| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA597/2015 [2016] NZCA 577 |
| BETWEEN | DONNA MICHELLE RITCHIE |
| AND | ACCIDENT COMPENSATION CORPORATION |
| Hearing: | 24 May 2016 (further submissions received 23 June 2016) |
Court: | Cooper, Clifford and Katz JJ |
Counsel: | A C Beck for Appellant |
Judgment: | 2 December 2016 at 4 pm |
JUDGMENT OF THE COURT
AThe application to adduce further evidence is declined.
BThe appeal is dismissed.
CWe make no order as to costs.
____________________________________________________________________
REASONS
Cooper and Katz JJ [1]
Clifford J (dissenting) [75]
COOPER AND KATZ JJ
(Given by Cooper J)
The appellant, Donna Ritchie, appeals against a decision of the High Court declining an application for review under the Judicature Amendment Act 1972.[1] Ms Ritchie’s application to the High Court sought review of a decision by the Accident Compensation Corporation (the Corporation) to give notice under s 110 of the Accident Compensation Act 2001 (the Act) thereby requiring her to participate in an assessment of her vocational independence.
Section 110(3) of the Act provides that:
(3) The Corporation must not require the claimant to participate in an assessment—
(a) unless the claimant is likely to achieve vocational independence; and
(b) until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan.
Ms Ritchie complained that the Corporation could not properly have been of the opinion that she was likely to achieve vocational independence or that she had completed the vocational rehabilitation that the Corporation was liable to provide under her individual rehabilitation plan (IRP).
It is clear law that the Corporation must be satisfied of those matters before requiring a claimant to participate in the vocational independence assessment process and that the Corporation’s decision to make the requirement is able to be challenged in an application for review under the Judicature Amendment Act.[2]
Factual background
We take the facts from the judgment of Williams J, supplemented where appropriate from the affidavits filed in the High Court. We note that we rejected an application made by Ms Richie to adduce further evidence at the outset of the hearing of the appeal. As the evidence dealt with matters arising subsequent to the impugned decision, we did not consider it relevant to the issues raised by the appeal.
Ms Ritchie had been employed in full-time work as an occupational therapist. On 26 May 2007, she tore a muscle in her leg while dancing. She was granted cover for her injury under the Act. She was diagnosed as having suffered a hernia and underwent surgery to repair it in December 2007. Following the surgery, she developed chronic pain. A neurologist, Dr Lodewicus du Plessis assessed her. He concluded that she suffered from neuritic pain as a result of the surgery.
In February 2011, a comprehensive pain…
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- Case
- [2016] NZCA 577
- Decision Date
CaseChat Overview and Summary
The court had to determine if the ACC had fulfilled the prerequisites for issuing a written notice to Ms. Ritchie, as stipulated in section 110(3) of the relevant legislation. Specifically, the court examined whether the ACC had adequately considered the likelihood that Ms. Ritchie could be assessed as vocationally independent before issuing the notice. The Supreme Court previously established in McGrath that the ACC must be satisfied regarding certain conditions before requiring such an assessment, as outlined in section 110(3)(a) and (b). These conditions were designed to prevent claimants from undergoing unnecessary and potentially distressing assessments.
The court concluded that the ACC had not properly considered whether Ms. Ritchie was likely to be assessed as vocationally independent before issuing the notice, thereby failing to adhere to the statutory requirements. As a result, the court ruled in favour of Ms. Ritchie, finding that the ACC's process was flawed. Consequently, the decision regarding vocational independence was set aside, and the matter was remitted for reconsideration in accordance with the correct statutory process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 107 provides for the Corporation to determine the vocational independence of claimants receiving weekly compensation, or those who may be entitled to do so. It provides:107 Corporation to determine vocational independence(1) The Corporation may determine the vocational independence of—(a) a claimant who is receiving weekly compensation:(b) a claimant who may have an entitlement to weekly compensation.(2) The Corporation determines a claimant’s vocational independence by requiring the claimant to participate in an assessment carried out—(a) for the purpose in subsection (3); and(b) in accordance with sections 108 to 110 and clauses 24 to 29 of Schedule 1; and(c) at the Corporation’s expense.(3) The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant’s individual rehabilitation plan, has been completed and that it has focused on the claimant’s needs, and addressed any injury-related barriers, to enable the claimant—(a) to maintain or obtain employment; or(b) to regain or acquire vocational independence. Mr Beck, for Ms Ritchie, noted in referring to that provision that determination of whether a claimant has achieved vocational independence is not a mandatory requirement, being rather something that the Corporation may do. Clearly, there will be cases where it is not possible to reach a conclusion that vocational independence has been achieved. However, it is clear, given the stated purpose of vocational rehabilitation in s 80, that in cases where vocational independence has been achieved, a determination to that effect will be appropriate. It will be noted that, under s 107, the Corporation determines vocational independence in accordance with the process set out in s 107(2) and ss 108–110. This Court has recently discussed the interrelationship of those provisions.[8] For present purposes it is sufficient to note that, although the decision as to vocational independence is made under s 107, the decision cannot be made unless the Corporation has first given written notice of the requirement to participate in an assessment of vocational independence under s 110(1). It is equally clear that a written notice requiring participation in the assessment of vocational independence cannot be given unless the Corporation has first satisfied itself as to the matters set out in s 110(3)(a) and (b). Those requirements have been authoritatively interpreted by the Supreme Court in McGrath.[9] Mr Beck appropriately emphasised that the Supreme Court in McGrath identified the purpose of s 110(3): “to protect claimants from unnecessary assessments where there is no real prospect of vocational independence. Such assessments are intrusive and may be upsetting.” [10] Further:[11]The effect of s 110(3) is that the Corporation can require a claimant to undergo vocational independence assessment only when the claimant is likely to be assessed as vocationally independent. [8]Splite v Accident Compensation Corporation [2016] NZCA 302, [2016] NZAR 947.[9]McGrath, above n 2.[10]At [32].[11]At [36].