Pye-Redfearn v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 170/98 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 HAYDEN PYE-REDFEARN DCA 4/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of July 1998 APPEARANCES: Ms T A Nelson for appellant Mr A D Barnett for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation was correct to decline to pay certain dental costs incurred by the appellant with his dentist Dr Keith Nelson. N The appellant is now aged 11 years and suffered certain dental injuries in a fall in March 1992 when aged 4 years. The parents of the appellant consulted Dr Keith Nelson, a Dental Surgeon carrying on practise in Auckland. It is common ground that Dr Nelson holds a current annual practising certificate issued by the Dental Council of New Zealand but that he is not a "registered specialist", being a person registered as such under the Dental Act 1988. In July 1994 Dr Nelson, acting on behalf of the appellant, made application on the prescribed form for approval of certain orthodontic work described as orthodontic movement of 11 and 21. The work was said to be required because two teeth, 11 and 21, were severely displaced and rotated. The various treatments proposed were set out and the costs thereof were stated and the amount of those costs was $1,740.80. By letter dated 1 August 1994 the Corporation advised the parents of the appellant in the following terms: "We have received information about the proposed dental treatment following the injury which occurred on 27 March 1992. The dentist has proposed a treatment by way of orthodontic work. It is estimated that treatment will cost approximately $1,740.80. The maximum amount which we may pay towards this treatment is fixed by regulation and is $1,740.80. Any shortfall between the amount which we may pay in the cost of the treatment will be your responsibility. We shall make our payment once the treatment has been completed and the accounts have been received." Following that approval to carry out the treatment, Dr Nelson did over the next three years proceed to carry out that work and as envisaged by the Corporation rendered an account for same in or about August 1997. On receipt of that account the Corporation realised that the orthodontic work had been carried out by Dr Nelson personally and that he was not a registered dental specialist and that therefore under the Dental Specialists Costs Regulations he was not a person to whom the Corporation could pay for such treatment costs. The Corporation did by a letter of 12 September advised the appellant's parents of that fact and further advised that pursuant to section 67(A) of the Act it was revoking the decision contained in its letter of 1 August 1994 approving that dental work. That the decision so made was reviewed and the decision of the Review Officer was that the only authority the Corporation has for meeting costs of specialist care is that which is provided by the Dental Specialists Cost Regulations and those regulations only allow the payment of costs of treatment provided by a registered specialist and that Dr Nelson does not come within the definition of "registered specialist". Accordingly, the Corporation's primary decision was upheld. Counsel for the appellant submitted in this Court that Dr Nelson is considered a leading specialist in the area of functional orthodontics and has been performing his treatment for over 20 years. It is said that he has studied widely in this field and receives referral work from all over New Zealand. She further submitted that not all orthodontic work needs to be performed by a specialist and that the type of work carried out on the appellant by Dr Nelson was not a form of orthodontic work which required the particular skill of a registered Orthodontist. Counsel for the appellant further submitted that the Accident Compensation (Dentists Costs) Regulations (2) 1990 could apply and that regulation 3 thereof refers to any treatment provided by a dentist and that as Reg.6 of those Regs. has been repealed, which was a limiting provision on the scope of Reg.3, there is now no such limitation and the Corporation has wide power to approve any treatment. Counsel finally submitted that the evidence is clear that the approval for the orthodontic work was sought before it was undertaken, and that approval was given and the work was carried out in reliance on that approval. Counsel for the respondent submitted that the provisions of the Dental Specialists Costs Regulations are specific and Dr Nelson cannot bring himself within those regulations by reason of him not being a "registered specialist". Counsel for the respondent further submitted that this Court in this jurisdiction cannot consider any other legal ramifications which may arise as a consequence of the Corporation giving approval for the work to be done, in particular the law of contract, and that any other remedy which the appellant may possibly be entitled to would need to be pursued in the ordinary civil jurisdiction of this Court. DECISION It has been held before but it deserves mention again that the Accident Rehabilitation and Compensation Insurance Act 1992 is a code which covers all rights and entitlements for persons who suffer personal injury by 5 accident. The extent of a claimant's entitlements and of the Corporation's ability to meet those entitlements are clearly defined and can be said to be only those for which there is clear statutory provision. Section 27 of the Act provides: "The Corporation shall contribute to the cost of any treatment, service, physical rehabilitation, related transport, or certificate in respect of personal injury that is covered by this Act - to the extent required or permitted by regulations made under this Act." The provisions of section 27 thereby clearly state that the Corporation's powers are confined to those matters which are specifically set out in regulations made for the purpose. The two sets of regulations which may apply in this case are the Dental Specialists Costs Regulations and the Dentists Costs Regulations respectively. Regulation 4 of the Dental Specialists Costs Regulations provides that the Corporation shall pay the costs of treatment provided by a Registered Specialist to any claimant in respect of personal injury to the extent specified in the schedule to these regulations. It is common ground that Dr Nelson is not a registered specialist within the meaning of those words in that regulation. There are no provisions in those regulations which modify or ameliorate that condition precedent. Insofar as the Dentists Costs Regulations are concerned, regulation 4 also provides that the Corporation shall pay the costs of treatment provided by a 6 dentist... to the extent specified in the schedule to these regulations. No where in the schedule to the Dentist Costs regulations is there specified the type of work for which the appellant had sought approval in this case. The schedule contains what might be described as conventional dental work normally carried out by general practitioner dentists. In contrast to that, the Dental Specialists Costs schedule contains what might be described as more complex, and certainly more costly treatment. In the application made by Dr Nelson for approval of the orthodontic work, the description of the treatment proposed referred to various items in the schedule to Dental Specialists Costs Regulations and it had the cost of those various treatments as those costs were specified in the schedule. Thus, there can be no misunderstanding that Dr Nelson was referring to and seeking approval under the Dental Specialists Costs Regulation when he submitted his request for approval. This Court has been made aware that Dr Nelson has had over 20 years experience in functional orthodontic work and no doubt has had longer experience as a dentist and has certainly been in practise as a dentist throughout the whole life of the accident compensation regime. This Court is therefore somewhat surprised that it should now be contended on his behalf that he could somehow qualify under the Dental Specialists Costs Regulations when he ought to be taken to know that he did not so qualify. There is nothing in the Dentists Costs regulations which would allow the Corporation to give approval to the treatment carried out. I find that simply because the nature of the treatment is described as functional orthodontics which can be carried out by persons who are not necessarily registered specialist orthodontist, it does not in any way make that work somehow able to be approved under either set of regulations. On the one hand it is the 7 person carrying out the treatment who is not so approved and in the other it is the nature of the treatment carried out which cannot be so approved. It could be said that in this case Dr Nelson has fallen between two stools. Having said that, when looking at it purely within the confines of considerations under the provisions of the Accident Compensation regime I find that the decision which this Court has to come to is indeed regrettable. The Court has learnt that the operation on young Hayden was successful and one would think that in those circumstances the health professional is entitled to be reimbursed. While the Corporation was entitled to change its decision pursuant to section 67A it cannot necessarily do so with impunity under the ordinary civil law. I would imagine that this Court exercising its ordinary civil jurisdiction might well come to a different decision than this Court is required to do in its jurisdiction as the Appellate Authority under the provisions of the ARCI Act. For the foregoing reasons, there is no entitlement for the appellant to have the dental work carried out by Dr Nelson paid for by the Corporation under the provisions of the Act. This appeal is therefore is dismissed. DATED at WELLINGTON this O' day of July 1998. MJ Beattie District Court Judge RedFearn.doc(gm)