McLoughlin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NAPIER Decision No. 240 198 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JANE McLOUGHLIN Appellant (Appeal No. DCA 117/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th day of October 1998 APPEARANCES Mr E McLoughlin - father of appellant Ms J Cheyne - counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation is required to pay the full cost of dental treatment carried out on the appellant as a consequence of her personal injury by accident. 2 Background The appellant is now aged 17 years. In April 1991 when aged 91/, years she suffered damage to her front teeth in an accident. At the time of the accident she was examined by her dentist who advised that permanent remedial work should be delayed until the tooth had stopped growing. A plastic crown had been placed on the tooth and it was intended that a permanent porcelain crown be placed on the tooth when she was older. In July 1997 the appellant's dental surgeon Mr David Bennett sought approval from the Corporation to carry out the proposed dental work. His letter to the Corporation stated " I am seeking prior approval to construct a crown for tooth 11. Schedule 1 $ 31.60 3 $ 7.56 43 $405.45 My fee for this treatment is: $650.00. Mr Bennett duly carried out the dental work and Mr McLoughlin received an account for $650.00. This account was referred to the Corporation for payment and the Corporation advised Mr McLoughlin that payment of the amount of $444.70 only towards the cost of treatment had been approved and that the shortfall between that and the actual cost of treatment would be his responsibility. It is that decision which has resulted in the appeal to this Court. Section 27(1) of the Act states: "The Corporation shall contribute to the cost of any treatment in respect of personal injury that is covered by this Act. (a) To the extent required or permitted by regulations made under this Act; or 3 (b) Pursuant to an agreement, contract or arrangement entered into under s. 29(A) of this Act". Treatment provided by a dentist is covered by the Accident Compensation (Dentist Costs) Regulations 1990 and Regulation 4(1) states: "Subject to these regulations the Corporation shall pay the costs of treatment provided by a dentist to any claimant in respect of personal injury by accident to the extent specified in the schedule to these regulations: In the schedule to those Regulations it is provided:- (1) Examination and Assessment $31.60 (3) Periapical or Bitewing Film $ 7.65 (43) Porcelain Incl Veneers $405.45" In submissions to this Court Mr McLaughlin stated that he was not advised that there was a schedule covering the extent of the costs of dental treatment and that the charge that he had been advised by his daughter's dentist was in fact a sum in excess of the amount provided in the schedule. He complained that the Corporation had not informed him of that fact. Mr McLaughlin further contended that the Corporation ought to be required to pay the full cost of essential dental work and he noted that the regulations setting fourth the level of fees had been promulgated in 1990 and had not been reviewed since that date. He further stated that his inquiries had established that no dentist could carry out the particular dental work that was carried out on his daughter for the cost which the schedule provided. In essence Mr McLaughlin submitted that the Corporation's decision was unfair and he contended that it was contrary to the provisions of the Fair Trading Act. Miss Cheyne, counsel for the respondent, submitted that the schedule in the Dentists Costs Regulations sets out the maximum that the Corporation is lawfully allowed to pay and that the 4 Corporation has no discretion under the Act or Regulations to pay any greater sum than that specified under the Act and Regulations. Decision The Accident Rehabilitation and Compensation Insurance Act 1992 and the regulations made under it constitute a code and all matters of entitlement on behalf of a claimant on the one hand and of obligation and liability on behalf of the Corporation on the other can only be those that are specifically provided for in the Statute or Regulations made under it. Furthermore whilst in certain areas discretionary powers are vested in the Corporation, in the great majority of matters involving entitlement and/or responsibility the statutory provisions are quite clear and no discretion is available to depart from the clear statutory provisions. In this present case, s.27 of the Act is quite specific in that it empowers the Corporation to pay for the costs of treatment to the extent only that is permitted under regulations. In turn the Dentist Costs Regulations themselves are specific in that the costs of treatment provided by a dentist only extend to the amount specified in the schedule. Neither in the statutory provision, nor the regulations made under it, is there any residual discretionary power vested in the Corporation to depart from the provisions of the schedule. The appellant seeks that the Corporation pay a sum greater than that which the schedule permits for the dental treatment carried out on his daughter. The simple answer is that the Corporation has no power or authority to make any payment greater than the sum which it has indeed paid of $444.70. The fact that the dental surgeon has charged a greater fee is a matter between the appellant and the dental surgeon and is not a matter which can be considered by the Corporation. This Court is not aware of what information the dentist may have given Mr McLaughlin at the time he discussed the proposed dental work for his daughter but the records make it clear that the dentist was at all times aware of the schedule and of the sums to which he would be entitled to receive under that schedule, such is clear from his letter of request for approval. 5 The Fair Trading Act or any other consumer legislation is not relevant for the issues in this appeal and no statutory provisions are applicable save those of the Accident Rehabilitation and Compensation Insurance Act itself. For the reason that the Corporation is prohibited from making any further payment to the appellant for dental treatment, the decision of the Corporation to decline to do so is upheld and this appeal is dismissed. DATED at WELLINGTON this 19 th day of November 1998 M J Beattie District Court Judge 11798.doc(sh)