Hallett v Accident Compensation Corporation

IN THE DISTRICT COURT AT WHANGAREI DECISION NO /4 5 /2007 AI 400/06 UNDER Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to s 151 of the Act BETWEEN ALLAN HALLETT Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Heard at Whangarei on 20 June 2007 Appearances: Appellant on own behalf Ms S Mechen Counsel for ACC Judgment: 3 July 2007 RESERVED DECISION OF JUDGE P F BARBER Issue [1] Was ACC correct on 7 June 2006 to decline to fund Bowen Therapy for the appellant? Background 2] On 24 July 1993 the appellant fell from an 80-metre cliff/rock-face at a bay and almost died from extensive injuries, particularly, to his spine and pelvis; indeed, he severed his spinal cord. He suffers intensive chronic pain for which he takes heavy doses of morphine by tablet. He receives assistance from ACC by way of treatment, weekly compensation, attendant care, and an independence allowance. ALLAN HALLETT V ACCIDENT COMPENSATION CORPORATION DC WHA DECISION NO -/07 [] However, he would very much like ACC to fund the Bowen Therapy which he has been undergoing for nearly two years at his own expense. [3] Bowen Therapy is a rather curious, but often effective, form of treatment which seems to be a series of procedures designed to trigger a self-healing response through access to the body's nervous system. The process is gentle and non- invasive. It is synchronised with the breath and, somehow, engenders a deep sense of general relaxation of a soothing nature which seems to contribute to quite some healing for many people. It is also described as a general form of bodywork in which very subtle moves are performed over the muscles and connective tissue to send wellbeing messages deep into the body. It costs about $45 for a full hour compared with $65 for shorter time treatment from a chiropractor. ACC feels empowered to fund the latter but not Bowen Therapy [4] Its is good that the appellant benefits from the therapy so much so that he has been able to significantly reduce his intake of morphine. I understand that from about April 2006 the appellant has ceased having chiropractic treatment as he felt it was "making him worse". This means that ACC is saving the cost of chiropractic treatment. However, the appellant is required to pay for Bowen Therapy and his financial state is parlous and difficult for his wife and children. [5] There is no dispute that the Corporation's liability to pay or contribute to cost of "treatment" is set out in Schedule 1, Part 1, of the Injury Prevention, Rehabilitation, and Compensation Act 2001. By the end of the hearing the appellant accepted that the schedule does not enable ACC to fund Bowen Therapy. He emphasised that he has pursued this appeal to endeavour to attract some attention to the benefits of Bowen Therapy for his "unbearable pain" situation in the hope that ACC will, eventually, be given power to fund Bowen Therapy as an accepted treatment. I understand he will also see his local Member of Parliament on this theme. [7] A 19 September 2006 review decision (Reviewer J R Orange) confirmed ACC's decision that it did not have authority to fund Bowen Therapy. Analysis [8] The appellant's request for such funding fails because Bowen Therapy does not meet the criteria set down in Clauses 1 and 2, Schedule 1 Part 1 of the Act as "treatment" which ACC may fund; and, in any case, any such treatment must be given by a "treatment provider" who would normally provide that treatment. "Treatment" and "Treatment Provider" are specifically defined under the Act and those definitions are not complied with under Bowen Therapy. Those Clauses 1 and 2 read: 1 Corporation's liability to pay or contribute to cost of treatment 1) The Corporation is liable to pay or contribute to the cost of the claimant's treatment for personal injury for which the claimant has cover if clause 2 applies,- (a) to the extent required or permitted under an agreement or contract with any person for the provision of treatment; or (b) if no such agreement or contract applies, to the extent required or permitted by regulations made under this Act; or (c) if paragraphs (a) and (b) do not apply, the cost of the treatment. (2) In subclause (1)(c), cost means the cost- (a) that is appropriate in the circumstances; and b) as agreed by the Corporation and the treatment provider. 2 When Corporation is liable to pay cost of treatment (1) The Corporation is liable to pay the cost of the claimant's treatment if the treatment is for the purpose of restoring the claimant's health to the maximum extent practicable, and the treatment- a) is necessary and appropriate, and of the quality required, for that purpose; and (b) has been, or will be, performed only on the number of occasions necessary for that purpose; and (c) has been, or will be, given at a time or place appropriate for that purpose; and (d) is of a type normally provided by a treatment provider; and e) is provided by a treatment provider of a type who is qualified to provide that treatment and who normally provides that treatment; and (f) has been provided after the Corporation has agreed to the treatment, unless clause 4(2) applies. 2) In deciding whether subclause (1)(a) to (e) applies to the claimant's treatment, the Corporation must take into account- (a) the nature and severity of the injury; and (b) the generally accepted means of treatment for such an injury in New Zealand; and (c) the other options available in New Zealand for the treatment of such an injury; and d) the cost in New Zealand of the generally accepted means of treatment and of the other options, compared with the benefit that the claimant is likely to receive from the treatment. treatment includes- a) physical rehabilitation: (b) cognitive rehabilitation: (c) an examination for the purpose of providing a certificate including the provision of the certificate treatment provider- (a) means an acupuncturist, audiologist, chiropractor, counsellor, dentist, medical laboratory technologist, nurse, occupational therapist, optometrist, osteopath, physiotherapist, podiatrist, medical practitioner, or speech therapist; and b) includes a member of any occupational group included in the definition of treatment provider by regulations made under section 322 [9] Clause 2 of Schedule 1, Part 1 examines the specific treatment, and the appropriateness of it for the specific injury, taking into account the generally accepted means of treatment for that injury. Clause 2 provides that the Corporation is only liable to pay the cost of treatment, among other things, if the treatment is necessary and appropriate and of the quality required for the purpose of restoring the claimant's health to the maximum extent practicable. The Corporation must take into account the generally accepted means of treatment for such an injury and other available options. [10] I agree with ACC that Bowen Therapy cannot at present be considered necessary and appropriate because there is a lack of evidence to support it as being a generally accepted means for the treatment of back injury in New Zealand. No studies are available to support any of the claims made about the effectiveness of Bowen Therapy for the treatment of back pain, and there is evidence that Bowen Therapy does not provide any therapeutic advantage for back pain. Understandably, ACC could not be satisfied as the safety and legitimacy of Bowen Therapy. I agree with that approach in terms of the present state of knowledge about it. 11] Also, Bowen Therapy is given by a Bowen therapist who has been trained in the technique which is neither massage, acupressure, chiropractic, physiotherapy, trigger-point therapy, fascia release, lymphatic massage nor an emotional release modality. It is a particular technique which is quite different to standard manipulation techniques administered by chiropractors and physiotherapists. [12] Clearly, a Bowen therapist is not a treatment provider as defined by the Act; nor is a Bowen therapist a member of any occupational group included in the definition of treatment provider by regulations made under s 322 of the Act [13] The treatment requested by the appellant must comply with the Act and its regulations before ACC may approve funding it. Bowen Therapy is not a treatment covered under the Act nor do Bowen therapists fall within the definition of treatment provider. [14] It follows that ACC funding of Bowen Therapy must be declined under present law. I consider that ACC's 7 June 2006 decision was correct as was the confirmatory decision of the Reviewer. This appeal is hereby dismissed. [15] Simply put, the medical profession does not seem to currently regard Bowen Therapy as credible. However, in the present case we have a situation where the appellant obtains significant relief (from his otherwise unbearable pain) due to Bowen Therapy and is prepared to go into debt to pay for it, even though other treatment would be provided through the Corporation without charge to him. He can only afford Bowen Therapy about once a fortnight and would prefer to undergo it weekly. Logically, if a number of people believe they are being assisted in rehabilitation by Bowen Therapy, so as not to need other accepted (and more expensive) treatments which would have been funded free to them, it might be sensible that "treatment" be extended to cover Bowen Therapy, but subject to the medical profession confirming credibility for Bowen Therapy. Judge P F Barber District Court Judge, Wellington