Cronin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 125 /96 HELD AT CHRISTCHURCH .. 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 JEREMIAH JOSEPH CRONIN Appellant (Appeal No. DCA 290/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of October 1996 APPEARANCES Appellant in person P J Zumbach for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns the Corporation's refusal to pay for the appellant's transport at a rate per kilometre when he was required to attend for specialist examination at Christchurch. The appellant suffered a back injury on 19th June 1994 and was certified unfit for work. Compensation was paid until July 1995 when the Corporation's Timaru branch manager required a further specialist opinion. Mr King, the appellant's case manager, arranged for an appointment with Mr D J Jones, orthopaedic surgeon at Christchurch, at 11.00 am on Ist August 1995. Mr King left a message for the appellant who called back and apparently confirmed the appointment. Mr King recorded in a file note on - 2- 31st July 1995 that the appellant telephoned him about travel assistance to Christchurch. Mr King advised him that he would be reimbursed at the public transport rate, but the appellant said that the appointment time did not fit in with the bus timetable, and he expected to be paid at a rate per kilometre. Mr King indicated that the mileage rate would be considered and he noted on the file "On reconsidering the matter, as I have requested the second opinion and Joe does have a back injury, perhaps the mileage rate is more appropriate in this case." The appellant drove from Timaru to Christchurch to keep the appointment. The Corporation refused to pay the per kilometre rate for the return journey. The review officer upheld the Corporation's decision and the appellant appeals from that determination. On hearing of the appeal leave was given to the respondent to furnish evidence of bus timetables for the intercity service between Christchurch and Te Anau via Timaru. The appellant said that he made inquiries and found that the first intercity bus did not arrive in Christchurch until 11.50 am so that he could not have used that public transport in order to keep the appointment. If that was the only service available then it would not have been suitable because he could not travel to Christchurch and back on the same day if he was required to keep an appointment at 11.30 am. The respondent makes its assessment of the amount to be paid for transport costs under Reg. 6(1) of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, or Physical Rehabilitation) Regulations 1992 (SR 1992/203) which provides as follows: "(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 ... 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 [52] 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 ... 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.' The regulation was considered in Waddilove 26/96 in a case where a claimant could not use a scheduled bus service to travel for treatment and return to his home on the same day. If public transport is so inconvenient or unreasonable it is not "available". On 5th October 1995 the Corporation advised the appellant that a public transport service had been available from Budget Buses departing Timaru between 7.00 and 7.30 am and returning from Christchurch at 4.00 pm. The appellant had not been - 3- aware of the Budget Buses service, but he said that even if he had known of it he could not have used it because the vehicles are fairly cramped and he would have been in unreasonable discomfort if he had been required to travel by the Budget service. Added to that, he would have had to make a very early start. I do not think that the early start is a matter of any consequence, but in the course of the appeal it became clear that the appellant's fitness to travel on the Budget Buses was a fact that had to be determined. As the appellant was unrepresented, I have adjourned the appeal and invited the appellant to obtain some authentic information about the standard of seating on the buses, along with an opinion from his general practitioner concerning whether he would have been physically able to travel on one of those buses without experiencing unreasonable pain or discomfort. Once that information is obtained, the Court will consider granting leave to admit it as evidence on the appeal. It will first have to be submitted to counsel for the Corporation. If the Corporation is able to be satisfied that the public transport in question was not reasonably available because of the pain or discomfort that would have attended the return trip, then it might be possible for the issues on appeal to be settled between the parties without being referred back to the Court. If there is still a question to be determined on the appeal, it will be determined on the papers after leave has been given to tender any further material by way of evidence, and after the parties have been given the chance to make a further written submission. In the meantime, I would like to draw the respondent's attention to the submission that Mr Cronin made, that he was not required to attend at Christchurch for treatment. Section 27 of the Act authorises the Corporation to contribute to the cost "where a person requires any treatment, service, physical rehabilitation, related transport, or certificate in respect of that person's personal injury". The appellant would say that he "required" none of those things. He did not receive treatment. In broad terms he might have received a service or a certificate, but that is doubtful. Rather the examination was for a report for the Corporation to consider his entitlement to compensation. The appellant was obliged under s 73(2)(a) to comply with a requirement of that nature, but it is possible that he may not be obliged to subsidise the cost. In those circumstances, reg 6 of the Costs of Transport Regulations may not apply at all. Incidentally, reg 6 seems only to relate to transport for treatment, and not for any of the other things that are mentioned in s 27(1) of the Act. If the requirement was made by the Corporation, would it have been open to the Corporation to agree on reasonable financial arrangements, including transport cost at a rate per kilometre. If the matter was not covered by the regulations, the Corporation could not reasonably require the claimant to travel at his own cost entirely. In order for the Corporation to make a reasonable requirement and insist on compliance it could be argued that suitable arrangements should have been made, including payment for transport having regard to the claimant's physical difficulties, the time of the appointment and the available modes of transport. - 4 - Perhaps those matters can be addressed in writing if the Court is ultimately required to determine the questions on appeal DATED at WELLINGTON this 24thday of october 1996 D A Ongley District Court Judge