Charteris v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 94 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JENNIFER CATHERINE CHARTERIS of Australia Appellant (Appeal No. DCA 369/97) 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 The issue in this appeal is whether the appellant is entitled to recover costs for dental and medical treatment she obtained in Australia in 1996. The background to the appellant's claim is that, being a resident of Australia, she was on holiday in New Zealand when she was injured on 9 June 1980 in a motor vehicle accident. The appellant's claim for cover was accepted under the provisions of the Accident Compensation Act 1972 and medical expenses paid and a lump sum award was made. The respondent' file was thereafter closed until it received a request from the appellant on 6 May 1997 in which she detailed certain dental treatment which she had undergone as a result of the injuries sustained in the accident in June 1980. She further claimed in that request that she had suffered deterioration as a result of which she claimed an additional award of lump sum compensation. On 9 May 1997 the respondent notified the appellant that it was unable to pay for the costs of treatment incurred in Australia. The notification also stated that lump sum compensation for deterioration could not be met as the Accident Rehabilitation and 2 Compensation Insurance Act 1992 replaced the earlier legislation and the appellant did not meet the requirements of the new legislation. The appellant applied for a review of that decision which was confirmed by the Review Officer. It is against that decision which the appellant now appeals. In her submission, the appellant has stated that all the dental work specified in the accounts submitted with her claim are as a result of her accident in June 1980. She submits that the fact that the legislation has changed since her original claim should not be a deterrent to her successful appeal. She submitted that the respondent was negligent in failing to notify her of the changes in the legislation which had occurred prior to her submitting her present claim. In submissions, on behalf of the respondent, Ms F Patterson states that pursuant to section 88(2) of the Accident Rehabilitation and Compensation Insurance Act 1992, the respondent is not able to pay for costs of treatment incurred overseas. Ms Patterson submits that this proposition is supported by an unreported decision in ABC delivered in the Wellington High Court on 11 November 1997. In that case the Court stated that as from 1 July 1992, when the new legislation was enacted, neither the District Court nor the High Court can take into account any claimed special circumstances of individual cases as there is no discretion in the provisions of the Act and the Regulations which permits this. Ms Patterson submitted that as in the decision in ABC there are no regulations made under the present legislation which permits the respondent to pay for dental treatment performed outside New Zealand. The issue is covered by the provisions of the 1992 Act and in particular, the transitional provision of section 135 which states: "135. Relationship of this Act and former Acts---(1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Act 1982 suffered before the 1st day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act." As the appellant applied for costs of dental treatment subsequent to the passing of the 1992 Act the consideration of that claim must be made having regard to the 1992 legislation. Section 88(2) of the 1992 Act then states: "88. Payments to persons outside New Zealand (2) No payment shall be made under this Act in respect of any treatment, service, rehabilitation or related transport costs incurred outside New Zealand unless required or permitted by regulations made under this Act." As Ms Patterson submitted there are no regulations passed under the Act which permits the payment for the cost of dental treatment performed outside New Zealand. A similar situation came before me in an appeal by Penham (56/96) which involved an appellant who was a resident in New South Wales and suffered personal 3 injury by accident on 18 January 1991 while on holiday in New Zealand. She was granted cover under the Accident Compensation Act 1982 in respect of treatment by the Waikato Hospital. She subsequently returned to Australia and underwent further treatment in that country. In that decision I confirmed that there was no power for the respondent to meet the costs incurred in Australia and declined the appeal. A similar position applies in this case. There are no regulations made under the Act which permits the respondent to meet the appellant's cost of dental treatment performed in Australia. The appellant raised the question that the respondent was negligent in failing to notify her of the changes of the legislation. As has been held in many cases, there is no obligation on the respondent to notify all possible applicants for cover that there has been a change in the legislation which might affect any possible entitlement that the applicants may have. That would create an impossible situation. The appeal is dismissed. DATED at WELLINGTON this 7 th day of May. 1998 A W Middleton District Court Judge dc369-97.doc (nr)