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Accident Compensation Cases

McCORMACK v ACCIDENT REHABILITATION & COMPENSATION INSURANCE CORPORATION (DC, 20/03/95)

Headnote - Brookers Accident Compensation Reports

Judgment Text

JUDGE IMRIE:
I find that the appeal succeeds. 
Introduction 
The issue in this appeal is whether the appellant is entitled to be compensated for the cost of a CT scan pursuant to the Accident Compensation (Radiologists Costs) Regulations 1990. 
The appellant suffered personal injury by accident on 12 April 1994 when he suffered a lumbar strain while lifting packets of tiles. Mr McCormack completed an M46 form of claim for cover and treatment expenses on 18 April 1994 and it appears that that was lodged with the Corporation on 21 April 1994. Dr Lawson completed the medical certificate in the claim form on 18 April 1994. He recorded that the appellant had suffered a lumbar strain and had been referred for physiotherapy. There is on the Corporation file a further medical certificate from Dr Lawson dated 28 April 1994 stating that the appellant was still unfit for any type of work for 3 weeks. It appears that on the same day the appellant completed and lodged a form of application for entitlement and a C4 form — earnings questionnaire for a self employed person. 
The next document on the Corporation's file is an account dated 3 May 1994 from the Mercy Radiology Group to the Corporation in respect of Mr McCormack: 
For professional services CT spine, three levels 
$554 
030594 pay cheque 
$90 
Total amount payable 
$464 ”
The Corporation in a letter dated 9 May 1994 declined the claim on the ground that prior approval for the CT scan had not been obtained. The relevant part of the letter reads: 
“ACC has received the enclosed invoice for a CT Scan. 
The Accident Compensation (Radiologists Costs) Regulations (No 237) 1990 detail the criteria that must be met before approval can be given. 
These criteria include: 
(1)
The requirement that prior approval from ACC is obtained. 
(2)
That there is proposed hospital treatment required. 
(3)
Approval sought for treatment which is not listed in the Accident Compensation Corporation schedule will not be considered. 
In your case, you did not obtain prior approval before having the scan. ”
On 12 May 1994 the appellant wrote to the Corporation for the attention of Nicole Humphries, his case manager, expressing his dissatisfaction about the letter on the CT scan. He stated: 
“I am extremely distressed to receive this letter regarding ‘Radiologists Costs’. I visited your office and discussed the possibility of my arranging to have the scan before my appointment with the surgeon. The reason being, that it would save cost and time, in that the surgeon would have the result of the scan when I visited him. 
You and I discussed the above and I was led to believe that ACC would pay all or most of the costs incurred. With this assurance I was able to advise the Mercy Radiology that I had verbal clearance that ACC would meet this cost. ”
[(1995) 1 BACR 94, 96]
The appellant sought a review of the decision. The review was heard on 28 July 1994. Mr McCormack gave evidence on oath. In summary Mr McCormack said in evidence that when he went to see Dr Lawson the doctor recommended physiotherapy and a CT scan and he gave the appellant the name of two or three specialists to make an appointment. He had to wait about 4 or 5 weeks for an appointment with a specialist and because Dr Lawson had told him about a CT scan and how to go about getting one, he rang up Mercy and they gave him an appointment for a scan which was prior to seeing the specialist. He thought that was good because the specialist would have the result of the scan when he went to see him. 
He said that during the course of one of his visits to the Corporation's office he was chatting to the receptionist saying that he was lucky because he had an appointment to see Mr Otto and he had an appointment to have the scan before he saw Mr Otto. The receptionist wrote some notes about a piece of paper that she thought he might need because she thought he probably had things in the wrong order, but she was not sure so she got Nicole Humphries, his case manager, out into the reception area, and the appellant spoke to her. He told her what appointments he had and she said there was no problem, he had been given the wrong order and had to have the right piece of paper or his claim would not get accepted by the Corporation. She said that there was no problem. Accordingly, he had the scan done at Mercy. He was asked at Mercy what the story was with ACC and he said he had a verbal from Nicole that ACC would pick up the cost or most of it. The person who took the scan was happy that he had a verbal okay, and the scan was taken. From the account it appears that Mr McCormack paid at the time of the scan the sum of $90. 
At the review hearing Mr McCormack said that the person in the reception office to whom he was chatting said that they had better talk to Nicole in case they had got things out of order. The receptionist gave Mr McCormack the impression that he was supposed to see the specialist and then if the specialist said to have a scan, have the scan. He said it just happened that he had a date for the scan before he saw the doctor and that seemed logical to him. 
He was asked at the review hearing by the Corporation's representative if, in his discussions with Nicole Humphries, there was anything definite stated about him going ahead and having the scan. He said that he said to her that he had the two dates and she said “well that's all right”. He said that Ms Humphries said that “that's all right, we'll pay all or most of it”. He probably asked if he had any paper work to do and indicated that there was no request from Ms Humphries to have anything from the specialist in writing. 
At the hearing the review officer told Mr McCormack that Ms Humphries was away sick and he asked the Corporation's representative to get her to write to the review officer about what happened on that day. Following the review hearing a memorandum was received from Ms Humphries which stated: 
“I recall having a conversation with Mr McCormack on 29 April 1994 when he brought his C15 into the office. I remember discussing his entitlement to weekly compensation and procedure that would have to be carried out, because he is self employed. I do not recall discussing a potential CT scan with him. ”
The review officer in her decision said (in part):[(1995) 1 BACR 94, 97] 
“Despite the applicant's evidence that there was a verbal agreement, the case manager has indicated she could not recall discussing a potential CT scan with the applicant during his visit on 29/4/94. In this case I have to go along with the case manager's recollection of the interview. 
While holding every sympathy with the applicant, under the circumstances I find that as there is no evidence of prior approval being given by the Corporation, either in writing or verbally, the Corporation was correct in declining to meet the CT scan invoice. This application is therefore unsuccessful. ”
Appeal hearing 
At the hearing of the appeal on 8 December 1994 Mr McCormack presented a written note with copies of the relevant documents. He made these points: 
(1)
Dr Lawson said he was to have the CT scan. 
(2)
Mr Otto in a letter dated 1 June 1994 said the scan had to be done. 
(3)
His case manager knew he was booked to have a scan and at no time told him he required a consent form from ACC. 
(4)
He has received a verbal apology from the case manager team leader admitting the case manager had made an error and apologising. He does not see why he has to pay for the Corporation's error. 
Mr Lucie-Smith presented written submissions. He set out the background to the appeal and referred to ss 27(1) and 179(2) and (4) of the Act and to the Accident Compensation (Radiologists Costs) Regulations 1990. He referred to reg 4(1) and the Schedule and submitted that whether or not verbal approval was given by the Corporation (which was denied) the strict terms of the regulations have not been complied with: 
(a)
There is no application by a registered specialist, only if the applicant's evidence is believed, by the appellant himself. 
(b)
The information necessary for the Corporation to consider a grant of approval has not been provided ie to determine whether the purpose of the scan is for determining whether further treatment is required, and whether the Corporation would grant approval for that further treatment by a registered specialist. 
Mr Lucie-Smith submitted that whatever may have been said verbally to the appellant the regulations are mandatory and the information required to be provided to the Corporation for a decision to be made by the Corporation was not and could not have been provided by the appellant, only by a registered specialist. If the appellant was not due to see the registered specialist until after the scan was obtained, there is no way that the information could have been forthcoming from the specialist via the appellant, therefore he submitted that whatever impression the appellant may have gained from the Corporation, there is no basis for the appeal to be allowed. 
Mr Lucie-Smith said that in any event, the case manager for the appellant has been given an opportunity by the review officer to deal with the appellant's contention that verbal approval was given. That person has indicated that she recalls a discussion with the appellant, but does not recall any request for prior approval of radiology cost. 
Consideration and decision 
It is appropriate to set out part of s 27 of the Act:[(1995) 1 BACR 94, 98] 
27. Treatment and physical rehabilitation—(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 cost of that specified service to the extent required or permitted by regulations made under this Act. 
(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. 
(7) Where the Corporation considers that any specified service was unnecessary, inappropriate, untimely, not of the required quality, or excessive in number or duration, it— 
(a)
Shall give the provider (and, if appropriate, the purchaser) a reasonable opportunity to comment on the matter; and 
(b)
May report the circumstances to any appropriate body with a view to the institution of disciplinary proceedings, and to any other body that may be appropriate. ”
The inclusion in subs (1) of the words “the cost of” means that the subsection can be read as permitting regulations to set limits on only the Corporation's contribution to the cost of a specified service, rather than to set limits on a person's entitlement to a contribution to those costs. However, s 167(1)(l) reads: 
167. Regulations—(1) The Governor-General may from time to time, on the recommendation of the Minister, by Order in Council, make regulations— 
(l) Prescribing the extent to which the Corporation may meet the costs of social rehabilitation, health care treatment, services, and certificates, and related transport costs, and prescribing the circumstances in which, and the method by which, the Corporation shall make any payment in respect of that rehabilitation or those treatments, services, certificates, and related transport costs, and may enter into arrangements and make contributions in respect of them; and prescribing the persons to whom those payments may be so made: ”
Section 167(5) reads (in part): 
“(5) Without limiting the matters that may be prescribed by regulations, regulations made under paragraph (l) of subsection (1) of this section may— 
 
(d)
Provide that the Corporation shall not pay any of the cost of specified rehabilitation, certificates, treatments, services, or related transport, or shall pay some or all of such costs only if conditions specified in the regulations or by the Corporation are met: 
(e)
Provide that the Corporation shall make payments in respect of rehabilitation, treatments, certificates, services or related transport on such other basis as is specified in the regulations: ”
Accordingly, the regulations may impose conditions for payment. Regulation 4(1) of the Radiologists Costs Regulations reads:[(1995) 1 BACR 94, 99] 
“Subject to these regulations, the Corporation shall pay the costs of treatment provided by a radiologist to any claimant in respect of personal injury … to the extent specified in the Schedule to these Regulations. ”
The appeal turns on what is said in the Schedule about computerised tomography. The relevant part of the Schedule reads: 
CT. Computerised tomography — only for head injuries or spinal injuries or both and only on request by a registered specialist in respect of whom the Corporation is not prohibited from making a payment in respect of that treatment by section 27B of the Act, and with the prior approval of the Corporation. 
The Corporation shall not grant such approval unless— 
(a)
The application for approval specifies that the computerised tomography is for the purpose of determining whether to request treatment to which Part II of the Schedule to the Accident Compensation (Specialists Costs) Regulations (No 2) 1990 applies, and is likely to be followed by a request for approval for such treatment; and 
(b)
The Corporation is satisfied that if such a request were to be made approval for that treatment would be likely to be given. 
 
(1) Scan of brain (8 or more slices) 
273.50 
(2) Scan of spine (25 slices or less) 
328.00 
(3) Scan of spine (25 or more slices) 
464.75 
(4) Scan of chest, abdomen, pelvis, or extremities (any number of slices) 
328.00 ”
The first point is whether the treatment was carried out with the prior approval of the Corporation. I consider that Mr McCormack has established it was. He gave evidence that he received prior verbal approval. His explanation as to how he received that approval is logical. His credibility was not seriously put in issue. The person whom he says gave him prior approval has said she spoke to him but does not recall discussing a potential CT scan with him. She did not say that she did not discuss the scan with him and did not say she did not give him verbal approval. On Mr McCormack's evidence it is more likely than not that he did have prior verbal approval to the CT scan and he has therefore established that he did. 
The next question is whether that approval was and is effective having regard to the requirements in the Schedule for: 
(a)
A request by a registered specialist; 
(b)
The application for approval specifying the purpose of the CT scan and that it is likely to be followed by a request for approval of treatment; and 
(c)
The Corporation being satisfied that if such a request were made approval for that treatment would be likely to be given. 
These requirements were not fulfilled in Mr McCormack's case. However, the Corporation must be taken to have waived them when the prior verbal approval was given. 
I do not consider that the clause in the Schedule which I have set out relating to computerised tomography means that the verbal prior approval given to Mr McCormack was ineffective. Regulation 4(1) does not state that the Corporation cannot pay the costs of the CT scans unless all the requirements of the clause on computerised tomography are fulfilled, [(1995) 1 BACR 94, 100]reg 4(1) limits payment of the cost for treatment to the extent specified in the Schedule. It does not contain a phrase such as “prescribing the circumstances in which … the Corporation shall make any payment” (s 167(1)(l)) or the word “conditions” (s 167(5)(d)). Having regard to the wording of reg 4(1) the Corporation is not limited to paying for treatment only in cases where there has been a request by a registered medical specialist and where each of the requirements in subcls (a) and (b) for computerised tomography has been complied with. Section 167(5)(d) allows the regulations to set conditions specified for payment. If the Schedule to the Radiologists Costs regulations sets any conditions for payment for CT scans the only condition it sets is that of prior approval and in this case that was obtained. (Indeed, having regard to the wording of reg 4(1) it may be argued in an appropriate case that payment can be made without prior approval.) In this case, however, prior approval was given and the Corporation must be taken to have waived any other requirements in the Schedule when prior verbal approval was given. It should now pay the cost for the treatment to the extent specified in the Schedule. 
The result is that the decision of the Corporation is revoked and the appeal succeeds. 

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