Pedersen v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NAPIER Decision No. 5 5 /94 ·uNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act 64-93-0377 BETWEEN DION TROY PEDERSEN of Hawkes Bay Appellant (Appeal No. DCA 113/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corpqrate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of July 1994 APPEARANCES Michael Laws·MP (Advocate) for appellant N G M9rrison for respondent DECISION OF JUDGE AW MIDDLETON The sole issue in this appeal is the quantum of contribution to be paid by the respondei:i-t towards the appellant's specialist costs. The appellant, who is aged 20 years, was seriously injured in a motor vehicle accident on 3 August 1982. He suffered injuries to his eyes with the result that he lost one eye and required emergency surgery on the other in the hope of retaining a portion of his sight. The serious nature of his condition required treatment at the Mercy Hospital in Auckland. The appellant had been referred to Mr P Polkinghorne who was recommended as the only specialist who could . perform the type of operation required. When the surgery was completed ') Mr Polkinghorne submitted his account which is dated 1 October 1992, and insofar as it applies to this appeal included: 11 Vitrectomy (SC 407) $1850 Disposables 55000 - repair of detached retina (SC 405) $800 Laser (411) $400 $3,60011 On 1 December 1992 the respondent advised Mr Polkinghorne as follows: 11 I enclose a photocopy of your Cl 1 11 Request for approval of Private Hospital Treatment". The Corporation has contributed toward the cost of your Jee based on the schedule of fees in The Accident Compensation (Specialist Costs) Regulations (No 2) 1990 and according to paragraph 9 of those Regulations as follows: 11 Schd Description Fee ACC- no. charged Cntrib.tns 394 Lens extraction or aspiration $860.65 $ 860.65 411 Detached retina, operation $688.50 $ 344.25 412 Vitr_ectomy $382.50 $ . 191.25 Total Ace contribution $1396.15 On 4 December 1992 Mr Polkinghorne confirmed ·to the respondent th!=lt he acknowledged that the appellant's assessment 6f fees, as contained in the letter of _ 1 December 1992, was correct. Accordingly the respondent advised the appellant on 26 January 1993 that its contribution towards the cost of surgery totalled . . $1,396.15. The appellant applied for a review of that decision. The Review Officer set out the relevant portions of the Regulations in her decision in which she confirmed that the respondent's primary decision that it had no authority to make any payment other than those particularly specified by the Accident Compensation (Specialists Costs) Regulations (No 2) 1990. The appellant has appealed against that decision. Insofar as they apply to this appeal the relevant clauses of those Re 1ations ate: gu 3 Regulation -1(1) states: 11 (1) Subject to these regulations, tlze Corporation shall pay tlze costs of treatment proPided by a registered specialist to any claimant in respect of personal injun; by accident to the extent specified in tlze Schedule to these regulations". Regulation 5(1) states: 11 5. Where the only reason that the Corporation does not pay any costs under these regulations is tlzat the procedure is not specified in Part II of the Schedule to these regulations, the Corporation may nevertheless pay those costs in accordance with the follo·wing mles: (a) T1ze Corporation must be satisfied, before the procedure is performed and having sought the comments of t}ze appropriate professional group for the speciality concerned, that the procedure is necessary and appropriate for the claimant, and is likely to be more effective than any procedure specified in Part II of the Schedule to these.regulati_ons: (b) The Corporation shall pay such amount as it considers appropriate in the particular case, having regard to t}ze maximum amount payable for procedures that are specified. in Part II of the Schedule to these regulati_ ons that are of _ similar complexity: (c) · 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 Part II of the St;:hedule to these regulations: (d) Where payment is made under the authority of this regulation, no payment . shall be made for any roi1;-tine pre-open;tive or post-operative consultation''. Regulation .9(1) states: 11 (1) Where 2 or more separate procedures are performed during one operation, the . Corporation shall pay the full costs that it is required to pay in respect of tlze most expensive of the treatments provided, and 50 percent of the.costs that it would othenuise be required to pay in respect of the other treatment or treatments provided11 • Regulation 11(1) states: 11 (1) . The Corporatio'n - shall not make a · ny payment in respect of any procedure. specified in Part II of the Schedule of these regulations unless - (a) The treatment is provided- (i) In a licensed hospital; or (ii) In the case of items marked in the Schedule with an asterick (*); in tJze registered specialist's roorris; and (b) The prior appro7..'al of the Corporation to tlze perfornzmzce of the procedure lzas been obtained". Mr Laws expressed concern that the serious nature of the appellant's injuries required the operation to take place urgently otherwise the appellant could have lost all his sight. Mr Laws expressed his concern at the inadequacy of the payment as against the actual cost of the surgery. \,Vhile this may be so the Court and the Corporation are governed by the provisions of the Regulations which do not provide any discretion to consider payment for services or supplies which may be essential to the performance of the operation but which are not actually specified by the Regulations. One of Mr Laws concerns was the finding by the Review Officer that the charge made by Mr Polkinghorne of $400.00 for laser treatment was not an item covered by the Regulations. He submitted that this could well come within the discretion provided in Regulation 5(1). He was also concerned that the respondent declined to pay the sum of $800.00 specified by Mr Polkinghorne as "disposables". Mr Laws submitted that this item could also be considered within the context of Regulation 5(1). Mr Morrison submitted that the Regulations prohibit the respondent from pay(ng any amount other than those specifically specified in the Schedule to the -Regulations with the consequence that the respondent will not always be in a position to meet the full costs of surgery. He submitted, and Mr Polkinghorne obviously agreed, that the contributions fixed by the respondent in its letter to him of 1 December 1992 correctly applied the provisions of the Regulations. After the hearing I required Mr Morrison to obtain details from Mr Polkinghorne regarding the actua l nature of the laser for which he had claimed a fee of $400.00 . . _ Mr Morrison had submitted that this was simply a machine and not a procedure for which cover might be obtained under the Regulations. In a letter dated-10 August-1994 in reply to my request Mr Polkinghorne said: "Thank you for your letter of 29 July received on 4 August. I note that Judge Middleton has instructed you to the enquiries as to the nature of the machine and to the purpose for which it was used at Mr Dion Pedersen I s operation. The Judge is quite correct in saying that a laser is a machine and infact is an acronym for light amplification by stimulated omission of radiation. _ The laser used in Mr Pedersen I s operation is what is described as coherent light of two waz.1 e lengths emitted in phase. T1zis productioJl of light allows 7..'en; high energies to be achieved. These energies are transmitted to the eye down a fibre optic light pipe which is less than a millimetre in diameter. This light pipe is plnced inside the eye and directed to the target. In Mr Pedersen1 s case the target was a retinal tear 5 - . · and by actirnhng tlze laser with tlze light pipe inside the eye it is possible to photocoagulate tlze retina. This means that by the judicious control tlze laser directed ant(! tlze retina causes a localized bum and welds tlze retina to the underlying stnicture. I would reiterate my comments in the letter of 4 December 1992 to Mrs Parks that the Ophthalmic Societt; Jzas on numerous occasions made submission to the A CC to ad1..1ise them of the complexihJ and technical nature of ophthalmic problems associated with injun; but to date this has fallen death ears". I have considered Mr Polkinghorne's reply from which it appears to me that the laser machine actually performed the operation of welding II the retina to tlze underlying stmcture". Mr Morrison submitted that the operation of this machine was not a "procedure" but it does seem to me on the basis of Mr Polkinghorne's reply that it constituted a procedure necessary to resolve the appellant's proble_ m. In those circumstances it would therefore seem to me to qualify as a procedure which is not specified in Part II of the Schedule to the Regulations, but is one which was necessary and appropriate for the appellant and the payment for whic;:h should be made by the respondent. · _ I agree with Mr Morrison's submissions that the Regulations are silent in respect of the payment for 11disposables" and they could certainly not be included within the definition of a "procedure". Accordingly the appeal is allowed to the extent that the claim of 5400.00 for the laser treatment is to be allowed and the appeal so far as the cla4n for disposables .is concer·ned is dismissed. DATED at WELLINGTON this 30th day of September 1994 Judge AW Middleton acl 13-93.doc (DC)