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Accident Compensation Cases

Siebers v Accident Compensation Corporation (DC, 07/08/01)

Judgment Text

Judge M J Beattie
The issue for determination in this appeal is whether the appellant is entitled to recover costs of treatment incurred by her in the United States arising from her personal injury by accident suffered in New Zealand. 
The facts which are relevant to the determination of this issue are not in dispute and can be stated within a short compass. The appellant is a New Zealand citizen and resident and on 20th of May 1991 she suffered a work related back injury during the course of her work as a nurse aide. The injury occurred whilst she was lifting a patient and this injury was diagnosed as a prolapsed disc at L5/S1. 
In August 1991 the appellant underwent a laminectomy and discectomy at L5/S1. Following that surgery her condition did not improve and she underwent further surgery in March 1992 for an anterior lumbar spinal fusion. 
Despite that further surgery the appellant continued to suffer chronic lower back pain and in the ensuing years several medical specialists have examined her and sought to determine the cause of her continuing pain but no reason or cause could be found. Indeed at one stage it was thought that it may have been in the appellant's mind. Psychiatric assessment was undertaken and the result of that was that the appellant was not suffering from any psychiatric condition, nor was it the case that the pain was not real and not of extreme severity. 
In January 1999 Mr Poplawski, the orthopaedic surgeon who had been involved with the appellant's case throughout and who had been involved in her surgery, advised the Corporation that he was aware of a medical clinic in Seattle, Washington, USA, which had specialist expertise in looking at and treating the type of case that the appellant presented. 
Previously the appellant's case had been reviewed by Professor Pollock, neurologist, of Dunedin and he had first mooted the possibility of obtaining assistance from an overseas clinic and he had in fact identified the Mayo Clinic as being a clinic which might be able to assist. 
Mr Poplawski was aware that the Harbourview Medical Centre in Seattle, to which a Dr Chapman was attached, had been obtaining significant results in difficult cases such as that of the appellant and Dr Chapman had indicated that he might be able to help. He had requested certain radiological data to be obtained and presented to him for consideration. 
That information was provided, including lumbar spine extension films, repeat CT mileogram and MRI neurography. The respondent paid for the cost of those tests and these were provided to Dr Chapman at the Harbourview Medical Centre. By letter dated 31st March 2000 Mr Poplawski advised the respondent that Dr Chapman had indicated that there were certain procedures which he considered would be available to the appellant and which would offer some hope of success. 
On the 7th May 2000 the appellant requested the respondent to fund the cost of the appellant attending the Harbourview Medical Centre in Seattle and undergoing certain microsurgery there which had been outlined by Dr Chapman. 
By letter dated 11 May 2000 the respondent advised the appellant that the provisions of s 129 of the Accident Insurance Act 1998 did not permit for the payment of treatment outside New Zealand as was envisaged by the appellant and therefore her request for funding was declined. It is that decision which is now the subject of the appeal to this Court. 
It should however be noted that the appellant, accompanied by her husband, did travel to the Seattle where she was treated by Dr Chapman and underwent extensive surgery and the result is that the appellant's physical condition has been greatly enhanced and her recovery is continuing. The total cost of surgery and associated support treatment incurred by the appellant at the Harbourview Medical Centre amounts to approximately NZ$205,000.00. 
Although, it is not relevant to the issue for determination, nevertheless it was a matter of some significance and importance to the appellant, the specialists at Harbour View Medical Centre identified what might be considered to be deficiencies in the surgery that had been undertaken here in New Zealand, including the finding of a bony fragment which was impinging on a nerve root, and of the instability of the staple inserted at the lumbar fusion. 
In his submissions to this Court on behalf of his wife, Mr Siebers emphasised the fact that there was no expertise or facilities within New Zealand to undertake the particular surgical procedures which were undertaken and which were required in order to provide relief from the unrelenting pain which the appellant had been suffering for some 9 or more years. In essence, the surgery involved was described as microsurgery and in the main was to do with relieving pressure on nerves and the removal of the remnant of a disc. 
It was the appellant's plea that in view of the fact that surgery of this type was not available within New Zealand and without it the appellant would have continued to be fully disabled and in great pain, it should be that the provisions of the Act should allow for the cost of remedial treatment, made necessary as a consequence of her personal injury, at an overseas clinic where such necessary treatment can be provided. 
Mr Hlavac, Counsel for the respondent, submitted that the combined provisions of s 129 and s 130 of the Act did not permit the payment of the treatment costs claimed and that there was no discretion vested in the respondent to go outside the statutory guidelines. Counsel further submitted that the Act was a code which sets out all statutory entitlements and that the respondent was bound by the provisions of the statute and could not go outside it as to do so would be for it to act ultra vires. 
Although the appellant's claim for cover was originally accepted under the Accident Compensation Act 1982, it being the Act in force at the time that cover for her injury was granted, nevertheless by virtue of the transitional provisions of the Accident Insurance Act 1998 the particular entitlement claim which the appellant has made falls to be dealt with under the provisions of the 1998 Act. 
Section 129 of the Act makes specific reference to the payment for treatment or rehabilitation to an injured person outside New Zealand. That section and its associated s 130 state as follows: 
Payment for treatment or rehabilitation to insured outside New Zealand - 
An insurer is not liable to pay for costs incurred outside New Zealand for any treatment or rehabilitation, unless section 130 applies or regulations made under this Act require such a payment. 
Payment for attendant care to insured outside New Zealand — 
An insurer is liable to pay for attendant care for an insured who is entitled to receive attendant care and who is outside New Zealand. 
The insurer is not liable to pay for attendant care for longer than 28 days in each period during which the insured is outside New Zealand. 
The insurer is liable to pay the amount that the insured would have received if he or she had been in New Zealand during the period he or she is outside New Zealand. ”
The only regulations which have been promulgated under the 1998 Act are the Accident Insurance (Insurer's Liability to Pay Costs of Treatment) Regulations 1999 and Clause 18 of those regulations is the only one that has reference to payment of overseas treatment costs. That provision stating as follows: 
This regulation applies when— 
An insured, who is ordinarily resident in New Zealand, suffers a work-related personal injury outside New Zealand for which he or she would have cover if he or she had suffered it in New Zealand; and 
Because of the injury, the insured incurs costs for overseas treatment or emergency overseas transport or both; and 
The remuneration for the employment during which the insured suffered the injury is remuneration that, for income tax purposes, is treated as income derived in New Zealand 
The insurer is liable to pay for treatment only if the treatment was given within 6 months of the insured suffering the injury. ”
Against that statutory regime, the appellant seeks in some way to obtain an indulgence and for a departure to be ordered by the Court requiring the respondent to make payment of all or part of the costs of treatment incurred by the appellant at the clinic in Seattle. Whilst the Court has the greatest sympathy for the appellant and the years of pain and frustration she has put up with before obtaining relief as a result of surgery overseas, the Court must nevertheless determine the legal obligations of the respondent on the one part and the legal entitlements of the appellant on the other that are provided under the Act. 
Mr Hlavac was correct when he submitted that the Act must be interpreted as a code and covers all the rights of claimants and encompasses all the obligations imposed upon the respondent as the insurer. Simply put, if an entitlement is to be obtained under the Act then the Act must state that such an entitlement is available, and if so the criteria which must be satisfied before the entitlement can be provided. 
Such is the case with s 129 which provides for a very restricted provision of treatment or care costs outside New Zealand and the short point is that s 129 does not permit the respondent to pay any such costs incurred outside New Zealand except for that limited period for attendant care, and under the Regulations for emergency treatment for a New Zealand resident for a work related personal injury suffered outside New Zealand. 
Thus it is that Regulation 18 is itself extremely restrictive and in the main would only apply to a New Zealand resident temporarily working outside New Zealand and who suffers injury in the course of such work. 
The provisions of s 130 and Regulation 18 indicate that it was the clear determination of the legislature to not allow for overseas treatment costs to be part of the accident compensation regime, even in circumstances where, as in the case of this appellant, there is not available within New Zealand the type of treatment that the claimant required to alleviate the pain or treat the injury that has been suffered. 
In some quarters this situation, as is highlighted up by the facts of the present case, might be considered to identify an anomaly in the legislation but this is not a matter which the Court can cure by judicial activism and intervention. The Court cannot create some discretionary power for the respondent to exercise where clearly the Act does not allow for any such discretion. 
Accordingly then, whilst this appellant on the face of it has obtained less than satisfactory treatment within New Zealand for her injuries suffered here in New Zealand and where those injuries were not able to be treated here, apparently because of a lack of expertise and facilities, nevertheless she cannot obtain recompense for the costs that she has incurred in having that treatment carried out overseas. 
That is the position until the legislature sees fit to state otherwise. 
For the foregoing reasons therefore the Court must rule that the respondent's decision to decline to pay any of the appellant's treatment costs incurred by her at the Harbourview Clinic in Seattle, Washington, was correct. 

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