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Accident Compensation Cases

Woods v Accident Compensation Corporation (DC, 10/12/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 20 November 2000, whereby the respondent determined that the appellant was entitled to receive 95 hours per week of attendant care. 
[2]
It is the appellant's position that he contends that he is entitled to 24 hour care, that is 168 hours per week. 
[3]
The background facts relevant to the determination of the issue in this appeal are not in dispute and may be stated as follows: 
At the date of the respondent's decision the appellant was 44 years of age. The appellant is a C5 tetraplegic following an accident in November 1976. 
Since the date of his injury the appellant has been in receipt of various entitlements including attendant care and home help. 
Following the High Court decision in ARCIC v Campbell (1996) NZAR 278, the appellant was paid a lump sum in 1998 in respect of arrears of the shortfall of attendant care which the respondent determined had been the case. The appellant was one of a number of persons who were treated in the same way. 
In February 1999 the appellant's home help and attendant care requirements were assessed by Alison McNamara at a total of 99.5 hours. No issue was taken with that assessment. 
On 9 July 1999, Alison McNamara made a further assessment identifying an entitlement of 103 hours. No issue was taken with that assessment. 
On 15 September 2000, David Guest, Occupational Therapy Specialist and Disability Assessor, reported to the respondent on his assessment of the needs and personal care requirements of the appellant, which assessment he had commenced on 10 July 2000. 
In his report dated 15 September 2000, Mr Guest identified a total requirement of 95 hours 40 minutes plus additional as required. 
By decision dated 20 November 2000 the respondent advised the appellant, through his counsel, that his weekly needs had been assessed as requiring 95 hours of care, totalling $1151.60 per week, but that as this was less than his current weekly entitlement from the previous assessment, which amounted to $1170.12, the monetary amount paid would remain at that latter figure. 
The appellant, through his counsel, sought a review of that decision and a Review Hearing took place on 1 May 2001, at which the appellant was represented by counsel. It was the thrust of counsel's argument that the appellant was entitled to 24 hours a day care. 
In his decision dated 28 May 2001, the Reviewer accepted the correctness of the assessment made by Mr Guest, he not having received any evidence which would indicate that it was wrong. The respondent's decision was therefore confirmed. 
[4]
For the purposes of the appeal to this Court, Counsel for the Appellant has introduced a Needs Assessment Report from Mary More, Registered Nurse and Disability Assessor, dated 4 November 2002. 
[5]
It is also the case that on 31 August 2002 the appellant was admitted to Palmerston North Hospital with congestive heart failure where he remained until 17 September 2002. Following his discharge from hospital he was further assessed and he was determined as having a need for 24 hour care and that regime commenced as from 17 September 2002, being the date of his discharge from hospital. 
[6]
As earlier noted, it is the assertion of Miss Thistoll, Counsel for the Appellant, that the appellant was entitled to receive 24 hour care at least from the date of Mr Guest's assessment upon which the respondent's decision was based. 
[7]
The principal reason for making this assertion was the fact that the appellant was essentially helpless in his home at night and that if he could not operate the environmental control system, with which he had been supplied, he was potentially in a dangerous situation and which needed somebody close at hand to address. 
[8]
It is the case that the appellant has no ability to affect the environment around him without caregiver input or the use of technology. That is indeed the statement of Mr Guest when he gave advice on the various aspects of the appellant's environmental control unit in a report dated 26 March 2001. 
[9]
The appellant was provided with an environmental control unit which had various switches which enabled him to control his room temperature, lighting, entertainment and telephone. It is the case that the appellant had very limited control over his bodily functions but he was able to operate a control console which operated these various environmental options. 
[10]
It was Miss Thistoll's contention that whilst it was all very well for the appellant to have the environmental control, this did not take account of a sudden emergency where he was physically incapable of operating the console and where he was in his bed totally at the mercy of whatever had befallen him without being able to do anything about it. She indicated that this was particularly the case when it was known that he was prone to spasms. 
[11]
It was Miss Thistoll's submission that the assessment carried out by Mary More ought to be preferred. That assessment recommended 24 hour per day care. 
[12]
Mr McBride, Counsel for the Respondent, submitted that the period with which the Court must be concerned was that from 20 November 2000 onwards and that the earlier assessments carried out had not been questioned and could not now be revisited. Counsel submitted that Mr Guest, the Assessor, had correctly identified the level of the appellant's needs at night and that the additional part of the decision under review provided adequately for any additional help that may be required. Counsel noted that the respondent's decision stated that if the appellant had a requirement for night care over and above the 7 hours per week allocated, these could be claimed for on a personal support reimbursement form as needed. 
[13]
Counsel further submitted that Miss More's assessment could not be considered accurate as at November 2000 when it was carried out in October 2002 after the appellant had suffered his heart failure and which had been recognised by the respondent as changing his circumstances and for which he was subsequently accorded 24 hour care. 
Decision 
[14]
This is an appeal where the appellant has cover under the 1972 Act and by succession under the 1982 Act. Those Acts had a somewhat looser statutory provision for the payment of home help and attendant care than the 1992 and 1998 Acts. Those statutory provisions, namely Section 121 of the 1972 Act and Section 80 of the 1982 Act, were preserved by Section 437 of the 1998 Act. 
[15]
Under the provisions of Section 80 of the 1982 Act the respondent is given a discretion to pay such amount as it thinks fit for the necessary care of the person in any place of abode or institution. 
[16]
In its dealings with the appellant the respondent has always recognised that his entitlements arise under that statutory provision rather than the more rigid provisions for persons who were granted cover under the later statutes. 
[17]
In furtherance of the exercise of its discretion, the respondent commissioned a series of assessments on the appellant's needs, and I have detailed these in the background facts. Suffice it to say that Mr Guest's assessment, which is the assessment in question, is very similar to the two previous assessments carried out by Alison McNamara. The area of contention raised by Counsel for the Appellant was that of night care and Mr Guest has specifically addressed this matter in his report where he stated as follows: 
“Mr Woods' needs during the night are, by their nature, unpredictable. Mr Woods either has to contact his caregivers by phone or his family to come and assist. Mr Woods no longer wishes to use his family in this manner. Mr Woods is of the firm belief that his night care needs place him in the position of requiring 24 hour care. Mr Woods has noted that these episodes could be from 2 days a week to every night and possibly for multiple times per night. Therefore Mr Woods has a need for night care, this night care cannot be programmed for a specific time as the events are unpredictable. 
It appears that Mr Woods does not literally need care every hour of the night, neither does he need supervision for safety hazards during this time. Mr Woods is aware of his needs at night and has the cognitive ability to call for assistance if required. Mr Woods therefore needs to have personal care on call as required. He may not require this on some nights and therefore the hours required are difficult to place a figure upon. It is suggested that Mr Woods is provided with 7 hours night care on the expectation that 1 hour per night may be used, with the anticipation that some nights will require less time and on more labour intensive nights this will average out. 
Mr Wood would prefer for the caregivers to sleepover and therefore the process of contacting his caregivers and the undertaking of tasks is easier on his caregivers and simpler and more immediate for him. ”
[18]
In contrast to that Miss More stated in her report as follows: 
“At present Nigel's nocturnal needs are not being adequately met. Personal security and safety are issues which are not addressed with 104 caregiver hours per week. The inconvenience of having to call somebody and wait if he is incontinent or has a spider on him is distressing as well as threatening to his skin integrity. 
Because of his disability Nigel needs someone with him all the time. ”
Miss More identified that the appellant did not feel safe alone at night, being nervous of burglars and intruders. She also mentioned his inability to cope with insects which might crawl onto him. 
[19]
The night care seems to be the area of difference between the two competing assessments but it also must be noted that Miss More's assessment was carried out after the appellant had become less capable and in which condition Miss McNamara also subsequently identified a need for 24 hour care. 
[20]
The circumstances of this appeal are that the appellant is seeking to question the exercise of the respondent's discretion given to it pursuant to Section 80 of the 1982 Act. An appeal against the exercise of a discretion is one where it needs to be demonstrated that the discretion has been exercised on a wrong principle, or has not correctly identified the statutory requirements under which that discretion is to be exercised, or that, standing back, it must be said that the decision in question was plainly wrong. A recent statement of that legal position was given by this Court in the decision of Waaka (Decision 101/03) and it is noted that that decision followed a recent re-statement of the law from the Court of Appeal in Alex Harvey Industries v Commissioner of Inland Revenue (CA 36/01). 
[21]
The assessment of Mr Guest identified the regular and necessary needs of the appellant on an hour by hour, day by day basis throughout a seven day period. He came to the view that total night-time care was not required and that estimated call-outs to nearby caregivers could be met within a seven hour per week timeframe, but that he recognised that if there were needs which required care over and above those seven hours then they would be met on a case by case basis. All that was required from the respondent's perspective was a reimbursement form to be supplied. It is to be noted that no other forms were required for the appellant's attendant care, as such was given on a grant basis as opposed to a reimbursement on production of receipt basis, which was the regime for those covered under later statutes. 
[22]
Whilst Miss More is of the opinion that when she assessed the appellant he required 24 hour care, I am not satisfied that she has demonstrated that Mr Guest was wrong when he assessed the appellant at the time he did for the period he did. It cannot go unnoticed that Miss More was assessing the appellant after he had become quite significantly further incapacitated following his heart problem and in fact Miss More's assessment is mirrored by that which followed from Miss McNamara. 
[23]
The Court is only concerned with a capsule of time from November 2000 until the appellant returned home from hospital following his heart problems in September 2002. I have considered the assessment of Mr Guest and found it to be thorough and based on sound reasoning. As with other assessments which various other provisions of the Act require to be made by professionals, it should be the case that such an assessment should not be disregarded unless there are clear and cogent reasons demonstrated for doing so. 
[24]
In the case of the assessment of this appellant I find that quite the opposite is the case and that the basis for the provision of home help and attendant care provided under the respondent's decision of 20 November 2000 correctly catered for his then needs and with it being open-ended to cover any unforeseen circumstances, I cannot find that such a decision could in any way be found to be unreasonable or a wrongful exercise of its discretion. 
[25]
For the foregoing reasons therefore I find that the respondent's decision was in every respect the correct decision and this appeal is dismissed. 

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