Munro v Accident Rehabilitation and Compensation Insurance Corporation

Decision Mo . 27/96. IN THE DISTRICT COURT DCA No. 161/95 HELD AT AUCKLAND UNDER THE Accident Rehabilitation and Compensation Insurance Act 68/ 95 / 0100 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN K.R. MUNRO APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland 12 December 1995 Date of Decision: 19.4. 96 The appellant in person S.W.B. Foote as Counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE The appeal fails. Introduction: The issue in this appeal is whether the Corporation was correct to refuse to reimburse the appellant for certain treatment costs he incurred. More particularly, the issue involves the Accident Compensation (Referred Treatments Costs) Regulations 1992/242. 2 . On 9 December 1986, the appellant was injured when he fell off his bicycle. Following the accident he had continuing problems with his back and lodged a claim for cover with the Corporation and cover was accepted. As part of the treatment for his back the appellant was referred for physiotherapy. As a result of this physiotherapy, the appellant developed problems in the arch of his right foot and a muscle spasm in his right leg. On 9 October 1992 he lodged with the Corporation an M46 form of claim for cover and treatment expenses for leg and foot problems arising from the physiotherapy. His claim was referred to the Medical Misadventure Advisory Committee but then reconsidered under s.8(2) (d) and on 29 March 1994, the appellant was advised that the Corporation accepted cover for the muscle spasm in his right leg. (Section 8(2)(d) extends cover under the Act to personal injury which is a consequence of treatment for personal injury covered by the Act.) On 9 October 1992, the appellant's general practitioner, Dr Hutton, issued an M46 form of claim for cover and treatment expenses, referring the appellant for treatment by a physiotherapist, but that physiotherapist refused to treat the appellant. From 17 April 1993 to 29 November 1993, the appellant obtained massage treatment from Kamilla Anderson, a beauty therapist. The total cost of the treatment was $477. Ms Anderson referred the appellant to a registered osteopath, Natasha Franco, and the cost of that treatment was $45. From 1 July 1993 to 16 December 1993, the appellant also attended a chiropractor, Donald P. Murray, and the cost of that treatment was $1,125. From 1 July until 19 November 1993, the appellant received physiotherapy treatment from Shirley Griffin, and the cost of that treatment was $355. 3. On hearing that his claim for cover was accepted, the appellant filed with the Corporation a claim for $2,002 for the costs of treatment. By letter dated 15 June 1994, the Corporation wrote to the appellant advising that it was unable to assist him with the costs of the treatment because it had no record of a referral by his general practitioner for chiropractic, and osteopathic treatment and physiotherapy prior to the commencement of his treatment. Following further discussion with the appellant, the Corporation wrote to him by letter dated 28 July 1994 confirming that it was unable to meet the costs of the treatment because he was not referred for the treatment by general practitioner. By application dated 2 August 1994, Mr Munro applied for a review. In the application form he said:- "I needed to do something about the injury in early 1993 as it was affecting me in my job. I was taking advice from Medical Misadventure to deal with the problem if I needed to and hold on to the receipts. I also lost my doctor on 9 October 1992. She did not want to deal with ACC any more. I would appreciate it very much if ACC would cover the costs of treatment incurred during 1993 that totalled $2,013.40." The review was heard on 7 November 1994. Mr Munro attended. In his decision dated 27 January 1995, the Review Officer confirmed the decision of the Corporation. He said that Mr Munro drew to his attention the M46 form issued by Dr Hutton on 9 October 1992, and he accepted that Dr Hutton referred Mr Munro to the physiotherapist, Mr White. However, he said that the Corporation was limited by Regulation 5(1)(b) which makes it a condition of payment that treatment subsequent to a referral must be commenced within eight weeks of the date of that referral. Accordingly, the Corporation was 4. unable to meet Mr Munro's physiotherapy costs, and there was no evidence of a referral for the osteopathic or chiropractic treatment. Mr Munro filed a notice of appeal dated 24 February 1995. In it he said that he needed to deal with the problem at the time, as his job and mortgage were at risk, and it appeared that the Corporation has its own laws that are not open to the public. At the hearing of the appeal, Mr Munro made verbal submissions. He said that he did not accept that the Corporation's decision was reasonable. He paid for the treatment in good faith, and the Corporation refused to compensate him. He outlined the history of his claim, he was concerned that on the morning of the appeal the Corporation could not bring his claim up on its computer screen, he felt totally frustrated by the amount of correspondence required, and he said that he was given verbal advice by the Medical Misadventure Advisory Committee, and kept the receipts in accordance with that advice, and presented them to the Corporation. He said that his job requires a great deal of walking and that causes problems. His doctor had gone and he to find another general practitioner. He saw no reason why he should fill out another claim for physiotherapy while he could not get to the physiotherapist he wanted. The Corporation did not want to deal with his claim while the Medical Misadventure Advisory Committee was considering it. He has had numerous difficult case managers and that has caused difficulty. The Corporation is there to help him and not to cause him stress or hassle him. Mr Foote presented written submissions on behalf of the Corporation. In those submissions he set out the background to the appeal, and referred to the 5 . decision of the Review Officer. He submitted that the Corporation could not pay for the treatment because they were not covered by the regulations as:- (a) There was no referral from a general practitioner in relation to the osteopathic, chiropractic and massage treatments. (b) No treatment of any type was commenced within eight weeks of any referral, and (c) The beauty therapist who provided the massage does not come within the definition of "treatment provider" in the regulations. (d) He referred to Regulation 4(7) (a)(i) which requires that prior to treatment being provided, the claimant be referred for that treatment by a general practitioner. (e) He referred to Regulation 5 which requires that the treatment commence or be part of a course of treatments that has commenced within eight weeks after the date of the referral. (f) He referred to the definition of "treatment provider" in Regulation 2(1) as an acupuncturist, chiropractor, occupational therapist, osteopath, physiotherapist, podiatrist or speech therapist." He submitted that the Corporation does not a discretion to waive the requirements in the regulations. He said there is no general provision in the Act 6. allowing the Corporation to waive time limits, or to make payments which are not covered by the regulations. In reply, Mr Munro said that he was not a lawyer, and he agreed that the M46 form was the only referral by a general practitioner for treatment, and that he did not start that treatment within eight weeks of the referral. He referred again to the advice he had received to have the treatment and keep the receipts. He gave evidence on this point. In evidence he said that his memory was not clear on a number of matters but on his evidence I am satisfied that:- (1) He telephoned the Corporation's Medical Misadventure Advisory Unit in Wellington and spoke to the client officer. (2) He made more than one call. (3) He asked for advice on what to do about going or not going ahead with treatment. (4) The client officer told him to do what he needed to do or deal with what he needed to deal with and keep receipts and present them to the Corporation when it asked for them. (5) He mentioned to the client officer the M46 form. (6) He commenced the massage treatment on 17 April 1993. 7) He was aware before he started the physiotherapy that he had to be referred by his general practitioner for that treatment. 7 . (8) He did not understand that he should have a referral from a general practitioner to go to a masseuse or a chiropractor or an osteopath. Conclusion: Section 27(1) of the Acts reads:- "Treatment and physical rehabilitation - (1) Where a person requires any treatment, service, physical rehabilitation, related transport, or certificate in respect of that person's personal injury that is covered by this Act (in this section called a 'specified service'), the Corporation shall contribute to the cost of that specified service to the extent required or permitted by regulations made under this Act." The Corporation is not entitled to reimburse the appellant for the treatment by the beauty therapist because she was not a "treatment provider" within the meaning of that phrase as set out in Regulation 2(1). The advice given to the appellant by the client officer of the Corporation's Medical Misadventure Unit was not a referral for treatment by a general practitioner as required by Regulation 7. The only referral was that contained in the M46 form of claim for cover and treatment expenses. That referral was made on 9 October 1992. That treatment covered physiotherapy only. The Corporation is not entitled to reimburse the appellant for the treatment by the osteopath or the chiropractor or the osteopath because the appellant was not referred for that treatment by a general practitioner as required by Regulation 4(7)(a)(i). 8. The Corporation is not entitled to reimburse the appellant for the treatment by the physiotherapist because that treatment did not commence within eight weeks of the referral by the general practitioner as required by Regulation 5. This is a case where the appellant could have complied with the regulations if he had been aware of them. However, it is another case in which the result is unfair to the appellant because the Corporation is not given a discretion. The failure to give a discretion to the Corporation is a matter for the Legislature. In light of the referral in the M46 claim form, and the advice given by the client officer for the Medical Misadventure Advisory Committee, and the fact that Mr Munro needed the treatment before the Corporation had made a decision on his claim for cover, this is a case where, if the Act gave the Corporation a discretion to reimburse Mr Munro it is likely that discretion would have been exercised in his favour at least in respect of some of the expenses he incurred. The appeal is dismissed. District Court Judge