Winter v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. |12 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN HERBERT FRANZ WINTER of Wellington Appellant (Appeal No. DCA 61/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 26th day of April APPEARANCE/COUNSEL Appellant and his advocate K Francis C B Grover for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to further physiotherapy treatment at the expense of the respondent. The appellant suffered whiplash injuries in a motor vehicle accident on 6 June 1986. The respondent accepted that the appellant had cover under the Accident Compensation Act 1982 as a result of which the respondent has funded a total of 194 physiotherapy treatments. In November 1998 the appellant's general practitioner submitted a request for approval of further physiotherapy treatments which was declined by the respondent on 18 November 1998. 2 The appellant applied for a review of that decision and in his decision the review officer noted that the application had to be declined because the regulations prohibited a contribution to more than 36 treatments. It is against that decision which the appellant now appeals. Ms Francis explained that the only remedy for the appellant's onset of pain is physiotherapy as medication does not assist him. She submitted that in the circumstances it should be possible to make exceptions for patients who do not comply with normal conditions. Mrs Grover submitted that the regulations provided for a maximum of 36 treatments and that there is no discretion which would enable either the respondent or the Court to approve further treatments beyond the maximum prescribed in the regulations. I referred the appellant to the provisions of Regulation 5 of the Accident Compensation (Referred Treatment Costs) Regulations 1990 which make it clear that the respondent cannot make a payment for treatment for more than a total of 36 treatments. A similar issue came before Judge Barber in the recent appeal by Penn (64/99) in which he stated: "I cannot help the appellant because, as indicated above, the Accident Compensation (Referred Treatment Costs) Regulations 1990, only allow a maximum of 36 treatments and the appellant has, to date, received 169 physiotherapy treatments. Neither the respondent nor the Court has any discretion to approve any further physiotherapy treatment under the regulations, even though that is quite unfortunate from the point of view of the appellant." The Court has in a number of appeals expressed the same view. While I am sympathetic to the appellant's position I had to explain to him that I am placed in the same position and that there is no discretion by which the Court can require the respondent to contribute beyond the maximum of 36 treatments. The appeal is therefore dismissed. DATED at WELLINGTON this uth day of May 1999 A W Middleton District Court Judge dea6199.doc(rd)