Bennett v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 59 195 AT AUCKLAND DCA No. 78/93 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 46/ 93/ 1047 Section 91 of the Act BETWEEN TIMOTHY PAUL BENNETT APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Hearing: 30 March 1995 Judge J. H. Lovell-Smith P. Sayers, Restorative Dentist-Dental Assessor W.B. Bell, Orthodontist-Dental Assessor Date of Decision: 26 may 1995 Counsel: Appellant in person A Fawcett for respondent RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is the respondent's decision to decline the appellant's claim lodged on 20 November 1992 for costs of dental treatment. 2. The appellant had been struck by an Acrow steel prop in the face on 28 November 1986, when he was working on a construction site. The appellant lodged a claim with the Corporation on 14 June 1989 in conjunction with a request for private hospital treatment costs by rhinoplasty and SMR to treat nasal fracture and buckled nasal septum, improves the airway of the old fractured nose. The Cl advice of injury firn dated 8 June 1989 states:- "Skinned my nose with bruising, also nasal fracture which I was not aware of at the time." The appellant explained why he had not put in a claim prior to 8 June 1989. He did not believe at the time that the injury was any more than a skinned nose. In 1989, he suffered flu and asthma. His doctor discovered on examination that his nose had been deformed by the accident, one nostril being completely closed inside, and the other was also affected. The appellant was referred to Mr M. Rees, a plastic surgeon. The C14 First Medical Certificate completed by Mr Rees states:- "Skinned (L) side of nose. Swollen didn't notice bent nose until later." In a letter dated 9 June 1989 Mr Rees wrote:- "He wasn't aware at the time that he had broken his nose, mainly because of the skin injury and the swelling at the time." 3. On 24 July 1989 the Corporation approved the request for private hospital treatment. The Corporation paid costs associated with the private hospital treatment and earnings related compensation to the appellant and closed their file. On 20 November 1992 the Corporation received a further Cl advice of injury form relating to the same incident, which described the appellant's injuries as including "possible damage to teeth in 1986". Dr Downey, a dentist in the Geddes Dental Group, wrote to the Corporation on 3 November 1992 as follows:- "The (applicant) requires dental treatment for his upper anterior teeth due to deterioration as a result of an accident sustained in 1986. Teeth 12 and 23 have previously been root filled due to the injury. Tooth 23 now has a radioluscent area at the root apex requiring the present root filling (which is slightly inadequate) to be redone. It may also require further treatment by way of an apicoectamy if resolution does not occur with the new root filling. Tooth 22 also requires a root filling as it has a radioluscent area at the apex and is non-vital Tooth 12 and 22 have deteriorated more rapidly due to their non-vitality and will require post and core crowns to be restored definitively. Tooth 11 requires a mesial, incisal palatal composite restoration, as will Tooth 23 after completion of root filling. (The applicant) ACC registration number is 46/90/127447 but it is a medical registration as a dental claim has not been previously made. Proposed treatment fees as outlined in the D1." 4. Dr Downey also forwarded a DI (the dental form) with her letter seeking approval for payment of treatment amounting to the $1,610.65. Dr Downey was of the opinion that the damage to the teeth was due to the original accident and that any treatment given to them was due to deterioration as a result of non-vitality. Mr Rees was asked to comment as the applicant had apparently told the claims officer of the Corporation that damage might have been done to the teeth as the roots were exposed for a long time during the operation. Mr Rees reported on 8 March 1993 as follows:- "According to my notes I made no comment at the time that any damage had been done to the applicant's teeth. It is highly unusual to say the least that tooth roots would be damaged while doing an SMR as one is not operating near the tooth roots at all. The tooth roots are firmly buried in the bone of the maxilla and I was operating on the cartilaginous septum and also on the boney vault of the nose. I don't know whether the anaesthetist may have knocked one of his teeth while incubating, I certainly don't recall any incident like that. I don't recall ever saying to the applicant that I damaged his teeth. According to the history this man gave me about his original accident, he was struck in the face by an Acrow prop on a building site on 28 November 1986. He sustained a laceration to the side of his nose but did not initially appreciate that he had broken his nose which was deviated to the right. He didn't think it was sufficiently bad to even see his GP at the time. He made no mention to me of any damage to his teeth at the time of the initial interview according to my notes." 5. The Corporation's dental adviser then considered the file including the report from Mr Rees, the dental DI (dental certificate) and the letter from Dr Downey of Geddes Dental, together with viewing radiographs. The Corporation's dental adviser commented:- "No dental radiographs have been provided by the claimant (ref my memo to your office 05/01/93 indicating the pre-11/86 P.I.B. A. condition. I have viewed the three radiographs provided by Dr Downey (note, no dates on radiographs). The presence of large carious lesions and restorations in 12, 11, 21, 22, 23 apparent. I find it highly relevant at there (sic) is no documentation relating to any of the past treatment on these teeth as being a sequel to the report of 1 1/86 PIBA. Having thoroughly considered all the above mentioned aspects I would recommend that your office decline this claim. " The Corporation's telephone call to the applicant's former dentist is recorded in a file note dated April 1993:- "They have records dating back to 1988 year when (the applicant) required treatment. The treatment was performed September 1990 completed early 1991. He had root fillings on teeth 3 and 7. Apparently he has not 'paid' them for this treatment. They have no records prior to his DOA." The Corporation then wrote to the applicant on 19 April 1993 as follows:- 6. "The Corporation has considered your request for approval of the costs of dental treatment. When the claim was first lodged with the Corporation there was no dental record of the teeth being damaged in the accident dated 28 November 1986. Dr Downey noted teeth 12 and 21 have deteriorated more rapidly due to their non-vitality and a dental claim has not previously been made for this. The three radiographs provided by Dr Downey have been viewed and no doubt have large carius/lesions/restorations in the teeth. Having thoroughly considered all the above mentioned aspects I regret the Corporation is unable to make any payments towards your dental treatment." At the review hearing the appellant told the Review Officer he had received dental treatment from 1987 onwards, but at no time had he been told that his teeth were damaged. Eventually one tooth broke on the gum line and it had not been repaired. He had thought it was due to bad hygiene. Most of the damage had been noted in 1992, when he went to Takapuna Accident & Emergency Service. It was there that he was told he had four cracked teeth. The appellant attributed this to the accident in 1992. The transcript of the review hearing states at p.3:- "Mr Weir: When did you first have treatment for your teeth after the accident in '86? 7. Mr Bennett: In 1987. In the years after ... In fact quite a bit of treatment done virtually every year since the accident but at no time did the dentist tell me that there were four cracked teeth there and there were mainly just fillings done to a single tooth and six months later go back and have another filling. Mr Weir: An you didn't tell the Corporation. Mr Bennett: No, well at that stage I wasn't aware that there was damage. Mr Weir: Well why were the dentists fixing your teeth then. Mr Bennett: To start with they were mainly fillings. They were only fillings. The tooth ... I'm not sure what number it is but it's the tooth on the upper right hand side was the first one to break off at gum level. Mr Weir: And when did it break? Mr Bennett: In 1988 I believe ... Mr Bennett: I thought it was just either due to bad hygiene on my part or due to an isolated knock from somewhere that the tooth had broken and it was only one at that stage. The cap lasted for a few years, may be three years, I think, before it needed further attention and then I had the cap replaced two more times over the years. During the period of last year, 1992, is when most of the damage became, it started to really come on. 8 Mr Weir: Most of the damage but the damage had been clear before then." The Review Officer upheld the Corporation's decision to decline the appellant's claim as far as the damage to his teeth was concerned, on the basis of application of s.76(2A) of the Accident Compensation Act 1982. This appeal went to a pre-hearing conference before Judge Kerr on 11 April 1994. In a decision Bennett v ARCIC 3/5/94, Auckland 9/94, Judge Kerr held:- "( i) The Review Officer was incorrect in basing his decision on the Accident Compensation Act 1982; and the Accident Rehabilitation and Compensation Insurance Act 1992 applies. ( ii) That a 'medical question' within the meaning of s.93 of the 1992 Act arose in respect of the appeal and accordingly, it was necessary to appoint two medical assessors at the hearing. " It is no longer mandatory that two medical assessors be appointed pursuant to s.93 of the Act. I am grateful to the assistance the two assessors provided in respect of this case. Section 63 of the 1992 Act was amended by s.3 of the Accident Rehabilitation and Compensation Insurance Amendment Act by repealing subsection (2) and substituting the following:- 9. "(2) Except as provided in subsection (2A) of this section, no claimant shall be entitled to any payment in respect of personal injury unless that claimant lodges a claim for cover within twelve months after the date on which the personal injury is suffered. (2A) A failure to lodge a claim in respect of personal injury within the time specified in subsection (2) of this section shall not be a bar to payment in respect of that personal injury if the Corporation is of the opinion that the Corporation has not been prejudiced in determining cover all payments in respect of that personal injury by failure to lodge the claim within the time specified." These amendments are deemed to have come into force on 1 July 1992 under subsection (2) of s.3 of the Amendment Act. Section 135 of the 1992 Act provides, in part:- (1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the Ist day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act." Section 7 provides, in part:- '(1) Where a person requires any treatment, service, physical rehabilitation, related transport, or certificate in respect of that person's personal injury that is covered by this Act (in this section called a 'specified service'), the Corporation shall contribute to the costs of that specified service to the extent required or permitted by regulations made under this Act. 10. . .. (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." In his submissions Mr Bennett described the blow to his face as on the left side central but oblique. It deviated his nose and in his opinion affected his upper six teeth. After the accident in 1986 Mr Bennett had no symptoms, and in particular he had no symptoms, with regard to his teeth. He relied on Dr Downey's opinion. It was the first time he had been advised that his teeth had been damaged in the accident on 28 November 1986. The Corporation had been informed as soon as practicable. No other health professional had given him this advice. The appellant said that remedial work to these teeth have been performed at different times and to different teeth. I consider the evidence does not establish the causal nexus between the accident which occurred on 28 November 1988 and the symptom. The injury was to the appellant's nose according to the original claim. Mr Rees was unable to account for the damage to his teeth and considered it highly unlikely if he had been hit on his nose his tooth roots would have been damaged. There has been a significant delay by the appellant in attributing the damage to his teeth to the 1988 accident, his claim being made six years after the accident. During that time he had been without symptoms. His teeth were deteriorating and since 1987 he had a substantial amount of dental treatment done, including a root canal, and the capping of a tooth which had broken off at gum level. It was not until 1992, that the appellant, when 11. advised he had four cracked teeth, attributed this to the accident in 1992. There are, however, no contemporaneous records to indicate that the damage to the teeth occurred at the time of the accident. The appeal is dismissed. (Jane H. Lovell-Smith) District Court Judge