Ross v Accident Compensation Corporation - [2022] NZHC 448

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-562

[2022] NZHC 448

IN THE MATTER of an intended appeal under s 162 of the Accident Compensation Act 2001

BETWEEN

EUPHEMIA ROSS

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 25 February 2022

Counsel:

A C Beck for Applicant

F L Becroft for Respondent

Judgment:

14 March 2022

JUDGMENT OF ELLIS J

[1] In 1997 Ms Ross suffered an injury at work. The Accident Compensation Corporation (ACC) accepted she had cover for this injury. She has not returned to employment since.

[2] On 18 July 2014, ACC determined that Ms Ross was “vocationally independent” and identified six work types for which she was suitable. An application for a review of that decision was declined on 3 February 2015.

ROSS v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 448 [14 March 2022]

[3] On 5 January 2021, Judge Spiller dismissed an appeal by Ms Ross from that decision. 1 On 22 September 2021 Judge A Sinclair declined leave to appeal that decision to the High Court.2

[4] Ms Ross now applies to this Court for special leave to appeal Judge Spiller’s decision.

Legal framework

Vocational rehabilitation

[5] Section 75 of the Accident Compensation Act 2001 (the Act) provides that, within 13 weeks of ACC’s acceptance of a claim for cover, the Corporation is required to determine whether a claimant is likely to need vocational rehabilitation after that 13 week period has ended. If so, ACC is required to prepare an individual rehabilitation plan, in consultation with the claimant.

[6] The purpose of vocational rehabilitation, as set out in s 80, is to help a claimant to, as appropriate:

(a)maintain employment; or

(b)obtain employment; or

(c)regain or acquire “vocational independence”.

[7]Vocational independence is defined to mean:3

… the claimant’s capacity as determined under s 107 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.

1      Ross v Accident Compensation Corporation [2021] NZACC 4.
2      Ross v Accident Compensation Corporation [2021] NZACC 145.
3      Accident Compensation Act 2001, s 6(1).

[8] Section 85 of the Act relevantly provides that ACC is liable to provide vocational rehabilitation to a claimant who—

(a)has suffered personal injury for which he or she has cover; and

(b)is entitled to weekly compensation.

[9] A claimant’s vocational rehabilitation needs must be assessed in accordance with s 89, which requires:

(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.

[10] Under ss 92 and 96, the occupational assessor and the medical assessor must each prepare and provide to ACC a report on the initial occupational assessment. The reports must provide the information required by s 89.

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: [2022] NZHC 448
Decision Date: 14 March 2022

CaseChat Overview and Summary

Euphemia Ross seeks special leave to appeal a decision of the District Court, which dismissed her appeal from a determination by the Accident Compensation Corporation (ACC) that she had achieved vocational independence. The appeal in the District Court concerned the process and substance of ACC's decision that Ms Ross was vocationally independent. If vocationally independent, a claimant loses their entitlement to weekly compensation. Ms Ross contends that the District Court erred in law by: (a) failing to address the requirements of s 110 of the Act and whether they had been satisfied; (b) applying an incorrect approach on appeal; (c) rejecting Dr Rajapakse's report without giving any reasons and without apparent justification; and (d) making findings that were in conflict with the evidence as a whole. The Court considered whether any of the proposed grounds met the threshold for the grant of special leave in turn. It found that the first proposed ground of appeal was plainly incorrect as the requirements of s 110 of the Act were not a decision giving rise to appeal and review rights under Pt 5 of the Act. It also found that the second proposed ground of appeal was not a fair reading of the District Court's decision and that the District Court was entitled to form its own independent judgment on the merits of the appeal by way of rehearing. The third proposed ground of appeal was found to be arguable, as there was no evidence before ACC (or the District Court) capable of supporting the determination that Ms Ross's psychological/psychiatric issues had been resolved. The fourth proposed ground of appeal was considered to be "catch-all" in nature and added nothing to the other three. The application for special leave to appeal was granted, in part. The approved questions were: (a) was there evidence available to ACC in 2014 or the District Court in 2021 that Ms Ross' depressive disorder had materially improved since 2007? and (b) if not, did the District Court err in law (in the Edwards v Bairstow sense) when it upheld ACC's 2014 decision that Ms Ross had vocational independence? The sole focus of the appeal was intended to be on whether there was any evidence upon which ACC and the District Court could have formed the view that Ms Ross' mental state was such that she was able to undertake full-time work (of any of the identified kinds). Both questions were predicated on the assumption that persisting mental injury alone—provided it was caused by physical injury for which cover was granted—can suffice to find that a person is not vocationally independent.

Orders