Bassett v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 8 6 195 HELD AT TAURANGA 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 LEONARD KENT BASSETT 52 95 60 26. Appellant (Appeal No. DCA 119/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 2nd day of August 1995 APPEARANCES Ms A Cave advocate for appellant Mr A E Howman for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns the application of the schedule of the Accident Rehabilitation and Compensation Insurance (Dentists Costs) Regulations (No. 2) 1990. The appellant was injured on 23 August 1994 by a piece of wood which flew from a circular saw that he was operating and hit him in the jaw damaging a tooth. The damaged tooth was a bonded crown on a post and core. After a temporary repair, the tooth was fully repaired with a three unit bridge on 6 December 1994 at a cost of $2,331.00. The post and core could not be replaced. The Corporation paid $597.65 calculated under the schedule according to r 4 which states: "4. Corporation to pay certain costs:- (1) Subject to these regulations, the Corporation shall pay the costs of treatment provided by a dentist to any claimant in respect of personal injury to the extent specified in the Schedule to these regulations. The schedule contains a note that the specified maximum amounts are reduced by 25% where the tooth has been previously heavily restored and by 50% where the tooth has - 2- been previously crowned. The regulations are governed by s 26 of the Accident Rehabilitation and Compensation Insurance Act 1992. "26. Social rehabilitation - (1) In order to ensure - (a) Consistency of provision of social rehabilitation; and (b) Certainty of entitlement to social rehabilitation - no provision of, or payment in respect of, social rehabilitation shall be made by the Corporation in respect of any person except as required or permitted by regulations made under this Act. Consequently the Corporation cannot make any payment in excess of the amounts specified in regulations. The calculation made under the schedule was as follows: Extraction (less 50%) 47.80 Bridge x 3 @ $382.50 (less 50%) 573.75 597.65 The appellant then had to meet the difference between the cost of treatment and the schedule which amounted to $1,733.35. He protested about the underpayment and the Corporation's customer services officer wrote to him explaining the purpose of the regulations on the basis that deteriorated teeth are more susceptible to damage than sound teeth. That view was reinforced by the Corporation's dental adviser. The appellant took up that question and endeavoured to establish that the crown was as strong as a natural tooth and that the force of the accident would have caused as much damage to a natural tooth. The reason for the reductions in the case of restored or crowned teeth is not apparent from the regulations, but it is possible that in promulgateing the regulations the repair work or the crown were regarded as an artificial part of the tooth which is not included in the scope of injury to the person. It is possibly a combination of both reasons. In this case there was no dispute about the fact that the tooth had been previously crowned and no dispute that the correct items in the schedule had been applied. The argument advanced on the appeal concerned the unfairness or injustice of compensation being so much less than the actual cost of repairing the damage caused by the accident. Unfortunately the scheme of the Act and regulations does not provide the full compensation that claimants are likely to expect. The standard contributions contained in schedules to many of the 45 sets of regulations under the Act are no more than contributions and are often inadequate in meeting a claimant's expectation of fair compensation. There is no lawful basis for the Corporation to increase the payment it has made and the appeal must be dismissed. DATED at WELLINGTON this 18 day of August 1995 D A Ongley District Court Judge