Terry v Accident Compensation Corporation
[2017] NZHC 2352
•26 September 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV-2016-485-379 [2017] NZHC 2352
BETWEEN HAMAL TERRY
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 21 August 2017 Appearances:
T J McGurk for the appellant
F L Becroft for the respondentJudgment:
26 September 2017
JUDGMENT OF CULL J
Table of Contents
District Court decision ...................................................................................................................... [7] Approach on appeal .......................................................................................................................... [9] The legislation .................................................................................................................................. [13] Questions of law on appeal ............................................................................................................. [14] Question one: whether ACC’s determination under s 105(2) of the Act on 12 November 2012,
that Mr Terry was no longer incapacitated, was flawed? ............................................................ [18]
Did Mr Terry have an entitlement to weekly compensation? ....................................................... [19] Conclusion.................................................................................................................................... [29] Was the process ACC adopted to assess Mr Terry’s incapacity flawed? ...................................... [32] Analysis ........................................................................................................................................ [34] ACC’s first decision ..................................................................................................................... [35] ACC’s second decision ................................................................................................................. [47] Conclusion.................................................................................................................................... [62] Section 50 claim and retrospectivity ............................................................................................ [63] Conclusion.................................................................................................................................... [69] Question two: Did the District Court fail to take into account relevant considerations in relation
to the s 105 assessment and therefore did it err in finding that it was open to ACC to find that
Mr Terry had capacity from 1 November 2008? .......................................................................... [70]
The District Court was wrong to hold there was no expert medical opinion that contradicted the
evidence of the respondent’s experts ............................................................................................ [72]
TERRY v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 2352 [26 September 2017]
The District Court misunderstood s 87 when finding it was too late for Mr Terry to be provided
with vocational rehabilitation ....................................................................................................... [82] ACC’s failure to adhere to s 50 .................................................................................................... [88] Failure to take into account relevant considerations ..................................................................... [99] Result .............................................................................................................................................. [100]
[1] Mr Terry was granted special leave to appeal to this Court on two questions of law relating to his capacity to engage in work, following a serious spinal injury on
28 April 2006 when he was in his final year of school. Mr Terry received lump sum compensation in early 2009. Five years after the accident, Accident Compensation Corporation (ACC) accepted Mr Terry was entitled to weekly compensation from
15 December 2006 to 31 October 2008, on the basis of a retrospective medical assessment.
[2] As a result of that assessment, ACC determined that Mr Terry was entitled to weekly compensation up until 1 November 2008 but not after that date, because Mr Terry was assessed as having capacity to engage in employment. ACC’s initial decision was quashed on review but was ultimately confirmed, after further reports were obtained, on 12 November 2012. This was upheld by an ACC reviewer. The reviewer’s decision was subsequently upheld by the District Court.1 The District
Court declined Mr Terry’s leave to appeal.2
[3] On 9 February 2017, Mallon J granted special leave for Mr Terry to appeal to the High Court.3 The Judge granted special leave to appeal on two specific questions of law under the Accident Compensation Act 2001 (the Act):4
(a) Was it open to ACC to determine Mr Terry’s capacity under s 105, rather than his vocational independence under s 107, when the assessment was being carried out retrospectively, Mr Terry had worked for brief periods only and Mr Terry had not received a vocational rehabilitation plan, and therefore did the District Court err
in finding that no vocational rehabilitation plan was needed?
1 Terry v Accident Compensation Corporation [2015] NZACC 109 (DC).
2 Terry v Accident Compensation Corporation [2016] NZACC 130 (DC).
3 Terry v Accident Compensation Corporation [2017] NZHC 118.
4 At [45].
(b)Did the District Court fail to take into account relevant considerations in relation to the s 105 assessment and therefore did it err in finding that it was open to ACC to find that Mr Terry had capacity from
1 November 2008?
[4] In summary, Mr Terry contends that ACC’s determination under s 105(2) of the Act that he was not incapacitated to engage in work was flawed. The flawed process led to a decision which was unreasonable, because ACC did not consider all of the relevant evidence, including his ability to engage in work and his rehabilitation needs, to determine he was no longer entitled to weekly compensation from 1 November 2008.
[5] ACC contends that it followed the statutory process under s 100 of the Act, which governs a claimant’s entitlement to weekly compensation, and that it complied with s 102 in following the procedure to determine incapacity. ACC contends that it reached a lawful and proper determination under s 105, in determining that Mr Terry was no longer incapacitated and therefore was ineligible to receive weekly compensation. Mr Terry was not entitled to vocational rehabilitation as a result.
[6] The background facts were fully canvassed in the special leave decision of
Mallon J.5 I do not propose to traverse those again and I adopt the Judge’s summary.
District Court decision
[7] Mr Terry appealed to the District Court and in support of his appeal, he filed affidavit evidence explaining the difficulties he encountered in maintaining employment. He had five employment positions since his injury but was unable to sustain them, due to the pain and difficulties arising from his injury. These attempts to engage in employment resulted in only seven weeks of work since 2005. The reason that he could not retain a job for longer was not due to laziness or any problems with Mr Terry’s work ethic. Mallon J summarised the further evidence
from Mr Terry and the decision of the District Court in the following way:6
5 Terry, above n 3, at [6]–[25].
6 Terry, above n 3.
[27] Mr Terry further explained in his affidavit that he did not work or earn money when he was overseas in 2009. He did not do anything more than if he had been at home. He did not climb mountains, camp in jungles or hike for great distances with a back pack. Dr Walls had not asked him about the details of his trip before treating it as the equivalent of working full time in a sedentary role. On his return he continued to experience pain which significantly limited his physical abilities, as it had before his trip. He did not receive any vocational help or rehabilitation assistance from ACC.
[28] The District Court dismissed Mr Terry’s appeal on 7 May 2015.7
The Judge considered that the purpose of vocational rehabilitation assistance included to regain or acquire vocational independence. Generally vocational assistance could not extend beyond three years, although ACC has discretion to extend this. Given the time at which the loss of earnings entitlement was being considered the practicalities of belatedly organising a vocational rehabilitation plan were not obvious. Dr Walls’ backdated assessment posited a graduated reintroduction to work. Dr Walls was aware of Mr Terry’s attempts at work which were in effect “informal work trials”.
[29] In relation to ACC’s decision that Mr Terry was not entitled to loss of potential earnings after 1 November 2008, the Judge considered Dr Walls carried out a fairly comprehensive overview of the information available to him. A retrospective analysis was the unsatisfactory reality. Mr Chan indicated without reservation that he agreed with Dr Walls’ view. There was no countervailing expert medical opinion. Mr Terry’s own personal assessment and the medical certificates from his doctor, which were confusing, were not sufficient to overcome the medical evidence from Dr Walls and Mr Chan. ACC’s decision was a reasonable one in accordance with Ellwood v Accident Compensation Corporation.8
[8] The District Court dismissed Mr Terry’s application for leave to appeal, finding that s 87 of the Act and the provision of vocational rehabilitation was not relevant to an assessment of incapacity for work under s 105.9 The Judge held the retrospective decision by ACC declining to pay further compensation to Mr Terry was made on reasonable grounds. The Judge found that there was no requirement under s 105(2) of the Act to require a rehabilitation assessment.
Approach on appeal
[9] Under s 162 of the Act, a party to an appeal who is dissatisfied with the decision of the District Court may appeal to the High Court on a question of law.10
Section 162(5) specifies that the High Court Rules 2016 and ss 126 to 130 of the
7 Terry, above n 1.
8 Ellwood v Accident Compensation Corporation [2007] NZAR 205.
9 Terry, above n 2.
10 A party must first apply for leave to the District Court to appeal, or special leave from the High
Court if leave is declined; see Accident Compensation Act 2001, s 162(1) and (3).
District Court Act 2016 apply to an appeal under this section, as if it were an appeal under s 124 of the District Court Act.
[10] In Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation, Doogue J clarified what is meant by a “point of law” under the Act’s appeal provisions.11 A point or question of law can include:12
(a) whether or not a statutory provision has been properly construed or interpreted and applied to the facts;13
(b) a mixed question of law and fact;14
(c) a decision-maker’s treatment of facts can amount to an error of law where there is no evidence to support the decision, the evidence is inconsistent with and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision;15
(d) whether or not particular evidence is relevant to a particular issue.16
[11] In Ellwood, part of the appeal concerned the manner in which the Judge dealt with conflicting medical opinion.17 Mallon J held that the Judge was wrong in law in failing to give rational reasons consistent with the facts, in preferring the views of ACC experts over those for the appellant.18 Misinterpretation of facts, or wrongly
construing facts, was considered an error of law.
11 Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation
HC Wellington AP266/00, 6 July 2001.
12 At [5]–[9]. The continuing relevance of this summary is confirmed in Doug Tennent Accident Compensation Law (LexisNexis, Wellington 2013) at [7.8]; and Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [3.8].
13 Commissioner of Inland Revenue v Walker [1963] NZLR 339 (CA) at 353–354; and Edwards v
Bairstow [1956] AC 14 (HL).
14 Walker, above n 13, at 354.
15 Edwards, above n 13; and Lang v Eagle Airways Ltd [1996] 1 ERNZ 574 (CA) at 576.
16 Ogilvy & Mather (New Zealand) Ltd v Turner [1996] 1 NZLR 641 (CA) at 651–652.
17 Ellwood, above n 8.
18 At [35] and [37].
[12] Under r 20.19(1)(c) of the High Court Rules and s 128(1)(c) of the District Court Act, the powers of the High Court on appeal include making “any order the court thinks just.”
The legislation
[13] Mallon J carefully reviewed the ACC legislation and summarised the relevant provisions as they could apply to this case. I set out those passages from her judgment as follows:
[32] On receiving a claim for cover for personal injury ACC must decide whether it accepts the person has cover.19 If it accepts the person has cover it “must … provide information about the entitlements to which it considers the claimant may be entitled” and “facilitate the claimant’s access to those entitlements.”20 Entitlements under the Act include “rehabilitation, comprising treatment, social rehabilitation, and vocational rehabilitation”, weekly compensation and lump sum compensation for permanent impairment.21
[33] A claimant is entitled to be provided by ACC with rehabilitation “to assist in restoring the claimant’s health, independence, and participation to the maximum extent practicable”.22 ACC is required to determine, within 13 weeks of accepting cover, whether a claimant is likely to need social or vocational rehabilitation after the 13 weeks have ended.23
[34] If social or vocational rehabilitation is likely to be needed an individual rehabilitation plan is to be prepared.24 Before an individual rehabilitation plan is prepared, ACC is liable to provide the claimant with social and vocational rehabilitation which ACC considers is suitable for the claimant and necessary or appropriate having regard to the purposes of the rehabilitation entitlement.25 The purpose of vocational rehabilitation is to help a claimant maintain or obtain employment, or acquire vocational independence.26
[35] ACC is liable to provide vocational rehabilitation to a claimant who has suffered personal injury and is entitled to weekly compensation.27 In deciding what vocational rehabilitation is appropriate to achieve its purpose, ACC must consider (as relevant for present purposes) whether it is reasonably practicable to help the claimant use as many of his or her pre- injury skills as possible to obtain employment.28 An assessment of a
19 Accident Compensation Act 2001, ss 48 and 50.
20 Section 50.
21 Section 69.
22 Section 70.
23 Section 75.
24 Section 75.
25 Section 76.
26 Section 80.
27 Section 85.
28 Section 86.
claimant’s vocational rehabilitation needs must consist of an initial occupational assessment to identify the types of work that may be appropriate for the claimant and an initial medical assessment to determine whether those types of work are likely to be medically sustainable.29
[36] A person who has cover and who lodges a claim for weekly compensation is entitled to receive it if (as relevant for present purposes) ACC determines the claimant is incapacitated as set out in s 105(2) of the Act and if the claimant is eligible under clause 47 of Schedule 1 for weekly compensation.30 There is, therefore, an eligibility criteria and an incapacity test:
(a) As relevant for present purposes the eligibility criteria under clause
47 of Schedule 1 is where a person has an incapacity resulting from a personal injury, was a potential earner before their incapacity, is 18
years or older, is not engaged in full time study or training, and does
not have earnings in excess of the amount of the defined minimum weekly earnings. Mr Terry met this criteria when he finished school at the end of 2006.
(b) The incapacity test under s 105(2) requires ACC to determine “whether the claimant is unable, because of his or her personal injury, to engage in work for which he or she is suited by reason of experience, education, or training”.
[37] A person may lose their entitlement to weekly compensation through the operations of sections 103 to 112 of the Act.31 There are two pathways under these sections: the incapacity determination32 and a vocational independence determination.33
[38] As to the first, ACC is able to determine a person’s incapacity under s 105(2) from time to time.34 In determining that question ACC must consider an assessment undertaken by a medical practitioner or nurse practitioner and may obtain any professional, technical, specialised, or other advice from any person it considers appropriate.35 If ACC determines the person is able to engage in work for which he or she is suited in accordance with this test, the person immediately loses any entitlement to weekly compensation and cannot be subject to a vocational independence test.36
[39] As to the second, while a person is receiving weekly compensation ACC may determine from time to time whether the person is vocationally independent.37 Vocational independence means the claimant’s capacity to engage in work for which they are suited by reason of experience, education or training for 30 hours or more a week.38 ACC must have an occupational assessment and a medical assessment when assessing a claimant’s vocational
29 Section 89.
30 Section 100(1)(d).
31 Section 100(3).
32 Sections 103 to 106.
33 Sections 107 to 112.
34 Section 102(1).
35 Section 102(2).
36 Section 106.
37 Section 100(2)(d).
38 Section 6.
independence.39 If ACC determines that a claimant has vocational independence, the claimant loses their entitlement to weekly compensation three months after the date on which they are notified of the determination.40
Questions of law on appeal
[14] At the outset of this hearing, Mr Terry’s counsel drew the Court’s attention to two matters. Although the appellant’s submissions had previously addressed the omission by ACC to obtain an individual rehabilitation plan, one dated 20 June 2016 had been located in the ACC file, but this had not been placed before, or formed part of the argument before Mallon J or the District Court Judge on appeal. Counsel clarified that Mr Terry is no longer raising a challenge under ss 75 and 77, as an individual rehabilitation plan had been prepared. The challenge is more appropriately raised under s 78 of the Act, which provides:
An individual rehabilitation plan must be updated from time to time to reflect the outcome of assessments done and progress made under the plan.
[15] The second matter was the framing of the first question of law. As a result of discussion between counsel, both Counsel agreed the reference to s 107 in the first question of law, and the fact that Mr Terry had received an individual rehabilitation plan (as recently discovered), required the question to be reframed.
[16] I agree with counsel that the first question needs to be revised. The questions of law for determination in this hearing therefore are:
(1) Whether ACC’s determination under s 105(2) of the Act on
12 November 2012, that Mr Terry was no longer incapacitated, was flawed?
(2)Did the District Court fail to take into account relevant considerations in relation to the s 105 assessment and therefore did it err in finding that it was open to ACC to find that Mr Terry had capacity from
1 November 2008?
39 Section 108.
40 Section 112.
[17] I will deal with each of these questions in turn.
Question one: whether ACC’s determination under s 105(2) of the Act on
12 November 2012, that Mr Terry was no longer incapacitated, was flawed?
[18] The focus of Mr Terry’s challenge is whether he should receive weekly compensation and have access to vocational rehabilitation. To be eligible for vocational rehabilitation, the claimant must be in receipt of weekly compensation or have an entitlement to it.41 The principal issues therefore in this appeal are whether Mr Terry had an entitlement to weekly compensation after 1 November 2008 and whether ACC’s determination was flawed. I will undertake my analysis of the first question of law by addressing the following questions:
(1) Did Mr Terry have an entitlement to weekly compensation post
1 November 2008?
(2) Was the process ACC adopted to assess Mr Terry’s incapacity flawed?
Did Mr Terry have an entitlement to weekly compensation?
[19] This question of Mr Terry’s entitlement to weekly compensation is a threshold question. As stated above, a claimant must have an entitlement to weekly compensation, to obtain access to vocational rehabilitation.42
[20] The timing of the events following Mr Terry’s accident is relevant. The key events are these:
28 April 2006 Mr Terry suffered a serious back and neck injury. He
was 17 years old and attending secondary school. ACC
accepted cover and surgery took place.27 May 2006 A social rehabilitation assessment was carried out. ACC supplied home help and equipment to assist in Mr Terry’s recovery from surgery.
41 Accident Compensation Act 2001, s 85.
42 Accident Compensation Act 2001, s 107.
20 June 2006 An individual rehabilitation plan is prepared. It lists
outcomes including recovery and return to work, providing rehabilitation to the extent available under the Act to restore health, independence and participation to the maximum extent practicable. This plan has not been updated since June 2006.
20 November 2006 ACC closes Mr Terry’s file. 15 December 2006 Mr Terry leaves school. September 2007 Mr Terry works for one weekend in a one-off job. November 2007 Mr Terry obtains employment in nursery for light duties only. He lasts two weeks only because of his injury. 26 November 2008 Mr Terry’s GP, Dr Foster initiates permanent impairment
assessment process for a lump sum payment.
9 March 2009 Following a permanent impairment assessment by Dr Watts, ACC pays a lump sum payment for permanent impairment. August 2009 –
February 2010
Mr Terry travels to the United States and South America, he reports struggling with pain while overseas. 8 December 2009 Mr Terry seeks weekly compensation. ACC seeks further information. December 2009 Mr Terry attempts a casual job, which lasted three weeks and ended because of the effects of injury. 18 November 2010 Medical certificates from Dr Foster from 19 December
2007 to 8 November 2010 stating Mr Terry unable to resume any duties at work.
7 February 2011 First assessment by occupational medicine specialist Dr Walls. Mr Terry assessed as being able to sustain full- time work from 1 November 2008 in “the appropriate job”. 22 July 2011
First ACC decision
ACC accepts Mr Terry is entitled to weekly compensation from 15 December 2006 to 31 October
2008, based on Dr Walls’ report of 7 February 2011.
However, no compensation was payable after
1 November 2008 on Dr Walls’ assessment.
7 September 2011 Medical certificate from Dr Foster stating that Mr Terry was unable to resume duties at work. 30 September
2011
Mr Terry seeks review of ACC’s decision under s 134 of the Act. 15 March 2012 Reviewer quashes original ACC decision and directs that an orthopaedic report be obtained.
12 June 2012 Initial occupational assessment report completed by
Ms Hart. Canvassed job types as occupationally suitable for Mr Terry as at June 2012. Mr Terry provides comments regarding his inability to carry out certain tasks because of back pain.
28 June 2012 Auckland spinal rehabilitation unit provides a spinal evaluation and assessment report, recommending rehabilitation, physiotherapy and referral to appropriate vocational counsellor/return to work specialist and social worker support. 26 July 2012 Assessment by orthopaedic and spine surgeon, Mr Clayton Chan. He recommends rehabilitation by way of a graduated return to work programme in a gym-based strengthening programme “as of now”. Did not disagree with Dr Walls 7 February 2011 report, but was not an expert in work assessments and raised doubts about Mr Terry’s prognosis for a return to work. 5 September 2012 Dr Walls provides a further report, confirming the job types identified by Ms Hart as being suitable for Mr Terry to undertake. Mr Terry was not seen or examined by Dr Walls. 30 October 2012 Dr Walls confirms all job types, except one, identified in his 5 September 2012 report as appropriate for Mr Terry to have undertaken from 1 November 2008. 12 November 2012
Second ACC
decision - currently under appeal
ACC again declined to pay weekly compensation to
Mr Terry from 1 November 2008.
[21] Mr Terry did not seek weekly compensation until December 2009. The reason for the three year delay is that he did not realise he was entitled to apply for weekly compensation.
[22] ACC submits that the process starts with Mr Terry’s application for weekly compensation under s 100 of the Act. When Mr Terry’s application for weekly compensation was lodged in 2009, ACC says it was required, under s 100, to determine incapacity under s 105(2). In order to determine incapacity under s 105(2), the procedure in s 102 must be followed, where the Corporation is required to consider an assessment undertaken by a medical practitioner and, in addition, it
may obtain any professional, specialist or other advice as it considers appropriate.43
43 Accident Compensation Act 2001, s 102(2)(a) and (b).
[23] On 22 July 2011, on the basis of Dr Walls’ 7 February 2011 report, ACC
accepted that Mr Terry was entitled to weekly compensation from 15 December
2006 to 31 October 2008. This was a retrospective assessment and being retrospective, ACC submits that it resulted in a lost opportunity to assess vocational rehabilitation at the relevant time.
[24] However, ACC accepted Dr Walls’ retrospective assessment that from
1 November 2008, Mr Terry no longer qualified for weekly compensation, because he was assessed as being able to engage in suitable employment.
[25] In addition, ACC refers to the report obtained from Ms Hart, an occupational therapist, who canvassed the types of employment available to Mr Terry. This initial occupational assessment report was completed by Ms Hart on 12 June 2012. ACC also had access to a report by Mr Chan, the orthopaedic and spine surgeon, on
26 July 2012 with a further report from Dr Walls on 5 September 2012. These reports led to the decision under appeal of 12 November 2012, where ACC again declined to pay weekly compensation from 1 November 2008.
[26] Because ACC determined that Mr Terry was not entitled to weekly compensation from 1 November 2008, ACC submits Mr Terry was not entitled to an assessment for vocational rehabilitation under ss 85 to 87 and 107 of the Act. Even after the first decision was quashed by the ACC Reviewer, ACC was not directed to pay weekly compensation to Mr Terry and therefore, ACC submits Mr Terry’s entitlement was at an end. He no longer received the weekly payments and this was
fatal to his claim that he should have received vocational rehabilitation.44 Further,
when ACC obtained an assessment from Mr Chan, ACC again declined to pay weekly compensation. Mr Terry had not been in receipt of weekly payments since
2008 and therefore, ACC says, he cannot now claim that he was entitled to vocational rehabilitation.
[27] In response to ACC’s position, Mr Terry points to the two decisions that ACC
reached. The first decision of 22 July 2011 was quashed, after Mr Terry sought a review. The reviewer quashed the decision with a direction that ACC was to carry
44 McKenzie v Accident Compensation Corporation [2004] NZACC 135 (DC).
out a further investigation and issue a new decision with review rights available to
Mr Terry. In that decision, the reviewer stated:45
For the avoidance of doubt, Mr Terry’s entitlement to loss of potential earnings is not reinstated at this stage.
[28] Mr Terry says his entitlement remained, despite not being paid.
Conclusion
[29] Mr Terry was entitled to receive weekly compensation. That was confirmed by Dr Walls in February 2009 and Mr Terry was paid weekly compensation from December 2006 until 31 October 2008. Mr Terry sought a review of ACC’s decision, that payments were made up to October 2008 only and the decision was quashed. Although ACC was not ordered to reinstate the weekly payments, Mr Terry’s entitlement to such payments remained until a final determination was made.
[30] I accept Mr Terry’s submission that because his entitlement to loss of potential earnings was not reinstated by the ACC Review Officer, it did not mean Mr Terry had no entitlement to a consideration of his eligibility. His entitlement remained. He simply was not paid at that stage. Mr Terry then reviewed ACC’s second decision, which is currently under appeal. His entitlement is the subject of review and is still alive; no final determination has been made.
[31] I find that Mr Terry is not barred from seeking vocational rehabilitation under the Act, as I consider he has met the threshold requirement under s 107(1)(b), because he is “a claimant who may have an entitlement to weekly compensation.” I consider Mr Terry’s entitlement to weekly compensation is still alive.
Was the process ACC adopted to assess Mr Terry’s incapacity flawed?
[32] In this case, ACC determined capacity under s 105(2) of the Act. Mr Terry submits the process ACC adopted to assess incapacity under s 105(2) was flawed,
resulting in a wrongful determination that Mr Terry had the capacity to work.
45 Application for review by Hamal Terry ACC Reviewer 237601, 15 March 2012 at 2.
[33] ACC submits there is no statutory process for determining incapacity under s 105(2). Section 105(2) simply requires ACC to determine whether the injury prevents the claimant from undertaking suitable work by which he or she is suited by reason of experience, education or training. There is no reference to vocational rehabilitation in these sections and this is not how incapacity is measured.46 Section
102 requires ACC, in determining capacity under s 105, to consider an assessment by
a medical practitioner or nurse and allows ACC to obtain any other advice as it considers appropriate.
Analysis
[34] Both parties have made submissions on the legislative requirements and the evidence involved in the process of assessment. I will deal with the matters raised under each of the relevant steps of the process.
ACC’s first decision
[35] The process undertaken by ACC on Mr Terry’s application for weekly compensation commenced under s 100 of the Act. Under s 100(c), a claimant in entitled to receive weekly compensation “if the Corporation determines that the claimant is incapacitated within the meaning of s 105(2) …”
[36] Under s 105(2) of the Act, the question that ACC must determine, to assess incapacity, is whether the claimant is unable, because of his or her personal injury, to engage in work for which he or she is suited by reason of experience, education, or training or any combination of those things. To determine that question, the Corporation must consider an assessment undertaken by a medical practitioner under s 102(2)(a), which ACC did, by requesting Dr Walls undertake an assessment.
[37] Although ACC could have obtained further advice (as it later did) from an occupational therapist or any other appropriate advice, ACC reached its first decision on Dr Walls’ report and the reports of Mr Terry’s GP. The medical certificates from Mr Terry’s GP as described, included certificates from 18 March 2008 to 2011 noting
that Mr Terry’s work capacity was for “light duties only” to a certificate on
46 Mullan v Accident Compensation Corporation [2007] NZACC 74 (DC).
7 September 2011, recording that Mr Terry was unable to resume any duties at work from 7 September 2011 for 90 days.
[38] Although ACC submits that there is no reference to vocational rehabilitation in the above sections of the Act, no one reviewed the initial individual rehabilitation plan for Mr Terry, which was completed on 20 June 2006, two months after his accident. The reference in that plan was to arrange a social rehabilitation assessment (which appears to have been undertaken) and “arrange appropriate services to support your rehabilitation.”
[39] The first assessment by Dr Walls, dated 7 February 2011, was retrospective and was premised on a “rather arbitrary” assessment of Mr Terry’s ability to undertake work, both before and after 2008. Apart from Mr Terry’s limited employment history, Dr Walls had no reference to the types of “appropriate jobs” that Mr Terry could undertake. It should not be overlooked that Mr Terry had his accident in his last year of school and has had no regular employment since.
[40] Mr Terry submits that the first decision of ACC of 22 July 2011 to pay weekly compensation is a grant of cover, which engaged ss 75, 77, 78 and 79 of the Act. Mr Terry contends that because ACC’s first decision both provides a grant of cover and then suspends his entitlements, this has led to confusion over the proper procedure ACC should follow. In other words, ACC’s first decision conflates a grant of cover with a disentitlement under s 117 of the Act. ACC must have a reasonable
basis for a decision to decline entitlements.47
[41] Mr Terry argues that by treating the decision to pay weekly compensation and the decision to determine incapacity under s 105(2) as essentially one decision, ACC was unable to meet its obligations under the Act to identify vocational rehabilitation needs, update his individual rehabilitation plan and ensure that he was given appropriate rehabilitation.
[42] For reasons which follow, I accept Mr Terry’s submissions. Under s 70 of the
Act, once ACC has approved cover to a claimant, ACC is entitled to provide a
47 Ellwood, above n 8.
claimant with rehabilitation.48 Under s 75, within 13 weeks after ACC accepts a claimant’s claim for cover, ACC must determine whether the claimant is likely to need vocational rehabilitation after the 13 weeks have ended and if so, prepare an individual rehabilitation plan.49
[43] In this case, Mr Terry was assessed in 2011, as to his work capacity for the years 2006 to 2008. Having made the decision to grant Mr Terry weekly compensation, ACC granted Mr Terry cover. From that acceptance of Mr Terry’s claim for cover, ACC had statutory obligations to determine Mr Terry’s need for social or vocational rehabilitation under ss 70 and 75. Further, under s 77, ACC had an obligation to prepare an individual rehabilitation plan, which it had undertaken in June 2006, but which was never updated. Section 78 of the Act requires that an individual rehabilitation plan must be updated from time to time to reflect the outcome of assessments done and progress made under the plan.
[44] Section 80(1) of the Act defines the purpose of vocational rehabilitation as being to help a claimant maintain employment, obtain employment or acquire vocational independence. The provision of vocational rehabilitation includes the provision of activities for the purpose of maintaining or obtaining employment that is suitable for the claimant and appropriate for the claimant’s level of training and experience.50
[45] Under s 89 an assessment of a claimant’s rehabilitation needs 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 are likely to be medically suitable for the claimant.
[46] At the time of the first decision, ACC did not assess Mr Terry’s vocational
rehabilitation needs.
48 Accident Compensation Act 2001, s 70.
49 Section 75(a)(i)(ii).
50 Section 80(2).
ACC’s second decision
[47] After its first decision was quashed, ACC sought an initial occupational assessment from Ms Hart, an assessment from an orthopaedic and spine surgeon, Mr Chan and a further medical assessment from Dr Walls on whether the types of work identified by Ms Hart were likely to be medically sustainable for Mr Terry. The reports acquired by ACC from Dr Walls and Ms Hart appear to be assessments required under s 89 of the Act for meeting a claimant’s vocational rehabilitation needs. However, it appears that ACC used the initial occupational assessment and Dr Walls’ 5 September 2012 assessment of suitable job types to determine that Mr Terry was no longer incapacitated under s 105(2). No updated individual rehabilitation plan has been obtained since 20 June 2006. Although the assessments have the appearance of being obtained under s 89 of the Act, the assessments were not used for the purpose of determining Mr Terry’s vocational rehabilitation needs under s 89, but rather to determine his incapacity.
[48] Mr Chan, the orthopaedic and spine surgeon, completed his neurological assessment finding that Mr Terry had little in the way of objective neurological deficit in his lower extremities, which was in contrast to his acute presentation in
2006. He reported that Mr Terry had an excellent return of neurological function and that his spinal fractures have healed in excellent alignment and is a considerable improvement “compared to his pre-operative deformity” from the accident. Mr Chan disclaimed being an expert on giving an opinion about whether Mr Terry could return to work, but then proceeded to give one. He said he had no reason to disagree with Dr Walls’ 7 February 2011 report, but raised doubts about Mr Terry’s ability to return to work. He says:
… I see no reason to disagree with Dr Walls’ findings.
I see no reason why Mr Terry cannot be employed in a full time capacity, if an appropriate job was able to be found.
His occupational assessment report performed on the 12th June 2012 by Raewyn Hart indicates that since 2005, Mr Terry has been in paid employment for a total of 7 weeks over 4 different jobs. I therefore believe the prognosis for his return to work is somewhat guarded.
…
You have asked me to comment on Mr Terry’s fitness for work with regards to the attached job types for the period 1st November 2008 to current. This is outside my area of expertise. I do however believe that he is fit for full time employment in a suitable job. What are deemed to be appropriate jobs are best determined by either an occupational physician or occupational therapist.
[49] When Dr Walls was approached to provide a further report on 5 September
2012, he provided comments on Mr Terry’s ability to undertake work, without seeing or checking with Mr Terry about the viability of undertaking the jobs identified. Dr Walls’ report also appears to overlook the responses given by Mr Terry to Ms Hart about his ability to undertake such jobs. For instance, jobs which require static positions such as a bank worker, enquiry clerk or sales assistant were indicated as suitable, yet Dr Walls appears to have ignored Mr Terry’s concern that a job that requires static positions or standing for long periods would be problematic for him.
[50] Without checking with Mr Terry, Dr Walls’ reports on 15 December 2011,
5 September 2012 and 12 November 2012 were all completed without seeing
Mr Terry. Dr Walls is thus providing further opinions in 2012, on jobs identified in
2012, as to Mr Terry’s ability to undertake work from 2008, without seeing him again, but relies on his own report a year earlier, from 7 February 2011. This was the retrospective assessment, which discussed Mr Terry’s capacity to undertake work from 2006 to 1 November 2008. These assessments are all disconnected in time.
[51] There is a further disconnect between the medical reports of Mr Chan and Dr Walls as to the time period that Mr Terry’s fitness for work is being assessed. Dr Walls has only seen Mr Terry once for a retrospective assessment in 2011 of Mr Terry’s capacity from 2006. The conclusion was that Mr Terry was fit to undertake appropriate work from 1 November 2008. Mr Chan completed an orthopaedic assessment in July 2012, yet he had been asked by ACC to comment on Mr Terry’s fitness for work for the period 1 November 2008 to 2012. Mr Chan, quite properly advised that such an assessment was outside his area of expertise, but then proceeded to determine that Mr Terry is fit for full-time employment “in a suitable job”, which should be determined by an occupational physician or occupational therapist. Despite Mr Terry’s comments and concerns about undertaking some of the jobs identified by Ms Hart, his comments have been ignored.
[52] There is one further report that was received by ACC, but appears to have been given little or no weight. The Auckland Spinal Rehabilitation Unit provided a Spinal Evaluation and Assessment Report dated 28 June 2012, which sets out recommendations to assist Mr Terry’s rehabilitation. The two “suggested courses of action” which are relevant are:
(a) ACC to please consider referring Mr Terry for physiotherapy to strengthen core muscles, scapula stabilisers and receive education around back care and posture; and
(b)ACC to please consider referral to appropriate vocational counsellor/return to work specialist. The latter suggested course of action arises from a recommendation that Mr Terry should receive appropriate advice and support in exploring return to work options.
[53] Further, there are indications and evidence provided in several of the reports that Mr Terry remained unable to work as at 1 November 2008, which appear to have been overlooked by ACC. These include:
(a) Dr Walls’ first report, from February 2011, identifies ongoing symptoms suffered by Mr Terry more than two years after ACC determined him as incapacitated, including daily chronic back pain, disturbed sleep from pain, physical activity as aggravating pain, as well as being unable to engage in heavy work, work-related lifting, awkward posture, prolonged standing or sitting;
(b)Dr Watts’ assessment, from February 2009, for entitlement to lump sum compensation refers to ongoing back pain exacerbated by lifting and bending, unsuccessful attempts at employment because of injury and assessed Mr Terry’s whole person impairment at 25 per cent;
(c) a series of 90 day medical assessment from Mr Terry’s GP, Dr Foster,
covering the period from 19 December 2007 to 14 December 2010,
which state Mr Terry is unable to resume any duties at work during this time;
(d)Dr Walls’ letter, dated 15 December 2011, identifies ongoing back pain would not be uncommon, although the exact severity is unpredictable, managing discomfort without resource to exercise programmes and medication may be over optimistic;
(e) Mr Chan’s report, dated 26 July 2012, repeats a number of the pain symptoms reported elsewhere, particularly ongoing lower back and neck pain, recommending a graduated return to work programme and gym-based strengthening programme to commence at the time of the report; and
(f) Dr Foster’s letter, dated 1 December 2011, and attached file notes refer to ongoing stiffness and pain around site of operation, that it is probable Mr Terry will have ongoing disabilities despite surgery.
[54] ACC submits that it cumulatively acquired all of the reports under s 102 of the Act, before reaching its decision declining to pay weekly compensation to Mr Terry. Cumulatively, the reports conclude Mr Terry has capacity to undertake the types of roles identified by Dr Walls and Ms Hart in their respective assessments, particularly Dr Walls’ further report of 5 September 2012. ACC contends that it was open to it to decline to pay further compensation, because the reports collectively concluded that Mr Terry can undertake work. On that basis, the doctors were in agreement that Mr Terry was no longer incapacitated under s 105(2).
[55] I am unable to accept ACC’s submissions that it followed the proper process in identifying Mr Terry’s incapacity. Although Mr Terry retrospectively claimed weekly compensation, once ACC granted him cover, it should have followed the process under s 89, by reason of the engagement of ss 75, 77 and 78 of the Act and undertaken an assessment of Mr Terry’s vocational rehabilitation needs.
[56] Mr Terry’s individual rehabilitation plan was not updated from 20 June 2006. Based on a retrospective assessment Dr Walls conducted in 2011 and without his seeing Mr Terry again in 2012, to discuss the practicability of Mr Terry undertaking those jobs identified in 2012 let alone in 2008, the basis for concluding that certain work types were “medically sustainable” for Mr Terry to undertake from November
2008 is not robust.
[57] The problem in the process followed by ACC is that after receiving Dr Walls’ initial assessment in 2011 and granting cover to Mr Terry for weekly compensation to 1 November 2008, ACC overlooked that Mr Terry had been granted cover and was entitled to an assessment for his vocational rehabilitation. Mr Terry was aged 17 when he had his accident and was attending school at the time. He left school and has never had any ongoing employment because of his injury. Mr Chan highlighted the fact that Mr Terry had been in paid employment for a total of seven weeks over four different jobs since 2005. That was a red flag for ACC that Mr Terry has been unable to maintain employment since his injury.
[58] The purpose of the 2001 Act, which was substantially amended from the previous legislation,51 has as its principal purpose the focus on rehabilitation of claimants. Of relevance, s 3 of the Act provides:52
3 Purpose
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 incidence 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 practicable extent a claimant’s health, independence, and participation:
51 Accident Insurance Act 1998, s 2.
52 Emphasis added.
(d) ensuring that, during their rehabilitation, claimants receive fair compensation for loss from injury, including fair determination of weekly compensation and, where appropriate, lump sums for permanent impairment:
…
(f) ensuring that persons who suffered personal injuries before the commencement of this Act continue to receive entitlements where appropriate.
[59] I consider the Corporation’s primary statutory focus on rehabilitation was
lost, when ACC considered Mr Terry’s entitlements in 2011.
[60] Once Dr Walls had completed his initial assessment (and it appears that he attended on Mr Terry for 20 minutes to do so) ACC accepted his somewhat guarded report, which highlighted the difficulty he had in making a retrospective assessment of Mr Terry’s work capacity from 2006. He himself said, that his assessment was “rather arbitrary.” This is no reflection on Dr Walls. When ACC received his report and accepted his assessments for the various time periods between 2006 and 2008, it was incumbent on ACC to obtain a vocational rehabilitation assessment, as the Act provides in s 89. In that way, if Ms Hart had been asked to provide a range of suitable types of employment for Mr Terry, Mr Terry could then have been assessed again in light of those jobs, complete with his comments, by Dr Walls and a proper individual rehabilitation plan could have been prepared and followed through to enable Mr Terry to enter the workforce appropriately.
[61] What the process reveals however is that once the reviewer quashed ACC’s first decision in 2011, ACC then approached Ms Hart and Dr Walls, in a “de facto” s 89 exercise, without asking Dr Walls to engage with Mr Terry on Ms Hart’s assessments and updating Mr Terry’s individual rehabilitation plan, as the Act envisages and requires. The process became complicated by the confused way in which ACC seemingly sought to invoke the procedures under s 89 of the Act, without giving Mr Terry the benefit of weekly entitlements and proper vocational rehabilitation assistance to realistically undertake the types of work identified by Ms Hart, or alternative occupations.
Conclusion
[62] In summary, I consider the process adopted by ACC was flawed because:
(a) ACC’s first decision of 22 July 2011 was a dual decision, granting Mr Terry cover for weekly compensation to October 2008 and declining any future payment or entitlement. Having granted cover, ACC was obliged to determine Mr Terry’s need for a rehabilitation plan and update his individual rehabilitation plan under ss 75, 77, 78 and 89 of the Act.
(b)Instead of obtaining a vocational rehabilitation assessment in 2011, ACC relied on Dr Walls “rather arbitrary” retrospective medical assessment to disentitle Mr Terry from receiving weekly compensation. ACC overlooked the caveats Dr Walls inserted in his reports and missed the statutory requirement on ACC, to engage in the vocational rehabilitation processes under the Act.
(c) ACC sought an assessment from the orthopaedic surgeon on Mr Terry’s medical recovery and asked him to “comment” on Mr Terry’s fitness for work in relation to specific jobs for the period
1 November 2008 to 2010, when Mr Chan did not have the expertise to do so and relied on a retrospective assessment by Dr Walls from
2006 to 2008.
(d)Three subsequent medical reports from Dr Walls were completed, without seeing Mr Terry to assess his capacity to work in the identified types of work, in 2012, let alone from 2008.
(e) ACC sought assessments from Ms Hart and Dr Walls without an updated individual rehabilitation plan, which is contrary to s 77(3)(b). In light of its grant of cover to Mr Terry till 1 November 2008, ACC should have followed the procedure under s 89. In purporting to undertake such assessments in relation to the second decision, they were obtained without a rehabilitation plan, contrary to the statute.
Neither assessment was used by ACC for the purpose of assessing Mr Terry’s vocational rehabilitation needs, contrary to the Act’s purposes and as required under s 89.
Section 50 claim and retrospectivity
[63] Under s 50 of the Act, ACC has responsibilities to a claimant once a claim has been lodged. These responsibilities include deciding whether or not to accept if a claimant has cover and, if they do have cover, to provide information about and facilitate the claimant’s access to those entitlements.53
[64] ACC rejects Mr Terry’s contention that it did not meet its responsibilities under s 50 of the Act, because the claim file contains references to potential entitlements and they were discussed with Mr Terry’s father.
[65] ACC submits that the retrospective determination that Mr Terry was not entitled to loss of earnings payments as of 1 November 2008 had a flow-on effect in terms of his entitlements to vocational rehabilitation. ACC submits that Mr Terry was entitled to and did receive loss of earning payments prior to 1 November 2008. However, because of the retrospective nature of this claim, any entitlement to vocational rehabilitation was lost before it had been claimed.
[66] In any event, ACC contends that Mr Terry benefited from the retrospective nature of the assessment. He received weekly compensation to 1 November 2008, when, if a vocational assessment had been undertaken, he may not have qualified to receive such payment or his payments may have been abated.
[67] Mr Terry submits that the retrospective nature of ACC’s decision could not be
used to deny the appellant rehabilitation, such as a formal work trial or training.
[68] For reasons that I have canvassed above, I consider that ACC did purport to obtain assessments for the purposes of assessing Mr Terry’s vocational rehabilitation needs as prescribed in s 89. However, these were not part of a rehabilitation plan,
which should have been updated, and I do not accept that the retrospective nature of
53 Accident Compensation Act 2001, s 50(1).
Mr Terry’s claim, namely making a claim for weekly entitlements post 1 November
2008, disentitles him to vocational rehabilitation. This matter is further canvassed
under the second question regarding the factors in the District Court’s decision.
Conclusion
[69] ACC’s process in making its determination that Mr Terry was no longer incapacitated to engage in work from 1 November 2008, was flawed.
Question two: Did the District Court fail to take into account relevant considerations in relation to the s 105 assessment and therefore did it err in finding that it was open to ACC to find that Mr Terry had capacity from
1 November 2008?
[70] In addressing this question, it is important to note that the submissions and grounds of appeal that were canvassed before Judges Walker and MacLean, differ markedly to those addressed in this appeal hearing. The process followed by ACC and the statutory requirements set out under question one were not the subject of the same arguments before Judge Walker. It follows that, because of my finding that ACC’s process was flawed in reaching its finding that Mr Terry had capacity from
1 November 2008, the District Court erred in upholding ACC’s decision (and the
Reviewer’s decision in November 2012) as reasonable.
[71] For completeness however, I set out the submissions received in relation to this ground.
The District Court was wrong to hold there was no expert medical opinion that
contradicted the evidence of the respondent’s experts
[72] Mr Terry submits that the District Court misapplied the requirements set out in ss 54 and 117 of the Act, and the test for reasonable decisions as characterised by Mallon J in Ellwood.54 Specifically, Mr Terry submits the District Court was wrong to conclude there was no evidence that contradicted the evidence of ACC’s experts.
[73] ACC rejects this, submitting the evidence strongly supported ACC’s determination about capacity. Further, ACC submits that the District Court’s
54 Ellwood, above n 8.
decision, that ACC had a reasonable basis for determining Mr Terry was no longer incapacitated and not entitled to compensation, was open to it on the facts.
[74] Section 54 of the Act requires that all ACC decisions must be made on reasonable grounds. Section 117 sets out the grounds upon which ACC may suspend, cancel or decline entitlements to a claimant.
[75] In Ellwood, Mallon J held that where entitlements under the Act were to be suspended or cancelled, ACC must first be satisfied there is a reasonable basis for a claimant to no longer qualify. The District Court had preferred the medical evidence of ACC’s experts that Mr Ellwood’s pain was caused by degenerative disease, as opposed to the evidence of experts consulted by Mr Ellwood, who said that his pain was the result of nerve damage from earlier accidents which rendered him unduly susceptible to pain from other incidents. The cause of Mr Ellwood’s pain went to the central issue of whether Mr Ellwood was eligible for entitlements under the accident compensation legislation.
[76] In Ellwood, the Judge was dealing with ss 62 and 116 of the Accident
Insurance Act 1998, which are equivalent provisions to ss 54 and 117 under the 2001
Act. In making her findings, the Judge held:55
I therefore consider that s 116 combined with the requirement in s 62 on ACC to make reasonable decisions requires ACC to have a sufficient basis before terminating benefits. If the position is uncertain then there is not a sufficient basis.
[77] The Judge held ACC could not be satisfied there was a sufficient basis that Mr Ellwood had no right to entitlements under the Act, as required by s 116. The evidence left the position unclear and the decision was, therefore, unreasonable. Further, the Judge also held that the District Court’s reasons did not provide a rational basis, or reasons consistent with the facts, for preferring one set of experts
over the other.56
55 At [65].
56 At [35].
[78] In the present case, the District Court held that on the balance of probabilities and in light of the Ellwood test, it was not persuaded ACC’s decision was unreasonable or wrong.57 The Judge commented “there is essentially no countervailing expert medical opinion to contradict that of the experts engaged by the respondent”, highlighting that Mr Terry only pointed to his own personal assessment, which would not overcome the medical assessments conducted.58 The Judge noted that the medical certificates supplied by Mr Terry’s GP “seem slightly ambivalent.”59 In making this assessment, the Judge accepted the retrospective medical assessments conducted by ACC, and Dr Walls in particular, commenting:
[48] In fact Dr Walls in his first assessment carried out a fairly comprehensive overview on the information then available to him based on the unsatisfactory reality that it was always a retrospective analysis.
…
[50] The reality is that even though it was a backdated assessment Dr Walls did in fact posit a graduated reintroduction to work. By the time of his third report which is material available to this Court as opposed to what the reviewer had he had a total picture of the whole situation.
[79] As discussed at paragraph [53] above, there was a significant amount of evidence indicating Mr Terry remained incapacitated as at 1 November 2008, illustrating that ACC could not have been reasonably satisfied of a basis to suspend Mr Terry’s weekly compensation under s 117 of the Act.60 Counsel points to medical evidence of Dr Walls, Dr Watts, Dr Foster and Mr Chan which indicate Mr Terry was suffering ongoing pain and was unsuccessful at gaining employment as well as
highlighting the need for rehabilitation or graduated return to work programmes. Mr Terry also disputes that he was able to perform the specific jobs listed by Ms Hart and Dr Walls, when there is clear medical evidence of the ongoing pain he suffered.
[80] The District Court’s attention was not drawn to the dual decision of ACC on
22 July 2011 and the statutory process to be followed, once Mr Terry’s claim was
accepted. The District Court accepted that the retrospective medical assessments carried out in 2012 could form a basis for disentitling the appellant to weekly
57 Terry, above n 1, at [54]–[55].
58 At [35].
59 At [35].
60 See paragraph [54] of this judgment.
compensation. However, a s 89 vocational rehabilitation assessment should have been obtained in July 2011, as Mr Terry was entitled to receive weekly compensation at that time. Mr Terry did not attend the assessments and was given no opportunity to provide input into determining which jobs or professions were medically suitable for him. As identified above, the assessments did not meet the requirements of an assessment of vocational rehabilitation needs under s 89 of the Act and was an “arbitrary” basis for a finding of incapacity under s 105(2).
[81] Because of the flawed process, I find there was no reasonable basis for weekly compensation to have been suspended. The District Court also erred in holding there was no expert medical opinion that contradicted ACC’s experts and that the evidence of ACC’s experts clearly demonstrated Mr Terry’s capacity.
The District Court misunderstood s 87 when finding it was too late for Mr Terry to be provided with vocational rehabilitation
[82] Mr Terry submits the District Court misinterpreted the restriction in s 87 of the Act on the time limit for vocational rehabilitation. The Judge held that vocational rehabilitation could not be provided because the three year period under the Act had expired on 1 May 2009. The District Court interpreted the three year period as beginning from the date of the covered injury.
[83] While there is a discretion to extend the period for providing vocational rehabilitation, the Judge highlighted that the matter was complicated by its retrospective nature. The Judge noted that even though it was a backdated assessment, “Dr Walls did in fact posit a graduated reintroduction to work” and that his first report “would have provided a basis for preparing some form or
rehabilitation plan be it work trials or the like”.61
[84] Mr Terry challenges this interpretation. He submits that under s 87(2), time starts from the first occasion vocational rehabilitation is provided and is a cumulative assessment. The three year period is a limit that is measured in terms of a period over which vocational rehabilitation is provided. As Mr Terry was not provided with
any vocational rehabilitation, his entitlement is not restricted by s 87.
61 At [46] and [50].
[85] On an ordinary, plain meaning interpretation of s 87(2), ACC “must not provide any vocational rehabilitation for longer than 3 years”. This means that the vocational rehabilitation can be provided for a three year period and is not restricted to only being provided for three years following the date of the covered injury.
[86] This is further supported by the fact that s 87(2) requires ACC to provide vocational rehabilitation for the minimum period necessary to achieve its purpose, namely, to help a claimant to maintain or obtain employment, or to regain or acquire vocational independence.62 That purpose cannot be achieved, if vocational rehabilitation has not even started for a claimant. I uphold Mr Terry’s submission.
[87] The District Court misinterpreted s 87 of the Act by wrongly interpreting the three year period to be a time limitation, in its application to Mr Terry. While work trials or a graduated reintroduction to work were mentioned in the reports obtained, vocational rehabilitation had not in fact taken place. The time period of three years had not started to run.
ACC’s failure to adhere to s 50
[88] The District Court took the view that the need for retrospective assessment lay partly with Mr Terry, implying that his detachment from the process was responsible for his entitlement to weekly compensation not being assessed earlier.63
Mr Terry submits that the Judge used this, in part, to justify accepting ACC’s
retrospective assessment.
[89] Further, Mr Terry submits ACC failed to comply with their duty under s 50(1)(b) of the Act to inform the claimant of possible entitlements and to facilitate access to those entitlements. If ACC had performed this obligation, there would have been no need for retrospective assessment.
[90] ACC submits that the contention that it did not meet its responsibilities under s 50 of the Act is not supported by the evidence. ACC notes that the claim file
illustrates the following communication about entitlements:
62 Accident Compensation Act 2001, s 80; and Todd, above n 12, at [3.2.04].
63 Terry, above n 1, at [46].
(a) an introductory letter with information about entitlements was sent to
Mr Terry once his claim was accepted on 2 May 2006;
(b) ACC discussed entitlements with Mr Terry’s father on 23 May 2006;
(c) a follow up letter was sent on 23 May 2006 along with information about recovery and development of an individual rehabilitation plan;
(d)Mr Terry completed a Request for Assistance form on 23 May 2006. which lists the type of assistance available;
(e) an individual rehabilitation plan was agreed to and signed by Mr Terry on 20 June 2006;
(f) Mr Terry’s progress was subsequently monitored, with a successful return to school and discharge from the spinal clinic; and
(g)on November 2006, following a conversation with Mr Terry, the file was closed given the specialist advice and indications from Mr Terry at the time.
[91] On examination of the documents, the “information” provided to Mr Terry was unclear. The material sent to Mr Terry makes only general references to entitlements. The introductory letter of 2 May 2006 appears to be a pro-forma response to a claimant and states:
What Happens Next?
If you have already recovered from your injury, you should keep this letter in case you need any help with this injury in the future. If you need more help now, you should read the back of this letter to find out more about the help that ACC can provide. If you need this help, or if you have any questions, please call ACC on 0800 101 996.
Your Injury and Work
If your injury will keep you off work for more than one week, please call us so that we can arrange compensation for loss of earnings.
…
[92] The follow up letter sent on 23 May 2006, although more specific to Mr Terry’s situation, still only provided general information about his entitlements and social rehabilitation. Nothing about vocational rehabilitation was mentioned:
Dear Hamal Terry
ACC Assistance
Further to my telephone conversation with your father today I enclose an information pack ‘Your Guide to Recovery’… I also enclose the ‘Working Together Leaflet’ for your information. Included in the pack is information regarding the development of an Individual Rehabilitation Plan. I would be grateful if you (or your father with your permission) would contact me to discuss this…
In addition to any rehabilitation advised by your medical team I would like to refer you for a Social Rehabilitation Assessment which will also help identify your rehabilitation needs. This would involve an assessor contacting you at home and arranging a visit.
…
[93] The request for assistance form, which Mr Terry completed on 23 May 2006, lists the type of assistance available in general terms as follows:
Types of assistance available: medical treatment, elective surgery, return to work support, travel costs, lump sum for permanent impairment, independence allowance, home help, child care, personal care, weekly earnings compensation, equipment provision, home modifications, education support and training for independent living. Attach any medical certificates, accounts, receipts or other proof that you have to support your claim.
[94] The individual rehabilitation plan that ACC prepared and Mr Terry signed on
20 June 2006 included the following information:
Outcome to be Achieved: Pre-injury functioning in daily living activities
…
Timeframed Interventions
ACC will obtain medical notes from your GP and or Specialist involved with your recovery. The purpose of this is to obtain their medical treatment plan to assist you [sic] recovery and return to work and to confirm what your current and ongoing diagnosis is.
ACC will arrange a Social Rehabilitation Assessment and arrange appropriate services to support your rehabilitation.
…
[95] Before ACC closed Mr Terry’s claim file, there is a reference in his file notes
as to ongoing pain when he had almost finished school. An entry on 20 November
2006 notes:
CLAIMANT CONTACT; spoke to Hamal for an update, he said the taxis didn’t work very well so he has now returned to using the bus and only has to attend for exams now. He is not sure what he will do next, he may enrol on a course but needs to get the money for that. He still gets pain and has not yet been discharged by his specialist. Advised as no active involvement at this time will close case however advised to contact ACC if he needs help in the future. Also discussed Lump sum application if he feels this is appropriate once injury fully stabilised.
[96] The letter sent to Mr Terry closing his file again made general references to future support if needed:
Dear Hamal Terry
CASE CLOSURE
Further to our telephone conversation on 20/11/2006, confirming [no] active involvement required at this stage I will now close your file. Should you experience difficulties in the future please do not hesitate to contact ACC and we will advised of any further entitlements at that time.
I will close your file and wish you all the best for the future.
…
[97] ACC did not continue to facilitate access to his entitlements. While there are references made to return to work or work assistance, these are fleeting and the focus of ACC appears to concentrate on Mr Terry’s recovery and social rehabilitation, including his ability to perform daily activities, rather than on his employment after leaving school.64 ACC’s communication was at a general level and Mr Terry was not made aware of his entitlements relating to employment or loss of potential earnings for him specifically.
[98] In his claim, Mr Terry highlights that he enquired about his entitlement to loss of potential earnings in December 2009. This enquiry triggered the assessments
64 Under s 79 of the Act, the purpose of social rehabilitation is to assist in restoring a claimant’s independence. Section 81(1) of the Act defines the key aspects of social rehabilitation as including attendant care, child care, education support, home help, modifications to the home as well as training and transport for independence. These terms are further defined in cl 12 of sch 1 of the Act.
and process currently being considered, and resulted in Mr Terry being retrospectively eligible for weekly compensation from 15 December 2006 to
31 October 2008. It was inappropriate for Mr Terry to be impliedly blamed for his later claim, when the specific entitlements were not explained properly and were not adequately set out in writing.
Failure to take into account relevant considerations
[99] In light of my findings in answer to question one, I find the District Court failed to take into account relevant considerations namely, the statutory process that should have been followed once Mr Terry received cover for weekly payments. The Court did not consider the contrary evidence in the medical reports about Mr Terry’s pain and ability to undertake work, or that his responses to Ms Hart about his ability to undertake specific jobs were ignored by ACC, including the need for vocational rehabilitation or graduated entry into work.
Result
[100] The appeal is allowed for the following reasons:
(a) Mr Terry has an entitlement to weekly compensation under the Act from 1 November 2008;
(b) ACC’s determination under s 105(2) of the Act on 12 November
2012, that Mr Terry was no longer incapacitated, was flawed, because ACC failed to update Mr Terry’s rehabilitation plan and did not follow the statutory procedures under ss 75, 78, 80, 87 and 89, once ACC accepted Mr Terry had cover under the Act; and
(c) the District Court failed to take into account relevant considerations in relation to the s 105 assessment, and therefore did err in finding it was open to ACC to find Mr Terry had capacity from 1 November 2008.
[101] The decision as to Mr Terry’s capacity as at 1 November 2008 is remitted
back to ACC to be remade in light of these conclusions. The decision is remitted to
ACC rather than the District Court as it is likely new medical evidence will need to be obtained and further assessments made to re-determine Mr Terry’s claim.
[102] Costs are to be awarded on a 2B basis. Counsel to file subsequent memoranda if necessary.
Cull J
2