Penman v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 56/ 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 59/93/ 0087 IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN HELEN PENMAN of Taree, Australia Appellant (Appeal No. DCA 156/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS Both parties have requested that I issue a decision on the papers. I have received submissions from the appellant and from Mr A D Fawcett, for the respondent. The issue is whether the respondent is required to pay treatment costs for medical expenses incurred by the appellant outside New Zealand. The appellant who resides in New South Wales, Australia suffered personal injury by accident on 18 January 1991 while on holiday in New Zealand when she twisted her foot causing her to fall and land on her face on the concrete. She underwent treatment in Waikato Hospital and her claim for cover was lodged with the respondent on 23 January 1991 and was accepted as personal injury by accident within the terms of the Accident Compensation Act 1982. The appellant then returned to Australia and the respondent met the costs of further treatment and travel costs incurred overseas in accordance with section 75(8) of the Accident Compensation (Overseas Treatment Costs) Regulations 1989 2 In January 1992 the appellant notified the respondent that a large perforation had been discovered in her eardrum and her specialist had indicated that the damage to her eardrum was probably caused by the accident. At that time because there was discharge from the middle ear, a repair operation could not be undertaken. On 4 January 1993 the appellant requested details of the procedure which she should follow if she needed an operation to repair the eardrum and whether this could be undertaken in a private hospital. On 5 May 1993 the respondent advised the appellant that she did not then meet the necessary criteria to entitle her to obtain the payment for overseas treatment costs. The appellant applied for a review of that decision which was heard on the papers and a decision issued on 8 September 1993. The review officer decided that the decision of the respondent was correct and that he could not allow the review application. It is against that decision which the appellant now appeals. The appellant has submitted that as the accident happened a considerable time before 1 July 1992 and as she had notified the respondent some six months prior to 1 July 1992 that she may require an operation she should now be entitled to receive payment for the costs involved. The respondent submits that while the 1989 Overseas Treatment Costs Regulations permitted the respondent to meet costs incurred overseas in certain circumstances, the passing of the Accident Rehabilitation and Compensation Insurance Act 1992 which took effect from 1 July 1992 made a considerable alteration to the question of entitlement. The 1992 Act included transitional provisions to cover the situation of claimants who had had claims accepted under the 1982 Act. So far as it applies to this appeal, section 135(1) states: "135. Relationship of this Act and former Acts---(1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 of the Accident Compensation Act 1982 suffered before the Ist day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act." It is clear from this provision that this appellant must therefore have any subsequent matters dealt with on the basis that she "shall be deemed to have suffered personal injury (sic) those covered by this Act". Accordingly, reference must then be made to section 88(2) which provides: "(2) No payment shall be made under this Act in respect of any treatment, service, rehabilitation or related transport costs incurred outside New Zealand unless required or permitted by regulations made under this Act." The only provision made in respect of a cost incurred by overseas visitors is included in the Accident Rehabilitation (Overseas Visitors Costs and Costs of Certificates) Regulations 1993. Those regulations provide that the respondent shall pay the cost of treatment provided by a licensed hospital or by a treatment provider acting under a contract of service in a licensed hospital to any claimant who is not ordinarily 3 resident in New Zealand and who is liable to meet the cost of the treatment. So far as these regulations are concerned a "hospital" means a licensed hospital within the definition of the Hospitals Act 1957. Mr Fawcett has submitted that the respondent therefore cannot pay costs in respect of any treatment incurred outside New Zealand after 1 July 1992 unless that treatment is required or permitted by regulations made under the 1992 Act. He has submitted that as the appellant's treatment did not fall within the provisions of these specific regulations the respondent is unable to meet the payment. I agree with Mr Fawcett's submissions. It is clear from the wording of the regulations made in respect of the 1992 Act that in order to qualify for the payment of specialist costs the regulations envisage treatment by a specialist registered in New Zealand. Accordingly, I can see no reason why I should interfere with the decision of the review officer and the appeal is dismissed. DATED at WELLINGTON this 6 th day of August 1996 queimadubai A W Middleton District Court Judge dc156-93.doc (nr)