Kolonie v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. .13 197 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 LAURA KOLONIE Appellant (Appeal No. DCA 1/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 10th day of October 1996 Appellant in person Louise Mckenzie for respondent DECISION OF JUDGE D A ONGLEY I apologise for the delay in issuing a written decision in this matter. I have informed the appellant, on the hearing of the appeal, that the appeal was unsuccessful. The appellant had suffered chemical burns to her scalp resulting in partial alopecia. She applied to the Corporation for payment of $630 being the cost of two wigs. The wigs were prescribed by Dr J G Pascoe who had specialist qualifications but was not on the specialist register, and had practised as a general practitioner for 22 years. Dr Pascoe, therefore, did not come within the definition of a registered specialist under Regulation 2 of the Prescribed Artificial Limbs, Aids and Prosthetic Appliances Costs Regulations 1990/244. There is no dispute about those facts, although the - 2- appellant considered that Dr Pascoe should be regarded as a specialist for the purposes of prescribing. The Corporation is only permitted to contribute to the cost of treatment or services to the extent required or permitted by regulations made under the Accident Rehabilitation and Compensation Insurance Act 1992. That is a matter that has been well settled in the course of appeals under the 1992 Act. The only regulations that could apply in the appellant's case are the above-mentioned regulations concerning prosthetic appliances. Regulation 4 permits the Corporation to pay costs payable by a claimant for any item, where the item is prescribed by a registered specialist for the claimant as a result of personal injury. The mechanical application of the regulations is unavoidable. Dr Pascoe was not a specialist within the meaning of the regulations, although he had experience and qualifications that placed him in a more or less equivalent position. The result for Ms Kolonie is most unfortunate. She was not to know that a specialist's prescription was necessary before she could obtain compensation for the cost of the wigs. From the point of view of a claimant, there can be logic in the artificial distinction between a specialist's prescription and the prescription of a general practitioner in a case where the need for the prosthetic is obvious. The regulation seems to bring about a result which is unintended. The principle of providing compensation for prosthetics prescribed by specialist practitioners is eminently practical, however the by-product of excluding claims for compensation for prosthetics properly prescribed by a general practitioner inevitably produces anomalous situations like the present one. This does not appear to be an extraordinary case and it seems likely that the application of the section must produce injustices. The unjust results could be cured if the Corporation had some discretion to order payment in appropriate cases. Consideration should be given to amendment of the regulations to provide for fairness as between claimants. The appeal is dismissed. DATED at WELLINGTON this 31 st day of January 1997 D A Ongley District Court Judge