Gardner v Accident Rehabilitation and Compensation Insurance Corporation

Decision No: 49/94 IN THE DISTRICT COURT DCA No. 137/93 HELD AT AUCKLAND UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 73- 083 3 AND IN THE MA TIER of an appeal pursuant to 39 Section 91 of the Act BETWEEN PATRICIA IRIS GARDNER APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Hearing: 18 August 1994 Date of Decision: 21 September l G\°\4 Counsel: Mrs Gardner and her husband in person Pauline J. Zumbach for respondent RESERVED DECISION OF JUDGE R.L. KERR Background to the appeal:_ Mrs Gardner first sustained an injury in December 1980. That was to a leg. In 1982 she suffered an injury to her arm and subsequently she suffered medical misadventure, during surgery to her b_ack when endeavours 2. were being made to repair the vessels in her arm. At that stage a swab was left in her. There can be no doubt, that Mrs Gardner has sustained appalling injuries and will continue to suffer from them. When the first injury occurred, Mrs Gardner lived at Waitomo. Her general practitioner and the specialists looking after her were in Hamilton. She attended Te Kuiti Hospital and Waikato Hospital on a frequent basis, and the respondent regularly contributed to travel costs from Waitomo to Hamilton for treatment. At about the end of 1992, Mrs Gardner moved from Waitomo to Takanini near Auckland. Takanini is closer to Hamilton than Waitomo. However, she continued to use her general practitioner and her specialists in Hamilton. She did this, because of those doctors' knowledge of her and the relationship as doctor and patient, she had established with them. Obviously, Mrs Gardner has trust and faith in her Hamilton doctors and wishes to continue using their services. On 26 April 1993 the Te Kuiti office of the Corporation, wrote to Mrs Gardner. The letter said among other things:- "Following our recent telephone conversation, I wish to advise that as you are not returning to reside in this area your files will be transferred to our office in Papakura. . . . The Corporation will reimburse you mileage for your visit to the specialist in Hamilton for re-assessment on 17. 05. 93. 3. However, under current legislation, reimbursement of transport costs in relation to treatment can only be paid to _the 'nearest treatment centre'. This means that the Corporation will no longer be able to reimburse you costs for travelling to your doctor in Hamilton. I fully understand your reasons for wanting to continue being treated by your current doctor. However, the Corporation must work within the bounds of the legislation . ... " Mrs Gardner applied for review of that decision. The grounds for review probably detailed by her general practitioner were as follows:- "Mrs Gardner 'cannot change GP because (1) The patient's long and involved history known to medical practitioner. (2) Local hospital and specialists managmg illness appropriately. (3) Likely to cause increased medical and ACC if transferred to Auckland. ( 4) Patient would need to go through a long process of building up trust with new set of ACC officials and doctors.'" The matter was heard by a Review Officer and on 14 September 1993, the Review Officer identified Regulation 6 of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, or Physical Rehabilitation) Regulations 1992. The Review Officer concluded that the Regulation was clear and if treatment was able to be provided by a 4. general practitioner, closer to where Mrs Gardner resided, then the Corporation could not pay for a longer journey. The law: It 1s necessary to consider the Accident Rehabilitation and Compensation Insurance Act 1992 (the Act) and the Transport Regulations. Section 27 in its relevant part provides as follows:- "27. Treatment and physical rehabilitation - (1) Where a person requires any treatment, service, physical rehabilitation, related transport, or certificate in respect of that person's personal injury that is covered by this Act (in this section called a 'specified service'), the Corporation shall contribute to the cost of that specified service to the extent required or permitted by Regulations made under this Act." (Emphasis added). The Corporation, is obliged to contribute to the cost of transport, but only to the extent permitted by Regulations. The Transport Regulations apply to applications for payment of costs of transport to undertake treatment, on or after 1 July 1992 (Regulation 3). Regulation 6 is quite stark, as far as the Corporation's liability is, concerned. I set out the Regulation in full and then deal with the matters it raises. "6. Other transport - (1) Subject to these Regulations, where a claimant requires transport for treatment for personal injury that is not emergency transport by air or emergency transport by 5. ambulance, the Corporation ... shall contribute to the costs incurred by the claimant - (a) An amount equivalent to the lowest fare payable for the journey on whichever is the cheapest of any available scheduled public transport; or (b) Where there is no scheduled public transport, an amount calculated at the rate of 50 cents per kilometre - irrespective of the means of transport actually adopted by the claimant. (2) Notwithstanding subclause (l)(a) of this Regulation, if the cheapest scheduled public transport is not appropriate because of the condition of the claimant resulting from personal injury and is not used, the Corporation ... shall contribute to the costs incurred at the rate specified in subclause (l)(b) of this Regulation if that contribution would be greater than that payable under subclause (l)(a) of this Regulation. (3) The Corporation shall not ... make any payment under this Regulation unless (a) The journey is of at least 20 kilometres from the commencement point to the nearest place where the treatment is able to be provided and the journey takes place within fourteen days after the personal injury was suffered; or (b) The claimant becomes entitled under subclause (1) of this Regulation to payments in excess of $40 in respect of transport that occurred during the calendar month in which the transport for which payment is sought occurred. (4) The Corporation . .. 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). 6. (5) The Corporation . . . shall be liable for an actual return journey to the place of commencement on the same basis and to the same extent (if any) as it is liable for the journey from the place of commencement. (6) Payments under this Regulation shall be made only to the claimant. (7) Where the claimant does not present for the treatment to which the transport relates, no amount shall be payable under this Regulation unless the journey is undertaken and the failure to present for treatment was beyond the control of the claimant." In summary Regulation 6 provides:- 1. The Corporation is to be liable for the costs of transport equivalent to the lowest public transport available, or if no such public transport is available, to 50 cents per kilometre. 2. If the cheapest public transport is not appropriate because of the condition of the claimant, then the Corporation will pay at the rate of 50 cents per kilometre. 3. The Corporation shall not be liable to make any payment for a journey longer than the journey from the place of commencement to the nearest. place where the treatment is able to be provided. The appellant's case: I have already in effect summarised the appellant's case. I repeat it, however, because it is quite clear, the appellant (and understandably) because 7. of the injuries she has sustained and the relationship she has built up with her medical advisers in Hamilton, is reluctant to endeavour to establish new relationships in Auckland. Mrs Gardner has indicated, that she was prepared to contribute to the cost of travel. I should mention, that Mrs Gardner handed to me a letter from Glen Marshall, a Barrister of Hamilton, and I have taken that letter into account. The Review Officer, at p.4 of his decision, says m relation to Regulation 6(4) of the Transport Regulations:- "In my view, the Regulation is clear it means that if treatment is able to be provided, in this case by another closer general practitioner, then the Corporation cannot pay for the longer journey. The inclusion of the words 'whether or not it is provided to the claimant at that place' clearly indicate that if a patient chooses to receive treatment from a different, more geographically distant treatment provider, then the cost of doing so must be borne by that person and not the Corporation. I have been unable to find any policy statement to the contrary." On the face of it what is stated by the Review Officer is correct, but in my view, he has ignored the corollary to Regulation 6(4), namely, that the Corporation shall be liable to make any payment under the Regulation for a journey from the place of commencement to the n _ earest place where treatment is able to be provided. The words in brackets in R 6(4), (whether or not it is provided to the claimant at that place), in my view, indicate that the Corporation is liable to pay to a claimant the cost of travel from where the claimant lives to where the nearest treatment can be provided. 8. Conclusion: I am satisfied, that the Corporation is not obliged to pay travelling expenses to Mrs Gardner for her attendance at her general practitioners in Hamilton twice a month. But the Corporation is liable to pay travelling expenses from where Mrs Gardner lives to a general practitioner in Takanini who would be able to treat Mrs Gardner. Such travelling expenses ought to be at the rate of 50 cents per kilometre, as it seems to me Mrs Gardner is likely to be a person who would have difficulty in travelling by public transport, and it may be doubtful that public transport of the cheapest type would be available in Takanini. Mrs Gardner can use the travelling expenses Present to visit a Takanini general practitioner to assist in travelling to Hamilton. In addition, for the visits that Mrs Gardner is obliged to pay to her specialist two or three times per year, the Corporation should reimburse Mrs Gardner on the basis that she was visiting a specialist in Epsom. The name of the specialists are contained in Miss Zumbach's submissions. Again, an amount of 50 cents per kilometre would seem to be appropriate. I do not know distances from where Mrs Gardner lives to either a close by general practitioner, or Epsom, where specialists reside. No doubt those distances can be ascertained. My finding is subject, however, to Regulation 6(3)(b). Regulation 6(1) mak es it mandatory for the Corporation to contribute to travelling costs _ incurred by a claimant. But Regulation 6(3)(b) provides:- 9. "The Corporation shall not . . . make any payment under this Regulation unless (b) The claimant becomes entitled under subclause (1) of this Regulation to payments in excess of $40 in respect of transport that occurred during the calendar month in which the transport for which payment is sought occurred." Accordingly, the Corporation is not liable to pay, unless Mrs Gardner incurs travelling expenses worth more than $40 in any month. It may be that the distance from Mrs Gardner's home to a Takanini General Practitioner or to an Epsom specialist does not equate to an excess of $40. It will be for the Corporation to determine. I have had regard to Ward v Accident Rehabilitation and Compensation Insurance Corporation (District Court, Rotorua, DCA 200/93, (Decision 23/94), 27 May 1994 - Judge A.W. Middleton) and to McPhee v Accident Compensation Corporation (Dunedin, ACA 658/92, (Decision 54/94), 25 February 1994 - Mr P.J. Cartwright) but I do not find that either decision assists me. For the reasons I have set out Mrs Gardner may succeed (but to a limited extent with her appeal). She is entitled to travelling expenses of $25. (R.L. Kerr) District Court Judge