Boyle v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 117/96 UNDER The Accident Rehabilitation and Compensation Insurance Act 199. AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN TERRANCE EDWARD BOYLE of Wanganui Appellant (Appeal No. DCA 93/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of September 1996 APPEARANCES Appellant in person T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the review officer who declined to overturn the respondent's decision that the appellant was not entitled to assistance to obtain an MRI scan under the provisions of section 27 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant who is now aged 63 injured his knee on 22 August 1995. On 11 October 1995 his Orthopaedic Surgeon requested funding for an MRI scan to distinguish between possible diagnoses, including a recurrence of a Baker's cyst, a tear of the medial meniscus, or osteoarthritis of the medial compartment of the knee. 2 The respondent requested information from the appellant as to how the injury affected his life and on 26 October 1995 he explained that he is in constant pain which becomes a sharp spasm if he happens to twist the knee. He explained that he and his wife are the fulltime caregivers for their 23 year old intellectually handicapped daughter. The appellant is unable to carry weight on his knee with the result that he cannot kneel and so household repairs are difficult, as is weeding the garden. He also has difficulty getting out of a chair. The respondent's medical adviser considered that the appellant met the first criterion for approval of an MRI scan but did not meet the criterion that approval would be cost effective as the appellant was not then receiving any entitlements as he was retired. The respondent issued its primary decision on 23 February 1995 declining the application. The appellant applied for a review of that decision. In his application, the appellant explained that although he is retired he does some part time work on a contractual basis as a result of which he pays both an ACC employer and employee levy. His concern was that if he aggravated the condition of his knee when working on a contract, he may have to withdraw from the completion of the contract with a corresponding loss to the respondent. In a reasoned decision, the review officer considered that he was unable to interfere with the respondent's primary decision. The evidence before the review officer disclosed that while the appellant was not then employed, he held himself out as being available for work on contract from time to time but limited tenure to enable him to remain available to assist with the care of his daughter. The appellant provided me with written submissions in which he raised issues regarding the review officer's findings that he was still working but I do not consider that they are really relevant to the appeal because it is clear that he only works spasmodically and for periods of short duration. He submitted that because of his knee problem, he is no longer able to play indoor bowls, tend his garden or golf except with extreme pain. Mr Cleary submitted that there are no Regulations made under the Act which relate to the provision of the MRI scans but pursuant to section 27(2)(b) of the Act the respondent is able to pay for MRI scans by virtue of its agreement with Wanganui Computerised Imaging which is a party to that agreement. He submitted that before approval for an MRI scan can be granted the respondent must be satisfied that the service comes within the scope of section 27(6) which states: "(6) The Corporation shall not make any payment in respect of any specified service unless it is satisfied that the specified service is necessary, appropriate, timely, of the required quality, and not excessive in number or duration." Mr Cleary submitted that the word "necessary" in these circumstances is ambiguous and can be open to a wide variety of interpretations. He submitted also that the respondent had determined a set of criteria for approval of MRI scans which are: Only if requested by a registered specialist, and only with the prior approval of the Corporation. Only if the information and declarations needed to verify both of the following are provided: The claimant has sustained personal injury that has cover under the ARCI Act 1992. The MRI scan will be provided in respect of this personal injury. This scan will be done by a provider with whom the Corporation has entered into a specific agreement made in terms of s.27(2)(b) "Treatment and physical rehabilitation" of the Act. The application for approval specifies the MRI scan is for the purpose of determining whether to provide treatment of a sort specified in Regulation 5 or Part II of the "Specialists Costs Regulations (No. 2) 1990", and is likely to be followed by a request for approval for that treatment. The Corporation is satisfied that if a request for payment of the proposed treatment were to be made, approval would probably be given. All approved scans must meet the first three criteria above. The Corporation may still pay for an MRI scan that doesn't meet the last two criteria above, if all of the following are met: A cost effective rehabilitation outcome. A reduction in the cost of providing any entitlements for which the Corporation is liable as a result of the personal injury for which this scan is sought. Assistance in determining cover or entitlements." Mr Cleary submitted that the respondent's policy is careful and considered and allows it to come to a conclusion as to whether a service is "necessary" on the grounds of the efficiency of the treatment towards the person's rehabilitation or to clarify the compensation to which an applicant may be entitled. He also submitted that, in addition, before approval can be granted, it is necessary to have regard to regulation 11 of the Specialists Costs Regulations which provides: "11. Conditions applying to payments for surgical procedures -- (1) The Corporation shall not make any payment in respect of any procedure specified in Part II of the Schedule to these regulations unless - (a) The treatment is provided - (i) In a licensed hospital; or (ii) In the case of items marked in the Schedule with an asterisk (*), in the registered specialist's rooms; and (b) The prior approval of the Corporation to the performance of the procedure has been obtained. (2) Except as provided in subReg (3) of this regulation, the Corporation shall not give the approval referred to in subReg (1) of this regulation unless it is satisfied that is necessary for the due restoration of the claimant to his or her principal economic activity or would enable the claimant to undertake remunerated employment that the treatment be provided. (3) The Corporation shall give the approval referred to in subReg (1) of this regulation where--- (a) The procedure is specified in Part II of the Schedule to these regulations under the heading "Plastic Surgical Procedures"; and (b) The Corporation is satisfied, after obtaining such assessments as the Corporation considers necessary (which assessments shall be obtained at the expense of the Corporation), that without the completion of the procedure the claimant would not be able to participate in the normal social activities that might be expected for that claimant. (4) Nothing in this regulation shall apply in respect of-- ) Any procedure in Part II of the Schedule to these regulations that is marked with a cross (+); or (b) Any procedure that is discovered to be necessary to perform, and is performed, during the course of any approved treatment." The term "principal economic activity" is defined in regulation 3 as: "Principal economic activity" includes study activities and domestic household activities that are not directly remunerated; and in the case of domestic household activities shall be determined without regard to whether or not the person has a spouse or other household member who is able to perform those activities:" Mr Cleary submitted that the appellant had explained to the review officer that in terms of the principal economic test he was the sole caregiver of his intellectually handicapped daughter but the review officer had concluded that the appellant is an earner, so he was unable to consider that factor. Mr Cleary submitted further that as the appellant was not in need of rehabilitation because of the review officer's findings that he was employed, the cost effectiveness of the proposed treatment did not warrant a grant of the application. The position as I see it is that the appellant is not an earner, and he is the caregiver for his intellectually handicapped daughter. His surgeon has recommended that an MRI scan be undertaken to avoid surgical treatment which may not be warranted. I consider that because of the appellant's position as a caregiver for his daughter and that delay in undertaking the scan may result in serious deterioration and the necessity for surgical intervention which could have the result that the appellant may not be then in a position to continue to give care to his daughter. If that situation arose, the cost to the respondent may be considerable because the appellant may then be in a position to make an application for care and homehelp in respect of his own situation and that of his daughter. I consider that in these circumstances the MRI scan is necessary; appropriate and timely and should be carried out forthwith to avoid what may become a much more serious problem with far more serious ramifications. Accordingly, I consider that the review officer was wrong particularly in his finding that the appellant is an earner but also in relation to the cost effectiveness of the proposed procedure. The appeal is allowed and the respondent is to meet the cost of an MRI scan. In addition the appellant is entitled to reimbursement for mileage between Wanganui and Palmerston North to enable him to attend the appeal hearing. The rate to be allowed is the same rate as the respondent pays to its counsel for attendance at appeal hearings. DATED at WELLINGTON this 18 day of October 1996 A W Middleton District Court Judge dca93-96.doc (nur)