J v Accident Rehabilitation and Compensation Insurance Corporation

Decision No : 42/94 IN THE DISTRICT COURT DCA No. 1---0 j e-; 3 HELD AT \VELLINGTON BETWEEN S. JULIAN APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Place of Hearing: Hamilton Date of Hearing: 15 June 1994 Date of Decision: 1ct August t"lt:i1..r Counsel: Mr H. Julian for the appellant A. Fawcett for the respondent RESERVED DECISION OF JUDGE J.W. Th1RIE I have decided that the appellant and the respondent should be given the opportunity to make further submissions on the point I set out at the end of this decision. Introduction: This is a claim for the costs of counselling received by the appellant in Hawaii. (In the interests of the appellant's privacy I set out in this decision only the information that is relevant to it.) 2. In August 1985 the appellant suffered "personal injury by accident" within the meaning of those words as used in the Act. Towards the end of 1989 or the beginning of 1990 she moved with her family to Hawaii where she is now resident. In 11arch 1991 the appellant said she would like to make claims for counselling costs if possible. In 11arch 1993 she advised that she wished to pursue compensation for past and present medical bills relating to her claim. In a letter dated 18 April 1993 the Corporation advised it was unable to pay for treatment for the appellant's counselling. The letter read (in part):- "The Corporation is specifically excluded from paying for treatment to persons outside New Zealand under s. 88(2) of the 1992 Act." "No payment shall be made under this Act in respect of any treatment, service, rehabilitation or related transport costs incurred outside New Zealand unless required or permitted by regulations made under this Act." "To contribute to the cost of counselling, the Counselling Costs Regulations state that the Corporation can only pay for counselling by an ACC approved counsellor and the claimant must be referred by a NZ Registered Medical Practitioner." "The Corporation is therefore unable to contribute to your treatment costs while you are living outside New Zealand." A review hearing took place on 18 May 1993. :Mr Julian, who is the appellant's grandfather, attended the hearing and gave evidence. The 3. decision issued on 11 June 1993 dealt with a number of matters. The one with which this appeal is concerned relates to counselling expenses of $NZ40,308 incurred after 1 July 1992. With regard to those costs the decision reads:- "With regards to the counselling expenses incurred after 1 July 1992, the Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992 state that counselling must be an ACC approved counsellor and the person receiving counselling must have been referred by a New Zealand Registered Medical Practitioner. Clearly the counselling Miss Julian has received from the 1 July 1992 until now has not been from an ACC approved counsellor and thus the Corporation cannot pay for this counselling." "To summarise therefore:- ... 3. Costs of counselling 1 July 1993 to date cannot be met by the Corporation." The year 1993 should be 1992. At the hearing of the appeal on 15 June !\fr Julian made submissions in support of the appeal. :Mr Fawcett presented written submissions for the. respondent. I am grateful for the thoroughness of those submissions. There are many letters and reports on the file. I have considered them but it is not necessary to refer to any of them in this decision. 4. Consideration: The counselling in question has been provided by Neal Anzai, M.D. of the Kapiolani :t-.1edical Center for Women and Children. There is on the file a letter from him dated January 19, 1994. Attached to the letter is his curriculum vitae. His present positions are listed as:- :t.1edica1 Director, Kapiolani Counselling Center Director, Eating Disorders Clinic at the Center Chair, Department of Psychiatry at the Center Assistant Professor of Psychiatry Chair, Systems Task Force Member, Psychiatry Executive Committee, John A. Burns School of Medicine, University of Hawaii Private practice of psychiatry His curriculum vitae also gives details of his education, previous positions, professional memberships and areas of special expertise and advanced training. His qualifications and ability as a counsellor are not questioned by the Corporation. Section 88 deals with payments outside New Zealand. Section 88(2) reads:- "(2) No payment shall be made under this Act in respect of any treatment, service, rehabilitation or re lated transport costs 5. incurred outside New Zealand unless required or permitted by regulations made under this Act. 11 There are two sets of regulations to consider. The Accident Compensation (Psychiatrists, Psychological, and Psychotherapists Costs) Regulations 1990 which came into force on 15 October 1990, were in force up to 1 October 1992 when they were replaced by the Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992. I will deal with the 1990 Regulations first. 1990 Regulations: Regulation 5(1) reads:- "Corporation to pay certain costs - (1) Subject to these regulations, the Corporation shall pay in respect of any treatment provided by a psychiatrist, psychologist, or psychotherapist to any claimant in respect of personal injury by accident the amount that the psychiatrist, psychologist, or psychotherapist would have charged the claimant if the treatment were one for which the Corporation was not making a payment (less any Social Security benefit) or the amount specified below (less any Social Security benefit), whichever is the lesser: 11 Regulation 2 reads (in part):- "Interpretation - (1) In these regulations, unless the context otherwise requires, - 6. 'Psychiatrist' means any registered medical pract1t10ner registered as a specialist in psychiatry v,:ith the 1'.1edical Council of New Zealand: 'Psychologist' means a person registered under the Psychologists Act 1981 who possesses relevant qualifications in clinical psychology: 'Psychotherapist' means a member of the New Zealand Association of Psychotherapists or the New Zealand Association of Child Psychotherapists:" The person who has been counselling the appellant is not within any of these categories. Accordingly, the case for the Corporation is that it cannot pay the costs the appellant has incurred for the counselling he has given her. On behalf of the Corporation it 1s submitted that there 1s a further difficulty for the appellant. Regulation 5(4) reads:- "The Corporation shall not pay any costs in respect of any treatment provided by a psychiatrist, psychologist, or psychotherapist unless (a) Prior to that treatment being provided, the claimant has been referred for that treatment - ( i) By a general practitioner; or (ii) By a registered specialist; and (b) Where the referral is by a registered specialist, the Corporation has received written advice from a general practitioner that the general practitioner has transferred 7. management of the claimant's treatment to that registered specialist either generally, or in respect of a specified condition or conditions, or the treatment provided - and neither the general practitioner nor the registered specialist is acting in the course of employment by an area health board." Regulation 2 provides that, unless the context otherwise requires:- "'Registered medical practitioner' means any person who holds a current annual practising certificate issued by the Medical Council of New Zealand: 'Registered specialist' means any registered medical practitioner registered as a specialist with - (a) The Medical Council of New Zealand; or (b) The Department of Health for the purposes of Drug Tariff and health benefits - but does not include any registered specialist working outside his or her registered specialty:" The appellant was not referred for the counselling in question by a general practitioner or a registered specialist as defined in the regulations. Accordingly, the case for the Corporation is that for this reason too it cannot pay the counselling costs in question. Mr Julian submitted that:- (a) His grand daughter faced an emergency and the counselling commenced at a time when it was not possible to get the 8. counsellor approved, or have his daughter referred to counselling by a registered medical practitioner. (b) The counsellor who counselled his grand daughter would certainly qualify for approval as a counsellor but it is unrealistic for him to apply for approval. Having regard to the introductory words in Regulation 2 I have considered whether the context requires some meaning other than that given for a psychiatrist, psychologist, psychotherapist, registered medical practitioner or registered specialist. It appears that it may. Se(;tion 88(2) provides that payment may not be made for treatment, service, and rehabilitation costs incurred outside New Zealand unless required or permitted by the regulations. It appears that the regulations deal with the costs of counselling within New Zealand and require other meanings to be given to the definitions in question in regulation 2 where the counselling takes place outside New Zealand. This point was not dealt with in the submissions at the hearing. 1992 Regulations: Regulation 24(1) reads:- "24. Payment of counselling costs - (l)Subject to these regulations, the Corporation or exempt employer shall pay in respect of counselling to which these regulations apply the amount the counsellor would have charged the claimant if the counselling \Vere counselling which the Corporation or exempt 9. employer was not making a payment or the amount specified below, whichever is the lesser ... " Regulation 2(1) states:- 11 (1) In these regulations, unless the context otherwise requires, . .. 'Counsellor' means a person approved by the committee as a counsellor for the purposes of these regulations. 1 1 1 1 'Counselling' means any treatment or service provided by a counsellor to a claimant in respect of personal injury suffered by that claimant. 11 Regulation 20 sets out the procedure for approving an applicant as a counsellor. The Corporation accepts that it is possible under Regulation 20 for an applicant living overseas to be appointed as a counsellor. However, the person who has been counselling the appellant has not been approved as a counsellor. He has not applied to be approved as a counsellor. Accordingly, on behalf of the Corporation it has been submitted that it cannot pay for the costs the appellant has incurred for the counselling he has given her. On behalf of the Corporation it is submitted that there 1s a further difficulty for the appellant. Regulation 24(4) reads:- 11 (4) Subject to subclause (5) of this regulation, no payment for counselling shall be made under these regulations:- 10. (g) Unless, prior to that counselling being provided, the claimant has been referred for that counselling by a registered medical practitioner. 11 Subclause (5) is not relevant to this appeal. Regulation (2) provides, unless the context otherwise requires:- 11 1 Registered medical practitioner' means any person who holds a current annual practising certificate issued by the Medical Council of New Zealand 11 • The appellant was not referred for the counselling in question by a registered medical practitioner. Accordingly, the case for the Corporation is that for this reason too the Corporation cannot pay the counselling costs in question. What I said about the 1990 Regulations also applies to the 1992 Regulations. Section 88(2) provides that payment may not be made for treatment, service, and rehabilitation costs unless required or permitted by the regulations. However, it appears that the regulations deal with the costs of counselling incurred within New Zealand and require other meanings to be given to the definitions in question in regulation 2 where counselling takes place outside New Zealand. As I have previously set out this point was not dealt with m the submissions at the hearing. 11 The words "unless the context otherwise requires" refer to the context of the regulations as a whole. See, for example:- In re Evans. Ex Parte Evans [1891) 1 QB 143. Ruffy-Arnell and Baumann Aviation Company Limited v The King (1922] 1 KB 599. Garden City Developments Ltd v Petrie, J\1avman Timpany & Moore, High Court, Christchurch Registry, 1 November 1989. There is no reason why a suitably qualified counsellor outside New Zealand should have to go through the procedure for approval set out in the regulations. That procedure is clearly intended to apply to counsellors resident in New Zealand. There is no reason why the appellant in Hawaii should have to be referred to her counsellor by registered medical practitioner holding a current annual practising certificate issued by the 1v 1edical Council of New Zealand. The regulations in effect make no provision for payment for counselling outside New Zealand. But s.88(2) contemplates they will and, of course, with the international mobility of New Zealand residents in the 1990's common sense and fairness dictate that they should. Conclusion: In the context of counselling costs incurred outside New Zealand some· other meaning is required for the words in question as defined in regulation 2. It appears to me that an appropriate meaning of a "psychiatrist" and a "counsellor" would include Neal Anzai, M.D. and that an appropriate method 12. of referral to Dr Anzai would include the way in which the appellant consulted him. The Corporation may be prepared to deal with the appellant's claim on that basis. Alternatively, it may file and serve further submissions on this point, and I will give the appellant the opportunity to reply to them. I will then give a final decision. (J. W. Imrie DCJ)