Wells v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NELSON Decision No. 41 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 78-93.0692 section 91 of the Act BETWEEN RICHARD WILLIAM LEFEVRE WELLS of Nelson Appellant (Appeal No. DCA 126/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 1st day of February 1995 APPEARANCES C D Batt for appellant N Morrison for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the decision of the respondent declining to contribute towards the costs of a helicopter used to fly the appellant from the Mt Robert ski field following a knee injury which occurred on 5 July 1992. The appellant had been skiing at the Mt Robert field which is approximately 1.5 hours good walk from the place where motor vehicles must be parked. It appears from the evidence that it is a private ski field with limited facilities. When the accident occurred the appellant was fortunate that a doctor was on the field and was able to suture his wound, but he had to stay at the field overnight and the following day the condition of his knee was such that it was impossible for him to return to the parking area in order to be conveyed out for further treatment. On 7 July the appellant's companions were able to arrange for a helicopter flight to pick up the appellant to return home to Nelson. The appellant applied for reimbursement of the costs of $1,027.13. On 9 March 1993 the respondent advised the appellant that because his claim did not fit the criteria contained in the regulations pertaining to transport costs, it was not able to pay his helicopter costs. The appellant applied for a review of that decision. The pertinent regulation is regulation 4 of the Accident Rehabilitation and Compensation Insurance (Costs of Transport Related to Treatment, Service, or Physical Rehabilitation) Regulations 1992 which states: "4. Emergency transport by air - [(1) Subject to these regulations, the Corporation or exempt employer shall contribute to the costs of emergency transport by air for treatment of a claimant for personal injury, the lesser of - (a) The amount charged to the Crown, the regional health authority, or licensed hospital for the emergency transport; or ( 6 ) The amount that would have been charged to the Crown, the regional health authority, or licensed hospital for the emergency transport if the transport had been provided for the claimant in respect of a condition that was not personal injury.] (2) The Corporation shall not (and an exempt employer may decline to) make any payment under these regulations in respect of emergency transport by air of a claimant for treatment unless that transport had been provided at the request of a member of the Police or an ambulance operator. (3) No payment shall be made under this regulation where a claimant has died before the emergency transport reaches the claimant." It appears that by the time the matter came to the Review Hearing the appellant acknowledged that the transport by helicopter had not been provided at the request of a member of Police or an ambulance operator, although it had been at the request of a medical practitioner. In addition, regulation 2 of the regulations requires that the transport must commence within 24 hours of the personal injury and in this case the appellant could not bring himself within that time limit. The Review Officer declined the application for review on the basis of the time limit and the requirement that the request be made by the Police or an ambulance operator. The appellant had also argued that the provisions of the regulations did not apply because they provided that they were to come into force on the day following notification in the Gazette which would have been 24 July 1992. The appellant argued that this regulation took precedence over regulation (3) which purported to make the regulations apply retrospectively to any application for costs of 3 transport undertaken on or after 1 July 1992. The Review Officer rejected this submission. In the appeal Ms Batt relied only on the question that the regulations did not come into force until 24 July 1992. She submitted that as regulation 2 provides that the regulations are to come into force on the day after the day of their notification in the Gazette, which was the 23rd of July 1992, then the regulations come into force on the 24th of July 1992. She submitted that as this regulation came before regulation 3 which states: "Subject to these regulations, this regulation shall apply in respect of an application for payment of costs of transport undertaken on or after the Ist day of July 1992 for treatment" it should take precedence over the subsequent regulation 3. She submitted that it was objectionable to have retrospective regulations and that if there was any ambiguity it should be construed in favour of the appellant. She submitted that on this basis the appellant was then entitled to cover under the provisions of the Accident Compensation Act 1982 and that authorisation by a doctor would then entitle the appellant to reimbursement of the helicopter fees. Mr Morrison conceded that the regulations were notified in the gazette on 23 July 1992 with the result that regulation 1(2) meant that the regulations came into force on 24 July 1992. He submitted, however, that regulation 1(2) must be read in conjunction with regulation 3 which is expressed in its terms that the regulations shall apply in respect of any application made after 1 July 1992. He submitted that while the appellant has argued that regulation 3 is subject to regulation 1, regulation 3 states that it is to be "subject to these regulations" and it is for that reason that regulation 3 is retrospective. He submitted that it was clearly the intention that because the regulations may not have been Gazetted by the time the Act came into force on 1 July 1992, a gap in entitlement had to be remedied and accordingly regulation 3 was incorporated. While it has always been considered that retrospective legislation is undesirable and should be avoided, I accept Mr Morrison's submission that it was specifically included because of time restraints involved in the preparation of the regulations and therefore necessary to bridge the gap in entitlement which would otherwise have occurred. Accordingly the appeal is dismissed. I consider that I should also make some observation regarding the regulations as publicity has been given to the fact that all the regulations under the Act are being reconsidered. I accept Ms Batt's submission that it is unfair and objectionable that the regulations should be retrospective and that this is an issue which has been the subject of comment over the years. As I had not previously had reason to consider these particular Regulations the matters which I consider the Authorities should consider when the Review is undertaken are: 1. The requirement that no payment will be made for emergency transport by air unless it has been made at the request of a member of the Police or an ambulance officer. I consider that in the circumstances in which this type of transport is required, there is often neither a policeman nor an ambulance operator available when the decision is to be made. Perhaps any new regulations could provide a discretion to the Corporation to permit it to meet the costs of the transportation where it is necessary to provide for the evacuation of an injured person from an inaccessible place or to be urgently transported for medical attention. 2. The time restriction placed on an applicant for emergency transport may be unreasonable and again a discretion on the part of the Corporation may overcome this problem. 3. I consider that it is objectionable to include regulation 4(3) which states: "No payment shall be made under this regulation where a claimant has died before the emergency transport reaches the claimant." Does this provision mean that the provider of emergency transport is to enquire as to an injured party's then health status and possibly decline to provide the transport if it appears that the injured party may die before the transport reaches that person? If it is necessary to call for emergency transport should the provider of the transport be required to take proceedings against the estate of the injured person if that person has had the misfortune to die between the time the emergency transport has left its depot and reached the injured party? I make these observations in the hope that any new regulations which issue as a result of the review will be less strict and will include discretions which will enable the Corporation to settle each case on its merits. DATED at WELLINGTON this It day of February 1995 A W Middleton District Court Judge dc126-93.doc(mh)