Perkins v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 1 9 /2000 Appeal No. DCA 225/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ANDREW HAYES PERKINS Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD at WELLINGTON on 28 October 1999 DATE OF DECISION: 9 February 2000 APPEARANCES Appellant on his own behalf Ms S L Scott, counsel for respondent RESERVED JUDGMENT OF JUDGE P F BARBER The Issue I need to decide whether the appellant is entitled to vocational rehabilitation assistance from the respondent. Background The appellant has had a number of claims with the respondent. These include a serious head injury suffered in a car accident on 10 April 1981, and a serious back injury sustained on 5 March 1987 when the appellant was hit by a motor vehicle on a 2 pedestrian crossing, and a motorcycle accident in 1995. When the first injury occurred he had been about to undertake studies to become a civil engineer. The appellant seems to have made a number of commendable efforts to retrain at various occupations. However, he is unable to pay for retraining courses and is outraged that the respondent will not fund them. On 22 March 1987, the respondent had issued a decision under s.60 of the Accident Compensation Act 1982. That decision recognised that the appellant had a permanent incapacity for employment and enabled him to continue to receive weekly compensation until he reaches national superannuateon qualification age. That entitlement to the s.60 allowance continues notwithstanding any improvement in the appellant's condition or a subsequent capacity for work. Indeed, it is possible for a s.60 claimant to receive earnings from employment, as well as earnings related compensation for permanent incapacity, without having those earnings abate. On 11 May 1998 a decision was issued on behalf of the respondent declining vocational rehabilitation assistance for the appellant. In early February 1999 the appellant again requested such assistance. He sought that the respondent pay his fees of $2,069 to attend a Motor Bodies Trades course. On 4 February 1999, the appellant's Case Manager advised that the respondent was unable to fund that course because the appellant had no entitlement to vocational rehabilitation. The reasoning was the same as that contained in a letter from the respondent of 11 May 1998. The appellant took that decision to review. Mr P Barker, Review Officer of Lower Hutt, issued a decision dated 26 April 1999 which seems to me to be correct. That is the decision now appealed from. It is helpful that I set out the following extracts from Mr Barker's decision, namely: "What led to this review? Mr Perkins has had a number of accidents since 1981 in which he has suffered a serious head injury, fractured limbs, and a back injury. He was assessed in 1987 as permanently incapacitated under Section 60 of the Accident Compensation Act 1982 and is in receipt of permanent weekly compensation. In January 1999 Mr Perkins was accepted for Motor Bodies Trades course at Hutt Valley Polytechnic. The cost of the course was $2069.00. Mr Perkins requested funding from the Corporation. In a decision dated 4 February 1999 the Corporation advised Mr Perkins that funding had been declined. The letter advised that vocational rehabilitation could be provided under Section 22 but, as he was not receiving weekly compensation, he did not qualify for assistance. It is that decision that forms the basis of this application for review. . . . 3 Relevant Law Section 22 of the Act provides for vocational rehabilitation where a person is in receipt of weekly compensation under Sections 38, 39, 44, 45, or 46. Section 23 provides that vocational rehabilitation can be provided where it is considered appropriate in the circumstances or it is expected to be cost effective. Section 60 of the Accident Compensation Act 1982 provided for the assessment of permanent incapacity. Assessment could be undertaken once it was determined that all practical rehabilitation interventions had been made and the medical condition has stabilised. Once assessed, the amount cannot be decreased by reason of an increased earning capacity. Payments under Section 60 of the 1982 Act transitioned to the 1992 Act via Section 141. Section 141 protects the rights of a person assessed under Section 60. Decision Details Firstly, Mr Perkins has submitted that he had verbal approval from the Corporation for the cost of the course. However, the Corporations records do not indicate this. There is a record indicating that the Corporation may assist with a referral to Workbridge for vocational guidance, but that is not indicative of any agreement to fund the cost of the Motor Trades course. In any event, it has been noted by the Courts on many occasions that the Corporations liability is based upon the Act rather than the actions of its officers. Therefore I must consider whether there is any entitlement to vocational rehabilitation assistance for Mr Perkins in terms of the Act. Mr Perkins is in receipt of weekly compensation assessed under Section 60 of the 1982 Act and transitioned under Section 141 of the 1992 Act. That assessment was made some years ago and is not capable of review now. He is not receiving payments under any of the Sections specified in Section 22. On this basis he cannot be entitled to vocational rehabilitation assistance from the Corporation as his case does not fit within the objectives of Section 22. It is also notable that his level of weekly compensation cannot be decreased should his earning capacity or actual earnings increase. As noted in Section 23, the Corporation may fund vocational rehabilitation where it is financially cost-effective. To be cost effective there must be some future saving of expenditure. There can be no saving from vocational rehabilitation as Mr Perkins level of payment will not be decreased should he obtain employment following the completion of the course. For this reason also he cannot be entitled to assistance with vocational rehabilitation. Much as it is commendable that Mr Perkin's is seeking to gain the ability to return to the workforce he must accept that the Corporations 4 responsibilities in that regard ceased when he began receiving his compensation under Section 60. The application for review is unsuccessful." Relevant Provisions of the Act Mr Barker refers to these in the above extracts but there was also reference to ss.89(5) (time for applying for review) and 138 (continuing of weekly compensation under present Act) of the Act and it is helpful to set out s.23(1): "23. Provision of or payment for vocational rehabilitation---(1) Subject to subsection (2) of this section and to any direction for the time being in force under section 159 of this Act, the Corporation may make any provision of or payment for vocational rehabilitation if it considers it appropriate in the circumstances and the provision or payment is expected by the Corporation to be cost-effective." Reasons for Decision It was not easy to comprehend the arguments covered by the appellant but, essentially, his grievance is that he would like to return to the workforce, is interested in various occupations, but cannot afford the fees to be retrained for any of them. Understandably, he finds this extremely frustrating. He considers that he should receive funding assistance for that purpose from the respondent. I have already indicated that one can only agree with Mr Barker's reasoning set out above which concluded that the appellant cannot succeed. However, I have also been provided with very helpful typewritten submissions from Ms Scott by way of refinement of the situation. Since I agree with them, I shall incorporate them into my reasoning below. The appellant is endeavouring to appeal a perceived decision of the respondent recorded in its letter of 4 February 1999. However, the respondent had already issued its decision that the appellant was not entitled to any vocational rehabilitation assistance in its said letter of 11 May 1998. There was no application for review in respect of that May 1998 decision. I agree that at any one time there can only be one primary decision in respect of any particular entitlement. I agree with the way Judge Beattie puts it in Hull (decision no. 249/97), namely: "There can only be one decision at any time on any particular claim or entitlement under the Act. When that decision has been made, that is it until such time as it may be revoked, revised or amended whereupon it becomes a new decision or as the Corporation is known to describe it, a "fresh" decision... It would have been open to the Corporation if it had considered it appropriate, to make a decision pursuant to s. 67A and reintroduce weekly 5 compensation for the appellant. Such a decision would undoubtedly be a fresh decision with review rights. In contrast to that the mere reassertion of the status quo cannot be said to be a fresh decision, either under s. 67A or under general principles, affecting rights within the meaning of s.89." The decision made on 11 May 1998 was that the appellant was not entitled to vocational assistance. That decision has not been revised, amended or revoked. It remained in force at the time the appellant renewed his application for vocational assistance. That renewed application was responded to by the respondent in its said letter of 4 February 1999 which was simply a reiteration of its earlier decision. It is quite irrelevant that the respondent mistakenly included a statement about the appellant having review rights in its letter of 4 February 1999. That cannot create review rights where they do not exist and, certainly, does not alter the fact that the letter of 4 February 1999 was not a new primary decision capable of review. The appellant had an opportunity to review the primary decision of 11 May 1998 but did not exercise that right. The law is clear that there is no discretion to accept applications for review outside the three month period set out in s.89. (see Zehnder 73/95, ABC4 30/96; Campbell 90/96 and Swann 47/97). The Review Officer does not seem to have been aware of the earlier decision of 11 May 1998. He did not have jurisdiction to consider the review, but I agree with his findings on the substantive issue. This case is analogous to the situation in Nelson Marlborough Health Services (Mckenzie) (Decision No 25/99) where the respondent had made a mistake in including review rights in a letter when a primary decision had been made on the claim some months previously. In that case, Judge Middleton found that the inclusion of review rights was unfortunate and that while the Review Officer had issued a decision on the claim, he had had no jurisdiction to do so. The present case is before this Court in very similar circumstances. In any case, I consider that the decision to decline vocational rehabilitation was correctly made by the respondent in this case. The respondent obtained compensation under s.60 of the 1982 Act in respect of his 1987 injury. Compensation is awarded under this section to claimants who have suffered a serious injury which has resulted in a permanent loss of earning capacity. Compensation is only made under this provision when the respondent is satisfied that the injury has stabilised and all practicable steps had been taken towards retraining and rehabilitation. Therefore, a decision made under s.60 has the effect of determining that rehabilitation is complete and that the respondent has no further obligation in this regard. The appellant has never disputed his right to receive compensation under this provision and has not lodged an application for review in this regard. Once a claimant is assessed as having a permanent incapacity under s.60, he or she is exempt from further assessments of incapacity and remains entitled to the full allowance, even if his or her condition improves or he or she returns to work. In other words, the compensation payable under that section is not affected by whether 6 or not a claimant is able to return to work. There is no abatement of earnings as there is for a person receiving compensation under other sections of the 1982 Act or the 1992 Act. A claimant receiving compensation under s.60 of the Act has a permanent entitlement until the age cessation provisions take effect. Accordingly, the determination that the appellant had completed his rehabilitation (and therefore was entitled to s.60 compensation) prevents the respondent from providing further rehabilitation. The appellant cannot then come within the terms of s.22, as Mr P Barker explains in the above extracts from his decision as Review Officer. In any case, the respondent is prevented from providing vocational rehabilitation under s.23 of the 1992 Act. Section 23 makes it clear that the respondent has a discretion to provide vocational rehabilitation only if the rehabilitation is expected by the respondent to be cost effective. In the present case it would not be cost effective to provide rehabilitation because the appellant will continue receiving full s.60 compensation notwithstanding any improvement in his earning potential. While I find the desire of the appellant to somehow retrain and join the workforce as most commendable, regrettably, his appeal cannot succeed at law. Accordingly it is hereby dismissed BeRe Judge P F Barber District Court Judge WELLINGTON dca225-99.doc (nr)