BEFORE THE ACCIDENT COMPENSATION APPEAL AUTHORITY AT WELLINGTON [2014] NZACA 4 ACA 01/10 IN THE MATTER of the Accident Compensation Act

1982 AND IN THE MATTER of an appeal pursuant to s.107 of

the Act BETWEEN ANDREW CHITTOCK Appellant AND ACCIDENT COMPENSATION

CORPORATION Respondent Hearing: 16 October 2013 at Christchurch Authority: Robyn Bedford Counsel: Mr Wakefield, advocate for appellant; Mr Hunt & Ms Keir, counsel for respondent DECISION [1] Mr Chittock was rendered a tetraplegic as a result of injuries he received in a motor vehicle accident on 30 November 1983 and has cover under the Accident Compensation Act 1982. The appeal concerns ACC’s decision of 9 May 2007 by which it accepted that Mr Chittock remained entitled to receive entitlements under s 80(3) of the 1982 Act, but declined his request for backdated and ongoing payments under s 80(3), to be paid from 11 September 1995. [2] I regret the delay in issuing this decision, but I have had an inordinate amount of difficulty obtaining evidence to enable me to determine the central issues, despite my repeated requests and directions to Mr Hunt and Mr Wakefield at, and following the hearing. ACC Legal Section has now provided me with a copy of a file prepared for Mr Chittock’s 2010 appeal to the District Court under ACR 69/10, concerning ACC’s decision of 22 October 2009 declining to fund modifications to Mr Chittock’s wheelchair under the Accident Compensation Act 2001. The file contains sufficient material for me to identify the facts I consider relevant to the matters properly at issue in this appeal and I have exercised the discretions available to the Authority under ss 108(11) and 109(3) and (5) of the 1982 Act to receive the relevant documents in evidence and also to receive affidavit evidence from ACC to explain the scope and purpose of the 1998 payment. I have also been guided by s 13 of the Evidence Act 2006, which provides that if a question arises concerning the relevance of a document, the Judge may examine it and draw any reasonable inference from it. [3] As a preliminary point, I refer to the recent decision of his Honour Judge Joyce DCJ in Sutter v ACC1

1 [2013] NZACC 221

, in particular his comments at paragraphs [15] to [20] and to

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the powers of the Authority under s 4C of the Commissions of Inquiry Act 19082 and the offences and penalties provided under s 9 of the Act for failing to comply with directions to produce documents in evidence when requested to do so. I have previously commented on the unhelpful practice of presenting hearsay evidence through submissions of counsel rather than through producing relevant documentation to support those submissions.3

Those comments apply equally to the present appeal, and in this case, to both parties. If a party relies upon allegations of fact that are in contention, then putting this forward in submissions does not act as a substitute for the evidence needed to support what is otherwise no more than a hearsay comment. Nor does refusing to produce documentation when directed to do so by the Authority generally assist in the presentation of one’s case.

The Issues [4] The issues that I have to determine are:

[a] Was the 1998 payment for backdated attendant care under s 80 of the 1982 Act for the period from 14 April 1984 to 11 September 1995 made under s 80(1) as ACC contends, or s 80(3) as Mr Wakefield contends?

[b] Can the 1998 payment be reliably taken to indicate that ACC was satisfied

that Mr Chittock required 24 hour care up to 11 September 1995?

[c] Did ACC have good reason as at 9 May 2007, to be satisfied that Mr Chittock had been properly assessed as not requiring constant personal attention entitlement from 11 September 1995 to that date?

[d] As part of the consideration of (c), what weight should be given to the

assessments by Dr Malpress, Dr Xiong and Mr Finnis? The facts [5] ACC historically paid Mr Chittock for his attendant care under s 80 of the 1982 Act and was still doing so at the rate of $350.00 per week when the Accident Compensation and Rehabilitation Insurance Act 1992 came into force. In early 1998, Mr Chittock became aware of lump sum payments made to other claimants in his situation as part of ACC’s review of its payments for attendant care to claimants who had been wrongly limited to care funded at the rate of $350.00 per week. Mr Chittock’s queries were passed on to ACC by Angela Bellett, Occupational Therapist, as part of her comprehensive assessment of his care needs in her report dated 27 April 1998. On 25 June 1998, ACC paid Mr Chittock the difference between what he had been historically paid and what he was due on a 24 hour care basis for the period from his discharge from hospital on 13 April 1984 to 11 September 1995, which amounted to $666,872.00. Settlements were paid up to the date of the claimant’s first full needs based assessment, which in Mr Chittock’s case was an assessment carried out by Sally Wilson, Occupational Therapist, who assessed him as falling within the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994 (the CPI Regs).

2 The Authority is deemed to be a Commission of Inquiry under s 108(6) and the provisions of the Commissions of Inquiry Act 1908, with certain exceptions relating to costs, apply. 3 See e.g. McLenachan v ACC [2013] NZACA and the comments at paragraphs [92] – [96]

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[6] The 1998 payment was part of a process ACC put in place from 1996 following the decision of the High Court in ARCIC v Campbell.4 The rationale and mechanics of the process is best described in the affidavit of Mark Davis sworn 14 March 2013, filed by ACC at the Authority’s request for the purposes of explaining the same process for a payment made in respect of another qualifying claimant whose appeal against the hourly rates ACC applied has been part-heard and is still under consideration.5

Mr Davis deposed in his affidavit:

2. From 2002 until January 2008 I worked in the ACC Improvement Team. In 2002 – 2006 the substantial part of my role was addressing the then large volume of claims for back-dated attendant care compensation that had arisen from the then relatively recent decision of the High Court in ARCIC v Campbell [1996] NZAR 278.

Process of considering claims

3. The process that was undertaken by ACC following that judgment was:

(a) Initially to undertake an extensive consideration of thousands of claim files, to screen those that might have qualified under s 121(3) or s 80(3);

(b) Potentially qualifying claims were then assessed further; and then

(c) To advertise and encourage media and other publicity about the position,

inviting claims from other potential claimants;

(d) All claims identified as potentially qualifying were then carefully considered against the requirements of the particular subsections.

4. Given that the 1982 Act had then been repealed for around 10 years, that

publicity did result in a number of people coming forward in making claims that they had been underpaid compensation not only under the 1972 and 1982 Acts, but also particularly the 1992 and 1998 Acts. At that time, in 2002/2003 there were few claims that were raised in terms of the 2001 Act. Those issues were also screened for any entitlements under those Acts.

7. In every case, once information was collated (and any necessary

additional information was obtained), the material was considered against factors including:

(a) Which Act or Acts potentially applied;

4 [1996] NZAR 278; see another example of a 1998 payment following Campbell in Turner v ACC Decision No. 323/2000, in the District Court. 5 Edwards v ACC ACA 5/12; Mr Davis was involved in the decision-making process for Mr Chittock in 2006 and 2007.

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(b) Then to undertake some screening of the particular case against

requirements of each of those Acts in relation to attendant care.

8. In the case of section 80(3) (or section 121(3) of the 1972 Act) the process was to look to see whether there were any indications on the file that the individual actually required ‘constant personal attention’ (at or about 24 hour per day care) – because of the injury.

9. Consistent with the way that ACC had approached the matter at that point,

a number of factors were looked at as informing that decision including the nature of the injury, described injury needs, medical reports on file, and other matters.

10. The matter was in any case then passed back to the Branch with an

answer – for the branch to issue any decline letter.

11. In some cases, where there was a lack of clarity, or cases needed to be considered against different criteria at different times, some further internal or external clinical advice was sought and obtained before a decision was made.

Hourly rates

12. In cases in which ACC identified that there was

a need for constant personal attention, ACC then proceeded to identify the periods in respect of which any compensation was payable, and the rates of that”

[7] In 1996, ACC decided that Mr Chittock did not meet the CPI Regs criteria after all. This was based on a report dated 5 August 1996 by Cherie Porter, Occupational Therapist Spinal Injuries Unit, to whom it appeared that Mr Chittock’s needs were being met under the 1992 Social Rehab Regs and thus he was not a suitable candidate for coming under the CPI Regs. From this time, Mr Chittock was assessed under the 1992 Social Rehabilitation Regulations and received payment for limited direct care and supervision. His wife performed the balance of his care needs on an unpaid basis and she had to give up her full time employment to do so. Following a review decision dated 22 December 2000, ACC paid for at least part of the supervisory care undertaken by Ms Chittock overnight. [8] On 17 November 2005, Mr Wakefield wrote to ACC and said that Mr Chittock was one of the individuals ACC previously assessed as needing constant personal attention and had been paid accordingly for the period from 13 April 1984 to 11 September 1995. ACC had carried out a number of care needs assessments then under s 26 of the 1992 Act, however, this was the incorrect legislation, as Mr Chittock advised that he had never agreed to forego his entitlements under s 80(3) of the 1982 Act. Mr Wakefield provided a supporting assessment he had obtained from Mr Finnis, Consultant Neurosurgeon, dated 20 September 2005, in which Mr Finnis concluded that Mr Chittock needed 24 hour care, and he asked for a decision in respect of Mr Chittock’s entitlement to attendant care from 11 September 1995 onwards. [9] ACC replied on 18 August 2006, and said that it had conducted a review of the previous attendant care decisions and had confirmed that they were carried out

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correctly and each of the previous decisions contained review rights. ACC was satisfied that these attendant care decisions were correct and therefore, no new decision would be issued. Mr Wakefield lodged an application for review (the 2006 review application) and a mediation meeting was set for 10 April 2007. ACC was to be represented at the mediation by Dennis Lyons, Technical Claims Manager, and Ms Ahern, ACC Legal Services. In preparation for the mediation, Mr Lyons reviewed the ACC files and sent a memorandum to Mr Davis, to whom Mr Chittock’s file had been referred for the decision of 18 August 2006, in which Mr Lyons outlined the issues he saw arising. As the mediation was scheduled for 10 April 2007, he asked for Mr Davis’ response on or before 23 March 2007.6

[10] Mr Lyons identified the global issue as being whether Mr Chittock was entitled to 24 hour constant personal attention, as submitted by Mr Wakefield in his letter of 17 November 2005. Issues directly associated with the 2006 review application were (a) was ACC’s letter dated 18 July 2006 a decision letter? If so, (b) was it a sustainable decision in light of the issues and submissions raised by Mr Wakefield in his letter? Under the heading Recommendations

, Mr Lyons wrote:

ACC’s letter dated 18/7/06 is a “decision” with review rights. The decision was issued after ACC had available the letter dated 17/11/05 and the new report from Mr Finnis….

Before going further, it seems to me that we need to differentiate between the two types of care.

It seems that these cases refer to:

• Attendant care – that is: personal care [as defined by Clause 12 of

the First Schedule of the (2001 Act)] and assistance with cognitive tasks of daily living, such as communication, orientation, planning, and task completion; and

• Constant personal attention – that is: protection of the claimant from

further injury in his or her ordinary environment;

In this case, it is clear that ACC needs to be mindful of the fact that Mr Chittock is a claimant under Section 80 of the 1982 act to whom Section 149(3) applies. As at 1/7/92 he was receiving entitlements under Section 80 of the ACC Act 1982 of $350.00 per week and so Section 80 of the ACC Act 1982 continues to apply to him, unless it can be found that he has irrevocably elected to receive entitlements under the ARCIC Act 1992 as required by Section 149(6).

I have also read the decisions of Guthrie [11/2003] and Meiaris [12/2003].7

From reading those decisions, it seems to me that both cases are a very similar factual basis to that of Mr Chittock.

That is, both claimants are high level tetraplegics, both had received large settlements of ‘backdated 24-hour care’, and in both cases, the lawyer acting for

6 Mr Lyons’ memorandum is dated 25 June 2007, which is obviously the wrong date and I have referred to it as the March memorandum. 7 Mr Wakefield referred to these cases in his letter of 17 November 2005.

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the claimant had presented a report from Mr Finnis as evidence of the contention that the claimants required ‘constant 24-hour personal attention.’

I have also given some thought to the test that was settled upon by the Appeal Authority.

It appears that the test was not that the claimant required constant attendant care – i.e. constant attention to their every bodily need, as defined above.

Instead, it seems that the test is whether the claimant requires that constant care must be available, in case it is needed, particularly while the claimants concerned were doing their utmost to be as independent as possible and while attempting to rehabilitate themselves into the community.

Please see the comments at paragraph 87 in the decision of Guthrie.

It seems to me there is a distinction being developed in these cases between a need for direct hands on care [attendant care] and a 24-hour need for supervision or constant personal attention.

We need to bear in mind the comments made by the Appeal Authority regarding cases with large backdated settlements, particularly in light of the fact that ACC has already made a large backdated settlement on the basis of a need for 24-hour constant personal attention in this case.

(emphasis mine).

Despite that fact, it seems to me that it is not an automatic given that Mr Chittock has a continuous entitlement to receive 24-hour constant personal attention or attendant care.

From the file available to me it seems that it cannot be shown that Mr Chittock’s physical functioning has improved since the settlement was made.

If ACC can show that some aspect of Mr Chittock’s level of need has improved since his backdated attendant care settlement, then ACC can defend its position.

If, on the other hand, ACC cannot show that is the case, then ACC’s decision becomes more difficult to defend…

My recommendation is that ACC seriously consider settling the request for backdated 24-hour constant personal attention, and then work towards determining whether Mr Chittock’s needs have changed, and if they have, so that any further decisions reducing the level of care that ACC will reimburse the claimant for can be defensible at Review and at the Appeal Authority….”

[11] Mr Davis asked Brenda Kenworthy, the Senior Improvement Analyst for the ACC Improvement Team for which he worked, for her comments. On 27 March 2007, Ms Kenworthy sent Mr Davis a memorandum entitled Backdated Attendant Care Andrew Chittock with the stated purpose being “To provide a clinical opinion in regard to the above claimant on whether he needs 24 hours care or needs, or has ever needed, constant personal attention.” Ms Kenworthy based her opinion on her reading of the ACC files including a s 80(3) assessment by Dr Bill Malpress dated

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12 July 1998,8

Mr Wakefield’s letter of 17 November 2005 and Mr Finnis’ 2005 assessment.

[12] Ms Kenworthy summarised Mr Chittock’s personal care needs and abilities identified in the comprehensive review carried out by the Burwood Spinal Injuries Unit (the BSIU) in November 1998 (the 1998 BSIUA) under the direct care model of the 1992 Regulations and which was the first such assessment since 1995. Ms Kenworthy noted the differences between the assessment by Ms Bellett, Occupational Therapist, dated 27 April 1998 and the 1998 BSUIA, being that Mr Chittock could assist his caregivers with his personal care needs in some areas that had been identified by Ms Bellett as requiring full assistance. She also recorded in her 1998 BSUIA summary that (Mrs Chittock) said that:

“Mr Chittock was able to provide assistance with many of the aspects of her personal care routine, but it needed to be recognised that it took longer if Mr Chittock is to assist with these activities than it would for a carer to complete them and he would use more energy.”

[13] Ms Kenworthy summarised the report by Dr Xiong, Specialist Rehabilitation Medicine, Rehabilitation Services, Burwood Hospital dated 24 October 2000 and the matters Dr Xiong “outlined”, namely that Mr Chittock would not meet the criteria for constant supervision or assistance; he was safe to be left alone; he was also capable of managing himself throughout the night and:

“That the suggestion of someone to assist him all the time is against the principle of rehabilitation compatible with current medical practice.

He further stated that whether Mr Chittock would like someone with him all the times was a matter of personal choice and would certainly not be regarded as essential for his personal care needs. Dr Xiong stated that he was functioning at the C6 level as a tetraplegic. At the time of the report, Mr Chittock was assessed using the Functional Independence Measurement (FIM) which included his self care, his sphincter control, transfer and local motions. Mr Chittock had a total motor score of 47 out of 91, and his communications and social cognition were normal at 35, which made his FIM score 82 points. This transferred to the level of care requiring moderate assistance for most of the self care activities and some maximum assistance and some activities he can manage with supervision.”

[14] Ms Kenworthy did not summarise the Malpress and Finnis assessments, but said:

“I have read the reports from Dr Malpress, Occupational and Environmental Health Physician, and Mr Finnis, Neurosurgeon, but rehabilitation of spinal injuries is not their particular field of expertise or specialisation and, while I have considered their reports, have placed less reliability on their observations than from those people working in spinal cord injury and rehabilitation assessment on a daily basis.”

8 This was not an ACC assessment, but was obtained by Mr Chittock’s then lawyer, Andrew Cadenhead.

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[15] Ms Kenworthy referred to the literature concerning the level of need of and functioning of a C6 tetraplegic and said that it was congruous with the level of care Mr Chittock was currently receiving, being 47 hours of attendant care, 56 hours of overnight care and 7 hours of home help per week, a total of 110 hours per week. She considered that all the assessments ACC carried out over the years had met the requirements of s 80 of the 1982 Act. Ms Kenworthy then set out the text of s 80(3) in full, but she did not refer anywhere in her opinion to the legal definition of “constant personal attention”. [16] The mediation took place on 10 April 2007. Clauses 1 to 6 dealt of the mediation agreement dealt with current aspects of Mr Chittock’s attendant care; clause 7 dealt with the 1986 review application and provided:

“7. ACC will also issue a decision, with review rights, in response to Garry’s letter dated 17 November 2005 applying for entitlements in terms of Section 80(3) of the 1982 Act on behalf of Andrew. This decision will address:

a. Whether or not ACC considers Andrew made an election to forgo his

1982 Act entitlements; and

b. If he did not elect to do this, whether he had entitlements under section 80(3); and

c. If yes to b. above, what difference does this make to Andrew’s

previous entitlement decisions.

ACC will issue a decision in respect of a) and b) by 10 May 2007 and in respect of c) by 10 July 2007.

[17] As part of his investigations, Mr Lyons obtained an opinion from Dr Leanne Parker, the Branch Medical advisor, concerning Mr Chittock’s need for constant personal attention. Dr Parker replied on 1 May 2007 and told Mr Lyons that at Mr Chittock’s level of tetraplegia constant personal attention is not usually required, but it appeared from her file review of the available information that he was suffering from the consequences of aging with spinal cord injury and deteriorating function due to shoulder and wrist problems. Thus it may be that constant personal attention was now required, but she was unable to determine this as Mr Chittock had not had an appropriate recent assessment by the relevant clinicians. In her opinion, to make the determination whether Mr Chittock needed constant personal attention two assessments were required: a medical assessment by a relevant clinician suitably qualified in the treatment and rehabilitation of individuals with spinal cord injury, and a Complex Needs assessment by clinicians experienced in the needs of those with tetraplegia. [18] Mr Lyons issued the decision letter on 9 May 2007. He listed the agreed points at clause 7 a. to c. and covered each in turn. Under ELECTION Mr Lyons said that Mr Chittock was initially in receipt of entitlements under s 80(1) of the 1982 Act and had been transitioned when the 1992 Act came into force. Mr Chittock had continued to receive entitlements under s 80 and would continue to do so unless he had made an election to receive entitlements under subsequent legislation. He started

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receiving entitlements under the 1992 Act in 19989

but a review of the file was not able to locate a formal election to receive entitlements under the 1992 Act. Accordingly, ACC accepted that Mr Chittock remained entitled to receive entitlements under section 80 of the 1982 Act.

[19] Under SECTION 80(3) of the 1982 Act, Mr Lyons said:

“In your letter dated 17 November 2005 you requested that ACC provide entitlements to Mr Chittock under section 80(3) of the 1982 Act from 199810

(I note that entitlements prior to this time were resolved in the settlement paid to Mr Chittock). Section 80(3) provides compensation for constant personal attention. ACC is not satisfied that Mr Chittock required constant personal attention from 1998 and accordingly your client’s request for compensation under this section is declined.”

[20] Under Attendant care entitlement from 1998 to date, Mr Lyons said that ACC accepted that Mr Chittock remained entitled to receive compensation under s 80 (albeit not under s 80(3)) and that ACC had paid his entitlements on a needs-based assessment from 1998 onwards. ACC would now review the file to see whether the payments that had been made since then reflected Mr Chittock’s entitlement under s 80(1) of the 1982 Act. [21] On 8 June 2007, Mr Lyons wrote to Mr Wakefield concerning the file review of Mr Chittock’s “entitlements in terms of s 80(1), now that ACC has made a decision that that section applies to him”. Mr Lyons went on to say:

“As set out in the letter dated 9/5/2007,ACC has reviewed your client’s file to check whether the payments that have been made since 1998 time reflect Mr Chittock’s entitlement under section 80(1) of the 1982 Act.

ACC is satisfied that Mr Chittock has been paid the entitlements due to him for the actual and reasonable expenses associated with his attendant care. Accordingly there is no extra payment due.”

The review decision [22] The Review Officer, John Greene, identified the issue as arising from the mediation agreement dated 10 April 2007 and the decision letter of 9 May 2007 in which ACC declined Mr Chittock’s application under s 80(3), and he repeated the passage from the letter of 9 May 2007 quoted at paragraph [19] above. Mr Greene recorded his prior involvement in Mr Chittock’s ongoing attendant care disputes and recorded that he had recently considered and dismissed Mr Chittock’s application in relation to the level of attendant care payments made to his caregivers and that this had been upheld by Judge Ongley in the District Court in July 2009. Mr Greene also recorded that he held case conferences concerning Mr Chittock’s present application with Mr Winter, the Reviewer who issued the review decision of 22 December 2000, which modified ACC’s decision and increased Mr Chittock’s attendant care hours. Regarding the 1998 payment, Mr Greene said: 9 Mr Chittock began receiving entitlements under the 1992 Act from 1996 at the latest. Mr Lyons incorrectly used the date of the 1998 payment as the date from which he did so. 10 Mr Wakefield sought entitlements for Mr Chittock under s 80(3) from 11 September 1995. Mr Lyons has again incorrectly used the 1998 payment date.

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“It is well known that ACC was found to have wrongly assessed attendant care entitlements in relation to a group of seriously injured people. As a result, ACC was required to assess each individual situation in relation to those identified as having received inadequate attendant care compensation. In Mr Chittock’s case, a retrospective payment was made in June 1998.”

[23] Mr Greene endorsed Mr Winter’s conclusions in his review decision that “Dr Xiong’s opinion carries the day supported as it is by the occupational therapists’ assessments.” 11 Mr Greene quoted the passage from Simpson and Matthews v Accident Compensation Corporation12 at paragraph [23] concerning the interpretation of the phrase “constant personal attention”, and stated that he had read the evidence Mr Winter relied upon and he concurred with his findings. Mr Greene rejected Mr Finnis’ assessment because first, he based his opinion on the assumption that Mr Chittock was entitled to 24 hour care from 1984 to 1995 and that he had not agreed to forego this entitlement. Mr Greene accepted Ms Ahern’s submission that Mr Chittock had never had an established entitlement to attendant care under s 80(3), and held that “The settlement ACC reached with Mr Chittock and other seriously inured claimants was a reflection of the fact that ACC had not assessed their care needs as interpreted by the Courts”. The second reason was that Mr Finnis had strayed into the area of legal interpretation. Mr Greene determined that viewed objectively, the evidence did not support a finding that Mr Chittock had an entitlement to attendant care under s 80(3). Accordingly, he issued a report and recommendation under s 102(9)(b) that ACC confirmed its decision dated 9 May 2007 declining Mr Chittock’s claim for compensation under s 80(3) of the 1982 Act.13

The notice of appeal [24] The appeal was originally brought against Mr Greene’s report and recommendation, but an amended notice of appeal was filed at my direction so that the appeal is now correctly brought against ACC’s decision dated 29 December 2009, which accepted Mr Greene’s recommendation. The grounds are that the decision is wrong in fact and law, ACC incorrectly considered the medical evidence, failed to have regard to key principles of statutory interpretation and failed to correctly apply and consider relevant case and statute law. Costs on appeal were sought, but no appeal was brought against Mr Greene’s decision not to award costs on review. Legislation The Accident Compensation Act 1982

“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, or where a person dies as a result of personal injury so suffered, the Corporation, having regard to any other compensation payable and any rehabilitation assistance provided or to be provided, may, under this subsection, pay to him, or in the event of his death to his

11 It appears that Dr Xiong did in fact recommend some overnight care and Mr Chittock’s hours were increased because of his report. 12 [2007] NZCA 247 13 Mr Green does not have a warrant to make decisions on s 80(3) claims and is instructed by ACC to issue a report and recommendation under s 102(8) in every case.

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administrator, 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 or death, not being—

... (g) Any expense or loss in respect of or towards payment of which

compensation is otherwise payable under this Act whether or not any such compensation is actually paid; or

(h) Any expense or loss which the Corporation considers is similar in

nature to an expense or loss for which compensation is payable under any other provision of this Act, whether or not any compensation is actually paid under such other provision.

(3) Where a person suffers personal injury by accident in respect of which he has cover and the injury is of such a nature that he must have constant personal attention, the Corporation, having regard to any other compensation payable, may pay to that person, or if it thinks fit to the administrator of that person, such amounts as the Corporation from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution.”

“149 Compensation for pecuniary loss not related to earnings (1) Where any person was receiving or entitled to receive any compensation

under section 121 of the Accident Compensation Act 1972 or section 77 or 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.

(2) The reference to the 31st day of December 1992 in subsection (1) of this

section shall be read as the 30th day of June 1993 in respect of compensation under section 121 of the Accident Compensation Act 1972 or section 80 of the Accident Compensation Act 1982 that is compensation in respect of—

(a) Provision of attendant care (being personal care and mobility

assistance necessary for the injured person); or

(b) Household help (being provision of assistance in respect of domestic activities that would be performed by the injured person if not injured and is necessary to enable the person to remain in or take up suitable residence); or

(c) Loss of quantifiable service (being payment for services of a

domestic and household nature or for the care of children, where the services were previously provided on a regular basis by the deceased person for a family or household of which they were a member); or

(d) Teacher hours, teacher-aide hours, and transport to school (being

payment for the provision of additional teacher hours and teacher-aide hours at school and transport to school, for a child or young person requiring special assistance as the result of personal injury, to enable the

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child or young person to attend and benefit from education in a regular school environment).

(3) Notwithstanding subsections (1) and (2) of this section, where any person

was receiving compensation under section 121 of the Accident Compensation Act 1972 or section 80 of the Accident Compensation Act 1982 in respect of attendant care (being personal care and mobility assistance necessary for the injured person) at a weekly rate of $350 or more immediately before the 1st day of July 1992, those sections shall continue to apply in respect of that person as if those sections had not been repealed and the entitlements in respect of the person may be reassessed from time to time under those sections.

...

(5) Where subsection (3) of this section applies, the person concerned—

(a) Shall not be entitled to receive compensation in respect of attendant

care or household help under regulations made under this Act; but

(b) Shall be entitled, not more than once in any 12-month period, to elect to be assessed for entitlement for compensation for attendant care and household help under regulations made under this Act.

(6) Following the assessment referred to in subsection (5)(b) of this section,

the person concerned may irrevocably elect—

(a) That subsection (3) of this section shall no longer apply in respect of the person; and

(b) That the entitlements of the person to compensation for attendant

care and household help shall thereafter be determined in accordance with regulations made under this Act.”

The appeal [25] Mr Wakefield did not file a bundle of documents for the appeal, but provided the Authority at the hearing with a copy of the bundle of documents he had prepared for Mr Finnis to consider for his assessment. The bundle contained medical and occupational therapy reports and assessments from 7 February 1984 to 18 November 2003 and Mr Winter’s 2000 review decision, but Mr Wakefield took back the bundle at the conclusion of the hearing, and did not respond to any directions after the hearing to provide a copy to the Authority. Mr Wakefield provided general background information and summarised the evidence of Mr and Ms Chittock recorded in the review decision concerning Mr Chittock’s care and supervision needs14

14 I have not covered this evidence as it is adequately summarised in the Finnis assessment as repeated below.

and submitted that those needs had not changed, except to the extent that Mr Chittock was physically deteriorating. Regarding the 1998 payment that was the central plank of his submission, Mr Wakefield said that as ACC had agreed in 1998 that Mr Chittock was entitled to 24 hour attendant care under s 80(3) up to

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11 September 1995, and in the absence of a subsequent assessment under s 80(3) that found a lesser level of care was required, Mr Chittock’s entitlement to payment for 24 hour care under s 80(3) continued. Mr Wakefield had included the 1998 payment decision letter from Garry Wilson, the CEO of ACC in the bundle given to Mr Finnis, but as with the reports, the letter was not available to the Authority for this decision and while Mr Hunt provided a copy of the index to the bundle after the hearing, he refused directions to file a copy of the bundle itself. [26] Mr Wakefield submitted that the Finnis assessment was the most relevant and the latest specialist medical evidence available and he noted the appointment of Mr Finnis as the consultant Neurosurgeon to the BSIU as further proof of his necessary expertise. Mr Finnis had provided a detailed and comprehensive assessment of Mr Chittock’s needs and specifically addressed the issue at large, namely should Mr Chittock receive constant personal attention. The important feature of Mr Finnis’ assessment was that it stressed the randomness of Mr Chittock’s problems and potentially hazardous accidents and this was not considered by Dr Xiong, who concentrated on Mr Chittock’s physical needs. Dr Xiong was not interested in Mr Chittock’s safety, or his quality of life or the freedom from fear that full supervision would provide him with and Mr Wakefield stressed that it was noted in Campbell that safety was of paramount concern. Mr Finnis was a properly qualified medical specialist, he met the criteria for an assessor in Campbell and he took the correct considerations into account. His opinion therefore should be followed and the Authority should make a decision that Mr Chittock was eligible for a further award of backdated attendant care. [27] Mr Hunt presented the submissions he and Ms Keir had prepared. He did not refer to Ms Wilson’s 1995 report and he did not produce any of the of the occupational therapy and medical reports dating from Ms Porter’s assessment of 28 April 1996 through to 21 August 2008, that he relied upon to argue that the weight of the medical evidence, in particular Dr Xiong’s opinion, showed that Mr Chittock had been correctly assessed for attendant care and that the attendant care he currently receives is sufficient. Mr Hunt dismissed Mr Wakefield’s submission that the 1998 backdated care payment showed that ACC had accepted that Mr Chittock required 24 hour care from his discharge from hospital up to 11 September 1995 as mistaken, and submitted that to the contrary, no decision as to Mr Chittock’s attendant care needs had been made to support the payment. The payment was described as being made by way of a settlement, but the terms were not disclosed, and the reasons were not explained, except for the statements in the written submissions that:

“For the sake of completeness, it is noted that there was an historical issue about the correct basis for the appellant’s attendant care. It is now agreed that the appellant’s entitlement arises under s 80 of the 1982 Act, as preserved by s 149 of the 1992 Act…

It is important to bear in mind that payment to the appellant for attendant care did not follow a decision that the appellant required 24 hour attention. Rather, that payment was made by way of settlement after ACC discovered its error in earlier interpretation of the requirements. No assessment was made before the payment was made, so the best that can be said is the payment represents ACC’s mea culpa in respect of the appellant’s entitlements and its failure to meet them previously. However, with no formal assessment of the appellant’s

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needs as at 1995 having been undertaken, it cannot be said whether his requirement for assistance has increased or decreased since that time.”

[28] Mr Hunt was unable to add anything to these statements at the hearing apart from repeating parts of Ms Ahern’s submissions to the same effect for the review hearing. He took the position that the terms of the settlement and reasons for it were irrelevant to the appeal and he refused to produce the related documentation. Mr Hunt framed his submissions following the approach taken by Mr Greene and Mr Winter in their review decisions and focused primarily on the competing assessments by Dr Xiong and Mr Finnis, although he summarised Dr Malpress’ assessment as follows:

“… Dr Malpress advised that a number of features of the appellant’s presentation indicated the need for care including lack of manipulative skills, risk taking, falls, burns and injury, incontinence and urinary tract infections, spasms, high fatigue levels, routine difficulties in coping. Dr Malpress referred to the decision in ARCIC v Campbell and said:

‘Andrew could be a candidate for necessary care through a 24 hour day in accord with the Accident Compensation Act 1982, section 80(3).

If the present, unpaid availability, care contributed in supervision by Andrew’s wife, Kelly, is excluded from the equation, it is clear to me that a considerable increase in “carer” availability is needed to maintain an acceptable level of patient safety in this instance. As with the legal precedents referred to in the literature, the medical evidence in Andrew’s case suggests that he is undoubtedly in need of constant personal attention…

Anything else I see simply as an expensive splitting of hairs…

The overall impression is that Andrew really does require the availability of someone to assist at all times. Thus I see the presence of a carer 24 hours a day as highly desirable.”

[29] Mr Hunt did not criticise Dr Malpress’ assessment, or query his qualifications, but he quoted the full passage from Dr Xiong’s report that Ms Kenworthy had summarised, and I have repeated it here as it is the only evidence I have of what Dr Xiong actually said in his report:

“Dr Malpress has concluded that the overall impression is that Andrew really does require the availability of someone to assist at all times. Thus quoting ‘I see the presence of care 24 hours a day highly desirable’. It seems to me in this conclusion Dr Malpress has not committed himself to the essential requirement of a carer for 24 hours a day as he described as highly desirable. It appears to me such a conclusion was not justified as it was not compatible with Mr Andrew Chittock’s level of function. Mr Andrew Chittock is a well trained and well rehabilitated tetraplegic functioning at the level between the C6 and the C7 level. He was safe to be left alone and he is also capable of managing himself throughout the night. The suggestion of someone to assist him all the time is against the principle of rehabilitation compatible with current medical practice. He would not meet the requirement for constant supervision, not to mention constant assistance. Whether he would like someone to be

15

present with him at all times is a matter of choice and would certainly not be regarded as essential for personal care needs.”

[30] Mr Hunt submitted that Dr Xiong was far better qualified than Mr Finnis to assess Mr Chittock’s care needs, but did not give any reasons for this assertion. Mr Hunt highlighted the comments in the Finnis assessment that he said mitigated against 24 hour care, such as Mr Chittock being able to be left alone for periods and being able to play wheelchair rugby and also highlighted the various comments in the occupational therapy assessments from 1998 to 2008, that indicated that Mr Chittock was able to function independently and was able to be left alone without supervision or assistance. Mr Hunt identified Mr Finnis’ key conclusion as being that there was “no significant neurological changes in the objective findings over the 22 years” and that Mr Finnis confirmed that the findings recorded by Mr Bean in his discharge letter of 7 February 1984 and Dr Xiong on 24 October 2000 were similar to his own findings and said that his condition had not significantly altered. Mr Hunt criticised Mr Finnis because he relied heavily on the fact that Mr Chittock was assessed as requiring constant personal attention as at 1998, which was not correct and this made his assessment unreliable.15

[31] In Mr Hunts’ submission, the test enunciated in Simpson v Matthews16 meant that the issue was whether Mr Chittock requires care and attention for all

activities of living and in Mr Hunt’s view, all the evidence since 1998, and in particular the Xiong report showed that Mr Chittock’s present level of care was sufficient and the appeal should be dismissed. However, if the Authority was minded to grant the appeal and direct ACC to revise the calculation of Mr Chittock’s attendant care payments, Mr Hunt submitted that Mr Winter’s 2000 review decision set the care up to that date and prevents the Authority from doing so for any period before this, and the time should run from 22 December 2000. Mr Hunt did not produce the review decision, or the reports Mr Winter had relied upon, nor any case law to support the proposition that the Authority was bound by review decisions made under the 1992 Act (or possibly, the 1998 Act).

[32] Both Mr Wakefield and Mr Hunt discussed Turner v ACC17

, a decision by His Honour Judge Beattie DCJ in the District Court concerning another of the claimants who had been paid out under s 80(3) in 1998 following Campbell, in this case from the date of his discharge from hospital in May 1981 through to July 1996. I have considerably expanded on the submissions because the case is on all fours with Mr Chittock’s case, except that Judge Beattie did not have the benefit as I do, of evidence to show whether or not Mr Turner had elected to abandon his rights under s 80 of the 1982 Act, and the point was not taken on appeal.

[33] Mr Turner was classified as a C5 tetraplegic and his 1998 payment was made to the date of his first assessment under the CPI Regs. Mr Turner received attendant care thereafter under CPI Regs and the appeal concerned the question of whether the care package ACC fixed in July 1999 of 91 hours per week, was a proper exercise of its discretion to do so under the CPI Regs. Like Mr Chittock, Mr Turner’s wife also provided the care that ACC would not fund. Judge Beattie said at page 8 of his decision, that insofar as the regime that existed before Mr Turner 15 Mr Finnis in fact assessed Mr Chittock for constant personal attention from 1995, and said that the 1998 payment decision was made in 1998. Mr Hunt has repeated Mr Lyons’ errors as identified in footnotes 9 and 10. 16 [2007] NZAR 496 17 Decision No. 323/2000

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became subject to the CPI Regs, he was clearly placed in the same category as the appellant’s in Campbell and entitled to 24 hour per day attendant care and ACC had not explained why continued payment on that basis for the present and future was not to be made. What could be taken from the scenario, was that Mr Turner was recognised by ACC as being a person who needed 24 hour care. [34] Judge Beattie was asked to make a ruling that Mr Turner was entitled to 24 hour care under the CPI Regs and for a further order ruling that a sum was to be paid and backdated to when ACC ceased paying same in 1996, but though tempted to do so, he could not because it would be to simply substitute the Courts’ view of the matter for that of ACC, and his discretion was limited on appeal. Accordingly, the decision was referred back to ACC for it to reconsider Mr Turner’s attendant care entitlement in light of the matters which Judge Beattie had determined must be considered when ACC was exercising their discretionary power to assess the entitlement due to Mr Turner. At page 10 of the decision, Judge Beattie said:

“For the avoidance of doubt I state that the appellant is entitled to receive 24 hour care and that there must be payment for on behalf of the appellant for that 24 hour period and which must include a measure of remuneration for the appellant’s wife for her care during the period from 10pm to 6am.18

Furthermore, this Court has heard no evidence that the appellant’s condition or requirements have altered one jot since July 1996 and the level of care for which he was belatedly compensated must be taken to have continued to be required down to the present time and I can see no basis for not backdating the any sums so assessed to July 1996. To do otherwise would be tantamount to failing to heed the level of need of the appellant for the period post July 1996 and such a state of affairs cannot in any way be justified on the facts of the appellant’s circumstances”.

Discussion (a) Was the 1998 payment made under s 80(1) or s 80(3)? [37] The only reliable evidence I can find to explain the payment is in Mr Davis’ affidavit, which clearly indicates that backdated attendant care payments following Campbell were made under s 80(3), not s 80(1). The only other source of information is Mr Lyons’ March 2007 memorandum to Mr Davis. Mr Lyons stated that Mr Chittock was receiving compensation under s 80 of the 1982 Act for attendant care at a weekly rate of $350.00 and after analysing the requirements under s 80(3), he reminded ACC that:

“We need to bear in mind that the comments made by the Appeal Authority regarding cases with large backdated settlements, particularly in light of the fact that ACC has already made a large backdated settlement on the basis of a need for 24 hour constant personal attention in this case.”

[35] This is quite consistent with Mr Davis’ affidavit evidence, and I find it impossible to reconcile with Mr Lyons’ statement made in the letter dated 9 May 2007, that Mr

18 Under the CPI Regs. care provided by family members can only be taken into account in an assessment if that same care was performed before the injury was suffered.

17

Chittock was initially in receipt of entitlements under s 80(1) of the 1982 Act, that were transitioned when the 1992 Act came into force. The assertion that the payment was made under s 80(1) is also quite inconsistent with Mr Lyon’s statement in the next paragraph concerning Mr Wakefield’s request to ACC to provided entitlements under s 80(3) of the 1982 Act, that entitlements prior to 1998 were resolved in the settlement paid to Mr Chittock. [36] Section 80(1) provides reimbursement compensation for actual and reasonable expenses and proved losses necessarily and directly resulting from the injured person’s injuries, and paragraphs (g) and (h) respectively, exclude payments under that subsection of or towards any loss or expense in respect of which compensation is otherwise payable under the Act, or which ACC considers is similar in nature to an expense or loss for which compensation is payable under any other provisions of the Act. Compensation for attendant care by way of constant personal attention is payable under s 80(3), and ACC can only make payments that are authorised by statute.19

[37] It is common ground that the 1998 payment to Mr Chittock was made as a result of the changes to ACC’s attendant care policy to put the 1996 decision of the High Court in Campbell into effect. Campbell concerned claims in respect of compensation where the personal injury by accident is such, that the person must have constant personal attention, as provided by s 80(3), in cases where s 149 (3) of the 1992 Act specifically extended the operation of s 80(3).20

Mr Chittock must have been one of these people, or he would not have come under the aegis of Campbell and I am satisfied that the payment was made pursuant to Mr Chittock’s entitlement under s 80(3), and that this is the provision under which his entitlement was continued by s 149(6) of the 1992 Act.

b) Can the 1998 payment be reliably taken to indicate that ACC was satisfied that Mr Chittock required 24 hour care up to 11 September 1995? [38] I have not located a copy of the decision letter dated 25 June 1998 on the ACC file, but there is no reason to doubt that Mr Finnis’ description of the letter in his opinion under E Entitlement Decisions and Reviews, is correct:

“Garry Wilson, Chief Executive for ACC, wrote to Mr Chittock on 25 June 1998. In this letter he wished to confirm Mr Chittock’s eligibility for additional attendant care because of the high court rule that persons who needed constant personal attention were entitled to 24 hours of paid care by ACC. Assessment of the financial shortfall for additional attendant care was $668,872.00”.

[39] Then there is Mr Davis’ description of the payment process in his affidavit, in particularly at paragraphs 8 to 11, which clearly show that ACC assessed each individual initially on the information available on their ACC files and it was only if the Branch Manager decided that an outside, clinical opinion was needed for clarification, that this was obtained. In that sense, ACC may be technically correct and no such assessment was made in Mr Chittock’s case, but that shows only that the 19 ACC v Broadbelt [1990] NZAR 385 (CA); see also Algie v ACC [2013] NZACA 1 where ACC conducted its case on the primary argument that s 80(1) could not be used as a means of claiming for backdated attendant care, unless the injured person had actually paid for that care and was seeking reimbursement. 20 See page 2 of the decision.

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assessment was not required because Mr Chittock’s need for constant personal attention was evident from the reports and assessments used to support his historical payments. [40] As with Judge Beattie’s findings on the same point in Turner, I have no difficulty finding that, despite the submissions of ACC’s counsel to the contrary both at review and on appeal, ACC must have accepted in 1998 that Mr Chittock was a person who needed 24 hour care as a pre-condition to the 1998 payment being made. It follows that I also reject the finding on review that Mr Finnis’ assessment was based on the incorrect assumption that Mr Chittock had been assessed as requiring constant personal attention in 1998 (sic). If Mr Chittock was not assessed, one way or another in 1998 as requiring constant personal attention/24 hour care from 13 April 1984 up to 11 September 1995, then ACC had no right to make any payment to him at all. The fact that it did so must be taken to confirm that ACC was satisfied that he was entitled to 24 hour care and ACC has not proffered any other credible explanation for the payment. Indeed, ACC’s attempts to re-cast the payment as equivalent to an “ex gratia” payment made without any statutory authority, suggests a pattern of “revision” that is quite disturbing. (c) Did ACC have good reason as at 9 May 2007, to be satisfied that Mr Chittock had been properly assessed as not requiring constant personal attention from 11 September 1995 to that date? [41] The accepted legal definition of “constant personal attention” is based on Heron J’s comments in Campbell. The Court dismissed ACC’s argument that the discretion reserved to ACC under s 80(3) to pay such compensation as the Corporation thinks for a persons’ necessary care extended to allow ACC to provide less than 24 hour care to individuals who qualified as requiring constant personal attention, and Heron J said at pages 8 and 9:

“We approach this case on the basis that constant personal attention equates to 24 hour care. On the other hand we see no objection to the Corporation by way of clarification as to whether something less that that would suffice in order to constitute necessary care and in our view medical professionals should be able to be precise about those matters.

This case has to be resolved in the basis that up until April 1995,21

constant personal attention would involve the continuous attendance of persons on the individual throughout, but clearly the level of attention would vary. To some extent that is reflected in the level of the hourly rate where it is acknowledged that assiduous attention to the individual is not constantly required such as some cases (but only some) when he or she is asleep…. Necessary care could, we imagine, involve other than the personal attendance by persons on the individual concerned and monitors and electronic devices might be provided which would supplement the necessary care. We would not wish to see that possibility excluded but it will depend on the facts of each case as to what necessary care can be provided in the case of a person requiring constant personal attention”

21 Heron J said at page 2: ”From April 1995 the 24 hour paid care regime has applied. This case is to do with what happened before that date.“

19

[48] Concerning the extent to which ACC could take into account the moral obligations of family or friends, depending on the circumstances in agreeing to meet the expense of lesser hours, at page 11 Heron J said:

“Constant personal attention” and ”necessary care“ speak volumes as to the extent of the approach the Corporation may take. To suggest a broad approach as argued for allows the Corporation to effectively require individuals to make ad-hoc arrangements for care when the section intends that ‘necessary care’ will be provided at the Corporation’s expense.”

[42] Regarding the regulations made under the 1992 Act and the effect on the interpretation of s 80(3), at page 12 Heron J said:

“Subsequent legislative activity in this area seems to recognise the need for unequivocal opportunity for full time paid care. The latest regulations made under the 1992 Act22

whilst different in approach do not undermine the Authority’s view as to the way the section should be interpreted. If anything they give weight to the view that more resources not less should be directed towards people shockingly injured.”

[43] In Simpson and Matthews v ACC23

Heron J said that the key issue in the Matthews case was whether the phrase “constant personal attention” can be interpreted as including care for intermittent periods comprising less than 24 hours per day. The Court applied Campbell and approved MacKenzie J’s interpretation of the phrase in the High Court decision under appeal in Matthews, and held that the phrase means that an injured person requires some level of care over a 24 hour period. The level can fluctuate over the period, and does not mean that nothing less than 24 hour per day care will meet the test. However, the word “constant” requires some level of attention over the full 24 hour period and that attention is provided only with such interruptions as do not interrupt continuity. The fact that a person goes to a respite place or school does not break continuity.

[44] The Authority has interpreted the phrase “constant personal attention” subsequent to Campbell in decisions such as Meimaris24

, which is very much on point in terms of the level of independent mobility Mr Meimaris had through the use of a wheelchair and adapted motor vehicle and his involvement in wheelchair rugby, and the factors that Mr Cartwright identified as important to consider:

“[98]… whether the claimant is able to right oneself if balance is lost, ability to cope in an emergency, ability to be left alone, need for supervision (apart from direct supervision for daily care), need for turning throughout the night and ability to control body temperature.

[101] … The majority, if not all, claimants requiring constant personal attention are able to attend to various tasks and functions, but there is a need for them to have someone ‘reasonably’ present rather than actually carrying out the functions and tasks for them. That this is the case was explained succinctly by the Appeal Authority in Hobin (195/92). In addressing in Hobin the issue of

22 These were the CPI Regs. 23 [2007] NZAR 496 24 Decision 12/2003

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whether an injured person must have constant personal attention, the Authority said (p.8):

‘It is a question of fact…and the only legal issue that I need here consider is whether s.121(3) contemplates the type of nursing care which Mr Hobin is receiving.’

[102] The second informative aspect of the Authority’s decision in Hobin, is the nature of the care which is designated by the statutory phrase ”constant personal attention” The Authority said (p.9):

‘I do not interpret the phrase ‘constant personal attention’ as meaning that a carer must be constantly beside Mr Hobin as if he were, for example, in a critical care ward under continual observation. I interpret the phrases as simply meaning that constant care must be available.

[103] In the Authority’s view the p.9 extract from Hobin… clarifies the Review Officer’s concern expressed on p.9 of his decision. The Review Officer said: ‘Mr Finnis’ constant reference to the need for Mr Meimaris to have supervisory care 24 hours a day does not fit well with the provisions of the 1972 Act.’ It seems to the Authority that Hobin clarifies that constant care must be available, rather than as being an ever-present ingredient of a continual process.”

[45] Mr Hlavac submitted that, following Campbell, and two other decisions of the High Court, “The question of whether a person requires constant personal attention is a medical question that can only be addressed by the appropriate medical personnel.” No medical evidence was produced or referred to by ACC to suggest that Mr Chittock’s need for constant personal attention was assessed under s 80(3) by the appropriate medical personnel, apart from Mr Finnis, before ACC made the decision of 9 May 2007, and there is nothing on the ACC file to suggest that such an assessment was obtained. On the contrary, the evidence strongly indicates that ACC considered and rejected the Finnis assessment, and Mr Lyons’ recommendation to settle the claim and then work towards determining whether Mr Chittock’s needs had changed since 11 September 1995, and instead based the decision of 9 May 2007 on Ms Kenworthy’s memorandum dated 27 March 2007, Dr Xiong’s report of 24 October 2000, and Dr Parker’s medical review of 1 May 2007. [46] Though Ms Kenworthy described her memorandum as a “clinical opinion” she is not a clinician of any sort. She is, or was, a Senior Improvement Analyst who conducted a file review and formed certain conclusions and made certain recommendations based on the assumption that the definition of “constant personal attention” or 24 hour care is interchangeable with the definition of attendant care under the post 1982 legislation, and is to be assessed using the direct personal care needs models that replaced s 80(3). For example, Ms Kenworthy approved and adopted for her own recommendations, Dr Xiong’s comments “That the suggestion of someone to assist him all the time is against the principle of rehabilitation compatible with current medical practice” and “that whether Mr Chittock would like someone to be present with him all the time was a matter of personal choice”. [47] Both these comments clearly indicate that neither Dr Xiong nor Ms Kenworthy had any real understanding of the concept of constant personal attention, as the phrase has been judicially defined and though he may have been suitably qualified,

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Dr Xiong reached his conclusions by applying the FIM tables to measure Mr Chittock’s personal care needs for performing the activities of daily living. [48] ACC sought a limited clinical opinion from a qualified practitioner through Dr Parker’s medical review of the same files that Ms Kenworthy reviewed, but Dr Parker said that she was unable to make a determination whether Mr Chittock then required constant personal attention, as he had not had a recent assessment by the appropriate clinicians and she recommended that an assessment should be carried, and identified the experience she thought that the clinicians needed to have. ACC did not action this recommendation and Mr Hlavac did not identify any other assessments in his submissions after Mr Finnis’ assessment, apart from a Spinal Evaluation and Assessment Report dated 30 January 2007. Mr Hlavac described this assessment as follows:

“In a report completed by the appellant he noted that the level of care he was receiving did not meet his needs, but that his current equipment met his needs, that transfers were very difficult, and that he was ‘unable to push my manual chair as well’ and noted that he had no bowel accidents in the last six months”.

(d) The weight to be given to the Malpress, Xiong and Finnis assessments [49] I was impressed with Dr Malpress’ assessment because it is thorough, it covers all the aspects of Mr Chittock’s injuries and needs for care and supervision for his safety that should be covered, and his conclusion that Mr Chittock does require constant personal attention is consistent with Mr Chittock’s situation and with the legal definition of that phrase. Unfortunately, Dr Malpress does not state his relevant qualifications and experience in his assessment, and Ms Kenworthy described him as an Occupational and Environmental Health Physician in her memorandum of 17 March 2007, which suggests that she may well have been correct to place less reliance on his assessment for this reason. In Meimaris v ACC25

, Mr Cartwright rejected an assessment by a Dr Morris upon which ACC had relied to justify the decision that Mr Meimaris did not need constant personal care and attention in favour of Mr Finnis’ assessment, because Dr Morris “…is a GP who does not bring any specialist expertise to the care of severely injured accident victims”. Although Dr Malpress may be appropriately qualified, and it would be expected that Mr Cadenhead would not have instructed him unless he was so qualified, there is no evidence to this effect to give his assessment the necessary gravitas.

[50] Dr Xiong was described by Ms Kenworthy as a Specialist in Rehabilitation Medicine at Rehabilitation Services, Burwood Hospital, which, assuming this is correct ought to make him appropriately qualified to carry out the necessary assessment. The greatest impediment with respect to his report is that Dr Xiong does not accept the fundamental principle of “constant personal attention”, being 24 hour attendant care and supervision where this is required for an injured person’s safety, as he believes this is contrary to the principles of the more current rehabilitation that he practiced. Dr Xiong reached his conclusions through administering the FIM tests and scored Mr Chittock accordingly in relation to his direct physical needs and he dismissed Mr Chittock’s more intangible needs as “a matter of personal choice” without investigating the safety and supervision factors that Mr Chittock was concerned about and which had been clearly identified in the assessments that Dr Xiong considered for his own opinion. Moreover, Dr Xiongs’s

25 Decision No.12/2003, para [54]

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conclusion that Mr Chittock could manage his overnight cares himself, is inconsistent with the overnight care that was put in place as a result of the review decision where his report “carried the day” for Mr Chittock, and while ACC has relied upon Dr Xiong’s report to continue to decline 24 hour care, possibly because it is the only medical assessment of Mr Chittock’s care needs that ACC has obtained, the report has been overtaken to a significant extent by ACC’s subsequent care hours increases up to the 2007 level. [51] Mr Finnis set out his experience in his assessment: He is a specialist in Neurosurgery and at the time of writing his report, he was a Consultant Neurosurgeon at the St Georges Hospital, Christchurch. He was also the Neurosurgeon in charge of the Burwood Brain Injury Unit and the visiting Neurosurgeon to the BSIU. In addition, Mr Cartwright said at paragraph [54] in Meimaris : “Mr Finnis… is fully cognisant with the treatment and needs of tetraplegics. Mr Finnis has provided a detailed and comprehensive assessment of the appellant’s needs, and specifically he has addressed the issue at large.” [52] Mr Cartwright was so assisted by Mr Finnis’ assessment in Meimaris, which included more or less the same analysis of the phrase “constant personal attention” as in his 2005 assessment, that he repeated it in full in his decision. I feel quite safe, therefore, in preferring the opinion of the Appeal Authority, namely, that Mr Finnis is appropriately and very well qualified to make an assessment of Mr Chittock’s need for constant personal attention, and accordingly, I do not consider that the submission that Mr Finnis has strayed outside his area of expertise when trying to interpret the phrase “constant personal attention“ has any merit whatsoever. I have therefore considered Mr Chittock’s need for constant personal attention on the basis of Mr Finnis’ assessment of 20 September 2005 and I have repeated it from the heading Assessment,

as the background material has already been dealt with to a sufficient degree, and Mr Finnis considered the full medical and occupational therapy reports up to 2003 in this part. Mr Finnis said:

“A further review was undertaken regarding the issue of ACC's decision relating to Mr Chittock's level of personal care/support entitlement. I have the report by S.M. Winter, Review Officer, dated 22 December 2000. The report by Angela Bellett, Occupational Therapist, from a recent assessment of Mr Chittock on 29 September 1999 resulted in an increase in entitlement of care but according to Mr Chittock was insufficient based on a report by Dr Malpress. In the review Angela Bellett increased first the support by five hours per week and attendant care by three and a half hours per week such that the total personal support amounted to 12 hours per week and attendant care 34.5 hours per week. The decision of the review was that they felt Mr Chittock did not need 24 hour supervisory care as he appeared reasonably independent and had been left alone. The review did however feel they needed to recognise the wife's input between 10 p.m. and 6 a.m. and they should be compensated for this. The decision of the 29 September 1999 therefore was modified such that he had increased entitlement of 49 hours which equated to seven hours supervisory care at night seven days per week.

Assessment Mr Chittock is a 41 year old tetraplegic of 22 years who is functioning at a C6 and partial C7 neurological level. He has been well rehabilitated and is living with his wife in his specially adapted house.

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Neurologically Mr Chittock has marked wasting and weakness of both hands. He achieves flexion secondary to extension of his wrists and there is no extension of the fingers. There is therefore marked functional limitations with the use of his hands. He has good strength in flexion of the elbows and abduction of the shoulders and this proximal gross motor activity is a functional benefit to him. Other arm movement is weak. He has no motor or sensory function in his legs. There appears to have been no significant neurological change in the objective findings over the 22 years. The neurological findings recorded by Mr Bean in his discharge letter of 7 February 1984 and that of Dr Xiong on 24 October 2000 are similar to my own findings and therefore generally unchanged.

The above neurological deficits result in significant functional disability. Mr Chittock still requires assistance for most activities of daily living. The assistance he requires is well documented in the numerous reports by occupational therapists over the period of time since his injury. There are some activities that he is incapable of doing such as attending to his bowel and cleaning up after accidents associated with the bowel or bladder. Activities which require a degree of dexterity of the hands clearly are incapable of being achieved, and where strong upper limb function is required such as adjusting his position or picking himself up from the floor also is not able to be done.

His ability to transfer is an important function to consider. He is able to transfer independently in some situations, particularly if this has been set up appropriately. He otherwise needs assistance and he considers himself that assistance is required. Angela Bellett, Occupational Therapist, has reported that independent transfer can be achieved. She has reported on 13 March 1999 that independent transfer to a car can be done. Phyllis Wilson, Occupational Therapist, reported on 23 September 1999 that independent transfer could also be done. These observations are done however in ideal situations in a controlled environment with assistance available if problems arise. If there are problems with setup or if an accident occurs such as a fall Mr Chittock may not be able to deal with many of the resulting problems. Phyllis Wilson did recognise that problems could occur and this may happen in particular when he is tired or unwell at which time he may be unable to lift himself appropriately and hurt his skin as he drags himself over to the chair of the car. Once transferred he is reasonably mobile in a wheelchair which he powers himself and clearly demonstrates efficiency in this with his ability to play para-rugby. This again is in an ideal situation with smooth ground and importantly supervised. He does have problems on uneven ground and does not have the strength to cope with obstructions such as curbs.

Mr Chittock has obviously been left alone and can function for short periods of time in a simple fashion independently. Mr Chittock is also well aware of the dangers involved and has clearly demonstrated that he can be left alone for short periods of time quite safely. During these times he is actually not fully independent in all situations as problems can occur such as falls from transferring, burns from spilling drinks and bowel accidents which he could not be able to cope with. Management of these problems require assistance and delay to achieve this not obviously appropriate given the escalating consequences of some situations or injuries if left unattended. He is aware of the personal alarm system however he recognises problems with this, particularly with response delay, but also the potential inability to access the

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device from certain positions when he falls or if the device is indeed not in the immediate vicinity.

You have mentioned in your letter that the issues regarding the 24 hour care are stated in Section 80 (3) of the Accident Compensation Act 1982. You have emphasised that this Act requires that the patient must have constant personal attention and that this care must be necessary. What is regarded as necessary however would depend on a matter of what standard one is wishing to achieve for the level of care or supervision. "Necessary" in this concept is not an absolute term and differences in opinion regarding the necessity of care would depend on how this is interpreted.

It has to be made absolutely clear that the occupational therapy assessments are not for the assessment of 24 hour care. Confusion consistently arises where the aggregated time assessed by occupational therapists is used for the purpose of assessment for 24 hour supervisory needs. Occupational therapists purely assess the time required for various activities of daily living during the course of the day and the summation of this time is used for the basis to assess compensatory needs. For those tasks. The allocation of one hour per day for example for bowel accidents has been applied but clearly this could occur at any stage and not necessarily when the carer is present. What is important is not the time spent with the client during these activities of daily living, but what the necessary requirements are between these episodes of attendant care. This was recognised for example by the ACC Review Officer's decision of 22 December 2000 when the wife's night time care was recognised as important, and this was outside the occupational therapist's attendant care requirements. Angela Bellett on 28 April 1998 stated that 24 hour care was not required but somewhat contradictory in her report recognised the contribution made by his wife for turns at night time.

The argument for the need for 24 hour care rests on two main issues. The first is on the principle of safety, which is probably the most common argument given for the need of this level of care. It is clear that in an untoward event such as a fire, if left alone, Mr Chittock may not be able to adequately escape in some situations. He may not be able to transfer adequately in an emergency and a fall could have serious consequences. It may be that his exit ramp is blocked and he is not able to escape. Clearly some degree of independence can be achieved transferring in ideal situations, but this may not necessarily be assumed to be secure in emergency situations. Accidents are unforeseen events and will not necessarily occur at set time intervals when attendant care is available during periods of the day. Never alone alarms are often used as a counter argument for the safety principle however as mentioned above problems can occur with these such as an inability to action the alarm, problems with access, or response delay. Although it is quite obvious that Mr Chittock can be left for periods of time alone, and has done so, this does not mean there is not some risk to safety doing this. Situations may be quite rare, but can occur. The situation is not too dissimilar to the situation of an eleven year old child who clearly is independent enough to be left alone for short periods of time but it is recognised that they may not be able to cope in the events of an emergency and therefore protected by making it illegal to leave a child alone of this age.

The second argument for 24 hour care relates to what needs to be provided to achieve an acceptable standard of care for a tetraplegic patient. This relates

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firstly to the availability of carers to provide help if accidents occur, such as with the bowel, and the prevention of secondary complications as a result of these. An example being the skin problems which may result from unacceptable delay in attending to bowel or bladder accidents. The second aspect of this argument relates to the requirement for supervision for most activities that are done. Although several tasks can be carried out with some degree of independence some degree of supervision is often required. Constant supervision should therefore be available.

You have mentioned that Mr Chittock was entitled to 24 hour care from 1984 to 1995. You also mention that he did not decide to forgo this entitlement. As mentioned above there is no change in his neurological status. Indeed if anything Mr Chittock feels that there has been a decrease in the function of his right arm. Tendon transfers have made very little difference. It may have improved slightly some degree of fine motor function in the hands but has had no influence on gross motor function and therefore on many important tasks such as transfers. His functional needs appear to be quite similar during these periods of time, and if anything showing more dependence as assessed by the escalating times of the ADL requirements. There is no reason on the grounds of neurological or functional change assessment why entitlement was ceased.

There are arguments against 24 hour care and it is understandable how this can be assumed. Mr Chittock has clearly achieved some level of independence in his own home. He has been left alone many times and there has not been any observed deterioration in his condition. He also appears quite mobile in his wheelchair and he can get in and out of his house independently. He also appears to do some simple activities without assistance and he is responsible enough to not put himself into situations which could be dangerous if problems arise. His activities of daily living are well catered for and therefore any more care is not to be considered necessary but only desirable. As mentioned above however, this argument does not take into account an emergency or other difficult situations which can arise unpredictably, the adequate management of problems if they arise or the supervisory care which is required for most activities.

His attendance at wheelchair rugby is often also used as an argument against the need for 24 hour care. I would consider this irrelevant to any assessment of 24 hour needs. The degree of supervision in these activities is high and constantly available. All activities are undertaken in a controlled environment where any problems can be immediately attended to and the activities and rules created around the functional capabilities of tetraplegic or paraplegic individuals. Similarly, the ability to drive a suitably adapted car is also irrelevant when it comes to decisions regarding 24 hour supervisory care. It is more important to consider the ability to actually get to the car and transfer appropriately without problems and to manage any problems if they do arise. A single observation of a transfer in a controlled environment with supervisory care available does not necessarily imply that supervision for the purpose of assistance in all circumstances is not required.

It also is surprising that arguments are made to disregard 24 hour care because of the functional improvement in tendon transfer operations. This fails to recognise the goals of an operation of this sort and what is actually achieved with this. In the most successful situations this achieves some form of fine

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motor activity in the hand. This is not an operation which changes gross motor function in the upper limb and has little to do with improving aspects of gross motor activity such as transfers or the ability to cope with some important activities during the day such as bowel function and the management of accidents from this.

The safety issue is also often dismissed by the argument that personal alarm systems will cope with this problem. As mentioned above such response devices if initiated can be subject to some delays and there may be problems with activation of the device because of for example falls in certain positions or the inability 0 reach such devices. It is also argued that when alone some responsibility for activities has to be with the disabled person. This of course does not recognise the unpredictability of accidents nor does it take into account what standard or quality of care is necessary.

In my opinion the assessment of the need for 24 hour care must focus on the requirements outside the time that has been allocated for activities such as daily attendant care. It is during the times of attendant care that a person is available and that appropriate supervision is being provided. The recognition of what is necessary outside this time is dependant on what standard of supervision or care that is considered necessary for that time. This depends entirely on the definition of "necessary" care and what is implied by this in the Act. It is therefore how the law interprets this. How one interprets necessity will separate what is "necessary" to what is purely "desirable". There is therefore a spectrum which can be defined. One pole is the "all encompassing" which would regard "necessary" to mean what is required to provide care to a quality reaching a normally abled person. Safety issues would be considered to cover all eventualities despite how rare this would be. It would also provide security and quality of care by constant presence such that a patient may reach the standard of an able bodied person. The diametric opposite of this is a more "basic" interpretation of "necessary". In this interpretation the Act is not meant to cover all situations and some problems have to be accepted and responsibility for this taken by the patient. In this situation the patient can be left alone at times and that any provision of care over this to be deemed "desirable".

How and where the Act is interpreted in this spectrum is probably a legal decision and is one for interpretation of the court. From your included documentation "necessary" care is defined in an Act (section 121 (3) 1972 Act), as needing to be continuous and directed to the care of the patient. The term "continuous" was deemed to imply what was needed for safety and did not imply what was needed for life support. The legal definition of continuous care therefore was regarded as not care constantly required at the bedside but as constant care to be available.

Mr Chittock has had an accident rendering him seriously disabled. As a result of the accident his basic safety needs and functional requirements have significantly been compromised and clearly this has impacted significantly in the quality of his life. In my interpretation the aim of 24 hour supervisory care is to return what has been lost to Mr Chittock and that this is to be regarded as "necessary". Issues regarding the quality of care and safety are important in interpreting the necessity for 24 hour care and this goes beyond the basic requirements of the superficial assessment of summated activity of daily living

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times. My opinion as stated here is consistent with the definition of continuous care mentioned above as that being constant care to be available at all times.

In summary therefore I would support that the availability of 24 hour care is necessary on grounds of safety and acceptable provision of quality care. The fact that he can be left alone does not mean that supervisory care is not necessary to reach an acceptable standard of safety and quality of care.

Nicholas D M Finnis Consultant Neurosurgeon”

[53] Mr Hunt summarised the Social Rehabilitation Assessment – Complex Report dated 24 August 2004 that Nr Finnis did not have for his assessment, which I have included for the sake of completeness:

“31. The detailed social rehabilitation assessment report outlined the appellant’s injury and needs. It noted that the appellant had problems with transfers and falls in the last 12 months, falling 3 – 4 times a year and were finding transfers in and out of his car a problem at times. He also wished to consider using a power chair as a means of preserving shoulder function and increasing independence for outdoor mobility. It noted that there was no history of pressure areas but the appellant had three episodes of third degree burns caused in accidents.”

[54] I am satisfied that Mr Finnis’ assessment is safe to rely upon to determine that Mr Chittock did require constant personal attention from 11 September 1995 to 9 May 2007 and that it is consistent with the observations of Mr Chittock’s abilities and disabilities, and his personal care needs and aspects where supervision was required that were made in Dr Malpress’ assessment, and also the various assessments and reports that were undertaken by ACC during that time. Mr Finnis applies the correct test and criteria to support his conclusions and he understands what is required to carry out the assessment. In Mr Cartwright’s words, unlike the other assessors except for Dr Malpress, Mr Finnis is the only assessor to “address the issue at large”. [55] I am also satisfied that was no change for the better in Mr Chittock’s condition either before, or after, ACC determined in 1998 that he required constant personal attention and that as at 9 May 2007, ACC did not have sufficient grounds to be satisfied either that Mr Chittock did not require constant personal attention from 11 September 1995 to that date, or that all the intervening assessments had been carried out correctly for the purposes of s 80(3). It follows that I do not accept ACC’s submission that Mr Chittock’s entitlements under s 80(3) must run from 22 December 2000. The Authority is not bound by a review decision, particularly one that must have been conducted on the erroneous assumption that Mr Chittock had elected to abandon his rights under s 80(3), when he had not done so. Without a valid election to bring Mr Chittock under the post 1982 Act care regimes the review decision was plainly wrong and it was made ultra vires. [56] Mr Finnis’ opinion was prepared to support Mr Chittock’s claim for constant personal attention made in 2005, and is reasonably contemporaneous with the date of decision under appeal. Although Mr Chittock unequivocally stated that Mr Chittock’s care needs had not changed from 1995, and I have accepted that this must have continued to be the case up to 9 May 2007, I do not believe that I can make the decision whether Mr Chittock is entitled to receive constant personal

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attention from after 9 May 2007, as it would be tantamount to substituting my own decision for ACC’s decision, which I cannot do on appeal. Directions [57] ACC is to immediately calculate and pay Mr Chittock the difference between the attendant care payments he has received, or which ACC has funded from 11 September 1995 to 9 May 2007, and the payments he was entitled to receive for 24 hour care. [58] ACC is to issue a decision regarding Mr Chittock’s need for constant personal attention under s 80(3) from 10 May 2007 and ongoing. For the avoidance of doubt, I do not consider that a new assessment is required to establish this, as there is no reason to expect that Mr Chittock’s condition has improved since Mr Finnis’ 2005 assessment and Dr Parker’s memorandum of 1 May 2007 confirms that his condition was deteriorating and would continue to do so as he ages. [59] The decision is to be issued as a matter of priority, with review rights given under the 1982 Act. Decision [60] The appeal is successful. [61] The Corporation’s decision of 9 May 2007 is reversed. [62] The Corporation must issue a new decision to accept that Mr Chittock is entitled to constant personal attention under s 80(3) of the Accident Compensation Act 1982 from 11 September 1995 to 9 May 2007. [63] The Corporation must put the directions at paragraphs [57] to [59] into effect. . [64] Leave is reserved to seek further directions, if considered necessary by either party. Costs [65] If costs and disbursements cannot be agreed within 14 days, Mr Wakefield has 21 days thereafter to file submissions, which are to be supported where possible by invoices or time records. [66] The Corporation has a further 21 days to file submissions in reply and a decision will be made on the papers. DATED at WELLINGTON this 6th day of March 2014 ………………………………. R Bedford