James v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 173 /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 JULIE ISABELLA JAMES of Levin Appellant (Appeal No. DCA 160/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at PALMERSTON NORTH on the 16th day of July 1998 APPEARANCES Appellant in person S M Rowan for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to receive payment for additional chiropractic treatment. The appellant suffered spinal injuries in a water skiing accident in January 1995. She lodged a claim for cover with the respondent which provided treatment expenses and home help and chiropractic treatment together with weekly compensation and an independence allowance. Other additional benefits were paid by the respondent. 2 On 15 July 1997 the appellant requested approval for the payment of additional chiropractic treatment. The appellant's general practitioner, Dr Ames, requested an additional 6 chiropractic treatments for which he stated the reason to be "restoration of mobility". The application noted that the appellant had already been referred for and receive 100 chiropractic treatments. On 18 July 1997 the respondent wrote to the appellant acknowledging receipt of the request for additional treatments. That letter explained to the appellant that the regulations permit a total of 24 treatments with the discretion to allow a further 12 treatments provided the prognosis is for physical recovery. The letter stated that as the appellant had already received 100 chiropractic treatments and the prognosis did not confirm that further treatment would assist her physical recovery the application was declined. The appellant lodged an application for review of that decision. In her application she gave as reason for the application was that the grant of the application was "to restore me to be able to function so I can return to work again". The file contains a report from Mr G Martin, a neurosurgeon, to Dr Ames in which he concluded: "She says the only thing that has relieved her is the chiropractor's manipulations, about every second or third week. I think this is realistic, and believe that the manipulation is reasonable, and likely to be controlling a strain of the upper cervical spine that we cannot image. I will send a copy of this letter to the ACC, but what they do about frequent or repeated chiropractor's visits, is a matter of regulations rather than medical appeal." The appellant's chiropractor, Dr J White, advised the respondent on 20 January 1998 that he considered that further chiropractic treatment combined with retraining for the workplace would enable the appellant to be "a productive wage earner (and taxpayer) within 8 months". The appellant gave evidence at the review hearing and explained that she had made steady progress with the chiropractic treatment. The review officer concluded that the Accident Compensation (Referred Treatments Costs) Regulation 1990 permitted a total of 24 treatments which have to be completed within 8 weeks with the discretion to approve a further 12 treatments to be completed within an 8 week period provided the medical referral gives adequate reasons why that treatment is necessary. She concluded that while the medical evidence indicated that the treatment maintained the appellant's wellbeing it did not provide progression towards physical recovery which was the criteria necessary to be met. In addition, the appellant had received substantially more than the permitted number of approved treatments and the application was therefore declined. It is against that decision which the appellant appeals. The appellant told me that she received a considerable relief from the treatment and hoped that it would restore her to the position where she could return to work. 3 Ms Rowan submitted that the review officer had correctly applied the provisions of the Regulations and that the appeal should be dismissed. It is quite clear that on the medical evidence the treatment provides some pain relief for the appellant but will not lead to any overall improvement in her condition. Furthermore, Clause 5 of the Regulations places a restriction on the number of treatments being the preliminary maximum of 24 and an absolute maximum of 36. This appellant has had the benefit of 100 treatments paid for by the respondent. The court has held in a number of similar appeals that the regulations provide no discretion either to the respondent or to the Court to go beyond the strict provisions of the regulations. Accordingly, I consider that the review officer correctly interpreted the position and her decision should not be disturbed. The appeal is dismissed DATED at WELLINGTON this 315- day of July 1998 A W Middleton District Court Judge dca16098.doc(rd)