Mangino v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 2 2 199 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 GLENICE ROWENA MANGINO DCA 208/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE MJ BEATTIE ON THE PAPERS The parties to this appeal have requested that the Court issue a decision on the papers. The issue in this appeal is whether the Corporation was correct to decline to pay for the costs of the specialist treatment received by the appellant pertaining to an operation on her eye in the absence of prior approval being obtained for such specialist treatment. 2 BACKGROUND On 6 January 1982 the appellant, then aged 30 years, suffered a scratch to her right eye from a cat. As a child she had undergone a right congenital cataract extraction and subsequent to the cat scratch she suffered a history traumatic corneal erosion. The appellant was given cover for the injury to her eye from the cat scratch but it appears that nothing of consequence may have been done to the eye as a result of that scratch at the time the injury was sustained. However on 7 July 1997 the appellant lodged an application for entitlement in relation to various expenses which she had undergone in relation to the enucleation of her right eye by Dr K W Adams, Ophthalmologist. That operation was performed at the Southern Cross Hospital Tauranga on 17 June 1997. Accounts were rendered to the appellant by Dr Adams and also the Southern Cross Hospital and it was these accounts that were referred to the Corporation with a request that it meet payment of same. It was in fact the presenting of these accounts for payment that caused the appellants file to be reopened, it long having been closed and inactive. By decision dated the 11 August 1997 the Corporation advised the appellant that the Specialists Costs Regulations required that prior approval from the Corporation be obtained before any specialists procedures be undertaken and that as no prior approval had been sought the Corporation was unable to meet the costs of payment. The appellant sought a review of that decision and in his decision of 24 March 1998 the Review Officer confirmed the correctness of the Corporation's decision, noting that the regulations do not allow any discretion to be given on the question of whether or not prior approval must be obtained. From the transcript of the hearing before the Review Officer it is clear that the appellant was totally unaware of the requirement that prior approval be obtained before any specialist procedures be carried out if it was intended that the Corporation be responsible for payment of same. It seems as though none of the medical advisers to the appellant, being her GP and the Specialist Surgeon amongst others, advised her of the Corporation's requirement. The transcript does not make it clear what the sequence of events was leading up to the carrying out of the operation, but the documents which have been produced to the Corporation would indicate that the appellant was referred to Dr Adams, Ophthalmologist, by her GP, Dr Barnett and that Dr Adams reported to Dr Barnett by letter of 19 May 1997. Dr Adams advised that, after discussing the problem of her right eye with the appellant, it had been agreed that it would be desirable to have it removed. In his letter to Dr Barnett he states: "I agree that this is the best solution and would be expected to stop the pain and photophobia and the cosmetic benefit should be apparent also. This is to be proceeded with as soon as possible under ACC application." This Court is not aware of what may have transpired between the appellant and her GP, Dr Barnett, or between the appellant and the specialist, Dr Adams, but it is clear that no such application was ever made to the Corporation for approval of the proposed enucleation of her right eye. In written submissions to the Court the appellant's sister, acting as her advocate, is submitting that someone must take responsibility for not informing the appellant of the statutory requirement of obtaining prior approval and it would seem as though she anticipates that this Court would make such a ruling in the context of this appeal. Certainly the Notice of Appeal states that that is what is sought, indeed the relief 4 sought is that this Court direct the person or persons responsible to pay the specialists and hospital costs that have been incurred. DECISION Section 27 of the Accident Rehabilitation and Compensation Insurance Act 1992 provides that the Corporation shall contribute to the costs of any treatment... in respect of personal injury that is covered by the Act - to the extent required or permitted by Regulations made under this Act. The relevant regulations relating to the claim of this appellant are the Accident Compensation (Specialists costs) Regulations No.2, 1990. Under those Regulations the Corporation is empowered to pay the costs of treatment provided by a registered specialist to the extent specified in the Schedules to the Regulations. Under the Regulations the Corporation must of course verify that the proposed treatment is treatment in respect of personal injury for which the claimant has cover and that the particular treatment is necessary. Regulation 11 states: "The Corporation shall not make any payment in respect of any procedures specified in part 2 of the schedule to these regulations unless - (a) The treatment is provided in a licensed hospital (b ) And the prior approval of the Corporation to the performance of the procedure has been obtained." The nature and extent of the rigidity of Regulation 11 was considered by the High Court in the Decision of ARCIC v Walsh 1 BACK 250. In this decision His Honour Justice Salmon was considering an appeal from a District Court Judge's decision 5 where that judge had held that the provisions of Regulation 11 must be read so as to provide for emergencies. In the particular facts of that case the claimant had suffered personal injury when a fish bone became lodged in his throat. His doctor filled out a claim for cover and referred him to a private hospital where the operation was carried out. He was not informed by the doctor, the surgeon, or the hospital that he ought to obtain approval of the Corporation before having the operation. In the circumstances of the case, the Learned District Court Judge said that to avoid absurdity Regulation 11 must be read as if it began with the words "Except in the case of personal injury that is an emergency". When the matter came before His Honour Justice Salmon on appeal, His Honour considered that there was no basis for implying any such words into the provisions of the Regulation. He found that the words were perfectly clear and that there was no room for departure from those clear words that the prior approval of the Corporation was required to be obtained before any such specialist procedures be undertaken. Having so ruled His Honour went on to observe "In my view Mr Walsh has justification for feeling upset at what has occurred in relation to his claim. He could hardly have been expected to know the provisions of the regulations. He was entitled to be guided by his General Practitioner." Those same sentiments could be said to equally apply to this present appellant. The issue for determination in this appeal is whether the Corporation can be required to make payment for the appellant's hospital and medical costs in the circumstances of this claim and the clear and plain answer is that they cannot be so required. Regulation 11 is clear and its clarity and rigidity is reinforced by the High Court decision in Walsh. This Court is not in a position to make any particular observations about where responsibility for this unfortunate state of affairs should rest and it is certainly not the 6 function of this Court, within the confines of this appeal, to come to any determination in that regard. All it does do is to note that the Surgeon, Dr Adams, was aware that ACC approval was required and alludes to it in the letter to the appellant's GP. I propose to leave the matter there. For the foregoing reasons therefore, this appeal must be dismissed. DATED at WELLINGTON this 5th day of February 1999 M J Beattie District Court Judge Mangino.doc(gm)