Hei v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WHANGAREI Decision No. 14 2 /95. UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 49 / 95 / 0112. BETWEEN HILDA MARY HEI of Dargaville Appellant (Appeal No. DCA 54/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 28th day of November 1995 APPEARANCES Appellant in person G S Hancock DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the decision of the respondent declining payment of transport costs incurred by the appellant in attending for chiropractic treatment. The appellant resides in Dargaville and was referred by her General Practitioner, Dr Cook, to Dr Mudgway, a Chiropractor, practising in Whangarei. The referral was made on 1 August 1994 and when the appellant lodged a claim for travel expenses it was declined by the respondent under Regulation 6(4) of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Services, or Physical Rehabilitation) Regulations 1992 which states: "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 piace of 2 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)" The respondent made that decision on the basis that there was a Chiropractor in Dargaville who could have provided the treatment. On 10 October 1994 Dr Cook had provided the respondent with an explanation for his referral which was: 'I see this is a matter of some importance for medical practitioners in general as your decision will have an effect on our freedom to refer to practitioners of our choice. 1. Please could you clarify for me the basis of your decision and whether you have in effect declined to pay for her travelling to Dr Mudgeway (sic) in Whangarei. 2. Points I consider are of relevance here, firstly the length of time from her original referral on the Ist August to the date you informed her, seems unreasonably long. 3. You have already accepted an approved payment of further 12 chiropractor treatments up until the 13th November. 4. Although our local chiropractor had recently returned to Dargaville from overseas, it was not generally known in the area, despite his advertising that he was back in full time practice. Lastly, I felt that Mr Mudgeway (sic) would be the most appropriate for her problem. Please could you let me know as a matter of urgency your thoughts on the above, as I feel any further reduction in the access our patients have to both specialists and treatment providers is a matter of national importance to G.P.'s. Kind regards." A subsequent letter from Dr Cook to the respondent on 17 November 1994 states: "Thank you for your letter of the 8th November which has certianly (sic) been helpful in clarifying the position. The chiropractor's (sic) in Northland in a general sense have a wide variety of skills and personal characteristics which I feel can be compared directly with the similar range for medical specialists. I have always found that Dr Mudgeway (sic) deals effectively with my patients from all backgrounds and relates well to clients such as Hilda. In addition he has particular skills in manipulating people of Hilda's weight and restoring 3 their loss of normal functional mobility. He uses techniques of applied kinesiology that with her weak psoas and loss of appropriate neuroproprioseption, I felt would offer her the best chance of a speedy recovery. Indeed in his letter of August 23rd to me he expected a total remission of her symptoms in three to four weeks. As far as I am aware, this is a particular skill which is not available through all treatment providers. I hope this clarifies why I felt Dr Mudgeway (sic) was most appropriate for Hilda. Kind regards." The appellant applied for a review of the respondent's decision which was upheld by the review officer on the basis that a Chiropractor had recommenced practice in Dargaville on 3 July 1994 and the appellant could have obtained the treatment from him. Ms Hancock referred me to the relevant regulations and to various decisions of the Court which have upheld the strict application of the regulations which do not permit the exercise of any discretion on the part of the respondent. The appellant was concerned that she had been referred to Dr Mudgway by her doctor and she assumed that she would receive travelling expenses because the chiropractic service was being covered by the respondent. She also produced for me a certificate from another claimant whose travelling costs to Dr Mudgway from Dargaville for treatment were paid by the respondent in February 1995. While it may appear to her to be inconsistent that that claimant's expenses were paid by the respondent, that fact cannot be used as a ground for allowing her claim. The manner in which the referral came to be made is significant. Dr Cook referred the appellant to Dr Mudgway on 1 August 1994 and at that time he said that he was unaware that the Chiropractor in Dargaville had recommenced practice some three weeks previously. In addition, Dr Cook has stated that it was necessary to refer the appellant to Dr Mudgway because his particular technique was that required to deal with the appellant's problems and that that skill was not available from other treatment procedures. There is no evidence on the file to contradict this latter statement so that it would appear to me that the words "the nearest place where the treatment is able to be provided" must mean Dr Mudgway in Whangarei rather than a Chiropractor in Dargaville who cannot provide "the treatment". 4 The appeal is allowed and the appellant is to be paid the full cost of travel expenses in accordance with her claim. In addition, she is to be paid travel expenses at the same rate for her attendance at the appeal hearing. DATED at WELLINGTON this 19th day of December 1995 premiadula A W Middleton District Court Judge dc54-95.doc(rd)