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Makay-kroon V Acc 275/2002 Ai Act 1998 Rehabilitation - purpose, treatment?

#1 User is offline   ernie 

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Posted 24 September 2004 - 10:49 AM

MACKAY-KROON v ACCIDENT COMPENSATION CORPORATION
District Court, Dunedin (275/2002)

Judge M J Beattie

APPEARANCES
Mr P Sara, Counsel for Appellant
Mr C Hlavac, Counsel for Respondent


RESERVED JUDGMENT OF JUDGE M J BEATTIE
  • The issue in this appeal is whether the respondent is liable to pay for the cost of the appellant’s hydrotherapy treatment at the Wanaka Community Swimming Pool.

  • On the day of the hearing of this appeal the Court received written and oral submissions from both counsel, after which I adjourned the hearing to enable both counsel to make further submissions on the issue of whether or not the hydrotherapy received by the appellant fell within the definition of treatment within the meaning of the Act. Those submissions are now to hand.

  • The background to this appeal may be shortly stated as follows:

    At the material time the appellant was aged 57 years and was still badly affected by injuries she had suffered in a motor accident in 1982, in particular her left knee and her lumbar spine.

    Towards the end of 2000 the appellant lodged a claim with the respondent for reimbursement to her of the costs of attending hydrotherapy sessions at the Wanaka Community Swimming Pool together with the travel cost associated therewith.

    The appellant provided full particulars of the treatment she was receiving and receipts for the cost of same and her claim was considered by the respondent.

    In its decision dated 5 December 2000 the respondent declined the appellant’s claim stating inter alia as follows:

    “ACC can only pay for costs that are covered either via legislation or an Individual Rehabilitation Plan.

    As the aqua physio was neither part of an IRP or a standard treatment process ACC is unable to fund these costs”.


    The appellant sought a review of that decision and prior to the review hearing the respondent considered the claim again and came to the view that its decision was correct as the hydrotherapy sessions did not come within the definition of treatment. It therefore advised that the review hearing would be required to proceed as scheduled.

    At the review hearing the appellant gave evidence relating to the hydrotherapy treatment she received and the circumstances under which it was given.

    Evidence was introduced from Mr John Dunbar, Consultant Orthopaedic Surgeon, Lynn Weedon, Physiotherapist and Dr Caradoc-Davies, Physician in Rehabilitation Medicine that the hydrotherapy treatment was beneficial for the appellant.

    Mr Dunbar’s advice stated inter alia:

    “I think hydrotherapy would be very beneficial to her in terms of maintaining flexibility in her joints and offering her a chance to improve her muscle strength whilst relieving some of the weight bearing stresses on her knee and back”.

    In his decision the Reviewer stated that whilst he accepted the evidence of the doctors as to beneficial effects of the treatment he found that such treatment was not part of an IRP and that the hydrotherapy sessions could not be considered as treatment in terms of the Act. He therefore confirmed the respondent’s decision to decline to pay for same.

  • The particular facts which are relevant to this issue I find to be as follows:

    The hydrotherapy programme provided at the pool is under the control of Wanaka Physiotherapy which is supported in this venture by the Wanaka Community Trust.

    There is a physiotherapist present at all sessions.

    There is a charge for entry to the pool and an additional charge for the particular session.

    The appellant was involved in two different programmes.

    (1)The 50 plus disabled exercise classes
    (2)Aquarobics

    Each has a charge of $3.00 and $6.00.

    There was no individual or one-on-one attention by the physiotherapist.

    The medical specialists familiar with the appellant’s condition have all determined that the hydrotherapy treatment is beneficial for the appellant, particularly in so far as maintaining flexibility in her joints and improving muscle strength.

    There is no completion date for the need for such treatment. It is likely to be an ongoing requirement for so long as the appellant is physically able to undertake it.

    The appellant does not have an individual rehabilitation plan.

    STATUTORY PROVISIONS

  • Section 13 of the Act defines treatment as including:
    (a)Physical rehabilitation
    (b)Cognitive rehabilitation
    Clauses 1,2,3, and 4 of Schedule 1 of the Accident Insurance Act 1998 provide:

    “1. Insurer's liability to pay cost of treatment--- (1) The insurer is liable to pay the cost of the insured's treatment for personal injury for which the insured has cover if clause 2 applies, but the liability is qualified by subclauses (2) and (3).

    (2) The insurer is liable to pay ,---
    (a) If the amount payable for the treatment is prescribed, that amount; or
    (B) If a method of calculating an amount payable for the treatment is prescribed, the amount that results from that calculation; or
    © If paragraphs (a) and (B) do not apply, the cost of the treatment.

    (3) The insurer's liability under this clause in respect of a particular treatment is subject to the insured complying with any condition properly imposed under clause 3 in relation to that treatment or that type of treatment, non-compliance with which would unreasonably prejudice the insurer's ability to effectively manage the claim and any entitlement.

    2 . Insurer must pay –-- (1) The insurer is liable to pay the cost of the insured’s treatment if the treatment is for the purpose of enabling the insured to lead as normal a life as possible, having regard to the consequences of his or her injury, 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
    ©Has been, or will be, given at a time 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 that normally provides that treatment.

    (2)In deciding whether subclause (I) applies to the insured's treatment, the insurer 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
    ©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 insured is likely to receive from the treatment.

    (3)The insurer is liable to pay the cost of any service reasonably required as an ancillary service to treatment, such as accommodation, escort for transport for treatment, nursing, pharmaceuticals prescribed by a treatment provider who has statutory authority to prescribe pharmaceuticals, and transport (whether emergency or otherwise), if the service facilitates the treatment.

    (4)The insurer is liable to pay the cost of any emergency transport only if it is provided by a suitably qualified operator.

    3.Conditions relating to treatment--- (1) An insurer may impose a condition on an insured that, in relation to treatment that is neither an acute treatment nor a public health acute service, the insured seek the prior agreement of the insurer that ---
    (e)The treatment in question is treatment of a type that the insurer is liable to pay for under clause 2; and
    (f)The insurer will pay for that treatment.

    (2)An insurer may also impose reasonable conditions on the insured relating to payment for the insured’s treatment that are not inconsistent with this Act.
    (3)A condition imposed under subclause (2) may, for example, require the insured to--
    (a)Provide any information or declarations that the insurer may require
    (i)To verify that the insured suffered personal injury for which he or she has cover and that the treatment for which the claim for payment is made was for that personal injury; or
    (ii)To verify the date on which the treatment was provided; or
    (iii)To verify the specific nature of the treatment:
    (b)Meet any requirements imposed under sections 60, 63, or 115.

    4.Conditions insurer must not impose ---The insurer must not impose the following conditions on treatment:
    (a)A condition that directly or indirectly requires the insured to pay any part of the treatment provider’s fee that is a part that the insurer is liable to pay:
    (B)A condition that the insured must get the treatment from a particular treatment provider, unless the treatment is an assessment required by this Act or a second opinion”.


    SUBMISSIONS

  • Mr Sara, counsel for the appellant, submitted as follows:


    ·There is no evidence that the respondent imposed a condition on the appellant that she seek prior approval before seeking the treatment in question, therefore clause 3 (1) does not apply.

    ·The respondent is not prejudiced in any event in its ability to effectively manage the appellant’s claim by reason of any non-compliance with any condition properly imposed.

    ·The circumstances of the appellant’s claim satisfy clause 2 of Schedule 1.

    ·Clause 1 (2) provides a formula which can be applied as the cost of the treatment can be ascertained.

    ·Hydrotherapy is a form of physical rehabilitation and thereby falls within the definition of treatment under section 13.

    ·In the decision of PE v ARCIC (2/97) the Court determined that aqua jogging was treatment.

    ·The other rulings in that decision are not relevant to the issue in this appeal.

    ·There is no requirement in the definition of treatment that it must be hands-on or one-on-one with the treatment provider.

    ·Hydrotherapy is a form of physical activity supervised by a trained physiotherapist intended to preserve or promote physical rehabilitation.

    ·There is no prohibition on the course of treatment being open ended providing the criteria of clause 2 (1) (a) (B) and © are met.

    ·The 1998 Act was intended to be a retreat from the hyper regulated regime under the 1992 Act which resulted in anomalies of which the decision of PE (Supra) was a good example.

  • Mr Hlavac, counsel for the respondent submitted as follows:

    ·The hydrotherapy programme which the appellant engages in is not treatment of a type classified in clauses 1 and 2 of Schedule 1.

    ·The cost which the respondent has been asked to pay is not the cost of the insured’s treatment for personal injury but simply the cost of transport to and entry into the Wanaka Community Pool.

    ·The treatment is not provided by a treatment provider of a type that normally provides that treatment (clause 2 (1) (e).

    ·There is no personalised treatment programme providing specific exercise or goals for treatment.

    ·The lack of any specific treatment programme and treatment goals is a requirement by virtue of clause 2 (1) (B).

    ·The definition of rehabilitation under the Act clearly envisages a finite period of assistance. It is not intended to be provided for indefinite periods but for finite periods with specific goals.

    ·Because the hydrotherapy programme is not treatment of the type specified in clauses 1 and 2 the appellant is not entitled to payment of any ancillary costs consequent on such treatment such as transport or admission to the pool.

    DECISION

  • By way of opening comment, I would say that I agree with the submission of Mr Sara that the treatment provisions of Schedule 1 in the 1998 Act are an example of a retreat from the hyper regulated regime which applied under the 1992 Act. Under that Act the right to treatment was covered by a myriad of regulations where the rule being that unless it was specified in the regulation it was to be excluded from being an entitlement.

  • The provisions of clause 2 are a marked contrast to those regulatory requirements of the 1992 Act. Under clause 2 notions such as “necessary”, “appropriate”, “normal”, are the core criteria and the matter is very much to be considered by way of objective value judgement.

  • I have no hesitation in finding that the hydrotherapy programme such as that in which the appellant participated was a treatment within the meaning of section 13 of the Act. The advice from the specialists who have supported the appellant and who first advised her of the benefits of this programme are testimony to that.

  • The treatment received by the appellant was clearly intended for her physical rehabilitation, contrary to counsel for the respondent’s submission. The notion of rehabilitation does not necessarily mean the ultimate rehabilitation of a person so that they are free from the effects of the injury, but rather it is simply a means that which would enable the person to lead as normal a life as possible having regard to the consequences of the personal injury.

  • If treatment includes physical rehabilitation and rehabilitation is intended to assist the person in leading as normal a life as possible, then I find that counsel for the respondent’s submission that treatment which is rehabilitation is not intended to be provided for indefinite periods but for finite periods with specific goals does not sit at all well with the meaning of rehabilitation.

  • It may be that a person requires a particular form of treatment on a daily basis for the rest of their life in order for them to mark time as it were but nevertheless it is something which is enabling that person to lead as normal a life as possible having regard to the consequences of their injury. I can envisage an infinite number of treatment procedures which are in that category and cannot be seen as having a finite period even though they may have a specific goal of holding the line.

  • I am similarly not attracted to counsel for the respondent’s argument that because there is no one-on-one treatment between the appellant and the physiotherapist in the hydrotherapy programme, then it does not meet the concept of treatment particularly as the appellant’s other treatment providers such as her GP and specialist who have supported her in the hydrotherapy programme have had no involvement in the provision of the treatment.

  • Whilst the latter contention is quite correct, nevertheless the treatment programme is a programme conducted by Wanaka Physiotherapy with sponsorship and support from the Community Trust. In essence it would seem that the appellant and others who similarly avail themselves of this treatment are having that treatment subsidised by the Community Trust and the only observation I make is that this circumstance is thereby alleviating the respondent of a greater cost of physiotherapy such as would be the case if the appellant’s GP had indicated that she needed to undergo physiotherapy treatment at a cost of $30.00 or $40.00 per session.

  • Referring to the provisions of clause 2, I find that hydrotherapy is a type of treatment normally provided by physiotherapists, at least in the Wanaka region and it is recognised and accepted as a beneficial treatment by specialists, who ought to know.

  • Furthermore there is no evidence to suggest that it is some unusual form of treatment that would not normally be provided or recommended.

  • If regard is also had to clause 2 (2) (a) to (d), then I find that all those matters which need be taken into account are plainly present in the circumstances of this claim and as I have observed, the cost benefit would seem to be greatly in the respondent’s favour.

  • Finally, I note that whilst clause 3 allows for the insurer to impose a condition on an insured in relation to treatment, I find that that clause does not yet apply in the case of this appellant. She has had no conditions imposed on her in relation to the treatment of her injuries prior to her undertaking this treatment. I interpret the word “treatment” in clause 3 as meaning treatment in general rather than any specific treatment and that it is only further down in the clause that the word treatment becomes more specific as meaning a particular type of treatment.

  • Finally, it is noted that part of the appellant’s claim relates to costs of travel to and from her treatment at the Wanaka Community Pool. The amount claimed seems to be comparatively modest at some $4.80 per visit. Counsel for the respondent accepts that such cost would be recoverable as an ancillary service to treatment pursuant to clause 2 (3) if it be established that the appellant is receiving treatment as defined under the Act.

  • For the reasons given I find that the appellant is receiving treatment within the meaning of the Act and within the scheme and purpose of clauses 1 to 4 of Schedule 1. In those circumstances she is entitled to have the cost of that treatment met by the respondent, together with the ancillary cost of transport.

  • This appeal is therefore successful. The effect of this decision is that the decision of the respondent to decline to pay for the costs of such treatment is quashed. The respondent is required to pay the treatment costs as claimed by the appellant together with the associated transport costs. For the future I would envisage that the appellant may wish to enter into an individual rehabilitation plan which would specifically provide for the hydrotherapy treatment for her continuing physical rehabilitation.

  • The appellant, being successful, is entitled to costs, which I fix at $1,000.00.


Here is the judgement in a rtf word file.

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#2 User is offline   hukildaspida 

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Posted 03 July 2012 - 02:30 PM

Just what the Doctor ordered for these cold winter days
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