Humphrey v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 1/4 195 HELD AT CHRISTCHURCH IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN C HUMPHREY 88 / 95 / 0192 Appellant (Appeal No. DCA 25/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of September 1995 APPEARANCES Appellant in person Mr N Morrison for respondent DECISION OF JUDGE D A ONGLEY This an appeal against the Corporation's refusal to pay travel costs for specialist consultations and surgery. The appellant suffered personal injury by accident in 1985 when he twisted his right ankle. He suffered pain and consequential problems, had to leave his job as a car salesman and eventually set up his own picture framing business that he conducted with difficulty because he had to contend with swelling, discomfort and pain from his foot and associated back problems. Until 1990 he received specialist attention from Mr Taine and Mr Poplawski but the symptoms persisted. In 1994 his general practitioner referred him to Mr Talbot, orthopaedic surgeon at Christchurch. After three consultations Dr Talbot applied on behalf of the appellant for specialist treatment costs for arthroscopy of the right ankle and treatment costs were approved. The surgical procedure was carried out on 1 1 July - 2 - 1994 when Mr Talbot abrided some ragged fragments of articular cartridge. The appellant found the result helpful and he said that for the first time in nine years he was able to function without pain from his ankle. He applied for payment by the Corporation of transport expenses for five trips in all between his home at Pleasant Point and Christchurch. His application was refused on the ground that the Corporation did not have power to pay transport costs where the treatment was abatable at a place nearer the appellant's home. Reg 6 of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, or Physical Rehabilitation) Regulations 1992 provides that the Corporation shall not be liable to make any payment under this regulation for a journey longer than the journey from the place of commencement to the nearest place where the treatment is able to be provided, whether or not it is provided to the claimant at that place. The difficulty with the appellant's claim, was that the Corporation understood the treatment could be provided at Timaru. The Corporation had reasonable grounds to believe the treatment could be provided at Timaru and that has not been questioned on this appeal. The ground of the appeal is that the refusal to pay is unreasonable and unfair. After hearing argument I am not able to find in favour of the appellant. It is certainly true that he acted responsibly in pursuing treatment. He had not been able to obtain relief through specialist attention in Timaru despite surgical intervention in 1990. He did not choose to consult Mr Talbot against professional advice, but he did wish to obtain another opinion. He was referred by his general practitioner. The Corporation asked Mr Taine to comment and he replied as follows: "With regard to Mr Humphrey's statement that he has seen two specialists and that nothing further was able to be done, he has not been referred to myself nor as far as I am aware to Mr Poplawski, for this problem for 4 years. He has been seen by myself with another problem in the meantime but no record at that time was made of his ankle complaints. As far as I can recall, arthroscopy of the ankle would not have been available, even if it had been indicated at that time, in either Timaru or Christchurch. It may be that he has subsequently developed indications for ankle arthroscopy but I cannot comment on this without seeing the patient." In hindsight, it may well be that had he seen Mr Taine he could have had a successful procedure in Timaru. The appellant was not to know that and he did nothing deliberately to increase the costs incidental to his treatment. It was at least reasonable for the Corporation to accept from Mr Taine's letter that the procedure could have been carried out in Timaru in 1994, although not in 1990. No contrary evidence has been produced and I must reach the conclusion that the Review Officer was correct in confirming the decision of the Corporation. The Review Officer's decision is confirmed and the appeal is dismissed. If there is any power to make a discretionary contribution to travel costs the Corporation should consider this as an appropriate case, but that is entirely a matter for the Corporation. - 3- Once again the appellant may have travel costs for the appeal in accordance with the regulations but there will be no general order for costs. DATED at WELLINGTON this 5*^ day of October 1995 D A Ongley District Court Judge