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Accident Compensation Cases

Elliston v Accident Compensation Corporation (DC, 01/11/13)

Judgment Text

Judge L G Powell
The present appeal involves the determination of a jurisdictional issue, being whether the reviewer was correct in declining to hear the review brought by the appellant on the grounds that the purported decision by the respondent dated 5 February 2013 was not a reviewable decision. 
In 1995 the appellant injured her neck, which injury being covered by the respondent. As part of the ongoing treatment in 1997 the respondent approved osteopathic treatment which took place in Hamilton. The respondent met the costs of the treatment but declined to contribute to the costs of transport and accommodation incurred by the appellant to attend the treatment, on the grounds that it could only contribute to the travel costs of the appellant to the nearest place that the treatment could be provided, which in the view of the respondent was Taupo. 
Over the years the appellant sought to revisit the issue on various occasions. In December 2012 the appellant resubmitted her request for reimbursement. In response, on 1 February 2013 the respondent advised that: 
“ … I have forwarded your reimbursement request for travel and accommodation costs to the appropriate unit for consideration. ”
A couple of days later the respondent sent the appellant a somewhat mysterious document dated 5 February 2013 which the respondent claims simply confirmed its previous decision declining to meet the transport and accommodation costs of the appellant for the 1997 treatments. 
The appellant made further submissions on the reimbursement issue which were treated as being an application for review of the “decision” of 5 February 2013. However, when the review came before the reviewer the respondent opposed the review on the basis that all the respondent had done was to confirm its earlier decision and accordingly the reviewer had no jurisdiction to hear the review. 
In the appeal before me it became apparent that the substantive issues sought to be addressed by the appellant would not be able to be addressed as not only were not all of the travel disbursements claimed by the appellant not covered by the document dated 5 February 2013, but, because the reviewer had not issued a substantive decision, Ms Becroft submitted on behalf of the respondent that in the event that the appeal was successful it would be appropriate to refer the decision back to the reviewer for determination. At the same time Ms Becroft also indicated that notwithstanding the respondent was essentially opposing the hearing of the present appeal on jurisdictional grounds, the respondent none the less acknowledged that it was still open for the appellant to seek a review of the original decision declining to contribute to the appellant's travel costs and, in her submission, that is ultimately the appropriate way for the concerns of the appellant to be addressed, 
As a result this appeal presents as something of a Gordian knot caused by the respondent choosing to interpret the appellant's issues as a review of a document from the respondent dated 5 February 2013, rather than an overall challenge by the appellant to the decision by the respondent not to meet the appellant's travel costs in respect of the treatment received in 1997. The respondent took this narrow focus notwithstanding the appellant's consistent approach to revisit the issue and indeed the respondent's own concession that the respondent is still able to seek a review of the original decision. 
Turning now to the merits of the appeal before me, it is by no means clear what the document of 5 February 2013 was meant to achieve. It cannot be described as a letter as it contains no text as such. It certainly does not confirm, as the reviewer stated, that it “simply confirms ACC's decision of 23 June 1997 declining to pay transport and accommodation costs”. Instead the document appears to represent a payment advice summary, showing an amount of $117.24 purportedly claimed by the appellant in respect of treatments undertaken on 2 April 1997 and 9 April 1997 respectively (but not apparently directly reconcilable with any sum claimed by the appellant), and then showing that it is not paid, before setting out the reasons for non-payment without any reference to any earlier decision by the respondent. Given that the document refers to the sums under the column “service description” as apparently claims for reimbursement, then sets out the amounts, shows the amounts paid as zero, and then gives a reason while stating on the front page that “each item constitutes a decision by ACC”, it is difficult to escape the conclusion that this document, no matter how obscurely worded, is apparently a fresh decision with regard to part of the appellant's total expense claims. In the circumstances I therefore allow the appeal and refer the matter back to the reviewer for determination. 
In making this decision I am well aware that simply referring the matter back to the reviewer will not by itself materially assist in bringing this matter to a sensible conclusion, because the decision only affects four of the travel expense items which the appellant wishes to have reconsidered. 
Given that the appellant has consistently pushed for this issue to be revisited, and given that the respondent has conceded that it is open for the appellant to seek a review of the earlier decision in its totality, I accordingly offer the following comments in the hope of either guiding the parties to an overall resolution or, if that is not possible, guiding the reviewer hearing this matter, whether in relation to the four items that are the subject of the present appeal, or ultimately, all of the travel expenses claimed by the appellant. Accordingly, without forming a final view on the merits of the substantive issues between the parties, I note again that the reason the respondent declined to pay the travel expenses was that the respondent was only able to contribute to accommodation and transport to the nearest place that the “treatment” was able to be provided, and because osteopaths were also available in Taupo where the appellant lived, no transport or accommodation was payable for the appellant to be treated in Hamilton. While on the face of it logical, this approach overlooks the treatment the appellant in fact sought approval for from the respondent, and what the respondent actually approved. In particular, the requests for approval of payment (See Additional Referral Treatments, for example, those dated 4 June 1997 and 23 April 1997) appear to be for approval for the appellant to be treated by Dr Bright in Hamilton. Accordingly, the approvals did not simply seek approval for any osteopath to treat the appellant. The respondent's approval of the treatments dated 6 March 1997, 23 April 1997 and 10 June 1997 were in turn copied by the respondent to Dr Bright in Hamilton which is a strong indication that it was treatment by Dr Bright in Hamilton which had been approved. Even after the first transport costs were declined by the respondent, the appellant's subsequent treatments with Dr Bright were approved in the same way. In such circumstances, the nearest place the treatments (by Dr Bright) could be provided, would have been in Hamilton, and there would accordingly (in the absence of any other relevant evidence) appear to be no real basis for the respondent not meeting its contribution to the travel expenses of the appellant. 

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