Gaskin v Accident Compensation Corporation - [2021] NZCA 27

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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 Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	19 November 2020
Court:	French, Cooper and Gilbert JJ
Counsel:	A C Beck and P G Schmidt for Appellant D A Laurenson QC and F L Becroft for Respondent
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…

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: [2021] NZCA 27
Decision Date: 25 February 2021 at 11 am

CaseChat Overview and Summary

This appeal concerned the interpretation of s 86 of the Accident Compensation Act 2001 (the Act). The appeal was dismissed by the High Court in July 2019, and special leave to appeal was granted in December 2018 to the Court of Appeal. The appeal was heard in November 2020 and judgment was handed down in February 2021. Ms Gaskin argued that the statutory scheme of the Act required a strictly sequential approach to vocational rehabilitation, namely: (a) whether it was reasonably practicable to return the claimant to the same employment; and (b) if it was not, then whether it was reasonably practicable to return the claimant to an employment of a different kind with the same employer or with a different employer. Ms Gaskin argued that the Accident Compensation Corporation (the Corporation) had to exhaust all possibilities of returning her to her pre-injury employment before considering other options. The Corporation argued that there was no requirement for a strictly sequential approach and that a contemporaneous consideration of options was permissible. The Court of Appeal found that there was no requirement in the Act for a strictly sequential approach to vocational rehabilitation. The Court found that the Act permitted the Corporation to consider various vocational rehabilitation options simultaneously in order to provide the most effective and appropriate form of vocational rehabilitation in an efficient timeframe. The Court found that a strictly sequential approach would not only be contrary to the statutory purpose of the Act but would also result in poor outcomes, unnecessary delays and an increased cost borne by the community. The appeal was dismissed.

Orders