Lewis v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 122 /95 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 86195/ 0442 BETWEEN MATTHEW JOHN LEWIS Appellant (Appeal No. DCA 134/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of September 1995 APPEARANCES Mr T Mahon advocate for appellant Mr N Morrison for respondent DECISION OF JUDGE D A ONGLEY This appeal concerned the application of the schedule to the Accident Compensation (Radiologists Costs) Regulations 1990 as it applies to CT (computerised tomography) scans. The schedule states: 'CT. Computerised tomography - only for head injuries or spinal injuries or both and only on request by a registered specialist in respect of whom the Corporation is not prohibited from making a payment in respect of that treatment by Section 27B of the Act and with the prior approval of the Corporation. The Corporation shall not grant such approval unless: - 2 - (a) The application for approval specifies that the computerised tomography is for the purpose of determining whether to request treatment to which Part II of the Schedule to the Accident Rehabilitation and Compensation Insurance (Specialists Costs) Regulations (No. 2) 1990 (SR 1990/233) applies and is likely to be followed by a request for approval for such treatment; and (b) The Corporation is satisfied that if such a request were to be made approval for that treatment would be likely to be given." The schedule then goes on to list certain costs. The question in this case is whether the application specified that the computerised tomography was for the purpose stated in para (a) and was "likely to be followed by a request for such treatment". The application for approval was made by a letter of 30 March 1994 from Mr Talbot, orthopaedic surgeon. It was a short letter asking for permission to have the scan in a private hospital to avoid long delay in the public system. The letter did not refer to the likelihood of a request for approval of treatment, but in fairness to the claimant it should be read together with an earlier letter from Mr Talbot dated 27 October 1993. That letter was a report by Mr Talbot to P.I.B.A. Consultants in reply to a request for a permanent disability assessment. Mr Talbot referred to the appellant's difficulties with lifting which had interfered with his work as a furniture manufacturer and he mentioned the appellant's stated desire to get his back fixed rather than just to obtain more compensation. He then said: "I rather agree with the claimant. It would be far better if possible, to try to get a definite diagnosis and an improvement in his situation than just to go for more money from the ACC. I am always rather surprised when I see people like this who have never been seen by a specialist, and the first time they are seen by a specialist is when the said specialist is asked to assess them for a permanent disability lump sum payment. It sometimes puts me in a rather awkward position because I do not always feel that this sort of person is really necessarily permanently disabled, and at least I feel that he deserves further investigations. With Mr Lewis' left sciatica, I would question the possibility of a left sided lower lumbar disc prolapse. I think that he needs a CT scan. I am sending a copy of this report of Dr Phillip Gray with the suggestion that, if he was agreeable to it, Mr Lewis could be referred to a specialist of his own choice for further investigation and possible treatment. I would suggest that if a CT scan showed a definite disc prolapse, then proper treatment could be instituted and Mr Lewis' condition could possibly be improved. As far as recommending compensation under Section 78, I think we would be in a far stronger position to state that he needed Section 78 compensation if the CT scan was positive, and that is another reason why I would recommend a CT scan. I think that the ACC should be responsible for funding the scan bearing in mind that this man's symptoms are clearly the result of a personal injury by accident. However, if all else fails, he does actually have private medical insurance which would pay for a CT, so there is no financial reason why he should not ask Dr Gray for a referral to a specialist and then a CT scan I am not for the time being recommending a definite Section 78 lump sum, although this may well be needed in due course. I would recommend that you waited until he had had all the necessary investigations and treatment and then, when he was deemed to be in a final steady state and nothing else could be done for him, then would be the time to recommend a lump sum payment." - 3 - I have emphasised the parts of the report bearing on the likelihood of a request for approval of treatment. Although the report was addressed to P.I.B.A. Consultants, they in turn sent it to the Corporation under cover of a letter of 21 December 1993 advising the Corporation that Mr Lewis would be "attending his doctor in the near future in order to go through the correct channels to apply for a CT scan". The information was therefore given to the Corporation as an introduction to the orthopaedic surgeon's application and can properly be considered as part of the application. The Corporation declined to approve payment in a decision letter of 27 February 1995. The grounds for that decision were expressed as follows: "The criteria for reimbursement of a CT scan account is: 1. Prior approval is sought. 2. The "principal economic activity test" to assess Mr Lewis' inability to perform his job is met. 3. That surgery is a likely course of action and that surgery would be approved by the Corporation. 4. The CT scan be approved by the Corporation before the scan is done. 5. All 4 criteria must be met before reimbursement for the CT scan will be met." The schedule does not require that surgery is a likely course of action but only that a scan is likely to be followed by a request for approval for such treatment, the difference on its own is not material. Further, the schedule does not require that surgery would be approved, but that if a request were to be made approval of the treatment would be likely to be given. The differences are largely of emphasis but may well have led to the Corporation applying too strict a test. When declining the claim, the Corporation was almost certainly influenced by Dr Talbot's expressed opinion that if the CT scan was positive the lump sum compensation claim would be strengthened. That view was emphasised in an internal memorandum on 24 March 1995. Arguably that was no more than an observation that a scan would have an incidental benefit in diagnosing functional disability, but the substance of the surgeon's recommendation seems to have been contained in his reasons for carrying out a scan in order to determine a course of treatment. At the same time as the review was filed, P.I.B.A. Consultants made a further submission to the Corporation in a letter, enclosing some additional material. One enclosure was a letter of 27 October from Mr Talbot to P.I.B.A. Consultants referring to Mr Lewis and another patient, as follows: "I apologize for the fact that it seems on the surface as if I am employing delaying tactics concerning these men's Section 78 lump sums. However, both of them appear to me to have possible lower lumbar disc prolapses which have not been fully investigated. As you will see from my reports, I can not really regard them as being in a final steady state until all efforts have been made to investigate and treat them properly. I think that the least they each need is a CT scan. Even if the CT scan does show a disc prolapse, I doubt whether either of them would want surgical removal of the disc, but at least it would put - 4- us in a much stronger position to apply for Section 78 compensation, and would probably attract a lump sum of 10%. It is going to be a slightly involved procedure to try to get the CT scan paid for by ACC. I think the best way to do it is as I have done, by sending a copy of the report to the G.P. who can then approach the ACC requesting that they pay for a CT scan at St George's Hospital. Otherwise, the patient who has medical insurance could get it done privately, and the other one could get it done at the Public Hospital. I really do feel that we need CT's on both these people before they can be regarded as having been adequately investigated." The Review Officer placed some emphasis on that letter. She said that the letter from Mr Talbot dated 27 October 1993 indicated that the scan was not likely to be followed by a request for approval of treatment so she was not persuaded that there was any real likelihood that such a request would follow. If he word "likely" as used in the schedule is intended to mean probable, or more likely than not then I think the Review Officer's decision would have been correct, or at least it was a reasonable decision to reach on the evidence and should not be interfered with. The word "likely" often causes difficulty and its meaning can depend on context and intent. It has been held in a suitable context to mean that an event "could well happen" or was a "real risk", in decisions under s 167 of the Crimes Act 1961 in R v Gush [1980] 2 NZLR 92 and R v Piri [1987] 1 NZLR 66; also in a civil context when considering the interpretation of provisions of an insurance policy in Sinclair Horder v National Insurance [1992] 2 NZLR 706. I consider that is the meaning that the word "likely" is intended to have in this particular provision of the schedule of the Radiologists Costs Regulations. When considering approval of payment for a CT scan the likelihood of treatment is dependent on the results of the scan. It would be too high a test to require a claimant to prove that treatment was the likely outcome of a scan before the results were known. The purpose of the provisions in the schedule seems to be to prohibit payments by the Corporation when a scan is requested for purposes other than possible treatment. An example in point would be a request for a scan for the purpose of assessment of functional disability. If that was the only purpose of the scan then refusal of payment would have been correct. The Review Officer did not expressly define the test to be applied, but she said "I have not been persuaded that there was any real likelihood that a request for approval of treatment would follow the CT scan". That is consistent with either a test of probability, or a test of "real possibility" of the degree that was stated in the cases to which I have referred. I consider therefore that the question should be considered again on this appeal. The problem for the Corporation, and the Review Officer, was that the orthopaedic surgeon was quite open about his view of the benefit that a scan might have for the purpose of seeking a disability assessment. But of course that could have gone either way, the scan may have tended to indicate no functional disability. What in fact happened was that the scan was carried out during early November 1993 and in a letter of 4 November 1994 Mr Talbot stated: - 5- "I saw Matthew on 3. 1 1.94 for review in light of this scan. The scan clearly showed a unilateral left sided defect in the pars interarticularis of the 5th lumbar vertebra. There was no obvious displacement of the adjacent 5th lumbar nerve root, nor was there an associated disc prolapse. However, it is recognised that spondylolysis such as this can given rise to the symptoms such as Matthew describes. This is probably due to scar tissue around the bony defect which in turn irritates the adjacent nerve root. However, neither he nor I feel that his symptoms are sufficiently severe to make surgery a consideration." Finally, a further letter from Mr Talbot to P.I.B.A. Consultants, intended by way of clarification, was produced on the hearing of this appeal and was received as evidence. In that letter he said: 'The other point you wish me to clarify is the statement I made, 'even if the CT scan does show a disc prolapse, I doubt whether either of them would want surgical removal of the disc ..'. Attention must be drawn to the fact that I am referring to whether or not the patient wants surgery. I am not referring to whether or not I would advise surgery. Again, there are many precedents to illustrate this point. I see numerous patients who have a CT scan which shows a large disc prolapse, and I advise surgery, but the patient does not want it. Therefore, the ACC must realise the distinction between my advice and the patient's acceptance of it. I would regard the matter very differently if I had said that, even if the CT scan does show a disc prolapse I doubt whether I would recommend surgery. But I didn't say that. I merely reflected the patient's keeness to avoid surgery. If the CT scan had shown a large disc prolapse, I can categorically say that I would have advised surgery whether or not the patient wanted surgery. I hope this clarifies these two issues." It is consistent with the objectives of rehabilitation expressed in the Act that a contribution should be made by the Corporation to the cost of a CT scan when it is used in the course of diagnosis or treatment to determine whether surgical intervention is required. But if that was all that had been intended the schedule would more easily have been expressed in just that way. I am compelled to the view that the schedule was intended to impose a higher test and the specialist is required to indicate a likelihood, in the sense of a real possibility, that a condition exists requiring surgery. A mere investigation is not supported by the schedule. The difference in degree may be difficult to determine in many cases but it is up to the specialist to decide and, if appropriate, to specify the likelihood of a request for surgical costs. Mr Talbot consistently advised the carrying out of a CT scan. He advised a scan to investigate the possibility of a left sided lower lumbar disc prolapse. He considered that if a scan showed a prolapse then proper treatment could be instituted and the appellant's condition possibly improved. He was aware that the appellant preferred not to have surgery. Those considerations are no doubt common to nearly all cases where a disc prolapse is suspected. Mr Talbot commented that the patient would be unlikely to want surgical removal of the disc. As he said in his last letter, that reflected the patient's keeness to avoid surgery. I do not consider that a factor that alters the purpose of the proposed scan. The purpose of the scan was still to diagnose whether there was a condition that required surgical intervention and . 6 - enable the patient to make an informed decision whether to undergo surgery. I find that the material that the Corporation had did not in fact specify that a scan was likely to be followed by a further application. The further material that is now available does not alter the position. The purpose of a CT scan was only diagnostic and that alone is insufficient to permit the Corporation to make a payment under the schedule. The appeal is therefore dismissed. DATED at WELLINGTON this 25 day of October 1995 D A Ongley District Court Judge