Estate of Osmond v Accident Compensation Corporation
[2016] NZHC 1067
•20 May 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-1038 [2016] NZHC 1067
UNDER the Accident Compensation Act 2001 IN THE MATTER OF
an application for special leave to appeal to the High Court pursuant to s 162 of the Act
BETWEEN
ESTATE OF GRANT WILLIAM OSMOND
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 14 April 2016 Appearances:
T J McGurk for the applicant
F Becroft for the respondentJudgment:
20 May 2016
JUDGMENT OF MALLON J
Table of contents
Introduction ....................................................................................................................................... [1] The legislation .................................................................................................................................... [5] Background facts ............................................................................................................................. [16] District Court decision .................................................................................................................... [37] First ground: s 110(3)(a) ................................................................................................................. [46] Second ground: available relevant information............................................................................ [57] Third ground: the rehabilitation process ...................................................................................... [62] Fourth ground: vocational independence conclusion................................................................... [67]
Result ................................................................................................................................................ [69]
ESTATE OF GRANT WILLIAM OSMOND v ACCIDENT COMPENSATION CORPORATION [2016] NZHC
1067 [20 May 2016]
Introduction
[1] Mr Osmond suffered an injury to his knee in October 2000. As a consequence he was unable to continue to work as a truck driver and he commenced receiving weekly compensation under the Accident Compensation Act 2001 (the Act). On 3 July 2007 the Accident Compensation Corporation (the Corporation) determined that Mr Osmond had attained “vocational independence” within the meaning of the Act. As a consequence he was no longer entitled to receive weekly
compensation. The District Court upheld this decision on 18 April 2011.1 On
11 December 2014 Mr Osmond passed away. His estate seeks special leave to appeal to the High Court, leave having been declined by the District Court on
20 November 2015.2
[2] An appeal can be made on a question of law.3 An applicant for special leave must show that there is a reasonable prospect of success and that leave is required in the interests of justice.4
[3] The grounds on which special leave to appeal is sought are as follows:
(a) Was it open for the Corporation to refer Mr Osmond to the vocational independence assessment process where the requirement under s 110(3)(a) of the Act had not been met?
(b)Was all relevant information before the medical assessor as per cl 28(2) of Schedule 1 of the Act?
(c) Did the Corporation fail to comply with s 77, and thereafter s 110(3)(b), s 78, and clauses 7 and 9 of Schedule 1 of the Act?
(d)Was the conclusion that Mr Osmond was vocationally independent available on the evidence?
1 Osmond v Accident Compensation Corporation [2011] NZACC 200.
2 Osmond v Accident Compensation Corporation [2015] NZACC 356.
3 Accident Compensation Act 2001, s 162.
4 Kenyon v Accident Compensation Corporation [2002] NZAR 385.
[4] The Corporation opposes the application for special leave on the basis that these do not raise any question of law.
The legislation
[5] The Corporation is required to undertake certain steps once it accepts a claim for cover under the Act. Within 13 weeks of acceptance the Corporation must:
(a) determine whether the claimant is likely to need social or vocational rehabilitation after the 13 weeks have ended; and
(b)if so, prepare an individual rehabilitation plan in consultation with the claimant.5
[6] An individual rehabilitation plan may include provision for treatment.6 If an individual rehabilitation plan is prepared, the Corporation must assess the claimant’s needs for rehabilitation having regard to certain purposes.7 For present purposes it is the vocational rehabilitation need that is of relevance. The purpose of vocational rehabilitation is to help a claimant to, as appropriate, maintain employment, obtain employment, or regain or acquire vocational independence.8
[7] An individual rehabilitation plan must identify the claimant’s needs for rehabilitation, identify the assessments to be done, identify services appropriate to those needs, and specify which of the services identified the Corporation will provide, pay for, or contribute to.9
[8] The legislation sets out how a claimant’s needs for vocational rehabilitation
are to be assessed.10 This includes the following provision:11
89 Assessment of claimant’s vocational rehabilitation needs
5 Accident Compensation Act 2001, s 75(a).
6 Section 75(b).
7 Section 77.
8 Section 80.
9 Section 77(2).
10 Section 77(3).
11 Section 89.
An assessment of a claimant’s vocational rehabilitation needs must
consist of –
(a) an initial occupational assessment to identify the types of work that may be appropriate for the claimant; and
(b) an initial medical assessment to determine whether the types of work identified under paragraph (a) are, or are likely to be, medically sustainable for the claimant.
[9] An occupational assessor undertaking an initial occupational assessment must, amongst other things, take into account information provided by the Corporation and the claimant.12 A medical assessor undertaking an initial medical assessment must take into account, amongst other things, information provided to the assessor by the Corporation, all relevant medical reports, and any other relevant information that the claimant requests the medical assessor to take into account.13
The medical assessor is also to carry out a clinical examination of the claimant.14
[10] A person who is receiving weekly compensation may also be assessed for vocational independence. Vocational independence is defined in the Act.15 It refers to a claimant’s capacity to work in vocationally and physically suitable jobs other than the claimant’s pre-incapacity employment for 35 hours or more a week.16 There are provisions setting out when vocational independence may be determined, what the purpose of the assessment is and how vocational independence is assessed.
[11] Specifically, s 107 of the Act provides:
107 Corporation to determine vocational independence
(1) The Corporation may determine the vocational independence of—
(a) a claimant who is receiving weekly compensation:
(b) a claimant who may have an entitlement to weekly compensation.
(2) The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment carried out—
12 Section 91.
13 Section 95.
14 Section 95(1)(d).
15 Section 6.
16 Subsequently this was amended to 30 hours or more a week.
(a) for the purpose in subsection (3); and
(b) in accordance with sections 108 to 110 and clauses 24 to 29 of Schedule 1; and
(c) at the Corporation's expense.
(3) The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant's individual rehabilitation plan, has been completed and that it has focused on the claimant's needs, and addressed any injury-related barriers, to enable the claimant—
(a) to maintain or obtain employment; or
(b) to regain or acquire vocational independence.
[12] Section 108 provides:
108 Assessment of claimant's vocational independence
(1) An assessment of a claimant's vocational independence must consist of—
(a) an occupational assessment under clause 25 of Schedule 1;
and
(b) a medical assessment under clause 28 of Schedule 1. (2) The purpose of an occupational assessment is to—
(a) consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and
(b) consider whether the types of work (whether available or not) identified in the claimant's individual rehabilitation plan are still suitable for the claimant because they match the skills that the claimant has gained through education, training, or experience.
(3) The purpose of a medical assessment is to provide an opinion for the Corporation as to whether, having regard to the claimant's personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant's individual rehabilitation plan.
[13] Section 109 provides that the Corporation may determine the claimant’s vocational independence at such reasonable intervals as the Corporation considers appropriate. It also provides for reconsideration of a determination that a claimant has vocational independence where the Corporation believes on reasonable grounds
that the claimant’s vocational independence or capacity for work may have
deteriorated.
[14] Section 110(1) provides that the Corporation must give written notice to the claimant that he or she is required to participate in the vocational independence assessment. Section 110(3) provides:
110 Notice to claimant in relation to assessment of vocational independence
…
(3) The Corporation must not require the claimant to participate in an assessment—
(a) unless the claimant is likely to achieve vocational independence; and
(b) until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan.
[15] If the Corporation determines the claimant has vocational independence, the claimant loses his or her entitlement to weekly compensation three months after the date on which he or she is notified of the determination.17
Background facts
[16] Mr Osmond first injured his left knee in 1979. Cover was granted and surgery was carried out. He returned to full time employment as a truck driver. Mr Osmond suffered a further injury to his left knee in October 2000. He again had surgery. He also began receiving weekly compensation.
[17] Mr Osmond moved to a 10 acre rural property in 2001. He kept a small number of dry stock cattle, which were free roaming, for his own consumption. He was not involved in killing the animals or processing them. A slaughterer and a
butcher attended to this for a charge.
17 Section 112.
[18] Mr Osmond also became engaged in light engineering work in a workshop on his property. This involved repairing farm vehicles and refurbishing equipment for on-sale. He approached the Corporation about assistance with funding the development of this business in about 2002. At around this time an initial occupational assessment and an initial medical assessment were completed. The details of these assessments are not included in the bundle of documents before me
although they are mentioned in the District Court decision.18
[19] In 2004 an initial occupational assessment and an initial medical assessment were carried out. This is recorded in his individual rehabilitation plan as follows:
17-08-2004 Grant has participated in an Initial Occupational Assessment and an Initial Medical Assessment on 9/3/04 in which the following work type options were identified as medically sustainable 1) Production and Operation Manager 2) Plastic or Rubber Assembler (in 3 months time) 3) Forklift Operator (in 3 months time) 4) Crane Operator (in 3 months time) 5) Stock Clerk (in 3 months time).
[20] Before deciding whether to assist with Mr Osmond’s engineering business, the Corporation obtained a workplace assessment and a financial assessment of the proposal. On 30 April 2005 the workplace assessment report was provided to Mr Osmond’s case manager at the Corporation. This report set out details of Mr Osmond’s physical difficulties at this point in time. This included the following information from Mr Osmond:
(a) he was struggling to manage home tasks due to a recent exacerbation of his pain;
(b)he was not able to function without the medication he was taking for pain relief;
(c) he was wearing a knee brace for all mobility as his knee would give out when walking;
18 Osmond v Accident Compensation Corporation, above n 1.
(d)he was able to walk 50-100 m on smooth even ground but used crutches for uneven ground, he frequently used a modified electric wheelchair, his pain increased with weight bearing and activity, lifting or loading increased pain, and he found stairs very difficult and painful; and
(e) he had ongoing back problems that were exacerbated by lifting, twisting and bending.
[21] In relation to his physical ability to carry out his repairing and refurbishing business the assessor reported that “on a good day he is able to do 4-6 hours per day” but that “he always breaks the time up into manageable chunks” and he worked five days a week. The assessor noted that funds of approximately $15,000 to $18,000 were sought by Mr Osmond to turn his business into a viable venture. The assessor also commented:
It will be very difficult for [Mr Osmond] to find alternative employment as he needs to be able to work at his own pace with frequent rest periods. Self employment does give him the opportunity to work within his activity tolerance.
[22] In May 2005 an initial occupational assessment was undertaken. The report of this assessment discussed 10 work-type options that would be suitable for Mr Osmond in terms of his education, training, work experience and transferrable skills. It also noted Mr Osmond’s comment that he did not believe he could work an eight hour day in employment outside his home. His work from home gave him seven days and 24 hours to get the work in.
[23] In June 2005 an initial medical assessment was undertaken by Dr Gollop. Dr Gollop’s report referred to Mr Osmond’s pain having progressively developed in the medial aspect of his left knee. The pain was activity related and any sort of weight bearing, such as lifting, exacerbated the pain. If the pain became more severe he could be offered a total knee replacement in the future. He remained on medication. He also had intermittent back pain. He had difficulty going up and down stairs.
[24] Dr Gollop’s opinion on his fitness for work was as follows:
Mr Osmond can be considered permanently unfit for moderate or heavy manual work or for those occupations where he spends most of his time in a standing position with a full load, or lifting through his L) leg. He is fit for a wide range of light supervisory type work or for medium activity work where he is able to change position frequently and where he is not putting a load through his L) leg.
…
He is fit to carry out light supervisory type work but not moderate or heavy manual work, as noted above. He is keen to turn his own engineering workshop into a commercial operation. Realistically, his view of working 20 hours a week is possible but given his overall state of health and the inability to squat or put heavy load through his L) knee, it is not a commercial proposition to work 35 hours in his engineering workshop situation. He is fit to carry out modified or selected tasks and therefore would likely be able to carry out a maximum of 20 hours per week in this occupation.
[25] Dr Gollop then referred to each of the 10 work-types identified in the May
2005 occupational assessment. Of these three were considered suitable from a medical point of view: transport manager, stock clerk and transport clerk. In relation to Mr Osmond’s proposed business in his home work shop he would be able to work up to 20 hours a week.
[26] The case manager sought internal advice on the viability of Mr Osmond’s proposal to develop his home business in March 2006. In seeking this advice it was noted that Mr Osmond proposed to perform the sedentary roles and to employ staff to carry out the manual roles. The case manager said:
In terms of carrying out the VI [vocational independence] assessments now I don’t believe it would be appropriate for them to be carried out until after Grant’s request for self employment has been considered. Grant has advised that should he be able [sic] successful in his attempts to get his business up and running he believes that if he can “work” 20 hours per week this would generate sufficient income for him that he would not require Weekly Compensation and therefore be independent of ACC.
Given that it is likely that Grant will not be assessed as Vocationally Independent if he went through these assessments then in terms of cost effectiveness he would be able to remain on weekly compensation.
Therefore, from my point of view it is not appropriate to consider referring Grant for these assessments until this request for assistance with self employment has been considered.
[27] The financial review of the proposal was provided on 27 June 2006 and was unfavourable. As a result the Corporation did not support the venture. On 27 July
2006 Mr Osmond advised his case manager he did not want to pursue the self- employment option any further.
[28] In August 2006 Mr Osmond commenced work at the local transfer station. He was positioned at the pay window. His job involved collecting the fee from customers, placing the money in the till and giving them the till receipt. He would then direct the customer to where they were to dump their rubbish. He advised his case officer of this work on 4 September 2006, although at that time he said was starting in the next few weeks. He also informed his case manager that he was able to work on gradually increasing his hours from one day to three days per week.
[29] On 28 September 2006 Mr Osmond met with his case manager. Mr Osmond was advised that as all his rehabilitation was now complete he would be “going through the VI process”. The case manager explained the process to him. The case manager made a note that Mr Osmond “indicated that he understood the process I was talking about.”
[30] Following this meeting the individual rehabilitation plan sent to Mr Osmond in November 2006 referred to the following:
(a) the 2004 initial occupational and medical assessments;
(b)that repeat assessments were to be arranged to determine if Mr Osmond was fit for the job options identified as sustainable in three months time;
(c) the Corporation had arranged for a work place assessment to be carried out which was completed on 14 April 2005;
(d)the Corporation had referred Mr Osmond to computer training which was completed on 27 June 2005;
(e) the Corporation had referred Mr Osmond to an advisor to assist with the development of a business plan and this was completed on 5
October 2006;
(f) that repeat initial occupational and medical assessments were completed on 13 June 2005 in which the following job options were identified as medically sustainable 1) Transport Manager 2) Stock Clerk 3) Transport Clerk 4) Weighing & Tally Clerk (with proviso);
(g)that on 5 October 2006 “the Vocational Independence Assessment process has been explained to [Mr Osmond] and he is aware he will be referred for an assessment of his Vocational Independence now that his vocational rehabilitation is complete”.
[31] In December 2006 and January 2007 Mr Osmond was working two days a week (Thursday and Sunday) from 7.30 am to 5 pm at the transfer station. These details were provided to the Corporation as part of the requirement on a claimant earning weekly compensation to provide details of employment.
[32] In March/April 2007 the Corporation reviewed its file for the purposes of Mr Osmond’s vocational independence assessment. The review concluded with the following:
I (Team Manager) have found no vocational or process reasons why this claimant cannot proceed through the Vocational Independence Assessment Process
I (BMA) have found from the medical evidence on file no reason(s) why this claimant cannot proceed through the Vocational Independence Assessment Process. (This includes no outstanding medical treatment, other physical rehabilitation or pain management issues that suggest from the weight of evidence on file that the claimant is not likely to be vocational independent.)
[33] On 4 April 2007 Mr Osmond was advised as follows:
ACC considers that your individual rehabilitation programme is now complete and plans to assess your vocational independence. As you are receiving weekly compensation, you are obliged to undergo an assessment when ACC asks you to do so.
[34] On 18 April 2007 a vocational independence occupational assessment was carried out. This identified 12 work-types as being occupationally suitable for Mr Osmond. On 21 May 2007 Mr Osmond underwent a vocational independence medical assessment. This was conducted by Dr Rod Nicholson. He determined that
three of the 12 work-types in the occupational assessment, namely Transport Manager, Stock Clerk and Transport Clerk, were medically sustainable by Mr Osmond for 35 hours per week. Consequent on this assessment, on 3 July 2007 the Corporation issued its decision determining that Mr Osmond had vocational independence.
[35] Mr Osmond sought review of the decision. On 18 October 2007 the reviewer
upheld the Corporation’s decision.
[36] In 2010 Mr Osmond had total knee replacement surgery.
District Court decision
[37] Mr Osmond prepared a statement for the purpose of his appeal to the District Court. In that statement Mr Osmond referred to his work at the local transfer station. He said initially this job was for three days a week (Sunday, Tuesday and Thursday). After a few months this became too painful and he reduced his hours to two days a week. In early 2008 his knee had again become too painful. He asked to reduce his hours to one day a week but his employer refused and he was dismissed. He said “[a]t the review I did try to explain that I could not manage 19 hours a week let alone
35 hours but I did really have difficulty in understanding what the process was.”
[38] The grounds of appeal were:
(a) Mr Osmond’s vocational rehabilitation was incomplete;
(b)the initial assessment and vocational independence process were seriously flawed; and
(c) the vocational independence medical assessment of Dr Nicholson was flawed.
[39] The first two grounds were dealt with together. It was contended that the only vocational rehabilitation Mr Osmond received was a course in computer training in 2005 and following the assessments in 2005, there was no further meeting
with Mr Osmond to discuss work-types approved by the initial medical assessment and no discussion about what vocational rehabilitation the Corporation would provide for those work-types.
[40] The District Court rejected this. It noted that Mr Osmond had an individual rehabilitation plan pursuant to which a work place assessment, referral to computer training and referral to a suitable provider to assist Mr Osmond to develop a business plan and proposal for self-employment were carried out. Mr Osmond signed these as having been completed on 7 December 2006. There was no evidence of Mr Osmond having applied for any further vocational rehabilitation.
[41] Further, the District Court noted that in the initial medical assessment in July
2002 the medical assessor did not identify any work-type as being physically sustainable for 35 hours. However that was in light of the occupational assessment having only made a recommendation of broad unit groups rather than identifying any specific work-type. Subsequently, the medical assessments in 2004 and 2005 did identify work-types as being medically sustainable. These work-types were the three work-types the Corporation ultimately determined as being occupationally suitable and medically sustainable when it made its decision on vocational independence in
2007.
[42] On the third ground of appeal it was contended that Mr Osmond was not physically capable of carrying out the three work-types identified as medically sustainable as he had been working only two days a week and required rest time after each working day. He also had recurrent lower back pain which was a covered injury.
[43] The District Court considered that the occupational assessment conducted in April 2007 gave full reasons for identifying the three work-types. There was no evidence questioning the correctness of that assessment. As to the medical assessment, the Judge noted that Dr Nicholson had all the relevant documents, which included the previous assessments and comments from Mr Tietjens who had been treating the appellant from time to time since 1994. The Judge then quoted extracts from the medical assessment which included the following:
(a) Mr Osmond reported ongoing pain in his knee, particularly with activity. He could only stand or walk for half an hour at a time. He was pain free for a short period while sitting.
(b)He worked two days a week at the local transfer station. He used an electric wheelchair so that he could do the job seated. Occasionally he stood up and walked.
(c) He was likely to require a full knee replacement within the next five years.
[44] The Judge then noted that Dr Nicholson had concluded that 11 of the 14 work-types identified in the Occupational Assessment were not medically sustainable and Dr Nicholson’s view that Mr Osmond was better suited to a job where he could alternate between sitting and standing. The Judge referred to Dr Nicholson’s views in respect of the three work-types for which Mr Osmond was medically suited and that each of them would enable him to alternate between sitting and standing.
[45] The Judge concluded:19
The situation as I find it in this case is that the Occupational and Medical Assessments upon which the respondent’s decision was based have been carried out in accordance with the statutory requirements and that they do correctly identify work-types which are occupationally suitable and medically sustainable, and I find that there is no flaw in the nature of those assessments.
For the foregoing reasons, therefore, I find, having considered the evidence afresh, that the respondent’s decision determining that the appellant had attained Vocational Independence was the correct decision, and that the assessment procedure carried out to achieve that decision had been correctly carried out. Accordingly, this appeal is dismissed.
First ground: s 110(3)(a)
[46] The first question of law on which special leave is sought concerns whether the requirement under s 110(3)(a) was met. That section provides that the
Corporation must not require the claimant to participate in an assessment “unless the
19 At [23]-[24].
claimant is likely to achieve vocational independence”. Mr Osmond’s estate claims that it was not open to the Corporation on the evidence to find that vocational independence was likely.
[47] This issue was not raised in the District Court appeal. That hearing took place before the Supreme Court’s decision in McGrath v Accident Compensation Corporation.20 It was raised on the application for leave to appeal made to the
District Court, by which stage the Supreme Court’s decision had been delivered.21 In
McGrath v Accident Compensation Corporation it was held that the Corporation’s assessment of this requirement must be based on information that reasonably supports the conclusion.22 It was noted that the purpose of this requirement was to protect claimants from unnecessary assessments where there is no real prospect of vocational independence.23
[48] In the present case Mr Osborne’s estate submits there was no evidence to support a finding that the claimant was likely to achieve vocational independence. It says that as at 15 March 2006 the Corporation held the view that Mr Osmond would not be found vocationally independent if assessed. This was followed by an assessment for self-employment funding dated 27 June 2006 which concluded Mr Osmond could not work more than 20 hours a week. It is submitted that there was no evidence in any of the reports or assessments that, between 27 June 2006 and 5
October 2006, Mr Osmond’s medical condition had improved to a point where it could be said that vocational independence was reasonably in prospect. It is said, to the contrary the medical evidence points to Mr Osmond’s medical condition deteriorating.
[49] The 15 March 2006 date refers to the memorandum from the case manager in which she was seeking advice as to the financial viability of Mr Osmond’s proposed
business.24 The 27 June 2006 date refers to the report back to the case manager
20 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733.
21 Osmond v Accident C
ompensation Corporation, above n 2.
22 At [31].
23 At [32].
24 Refer [26] above.
concluding that the business was not financially viable.25 Both documents need to be read in that context.
[50] The case manager’s 15 March 2006 memorandum includes the phrase “if he can ‘work’ 20 hours per week” because that was the maximum number of hours he was assessed as being able to perform in carrying out his engineering business at his workshop at the time of the June 2005 medical assessment.26 This was because the engineering business involved some types of activity that would put load through his left knee. The business proposal being considered by the Corporation in March 2006
to June 2006 involved employing someone to perform the tasks that he was not able to carry out.
[51] The case manager’s view in the 15 March 2006 memorandum that “it is likely that Grant will not be assessed as Vocationally Independent if he went through these assessments” seems to be referring to an assessment of his capacity to work 35 hours in this business. She appears to be saying that, because he will only be able to work 20 hours in this business, he would still receive weekly compensation. It does not appear to be an assessment of whether he was likely to be assessed as vocationally independent in respect of light supervisory work. That is because the case manager’s memorandum commenced by referring to Dr Gollop’s 13 June 2005 report “that Grant is fit to carry out light supervisory type work but not moderate or heavy work”.
[52] In any event, Dr Gollop had identified in his 13 June 2005 report that Mr Osmond would be fit for work as a transport manager, stock clerk or transport clerk, but was permanently unfit for moderate or heavy manual work or for those occupations which involved a long time standing with a full load or lifting through his left knee. There was no further information between Dr Gollop’s 13 June 2015 report and the case manager’s 15 March 2006 memorandum on which the case manager could have held the view that Mr Osmond was not likely to be assessed as
vocationally independent in respect of light supervisory work.
25 Refer [27] above.
26 Refer Dr Gollop’s opinion quoted at [24] above. That was also the approximate number of hours he reported as working at the time of the workplace assessment (refer [21] above).
[53] The 26 June 2006 advice on the financial viability of Mr Osmond’s
engineering business begins by stating:
The claimant’s incapacity results from knee, hip and ankle injuries. While other employment opportunities have been identified, Mr Osmond’s ability to work only 20 hours a week is seen as a limiting factor in matching income earned with funds required for a living. It is suggested profits from the self employment proposal may meet this need.
[54] It is unclear whether the writer of this memorandum understood Mr Osmond’s ability to work only 20 hours of week related to employment opportunities other than Mr Osmond’s engineering business, or whether the writer was referring to Mr Osmond’s ability to work only 20 hours in his business. The latter is more likely, but if it was the former then the writer appears to have misunderstood the position. As discussed, Dr Gollop’s assessment in June 2005 was that Mr Osmond was fit for light supervisory work but could only work up to 20 hours of week in the engineering business. The issue was whether Mr Osmond could make sufficient profits from his business despite being able to work those limited hours so as to reduce his dependence on weekly compensation. This is noted in the recommendation to the case manager not to support the venture, which states the reasons as including “[t]he figures provided not apparently leading to any profit, and therefore no reduction in Mr Osmond’s dependence on ACC”.
[55] The position was that in June 2005 Mr Osmond was assessed as fit for light supervisory work and three job types were identified. Mr Osmond wanted to pursue his engineering business. The Corporation gave consideration to that but concluded in the end not to support that venture. There was then no reason not to proceed through to the vocational independence assessment. The Corporation was satisfied that s 110(3)(a) was met, as noted in the March/April 2007 review.27
[56] Therefore, although the issue was not raised in the District Court, there was
no error in the Judge’s conclusion that the assessments on which the Corporation’s decision was based “have been carried out in accordance with the statutory
27 Refer [32] above.
requirements” in this respect.28 Accordingly this ground of appeal has no prospect of success.
Second ground: available relevant information
[57] The second question on which special leave is sought concerns the information before Dr Nicholson when he carried out the medical assessment in May
2007. Clause 28(2) of Sch 1 of the Act provides that the Corporation must provide to a medical assessor all information the Corporation has that is relevant to a medical assessment. Mr Osmond’s estate contends this requirement was not complied with and this constituted a flaw in the process and invalidated the decision.
[58] The information which is said not to have been before Dr Nicholson is the 15
March 2006 memorandum and the June 2006 advice on the viability of the engineering business. However, as discussed above, these documents were focussed on Mr Osmond’s capacity to work in that business. That business was work of a kind that was outside the types of work for which he had been assessed as fit in June
2005. To the extent this information was relevant, it was before Dr Nicholson. That is because Dr Gollop’s June 2005 report stated that Mr Osmond could only work up to 20 hours in his engineering business. Dr Gollop’s report was one of the reports which Dr Nicholson records as having been provided to him.
[59] Although it was not referred to in the written submissions, at the hearing it was submitted that the true situation as to Mr Osmond’s part time work was not before Dr Nicholson. This relates to the statement which Mr Osmond provided to the District Court explaining that he had not been able to work even two days at the local transfer station. Mr Osmond had the opportunity to provide all relevant information to Dr Nicholson. His job at the local transfer station was discussed. In his report, Dr Nicholson notes that Mr Osmond worked two days per week at the local tip. There was no mention that he had reduced his hours from three days to two days a week because three days had become unmanageable for him. That suggests
that Mr Osmond did not raise that with him at the time.
28 Refer [45] above.
[60] At the hearing, but again not in the written submissions, it was submitted that the report from Dr Osmond’s general practitioner dated 19 April 2007 may not have been considered by Dr Nicholson. That is because it is not one of the documents listed by Dr Nicholson in his report. That, however, does not mean that Dr Nicholson did not have the document. It seems more likely that Dr Nicholson did have the report because it was sought by the Corporation specifically for the purposes of the vocational independence assessment: it was completed on a Corporation form entitled “Vocational Independence Assessment: General Practitioner Questionnaire” and was stamped as received by the Corporation on 23
April 2007 which was prior to the assessment undertaken by Dr Nicholson.
[61] Accordingly, although this proposed ground of appeal was not one of the grounds of appeal in the District Court, there was no error in the Judge’s conclusion that the assessments on which the Corporation’s decision was based “have been carried out in accordance with the statutory requirements” in this respect.29
Accordingly this ground of appeal has no prospect of success.
Third ground: the rehabilitation process
[62] The third ground on which special leave to appeal is sought concerns the rehabilitation process. Section 77 requires the Corporation to assess a claimant’s needs for vocational rehabilitation in preparing a rehabilitation plan, s 78 requires that the plan be updated from time to time, the Schedule contains provisions for the claimant’s involvement in that, and s 110(3)(b) requires that vocational rehabilitation be completed before a claimant is assessed for vocational independence.
[63] It is contended that the Corporation could not comply with these requirements because, after the May and June 2005 occupational and medical assessments, it did not update Mr Osmond’s individual rehabilitation plan until 30
November 2006. It is said that this was after the Corporation’s decision to refer Mr
Osmond to the vocational independence process on 5 October 2006.
29 Refer [45] above.
[64] However the documents show that Mr Osmond was involved in the rehabilitation plan. As at June 2005 he was assessed as fit for light supervisory work. His rehabilitation was focussed on assisting him with his wish to pursue his engineering business. The later updating of the plan to refer to the 2005 assessments does not mean that Mr Osmond was not aware of the outcome of those assessments during the period his business proposal was being considered by the Corporation. It was only once the Corporation had determined not to provide the development funding that would be needed for this business, that the Corporation determined to proceed with the vocational independence process. Before proceeding with that process the case manager discussed with Mr Osmond that the rehabilitation process was completed.
[65] As the District Court said, Mr Osmond did have an individual rehabilitation plan and the items referred to in that plan were signed by Mr Osmond as completed on 7 December 2006. It is clear that the vocational independence assessments did not take place until after the Corporation had reviewed the file and determined that there was no reason why these assessments should not proceed and Mr Osmond was formally notified of this on 4 April 2007.30
[66] This proposed ground of appeal therefore cannot succeed.
Fourth ground: vocational independence conclusion
[67] The fourth proposed ground of appeal is that the conclusion that Mr Osmond was not vocationally independent was not available on the evidence. Mr Osmond’s estate submits that the situation was one of an injury that was deteriorating leading ultimately to his total knee replacement surgery in 2010.
[68] This ground of appeal cannot succeed. Any deterioration after the vocational independence determination had been made could have been referred to the Corporation for reconsideration under s 109. The medical assessment in 2007 concluded that Mr Osmond was fit for work in the three job types identified. This
was effectively the same conclusion that had been reached in 2005. No assessment
30 Refer [32] and [33] above.
from another doctor was sought by Mr Osmond or provided by him. There is no sufficient basis in the evidence on which this Court could conclude that the Corporation’s determination, upheld by the District Court, was not available on the evidence.
Result
[69] The application for special leave to appeal is dismissed. I did not receive any submissions on costs and therefore do not know if they are sought. If they are sought and cannot be agreed leave is reserved to file brief memorandum focussed on what is in dispute within three weeks of the date of this judgment.
Mallon J
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