Taylor v Accident Rehabilitation and Compensation Insurance Corporation

Decision No. 17 /95 IN THE DISTRICT COURT DCA No. 97/94 HELD AT AUCKLAND UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 49-94- 1563 IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN L.F. TAYLOR APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Hearing: 27 October 1994 Date of Decision: 21 February 1995 Counsel: Appellant in person A.D. Barnett for the respondent RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH Background to appeal: The issue in this appeal is whether the Corporation should contribute to the cost of surgery at a private hospital. 2. The appellant suffered facial injuries as a result of an assault on 11 July 1989. She lodged a claim with the Corporation on 25 October 1989 and cover was accepted. The appellant has undergone a number of surgical procedures associated with her facial injuries and these have been covered by the Corporation. These have been summarised by the Review Officer in her decision. The Corporation paid for an operation to repair her right eye orbital fracture in January 1991. The plastic surgeon, Mr Reese, reported to the Corporation on 23 April 1991 as follows:- "On examination today this lady had a symmetrical looking face to casual observation. ... I have not formally tested her vision today but a report I had from Dr Coop said that she had 6/4 THS vision in her right eye and 6/6 THS in the left eye. She complains of some double vision but I think she has binocular vision without diplopia. However, she does get some blurring in the right eye when looking to the right side extreme laterally and laterally up and down. This is still present if one examines the right eye with the left eye occluded. She does not get any splitting of the image of a finger when viewing it from one side to the other. I am not sure what this blurring is due to. ... This lady has a well healed scar on the right upper eye lid medial canthal region which is inconspicuous at a conversational distance. She also has an incision of the right lower eye lid which again is in the skin crease lines and is inconspicuous at a conversational distance. She is very pleased with the outcome of her orbital surgery. Apart from the minor asymmetry noted above her appearance is excellent. ..." 3. The Review Officer also quoted from an opinion the Corporation obtained from Mr Coop, an eye specialist, on 12 June 1992:- "... The patient certainly says there is a blur or some visual annoyance when she looks to the right. Examination showed excellent 6/4 right and left, the right one with a minor prescription in the lens, and the left one uncorrected. ... I was not able to elicit any proper diplopia on looking to the right or in any other direction. Careful interrogation suggested that it was not real blurring but a strange feeling she feels when she looks to the right. I think it possible that the orbital surgery has given some slight tethering of the ocular movement or some tightness or feeling of pulling, but not enough to actually limit the movements of the eye and suggest real double vision. To test her binocular function and explore this matter further, I asked her to look through an instrument called a Madox Wing. ... Testing her convergence showed that she has some difficulty in pulling her eyes inwards and convergence weakness is not that uncommon, as people grow older, or possibly after an injury to the orbit. Miss Taylor has had an excellent result from orbital surgery, certainly beyond the average. She has no significant visual deficit but does appear to have a very minor difficulty with ocular movement. This does not amount to actual double vision but is enough to give her minor symptoms, in a person who is naturally anxious and has had psychological problems. ..." Further surgery was approved by the Corporation in September 1992 for a septorhinoplasty. Mr Dorman, an Otolaryngologist, reported to the Corporation on 8 June 1993 following this operation on 4 February 1993. In his report he stated:- 4. "It would appear that she has no restrictions to her recreational pursuits, sports, home and family life. Work and social activities seem to be quite satisfactory. ..." On 15 October 1993, the Corporation received a request for approval of private hospital treatment from Mr Reese, a plastic surgeon. The proposed treatment was a reduction of the appellant's left upper eye lid and tightening of the left lower lid skin and tightening of the left lateral canthus to restore symmetry with the right eye. Mr Reese's diagnosis was asymmetry of upper and lower lids following trauma to the right orbit on 11 July 1989. Mr Reese noted on the request form as follows:- "This lady is able to attend to her art training and work but she complains of difficulties with vision but I have checked this today and I can find little wrong with it." On 20 October 1993 the Corporation wrote to the appellant declining to meet the cost of the proposed treatment on the basis that she did not meet the criteria in the Private Hospital Regulations 1990 and in particular the Corporation was not satisfied that the treatment was necessary for the restoration of the appellant to her principal economic activity. The appellant applied for a review of that decision. The review was held on 31 March 1994 and the appellant gave evidence. The decision was dated 18 April 1994 and the Review Officer confirmed the Corporation's decision that the appellant's case did not meet the criteria set out in the Regulations governing the Corporation's contributions towards private hospital treatment costs. 5. In the appellant's notice of appeal it is stated that the grounds of appeal were that she felt that the operation should have been paid by the Corporation as it had been required as a result of her accident, and she sought payment of the hospital fees and loss of wages. The appellant made submissions and produced medical certificates from Dr Wardrope, and a letter from the Medical Records Senior Clerk at the Mercy Hospital, confirming that she had undergone an operation on 26 August 1976 for a nasal septum deviation and puncture of a nasal sinus. The appellant said that she had been trying to make herself presentable and needed the operation to restore symmetry to her eyes. It was all as a result of the accident and therefore the Corporation should meet the costs. Mr Barnett, for the Corporation, presented submissions in writing. The entitlement to payment for treatment in a private hospital arises pursuant to the Supplementary Treatment Costs Regulations (No. 2) 1993 which came into force on 1 July 1993, replacing the earlier Supplementary Treatment Costs Regulations. Clause 5 of those Regulations provides that the payment for hospital treatment provided by a licensed hospital is permitted where it is a "necessary adjunct to treatment that has been approved" under the Specialists Costs Regulations (No. 2) 1990 which provide for the payment of specialist costs. Prior approval of the Corporation must be obtained before' payment can be made for surgery in a licensed hospital. Clause 11(2) of the Regulations provides that the Corporation shall not give its approval "unless it is satisfied that it is necessary for the due restoration of the claimant to his or her principal economic activity, or would enable the claimant to undertake remunerative employment ...". Clause 11(3) requires the Corporation to give 6 . approval to plastic surgical procedures provided the Corporation is satisfied ... "that without the completion of the procedure the claimant would not be able to participate in the normal social activities that might be expected for that claimant." Mr Barnett identified the issue as whether the surgery was either "necessary for the due restoration of the claimant to his or her principal economic activity or would enable the claimant to undertake remunerative employment", or "that without the completion of the procedure the claimant would not be able to participate in the normal social activities that might be expected for that claimant". Mr Barnett submitted that it was evident from the request signed by Dr Reese that the procedure was cosmetic in nature. Dr Reese could find little wrong with her vision. The surgery was not for the purpose of restoring any deficiency in the appellant's sight, nor did he certify that the surgery was necessary to restore the appellant to her principal economic activity, or that without the surgery she would not be able to participate in the normal social activities that might be expected of her. Dr Wardrope, a general practitioner, wrote in a note dated 22 April 1994 as follows:- "Her surgery was not just for cosmetic purposes." I agree with Mr Barnett that Dr Wardrope appears, however, to be referring to earlier surgery; the X-ray report enclosed of 13 September 1990 referring to injuries which were subsequently treated by surgery. 7. The appellant's evidence does not disclose that the procedures were necessary to restore her to her principal economic activity, nor does it disclose that without treatment she would be unable to participate in normal social activities. The essence of her appeal is that because the injury was caused by an accident, she is entitled as of right to the costs of any treatment associated with the injuries being covered. I agree with Mr Barnett that the appellant is entitled to treatment but the limits referred to here are on treatment in licensed private hospitals. The appeal is therefore dismissed. There will be no order for costs. Jane H. Lovell-Smith) District Court Judge