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Accident Compensation Cases

Anderton v Accident Compensation Corporation (DC, 11/06/12)

Judgment Text

M J Beattie Judge
The issue in this appeal arises from the respondent's decision of 11 December 2009, whereby the respondent declined to reimburse the appellant for his transport costs incurred for travel from his home in Wairoa to Gisborne for the purposes of him obtaining an ACC 18 Medical Certificate in relation to his continuing incapacity. 
The relevant facts in this case are not in dispute and may be stated as follows: 
The appellant has cover for a back injury suffered in 1989, and as of November 2009 he was still in receipt of weekly compensation in respect of his incapacity arising from that covered injury. 
As is the case generally where a claimant seeks a continuation of payment of weekly compensation, the appellant was required to provide a medical certificate every 90 days certifying his continuing incapacity. 
The appellant resides at Wairoa, a comparatively small settlement, some 93 kilometres south west of Gisborne. The appellant had for some time consulted with a medical practitioner at Health Care Centre Ltd at Wairoa, and on 17 November 2009 he had an appointment at Health Care Centre for the obtaining of a further ACC 18 Medical Certificate. 
The doctor in attendance at Health Care Centre Ltd was a locum, named Dr Linda Witham. 
Without needing to go into detail, the appellant and Dr Witham did not have a satisfactory meeting. In the review decision the Reviewer noted it as follows: 
“In Mr Anderton's case it is evident that he had some difficulties with Dr Witham. The records from the consultation record that the conversation became hostile and Dr Witham terminated it. ”
In a letter to the appellant dated 17 November 2009, the Director of Health Care Centre Ltd stated, inter alia, as follows: 
“I write to inform you that our professional relationship has broken down and can not be restored. Health Care Centre Ltd therefore ceases to be your medical practitioner for you from the date of this letter. ”
A day or so following his receipt of that letter the appellant sought to obtain an appointment with a medical practitioner at Wairoa Medical Centre, being the only other medical practice in Wairoa. 
The appellant was advised that Wairoa Medical Centre was not taking on any new patients and that it could therefore not add the appellant to its patient list. That advice was subsequently confirmed in a letter from Wairoa Medical Centre. 
On 23 November 2009 the appellant travelled to Gisborne where he was seen and examined by Dr Nick Duffy, and who provided the necessary ARC 18 Medical Certificate. 
It was subsequent to the appellant's travel from Wairoa to Gisborne and return that he sought payment of the cost of travel in accordance with the Accident Compensation (Ancillary Services) Regulations 2002. 
By decision dated 11 December 2009, being the decision now in issue, the respondent declined to make payment of such travel cost, giving as its reason that there were at least four doctors in Wairoa that were able to complete an ARC 18 form. 
The appellant sought a review of that decision and at that review hearing the Reviewer identified that the medical practices in Wairoa had refused to take him as a patient. He nevertheless declined the appellant's claim stating that the appellant's need to travel to Gisborne for treatment was not due to any special need relating to his injury, but rather due to personal differences with local treatment providers. He stated that in those circumstances ACC could not be expected to wear that cost. 
It is of relevance to note that the appellant attended a meeting at Health Care Centre Ltd on 22 March 2010, and as a consequence of that meeting Health Care Centre Ltd re-enrolled the appellant as a patient, and it is also to be noted that the letter advising the same also stated: 
“Both Mr Anderton and Health Care Centre staff will agree to maintain respect and be considerate of each other when communicating within the Health Care Centre Limited Practice. ”
In his submissions, Mr Anderton confirmed that no doctors in Wairoa would examine him, and the nearest medical personnel were those carrying on practice in Gisborne, and that it was only because he could not get seen and examined by anyone in Wairoa that he was obliged to travel to Gisborne. 
Ms Churstain, Counsel for the Respondent, referred to the provisions of Regulation 8(2) of the Ancillary Services Regulations 2002, which states that the Corporation was only liable to make payment towards the cost of a claimant's journey to the nearest place where he could get the rehabilitation, whether or not he actually gets it there. Counsel submitted that where the appellant had fallen out with the medical practitioner he had consulted, it should not thereby become the Corporation's responsibility to fund transport to an alternative medical provider. 
The appellant's claim which is the subject of the decision in this appeal, is a claim for reimbursement of non-emergency transport costs by private motor vehicle, and where the basis for such payment is contained in Regulation 8. 
The relevant provision of Regulation 8 in this case is Clause 8(2) which states: 
“The Corporation is liable under sub-clause (1) to make the payment towards the costs of: 
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 the return journey from that place if he or she makes a return journey. ”
In essence, it is the respondent's contention that because there were doctors at Wairoa there was no basis for payment of travel to and from Gisborne. 
The factual situation, I find, is that there was in fact no doctor in Wairoa who was prepared to examine the appellant and provide the necessary medical certificate if an examination should establish the appellant's continued incapacity. 
In those circumstances, I find that Wairoa cannot be said to be the nearest place where this appellant could have obtained medical assistance. That fact is clearly identified from the correspondence which the appellant received from both medical groups in Wairoa. The position might have been different if it was the appellant who had elected not to attend a medical practitioner in Wairoa for his own reasons, but that is not the case. The evidence is that he did attempt to obtain an appointment at the other medical practice in Wairoa, and was told that it was not prepared to take on any new patients. As I have earlier noted, that situation was subsequently confirmed in writing from the Practice Manager of Wairoa Medical Centre, the contents of that letter stating: 
“The Wairoa Medical Centre has not been taking on new patients for a number of years. Mr Phillip Anderton (dob: 27 May 1952) will not be added to our patient list. ”
Having regard to the particular facts of this case, I find it to be clearly the case that the appellant's travel to Gisborne was necessary for him to get to the nearest place where he was able to obtain the relevant medical certificate necessary for his continued weekly compensation. It is therefore the case that the appellant is entitled to be reimbursed for the cost of such travel at the rate currently stated in Clause 8 of 29 cents per kilometre for the length of his journey to Gisborne and return to Wairoa. 
For the foregoing reasons, this appeal is allowed, and the respondent's primary decision is quashed and substituted by the decision of this Court that the appellant be reimbursed for his travel costs in accordance with Clause 8 of the Ancillary Services Regulations 2002. 

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