Ashley v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 4 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 54/94 / 2075 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN GEOFFREY THOMAS ASHLEY of Whakatane Appellant (Appeal No. DCA 115/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON THE PAPERS The issue in this appeal is whether the respondent is required to pay on a per kilometre basis the return journey made by the appellant's wife as an escort for the appellant in relation to his travel from his home in Whakatane for surgery in Tauranga. The appellant suffered an inguinal hernia on 9 November 1992 which was accepted as personal injury by accident by the respondent. The respondent approved private hospital surgery which took place on 29 January 1994 and required the appellant to stay overnight in the hospital. His wife drove him from Whakatane to Tauranga on 28 January 1994 and then returned to her home in 2 Whakatane and the next day returned to Tauranga to uplift the appellant from the hospital and returned him to Whakatane. The respondent has paid the appellant for the cost of a return journey between Whakatane and Tauranga. He then sought payment in respect of his wife's return trip from Tauranga to Whakatane and return to Tauranga to uplift the appellant. The respondent declined that application. The appeal falls to be decided under regulations 6 and 7 of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, or Physical Rehabilitation) Regulations 1992. Regulations 6, 7 and 8 provide: "6. Other transport - (1) Subject to these regulations, where a claimant requires transport for treatment for personal injury that is not emergency transport by air or emergency transport by ambulance, the Corporation or exempt employer shall contribute to the costs incurred by the claimant - a) An amount equivalent to the lowest fare payable for the journey on whichever is the cheapest of any available scheduled public transport; or Where there is no scheduled public transport, an amount calculated at the rate of 50 cents per kilometre - irrespective of the means of transport actually adopted by the claimant. (2) Notwithstanding subclause (1)(a) of this regulation, if the cheapest scheduled public transport is not appropriate because of the condition of the claimant resulting from personal injury and is not used, the Corporation or exempt employer shall contribute to the costs incurred at the rate specified in subclause (1)(b) of this regulation if that contribution would be greater than that payable under subclause (1) (a) of this regulation. (3) The Corporation shall not (on an exempt employer may decline to) make any payment under this regulation unless - (a) The journey is of at least 20 kilometres from the commencement point to the nearest place where the treatment is able to be provided and the journey takes place within 14 days after the personal injury was suffered; or (b ) The claimant becomes entitled under subclause (1) of this regulation to payments in excess of $40 in respect of transport that occurred during the calendar month in which the transport for which payment is sought occurred. (4) The Corporation or exempt employer shall not be liable to make any payment under this regulation for a journey longer than the journey from the place of commencement to the nearest place where the treatment is able to be provided (whether or not it is provided to the claimant at that place). (5) The Corporation or exempt employer shall be liable for an actual return journey to the place of commencement on the same basis and to the same extent (if any) as it is liable for the journey from the place of commencement. (6) Payments under this regulation shall be made only to the claimant. 7) Where the claimant does not present for the treatment to which the transport relates, no amount shall be payable under this regulation unless the 3 journey is undertaken and the failure to present for treatment was beyond the control of the claimant." '7. Escorting of claimant - Regulation 6 of these regulations (except subclause (1)(b)) shall apply in respect of any person who is required to travel with the claimant by reason of - (a) The claimant being a child under the age of 15 years; or The medical condition of the claimant requiring that the claimant be accompanied; or (c) The person or organisation providing any scheduled public transport being used requiring that the claimant be accompanied by another person. (2 ) No payment shall be made under this regulation in respect of more than one person on any one journey." "8. Accommodation related to transport - Where, by reason of the transport services available to the claimant or any person who is required to travel with the claimant for any of the reasons specified in regulation 7(1) of these regulations, it is necessary for the claimant or other person to remain away from his or her place of residence, at any place other than premises where the treatment is provided, the Corporation or exempt employer shall contribute the amount of $50 per night towards the costs of accommodation, irrespective of the number of persons requiring accommodation." When the appellant was notified that his application was declined, he applied for a review of that decision and while the Review Officer appears to have been sympathetic to the appellant's claim during the course of taking evidence, he decided that the respondent had correctly applied the regulations and declined the application. The appellant has submitted that the two trips from Whakatane to Tauranga were necessary to enable his wife to return home and then to return to the hospital in order to take him home. I have received submissions from Ms Dall on behalf of the respondent in which she has stated that there have been no previous decisions specifically on the point in issue, but that in a related matter Judge Kerr had to consider regulation 6 in Gardner v ACC (49/94) and in that decision, in relation to the effect of regulation 6, he said: " The Corporation shall not be liable to make any payment for a journey longer than the journey from the place of commencement to the nearest place where the treatment is able to be provided." I accept Ms Dall's submission that regulation 6 provides for payment to be made for cost incurred "by the claimant" and in this case the appellant has been paid for the cost of his return journey to the hospital. Regulation 6 clearly envisages payment to a claimant such as this appellant in respect of the cost incurred by him in going to and from his home to the place of treatment. Ms Dall submitted that regulation 7 contemplates payment to a person who is required to accompany a claimant who needs assistance because of his or her medical condition. While it does not say so, it appears to me that regulation 7 contemplates payment in the case where the escort may be required to travel by public transport in order to assist a claimant to travel for the purpose of obtaining treatment. It specifically excludes subclause (1)(b) of regulation 6 which provides for a payment on the basis of per kilometre rate of travel. The appellant in this case is claiming a per kilometre rate of travel for his wife's return journey, albeit with his vehicle. I accept Ms Dall's submission that the appellant cannot obtain reimbursement for his wife as an escort under regulation 7, particularly having regard to the fact that the provisions of regulation 6(1)(b) are expressly excluded in respect of an escort's claim under regulation 7 and that is the claim the appellant now makes. I was concerned that the result of this decision appears to be unfair in that had the appellant's wife chosen to stay in Tauranga then the appellant could have made a claim under regulation 8 toward the cost of his wife's accommodation. She chose the alternative of returning home. This may well be a case in which the respondent can see its way clear to make some recompense for what appeared to the appellant and his wife to be necessary travel incurred in obtaining treatment for the appellant. The appeal is dismissed. DATED at WELLINGTON this 12 - day of July 1995 A W Middleton District Court Judge dc115-94.doc(mh)