Stansfield v Accident Rehabilitation and Compensation Insurance Corporation

-::Dec\S t CV""\ \JO ' . 4 '--\ Vn-t IN THE DISTRICT COURT DCA No. 162/93 HELD AT AUCKLAND UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND REVIEW NO. .49 / 93 / 1658 IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN PATRICIA STANSFIELD APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Hearing: 16 August 1994 Date of Decision: 31 t\.1.-tj--K,r 1994 Counsel: Appellant in person A.D. Barnett for respondent RESERVED DECISION OF JUDGE R.L. KERR Background to appeal: Ms Stansfield suffered personal injury by accident on 13 August 1992. She filed a claim on 27 September 1992 in which she described the injury as:- "Tripped over filing cabinet at work and knocked mouth. 11 2. On 13 October 1992 the Corporation through Richard Duckworth, Registration Centre Manager, wrote to Ms Stansfield. I set out the letter in full:- (1 13 October 1992 Ms P Stan.Sfield H4050790/001 19 Cbatham Ave Mt Albert 1003 111111111111a11 Dear Ms Stansfield Confirmation of Cover Letter. Injury 13 August 1992 We have considered your application for cover which was submitted through your doctor on your behalf. We accept that you have cover for the following injury: Dental Injuries Face The number noted at the top of this letter is your reference for this injury. It should be noted on any correspondence which is sent to our Branch Offices, and quoted to your · · treatment provider. . If in future you require compensation for this injury, you will need to complete an application form before payment can be considered. Specific forms for this are available from any Branch Office. Also, Client Liaison Officers are available at each Branch Office to provide any advice which you may require. If there is anything which you claim for which cannot be paid in full, we will write to you and explain why you are not entitled to the full amOllllt claimed. If you receive any written decision which you are not satisfied with, you may apply for that decision to be reviewed. The application for review must be in writing using a specific fonn which is available at any Branch Office. All applications for review must be received within three months of the date of the decision letter. Yours sincerely ----------------- ------ --- ·--·- -----·· - . . .. Richard Duckworth Registration Centre Manager ACCIDENT REHABlUTATION & COMPENSATION INSURANCE CORPORATION . . . . . ..... : ............ .... . . . . . . . . . . . . . . 000613 3. Following receipt of that letter, Ms Stansfield undertook treatment for the dental injury sustained by her. Various dental work was carried on behalf of Ms Stansfield including bridge work. The work was carried out by two dentists, one of whom was an oral surgeon. They were Dr Nelson, Dr Churton. Dr Petoe administered anaesthetic. It does not seem that any of those treating Ms Stansfield advised her it was necessary to obtain the approval of the Corporation for the treatment prior to the treatment being undertaken. The letter of 10 October, does not indicate as far as Ms Stansfield is concerned that she need obtain the approval of the Corporation prior to undertaking treatment. The law: Payment for specialist dental treatment is provided for by the Accident Compensation (Dental Specialists Costs) Regulations (No. 2) 1990. Regulation I l (1) requires the prior approval of the Corporation to the performance of dental work except in circumstances which do not apply in' this case. The partial acrylic plate, which was inserted as a temporary measure does not appear in the Schedule to the Regulations. However, the Corporation may approve payment for such treatment pursuant to Regulation 4. 5, provided it is satisfied before the procedure is performed that the treatment should be undertaken. Ms Stansfield was also obliged to have anaesthetic. Under the Accident Compensation (Anaesthetists Costs) Regulations 1990 the Corporation is not to make any payment unless the treatment is provided as a necessary adjunct treatment under the Dental Specialists Costs Regulations. (See Regulation 10). The anaesthetic was given as an adjunct to the treatment undertaken by Ms Stansfield, but that treatment had not been approved by the Corporation and therefore it follows, that the cost of the anaesthetic cannot be approved for payment by the Corporation either. Conclusion: In Thomas v Accident Rehabilitation and Compensation Insurance Corporation (District Court, Auckland, DCA 102/93, 3 May 1994) I was obliged to deal with a very similar appeal. Miss Thomas suffered a similar injury to that sustained by Ms Stansfield. :Miss Thomas received a letter in exactly the same terms as received by Ms Stansfield. Miss Thomas undertook dental treatment without the prior approval of the Corporation. I repeat what I said in that particular decision:- "When that letter (equivalent to the letter of 13 October 1992) is considered the following appears:- !. The Corporation accepted that Miss Thomas had cover for 'dental injuries face'. 5. 2. If Miss Thomas required compensation for the injury (compensation not being defined) all she needed to do was to complete an application form before payment was considered. 3. If there was anything claimed by Miss Thomas which could not be paid in full, she would be written to and an explanation would be given as to why she was not entitled to the full amount claimed. On the face of it, without any knowledge of the Accident Compensation (Dental Specialists Costs) Regulations (NQi. 2) 1990, or attention being drawn to those Regulations, a person in Miss Thomas' position, in my view, could well be trapped into believing (as I find she was) that she might have orthodontic work carried out without referring the matter further to the Corporation, and claiming subsequently for the cost of that work. It was certainly known to the Corporation as at 6 October 1992, when regard is had to Miss Abernethy's submissions that further orthodontic work would be required. In my view, the Corporation through its employee, Richard Duckworth, was negligent in writing the letter of 10 December 1992. It may be that Dr Wallbridge, was also negligent in not advising Miss Thomas of the need for prior approval, but I have not heard from him, he is not a party to the appeal and I can make no finding to that effect. It is possible therefore, that Miss Thomas may be able to sue the Corporation at common law, for the negligent advice contained in the letter of 10 December 1992. It is possible that Miss Thomas may be able to sue Dr Wallbridge for carrying out treatment, which the doctor knew or ought to have known was probably payable by accident compensation without first obtaining approval from the Corporation. 6. If Miss Thomas chose to sue, then the amount she would undoubtedly claim, would be the cost of the orthodontic work." An almost exactly the same situation pertains to Ms Stansfield. I consider the Corporation was negligent in forwarding Ms Stansfield the letter of 13 October 1992, without warning her, that she would need to obtain approval before undertaking any dental treatment. Mr Barnett, for the Corporation, indicates that the comments I made in Thomas, are being considered by the Corporation, but it is very difficult for the Corporation to advise any claimant of what that claimant has to do in regard to an accepted claim. If that is the attitude of the Corporation, one can only assume insufficient thought is being given to the contents of a letter such as that of 13 October. One would have thought, all that needed to be included in the letter of 13 October 1992, was a statement to the effect that, prior to the injured person undertaking treatment, the person should approach the appropriate Corporation office, in order to discuss what ought to be done. With the various officers available at the Corporation supposedly to assist injured people, one would think, that such an indication would then enable such an officer to advise an injured person what approvals need to be obtained when enquiry was made. If such a statement was contained in a Corporation letter, but no approach was made to the Corporation by the injured person then at least the injured person has been advised of the necessity to make further enqmry. I have not, of course, heard from any of the doctors involved m treating Ms Stansfield. It appears clear, however, if regard is had to Ms Stansfield' s case and to that of Miss Thomas, that in 1992 (at least) dental surgeons seemed to be lacking in knowledge as to the necessity for prior 7. approval being obtained from the Corporation before undertaking treatment of injured people. One can only hope that by communication from the Corporation to dental surgeons and/or their Association of the need to obtain prior approval before treating accident victims, dental surgeons now obtain approval from the Corporation before undertaking treatment. Conclusion: In my view, what has happened to Ms Stansfield is quite unfair. She was the victim of an accident, she suffered injury, the Corporation accepted liability, but she now is obliged to pay for her own treatment because of regulations which contain no discretion in favour of the Corporation, to approve treatment after it has been undertaken. As I said in the Thomas decision, it may be in view of the letter of 13 October 1992, that the Corporation, if it is able to, should make an ex gratia payment to Ms Stansfield. A copy of the Thomas decision is to be forwarded to Ms Stansfield. Ms Stansfield is entitled to $25 travel costs. ell (R.L. Kerr) District Court Judge