Gaskin v Accident Compensation Corporation
[2021] NZCA 27
•25 February 2021 at 11 am
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| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA538/2019 [2021] NZCA 27 |
| BETWEEN | JANET GASKIN |
| AND | ACCIDENT COMPENSATION CORPORATION |
| Hearing: | 19 November 2020 |
Court: | French, Cooper and Gilbert JJ |
Counsel: | A C Beck and P G Schmidt for Appellant |
Judgment: | 25 February 2021 at 11 am |
JUDGMENT OF THE COURT
AThe answer to the question of law set out at [5] of the judgment is “no”.
BThe appeal is dismissed.
C We make no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Ms Gaskin was formerly employed as a night filler at a supermarket in Palmerston North stacking products on shelves. In August 2013, Ms Gaskin injured her back while carrying out this work. She continued working for about a week before the pain worsened to the point she was unable to continue. The Accident Compensation Corporation (the Corporation) accepted her claim for cover and paid her earnings‑related compensation for this work-related personal injury. Ms Gaskin subsequently received treatment and vocational rehabilitation with the aim of her returning to her pre-injury employment. However, it became clear she would not be able to resume her previous employment. In September 2015, some two years after the injury, Ms Gaskin was assessed as vocationally independent, being capable of working at least 30 hours per week in six different roles. Aon New Zealand (Aon), a contracted accredited provider of the Corporation’s services, advised Ms Gaskin on 7 October 2015 that her eligibility for weekly compensation would cease on 7 January 2016 because her injury no longer prevented her from working full-time.
Ms Gaskin applied to the Corporation for a review of this decision, but it was upheld on review on 31 May 2016. Ms Gaskin then appealed to the District Court contending that the assessment of vocational independence was premature because vocational rehabilitation had not been properly assessed or completed. She also argued that the vocational independence medical assessment was flawed. The appeal was dismissed by Judge J H Walker for reasons set out in a lengthy judgment delivered on 13 June 2017.[1] Ms Gaskin applied for leave to appeal to the High Court on a question of law, but this was declined by Judge G M Harrison on 23 August 2018.[2] Ms Gaskin then applied to the High Court for special leave to appeal. On 5 December 2018, Cull J granted special leave to appeal on the following two questions of law:[3]
(a)Did the Judge err in failing to take into account whether the statutory threshold test under s 110 of the [Accident Compensation Act 2001] had been met, before Ms Gaskin was referred for a vocational independence assessment?
(b)Did the Judge err in finding [the Corporation] complied with the legislative provisions on vocational rehabilitation for Ms Gaskin, in accordance with the Act and the applicable law?
[1]Gaskin v Accident Compensation Corporation [2017] NZACC 63.
[2]Gaskin v Accident Compensation Corporation [2018] NZACC 134.
[3]Gaskin v Accident Compensation Corporation [2018] NZHC 3190 at [50].
Dobson J determined that the answer to these questions was “no” and he dismissed the appeal for reasons set out in his judgment delivered on 2 July 2019.[4] Dobson J declined Ms Gaskin’s application for leave to bring a further appeal to this Court on 27 September 2019.[5]
[4]Gaskin v Accident Compensation Corporation [2019] NZHC 1530 [High Court judgment].
[5]Gaskin v Accident Compensation Corporation [2019] NZHC 2455.
Ms Gaskin contends that the scheme of the Accident Compensation Act 2001 (the Act) requires a strictly sequential approach when determining what vocational rehabilitation is appropriate. She accepts it was not reasonably practicable for her to return to her former employment given her back condition. However, once that possibility was ruled out, she says Aon was required to consider in sequence what vocational rehabilitation would be appropriate to achieve the stepdown outcomes set out in s 86(2) of the Act, starting with a return to employment of a different kind with the same employer. Only after these possibilities had been exhausted, could the Corporation then assess whether she was vocationally independent. Ms Gaskin relies particularly on s 86(2) of the Act:
86Matters to be considered in deciding whether to provide vocational rehabilitation
(1)In deciding whether to provide vocational rehabilitation, the Corporation must have regard to the matters in section 87.
(2)In deciding what vocational rehabilitation is appropriate for the claimant to achieve the purpose of vocational rehabilitation under section 80,—
(a)the Corporation must consider whether it is reasonably practicable to return the claimant to the same employment in which the claimant was engaged, and with the employer who was employing the claimant, when the claimant’s incapacity commenced; and
(b)if it is not, the Corporation must consider the following matters:
(i)whether it is reasonably practicable to return the claimant to an employment of a different kind with that employer:
(ii)whether it is reasonably practicable to return the claimant to the employment in which the claimant was engaged when the claimant’s incapacity commenced, but with a different employer:
(iii)whether it is reasonably practicable to return the claimant to a different employment with a different employer, in which the claimant is able to use his or her experience, education, or training:
(iv)whether it is reasonably practicable to help the claimant use as many of his or her pre-injury skills as possible to obtain employment.
Because the issue raised by Ms Gaskin is one of general importance and likely to have wide application, this Court granted special leave to appeal on the following question of law:[6]
Did the High Court Judge err in interpreting s 86(2) of the Accident Compensation Act 2001 as permitting a contemporaneous rather than a sequential consideration of the matters in s 86(2)(a) and (b)?
Relevant statutory provisions
[6]Gaskin v Accident Compensation Corporation [2020] NZCA 147.
One of the two overriding goals of the accident compensation scheme is to minimise the impact of injury on the community, including economic, social and personal costs. This is to be achieved by the Corporation primarily focusing on rehabilitation with the goal of achieving an appropriate quality of life through the provision of entitlements that restore a claimant’s health, independence and participation to the maximum extent practicable.[7] To this end, the first of the entitlements listed under the Act is rehabilitation, comprising treatment, social rehabilitation and vocational rehabilitation.[8]
[7]Accident Compensation Act 2001, s 3(c).
[8]Section 69(1)(a).
The purpose of social rehabilitation is to assist in restoring a claimant’s independence to the maximum extent practicable.[9] The purpose of vocational rehabilitation on the other hand is to help a claimant achieve one of three outcomes as appropriate. These are to maintain employment, to obtain employment, or to regain or acquire vocational independence. Vocational rehabilitation includes the provision of activities for the purpose of maintaining or obtaining employment suitable for the claimant and appropriate for his or her levels of training and experience.[10]
[9]Section 79.
[10]Section 80.
Within 13 weeks after the Corporation accepts a claim for cover, it must determine whether the claimant is likely to need social or vocational rehabilitation following the expiry of that period. If so, an individual rehabilitation plan, which may include provision for treatment, must be prepared in consultation with the claimant.[11] In preparing the plan, the Corporation must assess the claimant’s needs for rehabilitation, having regard to the purposes of both social and vocational rehabilitation. Among other things, an individual rehabilitation plan must identify the claimant’s needs for rehabilitation, the services appropriate to those needs and specify which of those services the Corporation will provide, pay for or contribute to.[12] However, there is one important qualification. The Corporation is not required to assess the claimant’s needs for vocational rehabilitation if the claimant’s needs are solely related to maintaining employment.[13]
[11]Section 75.
[12]Section 77.
[13]Section 77(4).
Individual rehabilitation plans must be updated to reflect the outcome of assessments undertaken and progress made.[14] If there is a change of circumstances at any time affecting the claimant’s need for vocational rehabilitation, the Corporation and the claimant may agree to a consequent modification of the plan.[15]
[14]Section 78.
[15]Section 88.
In deciding whether to provide vocational rehabilitation, the Corporation is required to consider whether such rehabilitation is likely to achieve its purpose under the individual rehabilitation plan, whether it is likely to be cost-effective and whether it is appropriate in the circumstances.[16] We have already quoted s 86 which sets out the matters the Corporation must consider when deciding what vocational rehabilitation is appropriate for the particular claimant to achieve its statutory purpose. Any vocational rehabilitation must be provided for the minimum period necessary to achieve its purpose and generally for no longer than three years at the outside.[17]
[16]Section 87(1).
[17]Section 87(2).
An assessment of a claimant’s vocational rehabilitation needs must consist of an initial occupational assessment to identify the types of work that may be appropriate for the claimant and an initial medical assessment to determine whether the types of work identified are, or are likely to be, medically sustainable for the claimant.[18]
[18]Section 89.
As noted, the purpose of vocational rehabilitation is to help a claimant achieve one of three possible outcomes, as appropriate. The first of these, to maintain employment, will be appropriate in cases where a return to pre-accident employment is reasonably practicable. Most claimants will fall into this category. However, if a return to existing employment is not reasonably practicable, the next objective is to assist the claimant to obtain other employment. The third objective is to assist a claimant to obtain vocational independence which is defined to mean the claimant’s capacity to engage in work for which he or she is suited by reason of experience, education or training for at least 30 hours a week.[19] If the Corporation determines that a claimant has vocational independence, the claimant loses his or her entitlement to weekly compensation three months after notification of that determination.[20]
[19]Section 6.
[20]Section 112.
The Corporation may determine whether a claimant has vocational independence at such reasonable intervals as the Corporation considers appropriate.[21] However, the Corporation must not require a claimant to participate in a vocational independence assessment unless two pre-conditions are satisfied. First, the claimant must be likely to achieve vocational independence. Secondly, the claimant must have completed any vocational rehabilitation the Corporation was liable to provide under the individual rehabilitation plan.[22] The purpose of the assessment is to ensure that comprehensive vocational rehabilitation as identified in the rehabilitation plan has been completed and has focused on the claimant’s needs and addressed any injury‑related barriers to enable the claimant to maintain or obtain employment, or to regain or acquire vocational independence.[23]
[21]Section 109.
[22]Section 110(3).
[23]Section 107(3).
An assessment of vocational independence consists of an occupational assessment and a medical assessment. The occupational assessment considers the progress and outcomes of vocational rehabilitation carried out under the individual rehabilitation plan and whether the types of work identified in the plan remain suitable for the claimant in that they match the skills the claimant has gained through education, training or experience. The purpose of the medical assessment is to provide an opinion for the Corporation as to whether, having regard to the personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the plan.[24]
The process followed in Ms Gaskin’s case
[24]Section 108.
Various treatment and other rehabilitation services were provided to Ms Gaskin over the two-year period between the time of her accident in August 2013 and October 2015 when she was assessed as having vocational independence. These steps and the numerous medical reports that were completed during this time are detailed in the judgments below. It is not necessary to repeat that detail for the purposes of this judgment. The following summary will suffice to set the context for consideration of the question of law we are to determine.
An initial rehabilitation plan was completed on 11 September 2013 and reviewed monthly thereafter. Initially, it was envisaged that Ms Gaskin would return to work in her existing employment after receiving treatment, primarily physiotherapy. A graduated return to work plan was prepared with an agreed expected completion date of 25 November 2013. However, this proved not to be possible.
Despite further treatment in accordance with the plan, it became increasingly clear that Ms Gaskin was unlikely to be able to return to her pre-accident employment and that other options needed to be considered. On 31 March 2014, David Hartshorn, a specialist occupational physician, assessed Ms Gaskin with the benefit of all relevant medical reports including x-ray and MRI scan reports. Dr Hartshorn was asked whether there were any additional treatment options that could be considered and whether it was likely Ms Gaskin would be able to sustain her pre-accident work tasks safely long-term. Dr Hartshorn reported on 7 April 2014 that Ms Gaskin’s presentation remained largely unchanged with persistent low back pain. He stated that her symptoms were primarily due to protrusion of the left paracentral disc and associated nerve root irritation. He suggested that the potential for Ms Gaskin to return to her usual work activity would depend on resolution of these symptoms and he recommended a surgical referral to Tim Love, an orthopaedic surgeon. Dr Hartshorn also noted there was evidence suggesting Ms Gaskin had pre-existing disc degenerative change at the time of the accident although this appeared to be asymptomatic.
Ms Gaskin was accordingly referred to Mr Love. He reported on 26 June 2014 that Ms Gaskin was not a suitable candidate for surgery and he recommended that she be referred to Jurriaan de Groot, a consultant physician in rehabilitation medicine and a specialist in pain management. By this stage, it was apparent that Ms Gaskin’s needs for rehabilitation may not be solely related to maintaining her existing employment and therefore her needs for vocational rehabilitation to assist her to obtain the stepdown outcomes (obtain other employment or vocational independence) needed to be assessed. Accordingly, as anticipated at the regular monthly review of the individual rehabilitation plan on 17 June 2014 and confirmed at the next review on 22 July 2014 following receipt of Mr Love’s report, Ms Gaskin was referred for an initial occupational assessment and an initial medical assessment.
The initial occupational assessment was completed on 24 July 2014 and identified 18 types of work that may be appropriate for Ms Gaskin, taking account of her injury, her qualifications and her work experience in various roles over 27 years. Ms Gaskin’s responses to these potential roles were recorded in the report and ranged from being “very interested” to “no”. One of the roles identified was her existing role as a shelf filler. Ms Gaskin’s response to this was “[n]ot sure I can”.
Dr Hartshorn carried out the initial medical assessment and provided his report to Aon on 14 October 2014. He noted:
Mrs Gaskin presents with a history of persisting back dominant pain with associated left lower limb discomfort following a forward flexion manoeuvre on the 13/08/2013. …
Surgical review has resulted in recommendations for conservative treatment given the lack of a well-defined surgical indication and persistence of smoking.
It is appropriate at this time that Mrs Gaskin continues with conservative treatment. There is no current surgical indication. It is appropriate that Mrs Gaskin is now referred for a multidisciplinary approach to her persisting pain. The referral to Dr de Groot is appropriate in this regard. It would be appropriate that she has some ongoing adjustment of her medication regime and additionally has a combination of clinical psychology and exercise based rehabilitation input.
At this time Mrs Gaskin is approximately fourteen months post-onset of low back pain. It is becoming increasingly likely that she will continue to experience some degree of persisting low back pain. In this respect I believe it is unlikely that she will manage a successful return to her pre-injury employment which had a significant requirement for frequent bending and some lifting activity. I believe it would be appropriate to plan for a degree of vocational redirection into work activity at the light to sedentary end of the physical spectrum.
Of the 18 work types identified in the initial occupational assessment, Dr Hartshorn considered that 12 were likely to be medically sustainable for Ms Gaskin. As to the existing shelf filler role, Dr Hartshorn reported that this work was potentially very heavy in terms of physical demand and required frequent forward flexion postures. Dr Hartshorn did not consider Ms Gaskin would be likely to medically sustain this work and noted that she herself thought it unlikely she could resume this type of role.
In accordance with Dr Hartshorn’s recommendation, Ms Gaskin was referred to Dr de Groot on 13 November 2014. Dr de Groot recommended changes to Ms Gaskin’s medications to manage her back pain. He suggested that the heel be raised in her left shoe to correct leg-length discrepancy and improve the biomechanics of her spine. He also recommended that Ms Gaskin be referred to TBI Health for an individualised functional reactivation programme incorporating specialist physiotherapy and psychological input to help with pain management.
Ms Gaskin subsequently participated in a six-week programme at TBI Health which was completed on 13 February 2015. The programme included core strengthening exercises, flexibility, cardiovascular training and a conditioning programme with a work simulation component. However, the goal of returning to full duties at work was not achieved. Ms Gaskin commenced a gradual return to work for three hours per day doing light duties on 20 January 2015, but she could only sustain this for one week due to significant lower back and leg pain.
Ms Gaskin also completed four of the eight sessions offered with Jaimee Coles, a registered psychologist. Ms Gaskin chose to terminate these sessions because of the early gains she made in her overall psychological functioning.
Following completion of the functional reactivation programme and the psychological sessions with Ms Coles, Ms Gaskin was referred back to Dr de Groot for further assessment. He reported on 8 April 2015 stating:
[Ms Gaskin] has now completed a functional reactivation programme with Karmin Su, Physiotherapist at TBI [Health], and this has focused on achieving lumbar flexibility, core-strengthening exercises, specific stretches, and self‑management techniques. She has also received psychological therapy input from Jaimee Coles, and reviewing her today this appears to all have paid off significantly. [Ms Gaskin] reports that her average pain level is now down to 4/10, whereas previously this ranged from 8-10/10 on a visual analogue scale, and on top of this she is coping better within her home environment.
It became obvious that the tasks within her work environment, stacking supermarket shelves with heavy items, was not sustainable for her, and it is acknowledged that she can no longer fulfil these duties. As such, the quest is on for [Ms Gaskin] to find suitable sustainable employment with lighter duties.
Dr de Groot made no suggestions for any other treatment or rehabilitation. He considered it would be appropriate to certify Ms Gaskin as no longer fit to be a shelf stacker but he stated that she had the capacity to work in a setting involving much lighter duties, such as in the retail sector. Dr de Groot noted that Ms Gaskin had started to explore these possibilities through Workbridge, a free employment service for disabled people or those with an injury or health condition. He also noted that Ms Gaskin would continue to practise the exercises as instructed by her physiotherapist and psychologist.
Ms Gaskin completed a Work Ready programme on 23 July 2015.
All vocational rehabilitation then having been completed, Ms Gaskin was referred for a vocational independence occupational assessment. This was completed on 17 August 2015 and concluded that 14 of the work types identified in the individual rehabilitation plan were suitable for Ms Gaskin given her training and experience. Ms Gaskin’s comments on each of these work types were recorded in the report and were almost all positive, including “I would be really really interested in this sort of job”, “[y]eah can do that” and “[c]ould do this”. No potential vocational barriers to Ms Gaskin successfully obtaining work in any of these work types were identified.
A vocational independence medical assessment was undertaken on 4 September 2015 by Blair Christian, an occupational medicine specialist. In his report dated 11 September 2015, Dr Christian stated:
[Ms Gaskin] is at the point where she is looking forward to a return to work, ideally to her old daytime merchandising supervising role, where she did have a variety of generally light tasks and postures through the day.
I have no new treatment recommendations. … I do not believe that [a] further supervised physical therapy programme or psychological programme is required.
In my opinion [Ms Gaskin] is able to work for thirty hours per week or more in a suitable light role. The ideal role would be one with a mix of sitting and standing and walking through the day. [Ms Gaskin] is unlikely to sustain a full-time role involving very prolonged standing or prolonged sitting, where she cannot reasonably regularly change position or have a break. Similarly she would not sustain a full-time medium or heavy work role, particularly one involving repetitive lifting or twisting. Thus a light retail role or light office role for example, where she is able to change position and move around through the day, does appear ideal.
As noted earlier [Ms Gaskin] herself is very hopeful of being offered thirty hours per week or more in her old role or a role similar to that. She says that if she is offered thirty hours per week in that type of role she would take it, and feels that she would manage well with that. From her description of that role this does appear appropriate and indeed ideal for her.
As [Ms Gaskin] herself notes, she will have ongoing low back pain. Management from here really is avoidance of activity likely to lead to a marked worsening of pain or requirement of time away from work due to pain. With [an] ongoing strengthening programme, nighttime medication, and avoidance of those physical activities/restrictions noted above, I believe [Ms Gaskin] will sustain thirty hours per week or more. Daytime fatigue or side effects from medication will not interfere with that type of light role, and [Ms Gaskin] herself feels ready for return to work and indeed is looking forward to a return to work.
Dr Christian assessed Ms Gaskin’s ability to carry out the job options detailed in the vocational independence occupational assessment for at least 30 hours per week. He considered six of these work types would be medically sustainable by Ms Gaskin at that level.
In view of these assessments, Aon determined that Ms Gaskin had obtained vocational independence and her injury no longer prevented her from working full‑time. It notified Ms Gaskin accordingly on 7 October 2015.
Submissions
Mr Beck, for Ms Gaskin, submits the text of s 86 makes clear that a strictly sequential approach to vocational rehabilitation is required. The Corporation must first decide whether to provide vocational rehabilitation at all. If so, it must then decide what vocational rehabilitation it will provide. This entails a three-step process, with each distinct step being implemented separately and in sequence. At the first step, the Corporation must focus entirely on whether it is reasonably practicable for the claimant to return to their pre-injury occupation. Only if that is not reasonably practicable, can the Corporation go on to consider the second step which is to assist the claimant to obtain other employment with the same employer or the same role with other employers. The final step is to consider “completely new employment directions”. In summary, Mr Beck says the scheme is designed to ensure a graduated approach, only moving away from the pre-injury status quo as far as necessary to achieve effective rehabilitation for the claimant.
Mr Beck submits this strictly sequential approach to vocational rehabilitation is supported by the immediate statutory context. While the purpose of vocational rehabilitation — to assist the claimant to maintain employment, obtain employment, or regain or acquire vocational independence — is not stated in s 80 in hierarchical terms, it follows a natural progression. He says this is consistent with the statutory purpose of achieving effective rehabilitation with the minimum disruption to a claimant’s life and work. Mr Beck argues it is not possible to achieve rehabilitation to the maximum extent practicable if the hierarchy of considerations is not reflected in a practical rehabilitation programme and accompanied by a genuine effort by the Corporation to put this into effect. In particular, the Corporation cannot “short‑cut” the process by moving directly from step one to step three, which he argues is what occurred in this case. Mr Beck contends that once it became clear Ms Gaskin was not able to return to her pre-injury employment, Aon “abandoned all pretence of following the rehabilitation process specified under the Act, and embarked on taking the steps necessary to exit the appellant from the scheme as soon as possible”.
Mr Beck submits that the High Court erred in its interpretation of s 86 by adopting what he describes as a “muddling through” and “laissez-faire” approach that is neither in accordance with the scheme of the Act, nor justifiable on conventional principles of statutory interpretation. Mr Beck particularly criticises the following passages in the judgment:[25]
[71] I am not persuaded that either the terms of s 86, or the broader structure of the provisions in the Act for vocational rehabilitation, necessarily require a strict sequencing of the considerations required under s 86(2)(a) and (b). Clearly, in many circumstances there would be no point in [the Corporation] considering the matters specified in s 86(2)(b) until the prospects of returning the claimant to the same employment have been exhausted. However, in other cases of which the present is an example, it may be in the claimant’s interests for consideration of the s 86(2)(b) factors to be undertaken without necessarily having exhausted the prospects of the claimant returning to the pre-injury employment.
[72] The prospect of progressing these options for rehabilitation within the same time frames is not precluded by s 77(4). That provision merely exempts [the Corporation] from a requirement to consider vocational rehabilitation where it is clear that the claimant’s needs are focused on maintaining pre-injury employment. That does not preclude [the Corporation] electing to advance considerations under both options at the same time.
[25]High Court judgment, above n 4.
Mr Laurenson QC, for the Corporation, submits that s 86(2) permits a contemporaneous consideration of s 86(2)(a) and (b) matters for the following reasons:
(a)The purpose and effect of s 86(2) is to make a return to pre-injury employment the first goal of vocational rehabilitation, with obtaining other employment or acquiring vocational independence being the “fallback options”.
(b)A contemporaneous consideration is not inconsistent with the purpose or wording of s 86(2) as the provision does not provide that s 86(2)(a) and (b) matters cannot be considered at the same time to account for the possibility that ultimately a return to pre-injury employment might not be reasonably practicable.
(c)The statutory scheme supports a contemporaneous consideration in appropriate circumstances, such as through s 89, which provides that the assessment of a claimant’s needs must consist of both an initial occupational assessment and an initial medical assessment.
(d)A requirement that there be a sequential consideration in all circumstances has the potential to lead to absurd results contrary to the statutory purpose of the Act, such as significant delays in the completion of the vocational rehabilitation process and so in claimants being rehabilitated and obtaining other employment or acquiring vocational independence. This would be contrary to the Act’s purpose of minimising the economic, social and personal costs to the community of claimants being unemployed as a result of injury and so continuing to receive entitlements for a longer period than is necessary.
(e)A contemporaneous consideration would not “short-circuit” the scheme in the Act as, regardless of the approach taken, the statutory vocational rehabilitation scheme must be carried out and completed before a claimant can be required to undergo a vocational independence assessment.
Assessment
We agree with Dobson J that there is nothing in s 86 or in the scheme of the Act requiring a strictly sequential approach to be taken to the provision of vocational rehabilitation. We accept Mr Laurenson’s submissions that such a rigid approach would be contrary to the statutory purpose of the Act, the entitlements provided for and the procedures prescribed.
From the outset, rehabilitation has been a key focus of the accident compensation scheme. The 1967 report of the Royal Commission of Inquiry (the Woodhouse Report that led to the enactment of the Accident Compensation Act 1972) identified that injury by accident needed to be tackled on three fronts.[26] In descending order of importance, these were prevention, rehabilitation and compensation. The Commission considered that incapacitated people requiring rehabilitation fell into three main groups — those who will quickly recover and return to their former activities, those who will eventually be able to return to their normal work but only after a period of treatment and convalescence, and a relatively small group who will require considerable assistance and possibly retraining.[27]
[26]Royal Commission of Inquiry Compensation for Personal Injury in New Zealand (December 1967) at 2.
[27]At 361.
The objective of rehabilitation is to restore the injured person to the greatest extent reasonably possible at the earliest opportunity. In the White Paper presented to the House of Representatives by leave in October 1969, the Department of Labour commented that the “boundary between those who will need retraining in their old work habits, skills, and capacities, and those who will need training in a new vocation, will frequently be blurred” but the “objective in all cases must be, as quickly as possible, to get injured persons back into productive employment and to enable them to be useful members of the community once more”.[28]
[28]Personal Injury: A Commentary on the Report of the Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand (Department of Labour, October 1969) at 258.
These founding objectives are reflected in the current Act. Section 3 states that the purpose of the Act is to enhance the public good and reinforce the social contract represented by the first accident compensation scheme with the overriding goals of minimising the overall incidence of injury, and the impact of injury on the community (including economic, social and personal costs). Where injuries occur, the Corporation’s primary focus must be on rehabilitation.
An insistence on a strictly sequential approach to the provision of rehabilitation to injured persons in all cases would result in services reasonably required by some claimants being delayed unnecessarily and lead to poor outcomes. Forcing claimants to exhaust all prospects of returning to pre-injury employment before receiving any vocational rehabilitation directed to the attainment of other statutory purposes of such rehabilitation would merely serve to prolong the rehabilitative process thereby increasing the impact of the injury on the claimant and adding to the cost borne by the community. This would be contrary to the social contract embodied in the Act.
As noted, one of the primary entitlements under the Act is rehabilitation, comprising treatment, social rehabilitation and vocational rehabilitation. A claimant is entitled to be provided with rehabilitation, to the extent provided under the Act, to restore their health, independence and participation to the maximum extent practicable. The Corporation is liable to provide the claimant with rehabilitation in accordance with the agreed individual rehabilitation plan.[29] There is nothing in the Act to prohibit an individual rehabilitation plan from identifying more than one of the purposes of vocational rehabilitation, as might be expected if a strictly sequential approach was intended. Absent agreement in the plan, a piecemeal approach to the provision of vocational rehabilitation is not sanctioned, let alone required.
[29]Accident Compensation Act, s 76(4).
An assessment of the claimant’s needs for vocational rehabilitation must consist of an assessment of the types of work that may be appropriate for the claimant and whether those types of work are or are likely to be medically sustainable for the claimant.[30] The assessment is not limited to returning the claimant to their pre‑injury employment; all rehabilitation needs to achieve the purpose of vocational rehabilitation (maintaining employment, or obtaining employment or obtaining vocational independence) must be considered at this stage of the process. This provision implicitly recognises that some claimants will present with a mix of needs for vocational rehabilitation, including but not limited to maintaining their existing employment. This reflects the “frequently blurred” reality referred to in the White Paper and quoted above at [38]. While the Corporation is not required to carry out this assessment if the claimant’s needs are solely related to maintaining their employment, it may nevertheless do so. The requirement for an initial occupational assessment and initial medical assessment to identify the claimant’s needs for vocational rehabilitation at the beginning of the process is not consistent with Mr Beck’s contention that a siloed and piecemeal approach to the assessment and provision of the claimant’s entitlement to vocational rehabilitation is mandated.
[30]Section 89.
A strictly sequential approach would also inhibit the Corporation and the claimant from pursuing the most effective and appropriate form of vocational rehabilitation in an efficient timeframe. This would be at odds with the inbuilt flexibility of the legislative scheme which requires ongoing collaborative review and modification of individual rehabilitation plans in order to respond appropriately as circumstances change. So, for example, a claimant may wish to return to their pre‑injury employment but recognise that this may well not be possible such that other outcomes need to be explored. It would be perverse if no vocational rehabilitation for more likely outcomes could be provided to the claimant until rehabilitation solely directed to returning them to their existing employment had been exhausted and that prospect completely excluded. It would also be contrary to the direction in s 87(1) requiring the Corporation, in deciding whether to provide vocational rehabilitation, to have regard to whether it is likely to achieve its purpose under the plan, is cost‑effective and appropriate in the circumstances. A strictly sequential approach is not one of the required considerations and may not be cost‑effective or appropriate in the particular circumstances of a claimant.
In conclusion, while in many cases the primary objective of vocational rehabilitation will be to enable the claimant to return to their pre-injury employment, we see nothing in the language of s 86 or the scheme of the Act to require the strictly sequential approach to the provision of such rehabilitation in all cases. The answer to the question of law set out at [5] above is “no”.
Costs
Ms Gaskin is legally aided and costs are not sought.
Result
The answer to the question of law set out at [5] of the judgment is “no”.
The appeal is dismissed.
We make no order for costs.
Solicitors:
Hazel Armstrong Law, Wellington for Appellant
Medico Law Ltd, Auckland for Respondent
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