Gaskin v Accident Compensation Corporation
[2019] NZHC 2455
•27 September 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-404-1957
[2019] NZHC 2455
UNDER the Accident Compensation Act 2001 IN THE MATTER OF
an appeal pursuant to s 162 of the Act
BETWEEN
JANET GASKIN
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
On papers Judgment:
27 September 2019
JUDGMENT OF DOBSON J
[Leave to Appeal]
[1] In a judgment delivered on 2 July 2019,1 I dismissed an appeal by the appellant (Mrs Gaskin) against a decision of Judge Walker in the District Court at Auckland. Judge Walker had upheld a decision by the respondent (ACC) that Mrs Gaskin had achieved vocational independence (VI).2 Mrs Gaskin now seeks leave to appeal to the Court of Appeal. After receiving detailed submissions from counsel, at their request I have dealt with the application on the papers.
Background
[2] Mrs Gaskin was a night filler at a supermarket who, on 13 August 2013, sustained a back injury when lifting stock onto a shelf. Her claim for cover under the
1 Gaskin v Accident Compensation Corporation [2019] NZHC 1530.
2 Gaskin v Accident Compensation Corporation [2017] NZACC 63.
GASKIN v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2455 [27 September 2019]
Accident Compensation Act 2001 (the Act) was accepted. She subsequently attempted to return to work and by October 2013 she was undertaking light duties part-time and receiving abated weekly compensation. She did not manage to return to her pre-injury role as aspects of it involved lifting items that were too heavy for her.
[3] Initial occupational and medical assessments to consider rehabilitation options were undertaken in 2014 with a number of alternative jobs identified as being potentially viable. In April 2015, a consultant physician in rehabilitation medicine concluded that Mrs Gaskin's pre-injury employment was no longer suitable and recommended she find sustainable employment with lighter duties elsewhere.
[4] Mrs Gaskin was subsequently provided further assistance, including pain management and a work ready programme. She was then referred for an assessment of her VI, looking at her ability to work in alternative job options that were suitable from both a vocational and physical perspective.
[5] Assessments completed in 2015 confirmed that Mrs Gaskin had achieved VI in six job options. A decision was issued on 7 October 2015 under which her weekly compensation was to cease on 7 January 2016.
[6] Mrs Gaskin sought a review of that decision which was unsuccessful. She then appealed that decision to the District Court and a decision dismissing that appeal was delivered on 13 June 2017.
[7] Having been declined leave to appeal by the District Court, Mrs Gaskin applied to the High Court for special leave. Leave was granted in the following terms:3
[50] I am granting Ms Gaskin special leave to appeal. I consider there are two questions of law that this Court should address, namely:
(a)Did the Judge err in failing to take into account whether the statutory threshold test under s 110 of the Act had been met, before Ms Gaskin was referred for a vocational independence assessment?
(b)Did the Judge err in finding ACC complied with the legislative provisions on vocational rehabilitation for Ms Gaskin, in accordance with the Act and the applicable law?
3 Gaskin v Accident Compensation Corporation [2018] NZHC 3190.
[8]With regard to the first question, I determined:
[61] … whilst the District Court Judge did not undertake any extensive analysis of his own of the grounds for belief that Mrs Gaskin could achieve vocational independence in mid-2015, his conclusion that the statutory processes were appropriately followed is justified. In particular, I concur that the sequence of assessments up to June 2015 did provide sufficient grounds for ACC to take the view that Mrs Gaskin was at that time likely to achieve vocational independence.
[9]As to the second question, I concluded:
[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 ACC 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.
[10]And said:4
[74] … I agree with Judge Walker’s analysis that the provisions do not require a two-step process and that there is no reason why they cannot be conducted together while identifying alternative options.
[11] At the hearing of the appeal before me, Mr Beck, counsel for Mrs Gaskin, criticised the District Court Judge for arguably failing to recognise inadequacies in the provision of vocational rehabilitation for Mrs Gaskin once it became apparent she could not return to her pre-injury employment. I was not persuaded that this criticism could be made out. Mrs Gaskin had an extensive and varied work history, and assessments of her had indicated that, while some further occupational training might have been desirable, none was necessary.5
[12] Mr Beck also sought to introduce a third question of law on appeal: “Did the Court correctly apply the law as set out in Martin v ACC [2009] 3 NZLR 701?”. I decided not to consider this question:
4 Citation omitted.
5 Gaskin v Accident Compensation Corporation, above n 1, at [76].
[82] I was not persuaded that there were sufficient interests able to be advanced by Mrs Gaskin to justify going beyond the questions on which special leave had been granted and accordingly did not hear any detailed argument on this additional point.
[13]Mr Beck seeks leave to appeal my judgment on the ground that I:
(a)erred in law by concluding that there was no error of law in the District Court decision;
(b)erroneously concluded that there was no error of law in the District Court’s application of s 110 of the Act;
(c)wrongly held that the District Court's interpretation of the vocational rehabilitation provisions was correct, and wrongly construed the provisions of the legislative scheme; and
(d)erred in law by declining to address the additional question as to whether the District Court had applied the correct standard of appellate review.
[14] ACC opposes leave being granted, arguing that the questions raised are largely questions of fact and, in any event, are not seriously arguable. It contends that I correctly considered the legislative provisions and identified the facts supporting the decision.
Leave principles
[15]Leave is required by s 163 of the Act which provides:
163 Appeal to Court of Appeal on question of law
(1)A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.
(2)If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(3)An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.
(4)The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.
[16] The principles applicable to applications for leave to appeal under s 163 of the Act are well established:6
The Court will exercise this 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.
[17]An error of law occurs if a decision-making body:7
(a)misinterprets, and so misdirects itself on, the law;
(b)overlooks any relevant matter to the proper application of the law;
(c)takes account of any matter which is irrelevant to the proper application of the law; or
(d)reaches an ultimate conclusion on the facts which is insupportable because proper application of the law requires a different answer.
Did the High Court erroneously conclude there was no error of law in the District Court’s application of s 110 of the Act?
[18] The first question for the High Court was whether the District Court correctly took account of the statutory threshold in s 110 of the Act. I determined that the District Court Judge:8
… found that the preponderance of opinions available to the assessors suggested that Mrs Gaskin was capable of working more than 30 hours per week in a range of jobs for which she was qualified and that involved lighter physical duties than her pre-injury employment.
6 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5] (citations omitted).
7 Vodafone New Zealand Ltd v Commerce Commission [2011] NZSC 138, [2012] 3 NZLR 153 at [51]–[52].
8 Gaskin v Accident Compensation Corporation, above n 1, at [40].
[19] Mr Beck argues that there was no such finding in the District Court decision, the Judge devoting only two paragraphs to s 110 with no reasoning process or conclusion that s 110 was satisfied. He submits that the Supreme Court in McGrath v Accident Compensation Corporation made it very clear that the Court must decide whether the provisions of s 110 are satisfied and the District Court did not do that.9 He argues that instead I simply substituted my own view on this matter, undertaking my own analysis at [53]-[61]. Mr Beck submits that the High Court was required to assess whether the District Court followed the correct process. Arguably, it is evident from my judgment that no such process was followed in the District Court. It would follow that, in failing to find that the District Court’s omission was an error of law, I also made an error of law.
[20] For ACC, Ms Becroft argues that I was entitled to conclude that the District Court did engage with the proper test and it was clear that the District Court determined that the threshold test was satisfied. She submits that the absence of analysis is not fatal to the District Court’s decision, unless the evidence was not available for the Court to reach the decision it did. That submission relies on the decision of Wildbore v ACC, in which the Court of Appeal considered the adequacy of a judgment by the District Court, in circumstances where the judgment set out the facts at length but dealt with the conclusion briefly.10 It held:
[33] The essential question is whether it can be seen that the Judge turned his or her own mind objectively to all the relevant evidence, and came to an independent view. We are of the view that it is quite plain on the face of his judgment, when read as a whole rather than isolating phrases, that Judge Cadenhead did so.
[34] The key paragraph of Judge Cadenhead’s decision is [101] … Although the critical paragraph is certainly concise, its brevity is hardly problematic when read in the context of the judgment. A substantive judgment has to be read as a whole. The Judge had already traversed the evidence in this case at some length, primarily the conflict in medical assessments between Dr Kerr and Dr Hancock.
[21] Ms Becroft contends that the real question is whether the District Court’s conclusion was open to it on the facts. Therefore my judgment quite properly and necessarily engaged with the facts.
9 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733.
10 Wildbore v Accident Compensation Corporation [2009] NZCA 34, [2009] 3 NZLR 21.
[22] As to those facts, Mr Beck complains that I accepted that there was evidence that Mrs Gaskin was unable to maintain three hours per day of light duties in January 2015, but discounted this on the basis of “other reports” that no further light duties were available. He submits that there were no such reports in evidence and the undisputed evidence was, in fact, that three hours per day of light duties caused a significant increase in pain.
[23] Mr Beck argues that the inference reached at [55] of my judgment that Mrs Gaskin was certified as fit for lighter duties for 30 hours per week could not reasonably be drawn as the medical evidence showed no acceptance of ability to work for anything like 30 hours per week. Mrs Gaskin was certified as:
(a)fit to work eight hours per week at the end of October 2013;
(b)fit to work four hours per day in November and December 2013;
(c)unfit for any duties on 10 February 2014; and
(d)fit to work for 0-2 hours per day on 2 April 2014.
[24] Then, in November 2014, it was stated that there was no basis to enable Mrs Gaskin to work increased hours. Therefore the statement at [55] of my judgment is contradicted by the evidence.
[25] Ms Becroft counters by submitting that I correctly determined that the sequence of assessments up to June 2015 provided sufficient grounds for Aon (and subsequently the District Court) to take the view that Mrs Gaskin was, at that time, likely to achieve VI. Whilst it is clear that she had limitations in relation to increasing her work hours, those limitations were around her physical inability to return to her pre-injury role, not her ability to undertake light work. Ms Becroft points to numerous passages in reports that demonstrate that it was only in the context of returning to the heavier aspects of work that Mrs Gaskin was unable to manage more than three hours of work a day. It is noted that there is no evidence available to suggest that any attempt was made to increase her hours undertaking light duties only, the reasonable inference
being that sufficient light work was not available. Regardless, Ms Becroft states that there is no direct evidence that Mrs Gaskin was unable to work 30 hours or more a week in an appropriate light role.
[26] Ms Becroft submits that the evidence does support the inference that Mrs Gaskin had the ability to undertake 30 hours per week of light duties, with a number of physicians/providers all concluding that she had the ability to undertake light work without limitation. Their reports specifically address, in detail, her physical restrictions, without limiting the hours of light work of which she is capable. Ms Becroft submitted that this specialist evidence outweighs the various standard form, relatively superficial, medical certificates on file.
[27] I remain of the view that the District Court, in setting out the facts at length in its decision but dealing only briefly with its conclusion, clearly came to its own independent view on the issue, as in Wildbore. Determining whether the conclusion reached by the District Court was open to it on the facts necessitated this Court also going through those facts in some detail. I do not accept that an arguable question of law arises as to whether that involved the High Court having exceeded its role.
[28] The inference that Mrs Gaskin was fit for lighter duties for 30 hours per week was a reasonable one to have drawn on all the evidence. Criticism of it is a question of fact. Apart from the one report which suggests that as at January 2015 Mrs Gaskin was unable to work for three hours per day doing light duties, the other reports on which Mr Beck relies related to Mrs Gaskin’s capacity to engage in her pre-injury employment, with the heavier duties that job entailed. Overall, the evidence suggests that she would be able to undertake 30 hours per week of light duties in alternative employment.
[29] I cannot identify any reasonably arguable question of law arising from the conclusion that the District Court made no error of law in its application of s 110.
Did the High Court wrongly hold that the District Court’s interpretation of the vocational rehabilitation provisions was correct, and wrongly construe the relevant provisions?
[30] I agreed with the District Court’s analysis that s 86(2) does not require a two- step approach in every case, and concluded that there was no reason why the two steps (attempting a return to pre-injury employment and considering other alternative job options) could not be considered at the same time.
[31] Mr Beck submitted that s 86 of the Act requires ACC to initially consider whether it is possible to return a claimant to his or her pre-injury occupation. Only if that is not possible is ACC required to consider other options. However, I held that a strict sequencing of considerations under s 86(2)(a) and (b) is not required.11 That finding is said to violate the language of the statute, which is explicitly phrased in sequential terms. Arguably, the first obligation on ACC is to try and return the claimant to a particular occupation, and the further obligations cannot come into play until that has been ruled out.
[32] Mr Beck submits that the suggestion at [72] of my judgment that ACC can “elect” to go directly to step (b) without satisfying step (a) finds no support in the legislation. He submits that it is not reasonable to suggest that this can be done “in the claimant's interest” when the statutory scheme has put in place what is required. It is not for ACC to decide what might be in the claimant’s interest. Mr Beck submitted that it is seriously arguable that the Court has wrongly interpreted s 86 of the Act as allowing ACC an option to determine when and whether an assessment of vocational rehabilitation needs is required and in holding that s 86(2)(a) and (b) can operate concurrently.
[33] Mr Beck submits that the more recent High Court decision in King v ACC takes a very different approach in construing the statutory scheme.12 King involved judicial review proceedings against a decision by ACC to decline funding for a mobile hoist for a claimant. While the High Court declined to consider the judicial review application because the decision fell for consideration under the review and appeal
11 Gaskin v Accident Compensation Corporation, above n 1
12 King v Accident Compensation Corporation [2019] NZHC 1751.
process and therefore was not amenable to judicial review, the judgment did consider the interplay between ss 86 and 87 of the Act. Churchman J held:
[85] It is my view that [Wadsworth v Accident Compensation Corporation]13 erred in lumping the ss 86 and 87 considerations together as it overlooks that Parliament, in electing to enact the Act with these two separate sections, clearly meant that they should be considered separately.
[34]Churchman J reasoned:
[88] Parliament intended that the matters set out in s 87 be considered separately to those contained in s 86(2). Accordingly, I prefer Judge Powells’s [sic] reasoning to that contained in the cases relied on by Mr Mijatov. It provides a sensible approach for tackling the issue of whether or not to provide vocational rehabilitation, as it does not make sense to consider what vocational rehabilitation to provide before a decision has been reached as to whether or not it should, in fact, be provided. I will, therefore, adopt his two-stage process in the following analysis.
[35] Mr Beck submitted that, while the Court in King was not directly considering a return to pre-injury employment, it was required to construe the scheme of vocational rehabilitation. In that context, it held there is a distinct sequential process that has to be followed under the statutory scheme, which Mr Beck argues supports a sequential interpretation of s 86(2).
[36] On Mrs Gaskin’s concern that ACC did not make appropriate determinations on vocational rehabilitation, I observed:14
The view was taken that, although some occupational training was desirable, none was necessary and there is no suggestion that Mrs Gaskin identified a need or made requests for vocational rehabilitation assistance.
[37] Mr Beck submits this is another instance of the Court not limiting itself to how the case was approached in the District Court, but has instead treated the case as a general appeal and proceeded to make its own factual findings. What is arguably absent is any consideration of ACC’s assessment as to Mrs Gaskin’s needs pursuant to ss 86(2)(b) and 87, once a return to pre-injury employment had been ruled out.
13 Wadsworth v Accident Compensation Corporation [2015] NZACC 309 at [38].
14 Gaskin v Accident Compensation Corporation, above n 1, at [76].
[38] Mr Beck argued that my judgment assumed that an assessment of Mrs Gaskin’s rehabilitation needs was undertaken under s 86(2)(b) of the Act when no such assessment was undertaken, nor was any rehabilitation plan prepared evidencing what had been agreed regarding vocational rehabilitation, as required by s 77. Mr Beck argued that the absence of a plan shows clearly that ACC had not followed the processes of the statutory scheme. He submitted that the Court was wrong to hold that the provisions of the Act had been correctly applied. The structured approach of the scheme has been accepted by the High Court in King whereas, in this case, the Court held that ACC is not required to strictly follow the stages set out in the legislation.
[39] However, Ms Becroft submitted that this ground is not seriously arguable. Contrary to the submission for Mrs Gaskin, s 86 is not phrased in strictly sequential terms and the redrafting of the provision between the 1998 and 2001 Acts confirms a shift away from a purely hierarchical approach. In any event, in this particular case, Mrs Gaskin had been attempting a return to her pre-injury role for 11 months before initial assessments were undertaken. It was a further year before her VI was assessed. Ms Becroft submitted that there can be no suggestion that the process was hurried or that she was not given sufficient opportunity to return to her pre-injury employment. Ms Becroft supported my reasoning that while, in many cases, a strictly sequential approach will make sense, there will be others where a claimant such as Mrs Gaskin can quite reasonably be afforded the opportunity to continue attempting to return to pre-injury work while other options are explored.
[40] Ms Becroft submitted that the reality in this case was that the question in s 86(2)(a) was focused on for an extended period but, over time, questions under s 86(2)(b) entered the evaluation and for a period both possibilities co-existed. The more time spent unsuccessfully on a return to pre-injury work, the clearer the impetus to start exploring other options. Leaving aside that Mrs Gaskin’s fundamental argument involves a question of fact, Ms Becroft submitted that the argument raised is without merit.
[41] Ms Becroft submits that an assessment in relation to Mrs Gaskin’s vocational rehabilitation needs and the viability of other job options was undertaken, namely the initial occupational assessment completed on 24 July 2014. No vocational
rehabilitation was identified as necessary and a number of alternative job options that were vocationally suitable for Mrs Gaskin were identified. In addition, there were multiple assessments and interventions by various physicians/providers between 2013 and 2015.
[42] On the different context in King, Ms Becroft noted that Churchman J concluded that ACC must first consider whether to provide vocational rehabilitation before it considers what rehabilitation to provide. However, this appeal does not involve the interplay between ss 86 and 87. It is an appeal focused on the process leading up to a VI decision. The issue before the Court was whether it was appropriate to consider, under s 86 alone, both a return to pre-injury employment and other options at the same time. Arguably, the findings in King have no application here, nor are they contrary to my findings in this appeal.
[43] The relevant finding in King requires ACC first to determine whether vocational rehabilitation should be provided (s 86(1)). If such rehabilitation is deemed appropriate, the next stage is to look at what vocational rehabilitation is required (s 86(2)). This is the sequencing of considerations focused on in King. That decision did not reach any conclusion on how the considerations in s 86(2) should be sequenced.
[44] I am not persuaded that my finding to the effect that s 86(2) does not necessarily require a sequential approach, and that such an approach was not necessary in this case, wrongly construed the provisions of the Act. The process followed allowed sufficient time for Mrs Gaskin to attempt a return to her pre-injury employment while allowing for other options to be contemplated should she be unable to successfully make that return. It would have been artificial to wait until it became evident that her pre-injury role was no longer a possibility before exploring other job options. The progression in her assessments cannot be said to have prejudiced considerations of her needs for vocational rehabilitation.
[45] Mr Beck’s final point on this issue is that I wrongly stated that it was for Mrs Gaskin to identify and request vocational rehabilitation.15 He notes that the Act
15 Gaskin v Accident Compensation Corporation, above n 1, at [76].
requires ACC to make an assessment as to whether vocational rehabilitation is required and, if so, what rehabilitation is appropriate. The obligation is placed solely on ACC and Mr Beck contends that it is an error of law to shift that burden onto the claimant.
[46] However, as Ms Becroft points out, I did not hold it was for Mrs Gaskin to identify and request vocational rehabilitation. My judgment simply noted, as had the District Court, that this was not a case of a claimant seeking something from ACC (vocational rehabilitation) that she had been denied. There was no suggestion that she had any onus to do so. No error arose in including this observation.
Did the High Court err in law by failing to address the question as to whether the District Court had applied the correct standard of appellate review?
[47] I declined to consider a third question of law that Mrs Gaskin sought to raise. This was that the District Court had failed to adopt and follow a correct standard of appellate review, saying that there were not “sufficient interests able to be advanced” by Mrs Gaskin.16 Mr Beck submitted that it is far from clear what is meant by this. On the basis of the proposition established in Martin v Accident Compensation Corporation, Mrs Gaskin wished to advance her case that the District Court did not consider for itself whether the evidence as a whole showed her to be vocationally independent.17 He argued that this is a significant matter for Mrs Gaskin and is a legitimate argument for appeal. He pointed out that the Court has the power to control its own processes and is able to expand the grounds of appeal.18 Mr Beck submitted that electing not to address this question was an error of law.
[48] However, this was an appeal to the High Court on two specified questions of law for which leave had been granted.19 While the Court does have a discretionary power to extend appeal points if it is in the interests of justice to do so and there is no demonstrable prejudice, those additional points must be important and of a seriously arguable nature.20 Venning J noted in Ives v Accident Compensation Corporation that
16 Gaskin v Accident Compensation Corporation, above n 1, at [82].
17 Martin v Accident Compensation Corporation [2009] 3 NZLR 701 (HC).
18 Nelson v Accident Compensation Corporation (2008) 19 PRNZ 108 (HC).
19 Accident Compensation Act 2001, s 162(1) and (3).
20 O’Neill v Accident Compensation Corporation (No 2) HC Auckland CIV-2008-404-8482, 31 March 2010 at [15].
“the judicial resources of this Court should not be applied to ever expanding issues for which leave has not been granted”.21 It remains this Court’s view that Mrs Gaskin did not make out a sufficient case for the introduction of the third question and no error was made in electing not to address it.
Result
[49] For the reasons given above, this application for leave to appeal to the Court of Appeal is refused in respect of all four proposed questions of law.
Costs
[50] As Mrs Gaskin is legally aided for this application, the question of costs should not arise.
Dobson J
Solicitors:
Hazel Armstrong Law, Wellington for appellant Medico Law, Auckland for respondent
21 Ives v Accident Compensation Corporation [2012] NZHC 3442, [2013] NZAR 125 at [10].
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