Jeans v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 067/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal against a review decision under Section 149 of the Act BETWEEN CAROLYN MARY JEANS of Hamilton Appellant (Appeal No. AI 110/03) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at TE AWAMUTU on 10 March 2004 APPEARANCES/COUNSEL Appellant in person J. Hodgson for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this appeal is whether the primary decision of the respondent dated 18 November 2002 in respect of the appellant’s entitlement to dental treatment was correct. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/067- 2004.doc AE [2] In her notice of appeal, the appellant claims that the request for costs for two teeth implants and one tooth crowned and the rest on the bridge, was misinterpreted in the decision upon review. The appellant did not file formal submissions, but made some brief oral submissions in front of me. [3] It is the respondent’s position that its contribution to dental costs, where an implant is given, is limited to the amounts prescribed by the relevant Regulations. Background of Facts [4] The appellant has an accepted claim for dental injury sustained on 5 June 1986, when a man jumped out from behind her bedroom door and attacked her. As a result of the attack, the appellant sustained dental injuries to her lower incisor tooth 31, and she required replacement of a five unit bridge from teeth 42 to 33. The Review Decision [5] In a review decision dated 3 February 2003, the reviewer said that the decision letter of 18 November 2002 was a decision by the respondent approving the maximum amount of funding that it could for the appellant’s dental treatment according to the Regulations. [6] The respondent exercised its discretion, and gave the appellant a one-off only approval for implant treatment. This procedure is not listed in the Regulations. The crown and bridge aspects of implant treatment attract an additional fee from the appellant’s general dentist, Dr Aitken. The additional fee is around $2,000. [7] The reviewer said that the dental advisor, Mr Clark, noted that because of problems of ongoing infection, replacing Miss Jean’s failed bridge was unlikely to produce a long term solution. He advised the implant treatment option as the only solution, and that would give Miss Jeans fixed teeth to replace her failed bridge. [8] The reviewer said that while he empathised with the appellant’s situation, he confirmed that the respondent’s primary decision was correct, and therefore the review application was dismissed. 067-2004 2 The Treatment Required [9] During 2002, Mr Peter Clark, oral surgeon, and Dr Rob Aitken, dentist, advised the respondent on further treatment for the appellant’s dental injuries. The first part of the treatment was oral surgery to be conducted by Mr Clark. That surgery would involve placement of three implants and removal of a fractured tooth. The oral surgery was quoted as costing $849.38 which the respondent agreed to pay. The second part of the treatment was the crown and bridge treatment, to be performed by Dr Aitken, subsequent to the oral surgery. [10] In a schedule received by the respondent dated 25 October 2002, Dr Aitken outlined the following dental treatment totalling $4,540.70: Examination and assessment $31.60 Panorex x-ray $33.50 Adhesive bridge, 8 units, Item 62 x 8 $1,415.60 Cost equivalent, 8 units, bridge work item 60 x 8 $3,000.60 [11] In a letter dated 18 November 2002, the respondent advised the appellant that with regard to the dental treatment required it had approved the following dental treatment plan: [i] Examination $3.60 [ii] Panorex x-ray $33.50 [iii] Teeth 32, 31, 41, and 42, one tooth plastic partial denture, x three extra teeth and two clasps $262.10 [iv] Cost equivalent, 7 units standard bridge $2,677.50 This was the approved treatment plan. [12] In its decision, the respondent therefore, approved a total of $3,004.70 (GST inclusive). The respondent advised the appellant that this was the maximum it could pay under the applicable Regulations, and that any shortfall was the responsibility of the appellant. 067-2004 3 [13] In an application for review dated 8 December 2002, the appellant stated that she would require a bridge to cover the implants in order to avoid further problems with further abscesses, and requested that the Corporation review its decision and pay for the bridge to be made. The application for review was unsuccessful, and the appellant has now appealed the review decision. The Law [14] Clause 1(1)(b) of Schedule I to the Injury Prevention Rehabilitation and Compensation Act 2001 provides that the Corporation is liable to pay or contribute to the cost of the claimant’s treatment, or to the extent required or permitted by the Regulations made under the Act. [15] Clause 4(1) provides that the respondent is not liable to pay the cost of the claimant’s treatment unless the respondent has given its prior agreement to the treatment. [16] Clauses 2(1) and 4(3) provide that in deciding whether to give its prior agreement for treatment, the respondent must take into account whether the treatment: [a] Is necessary and appropriate, and of the quality required to restore the claimant’s health to the maximum extent practicable; and [b] Has been, or will be, performed only to the number of occasions necessary for that purpose; and [c] Has been, or will be, given at a time or place appropriate to restore the claimant’s health to the maximum extent practicable; and [d] Is of a type normally provided by a treatment provider; and [e] Is provided by a treatment provider of a type that is qualified to provide that treatment and who normally provides that treatment. [17] Clause 2(2) provides that in determining the matters in subclauses (a) to (e) above, the Corporation must take into account the nature and severity of the injury; 067-2004 4 and the generally accepted means of treatment of such an injury in New Zealand, and the other options available in New Zealand for the treatment of such an injury. [18] The appropriate Regulations governing the statutory provisions is Regulation 7(3)(iii) of the Accident Insurance (Insurers Liability to Pay Costs of Treatment) Regulations 1999: these are the Regulations which relate to costs for dental treatment. [19] These Regulations provide that if the insured is given an implant the insurer is liable to pay the amount specified in the Schedule for whichever of the following would otherwise have been given: [a] Crown: [b] Bridge: [c] Metal denture. [20] In a Costs of Treatment Schedule to the Regulations, the relevant costs for each of the components in the appellant’s approved treatment plan are specified: examination $31.60, Panorex x-ray $33.50, one tooth plastic partial denture $209.45, each extra tooth $12.45, each clasp $7.65, standard bridge per unit $382.50. [21] Looking at the issue of an implant, the respondent looks to the Costs Schedule to calculate the maximum amount payable for each of the approved components. [22] In this instance in deciding what treatment components it would give, the respondent considered: [a] The dental treatment outlined by Dr Aitken; [b] The independent dental advice that a Maryland bridge was not appropriate treatment; and [c] The consideration specified in Clauses 2(1) and (2) of the Regulations regarding the appropriateness of the component suggested. 067-2004 5 [23] As an implant was to be given, the respondent considered the Cost Schedule to determine the maximum amount it could pay for each component of the approved treatment plan. In respect to the implants, the costs were calculated as being the cost equivalent of a seven unit standard bridge amounting to $2,677.50. Submissions of the Appellant [24] The appellant appeared to me at the hearing not to fully appreciate that the implant costs had been calculated as per the relevant Schedule, as being based on the cost equivalent of a seven unit standard bridge. I explained the situation to her, and advised her that in effect that she had had a figure of $2,677.50 paid towards her implant costs. Decision [25] Clause 1(1)(b) of Schedule I to the 2001 Act is specific in that it empowers the Corporation to pay for the costs of treatment only to the extent that it is permitted by the Regulations. In turn, the Regulations themselves are specific in that the Corporation’s contribution to dental treatment extends only to the amount specified in the Costs Schedule. There have been a line of accident compensation cases, which have reaffirmed the principle that there is no residual discretionary power vested in the respondent to depart from these amounts. [26] Therefore, on the facts of this case, the respondent had no power or authority to make any payment greater than the sum of $3,004.70. [27] Because of the mandatory nature of the Regulations, where an implant has been given the appellant is not entitled to any contributions to her dental treatment above the amount specified in the Regulations. [28] For the foregoing reasons, this appeal is dismissed. There will be no order as to costs. DATED at WELLINGTON this 19th day of March 2004 (J. Cadenhead) District Court Judge 067-2004 6