Bruce v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 24 195 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN JASON PETER BRUCE 86/ 94/ 0324. Appellant (Appeal No. DCA 98/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE D A ONGLEY By consent of the parties this appeal is heard on the papers. It concerns a claim for private hospital treatment and the test of necessity for the due restoration to a principal economic activity under r 1 1(2) of the Accident Rehabilitation and Compensation Insurance (Specialists Costs) Regulations 1990. The appellant was aged 26 and was a clerical worker for the police. He suffered personal injury by accident when he sprained his right knee whilst snowboarding on 30 August 1991. He worked at Transport House in Christchurch where he suffered discomfort but was able to continue in his employment. In mid-1992 when Ministry of Transport amalgamated with Police he moved to Christchurch Central Police Station where he found that his work involved negotiating steep and narrow stairs and crouching to use filing cabinets. Some of the difficulties would eventually be reduced when a building refurbishment programme was completed. He was not able to keep his leg extended as much as he needed and also placed more strain on his left leg as a consequence. A senior employee reported that the appellant did not appear to be having any obvious difficulty in going about his duties, but the appellant says that is because he did not openly display his discomfort. Another senior employee supported the appellant's claim. - 2- On 14 September 1993 the appellant's general practitioner furnished a certificate that the appellant was unable to sit comfortably, had difficulty climbing stairs and could not squat to access filing cabinets. He considered that the appellant required surgical treatment. The Corporation sought further information about the effects of the injury on the appellant's employment and then wrote to him on 22 September 1993 stating that private surgery costs could only be paid if it was first established that immediate surgery was necessary to help the appellant to return to work or study or to resume essential household duties. The Corporation took the view that the appellant was still able to perform normal work duties to an acceptable standard and payment of private surgery costs were declined. The criteria applied by the Corporation are contained in r 11 of Accident Rehabilitation and Compensation Insurance (Specialists Costs) Regulations 1990. The relevant subparagraph is as follows: "(2) Except as provided in subclause (3) of this regulation, the Corporation shall not give the approval referred to in subclause (1) of this regulation unless it is satisfied that it is necessary for the due restoration of the claimant to his or her principal economic activity or would enable the complainant to undertake remunerated employment that the treatment be provided. " The grounds of review were directed at the failure of the Corporation to meet the general purposes of rehabilitation contained in the Act when the appellant needed continued surgical treatment in order to maintain fitness to work. The grounds of appeal were put in a similar way. The appellant said he suffered considerable discomfort while working and that if he had been less determined to rehabilitate himself the Corporation would have been obliged to meet surgical costs. In those circumstances then he was denied access to rehabilitative provision because of his own work ethic. The regulation does not refer to maintaining fitness for work but instead to "restoration of the claimant to his or her principal economic activity". The Review Officer said: "In this case it does not appear that Mr Bruce is unable to perform any of his normal work activities. While I accept that Mr Bruce may suffer pain and discomfort as a result of his knee condition, there is no evidence that he cannot perform his normal work or that his income is adversely affected by his injury." This appeal is heard on the papers. Counsel for the Corporation referred several case including to a decision of Appeal Authority Mr P J Cartwright in Mcwhirter (92/92) as authority for a strict interpretation of the regulations. The Authority considered the same regulations under the Accident Compensation Act 1982 when dealing with a case where a claimant continued to work as a teacher with increasing difficulty and was unable to participate in school sporting activities effectively. The Authority said: "The appellant's concession that she was able to continue working, although not totally, effectively obliges me to dismiss this appeal. Had the evidence disclosed that the appellant's injury had forced her to give up work completely or, at the very least, to have reduced her job to restricted duties with a consequential risk of losing her job, then I believe that I would have been permitted to allow this appeal. There is merit in the wry observation made by the appellant at the review hearing that '... people that soldier on are disadvantaged by the wording of the regulations'. - 3 - On this aspect of the matter it is appropriate to repeat the observation made by Appeal Authority Mr B H Blackwood in Crannitch (106/91) that. ... the strict wording of those regulations can create anomalies. Although in this case Mr Crannitch continues to work, the evidence indicates that he is at risk in doing so. The waiting time to have the operation carried out in the public hospital is apparently two, three or more years. If during that period the knee were to collapse it could result in a period of earnings related compensation and appropriate lump sum awards, all of which could possibly be avoided if the treatment were able to be carried out promptly. It is foreseeable that the funds involved in meeting any such possible claims could far exceed the amount involved in carrying out the treatment as sought by Mr Crannitch. The policy of the legislation is, however, a matter for the legislature, and the duty of the Appeal Authority is to act in accordance with the legislation'." I agree with the Appeal Authority concerning the construction of the regulations. The appellant in this case is met by the same policy consideration: that private hospital treatment is barred by a necessity test which he does not meet, although it might be unfair to expect him to abandon his determination to continue working and to put his job at risk before he can qualify. The Review Officer appears to have considered the relevant questions of fact, without diminishing the consequences of the injury but reaching a conclusion that the case does not go far enough to meet the test of necessity for private hospital treatment. That is essentially a question of fact which should not be disturbed on appeal unless there is some clear reason. The Review Officer said: "In this case it does not appear that Mr Bruce is unable to perform any of his normal work activities. While I accept that Mr Bruce may suffer pain and discomfort as a result of his knee condition, there is no evidence that he cannot perform his normal work or that his income is adversely affected by his injury. For those reasons the appeal is dismissed. No order is made for costs. DATED at WELLINGTON this 9Th day of March 1995 D A Ongley District Court Judge