Cortesi v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. 237 /97 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 FREDERICK ANTONIO CORTESI DCA 64/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 30th day of October 1997 APPEARANCES: Mr F A Cortesi in person Mr P McBride for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to decline to reimburse the appellant for the costs of his travel from his home at Dargaville to the Artificial Limb Centre in Mt Eden, Auckland for the purposes of repairs to his artificial right leg was correct. 2 Background Facts The appellant suffered personal injury by accident in January 1979. He suffered injury to his left knee. This injury led to a total knee replacement in 1982 and an above knee amputation in 1988. The appellant is now aged 64. Since the amputation of his leg he has been provided with a prosthesis from the Artificial Limb Centre in Mt Eden, Auckland and from time to time that limb has required adjustment or replacement and the appellant has been obliged to travel from his home in Dargaville to Auckland for that purpose. In addition to the occasions when he has been required to travel to the Artificial Limb Centre for the purposes of fitting, adjustment or treatment connected with his artificial limb there have been occasions when the limb has been required to be repaired as a consequence of damage by the appellant falling or because of some other mishap. In early 1996 the Corporation advised the appellant it would not be responsible for paying his travelling expenses to and from the Artificial Limb Centre when the same was only to take his limb for repairs as opposed to fitting or other treatment associated with his limb. The Corporation advised that the limb could be delivered by courier, for which it would be responsible for payment. In February 1996 and April 1996 the appellant made trips from Dargaville to the Limb Centre, specifically on the 5th and 13th of February and the 9th and 16th of April. He claimed approximately $220 for travelling expenses in connection with each of those trips and it is those trips which caused the Corporation to specifically address the question of what travelling expenses it was authorised to pay and those which it was not and it is its decision not to reimburse the 3 appellant for those trips because they were simply for repairs to his limb and not for treatment. A review hearing in relation to the Corporation's decision took place on the 15th of August 1996 but the tape which recorded the evidence and submissions at that hearing have somehow been lost and there is no transcript whatsoever of the review hearing. The Review Officer's decision records submissions that were made by the appellant's advocate Miss Martin and I find that nothing turns on the fact that a record of the hearing was not available for the Review Officer. For the purposes of this appeal I similarly find that the extremely voluminous file on this appellant's dealings with the Corporation over the years includes all relevant data on the issue raised in this appeal and I do not find this Court under any disadvantage in not having any evidence that may have been given at that review hearing. The file speaks for itself. Relevant Regulatory Provisions Regulation 6 of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service or Physical Rehabilitation) Regulations 1992 states: "Subject to these regulations where a claimant required transport for treatment for personal injury that is not emergency transport by air or emergency transport by ambulance, the Corporation shall contribute the costs incurred by the claimant- (b) Where there is no scheduled public transport, an amount calculated at the rate of 50c per kilometre." Treatment is defined in regulation 2 as being: 4 "Any treatment, service, or physical rehabilitation for which the Corporation is required to make a contribution towards the cost." Regulation 6(7) states: "Where the claimant does not present for the treatment to which the transport relates, no amount shall be payable under this regulation unless the journey is undertaken and the failure to present for treatment was beyond the control of the claimant." Regulation 4 of the Accident Compensation (Prescribed Artificial Limbs, Aids, and Prosthetic Appliances Costs) Regulations 1990 states: "Subject to these regulations the Corporation shall pay the costs payable by any claimant for any item (and its normal repair or renewal) less any subsidy payable by a Regional Health Authority in respect of that item, where the item is prescribed by a registered specialist for the claimant as a result of personal injury." It was the appellant's submission to this Court that he was required to make the trips to deliver the artificial limb for repair because the service provided by a courier was unsatisfactory and the time that he would be without his limb would be greater than if he delivered and collected it. In statements to this Court the appellant stated that he would be obliged to be without his limb for a week or more unless he delivered it personally where he could collect it on the same day or the next day after delivery. However the evidence on the file discloses that this was not in fact the case on the occasions which are the focus of this appeal. The appellant acknowledged that on the two occasions in February and April that the limb was delivered to the Limb Centre a period of 7 and 8 days elapsed before it was available to be collected. 5 The file also discloses that the occasions that are in question were for repairs only and that no treatment or fitting was required. The Limb Centre have confirmed to the Corporation that there was no necessity for personal attendance on occasions when all that is required is the repair of a breakage. The Limb Centre also advises that on average amputees from this branch make one trip to the Limb Centre per year whereas the appellant had made 15 such trips over a 15 month period. Counsel for the respondent submitted that the regulations do not permit payment to the appellant in the circumstances established in the evidence. The Act only permits payment to be made when such payments are so authorised by the Act or regulations made under it in that in so far as the Transport Related to Treatment regulations were concerned payment could not be made under those regulations as the transport was not for the treatment of the appellant but rather for repairs to his artificial limb. Similarly under regulation 4 of the Artificial Limbs Regulations the Authority is to pay for the cost of repair but such cost of repair does not extend to the cost of travelling to the place of repair. Decision The evidence on the file discloses that the trips for which reimbursement is sought were made by the appellant solely for delivery of his prosthesis to the Artificial Limb Centre for repairs. He made a journey from Dargaville to Auckland and return to deliver the prosthesis and then another journey 7 or 8 days later from Dargaville to Auckland and return when he collected his repaired prosthesis. The file also discloses that the respondent may not have been monitoring the various claims of the appellant made leading up to these which are now in question but the pattern which is disclosed is one which is certainly excessive by comparison to other amputees. 6 The appellant has not provided any evidence which would suggest that the trips were necessary for treatment and has not sought to contradict the claim of the respondent, supported as it is by statements from the Limb Centre itself. In the circumstances therefore I find it a fact that the trips in question were not made by the appellant for the purposes of treatment within the meaning of regulation 6 of the Costs of Transport Related to Treatment, Service or Physical Rehabilitation Regulations 1992 and as such those regulations do not authorise the delivery costs which the appellant now claims. Furthermore I find that the provisions of the prescribed Artificial Limbs Aids and Prosthetic Appliances Costs Regulations 1990 do not make any provision for the payment of cost of travel of the claimant in relation to repairs of prothesis, but I find that the cost of a courier would come within the recognised costs payable for the repair of an item and as such would be authorised under regulation 4 of those regulations. For the foregoing reasons I find that neither the Act nor any regulations made under it make provision for the particular type of travel costs for which the appellant is claiming reimbursement and the Corporation's decision that it had no authority to pay same is upheld. Accordingly this appeal is dismissed. DATED at WELLINGTON this - day of November, 1997 M J Beattie District Court Judge Cortesi.doc KD