Nishiyama v Accident Compensation Corporation

IN THE DISTRICT COURT AT PALMERSTON NORTH [2016] NZACC 50 ACR 152/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN MASARU NISHIYAMA Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 10 February 2016 Appearances: The appellant in person L Hawes-Gandar for the respondent Judgment: 29 February 2016 RESERVED JUDGMENT OF JUDGE L G POWELL [1] The appellant, Masaru Nishiyama, has cover for a treatment injury suffered in 2010. [2] On 26 August 2013 Mr Nishiyama went to his general practitioner, Dr Barend Nieuwoudt of the Palms Health and Wellness Centre in Palmerston North, to receive treatment for his injury. According to Mr Nishiyama he had previously asked the Corporation for assistance in how to avoid paying a surcharge to his doctor over and above the amount covered by the Corporation and was told that the only way to avoid a surcharge was to get his doctor to reduce his fee. Mr Nishiyama had discussions with Dr Nieuwoudt's practice about a reduction in the fee to be charged and thought he had eliminated any surcharge when he received two invoices following the consultation with Dr Nieuwoudt. The first invoice showed that there was no charge for the consultation while the second only included a $16.00 "prescription fee". In Mr Nishiyama's view this meant that Dr Nieuwoudt had reduced his total fee to $16.00 which Mr Nishiyama could then get reimbursed by the Corporation. In fact Dr Nieuwoudt had generated three invoices for the consultation, one for the Corporation for the maximum amount the Corporation was liable to pay for a single consultation pursuant to the Accident Compensation (Liability to Pay or Contribute to Cost of Treatment) Regulations 2003 ("Cost of Treatment Regulations"), as well as the two invoices addressed to Mr Nishiyama. Why Dr Nieuwoudt issued two invoices to Mr Nishiyama for the consultation is not clear but it is not disputed that all three invoices were in respect of a single consultation on 23 August 2013, and it is also clear that the Corporation paid the amount invoiced by Dr Nieuwoudt which, as noted, was the maximum for which the Corporation was liable under the Cost of Treatment Regulations. [3] As a result when Mr Nishiyama sought reimbursement of the $16.00 invoiced by Dr Nieuwoudt for the "prescription fee" the Corporation by decision dated 18 March 2014 declined to pay, and after receiving further correspondence with Mr Nishiyama by letter of 2 October 2013 elaborated the reason for this as follows: On making further enquiries with Radius Medical - The Palms, I have been informed that your visit with Dr Ben Nieuwoudt on 23 August 2013 incurred a discounted General Practitioner Consultation fee for a script of $50.86. As set out by ACC Regulations, ACC was charged direct $34.86 for your visit, and therefore the balance of $16 was the surcharge fee which is the patient's responsibility to pay. I was informed that normally a full GP consultation charge of $68.86 would apply, meaning ACC would be charged $34.86 and leaving a surcharge of $34 to pay, but in your case on this occasion a discounted consultation/script fee was charged of $50.86 only, leaving the $6 surcharge to pay. As indicated in [an earlier letter], ACC is liable to pay or contribute the cost of a claimant's treatment for personal injury for which the claimant has cover to the extent that is required or permitted by regulations. ACC has no control over what a GP's practice charges their patients. [4] The Corporation's decision was upheld at review and Mr Nishiyama has now appealed. Discussion and Analysis [5] It is quite clear that in terms of the Cost of Treatment Regulations in force at the time Mr Nishiyama saw Dr Nieuwoudt on 23 August 2013 the Corporation had a maximum liability for a single consultation of $30.31 plus GST, being a total of $34.86, and this amount was paid by the Corporation in this case. Pursuant to s 68(2) of the Act the Corporation can provide entitlements "only to the extent required by this Act", and while s 68(3) of the Act does enable to Corporation to exercise a discretion in some circumstances to go beyond that which it is liable to provide, the present case is not one of those. Any amount over $34.86 invoiced by the provider, Dr Nieuwoudt was therefore a surcharge which the Corporation was not liable to pay, and instead it was for Mr Nishiyama to pay the balance charged by Dr Nieuwoudt. [6] This conclusion effectively disposes of the appeal. For completeness I note if Mr Nishiyama genuinely believed that Dr Nieuwoudt had in fact reduced the total fee for the consultation to $16.00 so as to theoretically allow Mr Nishiyama to be reimbursed by the Corporation, then that is a matter for Mr Nishiyama and Dr Nieuwoudt. In my view this must be regarded as unlikely given it would not be usual for the Corporation to reimburse a claimant directly in this manner, nor would there be any good reason for Dr Nieuwoudt or his medical practice to reduce its fee below that which the Corporation was liable to pay to a provider for a single consultation. Instead it seems far more likely that what occurred was as set out in the Corporation's letter of 2 October 2013, that the provider did reduce its fee to Mr Nishiyama but did not eliminate the surcharge completely, leaving Mr Nishiyama with $16.00 still to pay. Regardless of the position between Mr Nishiyama and Dr Nieuwoudt however I am quite satisfied that the Corporation has complied fully with its statutory obligations, and the appeal must be dismissed. Decision [7] The appeal is dismissed. I have given considerable thought as to whether it would be appropriate to award costs against Mr Nishiyama in respect of this appeal, given the minimal amount at issue and the fact that the Corporation had clearly explained to Mr Nishiyama why it could not reimburse him. Ultimately however having heard Mr Nishiyama at the appeal I accept he had a genuine, if misguided, belief that he was entitled to be reimbursed by the Corporation and that to a certain extent the clear parameters around payment for treatment providers were, in this case, somewhat lost in translation. [8] Accordingly there is no issue as to costs. Judge L G Powell District Court Judge Solicitors: McBride Davenport James, Wellington, for the respondent ACR 152-14-Nishiyama