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Accident Compensation Cases

Gill v Accident Compensation Corporation (DC, 10/10/03)

Judgment Text

Judge M J Beattie
The issue in this appeal is whether the appellant is entitled to reimbursement for certain prescription charges incurred by her with her General Practitioner. It is this respondent's contention that the particular charges are not provided for in the Act or regulations made thereunder and therefore no reimbursement can be made. 
The facts relevant to the determination of this issue are not in dispute and may be stated as follows: 
The appellant is quite severally impaired by reason of her covered injury and has had several operations for same over the past three years. 
The appellant's whole person impairment has been assessed as being 72%. 
The appellant is under the general care of her GP, Dr Tim Ewer, who carries on his medical practice at Mapua, a distance of some 20-km from where the appellant resides in Richmond. 
Some of the drugs provided and prescribed for the appellant such as pethidine are on short-term prescription of ten days at a time. 
In September and October 2002 the appellant obtained repeat prescriptions for her medication by telephoning her GP and he faxing the prescriptions for same to the Pharmacy in Richmond for delivery to the appellant. 
For each prescription so signed and faxed, Dr Ewer charged a fee of $6.00. 
In December 2002 the appellant applied to the respondent for reimbursement for those charges she incurred with her GP. 
By decision of 13 December 2002, the respondent advised that such charges could not be reimbursed as they were not charges which came within the Act or Regulations. 
The appellant sought a review of that decision and in a review decision dated 17 February 2003, the Reviewer confirmed the respondent's decision, he holding that the particular charge was not one which was provided for in the Act or Regulations. 
In his submissions to the Court, Mr Wadsworth advised that were the appellant to be required to travel to have a consultation with her GP on every occasion that she required a renewal of her prescriptions, the cost of same to the respondent would be $45.00 including transport as compared to the $6.00 that was the charge if the GP faxed the prescription without the necessity of a consultation. 
Mr Wadsworth further submitted that the appellant's GP was well versed in the appellant's condition and he was a doctor in whom she had confidence and it was not a situation where there would be continuing renewal of prescriptions without appropriate monitoring by regular consultations. He submitted that the method of the appellant obtaining renewal of her necessary prescription medicines was clearly cost effective. 
It was Mr Wadsworth's further submission that the particular type of costs that was in question here was covered by clause 1 (c) of Schedule 1 to the Act or alternatively clause 2 of Schedule 1 of the Act. 
Miss Smith, counsel for the respondent, submitted that clause 1 (c) did not apply but rather the matter was covered by clause 1 (b). Counsel further submitted that the entitlement was not covered by the Ancillary Services Regulations and that it was not covered under the General Practitioner Treatment Costs as there was no visit by or to the GP. 
Counsel submitted that neither the Act nor Regulations made any provision for the respondent to be liable to pay for the cost of prescriptions being signed and faxed over the telephone. Counsel submitted that it was not appropriate to encourage such a practice as an alternative to claimant's consulting their GP, given the importance of medical practitioners monitoring their patients' conditions and having regard to the potentially damaging effects of certain drugs. 
Costs of treatment are one of the entitlements provided for under the Act, coming from the general provision as stated in section 69 (1) (A) to the more specific in clauses 1 to 6 of Schedule 1 to the Act and certain Regulations made thereunder. Clauses 1 and 2 have been asserted as being applicable, those two clauses stating as follows: 
“1. Corporation's liability to pay or contribute to cost of treatment 
The Corporation is liable to pay or contribute to the cost of the claimant's treatment for personal injury for which the claimant has cover if clause 2 applies,- 
to the extent required or permitted under an agreement or contract with any person for the provision of treatment; or 
if no such agreement or contract applies, to the extent required or permitted by regulations made under this Act; or 
if paragraphs (a) and (b) do not apply, the cost of the treatment. 
In subclause (1) (c), cost means the cost- 
that is appropriate in the circumstances; and 
as agreed by the Corporation and the treatment provider. 
2. When Corporation is liable to pay cost of treatment 
The Corporation is liable to pay the cost of the claimant's treatment if the treatment is for the purpose of restoring the claimant's health to the maximum extent practicable, and the treatment- 
is necessary and appropriate, and of the quality required, for that purpose; and 
has been, or will be, performed only on the number of occasions necessary for that purpose; and 
has been, or will be, given at a time or place appropriate for that purpose; and 
is of a type normally provided by a treatment provider; and 
is provided by a treatment provider of a type who is qualified to provide that treatment and who normally provides that treatment; and 
has been provided after the Corporation has agreed to the treatment, unless clause 4(2) applies. 
In deciding whether subclause (1) (a) to (e) applies to the claimant's treatment, the Corporation must take into account- 
the nature and severity of the injury; and 
the generally accepted means of treatment for such an injury in New Zealand; and 
the other options available in New Zealand for the treatment of such an injury; and 
the cost in New Zealand of the generally accepted means of treatment and of the other options, compared with the benefit that the claimant is likely to receive from the treatment. ”
Clause 3 provides inter alia, for payment of the cost of ancillary services related to treatment, such services including pharmaceuticals prescribed by a treatment provider. There is no issue with that aspect of the matter as the cost of the drugs prescribed to the appellant are paid for, it is simply the particular charge made by Dr Ewer for the phone faxing of the prescription that is in issue. 
Regulation 10 of the Accident Insurance (Insurer's Liability to Pay Costs of Treatment) Regulations 1999 tie in with Clause 1 (1b) of the First Schedule and provide that the Corporation is liable to pay the Registered Medical Practitioner's Costs “if the insured visits or is visited by the Registered Medical Practitioner”
None of the provisions of the Ancillary Services Regulations 2002 apply to the particular matter in issue in this appeal and so the matter falls to be determined by clauses 1 and 2 of Schedule 1 and the Cost of Treatment Regulations 1999. 
It is often stated in various provisions of the Accident Compensation Legislation that the particular entitlement being sought must be considered to be cost effective by the respondent before it may determine that such an entitlement ought to be provided, but it seems in this case that the respondent is quite accepting of paying a considerably greater cost to achieve the desired end of having the appellant be provided with the necessary prescriptive drugs which she requires for the treatment of her covered injury. 
The cost of $46.00 as opposed to $6.00 would seem to be no contest and it would seem that even if the respondent were to consider that ex post facto it could not reimburse the appellant for those charges already incurred by her, then surely for the future the respondent could attend to the matter by applying the provisions of clause 1 (1) (a) or (c) of the First Schedule and come to an agreement with the appellant's GP for the payment of an appropriate level of telephone prescription charges. 
Having regard to the present statutory and regulatory provisions, I find that the appellant cannot avail herself of clause 1 (1c) as that brings in to play clause (2) and it requires the agreement between the respondent and the treatment provider for the payment of any cost outside those provided for in regulations made under the Act. 
Similarly I find that clause 2 of the First Schedule cannot apply unless there has been a prior agreement of the respondent and again that had not been done when the particular charges made by Dr Ewer were being sought to be recovered. Again it is the case that clause 2 could possibly be applied by the respondent for future arrangements as it would seem that the particular charge and reason for same would come within the criteria specified in clause 2 (1) and (2). 
The upshot of the foregoing is that on a literal interpretation of the statutory and regulatory provisions which are relevant, the particular cost which the appellant is seeking to have reimbursed is not one which is covered. If it is not in the Act or Regulations then it must be considered to be a matter which requires specific consideration and acceptance by the respondent before the particular charge can be one which comes within the scope of the respondent's liability and authority to meet. 
One would hope that the respondent would see the cost effectiveness of the arrangement which the appellant seeks to have continue. It is the case that she is likely to be a long term requirer of regular prescription drugs and medicines for her injury and I consider it incumbent upon the respondent to address the matter and come to an arrangement which is convenient insofar as the appellant is concerned and one which at the same time necessarily addresses any concerns of the respondent about indiscriminate prescription of potentially harmful drugs. 
Accordingly therefore, much as the Court would like to be able to indicate that the appellant's costs are recoverable pursuant to the Act or Regulations as they presently stand and provide, such is not the case and it would require specific agreement or arrangement between the Corporation and Dr Ewer for a practical and sensible solution to be implemented. 
For the foregoing reasons this appeal is dismissed. 

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