Dekker v Accident Compensation Corporation

IN THE DISTRICT COURT AT PALMERSTON NORTH Decision No. 34/2002 AI 224/01 Under The Accident Insurance Act 1998 In the Matter of an Appeal Pursuant to Section 152 of the Act Between Arie Dekker Appellant And ACCIDENT COMPENSATION CORPORATION Respondent Appearances: A R V Rowlett for Appellant D M Kerr for Respondent Hearing: 26 November 2001 Judgment: 30 January 2002 RESERVED JUDGMENT OF JUDGE D A ONGLEY ON APPEAL [1] Mr Dekker was a self-employed brick and block layer who suffered a lumbar lesion in an accident in April 1987. Persistent back pain developed in 1997 and he was advised by his orthopaedic surgeon, Mr Jamieson, not to continue the heavy physical work to which he was accustomed. In April 1998 an individual rehabilitation plan was prepared with the stated outcome of maintaining Mr Dekker in his self-employed occupation as a bricklayer or to identify an alternative occupation. Part of the rehabilitation plan was to consider purchasing equipment such as a hoist to assist him in his current work. [2] A vocational assessment was carried out in November 1998 by a career consultant, Roger Peak. The vocational assessment addressed various options for Mr Dekker, including continuing with his self-employment possibly with extra part-time work or other work in order to supplement his income. The vocational assessment recorded that he was interested in building development options but was not interested in other occupations such as retail, tutoring or acting as a workplace assessor. He was advised to - 2 - engage in active job search and the assessment identified his marketable skills. A work- site evaluation was carried out by a physiotherapist in December 1998. It recommended that Mr Dekker increase the light or sedentary aspects of his business, reducing physical work to a maximum of two-thirds of the day and that he modify his activity at work to avoid lifting above the waist or carrying heavy loads. [3] Mr Dekker met with the Corporation staff on 11 May 1999 and the case manager’s note of the proceedings recorded that Mr Dekker did not seek a further rehabilitation assessment and that he was continuing to work in his own business a minimum of 20 hours per week. The case manager, Mr Holmes, recorded his belief that Mr Dekker had the capacity to work 30 hours per week in another occupation or job. He recorded Mr Dekker as stating that he was entitled to compensation because the situation had changed and the medical advisers had indicated to him that he should slow down. The note recorded that Mr Dekker did not want to leave his business but that if he lost his ACC entitlement he could not see his business lasting. He did not want to sign the record of the meeting. [4] In an occupational assessment dated 29 May 1999, the assessor noted that Mr Dekker did not intend to stop working in his present occupation but was re-arranging his workload and work practices to manage. In a work capacity assessment dated 13 July 1999, Dr Peter Karsas recorded that Mr Dekker’s back condition had stabilised and he had adapted his work practices and planned to continue to work in his present business. The assessment stated the medical condition did not preclude him from working 30 hours or more in other appropriate jobs such as building inspector, quantity surveyor, insurance assessor, sale representative, caretaker or as owner/operator of his present bricklaying business. The assessment recorded that Mr Dekker gave a qualified agreement in that that he would require further training to work in other occupations and did not want to be a caretaker. He said that he enjoyed what he was doing. He was then working four hours per day bricklaying and two or more hours per day on administrative duties in the business. - 3 - [5] The Corporation then made a decision terminating his weekly compensation, but after representations by Mr Rowlett as advocate for Mr Dekker, the decision was revoked in order to consider further material. Mr Rowlett asked for further reports to be obtained from Dr Hull and Mr Jamieson, neither of whom had participated in the preparation of the rehabilitation plan. Andrea Barnes, work capacity co-ordinator, replied on 28 April 2000 that the Corporation regarded the rehabilitation provided to Mr Dekker as having been appropriate and complete so that arrangements were then to be made for a work capacity medical assessment. The Corporation was therefore heading towards an assessment that was likely to confirm that Mr Dekker had the capacity to work 30 hours per week. His income entitlements would then be cancelled. The Corporation made that decision. The date is uncertain but at the latest it was in a letter written by Andrea Barnes on 19 February 2001. Mr Dekker appealed against that decision. The issues [6] Mr Rowlett’s submission on behalf of the appellant was that the individual rehabilitation plan contained no actual rehabilitation assistance and it clearly indicated the Corporation’s objective was to disqualify Mr Dekker from weekly compensation entirely rather than to reduce the Corporation’s liability by a successful rehabilitation. He submitted that the Corporation could not properly recommend or assess Mr Dekker as a person fit to undertake a number of other occupations while declining to modify the rehabilitation plan to provide appropriate training and skills. Mr Rowlett submitted that the Corporation simply had regard to Dr Karsas’ report that Mr Dekker was fit to undertake 30 hours work per week and the Corporation decided not to pursue any constructive rehabilitation plan but to regard the plan as complete and proceed to a work capacity assessment. [7] He submitted that the Corporation was required to develop a modification of the rehabilitation programme in accordance with clauses 54, 55 and 56 of the First Schedule of the Act, beginning with the need to consider the purpose of vocational rehabilitation under clause 55 as maintaining employment or regaining a capacity for work. The first - 4 - consideration in the hierarchy in clause 55 is a return of the insured to the same employment in which he was engaged before incapacity, [8] Clause 56 requires the Corporation to have regard to (a) whether the rehabilitation is likely to achieve its purpose; and (b) whether it is likely to be cost effective having regard to the likelihood that the cost of entitlements will be reduced as a result of the provision of rehabilitation. Mr Rowlett submitted that the limitations on vocational rehabilitation liability in clause 56 should not be used by the Corporation as a means of abdicating its responsibility and moving on to a work assessment. In other words, if the insured person appeared already to have a degree of capacity that would result in his being found fit to undertake 30 hours work per week, the Corporation could not abandon a rehabilitation programme because it would produce no better result for the Corporation than an immediate work capacity assessment. [9] I agree that clause 56 does not confer on the Corporation a basis for deciding that no rehabilitation is required because the insured has reached the stage where the cost of entitlements will be reduced in any case by a work capacity assessment. In this case the Corporation had a clear indication that a work capacity assessment would show that Mr Dekker was fit to undertake 30 hours of employment per week in other occupations. The obligation of the Corporation was first to address vocational rehabilitation and, if an appropriate rehabilitation plan could be devised, then to test it against clause 56 by deciding whether it was likely to be cost effective. The cost effectiveness which is in point is the reduction of weekly compensation by virtue of increased income. [10] Mr Kerr for the Corporation submitted that, during consultation about Mr Dekker’s plan, he had made a clear indication to the Corporation that he wanted to continue in his bricklaying business and did not want to consider other forms of alternative or additional employment. Mr Kerr referred to Landreth 144/00 in which Judge Middleton said that an appellant had chosen to pursue certain employment and did not indicate a wish to pursue other activities until the case reached review stage. In that case he found that the appellant had not paid regard to her responsibility to do everything possible in an effort to rehabilitate herself. Mr Kerr submitted that in the present case the Corporation consulted - 5 - Mr Dekker by meetings and correspondence, and through the views that he expressed to professionals in the course of assessment. The Corporation considered a rehabilitation plan directed to assist Mr Dekker in his own purpose of remaining in his current occupation. Mr Dekker had not suggested any measures for rehabilitation and effectively acquiesced in the plan as it stood. Later on he indicated that the reason that he did not advise the Corporation of his dissatisfaction with the plan was that he was not aware that he could seek part-time employment in addition to his current business activity. That is contradicted by the report of the vocational assessment undertaken in November 1998 which addressed that question and set out for Mr Dekker four options that he could follow including supplementary part-time work. Reasons for decision [11] In his decision of 23 April 2001, the Reviewer decided that the meeting on 11 May 1999 was to review the existing rehabilitation plan, and that at the meeting Mr Dekker advised that he did not wish to have further rehabilitation assistance. The Reviewer said that even if Mr Dekker had misunderstood something (the option of undertaking supplementary part-time work) that did not alter the fact that the discussions took place and he decided his own course of action. He said that a review of a plan does not necessarily involve further action, but can also be an agreement that no further action is required. [12] I agree with the Reviewer that the Corporation properly adopted that course. Provided the necessary consultation was done and the objectives were addressed, there need not have been a modification to the existing rehabilitation plan. It was open to the Corporation to regarded the plan as completed. Of course an insured person should not be unfairly prejudiced by an agreement that he has entered into through a mistake as to his available options. At the stage of review under s 135, and on appeal from the review, there needs to be an enquiry to ascertain whether the matter should be re-opened on the ground of mistake after Mr Dekker had indicated his preference for no rehabilitation addressing other employment. - 6 - [13] There is unmistakable advice in Mr Peak’s vocational assessment of 18 November 1998 that supplementary employment would be one of the options that could be addressed. It is difficult to accept that Mr Dekker was not aware of that. What appears to be more likely is that he focused on continuing in his own business with the support of weekly compensation and did not confront the question of finding extra work until he was told that the compensation would cease. [14] I am unable to find evidence to support Mr Rowlett’s submission that the Corporation abdicated its responsibilities or took into account a wrong principle by deciding that a constructive modification of the rehabilitation plan was not cost effective because Mr Dekker would be going off weekly compensation in any case. The material indicates that the Corporation went through the process, giving an opportunity for consultation, and was unable to identify, with the help of Mr Dekker, any rehabilitation programme that would assist him to remain in his business. [15] Mr Rowlett attempted to retrieve the position for Mr Dekker by writing to the Corporation asking for further medical input. The work capacity co-ordinator, Andrea Barnes, stated that liasing with health professionals was done appropriately during the case management of the claim and for the purpose of rehabilitation. Mr Rowlett considered that the insured had a right to have other information taken into account under s99(f) of the Act. That appears to be relevant to the work capacity assessment and not to a rehabilitation plan. There was no identification of areas in which the nominated medical professionals could have contributed to the identification plan itself. [16] Lastly, in a letter dated 18 May 2000, Ms Barnes referred to all the records on the Corporation file that noted Mr Dekker’s own views that he wished to continue with his current employment. Mr Rowlett responded in a letter of 26 May 2000 stating that no case manager had ever suggested that Mr Dekker seek part-time employment in addition to continuing with his current business. [17] The Reviewer heard evidence and made a finding that Mr Dekker conveyed to the Corporation his decision not to undertake further rehabilitation. The evidence indicates - 7 - that happened after full consultation. The 1998 vocational assessment had given a list of options, the first of which was “add extra income streams to current business by taking on additional part time work at a suitable physical demand level”. The suggestion that Mr Dekker was deceived or acted under a mistake about the option of carrying on two forms of employment is not realistic. It would have been an obvious solution if there was any scope to combine his existing employment with other part time employment. It does not follow that, because there is no later record of such a solution being considered, that Mr Dekker was not properly informed and suffered an adverse decision unfairly. I am satisfied that the Corporation acted correctly. The appeal is therefore dismissed. _______________________ (Judge D A Ongley) District Court Judge Signed at 2.00 pm on 30 January 2002