McGrath v Accident Compensation Corporation - [2010] NZCA 535

IN THE COURT OF APPEAL OF NEW ZEALAND
CA302/2009
[2010] NZCA 535
BETWEENKAREN MCGRATH

Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:15 September 2010

Court:Glazebrook, Hammond and Arnold JJ
Counsel:A C Beck for Appellant

P J Radich and M M Ahern for Respondent

Judgment:19 November 2010 at 4pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThere is no order for costs.

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]        In 2002 Ms McGrath suffered a badly broken ankle after being struck by a tackled player as she was watching a rugby game. Since that time, Ms McGrath has suffered from chronic pain and has been receiving weekly compensation and various rehabilitative measures from the Accident Compensation Corporation (ACC). This appeal concerns whether ACC has the power to require Ms McGrath to attend a vocational independence assessment under s 107 of the Accident Compensation Act 2001 (the Act).[1]
[1]Previously known as the Injury Prevention, Rehabilitation, and Compensation Act 2001. That title was replaced from 3 March 2010, by s 4 Accident Compensation Amendment Act 2010 (2010 No 1) by the current title pursuant to s 5(1)(a) of that Act.
[2]        In the High Court, Miller J held that ACC’s decision to require a vocational independence assessment could be subject to judicial review but that ACC had reasonable grounds to require Ms McGrath to participate in the assessment. Ms McGrath appeals against that decision. [2]
The legislation
[2]McGrath v Accident Compensation Corporation HC Wellington CIV-2008-485-2436, 1 May 2009.
[3]        Under the Act, a claimant who has suffered personal injury, for which he or she has cover, is entitled to be provided with rehabilitation to assist in restoring the claimant’s health and independence to the maximum extent practicable.[3] Thus, within 13 weeks after ACC has accepted a claim for cover, ACC must determine whether the claimant is likely to need social or vocational rehabilitation for a longer period, and, if so, prepare an individual rehabilitation plan (IRP) in consultation with the claimant.[4]
[3]      Accident Compensation Act 2001, s 70(a).
[4]      Accident Compensation Act 2001, s 75(a).
[4]        The IRP must: identify the claimant’s need for rehabilitation; identify the assessments to be done; identify services appropriate to those needs and specify which of those services ACC will pay for.[5] ACC must update a claimant’s IRP from time to time to reflect the outcome of assessments done and the progress that the claimant has made towards rehabilitation.[6]
[5]      Accident Compensation Act 2001, s 77(2).
[6]      Accident Compensation Act 2001, s 78.
[5]        A claimant has a corresponding obligation under the Act to work towards his or her rehabilitation to the extent practicable having regard to his or her personal injury.[7] Rehabilitation “is accordingly both an entitlement and an obligation”.[8] The Act also provides that a claimant who receives any entitlement must undergo assessment at ACC’s expense when reasonably required to do so.[9]
[7]      Accident Compensation Act 2001, s 70(b).
[8]Weir v Accident Compensation Corporation HC Wellington CIV-2003-485-1921, 18 August 2004 at…

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: [2010] NZCA 535
Decision Date: 19 November 2010

CaseChat Overview and Summary

Ms McGrath appealed against the High Court’s decision that the Accident Compensation Corporation (ACC) had reasonable grounds to require her to participate in a vocational independence assessment under s 107 of the Accident Compensation Act 2001. The Court of Appeal held that the appeal should be dismissed. The Court of Appeal held that the statutory framework for vocational independence assessments allows for the exercise of judgement by ACC case managers. The Court considered that the statute does not preclude ACC from taking into account all information on file, including information preceding any given expert’s opinion, and also to rely on the case manager’s experience of similar injuries when deciding whether to order a vocational independence assessment. While it is clear that, under s 110(3), Parliament has put constraints on the ability of ACC to undertake vocational independence assessments it is hard to imagine a court intervening if there is some reasonable basis, whether only in terms of a case manager’s experience or otherwise, for considering that vocational independence is likely to be achieved within a reasonable timeframe and thus that a vocational independence assessment is appropriate. The appeal is dismissed and there is no order for costs.

Orders