Aitken v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT INVERCARGILL Decision No. [2010] NZACC 217 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN KEITH AITKEN on behalf of the ESTATE OF HELEN AITKEN (Al 549/08) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at INVERCARGILL on 21 September 2010 APPEARANCES Mr K Aitken for the Appellant. Mr H Evans, Counsel for the Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] This appeal arises from a decision of the respondent contained in a letter from it to Mr Keith Aitken as the representative of the Estate of his late wife, Helen Aitken, and of the respondent's advice that it could not determine that there was any outstanding eligibility to entitlements for the deceased. That letter is dated 4 August 2008. [2] The facts which are relevant to the issue in this appeal may be stated as follows: . The deceased, the late Mrs Helen Aitken, was of January 2006 aged 71 years and had for some time been suffering from breast cancer. The deceased was under care and treatment for her condition, under the auspices of the Oncology Clinic at Kew Hospital, but was living at home with her husband. 2 On 18 January 2006, the deceased suffered a fall at home and suffered a fracture of her left hip. On 19 January 2006, the appellant was taken to Kew Hospital by ambulance where her fractured hip was diagnosed. . On 20 January 2006, the deceased was transferred from Kew Hospital to Calvary Hospital, where she was to receive treatment for her injury. The deceased received care and treatment for her personal injury as well as treatment for her cancer condition, but because she was unable to mobilise due to pain of her injury she remained at Calvary Hospital. . It is the case that the Southland District Health Board approved the deceased's continued treatment at hospital and funding for her ongoing care was met by the Southland District Hospital Board. The deceased remained at Calvary Hospital until her death on 15 July 2006, her death being due to complications relating to her cancerous condition. The deceased's husband, Mr Aitken, was concerned at the way his wife had been treated, or not treated, and he engaged in correspondence with the Corporation about their responsibilities in relation to his wife's care and treatment. On 5 May 2008, the Corporation had further discussions with Mr Aitken concerning the reasons for his wife's admission to Calvary Hospital and the funding for this care. Following that meeting the Corporation wrote to Mr Aitken on 4 August 2008 making reference to those discussions and stating as follows: As discussed at our meeting on the 05/05/2008 the medical notes from Calvary reported that Mrs Aitken was admitted for palliative care as stated on her admission form to Calvary. The care was funded by the Southland District Health Board (SDHB) this was confirmed in a letter from Jane McManus Health and Disability Consumer Advocacy Service to Calvary Hospital dated 05/05/2006. Mrs Aitken's discharge summary from 20/01/2006 reported that she was discharged to the care of her doctor with a referral to the Orthopaedic team. Her hospital notes from the 19/01/2006 report that she was not copying (sic) at home and that she was to be transferred to Calvary the following day. 3 As discussed with you on several occasions at no time did SDHB request funding from ACC for any accident or injury related costs as is the usual practise if a patient requires ACC entitlements and assistance. As discussed with you previously ACC has considered all of the information with regards to Mrs Aitken's medical information and can not determine any eligibility to any entitlements. With regards to the authority to obtain information from Calvary Hospital, I was unable to obtain fully informed consent from Mrs Aitken as she had passed away when the file was allocated to me on the 26/07/2006. The ACC45 completed on Mrs Aitken's admission to Kew Hospital provides ACC with consent to collect and release information with regards to her claim. It is that letter which Mr Aitken sought to review, as it related to eligibility and entitlements. A review hearing took place on 9 October 2008 at which Mr Aitken was seeking to identify that his wife was in hospital for her fractured hip and not for her cancerous condition and that during her time in hospital she had not received proper treatment. In her decision dated 28 October 2008, the Reviewer, Ms K Stringleman, noted that the provisions of the Accident Compensation Act made it clear that the Corporation's obligation was not to determine what treatment a claimant received, but rather to provide treatment by funding when that treatment is required and when that treatment meets the criteria under Clause 2 of Schedule 1 to the Act. The Reviewer found that the treatment which Mrs Aitken received was beyond the control of the Corporation. She further found that Mr Aitken had not made a claim for any specific treatment or rehabilitation costs, and for this reason she found that the Corporation's decision was correct, and the review was dismissed. [3] At the hearing of this appeal, Mr Aitken again raised the question of why the appellant was transferred from Kew Hospital to Calvary, and that this was his only concern, he stating that the question of entitlements was of no concern to him. [4] Mr Aitken submitted that the appellant had obtained cover for her hip injury and that she should have been given proper remedial treatment including being assisted with mobilisation. He contended that no such treatment was ever given and that she simply wasted away in hospital until her death. [5] Mr Evans, Counsel for the Respondent, formally stated that the Corporation accepted that Mrs Aitken had been admitted to hospital for her fractured hip injury and 4 that she had been transferred from Kew Hospital to Calvary for that condition and was to receive such treatment as was required at Calvary Hospital for that personal injury. [6] Counsel further submitted that the costs of the deceased's hospitalisation and treatment were met by the Southland District Health Board, and as such there were no unmet treatment costs which ought to have been met by the deceased herself and which in that case would have been able to be the subject of a claim for a treatment cost under the Act. [7] Counsel submitted that the Corporation's decision was that it was not the carer, rather it was the funder of statutory entitlements. Counsel further advised that the Corporation would be prepared to consider any application for an entitlement for any treatment costs which met the statutory criteria for such entitlements. DECISION [8] Whilst this appeal has been correctly brought from a decision which meets the statutory criteria of Section 6 of the Act as being a reviewable decision, it is difficult to determine precisely what it is that Mr Aitken was seeking to achieve by this appeal. [9] From the facts it is clear that initially the Corporation did take the view that the deceased was admitted to Calvary Hospital because of her cancerous condition and it seems that this was the foundation for Mr Aitken being upset, particularly as he contended that she didn't receive proper treatment for her physical injury whilst in hospital. [10] It is the case, however, that by letter dated 12 June 2007, following a mediation conference which Mr Aitken had with the Corporation, the Corporation issued a letter which stated as follows: "As discussed at our mediation on Friday, 8 June 2007, I am writing to advise that ACC accepts that Helen was admitted to hospital as a result of a fracture to her femur in an accident when she slipped in the bathroom at home on 18 January 2006." [11] That acknowledgement, confirmed as it was by Counsel for the Corporation, here in Court, should be the end of the matter and the Court proposes to take it no further, save that it acknowledges that the evidence makes it clear that the deceased was in hospital, initially at any event, because of her fractured hip and her immobility because of that condition. 5 [12] It is equally the case, as I find it from the evidence, that the Southland District Health Board assumed full responsibility for the costs of treatment of the deceased whilst she was in hospital, and a specific arrangement as to that was made during the deceased's lifetime. [13] Accordingly, it is the case that there were no unmet treatment costs for which the Corporation was liable as of the date of the deceased's death, and therefore the decision which was made by the respondent in its letter of 4 August 2008 was correct. Accordingly, this appeal is dismissed. DATED this 25" day of November 2010 M J Beattie District Court Judge