Thomas v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 342 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DAVID THOMAS Appellant (Appeal No. DCA 206/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE M J BEATTIE ON THE PAPERS The Court has received a request from the appellant and from counsel for the respondent that it deliver a decision on the papers. The issue in this appeal is whether the respondent was correct to decline to reimburse the appellant for certain specialist dental costs, namely the costs of anaesthetics amounting to $157.50, incurred by the appellant as part of his treatment for personal injury by accident. The facts which are relevant for the determination of this issue are as follows: 2 In February 1976 the appellant was injured in a motor accident and among the injuries he suffered were the loss of some teeth and a fracture to his jaw. Wires were inserted in the appellant's jaw at the fracture sites. In January 1999 the respondent received a request from Dr Brian Whitley, Oral Surgeon, for approval of costs associated with the removal of the wires from the appellant's jaw. By letter dated 21 January 1999 the respondent approved the cost of the proposed treatment, they being three items referred to in the Accident Compensation (Dental Specialists Costs) Regulations (No. 2) 1990. The letter went on to advise that the respondent would contribute towards the fees of a licensed hospital and anaesthetist under certain conditions and the letter advised that the anaesthetist's fees must be for work performed by a registered specialist anaesthetist. The surgery was duly performed by Dr Whitley but instead of bringing in a specialist anaesthetist Dr Whitley administered his own local anaesthetics, as had been detailed in the request for approval and he charged the appellant $157.50 for that aspect of his treatment. The appellant accepts that Dr Whitley advised him of the fact of this charge and advised the appellant that the more costly and complicated procedure of using a specialist anaesthetist was not warranted. The appellant was aware of the fact that the respondent would not pay for this anaesthetist charge to be rendered by Or Whitley before the operation took place but nevertheless he elected to have the operation on that basis. He said he had no option. The appellant has in fact paid the account but now seeks reimbursement by way of review, and now appeal, from the respondent's decision not to include that part of Dr Whitley's fee in the amount for which it gave approval for payment. In his written submissions to the Court the appellant is naturally perplexed at having to pay for a part of a necessary operation, the cost of same being less than would likely to have been the cost of bringing in a specialist anaesthetist to assist 3 Dr Whitley with the operation and where the appellant advises that Dr Whitley had indicated that such an anaesthetist and associated costs were not necessary for this particular operation. Mr Thomas said that he could not understand why the costs of Dr Whitley administering the anaesthetic cannot be met yet the respondent would be able to pay the costs of a specialist anaesthetist to do the same job, possibly at a much greater cost. Mr Richards, counsel for the respondent, submitted that this case was a situation where the relevant regulations only permitted certain payments and that the respondent had no power to make any payment that was not authorised by regulations enacted for the purpose. Counsel submitted that Regulation 4 of the Dental Specialists Costs Regulations only permit payment for matters specified in the schedule to those regulations and that the administration of anaesthetic by a dental specialist was not a procedure specified in the schedule to the Dental Specialists Costs Regulations. Counsel further submitted that the corresponding Anaesthetists Costs Regulations could not prevail to enable payment as Dr Whitley was not a registered specialist anaesthetist and it was only to that class of person that those regulations applied. Decision The entitlement of the appellant as a person who has suffered personal injury by accident, to have the costs of treatment met are set out in s.27 of the Act, which states: "The Corporation shall contribute to the costs of any treatment --- in respect of personal injury that is covered by this Act - to the extent required or permitted by regulations made under this Act." There is nothing in the remainder of the provisions of s.27 that derogate from that basic tenet. 4 Thus it is that the respondent's authority and power to pay for treatment to an injured person is to be contained in the various regulations made for the purpose. Included in the various sets of regulations pertaining to treatment are the Dental Specialists Costs Regulations and the Anaesthetists Costs Regulations. Regulation 4 of the Dental Specialists Costs Regulations empowers the respondent to pay the costs of treatment provided by registered specialists to the extent specified in the schedule to these regulations. Dr Whitley was certainly aware of these regulations as his request for approval for his proposed treatment identified by number the various categories of treatment that he proposed to carry out, they being the numbers in the schedule. Furthermore, Dr Whitley was aware that the costs of providing anaesthetic for the proposed treatment was not covered and would be a cost to the appellant and the appellant was told so and further the respondent advised the appellant of that when he sought to have the matter reconsidered by the Customer Service Officer who had dealt with the application in the first instance. I concur with counsel for the respondent's submission that Dr Whitley cannot bring himself within the provisions of the Anaesthetists Costs Regulations, and that being the case, there is no statutory or regulatory power by which the respondent can make payment of the costs of anaesthetic which the appellant claims. Regulation 5 of the Dental Specialists Costs Regulations does grant a certain discretionary power to the respondent to authorise payment for a procedure not specified in the schedule in certain circumstances, but there is a specific prohibition that where any payment is made under the authority of this regulation, no payment in respect of any procedure carried out at the same operation shall be paid under the schedule to these regulations. In this case of course, the provision of anaesthetic was carried out at the same time as the operation paid for under the schedule and the regulation does not permit 5 payment for both, a procedure which is authorised under the schedule and one which is not if they are conducted at the same time. The Court has considerable sympathy with the appellant and his questioning of the logic of the situation in which he finds himself, namely agreeing and accepting a less costly procedure rather than requiring the respondent to pay for a specialist anaesthetist. Such is the situation that can arise when there is a regulatory regime which is all embracing and empowering and where the general position is that if it is not stated in a regulation then it cannot be allowed. The respondent, in the administering of the accident compensation scheme, does so pursuant to the powers invested in it under the Act and Regulations, it has no general powers outside those provided for in the Act or Regulations and the plain fact of the matter is that were it to agree to reimburse the appellant for this modest sum of $157.50 it would be acting ultra vires, that is outside its power and with no authority. That is something it cannot do and certainly this Court cannot by any decision authorise it to so do. The final analysis therefore is that despite its seeming to be both unfair on the appellant and being a state of affairs which identified a less than cost effective procedure as being the only procedure that could be paid for, the appellant is not entitled to be reimbursed for the costs of anaesthetics which he incurred from Dr Whitley as there is no statutory authority for him to be so. For the foregoing reasons therefore this appeal is dismissed. DATED at WELLINGTON this 230 day of November 1999 M J Beattie District Court Judge DCA206-99.doc(j9)