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Acc V Gill (10/2004) - Acc Appealed & Lost! Transport to treatment

#1 User is offline   ernie 

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Posted 14 October 2004 - 04:18 PM

ACCIDENT COMPENSATION CORPORATION v GILL

District Court, Nelson (10/2004) 9 February 2004
Judge M J Beattie

J Sumner, Counsel for Appellant
D Wadsworth, Advocate for Respondent

RESERVED JUDGMENT OF JUDGE M J BEATTIE

[1]The issue in this appeal is whether the respondent is entitled to receive a contribution to the cost of her transport to her GP for the purposes of her treatment from him.

[2]This appeal arises from the primary decision of the appellant of 30 December 2002 where it declined to pay the respondent's travel costs to her GP. This decision was overturned on review by decision dated 1 April 2003.

[3]The facts which are relevant to the determination of this issue are not in dispute and may be stated as follows:
  • The respondent has cover under the Act for various urological problems arising from personal injury by medical misadventure.


  • The appellant is requiring regular ongoing treatment for her conditions both from her GP and also from time to time from specialist urologists.


  • The respondent resides at Richmond near Nelson and her GP is Dr Tim Ewer who has his practice at Mapua, a distance of some 20 kilometres from Richmond.


  • Dr Ewer has been treating the appellant since October 1993.


  • There are a number of general practitioners who have their practice in Richmond.


  • In 1994 the appellant had declined the respondent's request for payment of transport expenses under the then statutory regime on the basis that there were general practitioners closer at hand whom she could consult.


  • In October 2002 the respondent lodged another claim for reimbursement of costs of travel to Dr Ewer for the purpose of receiving treatment for her covered condition.


  • By decision dated 30 December 2002 the appellant declined the respondent's request on the grounds that Dr Ewer was not the nearest treatment provider and that the respondent could consult a GP in Richmond.


  • In a Review Decision dated 1 April 2003 the Reviewer found that the respondent receiving treatment at Mapua from Dr Ewer was practicable in terms of Clause 17 of Schedule 1 to the Act and quashed the appellant's decision declining her entitlement.

[4]At the Review Hearing the respondent gave evidence of her treatment by
Dr Ewer and of the considerable frequency with which she requires to consult him for her urological problems.

[5]At that Review hearing two letters were introduced, one being from Dr Stephen Mark, Urologist, and the other from Dr Andy Malcolm, Urologist. The letter from Dr Mark is dated 24 October 2002 and is addressed to Dr Ewer. It is by way of a report to Dr Ewer following Dr Mark seeing the respondent and examining her. I do not propose to set out the contents of the letter but note that it is technical and gives an indication of the nature of the appellant's various urological conditions and of the treatment which the appellant requires for them and which it is clear that Dr Mark is leaving to the expertise of Dr Ewer.

[6]The letter from Dr Malcolm is a letter of support for the respondent and states as follows:

"Yvonne has asked me to write to the Accident Compensation Corporation regarding her general practitioner. At the moment this is Tim Ewer. There appears to be some plans to divert her to a Richmond GP, who would be closer and therefore wouldn't be required to pay for her travel.

In my view this is an extremely short-sighted move. Yvonne has a complex urological history which Tim Ewer understands well. Also, I don't think Yvonne would mind if I stated that some of her problems are very complex in terms of other issues as well. I think for her to be forced to go to a new general practitioner would delay her return to normal activities. If we look at the overall benefit to Yvonne I think it would be very deleterious if she was forced to move general practitioners."

[7]In his submissions in support of the appeal Mr Sumner submitted that the appellant was not required to pay for the respondent's travel to Mapua to receive treatment from Dr Ewer as Dr Ewer was not the respondent's nearest available treatment provider. Counsel submitted that Regulation 8 of the Ancillary Services Regulations 2002 make it clear that the appellant is only required to pay for the cost of the respondent's journey to the nearest place where she is able to get the treatment she requires.

[8]Counsel further submitted that there were a number of general practitioners in Richmond and he noted that Dr Ewer was registered as a GP and not a specialist with any particular expertise in dealing with patients with urological problems. Counsel finally submitted that the Reviewer had erred in law in finding that Regulation 17(2)(b) authorised the payment of the expenses on the basis that the respondent would not receive treatment from any other GP in the Richmond area.

[9]Mr Wadsworth, Advocate for the Appellant, produced details of Dr Ewer's qualifications and submitted that he had a specialist interest in the type of treatment that he was giving the respondent. He further submitted that Dr Malcolm, her specialist, supported Dr Ewer as providing the treatment. Mr Wadsworth further submitted that the appellant had not put anyone forward at Richmond or Nelson who could provide the same treatment as the respondent was receiving from Dr Ewer.

DECISION

[10]The issue in this appeal requires a consideration of Schedule 1 to the Act and the provisions of the Injury Prevention, Rehabilitation and Compensation (Ancillary Services) Regulations 2002.

[11]Clause 3 of Schedule 1 to the Act states that -

"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 . . .

Transport (whether emergency or otherwise)."

The clause then goes on to state that it is subject to any regulations made under the Act.

[12]Ancillary Services Regulations have been made under the Act and these came into force on 1 April 2002 (SR 2002/13).

[13]Regulations 8 and 17 are the two regulations relevant to this appeal and they state as follows:

Regulation 8 Non-emergency transport by private motor vehicle:

(1)The Corporation is liable to pay 28 cents per kilometre towards the cost of non-emergency transport by private motor vehicle to rehabilitation, to the extent specified in subclause (2), if:

(a)the claimant:

(i)travels more than 20 kilometres from the starting point to the nearest place for rehabilitation within 14 days after suffering personal injury; and

(ii)presents himself or herself for rehabilitation at the end of the journey or, having made the journey, is unable to present for a reason beyond his or her control; or

(b)the claimant:

(i)travels more than 80 kilometres in 1 or more journeys within any calendar month; and

(ii)presents himself or herself for rehabilitation at the end of the journey or journeys or, having made the journey or journeys, is unable to present for a reason beyond his or her control.

(2)The Corporation is liable under subclause (1) to make the payment towards the cost of:

(a)the claimant's journey that is necessary to get to the nearest place where he or she is able to get the rehabilitation, whether or not he or she actually gets it there; and

(b)the return journey from that place if he or she makes a return journey.

(3)If the claimant is travelling to receive counselling provided by a person under the Accident Insurance ("Counsellor") Regulations 1999, the distance must be calculated on the basis of the claimant travelling to the nearest counsellor who meets the criteria set out in regulation 4(1)(b) of those regulations.

Regulation 17 Provision of ancillary services in alternative way:

(1)The Corporation may pay for, or arrange the provision of, ancillary services in a way that is different from that specified by these regulations if the claimant is entitled to receive payment for, or be provided with, those services under regulations 4 to 16.

(2)The alternative provision of ancillary services under subclause (1) must:

(a)be practicable; and

(b)have regard to the amount or amounts that the Corporation would otherwise have to pay under these regulations.

[14]The respondent's entitlement falls to be decided principally under Regulation 8(2)(a) and for the purposes of this decision it is assumed that the respondent would travel more than 80 kilometres in one or more journeys within any calendar month as that particular requirement is a pre-requisite for Clause 8(2)(a) coming into effect.

[15]The issue then is whether the respondent's journey is necessary to get to the nearest place where she is able to get the rehabilitation that she requires.

[16]I find that this provision, namely 2(a), requires the Court to determine whether Richmond is a place where the appellant is able to get the particular type of rehabilitation that she requires. If it is, then whether she chooses to go there or not is a matter for her, but it would be the basis on which it would be determined whether there was a transport cost entitlement.

[17]Whilst the Court is not aware of the state of the appellant's knowledge of the respondent's treatment requirements at the time when it declined her request, it was certainly subsequently provided with full particulars both from Dr Malcolm and Dr Mark. I note in particular the details provided by Dr Mark of the respondent's conditions and the type of treatment that she required.

[18]The Court has received no evidence whatsoever from the appellant on the composition of the general practitioners at Richmond. It has been provided with details of Dr Ewer's expertise and which I note is significantly greater than that of merely a general practititoner. In addition to being a member of the Royal New Zealand College of General Practitioners, Dr Ewer is a member of the Royal College of Physicians and a Fellow of the Royal Australasian College of Physicians and he has a Diploma from the Royal College of Obstetricians and Gynaecologists.

[19]There can be no question that Dr Ewer has the necessary knowledge, skill and expertise to treat the respondent's complex urological problems and he has been doing so to the full satisfaction of the specialist urologists for some years now. The Court has received not one jot of evidence from the appellant that there is any practitioner in Richmond who can provide that same level of service. The Court has been provided with no evidence which would establish that Richmond was the nearest place where this appellant was able to get the particular rehabilitation she requires.

[20]If it is the appellant's position that the respondent should go canvassing the GPs to see if there is someone who might be able to help her, then I find that this is not what is contemplated by the Regulations. If the appellant had been able to present a particular person with the necessary skill, knowledge and expertise, who was able and willing to take on the respondent, then it may be that the Corporation would have made out a case under Regulation 8(2)(a).

[21]I find that the respondent certainly satisfied the initial onus of proof which was upon her to establish, prima facie, the entitlement under that Regulation, and it was therefore for the appellant, in the context of this appeal, to disclose evidence which would establish a disentitlement. I find that it has failed to do so and that the respondent has made out a case for an entitlement to reimbursement of transport costs for her attendances on Dr Ewer at Mapua, providing of course that the frequency of those attendances bring her within Regulation 8(1)(b).

[22]The appeal to this Court is by way of rehearing and it is the case that I would agree with the submissions of Counsel for the Appellant that the Reviewer was wrong to rule that the respondent's entitlement could be considered and granted under Regulation 17 of the Regulations. The respondent was not seeking payment in any way different from that which is specified earlier in the Regulations and the provisions of Regulation 17 would not apply in the case of this respondent.

[23]For the reasons I have given I find that the decision of the Reviewer was correct but for different reasons than that which she gave. The effect of my decision is that the respondent is entitled to reimbursement of transport costs within the framework of the Ancillary Services Regulations providing that the frequency and distance criteria of Regulation 8 (b)(i) are satisfied.

[24]This appeal is dismissed and I direct that the appellant pay the respondent's costs of this appeal in the sum of $1,000.
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