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Accident Compensation Cases

Moffatt v Accident Compensation Corporation (DC, 30/10/14)

Judgment Text

Judge L G Powell
The appellant, Kieran Moffatt, is a representative rugby and sevens player. It is not in dispute that Mr Moffatt injured his ankle while warming up for a match in the course of the National Sevens tournament at Queenstown in January 2012, for which he was granted cover by the Corporation. 
Mr Moffatt continued to have problems with his ankle and in September 2012 he was assessed by Christopher Birks, orthopaedic surgeon who determined that surgery was necessary. An Assessment Report and Treatment Plan (“ARTP”) was prepared by Mr Birks on 11 September 2012 which sought prior approval from the Corporation in order to carry out a “surgical open reduction and internal fixation fifth metatarsal left foot”
In the event, the surgery proceeded on 21 September 2012, before any decision had been made by the Corporation as to whether to approve surgery. There is no dispute before me that in the absence of prior approval pursuant to Clause 4 of Section 1 of the Accident Compensation Act 2001 the Corporation had to decline any application to approve surgery that had already occurred. Accordingly, by decision dated 24 September 2012, the Corporation declined the application to fund the surgery and this decision was not appealed by Mr Moffatt. 
The Corporation's decision letter did however advise Mr Moffatt that he could apply for an “extended discretion which allows [the Corporation] to consider funding treatment that has happened without [the Corporation's] prior approval”, although the letter also noted that if the application for extended discretion was ultimately unsuccessful, Mr Moffatt would not “be able to apply to review the result of [his] extended discretion application”
Mr Moffatt subsequently applied for the Corporation to exercise its extended discretion to cover his surgical costs but on 24 October 2012 the Corporation issued a further decision that the application was not successful stating: 
“Before we can fund your surgery, we need to make sure the surgery was required to treat the injury we have agreed to cover and not an unrelated or pre-existing health condition. 
After reviewing all the information available to us, we consider that the need for this surgery is not primarily due to your injury on 04/08/2012. ”
Mr Moffatt sought a review of this decision but the reviewer declined jurisdiction on the basis that no review rights exist in respect of the exercise of a discretion under s 68(3) of the Act. 
The Case for Mr Moffatt 
Mr Sara, as counsel for Mr Moffatt, submitted that because the Corporation's decision of 24 October 2012 involved a substantive consideration of the merits of Mr Moffatt's application for surgery it no longer stood to be considered as the exercise of a discretion, but rather as a substantive decision which contained review rights. In Mr Sara's view, the scheme of the Act was not intended to create barriers, and Mr Moffatt should be given the opportunity to enable the merits of his case to be reconsidered at review. 
Discussion and Analysis 
The starting point for determining the present appeal are the relevant legislative provisions specifically: 
Clause 4(1) of Schedule 1 to the Act, which as noted above, confirms that prior approval of treatment is generally required, and none of the stated exceptions contained in the section apply to the present appeal; 
In the absence of prior approval s 68(3) of the Act provides the Corporation with a discretion to provide an entitlement or payment to a claimant if it is satisfied that: 
The entitlement or payment could have been provided but for the requirement in Clause 4 of Schedule 1; and 
The provision of the entitlement or payment would be consistent with the purpose of the Act. 
The exercise of the discretion in s 68(3) is however subject to s 68(4) which provides “the exercise of a discretion under subsection (3) is subject to section 134(1A)”
Section 134(1A) referred to in s 68(4) in turn specifically limits the ability of a claimant to seek a review of a decision of the Corporation noting 
“ … a decision of the Corporation regarding the exercise of discretion under s 68(3) is not reviewable under part 5. ”
The effect of these provisions was considered by Judge Beattie in Laming v Accident Compensation Corporation1
| X |Footnote: 1
[2011] NZACC 338 
where His Honour stated: 
The legislative background to the introduction of the 2005 Amendment to section 68 of the Act, makes it clear that any discretionary powere to be given to the Corporation in the particular sections of the Act identified, was a discretionary power that was subject to the provisions of section 68(4), that is, that the exercise of that discretion was not a matter which could be the subject of review procedure. 
The statutory provision of section 68(3), as amended, has established a new set of discretionary powers for the Corporation, and which are quite distinct and limited to the statutory provisions referred to, and in respect of those particular statutory provisions the extension to an exercise of a discretion, is specifically a decision removed from any review consideration. Any other discretionary powers given to the respondent in the statute are subject to normal review considerations in accordance with section 134, and it is only those review decisions that come within section 134(1A) that are removed from having review rights, and I rule as a matter of law, that the respondent's decision which it made to terminate the appellant's attendant care entitlement whilst she remained outside New Zealand, was a decision which could not be challenged buy as of review. ”
I respectfully agree with Judge Beattie that the effect of the legislation is clear and in the present appeal explicitly prevents Mr Moffatt from seeking a review of the Corporation's decision of 24 October 2012. With regard to Mr Sara's argument that the Corporation had somehow moved beyond its discretion in considering the merits of Mr Moffatt's need for surgery, I do not see how the Corporation could have done otherwise. The merits were clearly relevant in order to determine whether or not the surgery could have been provided but for the failure to obtain prior approval, as well as to ensure that the payment of the costs of surgery would otherwise “be consistent with the purposes of the Act” in terms of s 68(3)(a) and (b) of the Act. Having considered the merits and then exercised their discretion under s 68(3), any review is clearly precluded by the operation of s 68(4) and s 134(1A) and, as a result, the reviewer was correct to decline jurisdiction to hear the review. 
The appeal is dismissed. There is no issue as to costs. 

[2011] NZACC 338 

From Accident Compensation Cases

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