Accident Compensation Corporation v Terry - [2018] NZCA 585

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA148/2018
[2018] NZCA 585

BETWEEN	ACCIDENT COMPENSATION CORPORATION Appellant
AND	HAMAL TERRY Respondent

Hearing:	13 November 2018
Court:	Miller, Dobson and Mander JJ
Counsel:	D A Laurenson QC and J G Roberts for Appellant No appearance for Respondent B D Thompson as Counsel Assisting
Judgment:	13 December 2018 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe High Court erred in finding that ACC’s retrospective decision to accept Mr Terry for weekly compensation was flawed because ACC was obliged to and failed to update Mr Terry’s rehabilitation plan and to follow the vocational rehabilitation procedures set out in the Accident Compensation Act 2001.
CThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

The Accident Compensation Corporation (ACC) appeals on a question of law a finding by the High Court that, in undertaking a retrospective assessment of a claimant’s entitlement to weekly compensation, it followed an incorrect process.[1]

Background

[1]Special leave was granted by this Court under s 163(2) of the Accident Compensation Act 2001: Accident Compensation Corporation v Terry [2018] NZCA 236.

In April 2006, Hamal Terry suffered a serious spinal injury. He was 17 years old at the time and in his final year of secondary school. He was admitted to hospital and underwent surgery before returning to school at the end of June.
ACC accepted him for cover under the Accident Compensation Act 2001 (the Act). That placed a number of statutory obligations on ACC and extended certain entitlements to Mr Terry. ACC was obliged to determine whether Mr Terry was likely to need social or vocational rehabilitation.[2] Mr Terry underwent a social rehabilitation assessment and an individual rehabilitation plan was prepared. That plan was never updated and did not address the issue of vocational rehabilitation. In November 2006, Mr Terry was notified by ACC that his file would be closed because no “active involvement”, presumably by ACC, “was required at that stage”.
[2]Accident Compensation Act, s 75.
In 2009, Mr Terry made a claim for weekly compensation. After providing information requested by ACC regarding details of his employment since leaving school, ACC obtained a retrospective assessment of Mr Terry’s incapacity from an occupational medical specialist. Based upon that report, ACC considered that Mr Terry was entitled to weekly compensation for loss of potential earnings from 15 December 2006 (the date he left school) to 31 October 2008. ACC determined that, because Mr Terry had not been incapacitated since 1 November 2008, his entitlement to weekly compensation ended on that day.
Mr Terry lodged a review against ACC’s determination that his incapacity had ended on 1 November 2008. In March 2012, the reviewer quashed ACC’s decision because it had been based upon insufficient medical information. It was directed to obtain an independent orthopaedic opinion and further medical evidence.
As part of its further investigation into Mr Terry’s claim, ACC obtained an occupational assessment report…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZCA 585
Decision Date: 13 December 2018 at 3.00 pm

CaseChat Overview and Summary

Accident Compensation Corporation (ACC) appeals to the Court of Appeal of New Zealand against a finding by the High Court that, in undertaking a retrospective assessment of a claimant’s entitlement to weekly compensation, it followed an incorrect process. In 2006, Hamal Terry suffered a serious spinal injury and ACC accepted him for cover under the Accident Compensation Act 2001 (the Act). In 2009, Mr Terry made a claim for weekly compensation, and ACC determined that he was entitled to weekly compensation for loss of potential earnings from 15 December 2006 (the date he left school) to 31 October 2008. Mr Terry lodged a review against ACC’s determination that his incapacity had ended on 1 November 2008, and in March 2012, the reviewer quashed ACC’s decision because it had been based upon insufficient medical information. It was directed to obtain an independent orthopaedic opinion and further medical evidence. After that appeal was dismissed, Mr Terry obtained leave to appeal to the High Court. The High Court held that ACC’s determination that Mr Terry was no longer incapacitated was flawed because of defects in the procedure it followed. The Court found that ACC’s failure to update Mr Terry’s rehabilitation plan and to assess his vocational rehabilitation needs before deciding he was no longer incapacitated was a procedural error. The Court of Appeal allowed ACC’s appeal and held that the High Court erred in finding that ACC’s retrospective decision to accept Mr Terry for weekly compensation was flawed because ACC was obliged to and failed to update Mr Terry’s rehabilitation plan and to follow the vocational rehabilitation procedure set out in the Act. There is no order for costs.

Orders