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Accident Compensation Cases

Anderson v Accident Compensation Corporation (DC, 29/07/03)

Judgment Text

Judge M J Beattie
The appellant presently resides in Queensland, Australia, and both parties to the appeal have requested that the Court consider the issue in this appeal “on the papers”
The issue in this appeal is essentially a question of law and there is no dispute as to the relevant facts. The issue is whether the appellant is entitled to have costs of treatment sought to be had in Australia paid for by the respondent as part of its liability to pay costs of treatment under Schedule 1 of the Act for personal injury for which the appellant has cover. 
The background facts relevant to the determination of this issue may be shortly stated as follows: 
The appellant is now aged 35 years and has been resident in Australia for some 7 years or so. 
In 1985 the appellant obtained cover under the 1982 Act as a consequence of infections and possible infertility caused by medical mishap consequent upon the insertion of an intrauterine contraceptive device. 
It is the case that thus far the appellant has not been able to conceive naturally. 
In April 2001 the appellant made application to the respondent for it to pay the costs of in vitro fertilisation (IVF), which procedure was proposed to be carried out at Mercy Hospital for Women in Melbourne, Australia. 
Following the appellant's application the respondent sought particulars of the proposed procedure. 
The respondent had earlier notified the appellant that its policy on the payment of the costs of the provision of fertility treatment had altered since it had first been raised by the appellant in 1995 and that in certain circumstances such treatment would be approved. 
The appellant indicated that for several reasons she could not return to New Zealand for the purposes of such treatment and this led to her request that the respondent meet the cost of such treatment at the Melbourne Hospital. 
By decision dated 17 April 2002 the respondent advised the appellant that it was unable to fund the IVF treatment outside New Zealand and that it would reconsider its decision if such treatment were to be sought in New Zealand. 
The appellant sought a review of that decision and a review decision was given on the papers on 4 July 2002, determining that the respondent had no power to pay for such treatment as it was contrary to the provisions of Section 128 of the Injury, Prevention, Rehabilitation and Compensation Act 2001. 
The appellant has now appealed to this Court against that Review decision. 
In her submissions to the Court the appellant contended that any perceived statutory prohibition of the payment of the cost for such treatment should be put to one side. She submitted that as a New Zealand citizen, born in New Zealand, she should be entitled to have the treatment allowed for under the Act at the place of her preferred provider in Australia. 
The appellant went on to assert that her unfortunate situation had arisen as a result of medical negligence and this fact should also be a reason why the respondent ought to agree to her request. 
The Court also received written submissions from Mr I G Hunt, Counsel for the Respondent. Simply put, Mr Hunt submitted that Section 129 of the Accident Insurance Act 1998 did not permit for the payment of treatment costs incurred outside New Zealand and that the respondent had no discretion to deviate from that statutory prohibition. Counsel referred to the decision of this Court in Siebers (215/01) in which a request had been made by a claimant for cost of treatment in a clinic in Seattle. Counsel submitted that the reason given by the Court for the refusal in that case was equally applicable in the present circumstances. 
As a first point it should be noted that the statute which covers the issue in this appeal is the Accident Insurance Act 1998 and not the Injury Prevention, Rehabilitation and Compensation Act 2001, as was applied by the Reviewer in his decision. However the provisions of Section 129 of the Accident Insurance Act 1998 are exactly the same as the provisions of Section 128 in the Injury, Prevention Rehabilitation and Compensation Act 2001, which the Reviewer had applied and therefore nothing turns on that point. 
Section 129 of the 1998 Act states as follows: 
“Payment for treatment or rehabilitation of 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. ”
The provisions of Section 130 do not apply in the case of this appellant, those provisions being associated with the provision of attendant care whilst outside New Zealand. 
The Court is not called upon to make any determination whether the IVF procedure which the appellant seeks to undergo comes within the meaning of “treatment” for her personal injury as this seems to be accepted as now being the case by the respondent as part of a policy change it has made. However, that policy change cannot extend to include a state of affairs which the statute expressly prohibits. 
It is the case that the Accident Insurance Act 1998 constitutes a code which sets out all the rights and entitlements of a claimant, and equally from the respondent's perspective, it sets out all its obligations and responsibilities. It is a statutory scheme requiring specific provision in the statute for any particular power, right or entitlement which either the claimant or the respondent is seeking to assert. 
As was submitted by Mr Hunt, the decision of this Court in Siebers (supra) succinctly sets out the legal position. That Decision stated at paragraph 19 onwards as follows: 
Against that statutory regime [arising in respect of the provisions of Sections 129, 130, and the Accident Insurance (Insurer's liability to payment costs of treatment) Regulations 1999, clause 18] 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. 
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. ”
The circumstances of the appellant's request are that she have her IVF treatment provided for her at the Mercy Hospital in Melbourne, Australia, that treatment said to be from her preferred provider. However, I must rule as a matter of law that the respondent cannot make payment for any such treatment. 
Whilst it has an obligation to make payment of the costs of an insured's treatment for personal injury in New Zealand, it has no power or authority to make payment for the cost of any such treatment which may be provided to the appellant in Melbourne, Australia. Section 129 of the Act is quite specific. 
In those circumstances therefore the respondent's decision of 17 April 2002 advising that it was unable to fund any treatment to be provided outside New Zealand was correct and this appeal is dismissed. 

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