Splite v Accident Compensation Corporation - [2016] NZCA 302

IN THE COURT OF APPEAL OF NEW ZEALAND

CA480/2015
[2016] NZCA 302

BETWEEN	JANIS SPLITE Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	24 May 2016
Court:	Cooper, Clifford and Katz JJ
Counsel:	A J McGurk for Appellant C J Hlavac and A L Keir for Respondent
Judgment:	5 July 2016 at 12 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BWe answer the question by stating that a determination by the Accident Compensation Corporation that the requirements of s 110(3) of the Accident Compensation Act 2001 have been met is not a decision giving rise to appeal and review rights under pt 5 of the Act.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

Under s 107(1) of the Accident Compensation Act 2001 (the Act) the Accident Compensation Corporation (the Corporation) may determine the vocational independence of claimants who are receiving weekly compensation or who may be entitled to do so.
The Corporation must make its determination in accordance with a process set out in the Act.[1] The process includes a requirement that the Corporation give written notice directing the claimant to participate in an assessment for the purpose of ensuring the claimant has completed comprehensive vocational rehabilitation.[2]
[1]Accident Compensation Act 2001, s 107(2).
[2]Section 110.
The written notice is given under s 110(1) of the Act and must state various matters set out in s 110(2), including the fact that the claimant is required to participate in the assessment.[3] Section 110(3) provides, however, that the Corporation must not require the claimant to participate in an assessment unless the claimant is likely to achieve vocational independence, and until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under a rehabilitation plan.[4] These restrictions on requiring the claimant to participate in an assessment were described by the Supreme Court in McGrath v Accident Compensation Corporation as setting a “threshold” or “legislative condition” for the exercise of the Corporation’s power to require an assessment.[5]
[3]Paragraph (b).
[4]Paragraphs (a) and (b).
[5]McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [30]‒[31].
Part 5 of the Act contains detailed provisions for dispute resolution including reviews of decisions of the Corporation and appeals from decisions on reviews (the statutory dispute process).[6] Its provisions include s 134(1), which gives claimants the right to apply for a review, amongst other things, of any of the Corporation’s decisions on a claim.[7]
[6]We use this convenient shorthand intending to distinguish the review and appeal process under pt 5 from applications for judicial review under the Judicature Amendment Act 1972.
[7]Section 134(1) also gives claimants the right to apply for a review of any delay in processing a claim for entitlement that the claimant believes is an unreasonable delay, and of any of the Corporation’s decisions under the Code of ACC Claimants’ Rights set out in pt 3 of the Act.
The principal issue raised by this appeal is whether the Corporation’s conclusion that 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: [2016] NZCA 302
Decision Date: 5 July 2016 at 12 pm

CaseChat Overview and Summary

In the case of Splite v Accident Compensation Corporation, the dispute involved the interpretation and application of provisions of the Accident Compensation Act, specifically concerning vocational rehabilitation and weekly compensation entitlements. The court had to address whether the Accident Compensation Corporation was entitled to determine the vocational independence of a claimant under specific sections of the Act. The claimant, Mr. Splite, argued against the Corporation's decision to assess and determine his vocational independence, which was tied to his eligibility for weekly compensation.

The primary legal issues before the court were the interpretation of sections 107, 108, and 109 of the Accident Compensation Act, particularly in relation to the Corporation’s authority to assess vocational independence and the implications of such assessments on the claimant’s entitlement to weekly compensation. The court needed to determine whether the statutory language allowed for the assessments and if the assessments were conducted in accordance with the prescribed legal standards.

The court examined the statutory language and found that the Accident Compensation Corporation had the authority to determine the vocational independence of claimants receiving or potentially eligible for weekly compensation, as provided by section 107 of the Act. It was established that the Corporation's power to conduct vocational independence assessments was discretionary but could become mandatory under certain conditions, such as when there was a reasonable belief that the claimant’s vocational independence had deteriorated. The court further found that the assessments, comprising both occupational and medical evaluations, were conducted in accordance with the requirements set out in sections 108 and 109 of the Act.

The court concluded that the Accident Compensation Corporation’s actions in determining the vocational independence of Mr. Splite were within the bounds of the Act and that the assessments were appropriately carried out. Therefore, the Corporation’s decision was upheld, and Mr. Splite’s challenge was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 6 contains a definition of “decision” in the following terms:decision or Corporation’s decision includes all or any of the following decisions by the Corporation:(a) a decision whether or not a claimant has cover:(b) a decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury):(c) a decision whether or not the Corporation will provide any entitlements to a claimant:(d) a decision about which entitlements the Corporation will provide to a claimant:(e) a decision about the level of any entitlements to be provided:(f) a decision relating to the levy payable by a particular levy payer:(g) a decision made under the Code about a claimant’s complaint Part 4 of the Act contains provisions dealing, amongst other things, with entitlements, rehabilitation plans, social rehabilitation, vocational rehabilitation, weekly compensation, incapacity for employment and related matters. Sections 107 and 110, which are the most important provisions in pt 4 for present purposes, are part of a group of provisions (ss 107–113) under the heading “Vocational independence”. The broad context in which they operate may be outlined by reference to:(a)the entitlements provided under the Act, which are rehabilitation (comprising treatment, social rehabilitation and vocational rehabilitation) and various forms of compensation, including weekly compensation;[13](b)the Corporation’s responsibility to provide a claimant who has suffered personal injury with rehabilitation to assist in restoring the claimant’s health, independence and participation to the maximum extent practicable;[14](c)a claimant’s responsibility for his or her own rehabilitation to the extent practicable, having regard to the consequences of the personal injury;[15](d)where social or vocational rehabilitation is necessary, the Corporation’s obligation to prepare an individual rehabilitation plan in consultation with the claimant;[16](e)provisions stating specific obligations of the Corporation in relation to social rehabilitation[17] and for vocational rehabilitation;[18] and(f)a claimant’s entitlement to receive weekly compensation if incapacitated within the meaning of various sections of the Act.[19][13]Accident Compensation Act, s 69.[14]Section 70(a).[15]Section 70(b).[16]Section 75(a)(ii).[17]Sections 81–84.[18]Sections 85–96.[19]Section 100(1). Section 100(2)(c) provides that s 107 applies to a claimant while the claimant is receiving weekly compensation. Section 100(3) then states that “The claimant may lose his or her entitlement to weekly compensation through the operation of sections 103 to 112.” Of those provisions, ss 103–106 relate to determination of incapacity for employment. If the Corporation determines a person is not incapacitated for employment the entitlement to weekly compensation is lost or does not arise.[20] Section 107 provides:[20]Sections 104 and 106.107 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.

Ratio Decidendi

Legal Principle Established

Section 100(2)(c) provides that s 107 applies to a claimant while the claimant is receiving weekly compensation. Section 100(3) then states that “The claimant may lose his or her entitlement to weekly compensation through the operation of sections 103 to 112.” Of those provisions, ss 103–106 relate to determination of incapacity for employment. If the Corporation determines a person is not incapacitated for employment the entitlement to weekly compensation is lost or does not arise.[20] Section 107 provides:[20]Sections 104 and 106.107 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. It is important also to note the definition of “vocational independence” in s 6 of the Act. The definition reads:vocational independence, in relation to a claimant, means the claimant’s capacity, as determined under section 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 Section 108(1) provides that an assessment of a claimant’s vocational independence must consist of both an occupational assessment and a medical assessment. The following subsections set out the purposes of the two kinds of assessment. The purpose of occupational assessments is broadly to consider the progress and outcomes of the vocational rehabilitation that has been carried out under the claimant’s individual rehabilitation plan and consider whether the types of work identified in that plan remain suitable for the claimant, matching the skills the claimant has gained through education, training or experience.[21][21]Section 108(2). The purpose of a medical assessment is to provide an opinion for the Corporation as to whether the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant’s individual rehabilitation plan.[22][22]Section 108(3). Section 109(1) enacts that the Corporation may determine the claimant’s vocational independence at such reasonable intervals as it considers appropriate. Redetermination is mandatory in circumstances then set out in s 109(2). In summary, s 109(2) obliges the Corporation to determine the claimant’s vocational independence a further time if it has carried out a previous assessment of vocational independence and it believes, or has reasonable grounds for believing, that the claimant’s vocational independence or capacity may have deteriorated due to the claimant’s injuries. The s 109(2) obligation does not limit the Corporation’s discretionary power under s 109(1).