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Accident Compensation Cases

Crabb v Accident Compensation Corporation (DC, 18/08/03)

Judgment Text

DECISION OF JUDGE M J BEATTIE ON THE PAPERS 
Judge M J Beattie
[1]
The issue in this appeal is whether the appellant is entitled to have reimbursed to him the cost of certain travel expenses incurred by him for the purposes of travelling to obtain treatment for his covered injury. 
[2]
The parties to this appeal have agreed that the Court consider that issue on the papers filed and in that regard the Court has received written submissions from the appellant and from counsel for the respondent. 
[3]
The relevant facts may be shortly stated and are not in dispute: 
The appellant has cover under the Act for a lower back sprain. 
The appellant resides at Paengaroa, near Te Puke, and a distance of 37 kilometres from Tauranga. 
In the course of treatment for his back injury the appellant was referred to Mr Brian Thorn, Orthopaedic Surgeon, and the appellant made three visits to Mr Thorn on 13 June 2002, 8 July 2002 and 20 August 2002. 
The appellant travelled by car from his home to Tauranga for each consultation, a round trip of 74 kilometres. 
On 21 August 2002 the appellant lodged a claim with the respondent for reimbursement of his travel expenses for each of those visits to Mr Thorn. 
By decision dated 16 September 2002 the respondent advised the appellant that his claim for reimbursement had been declined on the basis that it was not a claim which came within the Regulations which covered entitlement to reimbursement of travel costs. 
The appellant sought a review of that decision. In a decision dated 2 December 2002 the Reviewer confirmed the respondent's decision and stated that the appellant's claim did not come within the requisite regulations and that there was no discretion to depart from those regulations. 
[4]
In written submissions in support of the appeal the appellant made the following points: 
The appellant was unable to obtain an appointment with Mr Thorn within fourteen days of the injury through no fault of his. 
Regulation 8(1)(a)(i) did apply in that he travelled more than 20 kilometres from his home to the nearest place for rehabilitation. 
The fourteen day rule is not relevant as the appellant could not comply for reasons beyond his control. 
Clause 8(1)(b) of the Regulation did not apply as it only applied to more than one journey for treatment within a calendar month. 
[5]
The respondent, through counsel Miss K Smith, submitted that the relevant regulations, namely the Injury Prevention, Rehabilitation and Compensation (Ancillary Services) Regulations 2002 applied to the appellant's claim. She further submitted: 
That Regulation 8(b)(i) required travel of more than 80 kilometres within any calendar month before an entitlement to reimbursement came into effect. 
The respondent was bound by the Regulations and had no power to make any payment outside the provisions of those Regulations. 
As the appellant has not satisfied the conditions of Regulation 8 of the Ancillary Services Regulations, his claim could not be met. 
Decision 
[6]
Both parties have correctly identified that the issue in this appeal is covered by the Injury Prevention, Rehabilitation and Compensation (Ancillary Services) Regulations 2002. Those Regulations are applicable and were promulgated to be read in conjunction with Clause 3 of Schedule 1 to the Act which provides that the respondent 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 such treatment. One of which ancillary services is transport. That Clause in the Schedule then goes on to state: 
“This Clause applies subject to any regulations made under this Act. ”
[7]
Regulation 8 of the Ancillary Services Regulations made under the Act states as follows: 
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. ”
[8]
This Regulation applies to non-emergency transport by private motor vehicle which was the nature of the appellant's transport on the dates in question. It is clear from the facts that the travel for which reimbursement is sought was not made within fourteen days of the suffering of the injury and therefore Regulation 8(1)(a) does not apply. It does not matter that the reasons why the appellant could not get an appointment with Mr Thorn within fourteen days of suffering the injury were beyond his control, the fact of the matter is that travel did not take place within that fourteen day period and so that particular provision cannot apply. 
[9]
The appellant comes under Regulation 8(1)(b) which is the only alternative provided and for which the reimbursement of travel expenses can be made. That provision requires that the travel be more than 80 kilometres in one or more journeys within any calendar month. That expression must be given its ordinary meaning and therefore means “a period of time extending from one date to the corresponding date in the next calendar month.” 
[10]
It is a fact that the appellant in this case made three journeys each of less than 80 kilometres but the first two were made within the same calendar month. Thus I find that the kilometres travelled can be aggregated, and do bring the travel costs for those two journeys within the criteria required of Regulation 8. 
[11]
I find it is clear from the wording of Regulation 8(1)(b)(I) that the distances of the journeys can be aggregated for so long as they occur within a calendar month and in total amount to travel of more than 80 kilometres. This appellant travelled 148 kilometres within the calendar month commencing 13 June 2002 and is entitled to travel expenses for same at the rate provided in the Regulations. 
[12]
This appeal is successful to that extent and the respondent's decision is modified accordingly. 

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