Ritchie v Accident Compensation Corporation
[2015] NZHC 2305
•23 September 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-11561 [2015] NZHC 2305
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
an application for judicial review
BETWEEN
DONNA RITCHIE Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 20 May 2015 Counsel:
A C Beck for Applicant
C J Hlavac and A L Keir for RespondentJudgment:
23 September 2015
JUDGMENT OF WILLIAMS J
[1] The applicant, Ms Ritchie, seeks judicial review of the respondent’s decision to require her to undertake a vocational independence assessment under s 110 of the Accident Compensation Act 2001 (the Act). She says that the two threshold requirements in s 110(3) have not been satisfied. Those requirements are that the claimant be “likely to achieve vocational independence” and that ACC had satisfied all agreed vocational rehabilitation responsibilities to the claimant. These must be satisfied before an assessment can be required.
Factual background
[2] Ms Ritchie suffered an upper leg muscle injury in 2007 and was granted cover. The injury was diagnosed as a hernia and surgery repaired it in December
2007. Following surgery, an assessment was carried out by a neurologist,
RITCHIE v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 2305 [23 September 2015]
Dr Du Plessis, in 2009. It was found that the applicant suffered from neuritic pain as a consequence of the surgery. In February 2011, Dr Michael Anderson, a pain specialist, completed a comprehensive pain assessment of the applicant. He found that she suffered from a regional pain syndrome predominantly of neuropathic origin with a “marked myofascial component around the left hip”.
[3] Under the heading “Return to employment” Dr Anderson recorded in the assessment:
It is felt that Donna is able to be self initiating and independent with the objective of resuming an employment role. She has outlined definite plans in this regard, and it is thought that she is able to continue to progress these plans.
[4] At that point, the applicant was considering enrolling in a Masters’ programme in health sciences with a view to teaching or tutoring in that field in the future.
[5] A follow-up report was completed by Dr Anderson in July 2012. The report records:
With respect to her work, Donna continues with her studies and is close to gaining her qualifications. Donna can’t sit for more than an hour (this is particularly noticeable when driving). Employment where she can get up and walk around and change positions regularly while still completing work tasks, such as is available while preparing lectures and other activities such as grading papers, would be ideal.
Donna experiences pain at various times during the day and night. When pain is severe it is unlikely that she could maintain any level of concentration for more than an hour. The flexibility to stop work tasks and return to them at a later stage will be important in any position she undertakes.
It is unlikely Donna would have the ability to work a six hour day when experiencing pain. A position where there is the ability to work a small number of fixed hours, for example 1-2 hours a day with an additional component of flexible work that is able to be completed in her own time, and at her own pace, would be sustainable.
[6] A further report covering pain management was completed by Jeni Blezard in
December 2012, a psychologist with pain expertise. [7] That report concluded:
Donna continues to hold firm with her belief that resuming a full time employment position is not going to be sustainable for her. Given the dealings I have had with Donna over a significant time period, and having observed the way in which her coping continues to be significantly compromised when her pain becomes heightened, I am inclined to agree with her. This being the case, Donna also continues to have a problem with ACC’s return to work agenda – that resumption of a full-time position is possible. She plans to continue to seek the ability to maintain her ACC support whilst she completes the qualifications which will enable her to undertake the employment role she believes is viable for her and one from which she will be able to derive a part-time income which is financially sufficient for her. It is difficult and in some ways inappropriate for me to comment on this, however I feel reasonably confident that Donna has the where-with- all (sic) to realise her goals and this being the case the outcome would be a satisfactory one for all, should some discretion be granted in the manner in which it is sought.
[8] On 18 January 2013, ACC had Dr Nick Yarnall, an occupational medicine specialist, undertake an Initial Medical Assessment (IMA) pursuant to s 95 of the Act. He concluded as follows:
I assess Ms Ritchie as being capable of undertaking work within the sedentary to light range initially on a part-time basis with appropriate flexibility of movement.
Due to the potential for exacerbation of her symptoms due to prolonged physical activities, walking, sitting, standing etc, a significant degree of flexibility with limitations on these exacerbating activities will be necessary in order to maximise her employability on a part-time basis.
…
Ms Ritchie told me that she has considered the possibility of being able to do limited amounts of occupational therapy on a part-time, contract, basis within the limits of her symptoms.
I consider that she would be fit to undertake such work on a part-time basis; however, I would not consider that she would be able to sustain full-time work as in her pre-injury role. In addition, she will require greater flexibility of tasking in many jobs are likely to allow.
(my emphasis)
[9] On 28 January 2013 in an addendum, Dr Yarnall specifically assessed the applicant’s suitability as a university and higher education lecturer and/or tutor. Dr Yarnall concluded (here agreeing with the applicant) that she was suitable for such work on a part-time basis.
[10] A series of Individual Rehabilitation Plans (IRPs) were prepared by the applicant’s ACC case manager in accordance with s 75 of the Act. These included plans in August 2013 and April 2014 the terms of which were agreed with Ms Ritchie, as well as a draft plan in October 2014 that was not agreed.
[11] The August 2013 plan included the following:
ACC acknowledges that the vocational goal of “University and Higher
Education Lecturer and/or Tutor” is a realistic option for Donna.
[12] The plan then cites from the Careers New Zealand website the requirement that university lecturers need to be studying towards, or have completed a Masters’ degree or have a doctorate. Experience is also required in research and teaching with publications being an advantage.
[13] The April 2014 IRP set the goal of rehabilitation as “Get work that suits my ability” with an estimated completion date of 30 September 2014. This was the date at which it was expected the applicant would complete her Master’s degree.
[14] The draft IRP subsequently prepared in October 2014, extended the estimated
date of goal completion “Get work that suits my ability” to 31 August 2015.
[15] The draft plan records that the applicant’s Masters in health science had been submitted for evaluation and the applicant was waiting for it to be returned so that she could “begin writing for publication”. It also recorded that she was tutoring at the University of Otago and working for the Pacific Island Centre and Disability Centre. By an email to her ACC case manager, Ginette McConnochie, dated
20 October 2014, the applicant expressed concern that:
… there is no mention that ACC is supporting me to work towards becoming a university lecturer. This has been in my previous IRPs. Given it is not a goal I have achieved yet, it will need to stay there.
[16] On 29 October 2014, Ms McConnochie, advised the applicant by email that she would look into the issue and a new draft plan would be forwarded shortly. But on 14 November, Ms McConnochie wrote to the applicant advising:
… In looking at your journey since your accident, I am left believing that your rehabilitation regarding your injury is now complete.
Ms McConnochie gave the applicant an opportunity to make further comment. The letter advised that the next step would not be finalisation of the IRP but rather a vocational independence assessment pursuant to s 110. Ms McConnochie also advised that her comments were preliminary and subject to further internal discussions with her Team Manager, Technical Claims Manager and the Branch Medical Advisor “to ensure they agree that your rehabilitation is complete”.
[17] On 16 November 2014, the applicant replied (referring to earlier IRPs), that the rehabilitation set out in the plans was not yet complete and there was no basis on which a s 110 assessment could be undertaken.
[18] On 19 November 2014, ACC completed an internal vocational independence assessment form in which a full review of the applicant’s file was undertaken. On the form Ms McConnochie records her view that rehabilitation was now complete, concluding:
In my view the client is likely to be able to sustain 30 or more hours of work per week.
[19] By handwritten endorsement on the form, the Branch Medical Advisor, orthopaedic specialist, Bill Taine, confirmed his agreement with that assessment. He recorded that he relied for this conclusion primarily on the IMA undertaken by Dr Yarnall in January 2013.
[20] Gary Clancy, the Team Manager and official with final responsibility, then confirmed that the test in s 110 had been satisfied and agreed that a formal vocational independence assessment should therefore be undertaken.
[21] On 21 November 2014, ACC wrote to the applicant accordingly.
The legislation
[22] A focus of the 2001 Act is rehabilitation for those who have suffered personal injury. Section 3(c) provides:
The purpose of this Act is to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury that has, as its overriding goals, minimising both the overall incidents of injury in the community, and the impact of injury on the community (including economic, social, and personal costs), through –
…
(c) ensuring that, where injuries occur, the Corporation’s primary focus should be on rehabilitation with the goal of achieving an appropriate quality of life through the provision of entitlements that restores to the maximum practical extent a claimant’s health, independence and participation.
[23] Rehabilitation is then specifically defined in s 6 as:
(a) … a process of active change and support with the goal of restoring, to the extent provided under s 70, a claimant’s health, independence, and participation; and
(b) comprises treatment, social rehabilitation and vocational rehabilitation.
[24] Section 75(a) provides that the Corporation must within 13 weeks of accepting a claim:
(i) determine whether the claimant is likely to need social or vocational rehabilitation after the 13 weeks have ended; and
(ii) if so, prepare an individual rehabilitation plan in consultation with the claimant.
[25] Section 76(4) then provides:
After an individual rehabilitation plan for the claimant is agreed, the Corporation is liable to provide the claimant with rehabilitation in accordance with the plan and Schedule 1, but only to the extent that the Corporation has specified which services it will provide under the plan.
[26] Vocational rehabilitation (the focus of this application) is covered in ss 85 to
96. Once rehabilitation is complete in accordance with the IRP, ACC may determine whether the claimant has achieved vocational independence as set out in s 107. Vocational independence is defined in s 6 to mean the capacity of a claimant to engage in work:
(a) for which he or she is suited by reason of experience, education, or training, or any combination of those things; and
(b) for 30 hours or more a week.
[27] Section 107(3) sets out the purpose of a vocational independence assessment as follows:
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.
[28] Section 110 is the focus of this application. It sets out the circumstances in which ACC may move to require a rehabilitating claimant to undergo a vocational independence assessment. This assessment is significant because it is a precursor to ACC ending cover. Section 110 provides as follows:
(1) The Corporation must give written notice to a claimant required by the Corporation to participate in an assessment of his or her vocational independence.
(2) The notice must—
(a) state the purpose, nature, and effect of the assessment; and
(b) state that the claimant is required to participate in the assessment; and
(c) state the consequences of not doing so; and
(d) state the claimant's right to be accompanied by another person during the assessment.
(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.
[29] The two triggers in s 110 are therefore the completion of ACC’s vocational rehabilitation responsibilities pursuant to the IRP, and a conclusion by the
appropriate ACC official that the applicant was “likely to achieve vocational independence”. As I have indicated, the applicant says neither requirement was met.
[30] I turn now to separately address each of those two requirements.
Likely to achieve vocational independence: s 110(3)(a)
[31] This requirement has been authoritatively interpreted by the Supreme Court in McGrath v ACC.1 That case involved a claimant who had suffered an injury producing reduced mobility and chronic pain. She worked part-time. Her GP and a pain management specialist accepted that she was only capable of working part-time.
[32] Some years later, the claimant was required by ACC to undertake an assessment under s 110 to determine her vocational independence. A case officer made the decision without any updating assessment of likelihood under s 110(3)(a). In the context of an application by Ms McGrath for judicial review, the Supreme Court found that there was no proper basis upon which the Corporation could reasonably have formed the view that vocational independence was likely in terms of that provision.
[33] The Court found that the legislative history of s 110(3) suggests that its purpose was “to protect claimants from unnecessary assessments where there was no real prospect of vocational independence”. “Likely” in this context was taken to mean “an outcome reasonably in prospect”.2
[34] On the facts in that case, the Court held:3
Nor could it be reasonable to rely on an assessment that was then four years out of date as supporting the view in September 2008 that vocational assessment was likely to lead to a conclusion of vocational independence when other medical opinions in the interim (obtained as part of the individual rehabilitation plan and which had necessitated compromise of another premature attempt at vocational independence assessment) had expressed quite different views.
1 McGrath v ACC [2011] NZSC 77, [2011] 3 NZLR 733.
2 See [32] and [33] and the reference to the Shorter Oxford Dictionary definition of ‘likely’ as “to be reasonably expected”.
3 At [37].
[35] In short, in the context of that case, clear and relatively recent medical evidence that the claimant was unlikely to achieve vocational independence had to be met with more recent contrary evidence before the test in s 110(3)(a) could be met. An opinion from an unqualified case manager, even one with experience, did not meet the high threshold.
The evidence
[36] I have already referred briefly to the assessments undertaken by Dr Anderson in 2011 and 2012, Ms Blezard in December 2012, and Dr Yarnall in January and February 2013.
[37] Dr Anderson and Ms Blezard each took the view that Mrs Ritchie was unlikely to be able to cope with full-time work, while Dr Yarnall took the view that Mrs Ritchie was capable of working in a number of fields involving limited contact time with service consumers and a majority of non-contact discretionary time. He considered that she was capable of undertaking such work “initially” on a part-time basis.
[38] The difference between the broad factual profile of this case and that confronted by the Supreme Court in McGrath is the presence in this case of a further recent medical opinion. This is the opinion of the orthopaedic surgeon, Mr Taine, expressed in the context of the case review undertaken by ACC immediately prior to the decision under s 110(3). For that reason Mr Taine’s opinion takes on real significance in this application.
[39] It will be recalled that Mr Taine is the Branch Medical Advisor. It is common ground that Mr Taine did not meet or examine Ms Ritchie. His assessment was based only on the available written material in relation to Ms Ritchie’s case. On the assessment form he ticked the box next to the standard form typed statement that read:
In my opinion, from a medical perspective, the client is likely to be able to sustain 30 hours of work per week. Provide rationale below.
(emphasis in original)
[40] A brief handwritten note next to that standard form sentence read “See prev
IMA”.
[41] This was a reference to the IMA undertaken by Dr Yarnall in January 2013. Mr Taine provided an affidavit for the purpose of this proceeding setting out his reasons more fully. He confirmed that, although he had read the earlier reports of Dr Anderson and Ms Blezard, he considered the Yarnall report to be more significant.
Most important to my mind was the report of Dr Nick Yarnall dated
18 January 2013 (with additions on 28 January and 15 February 2013). These reports are annexed to this affidavit as exhibit A. Yarnall’s report, which was a complex Initial Medical Assessment, provides a detailed background to Ms Ritchie’s claim, information regarding her rehabilitation to date, and his opinion about her likely ability to sustain work, and involves consideration of the earlier medical evidence.
I noted that it was nearly two years old at the time of our meeting.
In summarising the background, Dr Yarnall said that Ms Ritchie had ongoing pain in the area of her left groin, but that it was “typically at low levels and on occasions she is pain free”. He did note exacerbations with pain following exposure to exacerbating activity such as physical activity, walking, standing or sitting for a prolonged period.
He described a number of inputs into pain management and said:
I would not recommend any specific additional pain management or other medical management interventions at present following recent rehabilitation inputs including clinical psychology, pain specialist input and dietician input (the latter of which are ongoing).
He discussed ongoing input from a dietician and a swimming programme, which I considered important.
As far as work-ability assessment goes, Dr Yarnall said:
I assess Ms Ritchie as being capable of undertaking work within the sedentary to light range initially on a part-time basis with appropriate flexibility of movement.
[42] According to Mr Taine, he ultimately based his decision as set out in the ACC
form on the following factors:
(a) Although Mr Yarnall’s report indicates that Ms Ritchie should consider a return to work initially on a part time basis, it is very common for work on a part time basis to be necessary as part of the process of returning to work. That is because a long period out of the workforce can require a period of “work hardening” before a full
(b) time return to work. The physical and mental discipline required to maintain full time work can take a while to develop in any person, regardless of injuries etc. This does not mean that 30 hours of work is not medically sustainable.
(c) Added to that, Ms Ritchie’s condition (chronic pain) is the sort of condition which varies over time. Improvement is at least as likely as deterioration and functional improvement is a reasonable expectation. Noting that Dr Yarnall did not consider any further rehabilitation interventions to be necessary, I concluded that Ms Ritchie is likely to have improved in her abilities from the time of Mr Yarnall’s report.
(d) I noted that Ms Ritchie was working part time as well as studying, a good indicator was that she would be able to transition to work.
(e) The work types recommended required the type of function similar to her current activities (part time work and study) and therefore likely to be compatible with an ability to work 30 hours per week.
(f) Her pain appeared to be largely under control, and well managed, with Dr Yarnall noting that she was occasionally pain free.
(g) Some of the barriers earlier identified appeared to have been resolved – for example her previous negative relationship with ACC had apparently improved.
Assessment
[43] Mr Beck, for the applicant, submitted that there was no objective basis for the assessment reached by Mr Taine. In particular, it was argued, Mr Taine:
(a) did not examine Ms Ritchie but merely reviewed her file;
(b)relied primarily on the Yarnall report which referred only to the possibility of part-time work;
(c) incorrectly assumed that the plaintiff was working part-time and studying, which, as Ms Ritchie pointed out in her affidavit, was factually incorrect;
(d) inexplicably concluded that “barriers” to independence such as poor
relationships with ACC had been resolved;
(e) was not himself a pain specialist and failed to deal with the views of
Ms Blezard and Dr Anderson who were experts.
[44] It is quite inappropriate for this Court on judicial review to engage in an assessment of the merits of the judgement made under s 110 by the case manager or her team manager. Still less is it appropriate to judge the merits of the clinical assessment Mr Taine made under each of the six assessment headings set out in his affidavit. But it is in order, and within a reviewing Court’s expertise and function, to assess whether there was an evidential basis for each of his conclusions. Mr Taine’s assessment was the clinical basis for Ms McConnochie’s and Mr Clancy’s decision. Without it, McGrath would have been indistinguishable.
[45] To be clear however, my inquiry is not about evidential sufficiency. That is for the medical expert in this case in the first instance and ultimately Ms McConnochie and Mr Clancy. Rather, my focus on judicial review is whether there was evidence at all reasonably capable of supporting the conclusions reached.
[46] This seems to be the approach required by the Supreme Court in McGrath.4
The responsibility of the court on judicial review is to ensure that the legislative condition is fulfilled. Since the condition turns on a judgment (that the claimant is “likely to achieve vocational independence”), its fulfilment may not be susceptible to exact demonstration. But to succeed the plaintiff must bring the court to the conclusion that the condition was not fulfilled. That assessment is one of substance. It is not enough that there is information available to the Corporation upon which it acted, if that information does not reasonably support the conclusion that the statutory condition is fulfilled.
The substance is to be examined but only on the orthodox reasonableness/rationality basis.
[47] After stepping back and considering the evidence, I have come to the view that there is evidence that reasonably supports Mr Taine’s conclusion that vocational independence is an outcome “reasonably in prospect”, such that a full assessment under s 107 should be undertaken. That means Mr Taine’s conclusion provides in
turn, a reasonable basis for ACC’s s 110 conclusion.
4 At [31].
[48] I do not think the bar is set so high under s 110 that Mr Taine was required personally to examine Ms Ritchie. A file review was enough in the circumstances of this case in which there was at least some basis in earlier reports for the assessment he made. I do not intend to establish a hard and fast rule here. There may well be some cases where the material on file is so sparse or so contrary to the fresh assessment, that a personal examination is the only basis upon which the necessary conclusion under s 110(3)(a) may be reasonably reached. But this is not such a case.
[49] It will be recalled that Dr Yarnall said that Ms Ritchie was capable of working “initially on a part-time basis”. It was open to Mr Taine to interpret that as suggesting that part-time work was intended to prepare her for transition to full-time employment. As he said, this is commonly the case. I do not think that, read in its clinical context, Dr Yarnall acted on the mere possibility of full-time work rather than its reasonable likelihood. A part-time “work hardening” period in transition to full-time work was, he said, commonly necessary.
[50] Mr Taine was also entitled to combine that conclusion with the fact that no further rehabilitative interventions were proposed, and that Ms Ritchie had in fact been working and studying. There was debate about this last point – the extent to which Ms Ritchie was capable of undertaking combined work and study was in question. Ms Ritchie said Mr Taine had misunderstood the situation. That may well be so, I do not know, but, in my view, that would be a matter to be considered, and if necessary corrected in the full s 107 assessment where such issues would be highly relevant to whether Ms Ritchie is in fact capable of working 30 hours per week. As a general proposition, I am of the view that the clinical bar should not be set so high that the full s 107 assessment is usurped by the prior likelihood assessment under s 110. Parliament is unlikely to have intended that outcome.
[51] It follows that as long as the evidence shows some reasonable and rational clinical and evidential basis for the necessary conclusion, this Court ought not to interfere on judicial review. The true substantive debate is engaged at the s 107 stage and that assessment must properly and fully consider Ms Ritchie’s perspective on the question of her ability to engage in full-time employment. I do not, in short, think
that it can be said that Ms Ritchie needs to be protected, in terms of the McGrath
decision, from an unnecessary s 107 assessment, on the facts presented in this case.
[52] I find therefore that there is reasonable evidential support for ACC’s conclusion that Ms Ritchie was likely to achieve vocational independence. The s 110(3)(a) requirement was correctly applied.
Completion of vocational rehabilitation: s 110(3)(b)
[53] Section 89 directs that vocational rehabilitation must consist of:
(a) an initial occupational assessment to identify the types of work that may be appropriate for the claimant; and
(b) an initial medical assessment to determine whether the types of work identified under paragraph (a) are, or are likely to be, medically sustainable for the claimant.
[54] Section 755 required that ACC prepare an IRP for Ms Ritchie because her vocational rehabilitation needs were likely to extend beyond 13 weeks of accepting the claim.
[55] As Ms King, a branch manager, noted in her affidavit, in practice the IRP is the “definitive document” and the basis for assessing a claimant’s ongoing rehabilitation entitlements. Section 77(2) provides that an IRP must:
(a) identify the claimant’s rehabilitation needs (s 77(2)(a)); (b) identify any assessments to be done (s 77(2)(b));
(c) identify any services appropriate to those needs (s 77(2)(c)); and
(d) specify the services ACC will provide, pay for or contribute to.
[56] Clause 8 of sch 1 to the Act provides that ACC must implement a plan that has been agreed or finalised.6 ACC must fund the services that are specified in the
IRP as to be provided, funded or part-funded by the Corporation.
5 See [24] above.
[57] ACC must provide the claimant with the vocational rehabilitation services outlined in the IRP but that responsibility is expressly “only to the extent that the Corporation has specified which services it will provide under the plan.”7
[58] In this case, Ms Ritchie says there are still services specified in the IRP and not yet completed – in particular supporting her to achieving her goal of becoming a higher education lecturer or tutor by providing home help, an occupational therapy practicing certificate, and weekly compensation to support her part-time study.
[59] ACC disagrees. It says Ms Ritchie’s career goal is not an outcome ACC must provide in terms of s 76(4). In addition, home help is a social rehabilitation service not a vocational rehabilitation service and so its provision is not relevant to the decision under s 110(3)(b). As for Ms Ritchie’s practicing certificate, ACC indicates it will fund that contribution this year but submits that its responsibilities in terms of s 76(4) go no further than that.
[60] Since her injury in 2007, Ms Ritchie has had a number of IRPs. I have already discussed in summary form the latest three IRPs.8 These have particular relevance to this issue and it is necessary to review their terms in more detail.
[61] The first of the three IRPs I will consider was agreed on 5 August 2013. It provided in part:
ACC acknowledges that the vocational goal of “University and Higher
Education Lecturer and/or Tutor” is a realistic option for Donna.
To lecture at a university you need to be studying towards, or have completed a Master’s degree, or have a Doctorate. You also need to have experienced in research and teaching. Having published some researches also an advantage. (Careers NZ website.)
Donna is currently in the process of completing her Masters in Health Science (likely in the second half of 2013) and will gain teaching experience next semester. She is also on (sic) the process/working towards publishing research.
6 Clause 8(2): If agreement is not reached after “a reasonable time, ACC may treat the draft IRP
as “finalised” and binding.
7 Section 76(4).
8 Above [11] to [15].
ACC will consider the funding of any associated reasonable costs to help
Donna achieve the requirements of becoming a University Lecturer.
ACC and Donna will review the progress and sustainability of this goal as appropriate.
[62] Completion date for these employment-related action points was 11 March
2014 – six months later.
[63] A further IRP was agreed on 16 April 2014, that is shortly after the proposed completion date of the March IRP. The essence of the 2013 entry referred to above was repeated with two amendments: Ms Ritchie’s Masters’ degree in Health Sciences was now to be completed in the second half of 2014 not in 2013, and she would gain “further” teaching experience in the meantime. The latter amendment was necessary because Ms Ritchie had by that stage spent a year tutoring part-time.
[64] In contrast to the 2013 IRP, this plan made two specific funding commitments. The first was in the following terms:
ACC will fund 1.5 hours of home help a week until 31.8.14 which is to support me [Ms Ritchie] in daily living tasks.9
[65] Completion date for this action point was noted as 31 August 2014.
[66] The second funding commitment was as follows:
ACC have funded my Occupational Therapist annual registration for
2014/15 which is to support me in obtaining vocational rehabilitation.10
[67] Completion date for this second entry was 15 April 2014, a date before the
IRP itself (16 April 2014). This suggests that the funding committed to in the IRP
had already been provided in that respect.
9 Note that the original typed wording provided “… which is to support me in my Masters’ qualification and taking on new/additional tasks at Otago.” In the agreed plan, this wording was crossed out in pen and “… daily living tasks” substituted, again in handwriting. Ms Ritchie has then counter-signed this adjustment.
10 Note that the original typed wording provided “… which is to support me in obtaining my Masters qualification.” The phrase “… obtaining my Masters qualification”, is crossed out in pen and “… obtaining vocational rehabilitation” is substituted in handwriting. Ms Ritchie has again counter-signed the amendment.
[68] As I have said, the third and final IRP never progressed past draft. A first draft was sent by ACC to Ms Ritchie on 12 September 2014. No agreement could be reached following extensive exchanges in which Ms Ritchie proposed various amendments to the document. A further draft was sent by Ms Ritchie’s new case manager, Ms McConnochie, on 9 October. It seems however that ACC was experiencing IT difficulties and the email was not received by Ms Ritchie until
19 October. In the draft it was proposed that ACC would continue to fund home help until 31 August 2015.
[69] Ms McConnochie advised in her affidavit to this Court that in fact a one year home care contract had already been agreed with a provider. That contract was not due to expire until 11 October 2015, but review of this funding commitment was set for the end of August to ensure there would be a review of the plan within six months of its execution. This was, I am advised, standard ACC practice.
[70] It was noted in the meantime that Ms Ritchie had submitted her Masters’ thesis for assessment and waited only on receipt of her grade before she could proceed to begin writing for publication. The plan also noted that Ms Ritchie was tutoring part-time as in previous IRPs.
[71] As I have said,11 Ms Ritchie replied that the IRP lacked a reference to ACC’s support for her goal of becoming a University lecturer. Because, she considered, this goal had yet to be achieved, it needed to be repeated in the latest draft of the plan. Ms McConnochie agreed to look at the issue12 and proposed to send a new draft to Ms Ritchie in due course.
[72] On further consideration of the question however, Ms McConnochie changed her mind. On 14 November, she advised Ms Ritchie that, subject to further discussions she might have with her team leader, technical claims manager and branch medical advisor, she considered that Ms Ritchie’s rehabilitation was now complete. As we know, those officials came, in due course, to agree with
Ms McConnochie’s assessment.
11 At [15].
12 See [16] above.
[73] The issue then is whether Ms Ritchie had completed “any vocational rehabilitation that the Corporation was liable to provide” under her IRP in terms of s 110(3)(b). That phrase in s 110 is clearly a reference to the specified services under s 77(2)(d) which ACC is liable to fund under cl 8(4) of sch 1, although only to the extent so specified in the plan in terms of s 76(4).
[74] For the purposes of that assessment, the relevant IRP is that agreed on
16 April 2014. The reference to the claimant’s IRP in s 110(3)(b) can only be to an agreed or finalised IRP. That must be because ACC’s liability to fund specified services under cl 8(4) of sch 1 is predicated on its obligation as set out in cl 8(3) to implement an agreed or finalised IRP. Here, the later October 2014 draft was never agreed, and ACC never advised Ms Ritchie that, notwithstanding her objections, the plan was to be deemed finalised in accordance with cl 8(2) of sch 1.
[75] The cluster of provisions that circumscribes ACC’s resourcing liability to claimants is carefully worded. Only services that ACC has specifically accepted it will fund, attract resourcing liability and then only to the extent specifically agreed or deemed finalised. In addition, the gateway in s 110(3)(b) for s 107 assessments, relates only to specified vocational rehabilitation services. Other rehabilitation services need not have been completed.
[76] There is no doubt that the requirements of s 110(3)(b) are satisfied in this case. The fact ACC acknowledges that a University lectureship or tutorship was a realistic option for Ms Ritchie creates no vocational rehabilitation obligation. No service in that respect is specified. The notation is an observation, not a promise of any kind.
[77] ACC does note though, that it will consider the funding of reasonable costs associated with that goal. Two services are specified in terms, I presume, of that consideration: a home help service is to be provided until the end of August 2014 and occupational therapy registration for the 2014/2015 year will be paid. Both specified services have been completed to the extent specified in terms of s 76(4). There was some debate about whether the home help support was vocational or social rehabilitation, but that seems, on these facts, to be beside the point. Either
way, the obligation has been discharged because the commitment was only until
31 August 2014.
[78] ACC has in fact let a contract that will last until October 2015, but that too seems beside the point. ACC can of course agree contractually to provide help that is not provided in the plan, but the only relevant area of inquiry for the purpose of assessing whether the s 110(3)(b) threshold is met, is what is committed to in the IRP.
[79] I find therefore that the claimant has indeed completed all vocational rehabilitation for which ACC is liable under the IRP and the terms of s 110(3)(b) have been appropriately applied.
Disposition
[80] In light therefore of my answers to the two questions posed by s 110(3), the application for judicial review must be dismissed accordingly.
[81] Costs may be dealt with by brief memoranda if necessary.
Williams J
Solicitors:
A C Beck, Solicitor, Greytown
Young Hunter Lawyers, Christchurch
2
0
0