Ritchie v Accident Compensation Corporation - [2015] NZHC 2305

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 Respondent

Judgment:

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…

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: [2015] NZHC 2305
Decision Date: 23 September 2015

CaseChat Overview and Summary

Ms Ritchie sought judicial review of a decision by the Accident Compensation Corporation (ACC) to require her to undertake a vocational independence assessment under s 110 of the Accident Compensation Act 2001. The threshold requirements for the assessment were whether the claimant was likely to achieve vocational independence and that ACC had satisfied all agreed vocational rehabilitation responsibilities to the claimant. Ms Ritchie argued that neither requirement was satisfied. The Court held that there was reasonable evidential support for ACC’s conclusion that Ms Ritchie was likely to achieve vocational independence and that all vocational rehabilitation for which ACC was liable under the Individual Rehabilitation Plan had been completed. The application for judicial review was dismissed.

Orders