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Accident Compensation Cases

Humphries v Accident Compensation Corporation (DC, 21/10/11)

Judgment Text

RESERVED JUDGEMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 28 May 2009, whereby it declined to pay the travel cost for the appellant's parents for travel from their home in Manurwa to the appellant's home in Pukekohe when providing attendant care and home help for the period from September 2004 to December 2007, the amount claimed being $9,709.19. 
[2]
The background facts relevant to the issue in this appeal may be stated as follows: 
In September 2004 the appellant, then aged 50 years, was diagnosed with Parkinsonian Syndrome as a consequence of long-term exposure to noxious substances in the course of his employment. 
Although a claim for cover for a work-related gradual process injury was lodged, cover was initially declined by the respondent, and in fact cover was not granted to the appellant until 15 November 2007, in a review decision. 
The appellant resided alone at a residence in Pukekohe and his medical condition was such that he could no longer work and was severely affected by his Parkinsonian condition. 
During the period from when the appellant was obliged to cease employment in September 2004 until December 2007 when, consequent upon the grant of cover he began to receive respondent managed home help and attendant care, the appellant's regular needs of home help and attendant care were taken care of by his parents. 
The appellant's parents travelled from their home in Manurwa to Pukekohe and return, a distance of some 52 kilometres, on an average of four times per week, to provide care for their son. 
There is no dispute that the home help and attendant care that the appellant's parents provided was necessary as their work in that regard was acknowledged and accepted by the respondent subsequent to the granting of cover, and they were paid at the appropriate rate for the amount of home help and attendant care that they had provided over those three years. 
Consequent upon the payment for the home help and attendant care which had been provided by the appellant's parents, the appellant sought for them to be reimbursed for the travel costs which they had incurred in travelling to and from his home, that sum having been identified and assessed by an assessor as amounting to $9,709.19. 
For the sake of completeness the amount of attendant care and home help reimbursed to the appellant's parents for the period from 24 September 2004 to 4 December 2007 amounted to $28,915.06. 
In a decision dated 28 May 2009, the respondent declined to pay for the travel costs claimed, it stating that it did not fund travel costs separately for private family providers and that the amount paid for attendant care was inclusive of all costs. 
The appellant sought a review of that decision and at a review hearing in July 2010, the appellant was represented by Mr Schmidt. 
In a decision dated 23 August 2010, the Reviewer, Ms Sandra Jay, ruled that the funding provided to the appellant's parents was the extent to which such funding was provided for under the Act and that the travel costs were not recoverable under the provisions of the Act. 
[3]
In this case there is no dispute that the appellant's parents did provide essential assistance for their son consequent upon his injury, and further, that the return travel of 52 kilometres four times a week for 180 weeks at 28 cents a kilometre amounted to $9,709.19 and which would be the amount of travel reimbursement if such were to be allowed. 
[4]
It should also be noted that unfortunately the appellant passed away as a result of his medical condition on 29 March 2011. 
[5]
In his submissions, Mr Schmidt contended that the circumstances of this case were unusual in that, firstly, the appellant's parents were meeting the statutory need for the appellant's attendant care because cover had not been granted and there was therefore not the opportunity of engaging attendant care from a third party at a commercial contract rate, and that because the parents were living separately from their son there was no option but for them to travel to provide the attendant care. 
[6]
Counsel referred to the wording of Clause 11(2) of Schedule 1 which states as follows: 
“ …
 
(2)
The Corporation is liable to pay or contribute to the cost of accommodation and transport of a person other than the claimant if the presence and support of the person is necessary and appropriate to assist in achieving a rehabilitation outcome for the claimant. 
 ”
[7]
Counsel submitted that it was clear that the statute did authorise the payment of transport costs for persons who were providing a social rehabilitation service and in fact the parents were providing attendant care within the meaning of Clause 14. 
[8]
It should also be noted that Mr Schmidt also sought payment for the time engaged by the parents in their travel to and from the appellant's home, that is the 40 minutes travel time. He suggested a sum based on the hourly rate provided by the respondent for night supervision. 
[9]
Mr Tui, Counsel for the Respondent, referred to the fact that Clause 11 of Schedule 1 to which Mr Schmidt had referred stated that the clause was subject to any regulations made under the Act, and in that regard Counsel referred to the Injury Prevention, Rehabilitation and Compensation (Ancillary Services) Regulations 2002. 
[10]
Counsel referred to Clause 13 of those 2002 Regulations which state, inter alia, as follows: 
“(1)
The Corporation is liable to contribute towards the costs of 1 support person who travels within New Zealand to visit the claimant if — 
(a)
Either — 
(i)
the claimant is under the age of 18 years and the support person would be entitled to reimbursement under any of regulations 7 to 11 and 14 if he or she were a claimant; or 
(ii)
the claimant is not under the age of 18 years and the support person would have to travel over 80 kilometres in a single trip (being in 1 direction) to visit the claimant; and 
(b)
The claimant that the support person is visiting is receiving in-patient rehabilitation, or residential rehabilitation, that the Corporation has approved. ”
[11]
Counsel further submitted that the provision of social rehabilitation was the exercise of a discretion by the Corporation and that this appeal is in effect an appeal from the exercise of a discretion by the respondent. This submission was made in addition to the submission that by virtue of Clause 13 of the 2002 Regulations, travel costs can only be claimed where the one way distance of travel is in excess of 80 kilometres. 
Decision 
[12]
The Accident Compensation Act 2001 is a statutory regime which provides for obligations on the part of the Corporation and entitlements on behalf of a claimant, but in each case such obligations and entitlements are only those for which there is specific statutory provision. 
[13]
In the present case it is not the appellant himself who is seeking reimbursement for travel, so the normal statutory provisions relating to that aspect do not apply. As noted by both Counsel, Clause 11 of Schedule 1 has relevance, as it refers to ancillary services related to rehabilitation; and Clause 11(2) specifically refers to the cost of transport of a person other than the claimant. 
[14]
In terms of the factual situation of this appellant, and of the fact that the respondent did accept that the parents were entitled to be reimbursed for the home help and attendant care which they had provided, it makes it quite clear that the presence and support of the parents was necessary and appropriate to assist in achieving a rehabilitation outcome for the appellant as is the requirement of Clause 11(2). 
[15]
The difficulty that arises however, is that Clause 11(3) identifies that the liability to contribute costs of transport is subject to any Regulations made under the Act, and it is the case that a specific Regulation of relevance in this case does exist, namely Clause 13 of the 2002 Ancillary Services Regulations. Again, by identifying the basic concept that the respondent is only liable to contribute to an entitlement where there is specific statutory provision for it, in the case of reimbursement of travel costs to a support person, that clause makes it clear that such a travel cost is only payable if the support person is required to travel more than 80 kilometres in one direction to visit the claimant. 
[16]
In the present case, of course, the one direction travel was only 26 kilometres and so I find it to be the case, as a matter of law, that Clause 11(2) of Schedule 1 cannot come into play to provide for reimbursement of travel costs to the appellant's parents. 
[17]
It is the case that the appellant's parents have received proper reimbursement for their contribution of home help and attendant care, and prima facie that would include any costs associated therewith, unless Clause 13(2) of the Ancillary Services Regulations 2002 could apply. Having determined that it cannot apply there is no liability on behalf of the respondent to contribute towards the travel costs of the appellant's parents as was sought. 
[18]
Similarly, I find that there is no statutory provision that would cover the cost of time spent in travel, and that this would be simply part and parcel of the amount paid to the appellant's parents by the respondent for the attendant care and home help which the parents provided. 
[19]
For the foregoing reasons, therefore, I find that the respondent's decision to decline to provide reimbursement of travel costs to the appellant's parents was the correct decision and this appeal is dismissed. 

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