PE v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. /97 HELD AT WELLINGTON 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 BETWEEN PE Appellant (Appeal No. DCA 31/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of November 1996 Counsel: Appellant in person Dane Tui for respondent DECISION OF JUDGE D A ONGLEY This appeal relates to the refusal by the Corporation to pay for the cost of a form of hydrotherapy known as aquajogging, and for the cost of transport from the appellant's home to the Kilbirnie Aquatic Centre and return. The appellant is recovering from an accident on 26th June 1995 in which she suffered injuries to her wrist, hip, back and knee. She was referred by her general practitioner to a physiotherapist who in turn recommended that she use aquajogging as a means of recovering the flexibility and strength of her joints and limbs. The appellant has had some difficulty in obtaining a sensible explanation of the reason why the Corporation refuses her application for this form of compensation. She was - 2 - referred at some stage to s 27B of the Accident Rehabilitation and Compensation Insurance Act 1992 as an explanation for the refusal. The appellant dealt with that in her written submissions in the following manner: "I'm sorry but even with a degree in English - I apologise for having no qualifications in Law - and having trained as teacher, I cannot make head nor tail of what that clause is about. I do not believe my case officer could, either, and I have shown it to a Doctor of Philosophy, three civil engineers, two teachers, a lawyer and two forestry graduates and none of them was able to find the wood among the trees, and tell me why my request was turned down. I should be most grateful if someone could explain this to me." The appellant's observations might commend themselves to the law draughtsman. Fortunately, the Court is relieved of the difficulty which faced the appellant, because counsel for the respondent points to s 27 of the Act for the reasons why the respondent is unable to meet the appellant's claims. Within the scheme of the Act, the appellant's claim for compensation falls within the category of physical rehabilitation, as distinct from social or vocational rehabilitation. The categories of provision of social rehabilitation under the regulations do not assist the appellant, and she is not able to bring herself within the criteria for vocational rehabilitation which involve the provision under a rehabilitation plan which is cost effective for the Corporation in the case of persons entitled to compensation for loss of earnings. The difficulties that the appellant faces are not adequately covered by the Act. She has suffered a loss of prospective earnings because of her incapacity, but that is not a loss that is compensated by the Act. The appellant has submitted from her experience that aquajogging is a form of hydrotherapy ideally suited to the elderly or those for whom other water-based exercises are not so suitable because of the need to avoid jarring of joints. She has not encountered any view to the contrary and her view is reinforced by the recommendations of her physiotherapist and general practitioner. The appellant believes that she should have a right to vocational rehabilitation, notwithstanding her low weekly earnings just prior to the accident, because of the fluctuations and idiosyncrasies of her income from freelance acting work. She has always been hardworking and she intends to continue working so long as she is able, and so long as opportunities are offered to her. A period out of professional work will prejudice her opportunity of obtaining work in the future. For many reasons a speedy physical rehabilitation is extremely important to her and it cannot be denied that her physical rehabilitation is a worthy object of compensation. At the same time, she is grateful for the assistance of her case manager and for the benefits of attendant care that had assisted her in recovering from her accident. The appellant's particular problem is that she is unable to drive or to walk to the bus stop to get herself to the Kilbirnie pool without the expense of a return taxi fare, amounting to about $20 each time. The cost of entry to the pool is negligible. The appellant describes the facilities provided by the Aquatic Centre as of a high standard of cleanliness, accessibility and safety. She is unable to use other forms of exercise, particularly because of a weight-bearing weakness of her knee. Aquajogging is - 3 - performed using a buoyancy belt so that persons can exercise against the resistance of the water with the advantage of buoyancy. The Centre employs a number of attendants who are on duty throughout and provide protection and safety. Without a doubt the therapy is beneficial to the appellant who was recommended it by her physiotherapist and who has found it so useful that she has continued with it without a contribution from the Corporation. The point of the appeal is that the appellant considers that this form of therapy should be available to herself and others without being defeated by regulatory limitations which, to her, make little sense. Mr Tui referred to s 27 of the Act which defines "specified services", generally including services by way of treatment or physical rehabilitation of an injured person and related transport (so far as they are relevant to this case). Under s 27(1) the Corporation shall contribute to the cost to the extent required or permitted by regulations made under the Act. Therefore, it is necessary to resort to the regulations to find what service the Corporation is required to contribute to. The relevant regulations are the Referred Treatments Costs Regulations SR1990/242. Regulation 4 of those regulations only obliges the Corporation to pay the costs of treatment provided by a "treatment provider", which under reg 2 includes a physiotherapist but does not include a service such as the Kilbirnie Aquatic Centre. Incidentally, the payment for treatment is limited by reg 5 to not more than 24 occasions for one patient in respect of the same claim, unless there is further authorisation for up to 12 additional occasions. Those regulations do not help the appellant. Another possible avenue is provided in s 27(2) of the Act which enables the minister to purchase specified services. For a claimant to have access to a service such as that offered by the Kilbirnie Aquatic Centre, it appears that there would first have to be an agreement under s 27(2)(b) whereby the Corporation purchases the services and makes them available to persons with cover under the Act. Counsel for the Corporation indicated that there had been a pilot programme in relation to another provider of hydrotherapy. The details do not matter, the point being that the appellant in this case has not had the opportunity of accessing services of that kind, and is unlikely to be offered that opportunity in the short term. Transport costs cannot be provided by the Corporation except where they are linked with a service provided for rehabilitation under an appropriate part of the Act. The combined force of these provisions defeats the appellant's claim for rehabilitation and for the cost of transport. It is not surprising that the appellant is concerned that she and others are denied the benefit of a form of treatment recommended by medical professionals, and which is both cheap and effective. Her purpose is to achieve physical rehabilitation as soon as possible so that she can take advantage of any opportunities for work that are offered to her. The treatment could be said to be cost effective for her, but it is not cost effective for the Corporation because her weekly earnings prior to the accident were depressed, and the Corporation does not have any significant obligation in respect of her weekly compensation. It would be difficult to demonstrate that the treatment would be cost effective for the Corporation under the heading of vocational rehabilitation. The broad aspects of cover under the Act have not been advanced in argument by the respondent because the appeal turns on a narrow point of interpretation of the Act and Regulations thereunder. It is inappropriate for the Court therefore to comment on the effectiveness of the Act in achieving the object of equitable rehabilitation and compensation, but the concerns of the appellant are worthy of note and they are recorded. Regrettably the appeal must be, and is, dismissed. DATED at WELLINGTON this 23rd day of January 1997 D A Ongley District Court Judge