Barwood v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 283 /2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN GAYLE BARWOOD (Al 480/07) Appellant AND ACCIDENT COMPENSATION CORPORATI Respondent HEARD at PALMERSTON NORTH on 23 October 2008 APPEARANCES Mr A Rowlett, Advocate for Appellant. Mr S Hack, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 13 September 2007, whereby it declined to make payment of the appellant's GP's costs that would be incurred by the appellant for her GP to participate in the preparation of an Individual Rehabilitation Plan. [2] The issue in this appeal is essentially a question of law requiring consideration of the provisions of Clause 7 of Schedule 1 to the Act. 3] The facts which are relevant to the issue in this appeal may be stated as follows: 480.07 (pg) 2 . . The appellant has cover for an injury to her shoulder and to her coccyx suffered on two separate occasions in October and December 1995 respectively At the time of these injuries the appellant was resident in New Zealand, but at the time of the decision now under appeal the appellant was a resident in the United Kingdom. The respondent had been seeking to facilitate the appellant's rehabilitation and in April 2007 forwarded a draft of an individual Rehabilitation Plan to the appellant, seeking her agreement to it. There was a clause in the draft suggesting that the appellant discuss the Plan with her treating doctor in the United Kingdom. By letter dated 11 June 2007 the respondent's Overseas Case Manager wrote directly to the appellant's UK doctor, Dr Jane Spurgeon, that letter stated as follows: "Accident Compensation legislation in New Zealand states that when a claimant's Individual Rehabilitation Plan is being prepared 'any registered medical practitioner providing treatment must be given an opportunity to participate in the preparation and costing of the plan to the extent that they are willing and able to do so. I have enclosed a copy of the individual Vocational Rehabilitation Plan sent to Ms Barwood which she may wish to discuss with you. Your participation in this is not mandatory but any comments or recommendations you may have, after discussion with Ms Barwood, would be appreciated and will be considered. Ms Barwood is responsible for any funding that may be required for your participation in the development of her Individual Rehabilitation Plan." The appellant did not agree to the IRP as it had been submitted and the respondent therefore issued a decision on 29 August 2007 that the IRP was finalised in accordance with the provisions of Clause 8(2) of Schedule 1. In a letter from the appellant's Advocate the respondent was advised that the appellant did not agree to the Plan as the respondent would not agree to fund the participation of Dr Spurgeon in the preparation of the Plan. It is the case that Dr Spurgeon had requested payment of the sum of eighty pounds for her participation. In a letter dated 13 December 2007 to the appellant's Advocate, Mr Rowlett, the respondent's Overseas Case Manager confirmed that the respondent would not fund the cost of Dr Spurgeon's participation in the preparation of the Plan, as such was outside the statutory provisions pertaining to payment for claimant's who seek advice from their doctors. 3 . The appellant sought a review of that decision and a review hearing took place on 6 November 2007, at which the appellant was represented by Mr Rowlett. After hearing submissions from the parties, the Reviewer, Mis N Ford, ruled that the matter was covered by s. 128 of the Act which prohibits the respondent from paying costs incurred outside New Zealand for any rehabilitation. The respondent's decision declining to pay Dr Spurgeon's costs was therefore confirmed. [4] For the purposes of the appeal both parties accept that the Reviewer was in error in ruling that the issue was covered by s. 128 of the Act, and the appeal has been advanced, and responded to on the basis that it is the provisions of Clause 7 of Schedule 1 which is the applicable statutory provision relating to the decision in issue. 5] Mr Rowlett submitted that the wording in Clause 7(4), by the use of the word including meant that the costs for which the Corporation was liable was not limited to the costs of assessment but allowed for a wider group such as a claimant's medical practitioner who was actively providing treatment for the covered injury. [6] Mr Rowlett submitted that the role of the GP under Clause 7(3) was quite different from that of a representative of the claimant, referred to in Clause 7(1)(c) and that the High Court decision of Ward (CIV 2004-485-223) can be distinguished on that basis. [7] Finally, Mr Rowlett emphasised the fact that this particular IRP was one which arose from the earlier decision of His Honour Judge Ongley, where the Judge had directed that the appellant's GP be consulted regarding the preparation of the Plan, as the Plan which he had been called upon to consider, he had found to be deficient because it had not been one which had had any medical input from the appellant's GP. [8] Mr Hack, for the respondent, submitted that it was not the fact that the appellant's GP was overseas that caused the respondent to make the decision it did, the same decision would be made if the treating general practitioner was in New Zealand. (9] Mr Hack submitted that Clause 7(4) did not give rise to an obligation on the respondent to pay for the GP costs relating to the preparation of the IRP, and he submitted that the same principles applied in relation to those costs as had been found to apply in relation to the costs of representation which the High Court in Ward had found did not allow for the costs of a claimant's representative to be met by the respondent DECISION 10] The issue in this appeal requires a consideration of the provisions of Clause 7 of Schedule 1 to the Act, that clause in its entirety states as follows: 7 Preparation of individual rehabilitation plan (1) The Corporation must provide information to the claimant about- (a) the rehabilitation to which the claimant may be entitled; and (b) the plan development process; and (c) the claimant's right to have a representative involved in the preparation of the plan; and (d) in relation to a plan that will include vocational rehabilitation, the Corporation's right to require the claimant to undergo an assessment of his or her vocational independence at the completion of the vocational rehabilitation, and the potential consequences of such an assessment; and (e) the consequences of the claimant's agreeing to the plan. The Corporation may engage a suitably qualified person or organisation to- (a) assist in the assessment and preparation and costing of a plan; and (b) . provide a link between the claimant and the services identified in the plan. (3) The following persons must be given an opportunity to participate in the preparation and costing of the plan to the extent that they are willing and able to do so: (a) the claimant: (b) any medical practitioner providing treatment to the claimant: (c ) any employer or potential employer of the claimant. (4) The Corporation is liable to meet the costs of preparing the plan, including the costs of any assessment that it has approved as necessary to enable the preparation of a plan. (5) In this clause, services includes the key aspects of social rehabilitation, as defined in section 81. [11] The background to the events surrounding the preparation of the IRP need to be noted. In essence, it follows on from a decision of His Honour Judge Ongley delivered on 19 October 2005 under decision No.307/05, whereby the Judge found that the 5 finalisation of an earlier IRP could not be sustained as the respondent had omitted to indicate to the appellant that she had the right to have her treating medical practitioner involved in the preparation of her IRP. In para [49] of his decision, when talking about the failure of the respondent to advise the appellant of her right to have her GP involved, the Learned Judge stated: "But there was a failure and, on balance, I do not think it could be regarded as merely a technical failure. In her letter of 18 September, Ms Barwood drew attention to her wish to discuss the reports and assessments with her doctor. It was entirely possible that medical consultation could have assisted in identifying an area of treatment or therapy which could have prepared her for work other than photography. The Corporation should have recognised the need to comply with cf 7(3)(b), rather than finalising the plan on 3 October." [12] The outcome of the decision was that the decision to finalise the IRP was set aside, and it is from that decision that the respondent thereupon embarked again upon the process of finalising an IRP and as noted, it wrote both to the appellant and to the appellant's doctor in England advising of the right to be involved in the preparation of that Plan. At the same time as it advised of that right, it also of course advised that any costs associated with Dr Spurgeon's involvement would not be costs met by the respondent. (13] In its letter of explanation to Dr Spurgeon as to why it did not meet the costs in those circumstances, its letter of 19 September 2007 stated, inter alia, as follows: "ACC is able to provide funding, in certain circumstances, if information is required for the purpose of an assessment in relation to discerning entitlement. This was the case when we sought your opinion some time ago for the purpose of a Vocational Independence Assessment. ACC often provides treating doctors with a copy of a draft rehabilitation plan. Whether the doctor contributes to the plan is decided between them and the claimant. ACC does not require participation but does offer the opportunity." [14] Counsel for the respondent has referred to the High Court decision of Ward (supra) where Justice Ellen France was called upon to consider whether the respondent had an obligation to meet the costs of a claimant's representative for attendances in relation to the preparation of the Plan. At para 26 of her decision, the Learned Judge noted the way in which the District Court Judge had approached the matter, noting that the Judge had stated as follows: "In terms of clause 7(2), the Judge says this shows the Corporation may engage a suitably qualified person or organisation to assist in the assessment, preparation and costing of a plan, and provide a link between the claimant and the services 6 identified in the plan. But, the Judge says, the issue of engagement for these purposes is at the Corporation's discretion. The Judge continues: [15] Clause 7(4) provides that the Corporation is liable to meet the costs of preparing the plan, including the costs of any assessment that it has approved as necessary to enable the preparation of a plan. Therefore, if the Corporation has specifically engaged as part of the assessment and preparation process in respect of the plan, the representative of the appellant, then the costs of that exercise would be borne by the Corporation. However, I cannot see that there is any liability to costs if there is no such engagement by the Corporation. If the appellant unilaterally exercises his/her right to representation, then I do not think that gives a right to costs pursuant to Clause 7(4) of this particular Clause.' " [15] Justice France found that the approach taken as set out above was the correct one. At para [53] she stated as follows: "However, I consider the District Court's approach is the correct one. This is one of those situations where, by specifying the costs which are included, the Act is limiting the scope of the first part of the clause. Indeed, the purpose of the clause may be, arguably, to make it clear that the Corporation cannot charge others for the costs of preparing the plan rather than imposing some sort of more general liability on the Corporation." [16] The right to have a representative involved in the preparation of the Plan is set out in Clause 7(1)(c) and is one of the pieces of information that must be provided to a claimant when an IRP is sought to be prepared. [17] I find that Clause 7(1) is to be construed differently from Clause 7(3) as 7(1) is simply requiring the Corporation to provide information to the claimant, whereas 7(3) is quite explicit and refers to persons who must be given the opportunity to participate in the preparation of the Plan. As was noted by Judge Ongley in the earlier Barwood decision, the respondent's failure to give that opportunity resulted in that earlier Plan being set aside. [18] Immediately following on from Clause 7(3) is 7(4) which sets out that the Corporation is liable to meet the costs of preparing the Plan. I find that it follows naturally from 7(3) to 7(4) that where a medical practitioner providing treatment is involved in the preparation of the Plan, to the extent of giving medical advice to the claimant in relation to proposed initiatives referred to in the Plan, then I consider those medical costs to be legitimate costs relating to the preparation of the Plan, and which relate to the very thing which (3) envisages as occurring, namely the claimant's medical practitioner participating in the preparation of the Plan. 7 19] Those sub clauses (3) and (4) talk about preparation of the Plan, with (4) specifically identifying that the Corporation is liable to meet the costs of preparation, and if that preparation involves input from the claimant's medical practitioner, as envisaged in Clause (3), then I find that the intention of (4) is to require the Corporation to meet that medical practitioner's reasonable costs. [20] I find that the input by the treating medical practitioner in the preparation of the Plan is a participating event quite distinct and removed from the engaging of a representative to be involved in giving advice, etc. In those circumstances I find that the reasoning given in Ward, whilst applicable to the situation of a representative as set out in (7)(1)(c), is quite different from the active participation of the claimant's treating medical practitioner in 7(3)(b). [21] For the foregoing reasons, therefore, I find that there is an obligation, pursuant to Clause 7(4) on the respondent to meet the appellant's treating medical practitioner's reasonable costs associated with that person's participation in the preparation of the appellant's IRP. [22] As a consequence of this finding, it must be the case that the requirement that the appellant's treating medical practitioner be involved in the preparation of the Plan, as directed by Judge Ongley, need now to be implemented on the basis that the costs of Dr Spurgeon's participation in the preparation of the Plan be met by the respondent. 23] The appellant being successful, I allow costs in the sum of $1,500 together with qualifying disbursements. DATED this ..26th .2. . ....day of ..November......2008 M J'Beattie District Court Judge