Emslie v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 336/2005 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN THELMA EMSLIE of Dunedin Appellant (Appeal No. AI 544/04) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at Dunedin on 10 October 2005 APPEARANCES/COUNSEL A Hall for appellant H Peart for respondent DECISION OF JUDGE J CADENHEAD The Issue At issue in this appeal is the review decision of 15 September 2004 relating to the respondent’s (ACC) decision to decline to pay the appellant’s ongoing dental maintenance for three implants. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2005/336- 2005.doc AE Narrative of Facts [1] I substantially set out the narrative of facts provided by the respondent. [2] In December 1999 the appellant sought advice from Dr Alan Payne, prosthodontist, regarding her current dentures which had been causing her problems. The appellant required dentures due to the fact that she was edentulous (without teeth). [3] Dr Payne noted that the appellant had “recurrent ulceration of the severely resorbed mandibular ridge and frustration with the limitations of eating with the conventional mandibular denture during eating with her semi-vegetarian diet.” He suggested that the appellant have two implant fixtures surgically inserted into her lower jaw in order to support an over-denture. [4] The first implants failed to osseointegrate, resulting in placement of new implants. A few days after the new implants were inserted they caused the “spontaneous fracture of the mandible on the left without displacement”. [5] ACC accepted the appellant’s claim as medical misadventure, through medical mishap. A report provided by Dr Gerard Thyne, oral & maxillofacial surgeon, noted that there was a causal link between the placement of the implants and the fracture of the mandible. Dr Thyne also stated that the appellant had suffered “a significant functional disability…” [6] Following the medical misadventure injury it was no longer possible for the appellant to wear a two implant supported over-denture, due to the change in her lower residual ridge (oral foundation). [7] The appellant’s prosthodontist, Dr Payne recommended that “the only successful treatment option was a placement not of two, but at least four – five implants and an implant supported bridge or over-denture…” Dr Payne noted that the appellant had an existing functional disability at the time of the medical misadventure, due to the problems with her original dentures, and that the fractured mandible and associated reparative procedures had further reduced her functional capacity. 336-2005 2 [8] In December 2001 and June 2002, the appellant underwent prosthodontic treatment at a total cost of over $12,000. [9] On 23 January 2003, ACC wrote to the appellant offering a contribution towards her prosthodontic costs of $3825. The respondent noted that in offering the contribution the Corporation’s responsibility did not extend to continuing dental maintenance. [10] The appellant lodged a review of ACC’s decision not to pay the full prosthodontic costs. [11] In a review decision of 7 October 2003 the reviewer quashed ACC’s decision stating that the Corporation should re-determine its liability for the prosthodontic costs. The reviewer directed that the amount ACC should contribute towards the costs should be calculated by subtracting the amount the appellant would have been liable to pay prior to the medical misadventure injury, from Dr Payne’s final costs. [12] Dr Payne provided the respondent with a report on 20 October 2003 in response to the review decision, attaching an itemised spreadsheet of costs, which appears to include all the costs the appellant incurred up to 17 September 2003. [13] On 13 February 2004, ACC issued a new decision advising that it would contribute $8469.45 towards the prosthodontic costs, which it proceeded to pay. [14] However, ACC declined to contribute towards the ongoing maintenance costs for the appellant’s fixed implant bridge. This amount included dental hygienist treatment, brushes, mouthwash and dental floss. The Review Hearing [15] The appellant lodged a review of ACC’s decision to decline to provide ongoing dental maintenance. [16] In her review decision of 15 September 2004, the reviewer held that ACC did not have any liability to pay for dental maintenance costs under the Accident Insurance Act 1998 or the Injury Prevention, Rehabilitation and Compensation Act 2001. 336-2005 3 [17] The reviewer also stated that if the ongoing maintenance was provided by a dentist, ACC still wouldn’t have liability to pay the costs of treatment. Clause 2 of Schedule 1 of the IPRC Act allows ACC to pay for treatment if it is for the “purpose of restoring the claimant’s health to the maximum extent practicable”. The reviewer noted that in the current case the purpose of the appellant’s dental maintenance is preventative treatment to detect any biological problems or complications of the surrounding tissues, not to restore the appellant’s health to the maximum extent practicable. [18] The reviewer said that what was being sought was preventative treatment. The respondent had already paid for treatment, which had restored the appellant’s health to the maximum extent possible. She was satisfied that the respondent did not have any responsibility for the ongoing maintenance. Legislation and Legal Principles [19] The Injury Prevention, Rehabilitation, and Compensation Act 2001 applies as the claim for ongoing maintenance was not raised until after 1 April 2002. [20] Clause 1 of Schedule 1 of the 2001 Act outlines ACC’s liability to pay or contribute to the cost of treatment. “1 Corporation's liability to pay or contribute to cost of treatment (1) The Corporation is liable to pay or contribute to the cost of the claimant's treatment for personal injury for which the claimant has cover if clause 2 applies,— (a) to the extent required or permitted under an agreement or contract with any person for the provision of treatment; or (b) if no such agreement or contract applies, to the extent required or permitted by regulations made under this Act; or (c) if paragraphs (a) and (b) do not apply, the cost of the treatment. (2) In subclause (1)(c), cost means the cost— (a) that is appropriate in the circumstances; and (b) as agreed by the Corporation and the treatment provider.” [21] Clause 2 of Schedule 1 provides when the respondent is liable to pay the cost of treatment: 336-2005 4 “2 When Corporation is liable to pay cost of treatment (1) The Corporation is liable to pay the cost of the claimant's treatment if the treatment is for the purpose of restoring the claimant's health to the maximum extent practicable, and the treatment— (a) is necessary and appropriate, and of the quality required, for that purpose; and (b) has been, or will be, performed only on the number of occasions necessary for that purpose; and (c) has been, or will be, given at a time or place appropriate for that purpose; and (d) is of a type normally provided by a treatment provider; and (e) is provided by a treatment provider of a type who is qualified to provide that treatment and who normally provides that treatment; and (f) has been provided after the Corporation has agreed to the treatment, unless clause 4(2) applies. (2) In deciding whether subclause (1)(a) to (e) applies to the claimant's treatment, the Corporation must take into account— (a) the nature and severity of the injury; and (b) the generally accepted means of treatment for such an injury in New Zealand; and (c) the other options available in New Zealand for the treatment of such an injury; and (d) the cost in New Zealand of the generally accepted means of treatment and of the other options, compared with the benefit that the claimant is likely to receive from the treatment.” [22] The respondent is also liable to contribute to the costs of ancillary services: “3 When Corporation is liable to pay or contribute to cost of ancillary services related to treatment (1) The Corporation is liable to pay or contribute to the cost of any service if the service facilitates the treatment and the service is reasonably required as an ancillary service related to treatment, such as— (a) accommodation: (b) escort for transport for treatment: (c) pharmaceuticals prescribed by a treatment provider who has statutory authority to prescribe pharmaceuticals: (d) laboratory tests requested by a registered health professional: (e) transport (whether emergency or otherwise). 336-2005 5 (2) This clause applies subject to any regulations made under this Act.” [23] “Treatment provider” is defined in the 2001 Act as: “(a) means an acupuncturist, audiologist, chiropractor, counsellor, dentist, medical laboratory technologist, nurse, occupational therapist, optometrist, osteopath, physiotherapist, podiatrist, ... medical practitioner, or speech therapist; and (b) includes a member of any occupational group included in the definition of ``treatment provider'' by regulations made under section 322.” [24] In ACC v RW (Auckland HC, AP 60-SW99, 4 August 1999), Justice Anderson stated: “There is no need to go beyond the ordinary meaning of “treatment” as defined in the standard dictionaries such as the New Shorter Oxford English Dictionary which provides the definition – ‘the application of medical care or attention to a patient, ailment etc.’ Difficulties arise not in respect of the definition but in respect of its application. In some cases treatment may occur in a hospital without that environment itself being sensibly regarded as part of the treatment. In other cases the particular environment may be regarded sensibly as part of the treatment itself….In my judgment the District Court Judge’s conclusion was one which on the law and facts he was entitled to reach. I do not accept the submissions on behalf of the appellant to the effect that treatment in its relevant sense in the particular case must be confined to overt acts of intervention by way of care, such as monitoring, administering formula, undertaking rectal temperatures and fluid examinations, and measuring blood glucose. It is the case counsel acknowledged that nursing in the incubator could also be regarded as treatment, but when that is added the list becomes virtually exhaustive. The acts represent, compendiously, the whole regime of treatment…There must always be a causative link between the personal injury and the medical mishap, quite apart from the moderating conditions of rarity and severity.” The Medical Report of Dr Payne [25] Dr Payne submitted a report dated 7 July 2003. He stated: “I strongly support the need for Mrs Thelma Emslie to be entitled to be covered by ACC for the ongoing prosthodontic maintenance costs and the costs for dental hygiene treatment for her fixed implant bridge. ACC must accept responsibility for this maintenance in view of the fact that they have now contributed substantially to the costs for the implant surgery and prosthodontic fabrication of the fixed implant bridge. The regrettable fact that these essential items of modern implant treatment for patients are not covered in the current schedule of ACC fees for dental implants should not be a burden incurred by Mrs Emslie. It is rather evidence of the inadequacy and poor understanding of this treatment modality by ACC regulations and the dental advisors.” 336-2005 6 [26] Dr Payne then quoted extracts from what he considered highly respected current text books on dental implants written by world authorities, which he argued that “ACC cannot ignore.” He concluded: “This should result in them supporting Mrs Emslie unequivocally with costs for this ongoing prosthodontic maintenance costs and the costs for dental hygiene treatment for her fixed implant bridge.” The Medical Report of Dr George [27] Dr George wrote on 20 September 2005 to confirm that it was imperative that the tissues around the implants be monitored at regular intervals to provide a supportive therapy programme to prevent the progression of any disease processed. This therapy would generally consist of mechanical and hand debridement of debris, bacteria and sub-gingival calculus by scaling and polishing to standard protocols for implants. The Submissions of the Respondent [28] The respondent accepts that it was liable to provide the appellant with entitlements to help restore her to the level of function and independence she had prior to the medical misadventure injury. In particular, this meant the restoration of the appellant’s chewing function. [29] The respondent submits it has no liability to provide ongoing entitlements claimed by the appellant for maintenance of her dentures. Her functional capacity has been restored and has in fact been restored to a level greater than prior to the medical misadventure injury. [30] The appellant already suffered from functional disability prior to the medical misadventure due to the fact that she was edentulous and was having difficulty with her dentures. The appellant also had pre-existing gum problems, with Dr Payne noting that she presented to him with “recurrent ulceration of the severely resorbed mandibular ridge”. [31] The appellant sought to remedy the problems with her dentures by opting to have dental implants inserted. This was not covered by respondent. She would of course have incurred the costs of ongoing maintenance. After the first implants 336-2005 7 failed, the appellant had further implants inserted, which caused the fracture of her mandible. [32] The fracture was accepted by ACC as a medial mishap due to the fact that it was a rare and severe consequence in the opinion of Dr Thyne and there was a causal link between the placement of the implants and the fracture of the mandible. Dr Payne noted that the fractured mandible and reparative procedures the appellant had undergone had further reduced her functional capacity, from the diminished capacity she already suffered from prior to the medical misadventure. [33] Due to the impact on the appellant’s oral foundation because of the fracture, she was unable to complete the original surgery and have a two implant supported over-denture. Instead she required “four – five implants and an implant supported bridge or over-denture”. Dr Payne stated that the further implants were required to correct her functional disability and repair her oral function. In other words, to put the appellant in the same position that she would have been in prior to the medical misadventure. [34] ACC paid for the appellant’s prosthodontist costs, less the costs the appellant would have incurred if she was able to continue with having a two implant supported over-denture. [35] The respondent submits that pursuant to Schedule 1, Clause 2 of the Act, the onus is on the appellant to prove that the dental maintenance is “treatment” for the purpose “of restoring the claimant's health to the maximum extent practicable…” and must be provided by a “treatment provider”. [36] The review decision considered that the dental therapy required by the appellant could possibly be considered “treatment” but could not satisfy the requirement that the treatment be restorative. The respondent submits the crux of the issue is not the meaning of “treatment” in isolation but whether respondent is liable to pay the cost of this “treatment”. In terms of the legislation and regulations it is clearly not liable to do so. [37] The reviewer stated that the purpose of the dental therapy is not to restore the appellant’s health to the maximum extent practicable, but is to “detect any biological problems or complications of the surrounding tissues”. The dental therapy is a preventative measure, which is unrelated to restoring the appellant’s health. 336-2005 8 [38] The respondent submits that the reviewer was correct in determining that the treatment the respondent has already paid for has restored the appellant’s health to the maximum extent possible, thereby discharging any liability to pay for her ongoing dental maintenance. The Submissions of the Appellant [39] Both Acts provide that for treatment costs to be paid then the person providing the treatment must be included within the definition of treatment provider. This term is defined in both Acts as the following: “(a) means an acupuncturist, audiologist, chiropractor, counsellor, dentist, medical laboratory technologist, nurse, occupational therapist, optometrist, osteopath, physiotherapist, podiatrist, registered medical practitioner, or speech therapist; and (b) includes a member of any occupational group included in the definition of treatment provider by regulations made under section 322 (2001 Act) or section 399 (1998 Act).” [40] A “dentist” is defined under section 6 of the 2001 Act as: “a person who is registered as a dentist and holds a current annual practising certificate under the Dental Act 1988”. [41] It is submitted that the letter provided from Mr Ray George, dentist, dated 20 September 2005 confirms that a dentist would be able to complete the ongoing maintenance needed for the care and protection of the appellant’s implants. [42] It is submitted that Mr George’s evidence satisfies the statutory requirement that there be a treatment provider. [43] It is submitted that the appellant’s treatment clearly comes within the ordinary meaning of the word “treatment”. The maintenance of the appellant’s overdentures is the application of medical care. It is submitted that the reviewer on page 8 of her decision erred in determining the type of treatment that the appellant was asking ACC to pay for. The reviewer found that, that the purchase of and personal use of toothbrushes and the like could not be considered to be treatment in its ordinary and natural usage. 336-2005 9 [44] With respect, it is submitted that it is not the purchase of toothbrushes and the like that the appellant wishes ACC to contribute to. As Dr Payne stated in his report dated July 2003: “The therapy generally consists of mechanical debridement, polishing and scaling.” [45] It is submitted that this treatment goes beyond the ordinary definition of the word “treatment”, in that the appellant cannot carry it out herself. [46] It is submitted that the term “restore” should be given a “generous and unniggardly approach”, see Harrild v Director of Proceedings [2003] 3 NZLR 289. [47] The purpose of the Injury Prevention, Rehabilitation and Compensation Act 2001 is contained in section 3 which states that: “The purpose of this Act is to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury that has, as its overriding goals, minimising both the overall incidence of injury in the community, and the impact of injury on the community (including economic, social, and personal costs), through….” [48] Paragraph (a) establishes a primary function of the respondent is to prevent the occurrence and severity of personal injury. Paragraph (c) states that where injuries occur the primary focus is on rehabilitation with a goal of achieving the maximum practicable extent of a claimant’s health. [49] It is further submitted that the title of the Act, Injury Prevention Rehabilitation Compensation, supports the submission that the focus of the legislation is also on prevention of an injury. Decision The approach to statutory interpretation [50] Section 5 of the Interpretation Act 1999 provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. This approach rests upon the twin pillars of the section, namely, consideration of the text and its relevant objectives. 336-2005 10 [51] In R v Pora [2001] 2 NZLR 37 the judgments of Elias CJ and Tipping J at p.43 said that the Courts must give effect to the will of Parliament as expressed in the legislation. The first step was to understand the meaning of the Act, as ascertained from its text, and in the light of its purpose (s 5(1) of the Interpretation Act). The organisation and format of the enactment is an indication as to its meaning: s 5(3) of the Interpretation Act. Both the text and the purpose of the Act must be read in context. In construing that legislation the Court of Appeal had regard to the long title of the Act that was under consideration. [52] Section 6 of the Interpretation Act 1999 provides for an ambulatory approach to statutory interpretation. Section 6 provides: “An enactment applies to circumstances as they arise.” [53] That is the law is always considered to be speaking, and whenever any matter is expressed in the present tense, the same shall be applied to the circumstances as they arise. This consideration is important in this case in construing the words “restoring the claimant’s health”, as it would include her future health. [54] The first step is a consideration of the text as stated in Statute Law in New Zealand, J.F. Burrows (3rd) p 131: “However far the purposive approach may extend, the actual words of the Act nevertheless remain the most important single factor in statutory interpretation, for it is the true interpretation of those words that one is seeking. However, the meaning usually to be placed on those words is not the narrow, purely literal, meaning that once held sway, but their most natural meaning their context and taking into account their purpose. While in a few cases circumstances may dictate that a meaning other than the most ordinary is appropriate it is true as it ever it was that words cannot be given “meanings” that they are incapable of bearing.” [55] In my view the meaning of the clause is clear: the Corporation is liable to pay the cost of the claimant's treatment if the treatment is for the purpose of restoring the claimant's health to the maximum extent practicable. This would include the cost of future restoration or future treatment. This interpretation is consistent with the wide approach taken by Anderson J in ACC v RW (Auckland HC, AP 60-SW99, 4 August 1999). [56] I would like to thank both counsel for the clear and cogent submissions received. I have come to a view that the wording is clear and the result is not absurd in context so that a more far ranging discussion of well settled techniques of statutory interpretation is not called for: Parris v TVNZ Ltd (1999) 14 PRNZ 172). 336-2005 11 [57] The expert dental evidence satisfies me that the treatment contemplated is necessary for the continued oral health of the appellant and has a substantial causal link to the injury for which she has cover. In addition, a dentist is an authorised treatment provider [58] For the reasons that I have given I would allow the appeal and quash the primary decision and the review decision. The appellant is entitled to costs of $1,500.00 plus disbursements. DATED at WELLINGTON this 15th day of November 2005. J Cadenhead District Court Judge 336-2005 12