K v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 3 /98 DCA No. 33/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MR K Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on the 26th day of August 1997 DATE OF DECISION: 27 + January 1998 COUNSEL: M G Colson for the respondent K W Reid for appellant DECISION OF JUDGE P F BARBER The Issue I am asked to decide whether the appellant is entitled to compensation for the cost of microepididymal sperm aspiration (MESA), intra-cytoplasmic sperm injection (ICSI) and in-vitro fertilisation (IVF). The appeal is lodged against a decision of a Review Officer dated 10 January 1997 which upheld a previous decision of the respondent dated 26 September 1996 declining the appellant's application for funding a MESA procedure. I am told that the sum involved is about $10,000. The appeal also relates to the complimentary procedure known as ICSI in respect of the appellant's wife to achieve conception of a child. 2 Non Publication Although there has been no application for a non-publication order, I consider that it is appropriate to protect the privacy of the appellant so that I forbid publication of the name, address or occupation of the appellant or of any particulars likely to lead to his identification. The Facts On 10 August 1988 K was seriously injured suffering a broken neck and a severed spinal cord resulting in tetraplegia. K applied to the respondent for payment for fertility treatment on 13 April 1994. That application was declined on 5 May 1994 on the ground that no provision existed under the current legislation for payment towards a fertilisation programme. On 2 August 1995 K and his wife consulted a doctor regarding fertilisation techniques and that doctor (a specialist in the field) recommended that the couple try either electro-ejaculation or MESA/ICSI and IVF. The appellant made a new application to the Corporation for payment in respect of either of these procedures. By letter of 23 August 1995 the respondent declined the application saying that the MESA/ICSI fertility treatment was not covered by the respondent's regulations so that it was unable to contribute towards the appellant's costs. The appellant requested that the matter be referred to the Health Reforms Section for a full reason for the respondent's declination 15 September 1995 an advisor from that section advised that MESA, ICSI, and IVF did not fall within the definition of "treatment" within the meaning of that word under the Act. By letter dated 26 September 1996 the respondent again declined the appellant's application on the grounds that the procedure is not covered by the Supplementary Treatment Costs Regulations as it does not come within the definition of "treatment". This matter proceeded to review where the Review Officer in a decision dated 10 January 1997 upheld the decision of the Corporation dated 26 September 1996 declining the appellant's application for funding for a MESA and ICSI procedure. At the review hearing the wife indicated that she was four months pregnant. The appellant had undergone MESA treatment earlier in 1996 and the wife had undergone ICSI treatment in August 1996. The Review Officer held that the respondent was not permitted to pay for the procedures which the appellant and his wife have undergone under either the Accident Compensation (Specialists Costs) Regulations (No 2) 1990 or s.26A of the Act. The Sections of the Act and Regulations Referred to by Counsel "26. Objective of social rehabilitation - (1) The objective of social rehabilitation is to restore the independence of a person to the extent that the person's independence has been lost by personal injury covered by this Act. 3 (2) In this Act, 'social rehabilitation' includes, without limitation, - ( a) Provision of, or payment for, attendant care; and ( 6 ) Purchase of, and modifications to, motor vehicles and other means of transport; and (c) Modifications to residential premises; and (d) Provision of, or payment for, household help; and ( e ) Provision of, or payment for, child care; and Provision of, or payment for, wheelchairs and any other aids and appliances likely to assist independence in daily living; and ( 8) Provision of, or payment for, teacher aides, teacher aide hours, and transport to or from school for a child requiring special assistance as the result of personal injury covered by this Act to enable the child to receive education". "26A. Provision of or payment for social rehabilitation - (1) Subject to subsection (2) of this section, the Corporation may make any provision or payment in respect of social rehabilitation that is required or permitted under this Act and that is consistent with the objective set out in s.26(1) of this Act. (2) The Corporation's power, under subsection (1) of this section, to provide or pay for social rehabilitation - (a) Is exercisable notwithstanding anything in any regulations made under this Act, subject to any direction of a type referred to in section 159(2) of this Act that is for the time being in force; and (6) Is exercisable subject to any direction of any other type for the time being in force under section 159 of this Act. (3) No payment in respect of any item referred to in section 26(2) of this Act may be made by the Corporation other than under this section or section 23 of this Act. (4 ) ..." "27. Treatment and physical rehabilitation - (1) The Corporation shall contribute to the cost of any treatment, service, physical rehabilitation, related transport, or certificate (in this section called a purchased service), in respect of personal injury that is covered by this Act, - (a) To the extent required or permitted by regulations made under this Act; or 4 (6 ) Pursuant to an agreement, contract, or arrangement entered into under section 29A of this Act ...." The Accident Compensation (Specialists Costs) Regulations (No 2) 1990 "5. Corporation may make payment if procedure not in Part II of Schedule - Where the only reason that the Corporation does not pay any costs under these regulations is that the procedure is not specified in Part II of the Schedule to these regulations, the Corporation may nevertheless pay those costs in accordance with the following rules: (a) The Corporation must be satisfied, before the procedure is performed and having sought the comments of the appropriate professional group for the specialty concerned, that the procedure is necessary and appropriate for the claimant, and is likely to be more effective than any procedure specified in Part II of the Schedule to these regulations; Regulation 3 of the above Regulations states that they apply "in respect of any treatment provided on or after the 15th day of October 1990 by a registered specialist to a claimant in respect of personal injury ..." Regulation 11 sets out conditions applying to payments for surgical procedures and Regs 11(1) and (2) read: "11. Conditions applying to payments for surgical procedures - (1) The Corporation shall not make any payment in respect of any procedure specified in Part II of the Schedule to these regulations unless - (a) The treatment is provided - (i) In a licensed hospital; or (ii) In the case of items marked in the Schedule with an asterisk (*), in the registered specialist's rooms; and (6 ) The prior approval of the Corporation to the performance of the procedure has been obtained. (2) Except as provided in subclause (3) of this regulation, the Corporation shall not give the approval referred to in subclause (1) of this regulation 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 remunerated employment that the treatment be provided." Reasons for Decision The first submission for the appellant is that payment should be made pursuant to s.26 and 26A of the Act. Section 26A is not restricted to payments made pursuant to the Regulations and the respondent may make any payment in respect of social rehabilitation provided it is "consistent with" the objective set out in s.26(1). If a 5 payment could be brought within s.26A there is no need for it to also come under a specific regulation. Counsel for the respondent submits that the treatment which the appellant has had is not part of "social rehabilitation" as it is not to restore the independence of the appellant (in terms of s.26). He submitted that the word "independence" must be read in the context of the inclusive definition appearing in s.26(2) and that the items included there clearly relate to restoring the independence of the person in the sense that allows the person not to be dependant on other people. However, I observe that the examples of "social rehabilitation" given in s.26(2) are prefaced as being inclusive and "without limitation". Counsel referred to such an interpretation of "independence" being consistent with that contained in the Concise Oxford Dictionary (7th Edition), namely: 1. Not depending on authority or control of; self governing .... 2. Not depending on something else for its validity, efficiency, value etc ..." Counsel for the respondent submitted that the treatment sought by the appellant is not to restore his independence; has not helped him become less dependant on other people; that, if anything, he may be more dependant on others as he now has a child (as well as himself) to help care for; so that in the context of s.26(2) it cannot be said that the treatment, for which the appellant wishes to be reimbursed, helped restore his independence as is necessary in terms of s.26(1). It would be easy enough to concur with the above rather conservative interpretation of ss.26 and 26A. However, it seems to me in terms of the general concepts of the Act, e.g. the right to rehabilitation (to the extent provided by the Act and enunciated in s.18) extending to enable a person lead as normal a life as possible having regard to the consequences of his or her personal injury, and in terms of the conception of life being a fundamental function of society, that the appellant's objective with his wife of conception of a child must be one of social rehabilitation. The only query is whether (also, in terms of s.26(1)) it is to restore the appellant's independence to the extent lost by his personal injury. I can accept that infertility can have great psychological and emotional effects, and that having a family is rehabilitating socially. In that context "social rehabilitation" includes under s.26(2) (but, "without limitation") attendant care, use of motor vehicles and residential premises, household help, childcare, wheelchairs and other aides and appliances likely to assist independence in daily living, and educational assistance for children. It is submitted for the respondent that these items relate to restoring the independence of the person in the sense that allows the person not to be dependant on other people. However, without the treatment now in question the appellant could not hope to father a child without some type of assistance. In other words, in that respect the appellant was dependant as an effect of the personal injury. Accordingly, the objective of the treatment restores independence in terms of s.26(1). Essentially, I take the view that the purpose and effect of the treatment undergone was to restore the appellant's independence in terms of social rehabilitation. 6 In my view, the appellant's situation comes within s.26(1) of the Act. "Rehabilitation" is defined in s.2 as "means a process of active change by which a person who has suffered personal injury regains or acquires and uses the skills necessary for optimal physical, mental, vocational, and social function". It seems to me that the procedures effected on the appellant to enable him to father a child again come within the meaning of "social rehabilitation" (used in ss.26 and 26A) and within the objective of that as enunciated in s.26(1) because they restore his independence by enabling him to father a child again. There, surely, cannot be any dispute that the fathering of a child is a normal social activity for the appellant. Social rehabilitation is not confined to the categories listed in s.26(2). Under s.26A(1) the respondent "may make any provision or payment" in respect of social rehabilitation "that is required or permitted under this Act". Section 26A(1) also requires any such payment to be consistent with the objective of restoration of independence enunciated in s.26(1) and I have already found that criterion to be complied with in this case. Section 26A(2) refers to the respondent's "power" under s.26A(1) to provide or pay for social rehabilitation, and to that power being exercisable "notwithstanding anything in any regulations made under this Act". While the situation of the appellant could have been covered more clearly, it seems to me that the respondent has power, between ss.26 and 26A of the Act, to pay the appellant's said claim and should do so. Accordingly, this appeal succeeds. In the alternative, the appellant relies on s.27 of the Act whereunder there is no discretion allowing the respondent to make payment beyond "(1) ... (a) ... the extent required or permitted by regulations made under this Act" or "(b) pursuant to an agreement, contract or arrangement entered into under section 29A of this Act". The appellant relied on the Accident Compensation (Specialists Costs) Regulations (No 2) 1990 ("the Regulations"). It is accepted by both parties that the procedure which has been performed on the appellant is not listed in Part II of the Schedule to those Regulations so that payment cannot be made under Reg 11 and should only be considered pursuant to Reg 5 set out above i.e. "that the procedure is necessary and appropriate for the claimant, and is likely to be more effective than any procedure specified in Part II of the Schedule to these regulations". In response to the submission for the appellant that the Corporation did not pay the expense in question because the procedure is not specified in Part II of the Schedule, counsel for the respondent raised two other reasons, namely, that the procedure which the appellant has undergone is not "treatment" because Reg 3 states that the Regulations only apply "in respect of any treatment ... by a registered specialist to a claimant in respect of personal injury ..." and that the procedure which the appellant underwent is not necessary to enable him to continue economic activity as required by Reg 11(2). In that latter respect I observe that the requirement of enabling continuance of economic activity would seem to only relate to procedures specified in Part II of the Schedule in terms of Reg 11 and not to payments under Reg 5. The definition of "treatment" in Miller-Keane's Encyclopedia and Dictionary of Medicine Nursing and Allied Health (4th Ed) at page 1523 is essentially the same as found in Dorland's Medical Dictionary (27th Ed) i.e. management and care of a patient or the combating of disease or disorder; except that in the Miller-Keane definition the two aims are separate, management and care of a patient or combating disease, whereas in Dorland they are merged in that the management and care of a patient must be for the purpose of combating disease or disorder. In Miller-Keane, treatment is subdivided into types and there is a reference to what is known as 'empiric treatment" as being "treatment by means that experience has proved to be beneficial". As the Review Officer noted, the Shorter Oxford English Dictionary definition of "treatment" is "management in the application of remedy; medical or surgical application of service". I agree with Mr Reid that the Act is remedial in nature and directed towards the needs and requirements of injured persons, so that a broad holistic definition should be applied to the concept of "treatment". The Review Officer held that the procedure which the appellant has undergone is "treatment", but it is submitted for the respondent that this is not correct and that in its ordinary context the word "treatment" must be directed to treating something i.e. the appellant's condition. It was further submitted for the respondent that if "treatment" were extended to the procedure carried out on the appellant, that would go well beyond what is needed to treat his condition; and that the procedure was not directed at the condition itself but at an effect of it. I could not agree with that reasoning. The procedure carried out on the appellant was to treat the disorder (caused by the personal injury) of being unable to undertake sexual intercourse, and, certainly, the fathering of a child. It was necessary in the appellant's case that there be an aspiration of sperm and its implantation in his wife to achieve the result of fathering a child. That procedure is clearly a "treatment" to overcome the disorder of a normal human social function. It is directed at the disorder and not merely at an effect of it. It was further submitted for the respondent that the word "treatment" must be read in the context of the items permitted to be paid for under the Regulations as set out in Part II of the Schedule; and that a consideration of these items (e.g. repair of liver rupture, swan neck correction, nerve grafts, total hip replacement) shows that the nature of the procedure carried out on the appellant is quite different from that intended by the Schedule. I would not place a restrictive interpretation on the effect of the items listed in the Schedule; however, there cannot be any dispute that the medical procedure now in question is not referred to in the Schedule to the Regulations In so far as Reg 11(2) requires that except as provided in subclause 3 of the Regulation there can be no approval under Reg 11(1) unless the treatment is necessary "for the due restoration of the claimant to his or her principal economic activity or would enable the claimant to undertake remunerated employment", I can only agree that the procedure which the appellant underwent is clearly not necessary to enable him to continue economic activity. Accordingly, even if the treatment came within Part II of the Schedule, the Corporation could not approve it by virtue of Reg 11(2). 8 I also agree with the submission for the respondent that in order for Reg 5 to apply (or, for that matter, Reg 11), the Corporation must give its prior approval to-the operation. In SPP -v- ARCIC (109/97) Judge Ongley was faced with a similar issue. An invoice for an operation was sent to the respondent while the claim for cover was still under consideration. Judge Ongley referred to Reg 11(1) and to the decision in Walsh -v- ARCIC 1 BACK 250 (H.C.) where Salmon J held that, in respect of Reg 11(1), there was no discretion to make a payment in respect of a procedure contained in Part II of the Schedule unless the Corporation had given its prior approval. It is a necessary prerequisite to payment for an operation pursuant to Reg 5 that the respondent is satisfied "before the procedure is performed" of the necessity and appropriateness of the procedure and this approval has not been sought nor given in this case. Accordingly, a payment cannot be made pursuant to Reg 5. Prior approval for the treatment or operation has not be given. Also, in order for the respondent to make a payment pursuant to Reg 5, it must be satisfied that the procedure "is likely to be more effective than any procedure specified in Part II of the Schedule to these regulations" (Reg 5(a)). This indicates that the true nature of a payment made pursuant to Reg 5 is for treatment which is similar to that outlined in Part II and which, for some reason, is not specifically included in Part II. It is to allow alternatives (either through changes in technology, medical knowledge or otherwise) to the list of specific procedures contained in Part II. I agree that the procedure now in issue does not comply with that requirement of Reg 5. Counsel for the respondent also referred to that part of Judge Imrie's decision in ABC 6 -V- ARCIC (243/95), Decision No 25/96 of 18 April 1996, that the word "treatment" extended to both the removal of sperm from the appellant and the placement of it into a female. He held: "Treatment is simply 'dealing with a person in order to relieve or cure, or 'management in the application of medical or surgical service'. The urological and gynaecological surgeons are providing treatment to the appellant for his infertility resulting from personal injury by accident and that involves treatment to the recipient of his sperm. The surgeons do not treat the appellant for his infertility just by removing his sperm." In Case ABC6, the respondent must have granted a prior approval under the Regulations for the cost of removing a man's sperm but refused to pay the cost of injecting it into the proposed female recipient. Counsel for the respondent sought to distinguish that case from the present but, whether that is done or not, I respectfully agree with Judge Imrie's view set out above of the concept of "treatment". I certainly agree that the second part of the procedure, namely, the injecting or implantation of the sperm within a female recipient, is part of the overall procedure as held by Judge Imrie in ABC 6 -v- ARCIC. There is no reason to limit the meaning of the word "treat" or "treatment" to cease at the point of aspiration of sperm and the words in the Regulation "treatment provided to the claimant in respect of personal injury by accident" must include the treatment to the recipient of the claimant's sperm. Accordingly, I also hold that both portions of the procedure must be funded in this case by the Corporation. 9 For the reasons given above, I accept that the appellant does not come within the Accident Compensation (Specialists Costs) Regulations (No 2) 1990 so that he cannot rely on s.27 of the Act. However, I have already found that his treatment must be funded by the respondent pursuant to ss.26 and 26A of the Act. In so far as the basis of the Corporation's original decision was that the appellant's aim of having a family is not "social rehabilitation" and, accordingly, did not come within the parameters of s.26 of the Act, I entirely disagree. Accordingly, the appeal is allowed. The appellant is entitled to compensation for the said treatment. Finally, I agree with Mr Reid that the concepts involved in this case are not straightforward and it was necessary for the appellant to employ counsel so that this seems an appropriate situation to award costs to the appellant. The matter of costs is reserved in the meantime, but I invite counsel to let me have written submissions on that aspect within 28 days of this decision, unless they can agree on matters and let me have a joint memorandum accordingly. Judge P F Barber District Court Judge dca33-97.doc(sh)