Sainty v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. 8 ['/2009 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 210/07) BETWEEN MARGARET SAINTY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 3 March 2009 Appearances: Mr I S Young-Gough for appellant Mr A D Barnett for respondent Judgment: 22 July 2009 RESERVED JUDGMENT OF JUDGED A ONGLEY FOLLOWING RECALL OF JUDGMENT OF 19 MAY 2009 [1] This judgment is issued after recall of a judgment dated 19 May 2009. The judgment is in the same terms up to paragraph [14] after which the reasons for recall are explained. The result of the judgment is unchanged but the reasons are expanded in relation to an argument concerning the effect of the Health Practitioners Competence Assurance Act 2003 and consequent amendments to the Accident Insurance Act 1998 and the Injury Prevention, Rehabilitation, and Compensation Act 2001. [2] This appeal concerns the Corporation's refusal to pay for treatment costs where the provider was not shown to be a treatment provider as defined by the Accident Insurance Act 1998. There is also a question about whether the appellant was entitled to a deemed decision in the appellant's favour when the Corporation did not make a timely decision on the application for treatment cost. [3] Mrs Sainty has cover for a shoulder injury. She wrote to the Corporation on 1 October 2001 advising that she had discussed the injury and treatment with a magnetic laser therapist, Dr Tatiana Volkov and that she wished to engaged in weekly treatment for her injured shoulder. She wrote "if it is also necessary to request your prior approval I wish to make that request now and would appreciate your reply as soon as possible". . Correspondence followed in which the Corporation asked for further particulars of the accident, while the request concerning laser treatment funding was apparently overlooked or ignored. [4] Dr Volkov provided treatment from October 2001 to April 2003 at a claimed cost of $5,295. The Corporation declined payment on the grounds that laser therapy is not an ACC recognised treatment and has no therapeutic efficacy, and that Dr Volkov was not on the medical register. The letter also noted that Dr Volkov had no contract with ACC. The decision declining funding followed a series of unanswered requests from Mrs Sainty to the Corporation asking for a reply to her original application made in October 2001. The last of those was on 8 March 2006 when Mrs Sainty asked the Corporation to pay the costs that she had by then incurred for the laser treatment. The Corporation replied on 29 March 2006 declining the requested funding. [5] The Corporation requires prior approval to qualify for payment of non-acute surgery costs. This treatment was apparently classified as surgery. However, the requirement for prior approval is not central to this decision. [6] The appellant submitted that the Corporation was bound by a decision deemed to have been made in favour of the claim, under s 66 of the 1998 Act that was then in force. Mr Barnett for the respondent submitted that the appellant's letter was so lacking in detail that it did not constitute a claim and could only be regarded as a preliminary enquiry. If cover were to be given in terms of the letter, it would be a blank cheque for treatment unsupported by any verification as to its nature or usefulness and would be beyond the authority of the Corporation. It is clear enough that a deemed decision cannot confer on a claimant a benefit that the Corporation was not empowered to grant. I respectfully adopt what His Honour Judge Cadenhead said in Govind (372/04) after referring to Cooper (304/01) and Cooper v ACC (High Court, Dunedin, AP 9/02, 13 September 2002, John Hansen J) as follows: . . . .... . [31] After considering the these decisions I extract the following principles: [a] A deemed decision had to be considered in the context that the claim was made [b] The decision in some cases would mean that cover had been accepted. [c] However, a deemed decision could not override a statutory requirement, where entitlements were sought. [d] In those cases, where a statute laid down necessary requirements as a condition precedent, then the effect of the deemed decision is to have the claim considered to see if those requirements have been met. [e] A deemed decision cannot fictionally create a power, where no such power existed: the Corporation cannot be required to act ultra vires. [f] The effect of a deemed decision is not to create a windfall in favour of a claimant. [7] The other submission by the respondent was that the cost of treatment that the Corporation was able to pay was limited by clause 2 of Schedule 1 of the Accident Insurance Act 1998 to treatment of a type normally provided by a treatment provider that normally provides that kind of treatment. A treatment provider was defined in the Act as follows: treatment provider - O a) Means an acupuncturist, audiologist, chiropractor, counsellor, dentist, laboratory technician, nurse, occupational therapist, optometrist, osteopath, physiotherapist, podiatrist, registered medical practitioner, or speech therapist; and b) Includes a member of any occupational group included in the definition of treatment provider by regulations made under section 399: [8] The provisions were carried forward in the 2001 Act in similar terms. There is no evidence that Dr Volkov was a registered medical practitioner. None of the other designations are applicable. It is clear that she was not a treatment provider as described in the legislation and therefore the treatment cost was not able to be met by the Corporation. [9] In this appeal, Mrs Sainty provided Mr Young-Gough with a folio of submissions that were directed to matters such as the effectiveness of laser treatment, its acceptance by medical practitioners, the possible cost-effectiveness compared with other treatments and the need for treatment at a time of acute symptoms. The submissions also addressed the Corporation's failure to reply to repeated requests for approval, ambiguity in advice given by the Corporation, and extraordinary delays. In particular, the appellant noted that the Corporation had funded Dr Volkov for laser therapy in other cases, and had also funded another provider for laser therapy. [10] The appeal was to be argued on a broad basis, but Mr Young-Gough was unable to refer to legislation or other authority in answer to the respondent's central submission that the provider was not within the statutory description of a treatment provider. [11] There may well be other circumstances in which the treatment could have been funded, perhaps by agreement under an individual rehabilitation plan, however standing alone as a treatment funding application there is no statutory power which would enable the Court to make a decision in favour of the claim. [12] Neither can it be regarded as a decision deemed by delay to have been made in favour of the claim. Deemed decisions are obtainable only on applications that comply with the formal requirements of the statute, and provide clear information to describe a valid and specific claim that meets the requirement of the Act. A claimant cannot otherwise obtain the advantage of the statutory sanction that prevents the Corporation denying a claim if it fails to respond within time limits to a correctly lodged claim. [13] In those circumstances, I do not think that it is appropriate to consider or comment upon the appellant's arguments about failures by the Corporation in responding to her application, or in providing clear advice and effective rehabilitation. The appeal is limited to a narrow ground. If there is a case for consideration of breach of the Claimant Code of Rights that is outside the scope of the appeal. [14] At the end of the hearing, I indicated that time would be allowed for further representations in case Mr Young-Gough was able to find any evidence or any regulatory provision that would bring Dr Volkov within the ambit of a treatment provider, or that would otherwise provide authority for the Corporation to have granted the application. [15] The purpose of reserving leave was confined to the point mentioned, that is to say whether there was any evidence or legislative provision that would bring the appellant within the ambit of a treatment provider. In fact some further submissions had been filed but I omitted to consider them in my judgment. The appellant then applied for the judgment to be recalled. [16] The additional material referred to was the effect s 5 of the Health Practitioners Competence Assurance Act 2003. This Act came into force on 18 September 2004. It contained a new definition of "health practitioner" including practitioners registered with an authority as a practitioner of a particular health profession. The appellant was apparently so registered. Section 5 provided for consequential amendments to the Accident Insurance Act 1998, so that: health practitioner - (a) means a person who is, or who is deemed to be, registered with an authority established or continued by section 114 of the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) as a practitioner of the profession of medicine [17] These amendments were made for transitional purposes even though the 1998 Act had by then been repealed. The amendments applied to questions to be decided under the 2001 Act by reference to the terms of the repealed 1998 Act. Similar amendments were made to the 2001 Act which came into force on 1 April 2002, but which contained the same definitions for present purposes until it was amended with effect on 18 September 2004. [18] Throughout the time of the appellant's claim for treatment expenses from 2001 to 2003, clause 2 of Schedule 1 of the 1998 Act had defined the Corporation's liability for the cost of treatment: (d) is of a type normally provided by a treatment provider; and (e) is provided by a treatment provider of a type that normally provides that treatment. Followed by the almost identical provisions in Clause 2 of the 2001 Schedule: d) is of a type normally provided by a treatment provider; and e) is provided by a treatment provider of a type who is qualified to provide that treatment and who normally provides that treatment; and [19] The definition of "treatment provider" in the 1998 Act was as set out in paragraph [7] of this judgment and the same definition was repeated in the 2001 Act until amendment in September 2004. It had referred to a "registered medical practitioner", but the amendment changed the definition to the new expanded meaning of a "medical practitioner" with the same meaning as a "health practitioner" under the new legislation. [20] The definition prior to amendment could not include the appellant's profession of laser therapy, but the amendments following the Health Practitioners Competence Assurance Act 2003 extended the definitions to include other registered health professionals. [21] The barrier to recovery of the cost is that the treatment involved in the present appeal was provided for the period from October 2001 to April 2003 during which the former definitions applied. [22] During that time, the Corporation did not issue a decision. The respondent's position is that no treatment claim had actually been formulated and a decision was not required. That is a retrospective position, though there seems to have been no justification at the time for the Corporation simply ignoring the appellant's request for funding. Leaving that aside, the decision that was eventually given in 2006 related to a period before to the relevant amendments. The ground for the Corporation's decision declining the claim was that the treatment was not given by a treatment provider. That is still the case because the amendment had no effect before 18 September 2004. The fact that a decision declining the claim was not made until 2006 does not change that. [23] The material filed with the Court after the hearing traverses arguments that were advanced in the papers provided at the hearing. Those questions were (a) whether the therapy was required for an acute condition, (b) whether the Corporation misled the appellant concerning whether prior approval was required, (c) whether the appellant did in fact seek prior approval, (d) whether the Corporation should have recognised the value of laser therapy, (e) whether it had funded laser therapy in other cases, (f) cost effectiveness, (g) whether laser therapists should be accorded equal recognition with other recognised health professionals (h) the Corporation's responsibility for delay, and (i) whether assistance is to be gained from an Appeal Authority decision of Pope v ACC (273/93). Apart from the last, there appears to be some substance in all of those submissions, but the respondent is not required to answer them in the context of this appeal. The Corporation was not liable to fund laser therapy before September 2004, unless it assumed liability for example under a rehabilitation plan. [24] The only post-hearing material that should have been considered in the recalled judgment but was not, was the submission relating to the statutory amendments. Apart from that, I accept that the Court does not take an overly technical approach to receiving submissions and if the post-hearing material had contained significant information or argument it would ordinarily have been considered. I have considered the material generally and find nothing that alters the basis for judgment. [25] The appeal is therefore dismissed. Judge D A Ongley District Court Judge