Jones v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 342/2004 IN THE MATTER of the Injury Prevention, Rehabilitation & Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ANGELA JONES (AI 112/04) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 21 September 2004 APPEARANCES Mr A Cadenhead, Counsel for Appellant. Mr H Evans, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the respondent’s decision of 19 March 2003, whereby it determined that the appellant had attained Vocational Independence within the meaning of Section 8 of the Act. [2] It is Counsel for the Appellant’s contention that the Occupational Assessment required to be carried out in accordance with Section 108(2) of the Act has been carried out in a manner which does not comply with that provision. He submits therefore, that it is fatally flawed and the respondent’s determination cannot stand. [3] The background facts relevant to the determination of the issue in this appeal may be stated as follows: • In May 1996 the appellant, then aged 29 years, suffered an injury to her chest in the course of her employment as a packer with Talley’s Fisheries. 112.04 (pg) 2 • The injury to the appellant’s sternum caused her to be incapacitated and she began receiving weekly compensation. It is the case that the appellant’s condition has now progressed to that of fibromyalgia • In June 2002 the appellant entered into an Individual Rehabilitation Plan (IRP). It stated as the outcome to be achieved “regain an ability to work”. • The time-framed interventions referred to in that Plan were for the appellant to undertake an initial Occupational Assessment and an initial Medical Assessment, together with a short computer course to improve her computer skills and increase her job opportunities. • An initial Occupational Assessment was carried out by Employment Plus Limited and seven work type options were identified, in order of priority, that may be appropriate for the appellant. (i) Shop assistant. (ii) Receptionist (iii) Telephonist. (iv) Call Centre Operator. (v) Secretary. (vi) Teacher’s Aide. (vii) Nanny. • An initial Medical Assessment was carried out on 28 June 2002 by Dr D J Jones, and he identified that in his opinion the appellant was medically able to sustain four of those work options for 35 hours a week, namely – (i) Receptionist. (ii) Telephonist. (iii) Call Centre operator. (iv) Secretary. • In January 2003 the respondent determined to refer the appellant for assessment for Vocational Independence. 112.04 (pg) 3 • On 16 January 2003 a Vocational Independence Occupational Assessment was carried out by Steve Berry, Consultant, and the Assessor identified eight work types which he considered as suitable for the appellant, namely – (i) Sales Person and Demonstrator. (ii) Telephone Switchboard Operator. (iii) Secretary. (iv) Education Associate Professional. (v) Administration Manager. (vi) Heavy Truck Driver. (vii) Office Clerk. (viii) Car Taxi and Light Van Driver. • A Medical Assessment was carried out on 24 February 2003 by Dr David Hartshorn, and he reported that in his opinion the appellant had a current work capacity for 35 hours or more per week in the following work types: (i) Secretary. (ii) Education Associate Professional. (iii) Office Clerk. • Consequent upon those two Assessment Reports, the respondent by its agent Catalyst, did, by decision dated 19 March 2003, advise the appellant that it had been determined she had attained Vocational Independence within the meaning of the Act and that her weekly compensation would thereupon cease in three months. • The appellant sought a review of that decision and a review hearing took place on 21 January 2004. For the purposes of that review the appellant introduced a report from Vocation NZ relating to the Occupational Assessment. The respondent introduced a response from Mr Berry to that report. • In a decision dated 16 February 2004 the Reviewer preferred the evidence of the two assessors and also found that the report from Vocation NZ could 112.04 (pg) 4 not be regarded as a competing assessment. The respondent’s decision was therefore confirmed. • For the purposes of the appeal a further report from Vocational NZ has been introduced by the appellant. [4] As earlier noted, Counsel for the Appellant has submitted that the Occupational Assessment is flawed, both in fact and in law. For this reason, therefore, I now set out the facts which are relevant in this particular issue. [5] It is the case that the appellant has had no formal education or training other than to Fourth Form level at High School. The appellant left school at aged 15 whilst in the Fourth Form. [6] The appellant’s work experience from leaving school consisted of working as a ticket collector at the Kaikoura Community Theatre and then, for a period of eighteen months, as a general labourer for the Kaikoura County Council. She then undertook seasonal fruit picking in the Blenheim area for some years before marrying and having two children. She re-entered the workforce at the beginning of 1995, working at Talley’s where her husband was also employed. Her position at Talley’s was that of a packer. The only other type of employment which the appellant had had, prior to Talley’s, was for a short period in a fish and chip takeaway bar. [7] The only qualifications or training which the appellant has had since the commencement of her incapacity was a ten week step-by-step computer training course. This was carried out in accordance with the provisions of her IRP. She has also obtained a Heavy Traffic Licence. [8] It is against that background that Mr Cadenhead made the following submissions: (i) The vocational options of Educational Associate Professional and Office Clerk cannot stand, as neither job option had previously been identified in the appellant’s IRP. (ii) The employment option of Secretary cannot be sustained as the appellant does not have the skills or experience to fulfil the requirements of this option in its generic description.. 112.04 (pg) 5 [9] The first of Mr Cadenhead’s submissions is one which the Court has not been called upon to confront head-on hitherto since the Injury Prevention, Rehabilitation and Compensation Act 2001 came into force. Therefore, in order to put that submission into perspective and context, I set out the particular provision which Mr Cadenhead refers to and also other provisions of that Act and its predecessor, The Accident Insurance Act 1998, where comparisons can be drawn. [10] Section 3 of the Injury Prevention, Rehabilitation and Compensation Act 2001 sets out its purposes, which for the purposes of this appeal can be identified as stating: “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 when 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 practical extent the claimant’s health, independence and participation.” That primary focus on ‘rehabilitation’, is in two parts, namely, social rehabilitation and vocational rehabilitation. It is the latter with which this appeal is concerned. [11] Section 85 places a responsibility on the respondent to provide vocational rehabilitation to a claimant who has suffered personal injury, and is entitled to weekly compensation or is likely, unless he/she has vocational rehabilitation, to be entitled to weekly compensation. [12] Section 86 then sets out a hierarchy of considerations in determining whether to provide vocational rehabilitation. [13] The Act then provides for an assessment of a claimant’s vocational rehabilitation needs and its purpose is to identify the types of work that may be appropriate for the claimant. Similarly, the initial Medical Assessment is to be carried out to determine whether the types of work identified under the initial Occupational Assessment are, or are likely to be, medically sustainable for the claimant. 112.04 (pg) 6 [14] It was as a consequence of the initial Occupational Assessment and the initial Medical Assessment that Dr Hartshorn identified the work type options of Receptionist, Telephonist, Call Centre Operator and Secretary as being more likely to be medically sustainable for the appellant. It was therefore those four work options that were embodied in the appellant’s IRP in terms of those statutory provisions. [15] The next step along the way is the determination of Vocational Independence in accordance with Sections 107-110. Section 107 requires the claimant to participate in an assessment consisting of an Occupational Assessment and Medical Assessment. Section 107(3) states: “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 focussed 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.” That purpose then proceeds on to Section 108 (2) which states: “The purpose of an Occupational Assessment is to — (a) Consider the progress and outcomes of vocational rehabilitation carried out under the claimant’s Individual Rehabilitation Plan; and (b) consider whether the types of work, (whether available or not) identified in the claimant’s Individual Rehabilitation Plan, are still suitable for the claimant because they match the skills that the claimant has gained through education, training, or experience." [16] Clause 25 of Schedule 1 to the Act sets out the conduct of the Occupational Assessment and states: “An Occupational Assessor undertaking an Occupational Assessment as part of an assessment of a claimant’s Vocational Independence under Section 108 must — (a) Take into account information provided by the Corporation and the claimant; and 112.04 (pg) 7 (b) consider the Individual Rehabilitation Plan prepared for the claimant and review the Vocational Rehabilitation carried out under the Plan; and (c) discuss with the claimant all the types of work that the Assessor identifies as suitable for the claimant; and (d) consider any comments the claimant makes to the Assessor about those types of work.” [17] Clause 26 then sets out what the Occupational Assessment must contain and included in the requirements are – “(e) the vocational rehabilitation that the claimant has received under the Individual Rehabilitation Plan or in any other way; and (g) all types of work reasonably identified as suitable for the claimant.” [18] These provisions can be contrasted with the comparable, but much briefer, provisions in the Accident Insurance Act 1998. As Section 94(2) of that Act states: “The purpose of an Occupational Assessment is to identify types of employment that are suitable for the insured because they match the skills that the insured has gained through education, training or experience.” [19] Whilst Part 3 of Schedule 1 to the 1998 Act provides for the preparation of an Individual Rehabilitation Plan and recognises the obligation of the Corporation to provide vocational rehabilitation, those requirements are within the framework of providing statutory entitlements to a claimant rather than attempting to fulfil a prime purpose of the Act. [20] A comparison of the 1998 Act and the 2001 Act clearly identifies the former as being an insurance based statute whose purpose is to ensure that persons who suffer injury have cover and entitlements and requires all persons in some manner to be covered by the Scheme. The purposes contained in Section 2 of the 1998 Act bear little relationship to the purposes enunciated in the 2001 Act, that latter Act being much more rehabilitation oriented, as can be seen from its stated object of having a primary focus on rehabilitation. 112.04 (pg) 8 [21] It is in furtherance of that goal that the Act provides for the carrying out of initial assessments to identify a claimant’s abilities, both occupational and physical, and to set a goal for achieving Vocational Independence. It was in furtherance of that goal that the appellant’s IRP identified the outcome to be achieved as “regain an ability to work”. [22] I find it to be the case that the initial Occupational Assessments is an extremely important first step in a claimant’s Vocational Rehabilitation, and that it is intended to identify the areas where an appellant’s skills, knowledge and experience can be directed and to identify where further training or skilling may be required in order to be equipped for the work types identified in the IRP and re-entry into the workforce. The Medical Assessment is equally important to identify the parameters of the types of work which the appellant could be expected to be able to carry out on a full-time basis. The two assessments must be seen as going hand-in-hand and it would be pointless to identify a potential work type which a claimant would not be physically capable of carrying out. [23] For this reason, therefore, I find that the purpose of the Occupational Assessment in the Vocational Independence Procedure is more specific than that previously provided under the 1998 Act (94(2)) and that specificity is quite clear from the provisions of Section 108(2)(b). It is the work types that have been identified in a claimant’s IRP which are to be the focus of the assessment and to identify whether those work types, which in the initial Vocational Assessment were identified as may be appropriate, were in fact appropriate. Those same work types which were similarly considered to be or likely to be, medically sustainable, were then to be determined whether they were medical sustainable or not. [24] The view I have taken in this case, I find, is wholly in accordance with the view expressed by His Honour Justice Miller in Weir v ACC (High Court, Wellington – CIV 2003–485–1921). In that decision His Honour was also required to consider the status of an IRP in relation to vocational rehabilitation. His Honour noted that the Corporation was liable to provide rehabilitation and the content of its obligation in any given case depended on whether the claimant needed rehabilitation, and if so, in what form. His Honour went on to note that the IRP must reflect an assessment of the claimant’s vocational rehabilitation needs and that the initial Occupational Assessment and initial Medical Assessment would inform the Corporation’s assessment of the claimant’s 112.04 (pg) 9 vocational rehabilitation needs for the purposes of the IRP to be prepared under Section 75 and Section 77 of the Act. [25] Another issue which was considered in that appeal was whether the appellant’s IRP complied with Section 77 of the Act. On the facts of that case, His Honour found that the IRP did not comply with the Act in that the goal of return to work or work readiness was adopted without benefit of any formal assessment under Section 77. [26] That finding highlights the need for vocational rehabilitation to be allied to an IRP and for that IRP to identify the claimant’s needs for rehabilitation and identify the assessments that need to be done. In the case of this appellant the end goal was to regain the ability to work and it must be taken that the terms and content of the IRP were to be the vehicle by which that object was to be facilitated. [27] Another relevant provision which further emphasises the interrelationship between the terms of the IRP, the provision of vocational rehabilitation and vocational independence is to be found in Clause 7(1)(d) of Schedule 1 to the Act, which states that the information which is to be provided in the Plan must include identification of the Corporation’s right to require the claimant to undergo an assessment of his or her Vocational Independence at the completion of the vocational rehabilitation. [28] In other words, when a programme of vocational rehabilitation is set out in the IRP or, as in the case of this appellant, certain work types were identified as being potentially suitable, then the claimant is entitled to receive vocational assistance so that any assessment of her Vocational Independence would be in accordance with the rehabilitation assistance she had received under her IRP. [29] It is, therefore, for the foregoing reasons that I find that it was not open to the respondent to make a determination of the appellant having Vocational Independence in the work types of Office Clerk and Education Associate Professional. Neither of those two work types was identified in the appellant’s IRP. The Occupational Assessor, Mr Berry, was aware of the work types identified in the appellant’s IRP. The first form which constituted his Occupational Assessment report listed the four work type options “identified in the IRP that were determined as appropriate for the claimant following the initial Occupational and Medical Assessments”. Nothing can be plainer than that. The Occupational Assessment must tie in with the IRP and the initial Occupational Assessment. 112.04 (pg) 10 [30] The work type of Secretary is in a different category as it was identified in the appellant’s IRP and was identified by both the Occupational Assessor and the Medical Assessor as being suitable for the appellant. [31] I take Mr Cadenhead to be taking no exception to the Medical Assessment but rather with the Occupational Assessment. [32] The Court has already noted the lack of formal education or training which this appellant has. In its critique of Mr Berry’s Occupational Assessment, Vocation NZ identified that secretaries need to have School Certificate English, although Sixth Form Certificate English, Typing and Computer Studies are preferred. It was noted that the appellant did not have this level of education or any equivalent post-school qualification. [33] In a reply to this critique, Mr Berry stated: “There are secretarial/personal assistant positions for small or basic operations (for instance, a small motel or perhaps a company with 1-5 employees) where such qualifications are not required.” [34] The only inference that can be taken from that comment is that the Occupational Assessor acknowledges that a certain level of English attainment is required but that in certain smaller type roles a secretary might not need that level of education. [35] The qualification which Mr Berry has placed on the work type of Secretary, I find, cannot enable it to be an acceptable work type option for the appellant. The jurisprudence which has evolved in this field makes it quite clear that the work types to be identified must be generic in nature, that is, be of general application rather than job specific and identify all the requirements that may be necessary in that particular work type. [36] I find that the fact that the appellant’s level of skills may be suited to a secretarial position in a small motel, or a company with 1-5 employees, is not sufficient for those skills to be within the generic requirements of the work type ‘Secretary’. I therefore find and rule that this appellant is not so suited, within the meaning of the Act, to the work type of Secretary. [37] The appellant has received no training in any of the various facets of secretarial work, save for an introductory course on computers, and her extremely basic level of 112.04 (pg) 11 education would indicate that further upskilling would be required before she could hold herself as being suitably qualified for such a position as a secretary. [38] In summary therefore, I find that the respondent’s determination that the appellant had attained Vocational Independence cannot stand and that determination is hereby quashed. The appellant is entitled to have her weekly compensation entitlement restored to her as from the date it was ceased. I also allow the appellant costs, which I fix at $1,750. DATED at AUCKLAND this 5th day of November 2004 M J Beattie District Court Judge 112.04 (pg)