Penn v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 64 199 HELD AT WELLINGTON Appeal No. DCA 362/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN: SHELLY PENN Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the Act Respondent Heard at Wellington on the 9th day of December 1998 Date of Decision: March 1999 Appearances: Mrs L M Rice for respondent Mrs S Penn in person DECISION OF JUDGE P F BARBER The Issue: The question is the correctness of the respondent's decision of 2 April 1998 declining to approve further physiotherapy treatment for the appellant in respect of -2- her "RSI". Her symptoms are a constant ache in the right forearm and wrist, with occasional electric shock sensations radiating up the arm. Background Facts: On 23.November 1992, the appellant lodged a claim with the respondent in respect of an injury which can be accepted as having occurred on 9 November 1992 and resulting in "RSI" in respect of the appellant's right forearm. That claim was accepted. In February and April 1993 the respondent received and approved a request for additional physiotherapy treatment for the appellant. By May 1993 the appellant had had 38 physiotherapy treatments. On 25 May 1993 the respondent declined her request for 12 further such treatments. The appellant applied for a review of that decision. The appellant was cleared to return to full time work on 10 June 1993, having had a period of reduced hours and alternative duties. On 21 June 1993 Mr Medlicott, orthopaedic surgeon, reported that the appellant had an occupational overuse syndrome and that there was no evidence of any condition which could be remedied by surgery. Mr Medlicott doubted that prolonged physical therapy would assist the appellant, but noted that physical therapy once or twice a year, up to ten or twelve treatments, might help to keep her in the work force. In a decision of 6 September 1993 a Review Officer noted the role that the physiotherapy treatment had provided in returning the applicant to the work force, and considered that the particular additional treatments should be approved. Accordingly, the respondent continued to pay for further physiotherapy treatment. On 29 July 1996, the appellant's GP wrote to the respondent regarding her condition. She noted, inter alia, that she felt that the appellant was addicted to physiotherapy, which was giving psychological help but not necessarily treating any "physical modality", and that examination was then "absolutely normal" so that it was difficult to provide a diagnosis. The GP felt that acupuncture, once a week, could -3_ be regarded as ongoing therapy both physical and psychological to maintain her normal state By April 1998 the appellant had received 169 physiotherapy treatments. On 2 April 1998 the respondent wrote to the appellant declining further such treatments on the basis that they would not enable the appellant to achieve a higher level of recovery, and that the physiotherapy merely maintained her condition rather than improved it. That advice was similar to that given the respondent by its Branch Medical Adviser on 1 April 1998. He had also noted that there was no objective sign of injury. The appellant applied for a review of that decision. On 6 June 1998 Dr Butler, Consultant Rheumatologist and Pain Specialist, reported that objective investigations such as x-rays and ultrasound had failed to reveal any abnormalities. He suggested that nerve conduction studies be carried out to exclude the possibility that the appellant was suffering from Carpal Tunnel Syndrome. In a decision dated 21 August 1998, the Review Officer found that, regardless of the respondent's view that the physiotherapy was not "treatment" but rather maintenance of the appellant's condition, the regulations did not permit the respondent to pay for more than 36 physiotherapy treatments on any one claim. The Review Officer therefore upheld the respondent's decision not to pay for further physiotherapy treatment, albeit on different grounds to the 2 April 1998 decision of the respondent. A notice of appeal to that decision has, of course, led to the hearing before me. At that hearing, the appellant was clearly distressed that the pain in her right hand became worse without physiotherapy, and was not only causing her concern as to whether she could retain her job as a data administrator, but was having an adverse effect on her home life. Indeed, rather than wait for this Authority to come to New Plymouth in May, she had flown to Wellington to have her appeal heard before me in December 1998. She stated that the physiotherapy had terminated in March 1998 after 169 such treatments and, since then, she had been on drugs for pain every day, but that daily life had become very stressful because her right hand and arm were painful up to -4- her neck. She said it was difficult to get out of bed and do normal things around the house. Her husband needed to do all house vacuuming and she could not carry any significant weight in her right hand. She had found that physiotherapy, together with acupuncture, enabled her to be pain free and, inter alia, continue her employment. She emphasised that if physiotherapy were to resume, it would take her off drugs until the nerve conduction tests recommended by Dr Butler were carried out, and that such nerve conduction tests might show the need for surgery to "fix my nerves". The Review Officer's Decision of 10 June 1998: This decision seems to me to be as comprehensive as necessary, clear and correct. There is little point in my analysing it. The Review Officer referred to the appellant as a 37 year old computer operator, and she also referred to the detail of various medical reports about the appellant's RSI. These were reports of 21 June 1993, July 1994 and July 1996, and 1 April 1998. Essentially, the medical experts seemed unable to identify the injury by examination, but were satisfied about its existence. They seemed unable to give much assistance regarding a cure, but accepted the benefit of physiotherapy from time to time for maintenance purposes and to assist keep the appellant in the work place. As indicated above, there was the indication that the physiotherapy could be for psychological as well as physical purposes. The Review Officer referred to the Corporation having approved the appellant's further physiotherapy treatments on the basis that they enabled her to keep working but not accepting that such ongoing physiotherapy was "treatment" as it was not being monitored by her general practitioner. The Corporation believed the treatment was more to maintain the condition than to treat it. The Review Officer appeared to regard the physiotherapy as being treatment in this case, but she noted the medical information indicating that such physiotherapy was ineffective and not necessarily treating any physical modality. However the Review Officer pointed out (correctly, in my view), that the respondent is unable at law to pay for more than 36 physiotherapy treatments on any one claim. Accordingly, the Review officer felt obliged to confirm the Corporation's decision. The Relevant Legislation: The relevant sections of the Act are ss. 27(1) and (5), which refer to the Corporation, inter alia, contributing to treatment and other expenses in respect of personal injury to the extent permitted by regulations. It is then necessary to refer to Regs '4 and 5 of the Accident Compensation (Referred Treatment Costs) Regulations 1990. The said section of the Act and Regulations have been set out in full for the appellant in the Review Officer's decision, and in the written submissions supplied by counsel for the Corporation. There can be no doubt that the effect of reg 5(1)(a) and reg 5(5)(a) is to provide an absolute maximum of 36 treatments where there has been an initial referral from a general practitioner (for the first 24 treatments), and a subsequent request from that GP and the treatment provider (for the further 12 treatments). It is clear that the respondent is unable to pay for more than 36 physiotherapy treatments on any one claim. This ceiling of 36 referred treatments for any one claim has been confirmed by the late Mr B Blackwood in Grieve (Decision No. 73/94), and by Judge A W Middleton in James (Decision No. 173/98). Mr Blackwood had found that there was no discretion for the Corporation to pay for treatment in excess of the number (36) provided for in the said regulations. Judge Middleton stated inter alia: "The Court has held in a number of similar appeals that the regulations provide no discretion either to the respondent or to the Court to go beyond the strict provisions of the regulations". In James the medical evidence indicated that the treatment (chiropractic treatment) provided some pain relief but would not lead to overall improvement in the appellant's condition. That has some similarity to the case before me. Reasons for Decision: I cannot help the appellant because, as indicated above, the Accident Compensation (Referred Treatment Costs) Regulations 1990, only allow a maximum of 36 treatments and the appellant has, to date, received 169 physiotherapy treatments. Neither the respondent nor the Court has any discretion -6- to approve any further physiotherapy treatment under the regulations, even though that is quite unfortunate from the point of view of the appellant. For some reason or other, until Judge Middleton's said decision in James, the respondent's staff did not always realise that they should be adhering to the said maximum of 36 prescribed treatments and, presumably, that is how the appellant was able to receive 169 physiotherapy treatments. Although I am, of course, most sympathetic to the pain predicament of the appellant, the sole issue before me is whether the respondent was correct to decline to pay for further physiotherapy treatment. On the basis that the said regulations do not allow such payment in the appellant's present circumstances, I have already made it clear that the respondent was correct. I have also explained that the Review Officer was correct. I certainly accept that physiotherapy (apparently, combined with acupuncture) considerably alleviates the appellant's right wrist and arm pain, and enables her to perform day to day activities and her job. Section 27 of the Act provides that the respondent is required to contribute towards the cost of treatment to the extent required or permitted by regulations, or in accordance with an agreement, contract or arrangement under s 29A. However, the respondent has not entered into any such agreement, contract or arrangement to pay for physiotherapy in the appellant's case. The respondent has contributed towards the cost of the appellant's physiotherapy treatment under the said regulations but, as indicated above, has declined further such assistance. I observe that when a Review Officer on 6 September 1993 considered that the physiotherapy treatment assisted the appellant to return to the work force and should therefore be approved, she did not deal with the said limit of 36 treatments. Also, I wonder whether it is fair to the appellant for medical people to be suggesting that she is psychologically addicted to physiotherapy, to imply that it gives her psychological rather than physical help, and to emphasise that it merely maintains her normal state. I would have thought that treatment, which maintains an injured person's normal state, is a necessity. It is unfortunate that it seems to have been policy for at least some staff of the respondent to ignore the said regulatory maximum number of treatments. This has meant for the appellant that her burden of pain does not seem to have been -7_ properly addressed in terms of a curative potential. From what I have been told, it seems that nerve conduction tests or studies need to be implemented urgently for the appellant. Maybe they will lead to curative surgery or at least to some pain relief. It seems to me that the appellant has been a long sufferer from RSI, but has struggled on with that pain problem since November 1992. Apparently, there is no dispute that the RSI has flowed from a personal injury - presumably, from work as a computer operator. It was not made clear to me who is expected to pay for the nerve conduction tests and possible consequential surgery. It seems to me that the sooner the appellant knows the full attitude of the respondent towards her problem, then the sooner she can map out strategy for her business and domestic life. Her problem seems to have become stagnant for the last ten months or so due to her challenging the respondent's declining to pay for further physiotherapy treatment. I have explained why her challenge is unsuccessful. She would be well advised to accept the finality of the position in that respect and to progress onto the nerve conduction tests. I expressed these sentiments at the end of the hearing and I appreciate Mrs Rice having undertaken to let me have a memorandum by 31 January 1998 (with copy to the appellant) outlining the respondent's general attitude to the appellant's pain predicament as I have expressed it. However, in the meantime I see it as in the interests of everybody to dispose of this appeal regarding the number of treatments to which the appellant is entitled. Accordingly, I consider that the Review Officer correctly interpreted the position and her decision should not be disturbed. The appeal is dismissed. It seems to me to be unfortunate that where physiotherapy treatment can maintain a person in the workforce and permit a normal domestic life, there is a ceiling on the number of treatments available to that person under the Act and its regulations. However, it is not for me to query the policy behind those regulations and, presumably, the appellant should herself pay for such treatment at some point in order to remain in the workforce. The fact that the respondent's staff may not have previously abided by the regulatory limit on the number of treatments does not mean that the limit has been waived or that it need not be applied now to the appellant. As I have explained above, the regulations provide a limit and that is the law. The limit cannot be exceeded. -8- I refer to the matter of costs. Since the appellant was not represented by counsel and, in any case, is unsuccessful, it is not appropriate that she be awarded costs as such. However, she has incurred travel costs by travelling to Wellington from New Plymouth to have the case heard in December 1998 rather than in New Plymouth in May 1999 or later. I understand there has been no arrangement between the parties over these travel costs. It seems a fair and appropriate course that I award them to the appellant against the respondent. The appellant's travel to Wellington may have avoided the Corporation incurring costs in having the matter heard later in New Plymouth. However, I do not think it appropriate that I should make such an order without knowing the amount involved and ascertaining the attitude of the respondent. It may wish to make written submissions on the point and, of course, the appellant may wish to reply on that point. Accordingly, I formally reserve the question of travel costs for the appellant, but the parties should be able to resolve that aspect between themselves. Dated at WELLINGTON this 15th day of March 1999 (P F Barber) District Court Judge