Wallace v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 101 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JANICE MARIE WALLACE of Wanganui Appellant (Appeal No. DCA 244/96) 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 I have received submissions from Mr A R V Rowlett, advocate for the appellant and from Ms P J Zumbach, counsel for the respondent with the request that I issue a decision on the papers. The issue is the respondent's decision of 25 March 1996 in which it decided that it could not accept the appellant's submission that she was entitled to a favourable decision pursuant to section 90(9) of the Accident Rehabilitation and Compensation Insurance Act 1992. The facts which give rise to the appeal are that the appellant suffered an injury to her right knee in 1976 which had been accepted as personal injury by accident by the respondent. The appellant was required to travel from her home to Wellington for surgery on 18 August 1995. The respondent approved the costs of travel for taking the appellant to hospital and the return journey taking her home following the completion of surgery on 21 August 1995. As the appellant's husband had driven her to Wellington and returned home the same day and then returned to Wellington to uplift her after completion of the surgery, the appellant claimed the cost incurred in her husband's travel. The respondent declined to meet that cost. The appellant 2 applied for a review of that decision and when the application for review had not been commenced within three months from the date of that application, the appellant applied for a decision in her favour pursuant to section 90(9). The respondent then notified the appellant on 25 March 1996 that it could not accept the request for favourable decision under section 90(9) because it did not have the power to make the payment requested. That decision then proceeded to a review hearing on 25 July 1996 when the Review Officer upheld the respondent's determination not to make any contribution to the transport costs for the appellant's husband as such a payment would be ultra vires the powers of the respondent. It is against that decision which the appellant now appeals. Mr Rowlett submitted: 1. That in the decision in Ashley v ARCIC (74/95) which involved a similar claim, the Court had suggested that the respondent should consider some form of recompense, as the escort could have stayed overnight and would have been entitled to accommodation expenses. He was unaware whether any such payment had been made. 2. That if the respondent's interpretation is correct then the benefits of section 90(9) would be severely limited, as only reviews which would have succeeded anyhow could be regarded as successful and allow for payment. 3. That because regulation 6(1)(b) of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, Or Physical Rehabilitation) Regulations 1992 only excludes payment at the private mileage rate in respect of claims by escorts under regulation 7, there is therefore provision for some payment for the cost to the appellant's husband's trips returning home after admission and then returning to uplift her. Ms Zumbach submitted: 1. That the factual situation is similar to the factual situation in Ashley in which that appellant's wife had acted as an escort in taking the appellant from Whakatane to Tauranga for surgery and then returning home and driving back to uplift him following the surgery. The Court in that case held that the respondent was correct in its application of the regulations in deciding that it did not have the power to pay for the wife's journeys. 2. That in relation to the claim for a favourable decision pursuant to section 90(9), regard should be had to the decision of the Court in Tito (13/96) in which that appellant had claimed an entitlement to lump sum compensation under the 1992 Act and the issue was whether the failure of the respondent to commence the hearing within three months entitled the appellant to a decision in her favour pursuant to section 90(9). In that case the Court stated: "In relation to the issue of s.90(9), while there can be no doubt that the delay in holding a review hearing was not contributed to by any actions of the 3 appellant, the issue for resolution particularly devolved on the question of eligibility for a lump sum award under ss. 135 and 147 of the 1992 Act. I am satisfied that that entitlement did not exist because the claim had been filed out of time. Accordingly, I agree with Mr Morrison's submission that in those circumstances s.90(9) cannot now operate to require the respondent to make a finding which is ultra vires its powers. That issue of the appeal is also dismissed." The regulations which affect this appeal are: "6. Other transport -- (1) Subject to these regulations, where a claimant requires transport for treatment for personal injury that is not emergency transport by air or emergency transport by ambulance, the Corporation or exempt employer shall contribute to the costs incurred by the claimant-- (a) An amount equivalent to the lowest fare payable for the journey on whichever is the cheapest of any available scheduled public transport; or (b) Where there is no scheduled public transport, an amount calculated at the rate of 50 cents per kilometre-- irrespective of the means of transport actually adopted by the claimant. (2) Notwithstanding subclause (1) (a) of this regulation, if the cheapest scheduled public transport is not appropriate because of the condition of the claimant resulting from personal injury and is not used, the Corporation or exempt employer shall contribute to the costs incurred at the rate specified in subclause (1) (b) of this regulation if that contribution would be greater than that payable under subclause (1)(a) of this regulation. ..... "7. Escorting of claimant --- (1) Regulation 6 of these regulations (except subclause (1)(b)) shall apply in respect of any person who is required to travel with the claimant by reason of -- (a) The claimant being a child under the age of 15 years; or (b) The medical condition of the claimant requiring that the claimant be accompanied; or 4 c) The person or organisation providing any scheduled public transport being used requiring that the claimant be accompanied by another person. (2) No payment shall be made under this regulation in respect of more than one person on any one journey." I consider that it has been well established that where the respondent has made a decision that it will not approve a favourable decision pursuant to section 90(9), that decision is capable of review as has happened in this case. That issue was considered and upheld in the decision in Buckland (31/96). The facts in this case are identical with the facts in Ashley in which the Court applied the provision of regulations 6 and 7. In that case I said: "... While it does not say so, it appears to me that regulation 7 contemplates payment in the case where the escort may be required to travel by public transport in order to assist a claimant to travel for the purpose of obtaining treatment. It specifically excludes subclause (1) (b) of regulation 6 which provides for a payment on the basis of per kilometre rate of travel. The appellant in this case is claming a per kilometre rate of travel for his wife's return journey, albeit with his vehicle. I accept Ms Dall's submission that the appellant cannot obtain reimbursement for his wife as an escort under regulation 7, particularly having regard to the fact that the provisions of regulation 6(1) (b) are expressly excluded in respect of an escort's claim under regulation 7 and that is the claim the appellant now makes. I was concerned that the result of this decision appears to be unfair in that had the appellant's wife chosen to stay in Tauranga then the appellant could have made a claim under regulation 8 toward the cost of his wife's accommodation. She chose the alternative of returning home. This may well be a case in which the respondent can see its way clear to make some recompense for what appeared to the appellant and his wife to be necessary travel incurred in obtaining treatment for the appellant. The appeal is dismissed." It follows from that finding that in this case, the original decision of the respondent to decline the appellant's application for reimbursement of her husband's travelling expenses was correct. Had the review hearing proceeded on that basis, the Review Officer would have to have followed the strict application of the regulations and declined the application. The effect of the decision in Ashley is that the respondent has no power under the regulations to make the payment requested. That being the case, the issue in respect of an application for a favourable decision under section 90(9) then comes within the ambit of the decision in Tito so that the respondent could not be required to make the payment which would be ultra vires its powers. While Mr Rowlett has referred to the fact that in Ashley I considered that the result was unfair as so far as that appellant was concerned, the same situation applies in 5 this case. However, I am in the same situation as the respondent that I have no discretion by which a payment can be made. If the result of the application of the requirements of the regulations results in an unfair decision, that does not mean that the Court has the power to exercise some discretion in favour of the appellant. The appeal is therefore dismissed. DATED at WELLINGTON this 20"" day of May 1997 grounddula A W Middleton District Court Judge dc244-96.doc (nr)