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Accident Compensation Cases

Ashley v Accident Compensation Corporation (DC, 26/08/09)

Judgment Text

Judge J Cadenhead
These are two applications for leave to appeal to the High Court in decision of Judge Beattie dated 18 March 2008. The two appellants in this appeal are representative of some 17 appellants, all of whom are challenging decisions of the respondent that in terms of regulation 18 of the Injury Prevention, Rehabilitation and Compensation Act (Liability to Pay or Contribute to Cost of Treatment) Regulations 2003, (the Treatment Regulations), the respondent was only liable to pay 60% of the amount that would have been payable under the Regulation for elective surgery costs had the surgery been performed by the nominated provider. 
In general terms, all appellants required non-urgent elective surgery as part of their treatment for covered injuries and where that surgery was carried out in circumstances where the respondent determined and, as the evidence will show, the appellants agreed such surgery would be classified as non-contracted elective surgery. 
In terms of the provisions of regulation 18(b) of the Treatment Regulations, the Corporation's liability for such elective surgery is 60% of the amount that would have been paid had the surgery been performed by the Corporation's nominated provider, and where, from the Corporation's perspective, that surgery was performed by the appellants' chosen provider. 
At the hearing of this appeal the Judge was informed by counsel for the parties that the facts in all the appeals are very much the same, but fall into two categories with one category of appellants being claimants who were advised in writing by the Corporation of the provisions and their options relating to elective surgery costs, and the second category being those who were informed orally by the Corporation and the surgeon of the options available. 
The Court was informed that nothing hangs on the nature of the information provided to the claimants and the Court has been asked to consider the matter on the basis that all claimants were informed, either orally or in writing, of their rights and options in relation to elective surgery costs. 
The appellant, Samantha Ashley, is representative of the category of appellants where the surgery options were discussed with the claimant by “phone before the Corporation's decision was made, and the appellant Carol Colthurst is representative of those appellants who signed a form provided by the respondent and described as “ACC Elective Surgery Contract Option Choice”
The Judge found that the facts relevant to the Ashley appeal were not in dispute and may be stated as follows: 
In September 2003, the appellant injured her right ankle while playing basket-ball. She was granted cover for this injury. 
On 27 April 2006, the appellant was seen by Mr P C Armour, orthopaedic surgeon, on account of ongoing pain and instability in her right ankle. 
An MRI scan identified that the appellant had an avulsion fracture at the tip of the fibula. Mr Armour considered that the appellant would benefit from an ankle ligament reconstruction. 
On 10 May 2006 Mr Armour forwarded ACC Form 43 — Request for approval of non-contracted elective surgery costs to the respondent's Christchurch office. 
That form was signed both by Ms Ashley and Mr Armour. 
In that form there is a part headed up “Claimant Declaration” and which states as follows: 
“I declare that 
My surgeon has fully informed me of my options in regard to accessing elective surgery. 
I am aware and understand that there will be a co-payment cost for this surgery that I will need to meet. 
To the best of my knowledge the information contained on this form and the attached Assessment Report and Treatment Plan (ARTP) is true and correct. ”
Another part of the form provides for “Lead Provider Declaration”. This part was signed by Mr Armour and stated: 
“I declare that 
I have fully informed the claimant of their options in regard to accessing elective surgery and the fact that a co payment will be required. 
I am aware of my responsibilities as Lead Provider in regard to payment of costs associated with this surgery. 
The information contained in this form and the attached Assessment Report and Treatment Plan is true and correct. ”
As referred to in that declaration, an Assessment Report and Treatment Plan, accompanied that request and set out particulars of the surgery sought to be carried out. 
By decision dated 22 May 2006 the respondent's medical advisor approved the proposed surgery. 
In a telephone conversation on 23 May 2006 the appellant's case manager telephoned the appellant's mother and discussed the funding options. The appellant's mother advised that they were aware of the fully funded option but that as the appellant had medical insurance she opted for the partially funded option. 
Subsequent to that telephone conversation, by letter also dated 23 May 2006, the respondent wrote to the appellant, and which is the decision letter in her appeal. That letter headed up “Non-contracted elective surgery approved” and it stated: 
“We have approved an application for ACC to fund your surgery as follows: Service Code Service Description 
Excision Exostosis — deep 
Ankle Ligament Reconstruction 
This surgery will be carried out by P C Armour. PC Armour will contact you with further details about the surgery. 
ACC will directly pay your specialist $3,474.13 (GST incl.) as full and final payment. This is less than the total cost of your treatment. Please talk with your specialist about how much you will have to pay …  ”
On 5 July 2006 Mr Armour carried out the surgery envisaged, which surgery was wholly successful and with which the appellant was totally satisfied. 
It is the case that the appellant's health insurer, UNIMED, had given its prior approval to the operation and that it undertook to make payment of the amount not covered by ACC, being the balance of the actual costs of surgery. 
On 28 July 2006, a review application was lodged on behalf of the appellant identifying the respondent's letter of 23 May 2006 as the decision being sought to be reviewed and contending that “ACC should have paid the full costs of surgery”
At the time the options of fully or partly funded surgery were discussed with Mr Armour, the appellant was informed that the date when the 
surgery could be performed would be longer if it were to be on an ACC fully funded basis than for the non-contracted elective option. 
The Judge said that the issue in this appeal relates to the application of regulation 18 of the Cost of Treatment Regulations 2003. That Regulation is as follows: 
“18. Elective surgery costs 
This regulation applies if the Corporation is liable to pay for elective surgery for a claimant. 
The Corporation may nominate a provider to perform the surgery (nominated provider). 
Subject to subclause (4), the claimant must then — 
decide to accept the nominated provider; or 
decide not to accept the nominated provider and choose a provider (chosen provider); or 
choose a provider (because the Corporation has not nominated a provider under subclause (2)). 
Before the claimant decides whether to accept the nominated provider, the Corporation must tell the claimant that the Corporation would be liable to pay the full cost of the surgery if it was performed by the nominated provider. 
The Corporation is liable to pay the full cost of surgery under this regulation if it is performed by — 
a district health board; or 
a nominated provider; or 
a provider described in subclause (3)(c). 
The Corporation is liable to pay 60% of the amount that would have been payable under this regulation had the surgery been performed by the nominated provider, if — 
the Corporation nominated a provider under subclause (2); and 
the surgery is performed by the chosen provider; and 
the chosen provider is not a district health board. ”
The Judge observed that in terms of regulation 18 the Corporation has entered into contracts, mainly with private hospitals such as Southern Cross, to provide elective surgery in various parts of New Zealand. In such contracts each hospital lists the surgeons as named providers who will perform the elective surgery and their speciality. 
The Surgical Treatment Services Contract, which for the purposes of this appeal can be regarded as being common for all such contracts with which these appeals are concerned, is a contract between the Corporation and the hospital and where the hospital is described as the vendor, that is the provider of the service. Relevant paragraphs of this contract are as follows: 
The purpose of Surgical Treatment Services is to purchase elective surgical procedures for eligible Claimants who have a covered personal injury which requires surgical treatment. Services are purchased to provide timely effective surgical intervention for Claimants who have been clinically assessed as requiring surgery to meet their rehabilitation outcomes. 
Service Objective 
This service speccation covers the purchasing of elective surgical Treatment — (through inpatient and day patient procedures); Outpatient Post Discharge/Post Procedure Care, and includes diagnosis for all Claimants. It outlines the requirements that the Provider must meet in the specialties included in (but not limited to) the list below: 
General surgery; 
Neurology and Neurosurgery; 
Neurology and Neurosurgery; 
Otorhinoloyngology (ENT); 
Plastic surgery. 
Eligibility for Service 
A Claimant is entitled to Services from the Vendor under this Agreement if: 
They have suffered a personal injury as defined in the 1PRC Act; and 
They have been accepted by ACC as having cover for that injury; and 
The Vendor has received a completed ARTP; and 
ACC has approved funding for the Treatment; and 
All the relevant provisions of this Agreement are complied with. 
No Payment without Prior Approval 
ACC will not pay the Vendor for any Services (including Treatment or Post Discharge/Post Procedure Care) where treatment is carried out prior to ACC forwarding funding approval for Treatment and any advice as to Priority Category to the Vendor in accordance with this Agreement. 
Summary of Process 
The Vendor will provide Services in accordance with this Agreement. The summarised process is provided below. (Note: In the event of a conflict or inconsistency between the summarised process in this clause 2.3 and a specific provision in this Part B, the specific provision will prevail): 
The Vendor receives an ARTP completed by a Service Provider under the Clinical Services contract. 
The Vendor will ensure the ARTP meets the standards set out in Appendix 6. If the ARTP does not meet these standards the Vendor will return the ARTP to the relevant Service Provider for the ARTP to be completed. 
The Vendor will ensure they are able to meet the Clinical Priority titneframe requirement for each Claimant (including ensuring that they have sufficient capacity in Contract Amount and theatre). (See clause 7.4 for process to be followed if Vendor cannot ensure this); 
The Vendor will follow the applicable funding approval process set out at clause 6. 
ACC will process the application and advise the Claimant and the Vendor simultaneously in writing whether ACC approves or declines funding for the recommended Treatment. If approved, ACC will advise the Vendor of the Purchaser Order Number and any increase in the Priority Category for the Treatment. 
Upon receipt offunding approval including a Purchase Order Number, the Vendor will arrange for and provide Treatment and Post Discharge/Post Procedure Care in accordance with this Agreement (and in particular as set out in clause 2.4 below). ”
Included in the contract are clauses where the named providers are set out, those named providers being the surgeons who will carry out the surgical treatment services which the hospital has contracted to provide. Another provision of the contract, being Appendix 1, contains the agreed prices for the various surgical procedures. Surgical procedures not specifically provided for are costed on an ad hoc basis when an application for funding of same is made. 
In essence the hospital, as vendor, agrees to provide the surgical treatment procedure at a stipulated price and upon the Corporation approving the particular surgical procedure, that is that it has determined that it is a surgical procedure required for the treatment of a covered injury, the Corporation then pays the hospital the contract price for that particular surgical procedure. 
As an overlay to that particular funding process, it is the case that the contract provides for a maximum sum payable for services pursuant to the agreement; in other words there is a cap on the amount of services that the Corporation will agree to fund. The example contract produced for the purposes of this appeal identified the contract as being for a three-year term. The contract provides for quarterly invoicing by the vendor to ACC for surgical procedures carried out and maximum amounts for each quarter are provided. If that maximum is exceeded for any particular quarter, there needs to be a corresponding reduction in the amount invoiced for the next quarter. The contract makes no provision for any increase in the bulk fund so provided. 
There is, however, a clause (11.1.4) which permits the Corporation at its discretion to reduce the contract amount if one or more of any stated circumstances were to arise. 
Clause 12.1.4 is a clause to which Mr Miller referred in his submissions which states as follows: 
No Additional Fees 
The price shown in the Table of Procedure Prices for a Procedure is a global price for all Treatment and Post Discharge/Post Procedure Care relating to that Procedure in respect of a Claimant, and no additional amount may be charged to ACC, a Claimant or any other person for that Procedure or other related Services provided for the Claimant under this Agreement ”
There is also a clause under the group heading “Philosophy”, 4.6, which states: 
“No co payment will be charged to a claimant for the services provided under this agreement. ”
Against that factual background Mr Miller made the following submissions: 
It is unfair that an injured claimant with ACC cover should have to pay for their own surgery which is required as a result of the injury and which is necessary for their proper rehabilitation. 
The aim of Regulation 18 is to encourage injured claimants to have their surgery performed by ACC nominated providers. 
Regulation 18 provides that the ACC will pay the full costs of the claimant's surgery if it is done by one of the ACC's contracted nominated providers. 
To encourage claimants to choose a nominated provider the Regulations provide that if the claimant refuses the nominated provider and chooses their own provider, then the ACC will only pay 60% of the costs and 40% of the costs are shifted onto the claimant. 
ACC must ensure that full information is made available so that a fully informed and genuine choice can be made by the injured claimant. 
Instead, in their haste to shift 40% of the costs onto the injured claimant, the ACC have acquiesced in a subversion of the procedure by the private hospitals involved and have failed to ensure that the injured claimant (who is invariably in pain) is given a genuine choice. 
The result is, as in the present case, that the injured claimant has to meet 40% of the costs of surgery when there has been no proper. nomination or genuine choice given. 
The subversion of procedure takes place when the private hospital learns that the injured claimant has some form of health insurance and the possibility of obtaining a full fee for the surgery rather than the bulk funded fee becomes available. 
The private hospital says there is no availability for the contracted surgery by any surgeon at the lower bulk funded fee at the hospital until some unspecified time in the future because their monthly allocation of bulk funded surgery slots has been filled up yet amazingly there is the availability for the same surgery immediately at the same hospital by the same surgeon if the claimant chooses that same surgeon as their chosen provider. 
The ACC have not questioned this process as it clearly ends up cheaper for them in only paying 60% of the full surgery fee than the 100% of the bulk funded fee. 
It is also in the ACC's interests to encourage the practice of the injured claimant purporting to have a chosen provider as the ACC can avoid the legislative sanction imposed on the ACC by Regulation 18(5)(c) that they must pay the injured person's full surgery costs if the ACC fail to nominate a provider. 
Thus a statutory Regulation which is designed to encourage surgery from nominated providers by: (a) imposing the sanction of paying 100% of the full surgery costs on ACC if they do not nominate a provider; and (b) imposing a sanction on the injured claimant by making him or her pay 40% of the full surgery costs if they reject the ACC nominated provider is being subverted by the procedures adopted. 
Even if the injured claimant does belong to a welfare society or has some form of health insurance which pays for all or part of the 40% there is invariably an excess to pay, premiums may be raised and more importantly surgical limits are reached which deprives the claimant of much needed protection for future surgery options particularly for non ACC conditions. 
The injured claimant therefore contrary to the legislative intention has to use up their precious resources through being forced into the non contracted surgery by a chosen provider category. 
Mr Miller submitted that the manner in which covered injuries were treated by surgical procedure was not in accord with the statutory intention, and he referred to section 3 of the Act which sets out the purpose of the Act and which, Mr Miller submitted, identified that a primary purpose was rehabilitation and that it was the Corporation's responsibility to ensure that rehabilitation was provided. 
Mr Miller submitted that this notion therefore required the Corporation to take the initiative and identify any surgical treatment that an injured claimant may require and for it to arrange and initiate timely surgical intervention for effective rehabilitation, rather than the situation which in fact occurs where the Corporation simply waits for an application to be made to it by a claimant, or his/her medical specialist requesting approval for a particular surgical procedure. 
Mr Miller submitted that this situation then gives rise to the completion of ACC Form No. 43 accompanying the Assessment Report and Treatment Procedure (ARTP) and which sets in train the events as set out earlier in this decision. 
Mr Miller further submitted that neither the hospital nor the surgeon have the authority to act as the Corporation's agent and for them to put the options to the injured claimant relating to fully or partially funded surgery. 
Mr Miller stated that the way it is put to the claimant is that he/she will have a longer wait to obtain the surgery if it is fully funded, but if the partially funded option is chosen then surgery can be done without any delay whatsoever. 
Counsel submitted that the purpose of the Corporation's contract with the vendor ought to be to ensure timely surgical intervention but this is not occurring and that the only timely surgical intervention is that which occurs when the part- funding option is agreed to. He submitted that at this stage there is no real choice being presented to the injured claimant. He submitted that in circumstances where the two options are put to the claimant, the Corporation should intervene and question the hospital or the surgeon as to why the surgery cannot be done on a fully funded basis under the contract as a nominated provider. 
In furtherance of that submission, Mr Miller referred to Clause 7.2 of the contract which provides that the claimant's case manager may on receipt of an ARTP request an increase to the priority category that is to apply in respect of the particular claimant. Again, counsel submitted that the Corporation was not making these decisions, all decisions were being made by the hospital or the surgeon and the Corporation was not exercising its contractual powers as were given to it under the provisions of the contract. 
Decision of Judge Beattie 
Judge Beattie said in his decision: 
The issue raised in this appeal has not previously come before the Court. Essentially, what Mr Miller is contending, is that the Corporation is not acting within the spirit and intention of the Act in general, or the Treatment Regulations in particular, in the manner in which it deals with claims for non- urgent elective surgery. It must be noted that the issue we are concerned with here is that related to elective surgery which is defined in Regulation 3 of the Treatment Regulations as meaning — 
any surgery required in respect of a personal injury; 
but does not include 
an acute treatment; or 
a public health acute service; or 
Under these Regulations the costs of treatment in general are dealt with quite separately from costs relating to elective surgery, and Regulation 18, which is headed ‘Elective Surgery Costs’ is the only clause in the Treatment Regulations which is relevant to the issues in this appeal. 
The provisions of Regulation 18 must be read in conjunction with Clauses 1-6 of Schedule 1 to the Act which set out the statutory obligations, and limitations, of the Corporation's liability to pay or contribute to the cost of treatment. In particular, Clause 2 of Schedule 1 to the Act, sets out the occasions when the Corporation is liable to pay the cost of treatment, that clause stating as follows: 
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. 
It can be seen from 2(2) that fairly wide-ranging considerations are set out and for which the Corporation is obliged to take account. When that provision is set alongside Regulation 18 of the Treatment Regulations relating as it does to options regarding elective surgery costs, then I find that Mr Barnett's submissions are close to the mark. In no case are we dealing with any acute treatment situation and thus it must be taken that whilst the need for the surgery is there, it is not a matter of urgency from a health or welfare perspective. 
In submissions made at the hearing the timeframe most commonly alluded to by counsel was a delay of up to three months, although Mr Miller did suggest that there were instances of suggested delay of up to six months, if surgery was to be performed under the ACC contracted scheme. 
However, in no case has it been suggested that any delay was of itself a failure by the Corporation to provide for appropriate treatment within a reasonable time, or that the hospital was not providing a timely and effective service if it were to arrange for the surgery within the timeline intimated by the surgeon in his discussions with the claimant which preceded the election of the partially funded arrangement under Regulation 18(6). 
These appeals have been presented on the basis that the claimants were fully informed of their options and that the Corporation had complied with its obligation as contained in Regulation 18(4). The choice is made by the claimant, or the claimant's guardians, and initially that choice is made after discussion with the surgeon. It will be seen from ACC Form 43 that both the surgeon and the claimant are required to declare that they have respectively fully informed and been fully informed of the options in regard to accessing surgery, and again, as a matter of fact, there is no instance of any claimant protesting or suggesting they did not have an option, that is, that the fully funded surgery was to be only available after an unreasonable length of time. 
Mr Miller's primary submission, as I took it to be, was that the Corporation acted passively in this process and allowed for the surgeon and/or the intended hospital to make the running, and that the Corporation only nominated a provider once the non-contracted elective surgery had been initiated by the request form and the associated ARTP. 
I cannot see that this submission has any substance as the Regulation places a clear statutory obligation on the Corporation to fully explain the options, and it was always open for the claimant to have second thoughts and to elect the fully funded option which would then require the Corporation to direct that the surgery be carried out by its nominated provider in accordance with the provider contract. 
As noted, that contract had a requirement that the vendor/hospital/surgeon provide a timely effective surgical intervention, and therefore if there were circumstances pertaining to a particular claimant's situation which would have caused the projected surgery timing to be other than timely and effective, then it was open to the claimant, through his/her case manager under Clause 7.2 to request an increase to the priority category applying in any particular case. 
There are safeguards provided for in the contract against any claimant being disadvantaged or not being able to obtain timely and effective treatment. 
In those circumstances and having regard to the procedure which, I find, was at all times transparent, it cannot be found that the Corporation, by issuing decisions for approval of non-contracted elective surgery costs, was in some manner failing to honour its statutory obligations under the Act relating to its liability to pay or contribute to the costs of treatment. I have used that phrase advisedly, as it is the wording in Clause 1 of the First Schedule, and where it is clearly envisaged that in some circumstances the Corporation's liability is limited to a contribution to the costs of a claimant's treatment for personal injury. ”
The Colthurst Appeal 
In the case of the second appellant, Carol Colthurst, and those in the same category, in addition to the ARTP from the surgeon which accompanied ACC Form 43, the Corporation's next step was to write to the claimant with what could be described as the Corporation's option letter. That letter as it was sent to the appellant, Carol Colthurst, stated as follows: 
“ACC has approved an application for you to receive the following surgery: 
Service Code 
Service Description 
Arthroscopy and joint + add.procedure simple 
Options for Paying for this Surgery 
Your specialist may have told you that there are two payment options for this surgery. To allow you to decide which payment option you wish to take, we have outlined the options available below: 
Option I: Non-contracted surgery approved under Regulation (part payment by ACC) 
This is what was requested by your specialist. 
In this situation, Mark Clatworthy will perform the surgery at Ascot Hospital and ACC will pay a contribution of $1, 667.31 including GST as full and final payment for the surgery. 
You will have to fund the remaining cost of the surgery. You should ask your specialist how much the cost to you will be. 
If the remaining cost of the surgery is going to be funded by an insurance company, we recommend you discuss this with them to find out how much their contribution will be and whether you will incur any premium penalties or other obligations. 
Option 2: Contracted surgery (full payment by ACC) 
Under this option, ACC will pay for the total cost of the surgery by a specialist at a hospital that holds an elective surgery contract with ACC. 
If the surgery is performed by Mark Clatworthy at Ascot Hospital under the elective surgery contract held by Mercy Ascot, it will be fully funded by ACC. However, you may have to wait a little longer far your surgery to be performed. Please discuss this with your specialist. 
Complete the attached form and give it to your surgeon before you have surgery. Your surgeon will forward your completed form to ACC. ACC must have a copy of this form with your signature before it can pay for your surgety. ”
The final paragraph of that letter refers to an attached form, that form is headed up ACC Elective Surgery Contract Option Choice. The form as completed by the appellant and signed indicated that she was choosing Option 1. 
The final document in this sequence is a confirmation letter from the Corporation confirming approval for the surgery and the terms under which that surgery is to be carried out. 
In respect of the group of appellants which fall into the category of the appellant, Carol Colthurst, the Judge found that the correspondence which passes between the Corporation and the claimant simply reinforces the findings he had made, that the process by which the elective surgery option is undertaken is wholly transparent and a real choice provided. 
He said that in all the appeals in which this issue has been raised, it is the medical insurer, acting under its rights of subrogation, which is now asserting that the claimant has not had a fair go. In each case the claimant had a right under its contract of medical insurance to call upon the insurer to part-fund the surgery and this was the whole basis upon which the elective option was taken. 
Whilst he accepted that the insurer is entitled to step into the shoes of the claimant for the purposes of bringing these appeal proceedings, nevertheless when one is looking at the purposes and principles imbued in accident compensation legislation and the notions to which Mr Miller referred, he found it ill-behoves counsel to assert that those notions have somehow trammelled with when, if one looks behind the insurer, there is no unhappy claimant and no occasion where it has been asserted that a claimant has somehow not been given the opportunity of fully funded surgery. 
The Judge finally said: 
“RV For the foregoing reasons, I find that the respondent's decision, as given in each case to the various claimants, that it was confirming the claimant's choice to elect the part-payment provisions of Regulation 18, was in accord with the purpose of that Regulation and of the principles applicable to the rights of persons to receive proper treatment for their injuries both in accordance with the general purposes of the Act, and specifically the treatment provisions contained in Schedule I. 
Accordingly, the two representative appeals contained within this Judgmentare dismissed. ”
Decision as to Leave to Appeal 

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