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Accident Compensation Cases

Burgess v Accident Compensation Corporation (DC, 18/07/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
The issue in this appeal is whether the respondent was correct to rule that it had no power or authority to pay for certain psychiatric consultations which the appellant underwent in 1988 for personal injury for which she was subsequently granted cover. 
The facts which are relevant to the determination of this issue, as I find them to be, are as follows. 
The appellant is now aged 43 years and is now a qualified medical practitioner. 
It is now accepted that in her childhood she was subject to sexual abuse from within her family. Although this abuse did have a profound effect on her while she was growing up it seems that she did not seek any help at the time or subsequently and it was not until 1985 when she was a student at Otago University that she disclosed to Ms Marianne Quinn, a psychologist attached to the Student Health Service at Otago University what was likely to be behind the eating disorders and other problems she was then experiencing. 
Ms Quinn initially referred the appellant to Dr Hugh Clarkson, a psychiatric registrar at Dunedin Hospital and she had a number of consultations with him which proved helpful. However Dr Clarkson departed overseas at the end of 1987 and it was then that she was referred on to Dr Bragan, a consulting psychiatrist who was in private practice but who saw her at an establishment known as Ashburn Hall which was a residential establishment for persons suffering from various forms of emotional disturbance. 
The appellant saw Dr Bragan approximately once a fortnight from March to November in 1988. The appellant then moved away from Dunedin to Palmerston North where she sought help through the Doctors Health Advisory Service. 
The appellant continued to receive psychiatric therapy from various health professionals in the ensuing years but it was not until April 1994 that the appellant lodged a claim for cover under the Act for the sexual abuse that she had suffered in her childhood. 
This appeal is concerned only with the one issue, namely, whether the appellant is entitled to be reimbursed for the fees that she paid Dr Bragan of $50 per session for the 17 sessions that she had with him between March and November 1988. 
Whilst the appellant was granted cover on her claim in 1994, it was not until 1999 that she made application to the respondent for the payment of a vast number of different types of medical and associated type expenditure that she had incurred over the years. It seems as though the fees to Dr Bragan were in fact the first in time that the appellant was required to pay, the services of Ms Quinn and Dr Clarkson not incurring fees because of their particular positions. 
The respondent issued a decision on 5 July 1999 in which it stated that it could not consider reimbursement of Dr Bragan's treatment costs without evidence of a referral from a GP and particulars by way of receipts etc. of the amounts paid. 
The decision of 5 July 1999 incorporated a large number of other issues and the appellant sought a review of that decision in toto, but by the time a review hearing was scheduled the only outstanding issues were the payment of Dr Bragan's fees and the Ashburn Hall hospitalisation fees. That latter matter has not been brought forward as an issue in this appeal. 
In his decision the Review Officer ruled that the provisions of the 1992 Act applied and section 27 of that Act allowed the Corporation to make payment of treatment costs to the extent required or permitted by regulations made under the Act, but that regulations made under the Act were those that came into effect on 15 October 1990, being the Specialists Costs Regulations 1990, and that as Dr Bragan's treatment was undertaken in 1988 there was then no power to make payment for any such treatment and that therefore the request for payment had been correctly declined. 
It is common ground between counsel that the provisions of the Accident Insurance Act 1998 are the relevant provisions for the determination of this appeal as the decision on the request for payment was made after the coming into force of that Act. 
Mr Sara, counsel for the appellant, submitted as follows. 
1.
The appellant has cover under the 1998 Act by virtue of section 421 and by virtue of that section she has cover under Part 3. 
2.
The appellant's entitlement falls to be determined under section 426(3) and that Schedule 1 of the Act is the provision under which entitlements are to be determined. Under that Schedule the prescribed Regulations are the Accident Insurance (Insurers liability to pay costs of treatment) Regulations 1999 and Regulation 4A provides for liability of the manager to pay for the costs of treatment. There is provision in those regulations for the payment of counsellors' costs and the rate specified is greater than the costs claimed of $50 per hour and therefore that sum is payable. 
As a final submission, counsel for the appellant stated that the legislation must be made to work and that the provisions of section 426(3) must apply in the present case. 
Mr Barnett, counsel for the respondent, submitted as follows. 
1.
There was no statutory provision in force at the time the treatment was had (1988), and which gave an entitlement to payment prior to the commencement of the 1990 regulations. 
2.
The appellant would have had no entitlement to payment for her treatment costs during the time that those 1990 regulations were in force — that is until they were repealed in 1999, as those regulations only applied to treatment given after 1 July 1990. 
3.
Section 426 allows for payment of treatment costs for a person previously covered for costs incurred or given after 1.7.99
4.
Section 427 preserves entitlement to treatment costs incurred before 1.7.99 and the words “on that date” means the date the service was provided, not 1.7.99. That provision was applicable providing the service was provided before 1.7.99. 
5.
If counsel for the appellant's submissions were to be accepted it would mean that section 426 would give retrospective entitlement to a treatment cost which had not previously been allowed under the 1992 Act. 
Relevant statutory provisions 
Regulation 3 of the Accident Compensation (Specialists Costs) Regulations No. 2 1990 states: 
“Subject to these Regulations, these Regulations shall apply in respect of any treatment provided on or after the 15th day of October 1990 by a registered specialist to a claimant in respect of personal injury irrespective of — 
(a)
the date on which any fee for any treatment was charged or paid or 
(b)
the date on which the personal injury occurred. 
(2) These Regulations shall not apply in respect of any treatment provided before 15 th October 1990 by a registered specialist to a claimant in respect of personal injury, irrespective of the date of the charging or payment of any fee for the treatment. ”
Section 421 of the 1998 Act states: 
“A person is deemed to have cover under Part 3 if a claim for cover for that person has been accepted before 1 July 1999 for personal injury covered by the former Acts. ”
Section 426 states: 
“426. Application of sections 427- 451- 
(1)
Sections 427 to 442 provide for entitlements for a person who, having suffered personal injury before 1 July 1999, has cover accepted under any of sections 421 to 423. 
(2)
Sections 443 to 449 provide for entitlements for the spouse, children, and other dependants of such a person, if the personal injury for which the person has cover is death or is physical injuries from which he or she dies. 
(3)
The manager determines entitlements arising from cover accepted under any of sections 421 to 423 under Part 5 and Schedule 1, unless the effect of any of sections 427 to 450 is to the contrary. ”
Schedule 1 provides: 
“1. Insurer's liability 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 (2) 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 
c)
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. ”
Decision 
Consideration of the issue in this appeal must start from the basic premise, well settled by decisions of this Court, that the Corporation, being a creature of statute, is only entitled to do those acts which the statute authorises it to do and, save for areas where a general discretion may be vested in it, it cannot go beyond the bounds of its authority and power as provided in the Act for the time being in force. 
The treatment expenses for which reimbursement is now claimed were provided to the appellant in 1988 and were provided to her at a time when no claim for cover had been made under the Accident Compensation Act for the time being then in force. 
In the context of the facts of this case, the appellant's claim calls to be considered under the provisions of the Accident Insurance Act 1998, indeed it must be for the appellant to have any prospect of entitlement as it is common ground that the provisions of section 27 of the 1992 Act and the Accident Compensation (Specialists Costs) Regulations No.2 1990 would not give an entitlement as those provisions only allow for payment for treatment costs incurred after October 1990. 
Thus it was that prior to the coming into force of the Accident Insurance Act 1998 this appellant would not have had right of claim for reimbursement of Dr Bragan's fees. 
It is from that point that counsel for the appellant nevertheless argues that such a right which did not exist before 1 July 1999, right back to the time when the treatment was in fact received, now nevertheless has been created by the provisions of the Accident Insurance Act 1998. 
Because the appellant's cover was accepted under the 1992 Act it is necessary to consider the transitional provisions of the 1998 Act for ongoing entitlements to claimants granted cover under that 1992 Act. 
By section 421 the appellant is deemed to have cover under the 1998 Act and in accordance with section 426 the appellant has the benefit of the entitlements provided in sections 427 to 442. 
As previously noted, the appellant does not come within the provisions of s 427 by reason of the date of the purchased service pre-dating the 1992 Act or the regulations made under it, and therefore the question of the appellant's entitlements falls to be determined by reference to section 426(3) of the 1998 Act, and in particular Schedule 1 of that Act. 
Clause 1 of Part 1 of Schedule 1 is the empowering provision for the payment of treatment costs and I find that there is nothing in the wording of that provision, nor in section 426, that would establish that those provisions have retrospective effect to permit payment for treatment provided prior to 1 July 1999. Indeed the provisions to section 427 specifically allow for that situation and, as has been accepted, the appellant cannot come within the ambit of that provision. 
In the absence of a clear expression of retrospectivity in the provision itself I find that the provisions of section 7 of the Interpretation Act 1999 must apply and that the Act does not have retrospective effect. I agree with Mr Barnett's submission that if section 426 were to be considered as having retrospective effect it would give rise to an entitlement to payment of treatment costs that had not previously been allowed under the Act which it replaced. As the appellant had no right to claim reimbursement of those treatment expenses prior to the coming into force of the 1998 Act, and as the provisions of that Act do not have retrospective effect, I find therefore that no such right is created for her in respect of the particular claim in question. 
It is to be noted that by clause 3 of Schedule 1 an insurer can impose the condition that the insured seek the prior agreement of the insurer before treatment is undertaken. This provision would be rendered inoperative if it were to be held that those same provisions had retrospective effect. 
For the foregoing reasons therefore I rule as a matter of law that the respondent has no authority or power under the Accident Insurance Act 1998, or its predecessor the Accident Rehabilitation & Compensation Insurance Act 1992, for the payment of or reimbursement for the cost of treatment rendered to the appellant by Dr Bragan in 1988. This appeal is therefore dismissed. 

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