Byrne v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 51/ 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN NOELINE ANNE BYRNE of Whitianga Appellant (Appeal No. DCA 200/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of March 1997 APPEARANCES Appellant in person T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the appellant's entitlement to reimbursement of transport costs for attendance for daily pain relief injections. The appellant suffered an injury to her back in October 1994 which exacerbated a previous accident related lower back condition. She lived on the outskirts of Hamilton and obtained pain relief treatment from Dr Searle of the Accident and Medical Centre situated in Hamilton. The appellant had been a patient of Dr Searle prior to her first consultation on 19 October 1994 for pain relief for her back injury. It appears that the respondent paid for the appellant's attendance at the Accident and Medical Centre until she submitted an account dated 4 October 1995 claiming a refund of travel expenses in respect of 54 visits detailed on a certificate from Accident 2 and Medical Centre. It appears that each visit from her home involved a distance of 16 kilometres. The respondent considered the application and declined to meet the full claim because there was a medical centre within 2.2 kilometres of the appellant's home. The respondent advised the appellant on 10 November 1995 that it would only meet travel expenses based on a journey of 2.2 kilometres rather than the previous payments based on 16 kilometres. This decision was based on the provisions of regulation 6(4) of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment Service or Physical Rehabilitation) Regulations 1992. The appellant applied for a review of that decision. At the review hearing the appellant explained to the Review Officer that she had been a patient of Dr Searle's prior to the accident and that so far as she was aware, he was the only doctor certified by the Health Department to treat her with the quantity of narcotics required to relieve her pain. She said also that the Accident and Medical Centre was open 24 hours per day when Dr Searle always made himself available when she called. She said that it was necessary for her to call sometimes two or three times per day for pain relief and that as other medical centres were not open 24 hours per day she continued to seek her treatment with Dr Searle. She said that she considered that if she was not able to continue the treatment with Dr Searle the consequences could be horrific and she could suffer tremendous pain. The appellant arranged for Dr Searle to provide a report to her solicitors regarding the treatment and that letter dated 7 February 1996 states: "Noeline was already a patient of mine when she consulted me at 6 pm on the 19th October 1994, having twisted her back again. She required Intravenous Injections of Morphine and Diazepam. Over the following week she remained in severe pain and required frequent injections daily of pain relief, including over the weekend. Mrs Byrne was involved in a car accident 20 years ago when her Vertebrae in her lower back were compressed, she has had problems with her back since then. In 1987 she underwent a Lumbar Laminectomy because of constant pain. She was good for 18 months, but now over the last 5 or 6 years she has had frequent back problems. The injury in October 1994 started a deterioration that has continued until now. She has been seen by several Orthopaedic Surgeons which all agree that surgery is not an option for her. She has also seen the Pain Clinic at Waikato Hospital who tried her on several pain cocktails eventually settling with regular slow release Morphine tablets. They tried other pain treatments such Epidural injections which did not help. Her long term prognosis is that her back will not fully recover but hopefully she will have further periods of remission. Over the past 15 months she has continued however to require daily Morphine for pain relief. She has preferred to see me at the Accident & Medical Centre due to our availability after hours and in the weekends. She has been a very difficult patient 3 to manage and has felt that I have an understanding of her situation. For long periods at a time she has required daily injections of high doses of medication as she developes (sic) a rapid tolerance to these drugs. The intensity of pain she experiences is extreme. She ends up requiring doses which a Doctor who does not know her would be reluctant to give her. At times she has been in extreme pain after hours and would certainly not wait till a later time. On several occasions I have been called in to the clinic to treat her. At times treatment has required large dose injection and her lying on a bed in the clinic for many hours prior to trying to move her again. The main reason Noeline attends this clinic as opposed to her nearest GP is our availability to attend to her after hours. The treatment I have given her under the guidance of the Pain Clinic, many Doctors would not be prepared to give, but I cannot comment on whether the nearest Doctor to her would be prepared to manage her or not." In her decision the Review Officer referred to the decisions in Warren v ARCIC (8/95) and Hei v ARCIC (142/95). The decision in Warren related to an appellant who had attended his own General Practitioner rather than the nearest medical centre because that appellant considered only his General Practitioner had the correct knowledge of his background problems. In that case the Court held that there was no discretion under the Regulations and the appeal was dismissed. In Hei the Court allowed travel expenses for the appellant to visit a chiropractor in another city although there was a local chiropractor. The decision was based on the fact that the medical evidence indicated that the chiropractor in the other city was able to offer the particular chiropractor techniques required by the claimant. The Court held that the nearest place where "the treatment" was able to be provided was in the other city and not with the local chiropractor. The Review Officer distinguished Hei on the grounds that that appeal referred to technique and treatment as opposed to service and that what this appellant received was treatment as well as service. The Review Officer considered that on that basis there was no discretion and that the respondent was therefore only obliged to pay for travel to the nearest treatment provider. The appellant has appealed against that decision. The appellant provided me with a letter from Dr Searle which is dated 1 March 1997 and states: "Mrs Byrne had already been a patient of mine for a year when she injured her lower back on 19 October 1994. I had been treating this injury for a year upto the above dates, during which time her condition had fluctuated from stable to severe. During November 95 her state was severe, with near uncontrollable pain and unable to walk. The only relief working, after trying all kinds of medication and physiotherapy, was large injections of Morphine for pain and Midazolam which is an anaesthetic drug for sedation and muscle relaxation. Over most of this period her state remained severe and injections were required most days. She attended the clinic upto three times a day and I made many house calls also. Of the 122 visits to the clinic recorded over this period, 41 of these were out of hours, weekends or Public Holidays. She was moving to Whitianga in March 96. During Feb her condition was stabilizing but it took a lot of effort to wean her from the injections and on to Morphine tablets. Her back problems continued for another year and she continued to see me for treatment and overall management despite needing to travel from Whitianga and I presume high toll charges from frequent telephone calls for advice on how to adjust her medication depending on her condition. I understand this report is for travel claims to the clinic and am aware of the regulations regarding treatment from the nearest available provider. However in her defence I would say that Mrs Byrne has been one of the most difficult patients I've had to manage longterm and it was a great asset to her in her treatment to be able to see the same doctor continually and at any time necessary." The appellant submitted that she was concerned that while the respondent had made reimbursements of her claims up until its notification she was then denied the cost of travel to the only doctor whom she considered was able to provide her necessary treatment for 24 hours per day. Mr Cleary submitted that the provisions of regulation 6(4) are clear and that the respondent's liability extends only so far as transport costs to the nearest place with treatment is able to be provided whether or not the claimant attends that clinic. He submitted that the treatment received by this appellant is intravenous pain relief provided on a consultation by consultation basis which in his opinion could be provided by any other practitioner. He submitted further that there was no evidence to suggest that the treatment was unavailable at the clinic nearest to the appellant's home. He submitted further that there was no evidence to support the appellant's claim that Dr Searle was the only doctor who had a clearance from the Health Department to provide the course of treatment which she received. In relation to the decision in Hei this appeal was clearly distinguishable on the facts in that in Hei there was evidence from the specialist that the specific techniques of chiropractor practice was unavailable in Dargaville, her home town. Mr Cleary submitted that there is no evidence that the intravenous drug therapy provided this appellant was unavailable at the nearest clinic. Mr Cleary submitted further that the word treatment does not import an element of subjectivity into the regulations. He submitted further that the word treatment is to be contrasted with service and that the appellant may not have received such dedicated service closer to home but there is no evidence that she would not receive intravenous pain relief. However, Mr Cleary conceded that to the extent, that treatment was not available during the night at the nearest clinic, the respondent would accept that the cost of those 5 particular journeys for those particular occasions on which treatment was required during the night. Regulation 6(4) states: "The Corporation or exempt employer shall not be liable to make any payment under this regulation for a journey longer than the journey from the place of commencement to the nearest place where the treatment is able to be provided (whether or not it is provided to the claimant at that place)." I have also noted a letter on the file from Dr Carpenter at Health Waikato Pain Clinic dated 24 September 1995 to Dr Searle regarding the treatment he was providing for the appellant. In the context of this appeal I consider that Dr Carpenter's letter to Dr Searle is relevant and for the record it states: "Further to our phone conversation last week, let me simply recap. I saw Mrs Byrne last Monday at your request, mainly I think because you are uneasy at her consumption of narcotic at present. Her present flare of pain began ten days ago as she was getting of the imaging table after a radionucleotide stress angiography test, to investigate recent chest pain. Following this rather awkward manoeuvre she developed increasingly severe low back pain, muscle spasm, and has been having daily injections at your hands since then. Mrs Byrne is aware that the medical powers that be are concerned at your use of IV narcotics for her, and that you want advice regarding this. She is extremely supportive of you, telling me that you are the only one that has relieved her pain, and given her a life. She tells me that her episodes of severe pain generally settle over 1-2 weeks of daily injections, and then she is able to function pretty normally, on a tapering dose of MST until a further trivial strain or twist weeks or months later will precipitate the next episode of severe muscle spasm, requiring once again daily IV narcotics. Both she and her husband are aware of a knot of muscle which bunches tight beside her lumbar spine when her pain is bad. This is extremely hard and very, very tender. She is sleeping terribly at present, and her husband tells me he daren't roll over in bed for fear of aggravating her pain. I saw her in January, and suggested she try taking some Doxepin to help with sleep. She tells me that this was no good, but she can't remember why. She had a laminectomy many years ago at the hands of Mr MacDonald in Rotorua, and had a year or two's good relief following this. When I saw her in January she was very keen to pursue a surgical option once again, however in the intervening months she has seen both Mr Cowley and Margaret Fairhurst, neither of whom would operate, for in her words fear of "putting her in a wheelchair". She has not bothered to see Mr MacDonald in Rotorua again, she accepts that two orthopaedic surgeons' advice is probably representative. She has seen many physiotherapists, who won't touch her, likewise a chiropractor who showed her the door. The only one who has been able to help her is Dr Searle, and he is being pressured. Both she and her husband wish to know what Dr Carpenter has to offer. Let me put in writing my comments over the phone the other day. I suggested that you should stop treating her with IV narcotics, and increase her MST to cover the daily dose of IV Morphine, thus, to 210 mg bd. This should be tapered 6 rapidly to a dose that you are comfortable with. The MST might be best dispensed daily. You should be pretty explicit with her about the limits to narcotic doses. I hope this is of some use to you. Good luck." I consider that the facts of this case are quite different from those in Warren. In this case the appellant is in need of a specialist service, recommended and monitored by the pain clinic and provided as required on a 24 hour basis by Dr Searle while Warren made the choice to attend his own General Practitioner merely because he had always gone to him and not for a specific form of treatment. I consider that the facts of this appeal bring it within the guidelines set out in Hei. While I accept Mr Cleary's submission that it is not open to any particular claimant to choose the doctor of his or her choice and then to seek reimbursement of travel costs if it is beyond the distance to the nearest available place where the treatment is able to be provided. The circumstances which I consider take this appellant into the same position as the appellant in Hei is that the particular treatment she requires commenced at the place where she was already undertaking treatment and at a place where she requires to have 24 hour service. While Mr Cleary has submitted that any other medical facility could provide intravenous drug treatment during the course of the normal working day, I consider that this appellant's position is far more serious than that, particularly in the light of the fact that she had been assisted by the Pain Clinic and Dr Carpenter from that facility had given Dr Searle specific information as to the manner in which her treatment should be administered. I do not consider that it would be appropriate at the time when the respondent made its decision to then require the appellant to arrange for treatment at the facility nearest her home while it was open and then in the case of a late night emergency to have to present herself to the Accident and Medical Centre. I consider that in these circumstances "the treatment" was the treatment being provided by Dr Searle under the specific guidance from the Pain Clinic and for that reason I consider that it is appropriate that the travel costs for the period in question should be reimbursed in full by the respondent. I understand that the appellant has now moved to Whitianga so that the issue does not arise since her move out of Hamilton As the appellant came to Hamilton from Whitianga for the purpose of attending the appeal the respondent is to refund the cost of travel from Whitianga to Hamilton and return. The appeal is allowed. DATED at WELLINGTON this /471 day of April 1997 buenadubi A W Middleton District Court Judge dc200-96.doc (nr)