment would continue until the Corporation exercises a power under the Act to terminate the individual rehabilitation programme which is deemed to exist under s 136. 
The respondent's view is that the provision does not fit into the concept of an individual rehabilitation programme under s 20 of the Act. However if the device is in fact included in the description in s 136(3) it does not matter that it would not have been approved as part of an individual rehabilitation program under the Act. The practical implication may be that the Corporation could, for other reasons, review the programme which is deemed to exist, invoking the power in s 20(6) which provides: 
“(6)
The programme may be modified from time to time, as necessary, to achieve the objectives of rehabilitation, and subsections (4) and (5) of this section shall apply in respect of the approval and implementation of any modification. ”
The power should not be exercised merely for the reason that the payment would not have been authorised under the Act. 
Finally there is a question whether s 26(7) prevails so that notwithstanding the existence of a continuing rehabilitation program by virtue of s 136(3) expenditure is prevented by s 26(7). That cannot be the intention of the Act because s 136(3) refers expressly to approval of expenditure on “provision of or payment for .. aids and appliances likely to assist independence”
The review officer's decision is therefore revoked. The appellant is entitled to continuation of the payments and payment of the arrears. The appellant is awarded $350 costs on the appeal. 

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