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Accident Compensation Cases

TAYLOR v ACCIDENT REHABILITATION & COMPENSATION INSURANCE CORPORATION (DC, 01/08/94)

Judgment Text

DECISION OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is the decision of the Corporation to decline a request for private hospital treatment costs. 
The facts which gave rise to the appeal are that the appellant suffered a serious injury to his knee in a motorcycle accident on 24 September 1992. The appellant is now aged 34. On 12 February 1993 Mr I M Kelman, the appellant's Orthopaedic Surgeon, lodged an application with the respondent for approval of private hospital treatment to carry out an operation on the appellant's knee. At the time the appellant was working in a sheltered workshop and was certified by his general practitioner as being fit for selected work. 
The appellant said that over the intervening period since the accident he had problems coping with pain and discomfort in his right knee but had endeavoured to cope with it in order to work. As the pain increased he found that he had difficulty and on one occasion in that year his knee locked in an effort to stand after working on a sander machine. It was following that episode that he was referred to Mr Kelman who advised him to have an operation to relieve the pain and improve mobility. The appellant stated that since that time the problem has increased to the extent that he now uses a crutch for support and has taken time off work because of the pain. He has serious mobility difficulties and although his only method of transport is a bicycle he even has difficulty operating this. It appears that the waiting time for the same procedures in the public hospital is some 18 months while the operation can be performed without delay in a private hospital. The anticipated recovery period is three weeks. 
The appellant had been working through the services of an organisation known as Vanessa Lowndes, Abilities (Incorporated) which reported to the respondent: 
“That Mr Taylor is currently undergoing rehabilitation and work place training with our organisation. 
He is paid an attendance allowance of $35.00 per week. 
If he were to be further incapacitated by his injury, and unable to attend he would not be eligible for our attendance payment. ”
On 17 March 1993 the respondent advised the appellant that his application for private hospital treatment costs had been declined because: 
“The Accident Compensation (private hospital treatment costs) Regulations 1989 outline the conditions applying to approval of private hospital treatment costs. 
One of these conditions is that approval shall not be given unless the Corporation is satisfied that the provision of the treatment is necessary to the return of the client to his or her principal economic activity. 
In your case as you are currently in receipt of a non-taxable allowance and your incapacity is currently due to pain only, we are sorry to advise but you do not meet the criteria for acceptance. ”
The appellant applied for a review of that decision which was heard on 24 June 1993. In her decision the Review Officer accepted that the appellant had problems with his knee which prevented him from standing for long periods and that this effected his work. She also noted that the appellant was in receipt of a sickness benefit because of his injury but he wanted to undergo the operation because he wanted to get his life back to normal and obtain a good job. The Review Officer held that on the basis of his work history the prospects of obtaining a job even if he were fit were very slight. She concluded: 
“From this evidence I am not satisfied that the operation proposed would enable Mr Taylor to undertake remunerated employment. It is clear that there are other barriers in the way of him finding work. 
I am not persuaded that Mr Taylor is seriously seeking work at the moment, and it is apparent that his injury is not the only reason for this. Nor am I satisfied that following the operation there would be a reasonable prospect of him obtaining employment. ”
The appellant submitted that in spite of that finding by the Review Officer, he had made applications for jobs but because he now relies on a crutch for support he has found prospective employers will not even consider his applications because of his lack of mobility. He considers that until he is able to walk without pain he should not present himself for job applications because his present status appears to produce an immediate adverse effect with prospective employers. 
Mr Morrison referred me to Clause 11 of the Accident Compensation (Specialists Costs) Regulations (No. 2) 1990 which provides that the respondent shall not make any payment for private hospital surgical procedures as specified in the Schedule to the regulations “unless it is satisfied that it is necessary for the due restoration of the claimant to his or her principal economic activity or would enable the claimant to undertake remunerated employment … ”. There is no argument that the procedure specified by Mr Kelman is a procedure covered by the regulations. 
Mr Morrison referred me to a statement by the Appeal Authority Mr Cartwright in McWhirter (92/92) in which he said: 
“The evidence discloses that the Appellant was, at the time of the Respondent's decision, continuing to work in her principal economic activity, albeit with increasing difficulty. Therefore I must uphold Mr Blair's submission that the words ‘due restoration’ in the regulations refer not to restoration of mobility or physical condition but to restoration to a principal economic activity. The Appellant's concession that she was able to continue working, although not totally effectively, obliges me to dismiss the appeal. ”
He also referred me to Mr Cartwright's remarks in Tromp (135/92) where he said: 
“The Regulations to which I have referred earlier in this decision are strict in nature. They allow for no discretion. Unless the Respondent is satisfied that the treatment in question is necessary for the due restoration of the claimant to his or her principal economic activity, the approval sought cannot be given. In the case before me it is clear that although the Appellant's ability to work effectively was impaired, nevertheless he was able to continue working. As the Review Officer remarked during the course of the hearing, it was the Appellant's choice to give up his job. ”
Mr Morrison also referred to the decision of Sinclair (114/92) in which I held that the Corporation had taken a restrictive view of the appellant's future projected occupations which should be looked at in totality and that although he was a student he was required to work in his vacations to fund his existence but was precluded this because of the condition of his knee. On the totality of the evidence in that case, I held that private hospital expenses should be paid. 
Mr Morrison submitted that in this case the appellant is a sickness beneficiary who receives additional remuneration by way of a non-taxable allowance using woodworking skills at Vanessa Lowndes, Abilities (Incorporated). He submitted that on the evidence the need for the operation has not precluded the appellant from partaking in his principal economic activity. He has further submitted that the need for the operation has not precluded him from undertaking remunerated employment. I do not accept Mr Morrison's submission that on the basis of McWhirter and Tromp this appeal should be dismissed. The factual situation in both those cases were different in that McWhirter was working in her principal economic activity although with difficulty and it was for that reason the Appeal Authority rejected the submission that the operation would not provide “due restoration”. The situation in Tromp was again the position of a worker who was working in his principal economic activity again with difficulty but had chosen to give up his job. 
In this case the appellant has submitted that he has not been able to obtain work because of the increasing problems with his knee and that prospective employers have declined to employ him because he has had to attend using the crutch for support and they have considered that in that condition he is not employable. It is interesting to note the definition of “principal economic activity” in Clause 2 of the regulations that states: 
‘Principal economic activity’ includes study activities and domestic household activities that are not directly remunerated; and in the case of domestic household activities shall be determined without regard to whether or not the person has a spouse or other household member who is able to perform those activities. ”
The definition contemplates that “principle economic activity” involves study activities which are not directly remunerated may be entitled to assistance even though not earning. In this case the appellant is on a sickness benefit and is receiving a non-taxable allowance while he is undergoing “rehabilitation and workplace training”. In addition, one must have regard to the final part of Clause 11(2) of the Accident Compensation (Specialists Costs) Regulations (No. 2) 1990 which alternatively to the requirement for the need to restore the claimant to his or her principal economic activity provides “or would enable the claimant to undertake remunerated employment.” While the Review Officer concluded that because the appellant had been unemployed for some time she was not persuaded “that following the operation there would be a reasonable prospect of him obtaining employment, … ” I do not consider that the provision in the regulations requires that the appellant has an immediate job prospect following an operation. This appellant has found that because of his lack of mobility he is unable to successfully apply for a job. Until he is restored to mobility it is useless for him to apply for a job. He is therefore in a “catch 22” situation. He cannot apply for a job while he continues to suffer the knee problem and if the Review Officer's interpretation is correct he cannot have the operation until he can demonstrate that he has remunerated employment to him. I do not consider that that is the intention of the regulations. 
I consider that this appellant has been marking time trying to obtain additional skills and in attempting to obtain employment but with the increasing difficulties with his knee the only way in which he can obtain remunerated employment is by undertaking the operation. I consider the sooner this is done the sooner the public purse will be relieved of the burden of maintaining him. 
The appeal is therefore allowed and the application for approval of private hospital costs is granted. The respondent will have to fix the details of the costs and allowances in accordance with the applicable regulations. 

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