Accident Compensation Corporation v Terry
[2018] NZCA 236
•4 July 2018 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA148/2018 [2018] NZCA 236 |
| BETWEEN | ACCIDENT COMPENSATION CORPORATION |
| AND | HAMAL TERRY |
| Hearing: | 11 June 2018 |
Court: | Winkelmann, Clifford and Williams JJ |
Counsel: | D A Laurenson QC and F L Becroft for Applicant |
Judgment: | 4 July 2018 at 10.30 am |
JUDGMENT OF THE COURT
A The application for leave to appeal is granted.
BThe question of law for which leave is granted is whether Cull J erred in finding that ACC’s decision was flawed because on retrospectively accepting Mr Terry for weekly compensation, ACC failed to update Mr Terry’s rehabilitation plan and to follow the vocational rehabilitation procedures set out in ss 75, 80, 87 and 89 of the Act.
CMr Terry is to advise the Registry within 10 working days of the date of this judgment whether he wishes to be represented with full argument on this appeal.
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REASONS OF THE COURT
(Given by Winkelmann J)
The Accident Compensation Corporation (ACC) applies for special leave to appeal a judgment of Cull J in which she held that the process followed by ACC in undertaking a retrospective assessment of Mr Terry’s entitlement to weekly compensation was flawed.[1]
Background facts
[1]Terry v Accident Compensation Corporation [2017] NZHC 2352 [High Court judgment]. Special leave under s 163 of the Accident Compensation Act 2001 is required because Cull J has declined ACC leave to appeal: Accident Compensation Corporation v Terry [2018] NZHC 268 [Leave judgment].
Mr Terry suffered an injury to his spine in 2006 while still at school. ACC accepted him for cover under the Accident Compensation Act 2001, an acceptance which triggered for ACC and Mr Terry a number of statutory obligations and entitlements respectively. Relevantly, ACC had obligations to determine whether Mr Terry was likely to need social or vocational rehabilitation (s 75), if that was likely, assess Mr Terry’s need for social and vocational rehabilitation (ss 84, 87 and 89), create a rehabilitation plan (s 77), provide the planned rehabilitation (ss 70 and 76) and update the plan from time to time to reflect the outcome of assessments done and progress made under the plan (s 78).
ACC prepared a social rehabilitation plan for Mr Terry but did not update it. They did not prepare a vocational rehabilitation plan.
In 2009, Mr Terry made a claim for weekly compensation. ACC responded requesting further information be provided. In 2011, after reviewing retrospective assessments by medical doctors of Mr Terry’s incapacity, ACC accepted that he was entitled to weekly compensation from 15 December 2006, when he left school, to 31 October 2008. ACC also determined on the basis of the medical assessments, which again were necessarily retrospective on this point, that after 31 October 2008 Mr Terry was no longer incapacitated; a determination as to incapacity under s 105(2) of the Act. Mr Terry sought review of that decision.
ACC’s initial decision was quashed on review. But in November 2012, following consideration of further reports, ACC reached the same view — that from 1 November 2008, Mr Terry was no longer incapacitated. Mr Terry challenged that new determination.[2]
High Court appeal
[2]That decision was upheld by an ACC reviewer, and on subsequent appeal to the District Court: Terry v Accident Compensation Corporation [2015] NZACC 109. The District Court declined Mr Terry leave to appeal: Terry v Accident Compensation Corporation [2016] NZACC 130. On 9 February 2017 Mallon J granted Mr Terry special leave to appeal: Terry v Accident Compensation Corporation [2017] NZHC 118.
The issues addressed by Cull J on appeal were as follows:[3]
(1)Whether ACC’s determination of s 105(2) of the Act on 12 November 2012, that Mr Terry was no longer incapacitated, was flawed?
(2)Did the District Court fail to take into account relevant considerations in relation to the s 105 assessment and therefore did it err in finding that it was open to ACC to find that Mr Terry had the capacity from 1 November 2008?
[3]High Court judgment, above n 1, at [16(1)].
Cull J found that ACC’s determination under s 105(2) of the Act was flawed because ACC relied on inadequate medical evidence to support its conclusions and because of defects in the procedure followed. In the course of her reasoning the Judge said that when ACC decided Mr Terry was entitled to weekly compensation from 15 December 2006, it had accepted his claim for cover. At that point of acceptance ACC had an obligation to follow the statutory procedures under ss 75, 78, 80 and 87, and 89 of the Act.[4]
Arguments on leave application
[4]At [100]. Cull J also held that the District Court Judge had failed to take into account relevant considerations in relation to the s 105 assessment in dismissing the earlier appeal, and had erred in finding it was open to ACC to find Mr Terry had capacity from 1 November 2008. That finding is not the subject of ACC’s application for special leave.
ACC does not seek, on appeal, to challenge the finding as to the adequacy of the medical evidence. Rather it wishes to challenge the finding that it failed to follow required statutory procedures. ACC argues that Cull J found, and was wrong to find, that ACC was under an obligation to carry out a vocational rehabilitation assessment following its conclusion Mr Terry was entitled to weekly compensation. The Judge was wrong in this because, under the statutory scheme, it was the acceptance of Mr Terry for cover immediately following his accident that triggered the obligation to create and update rehabilitation plans, and not the retrospective acceptance for an entitlement to weekly compensation — an entitlement that was already spent by the time of the assessments. And in any case, it is illogical to require ACC to undertake these assessments when it had concluded that Mr Terry had ceased to be incapacitated some years earlier.
Mr McGurk for the respondent contends that Cull J did not hold that before deciding whether Mr Terry was incapacitated under s 105(2), ACC had a statutory obligation to update Mr Terry’s individual rehabilitation plan under s 89 following the procedures under the provisions referred to.
Mr McGurk can point to Cull J’s decision refusing leave to appeal to support his argument. Cull J declined ACC’s application for leave to appeal the flawed process. In doing so she clarified that the vocational rehabilitation statutory procedures are not prerequisites under s 105(2) when determining incapacity, and “the judgment was not about determining whether the rehabilitation provisions needed to be followed before determining capacity under s 105(2)”.[5]
[5]Leave judgment, above n 1, at [18].
Cull J also said that the judgment is fact specific — while ACC failed to update Mr Terry’s individual rehabilitation plan under s 78 and failed to assess his rehabilitation needs under s 89, those failures of themselves did not mean the process was flawed. Rather, the process was flawed because ACC’s determination that Mr Terry was no longer incapacitated was based on unsatisfactory medical evidence.[6]
Principles applicable to grant of a second appeal
[6]At [23].
The principles that apply to the grant of leave to bring a second appeal were discussed in Cullen v Accident Compensation Corporation:[7]
The Court will exercise [its s 163] power if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration.
(footnotes omitted)
Analysis
[7] Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].
We agree with Mr McGurk that it would not be appropriate to grant leave in this case if this were simply a matter of an imprecisely expressed judgment, but we were nevertheless satisfied that the Judge had not made the finding ACC contends she made. If this was simply a case of an imprecisely worded judgment we could refuse leave to appeal, but clarify in a judgment declining leave what the judge’s finding was.
We are however satisfied that leave to appeal should be granted. This is because, on our reading of the judgment, Cull J did find that ACC’s failure to update Mr Terry’s rehabilitation plan before deciding on his incapacity was an error of procedure. This reading is reinforced not least by the fact that when summarising her reasons as to why the appeal was allowed, Cull J expressed them in terms of a failure to update Mr Terry’s rehabilitation plan and to follow the statutory procedures for assessing a claim as to his vocational rehabilitation needs.[8] The leave judgment also includes statements to the effect that once Mr Terry was granted weekly compensation (as opposed to cover), ACC needed to follow the statutory vocational rehabilitation processes, and that by conflating the two decisions, ACC failed to meet its statutory obligations in relation to vocational rehabilitation.[9]
[8]High Court judgment, above n 1, at [100(b)].
[9]Leave judgment, above n 1, at [17], [19] and [20].
Because of the lack of clarity on this particular point in the judgment, we are satisfied that it is capable of bona fide and serious argument that the Judge erred in finding that ACC’s decision was flawed because on accepting Mr Terry for weekly compensation, ACC failed to update Mr Terry’s rehabilitation plan and to follow the vocational rehabilitation procedures set out in ss 75, 80, 87 and 89 of the Act.
This is an issue of some public importance. ACC advises us that retrospective claims are made reasonably frequently and that clarity on this issue is important. We accept that is so. It is not clear cut just what procedures are to be followed for retrospective claims. There is no statutory framework as to how ACC is to deal with retrospective claims.
We also weigh that the grant of leave will not create uncertainty or delay in the receipt of compensation for Mr Terry. ACC does not seek to challenge the finding of the Judge that its decision in relation to incapacity could not stand in light of the inadequacy of the medical evidence upon which it relied. ACC also advises us that Mr Terry has received retrospective compensation and that the proposed appeal would have no bearing upon his claim. We acknowledge that the resolution of Mr Terry’s claim could be said to render the appeal moot. However, given the importance of the question of law involved in the proposed appeal, we are satisfied that leave to appeal should be granted.[10]
[10]See Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721 at [14]–[15]; Smith v Attorney‑General [2018] NZCA 24 at [23]–[24].
If Mr Terry does not wish to instruct counsel to act or to advance full argument in opposition to the appeal (because the outcome of the appeal will have no significance for his entitlements), it may be necessary to appoint counsel to assist the Court by putting the contrary view to that contended for by ACC. We therefore ask that Mr Terry advise within 10 working days of the date of this judgment whether Mr Terry will wish to be represented with full argument on this appeal.
Result
The application for leave to appeal is granted.
The question of law for which leave is granted is whether Cull J erred in finding that ACC’s decision was flawed because on retrospectively accepting Mr Terry for weekly compensation, ACC failed to update Mr Terry’s rehabilitation plan and to follow the vocational rehabilitation procedures set out in ss 75, 80, 87 and 89 of the Act.
Mr Terry is to advise the Registry within 10 working days of the date of this judgment whether he wishes to be represented with full argument on this appeal.
Solicitors:
Medico Law, Auckland for Applicant
John Miller Law, Wellington for Respondent
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