Firmin v Accident Compensation Corporation

IN THE DISTRICT COURT Decision No/ 8| 2009 HELD AT PALMERSTON NORTH IN THE MATTER of the Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN PETER JOHN FIRMIN (Al 567/08) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at PALMERSTON NORTH on 10 September 2009 APPEARANCES Mr H C S McDouall and Mr R Butler, Advocates for appellant. Ms A Douglass, Counsel for Respondent. DECISION OF JUDGE M J BEATTIE [1] This is an appeal from a review decision dated 4 April 2007. As a preliminary matter there was a question of whether or not the appellant had lodged his notice of appeal from that review decision within the 28 day period allowed. 2] I have considered a letter of 5 February 2009 from the Registry in relation to that appeal and it seems as though the probability is that the appeal was first lodged within the 28 days, at the time an appeal from another decision was lodged, but was not separately identified at the time. The first notice of appeal which is now on the file is dated 19 April 2007. [3] Even if the appeal were to be shown to have been lodged out of time, I find there is no valid reason for not exercising my discretion to allow an extension of time in the circumstances. 567.08 (pg) 2 [4] The issue in the appeal is whether the respondent has correctly determined and paid the appellant's entitlement for transport to treatment costs. [5] The appellant had lodged 49 separate claims for reimbursement of transport costs relating to transport for treatment going back to 1990. [6] The respondent issued its primary decision on 12 February 2007 identifying the amount to be reimbursed to the appellant as being $1,363.26, and it provided a 9-page spreadsheet identifying how that sum was made up in relation to the various claims that the appellant had made. [7] When the matter came on for hearing by way of appeal from that decision the appellant's advocate indicated that the appellant was now only questioning the respondent's decision in relation to three travel claims, being identified as Claim Numbers 13, 16 and 21 in the respondent's spreadsheet [8] The reasons given by the respondent for declining those claims were given respectively as follows: 1. Claim 13. "Medical Certificate issued by Dr Moore in Wanganui showing your address as Nydia Bay. There is no evidence of travel to Wanganui for this consult." 2. Claim 16. "Medical Certificate issued by Dr Moore in Wanganui. There is no evidence of travel from Maori Bay to Wanganui for this consult." 3. Claim 21. "Medical Certificate issued by Dr Moore in Wanganui showing your address as Maori Bay. There is no evidence of travel to Wanganui for this consult." [9] Dr Moore was the appellant's long-time family doctor and he continued to consult him from time to time despite the appellant having moved to live in the Marlborough Sounds. [10] In a letter dated 3 September 2009, Dr Moore has attempted to explain his continuing contact with the appellant over the years and in particular he refers to the fact that the appellant consulted him on two occasions that he returned to home in Wanganui to attend the funerals of two of his uncles. [11] The appellant indicated that he returned to Wanganui in September 1993 for his Uncle Arthur's funeral, and again in October 1994 for his Uncle Philip's funeral. [12] These two dates coincide reasonably with claims made for travel to treatment, and in the wider scheme of things, I am prepared to accept on the balance of 3 probabilities that an entitlement does arise in relation to Claims No. 16 and 21, where the travel dates do coincide with the dates of those two funerals. [13] The Court has received no evidence in relation to the March 1993 travel claim, and there is certainly nothing in Dr Moore's letter which would confirm a consultation by him at that time. [14] Accordingly, I find and rule that the appellant is entitled to reimbursement of travel costs using the same formula for those costs as was allowed for claims for travel that had been met in relation to Claims Nos. 16 and 21, and this appeal is allowed to that extent. [15] I allow the appellant the sum of $500 costs, together with any qualifying disbursements. DATED this 22 day of October 2009 leather M J . Beattie District Court Judge