King v Accident Compensation Corporation
[2019] NZHC 1751
•24 July 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-701
[2019] NZHC 1751
UNDER the Accident Compensation Act 2001 BETWEEN
MALCOLM JOHN KING
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 13 May 2019 Counsel:
T Mijatov for Applicant
S M Bisley and M R Evans for Respondent
Judgment:
24 July 2019
JUDGMENT OF CHURCHMAN J
Introduction
[1] Mr King has been a mechanic since about 2001. Since July 2009, he has operated in the Queenstown area through a company which he owns (Tech 2 U Limited). Mr King does not provide mechanic services through a garage but visits customers, providing mechanical services to them at their sites. Another unusual feature of Mr King’s work is that the services provided by him are limited to Toyota and Lexus vehicles.
[2] On 5 February 2012, Mr King injured his left shoulder in a mountain biking accident. As a result of the accident, he has limited ability to use his left arm at or above chest height, a function which was critical to his work as a mobile mechanic.
KING v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1751 [24 July 2019]
[3] Following the accident, Mr King promptly filed a claim with the Accident Compensation Corporation (ACC) and began receiving a weekly compensation entitlement. He returned to work on 7 August 2012 and the weekly entitlement ceased.
[4] In April 2015, Mr King contacted ACC regarding ongoing pain and weakness in his shoulder, and on 4 June 2015, Mr Andrew Swan operated on his shoulder. He began to receive weekly compensation entitlements again.
[5] In November 2015, ACC agreed to fund some of the cost of equipment for Mr King’s vehicle for the purpose of assisting him to carry out his mobile mechanic work.
[6] On 1 April 2016, another surgeon, Mr Craig Ball, carried out a second operation on Mr King’s left shoulder. Mr King subsequently received physiotherapy and occupational therapy designed to assist his return to work. On 4 November 2016, Mr Ball stated that Mr King would be ready to return to work in January 2017.
[7] On 22 December 2016, ACC agreed to fund Mr King’s purchase of an adaptor for a brake lathe for his mobile workshop.
[8] On 16 January 2017, Mr King completed a partial return to work and his weekly compensation was abated accordingly.
[9] By report dated 1 March 2017, Dr Martin Robb, a specialist in occupational medicine engaged by ACC, indicated that Mr King had asked him to mention to ACC that he felt he could cope much better with work tasks if he had a trailer with a mobile hoist.
[10] The report noted that Mr King said such trailers were available in the United States and would cost around US$70,000 but that he had been looking at the possibility of constructing his own trailer and attaching a mobile hoist to it.
[11] Dr Robb provided a second report dated 25 May 2017. This report also mentioned a hoist and indicated that Mr King had done some investigation and found one that he thought would be suitable for around $48,000 plus GST. The report
concluded that, at that time, Mr King could not substantially engage in his pre-injury role, and that it seemed unlikely that his left shoulder function would improve sufficiently in the future to allow him to continue in the same role carrying out the same required tasks. The report concluded with the statement:
I would recommend therefore an OT assessment of work tasks that are required of Malcolm if he works with and without a hoist. This would enable ACC to ascertain feasibility of assisting Malcolm with purchase of a mobile hoist.
[12] On 23 June 2017, Ms Dawn Gray, an ACC case manager in Alexandra, notified Mr King that ACC would require him to undergo an assessment of his vocational independence.
[13] On 26 June 2017, Ms Gray had a discussion with Mr King. Included in her notes of that discussion was the entry:
Told me that he has been looking into trailers and the total cost could be around
$56,000, would need to get it made, not available to buy off the shelf. Lochiel Trailers have given him an idea of price but needs to get this firmed up, will be able to use all the equipment ACC has already provided in the trailer with a hoist.
[14] On 10 July 2017, Ms Emma Spriggs, an occupational therapist, provided ACC with an initial occupational assessment report. Ms Spriggs provided a further report on 25 July 2017. She identified 11 work types that would be appropriate for Mr King based on his work experience and transferable skills, although noted that several of these provided a level of remuneration below his pre-incapacity earnings.
[15] On 9 August 2017, Dr Keith Murray, a Queenstown medical practitioner, provided an initial medical assessment report to ACC. Among the topics covered in the report were the types of work that had been identified in the Initial Occupational Assessment report. Dr Robb commented on whether the types of work identified were now, or likely to be in the future, “medically sustainable for 30 hours or more per week”.
[16]In relation to the work of a motor mechanic, the report said:1
1 Bold print in original.
With respect to the above noted functional limitations, this type of work is not likely to be sustainable because of the frequent stretching combined with up to heavy lifting.
[17] The report found that occupations such as small engine mechanic, sales representative (motor vehicle parts and accessories), customer services representative, motor vehicle or caravan salesperson, sales assistant (motor vehicle parts and accessories), service station attendant, retail salesperson – vehicles, stock clerk, and product examiner (electrical test and tag) were sustainable.
[18]This report also mentioned a hoist and said of Mr King:
He feels that a hoist would allow him to manage more of his pre-injury role and explains that he is not happy that ACC has elected not to purchase a hoist for him.
[19] On 4 September 2017, Mr King informed Ms Gray that he would have a quote for a mobile hoist to ACC in “a couple of weeks’ time”. On 11 October 2017, Ms Gray followed up with Mr King regarding a quote for the mobile hoist.
[20] On 7 November 2017, ACC received a report from Mr Dave McKissock, an occupational assessor, which identified Mr King as being suitable for the same sorts of occupations that Dr Murray had identified.
[21] On 20 November 2017, ACC received a report from Dr Nick Walker, trading as “FitForWork”, an occupational physician. This report came to the same conclusions as Mr McKissock and Dr Murray as to the types of occupation that Mr King would be functionally able to perform for 30 hours or more per week.
[22] In relation to the role of mobile motor mechanic that was Mr King’s prior occupation and his preferred future occupation, the report says:
More extensive assessment and provision of suitable equipment would be required to enable to [sic] Malcolm King to progress to work of more than 30 hours per week in this role. This would entail a form of truck with lifting equipment suitable for raising vehicles to do above head height [sic], so that work in the standing position can be carried out avoiding any prolonged requirement for work in a supine position. Malcolm has been very diligent in investigating this further and hopes to be able to provide a proposal about this in the near future.
[23] On 22 November 2017, Ms Gray informed Mr King by telephone that, as the Vocational Independence Medical Assessment report had cleared him to work in 11 work types, his weekly compensation would stop in three months’ time.
[24]Included in Ms Gray’s notes of the telephone conversation is the entry:
Talked about the trailer and he is still working on getting information and quotes about this. Still wants to send these into ACC.
[25] By letter dated 4 January 2018, ACC advised Mr King that it had considered his application to fund a hoist for his mobile mechanic business but had declined the application. It gave as the reason for this:
In the Accident Compensation Act s 87(1)(b), states that ACC must take the most cost effective option in regards to the cost of entitlements, in this regard weekly compensation ends on the 22/2/18, the cost of funding a mobile hoist will well exceed the cost of weekly compensation up to this date.
[26] On 21 February 2018, Mr Warren Forster, a barrister of Dunedin, filed an application with ACC for a review under s 134(1)(a) of the Accident Compensation Act 2001 (the Act) in relation to the decision of 4 January 2018 declining funding of the mobile hoist.
[27]These proceedings were commenced on 13 September 2018.
The proceedings
[28] The proceedings seek judicial review of the decision by ACC to decline to fund the mobile hoist (Hoist Funding Decision).
[29] The ground upon which the application for a review is based is error of law. The specific error of law referred to is the alleged failure to take into account whether or not the Reasonable Practicability Prerequisite (RPP) was met. It was also alleged that the information available to ACC and upon which ACC made its Hoist Funding Decision does not reasonably support the conclusion that the RPP could not be, or was not, fulfilled.
[30] It was claimed that, had ACC not made the error or errors of law alleged, it would, or could, have concluded that the RPP was fulfilled. By that, it was meant that ACC could, or would, have concluded that providing or contributing to the cost of a mobile hoist would mean that it was reasonably practicable to return Mr King to the same employment in which he was engaged when his incapacity commenced.
[31] It was pleaded that, as a prerequisite to making a decision on the hoist funding, ACC had to first determine what vocational rehabilitation was appropriate, and secondly, to determine whether to provide that vocational rehabilitation. It was alleged that, in making the first decision, ACC was required by s 86(2)(a) of the Act to consider whether it was reasonably practicable to return Mr King to his pre-incapacity employment.
[32] Part 5 of the Act provides for a dispute resolution mechanism of reviewing a decision by ACC. Section 134(1)(a) provides that a claimant may apply to ACC for review of “any of its decisions on the claim”. This is the type of review initiated on behalf of Mr King on 21 February 2018. An applicant for such a review could not simultaneously file a judicial review application in the Court.
[33]The statement of claim filed by Mr King addresses this issue by claiming:
The Reasonable Practicability Prerequisite to the Hoist Funding Decision is not a decision capable of review and appeal under the Accident Compensation Act 2001.
[34] The defence advanced by ACC is, first, that the so-called Reasonable Practicability Prerequisite is not a prerequisite to ACC’s decision whether to provide vocational rehabilitation but a mandatory consideration to be taken into account when making a decision as to what vocational rehabilitation is appropriate for a claimant. And, second, that the Hoist Funding Decision is a decision capable of review pursuant to s 134(1) of pt 5 of the Act, and accordingly, the Court is precluded by s 133(5) from considering or granting remedies in relation to the Hoist Funding Decision.
Factual issues
[35] There are some factual issues around the communication between Mr King and ACC in relation to the purchase of a hoist that need determination by this Court.
[36]In his affidavit of 19 December 2018, Mr King said:
[15] I have asked ACC to think about paying for the cost of a mobile hoist for me, or to contribute to the cost of a hoist.
…
[17] To help things along I have looked into the cost of importing a hoist from overseas, or custom building a hoist here in New Zealand. I got a quote that it would cost USD70,000 to buy a hoist from overseas. I have told ACC about this. Since then I have had further discussions with a transport engineer Barry Armour in Dunedin. He has said that working drawings would be required before a quote for making the hoist could be provided. I do not have written information about the cost of working drawings because he told me that over the phone.
[18] ACC has not given me any other quotes or similar options to the mobile hoist.
[37] In his written submissions, counsel for Mr King, Mr Mijatov, claimed that it was ACC’s responsibility to obtain a quote for the hoist.
[38] As detailed above, from as early as November 2015, Mr King had requested assistance from ACC in relation to the cost of equipment for his vehicle for the purpose of assisting him to carry out his mobile mechanic work. The decisions in response to those requests can only have been made pursuant to a decision to provide vocational rehabilitation to him.
[39] The affidavit of Ms Gray, for ACC, dated 11 February 2019, confirms that, in relation to the items that ACC assisted in the funding of in 2015 and 2016, Mr King had obtained quotes and provided the quotes to ACC. Based on those quotes, ACC made decisions as to how much to contribute to the various items.
[40] As noted above at [11]-[13], Dr Robb, in his reports to ACC, reported that Mr King had been investigating various options in relation to a suitable hoist.
[41] Mr King continued to investigate possibilities for a hoist, including reporting to Ms Gray on 26 June 2017 as to options and prices2, and again in Dr Murray’s report of 9 August 2017.3
[42] On 4 September 2017, Mr King informed Ms Gray he would have a quote for a mobile hoist in “a couple of weeks’ time”, and on 11 October 2017 Ms Gray followed up regarding the quote.4
[43] Although Mr Mijatov submitted that the obligation was on ACC to investigate the possibility of getting a hoist, the reality is that the hoist was Mr King’s initiative, just as the other modifications that had been made to his vehicle for the purpose of assisting in his vocational rehabilitation had been his initiatives.
[44] There is no evidence that, at the time, Mr King had asked ACC to obtain quotations, or expressed the view that it was the responsibility of anyone other than himself to identify what sort of hoist might be of assistance to him.
[45] It appears that, at the time, ACC were prepared to consider whatever quotation, or information, Mr King put to it as to the type of hoist and cost, even to the point of Ms Gray following up with him on 11 October 2017.
[46] From such information as ACC had as to the potential cost, it was reasonable for it to conclude that it was likely to be an expensive piece of equipment, up to as much as US$70,000.
[47] The reasoning of Ms Gray as to why she declined the request to contribute to a hoist is set out in her affidavit of 11 February 2019. She deposes that she had not received any firm quotes that would allow her to make a definite decision; the indications she had were that the costs could be between NZ$40,000 and US$70,000 which would greatly exceed the remaining weekly compensation due until the end date of 22 February 2018, and also that she did not believe that the evidence established
2 See [13] above.
3 See [15]-[18] above.
4 See [19] above.
that the hoist would allow Mr King to return to his previous employment, or to achieve the purpose of his rehabilitation plan, namely to return to work.
[48] I accept that, because Mr King never put a firm proposal to ACC for any particular type of hoist, there was, ultimately, nothing for ACC to approve.
[49] I note that, in his affidavit in reply, Mr King says he was not able to provide any firm quotes because he did not have the qualifications or expertise to find the right quote because he was a motor mechanic, not a transport engineer.
[50] There does not appear to have ever been any suggestion that Mr King would undertake the costings himself. The evidence discloses that he had approached potential manufacturers of a hoist that would meet his requirements and anticipated that they would provide him with a quotation which he could then forward to ACC.
Mr King’s submissions
[51] Mr Mijatov advanced the proposition that ACC was obliged to consider Mr King’s request for assistance with the purchase of the hoist under ss 86-87 of the Act. He submitted that ACC was required to consider whether it was reasonably practicable to return him to the same employment in which he was engaged when his incapacity commenced (s 86(2)(a)). He argued that, on 4 January 2018, ACC made the decision declining to fund a mobile hoist without discharging that obligation.
[52] Mr Mijatov contended that the obligation imposed in s 86(2)(a) was a legislative pre-condition of the same type identified by the Supreme Court in McGrath v Accident Compensation Corporation5 and by the Court of Appeal in Splite v Accident Compensation Corporation.6 Counsel submitted that, in this case, s 86(2)(a) contained a legislative pre-condition or threshold determination to ACC’s subsequent decision not to fund the hoist.
5 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733.
6 Splite v Accident Compensation Corporation [2016] NZCA 302, [2016] NZAR 947.
[53] It was submitted that ACC’s ultimate decision not to fund the hoist was a decision about entitlements in respect of which there were rights of review and appeal under the Act.
[54] The wording in ss 86-87 of the Act, Mr Mijatov argued, required the respondent to first decide “what” vocational rehabilitation to provide, and secondly, “whether” to provide it.
[55] Counsel acknowledged that there were a series of District Court cases where the Court had held that the correct approach was to determine whether a claimant was entitled to vocational rehabilitation and then to consider what vocational rehabilitation was appropriate.7 However, he submitted that this authority was inconsistent with District Court cases such as Wadsworth v Accident Compensation Corporation8 and Millar v Accident Compensation Corporation.9
[56] It was also submitted that the text and purpose of the Act indicated that a determination about “what” vocational rehabilitation to provide should precede ACC considering “whether” to provide that particular form of rehabilitation.
[57] In relation to the evidence of Ms Gray as to what matters she took into account in making the decision, Mr Mijatov urged the Court to disregard aspects of her evidence entirely on the basis that not all of the matters which she said she considered were recorded in writing at the time.
[58] On the issue of whether, in any event, the requirements of s 86(2)(a) were fulfilled by the information available on the file, Mr Mijatov argued that such information was not sufficient to support a conclusion that it was not reasonably practicable to return Mr King to his pre-injury employment.
7 Whiting v Accident Compensation Corporation [2017] NZACC 2 at [10]; Bogle v Accident Compensation Corporation [2015] NZACC 79 at [16]-[19], and Strathern v Accident Compensation Corporation [2015] NZACC 218.
8 Wadsworth v Accident Compensation Corporation [2015] NZACC 309 at [38].
9 Millar v Accident Compensation Corporation DC Wellington 247/2007, 13 November 2007 at [66].
[59] In relation to the fact that ACC had contributed toward the cost of equipment such as storage tanks, pump equipment and a brake lathe adaptor, it was submitted that this was not a relevant consideration in respect of whether s 86(2)(a) was fulfilled in respect of the mobile hoist.
ACC’s submissions
[60] For ACC, Mr Bisley emphasised the scope and purpose of the statutory review procedure which resulted in a de novo investigative review hearing of the relevant decision. He noted that the Court of Appeal had described the review procedure as “simple, cheap and effective”.10
[61] Mr Bisley submitted that s 86(2)(a) is not a pre-condition to a decision about whether to provide a hoist but a mandatory consideration to which ACC must have regard when making a decision under s 86(2) as to what vocational rehabilitation should be provided. He argued that such a decision is a “decision about which entitlements the Corporation will provide to a claimant” within s 6 of the Act and was, therefore, a “decision on a claim” subject to the Act’s specialist review procedure, and in respect of which judicial review was expressly excluded by s 133(5).
[62] He submitted that a consequence of adopting Mr King’s interpretation would be to compel claimants to raise complaints about a specialist issue concerning entitlements – namely whether it is reasonably practicable for them to return to their pre-injury employment – in judicial review proceedings in the High Court rather than through the specialist, cheap and effective tribunals created for that purpose. This, he said, was at odds with the purpose of pt 5 of the Act.
[63] As to the substantive justification for the decision to refuse funding, it was submitted that this was largely because funding the hoist was clearly not cost effective given that, as at the point the decision was made, Mr King only had two months of weekly compensation remaining.
10 Dean v Chief Executive of the Accident Compensation Corporation [2007] NZCA 462, [2008] NZAR 318 at [40].
[64] Mr Bisley contended that there was no purpose in ordering relief as ACC did not have the ability to consider s 86(2)(a) afresh because Mr King had been declared vocationally independent as at 22 February 2018, and so was ineligible for vocational rehabilitation.
Analysis
[65] Resolving this application requires a determination as to whether or not the decision at issue falls within s 133(5) of the Act. Section 133(5) provides:
If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides.
[66] As with all cases of statutory interpretation, the Court looks to the text and purpose of the Act. The relevant provisions of the Act in this case are therein pt 5 and ss 85-87.
[67] Part 5 sets out the internal dispute resolution scheme, the features of which were described by the Court of Appeal in Dean v Chief of the Accident Compensation Corporation.11
[68]The dispute resolution scheme was designed to:
(a)be simple, cheap and effective;
(b)enable expert decisions; and
(c)allow the matter to be looked at de novo and in an inquisitorial manner.12
[69] In the case of Denzel v Accident Compensation Corporation, France J referred to the explanatory note to the Accident Insurance Bill in relation to the corresponding
11 Dean v Chief of the Accident Compensation Corporation, above n 10, at [7].
12 See Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340 at [64] and the principles set out in s 140 of the Act.
part of that Act and noted that it was designed to ensure that disputes could be resolved quickly, fairly and cost-effectively.13
[70] France J also noted that the supervisory jurisdiction of the Court is not to be lightly ousted but that the relevant section (the forerunner of s 133(5)) clearly intended to do that.14
[71] I therefore conclude that there is a clear statutory purpose in enacting the dispute resolution regime set out in pt 5 of the Act and that, unless a decision clearly falls outside the ambit of pt 5, it is not amenable to judicial review.
[72]Section 133(5) will be engaged where there is a “decision” about a “claim”.
[73] The concept of “decision” is defined in s 6 of the Act, the relevant provisions of which include:
(c)a decision whether or not the Corporation will provide any entitlements to a claimant:
(d)a decision about which entitlements the Corporation will provide to a claimant:
(e)a decision about the level of any entitlements to be provided ...
[74] “Entitlement” is defined as meaning “the entitlements described or referred to in section 69”.
[75]Included amongst the entitlements provided in s 69 are:
(a)rehabilitation, comprising treatment, social rehabilitation, and vocational rehabilitation.
[76] “Claim” is defined in s 6 as meaning “a claim under section 48”. Included within s 48 is a claim for:
(b)cover, and a specified entitlement, for his or her personal injury; or
(c)a specified entitlement for his or her personal injury, once the Corporation has accepted the person has cover for the personal injury.
13 Denzel v Accident Compensation Corporation HC Wellington CP135/02, 29 October 2022 at [34].
14 At [36].
[77] Vocational rehabilitation is a specified entitlement under s 69(1)(a). A claim to vocational rehabilitation is therefore a claim under s 48, and a decision about a claim for vocational rehabilitation comes within the s 6 definition of decision.
[78] Part 4 of the Act deals with vocational rehabilitation, with the provisions relevant to this case being ss 85-87.
[79] Section 85 provides the Corporation is liable to provide vocational rehabilitation to a claimant who has suffered a personal injury for which he or she has cover, and who is entitled to weekly compensation. The applicant met those criteria.
[80] Sections 86 and 87 provide for matters which must be considered by the Corporation. Relevantly, s 86(2) says:
(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.
[81] Section 87 provides for further mandatory matters to be considered. The relevant subsection provides:
(1)In deciding whether to provide vocational rehabilitation, the Corporation must have regard to–
(a)whether the vocational rehabilitation is likely to achieve its purpose under the claimant’s individual rehabilitation plan; and
(b)whether the vocational rehabilitation is likely to be cost- effective, having regard to the likelihood that costs of entitlements under this Act will be reduced as a result of the provision of vocational rehabilitation; and
(c)whether the vocational rehabilitation is appropriate in the circumstances.
[82] A request for vocational rehabilitation is a “claim” because it is a specified entitlement. Such an approach is consistent with the decision of the High Court in relation to the corresponding provisions in earlier legislation.15
Two-stage inquiry
[83] Judge Powell, as he then was, in a number of District Court decisions had identified that s 86 of the Act involves a two-stage process.16
[84] Mr Mijatov contended that this was inconsistent with several other District Court decisions. He said that, in Wadsworth v Accident Compensation Corporation, the requirements of ss 86 and 87 are set out together instead of as a two-stage process.17 The paragraph that he relies on is as follows:
[38] The obligation to provide vocational rehabilitation comes from s 85 and ss 86 and 87 sets [sic] out the matters to be considered including:
• Whether it is reasonably practicable to return the claimant to the same employment or to employment of a different kind.
• Whether it is reasonably practicable to help the claimant use as many of his or her pre-injury skills as possible to obtain employment.
• Whether the rehabilitation is likely to achieve its purpose under the claimant's individual rehabilitation plan.
• Whether it is likely to be cost effective having regard to the likelihood that costs of entitlement under this Act will be reduced as a result of the provision of vocational rehabilitation, and
• Whether the vocational rehabilitation is appropriate in the circumstances.
15 Weir v Accident Compensation Corporation HC Wellington CIV-2003-485-1921, 18 August 2004 at [34]-[41].
16 Bogle v Accident Compensation Corporation, above n 7, at [16]-[17]; Whiting v Accident Compensation Corporation, above n 7, at [10]; Strathern v Accident Compensation Corporation, above n 7, at [21].
17 Wadsworth v Accident Compensation Corporation, above n 8.
[85] It is my view that this decision 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.
[86] The second decision Mr Mijatov submits is inconsistent is that of Millar v Accident Compensation Corporation.18 In that case, the Court said:
[66] There is inevitably conflict between the Corporation’s view that a claimant can achieve full time work, and the claimant’s contrary opinion. Sections 86 and 87 of the Act vest the Corporation with the authority to make that decision, taking into account appropriateness, viability and cost- effectiveness. If the claimant cannot return to pre-injury work, the Corporation must consider:
(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.
[87] As Mr Mijatov notes, this decision combined the analysis required by ss 86 and 87 in observing that the two sections require ACC to take into account “appropriateness, viability and cost-effectiveness”. Again, the criticism made above at [85] applies.
[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 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.
18 Millar v Accident Compensation Corporation, above n 9.
[89] The first limb of the test, that of s 86(1), is that ACC, in deciding whether to provide vocational rehabilitation, must have regard to the matters set out in s 87.
[90] The first of these matters is whether the vocational rehabilitation would achieve its purpose under Mr King’s IRP. The goal of Mr King’s IRP was for him to return to work and everyday living activities. The actions envisaged under that IRP included ACC funding various items of equipment at an estimated cost of $7,539.74. These items did not include a mobile hoist. However, in terms of the goal being to return Mr King to his pre-injury employment, vocational rehabilitation in the form of funding a mobile hoist would have assisted him in achieving this goal.
[91] Secondly, ACC was required to have regard to whether vocational rehabilitation would be likely to be cost effective. In this case, the equipment costs had initially been estimated at less than $8,000. ACC provided funds for the purchase of at least some of the items identified in the IRP, such as the installation of a tank and pumps for which ACC contributed $9,411.32. While quotes had not yet been provided for a mobile hoist, on the indicative information available, funding for one was going to greatly exceed the amount contemplated in the IRP and also exceed Mr King’s remaining entitlement to weekly compensation by a significant margin. Therefore, while a mobile hoist might have allowed Mr King to return to his prior employment, it could not realistically be argued to have been a cost-effective option.
[92] A final consideration for ACC was whether vocational rehabilitation was appropriate in the circumstances. As assessments had indicated that Mr King had a number of job options available to him that would not require the purchase of expensive equipment, some of which could return him to the same level of remuneration as his prior employment, ACC was entitled to determine that it was not appropriate to fund a mobile hoist.
[93] Taking into account the s 87 considerations, ACC was justified in reaching a decision not to provide Mr King with vocational rehabilitation. Having made that determination, it was not necessary for ACC to continue onto the second limb of the s 86 process, namely determining what vocational rehabilitation was appropriate,
which would begin by considering whether or not it was reasonably practicable for Mr King to return to his pre-incapacity employment.
[94] That decision not to provide vocational rehabilitation meets the s 6 definition of decision. Vocational rehabilitation is a specified entitlement and a claim for it is therefore a claim captured by s 48. Accordingly, ACC’s decision about Mr King’s claim for vocational rehabilitation is a decision which, under s 133(5) of the Act, is not amenable to judicial review.
Legislative pre-condition
[95] Although my findings above dispose of this case, I will also address the “Legislative pre-condition” argument.
[96] Mr Mijatov accepts that ACC’s ultimate decision not to fund the hoist is a decision about entitlements in respect of which there are rights of review and appeal under the Act. He argues, however, that this case involves a “threshold” or “a legislative pre-condition” of the type identified by the Supreme Court in McGrath v Accident Compensation Corporation19 and the Court of Appeal in Splite v Accident Compensation Corporation.20 It is therefore necessary to examine exactly what the decisions in those cases related to.
[97] Splite v Accident Compensation Corporation concerned a determination by ACC that the requirements of s 110(3) of the Act had been met. Under s 110(1), ACC must give written notice to a claimant that he or she is required to participate in an assessment of vocational independence, such notice to state various matters as set out in s 110(2). Section 110(3) provides that ACC must not require the claimant to participate in an assessment unless the claimant is likely to achieve vocational independence, and until he or she has completed any vocational rehabilitation that ACC was liable to provide under an IRP. The Supreme Court in McGrath v Accident Compensation Corporation had described the restrictions in s 110(3) as setting a
19 McGrath v Accident Compensation Corporation, above n 5.
20 Splite v Accident Compensation Corporation, above n 6.
“threshold” or “legislative condition” for the exercise of ACC’s power to require an assessment.21
[98] The s 110 process is the first step in the process for determining vocational independence. The next step, under ss 108-109, is that the claimant participates in the assessment, the final step being that ACC then determine the claimant’s vocational independence under s 107. The Court of Appeal in Splite held that a determination under s 110(3) is not a decision giving rise to appeal and review rights under pt 5 of the Act; the determination as to a claimant’s vocational independence is made under s 107(1) of the Act.
[99] Mr Mijatov submits that s 86(2)(a) has the character of a precondition that must be fulfilled before ACC can lawfully decide not to fund the hoist. However, unlike the vocational independence process described above, s 86 is a statutory provision which mandates relevant considerations that ACC must take into account when making a decision. As discussed above, the two-step process is that ACC must first determine whether vocational rehabilitation should be provided and, if so, only then will it consider what form it should take. It was not a determination that could be described as having the character of a precondition.
Result
[100]For the reasons given above, this application for judicial review is declined.
[101] Given that ACC has requested that the Court dismiss Mr King’s application with no issue as to costs, I will accordingly make no order as to costs.
Churchman J
Solicitors:
Peter Sara Lawyer, Dunedin for Applicant Buddle Findlay, Wellington for Respondent
Counsel:
T Mijatov, Wellington for Applicant
21 McGrath v Accident Compensation Corporation, above n 5, at [30]-[31].
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