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Accident Compensation Cases

Elliston v Accident Compensation Corporation (DC, 08/10/15)

Judgment Text

Judge A N MacLean
The litigation journey to this point is rather complicated albeit the issue to be resolved is relatively narrow. 
The appellant has cover for a number of injuries and has received assistance from the respondent over many years. The background to this particular appeal arises out of treatment for a neck injury sustained in October 1995, which in 2002 was the subject of an application for declined leave to appeal to the High Court on a different question relating to entitlement to weekly compensation. 
The relatively narrow issue at this stage is in relation to a claim by the appellant for assistance with some of the transport and accommodation costs for osteopath treatment she received in 1996 and 1997 although the parties differ on how wide the issue should apply. 
The appellant's position is that there never was suitable osteopath treatment available to her in Taupo where she resided, and that as a result she was required to travel to see a Dr Bright in Hamilton. For each of the many visits she claimed mileage and accommodation. Although the individual amounts were relatively modest the total claim, if accepted, potentially amounts to thousands of dollars. The respondent consistently refused to pay out on any of the many claims and told the appellant why on a number of occasions. No formal review was ever made although the appellant continued to question and challenge that over the years with letters seeking clarification and analysis. 
The respondent's position essentially was that the appellant had not made out a case justifying the necessity to travel to Hamilton so that, absent that, in terms of the Regulations then applicable (which are essentially the same as at present) the respondent under reg 6(4) of the Accident Rehabilitation and Compensation Insurance (Cost of Transport Related Treatment, Service or Physical Rehabilitation) Regulations 1992 was: 
“Not liable to make any payment for any journey longer than the journey from the place of commencement to the nearest place where treatment is able to be provided (whether or not it is provided to the claimant at that place). ”
Put another way the respondent's position is that if treatment could have been provided close to home i.e. in Taupo the respondent had no liability to fund transport and any related costs such as accommodation. 
Progressing the matter has involved two review hearings and it is the later one appealed from which is the subject of this appeal. There has also been a District Court decision in between the two reviews. 
The nub of that District Court decision (Elliston1
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[2013] NZACC 368 
was that the initial review decision declining jurisdiction was not correct and directing the matter go back for further review. 
The particular jurisdictional issue which was the focus then, was whether a particular document dated 5 February 2013 which was essentially an invoice noting that a claim for mileage and accommodation would not be paid, (“the nil invoice”) was in fact a reviewable decision. The respondent position at the first review was that it simply reiterated or repeated consistent early decisions many years prior that the respondent would not meet claims for accommodation and travel but that was not accepted by the Court and the matter was sent back for review. 
The point arose because in the course of very prolonged correspondence between the parties it eventually emerged that the respondent had overlooked two particular osteopath treatments and at or around the same time as the nil invoice of 5 February 2013 it arranged payment of the bare osteopath costs in accordance with the Regulations. 
The Court in Elliston suggested a way forward as well as directing the matter go back to review, and alluded to the possibility, apparently in response to a perceived concession by the respondent at that hearing, that even though the nil invoice in question only related to two backdated payments, that the respondent might open up a review or reconsideration of all the payments, not just the two late backdated ones. 
Whatever the situation, the reality is that at the hearing before me the respondent maintained the same stance of no responsibility at all, for travel and accommodation costs that it took at the second review, and while not accepting that it had any liability for accommodation and travel costs in respect of the two late backdated claims, submitted that if the Court did not accept that, the issue of accommodation and travel costs should be restricted to the two particular claims not all the previous history of claims. 
In my view based on the way the matter has progressed through the appeal procedures, that proposition is correct, so that while the issue to be resolved is the application of reg 6(4) of the 1992 Regulations, that is limited to the two particular late paid claims. The Court in Elliston noted, in referring the matter back for review, that its decision would not by itself, materially assist in concluding the total matter from the appellant's perspective because the decision was only in respect of the late paid claims and related travel expense items and not what the appellant ultimately wished to have reconsidered namely, all of them. 
The Court in Elliston noted also, there had been over many years a consistent complaint by the appellant about the matter 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” the Court made some obiter comments. These were not part of the decision and so not binding on the parties but the Court suggested that while the issue arising from the first review was the application of the Regulations only to the late claims, the fact that approval had generally been sought and granted for treatment by a Dr Bright in Hamilton for all of the claims, that effectively was tacit approval of treatment by the Hamilton practitioner and that by implication then, that necessarily involved transport and accommodation costs. The respondent before me, respectfully disagreed with that, and said that involved exercise of a discretion it did not have. Either the criteria in the regulations were established or they were not, and in its view they had not been established, the onus being on the appellant to establish that they had been. 
Regardless of what may have been the position at the time, at the hearing before menthe respondent's present position is that the focus should be solely on the two particular declined claims. 
Accordingly, rather than traversing again the long history of the claims and counterclaims I will now focus on the substantive issue namely, is the respondent entitled to not pay for the travel and accommodation costs for the two matters in question. 
There are a number of cases where the District Court has considered the application of the Regulations. 
One is Painter2
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where the Court determined that the onus was on the claimant to provide evidence to sustain the proposition that treatment at one location as opposed to another was not available. 
An example of the application of the test comes from Gill3
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where the claimant had produced letters from two specialists who indicated that the treatment could not have been replicated by another practitioner at a closer location. Painter distinguished Gill because there was no supporting evidence. 
In Furnell4
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the Court considered a case where a claimant preferred to continue seeing his former GP in Manurewa rather than in Papamoa where he lived. The Court noted that there was no discretion under the Regulations and said: 
“Under the Regulation the key element is that transport costs will be paid to the nearest place where the claimant is able to receive the treatment whether or not he actually got it there. The latter phrase is indicative of the situation where a claimant may elect to go to a doctor not as close as the nearest but in those circumstances can only receive payment for the travel costs to the nearest place. ”
The respondent position is that the facts of this case are akin to those in Painter advising the Court that the respondent had received advice in 1997 that the osteopathic treatment provided in Hamilton could have been provided in Taupo where the appellant lived and that no objective evidence had been adduced by the appellant of the type proffered in Gill and the situation was more a preference as in Furnell. 
When I raised this with counsel at the hearing as to what evidence there was about the advice it received in 1997 and what the reality was of osteopathic treatment available in Taupo the respondent was unable to progress the matter further. 
I note that the reviewer in the second review said: 
“In June 1997 it appears that ACC carried out some investigation and spoke to Mr Richard Chow, osteopath, Taupo. He advised that Mrs Elliston had been to see him as he had treated her cervical condition. According to the ACC file, ACC was also advised by a Ms Jeanette Cox, osteopath, located in Taupo in 1997 that she could provide that same type of treatment provided in Hamilton. ”
No documentation supporting that whether in the form of an extract from the respondent's file or a note of advice from Ms Cox has been put before the Court in this appeal. I do note however that in the course of discovery an internal memorandum emerged that the appellant had been hitherto unaware of alluding to an event around 18 June 1997. 
Counsel for the respondent did not introduce this or indeed talk to it at all and I think properly so because it is hardly proof of the propositions therein outlined. 
The memorandum reads: 
“Re: Mrs G Elliston, osteopath Taupo. 
Richard Chow phoned re above, Mrs Elliston has requested a letter from him about her condition. He treated her while he was working for G Jelennski so doesn't have her notes. But he did say that in the end refused to treat her as wouldn't pay her bill, he also knows of a massage therapist who refused to treat her as she wouldn't pay and says to them that she has paid. Mr Chow said that Mrs Elliston lied to them constantly and was always changing her address. ”
The appellant strongly submits this is quite wrong. However there is some other documentary evidence available which the appellant points to as supportive of the proposition that she needed to go to Hamilton and suitable treatment was not available in Taupo. 
This includes a copy of a request from Dr Vallance of Taupo in a claim form dated 8 August 1996 which described a “compression injury to cervical spine with encroachment on … still has neurological symptoms … try with little help — manipulation not indicated”. Whilst relatively neutral in itself the appellant says in her submissions that Dr Vallance in fact was recommending that she get appropriate treatment outside of Taupo. 
Then there is a letter of 3 June 1997 from Dr Bright of the Waikato Centre of Osteopathic Medicine which states: 
“I am presently treating Glenda for her neck injury which occurred in 1995 and I am writing on her behalf. She has recently advised me that ACC is considering stopping her osteopathic treatment in Hamilton because there are osteopaths closer to Taupo. 
According to Glenda she has already attempted to have treatment in Taupo as stated in the letter included with this correspondence. It is important to note that Glenda has posterio-osteophytes in the cervical spine and manipulation of those joints could cause a serious permanent disability. I am treating her with cranial techniques and gentle articulation as required as this is good for the type of problem she has. She is making slow but steady progress and this is fine considering the length and severity of the problem. 
I know that ACC is presently trying to cut costs and have the client seek the closest treatment and I think overall that is a good thing. However there are cases that cannot be treated by the closest practitioner because of suitability and training of this person. This is the case with Glenda. For her sake I hope that you will consider her request for continued osteopathic treatment at our clinic in Hamilton. ”
Then followed on 27 October 1998 a letter from the appellant's general practitioner Dr Fraser of the Taupo Medical Centre which stated: 
“This is to confirm that Mrs Elliston should be reimbursed for her transport costs relating to treatment as claimed by her. This was a necessity for her injuries related to three accidents which include coccyx bone, spinal injuries and cervical spine which untreated by a specialist would have resulted in paralysis. 
I understand that her claims have been accepted and she tells me that she has not yet compensation for her loss of earnings while incapacitated. Her main injuries date back to 1988 and I understand that she has provided your department with all the details concerning these accidents. 
She urgently requires further osteopathic treatment for the above injuries and is requesting compensation due to her loss of earnings. 
I would be grateful if you could please expedite the above so as to get her back into the work force again. ”
In relation to the history of the matter clearly the primary focus of Dr Fraser's letter was on the unresolved compensation issue which was eventually dealt with in the High Court but it does also express at least an implied opinion by a medical practitioner, who knew the appellant, that there was a degree of necessity about travel out of Taupo. 
The respondent sought clarification from Dr Fraser some years later when on 5 July 2013 it asked him “what is a specialist osteopath and how do they differ to qualified osteopaths?”. There is a scribbled note obviously from Dr Fraser “they are the same”
The implications of this correspondence are rather obscure and the Court does not have all the surrounding context. 
The appellant explains that another general practitioner, Dr Murphy was supportive of the proposition that she should come to Hamilton for treatment but there does not appear to be any documentary evidence of this. 
Analysis and Discussion 
While the objective evidence supportive of the appellant in this case is not at the level as in Gill in my view it goes beyond what was proffered in Painter and Furnell
Looking at the matter as a whole, based on what evidence the parties have put up for consideration, and after reading the appellant's submissions, I consider there is(just) sufficient in this case to move the proposition of the appellant from a simple preference for out of locality treatment to one more akin to necessity. 
After all this time it is impossible to attain any accuracy and it is difficult quite what to make of the internal memorandum critical of the appellant, save to note that counsel for the respondent did not seek to rely or elaborate on it. Presumably in theory further evidence in clarification could have been adduced if the matter had been formally reviewed closer to the time. 
Accordingly on balance I am satisfied that the appellant has established that it was more likely than not that osteopathic treatment appropriate to her fragile situation was not available in Taupo and the appeal is accordingly allowed. 
It is important to make it clear that this decision only relates to the two late backdated payments as that was the narrow focus of the appeal as argued at the second review. 
Whether the respondent, on considering the implications of this decision, wishes to explore the possibility of reopening the matter of the other claims or at least indicating (consistent with what apparently was suggested in. the earlier case of Elliston, but inconsistent with what was submitted before me), a willingness to entertain a late application for review of the earlier decisions is a matter for the respondent. If that was considered I think both parties would need to be prepared to adduce better evidence, if possible, on the state of affairs in Taupo in respect of osteopath resources available at the time and that may be unrealistic after all this time. 
In the meantime however the review decision is quashed and the respondent is directed to calculate and resolve with the appellant the appropriate, relatively modest amount of transport and accommodation costs in accordance with the appropriate regulations for the two particular treatments in question. The issue of costs did not arise and as the appellant is self represented any costs would be modest and restricted to actual out of pocket costs, but if that cannot be resolved to the satisfaction of the parties. I am prepared to entertain an application on the papers provided it is formally raised with me within a month. 

[2013] NZACC 368 

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