Keeman v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 25 8 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN CARL CORNELIUS KEEMAN DCA 11/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of November 1997 APPEARANCES: Mr P Cheyne for appellant Mr D G Clarke for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision of 22 March 1996 to suspend payment of weekly compensation to the appellant for the duration of his absence overseas was correct. 3 September 95 and March 96 was a decision made by the appellant's then Case Manager to determine that the appellant's injury was not work related. This apparently arose because he did suffer a shoulder strain whilst playing tennis. This shoulder strain was totally unconnected with his disability, the decision of the Case Manager was clearly misguided and the review application which Mr Cheyne had lodged on behalf of the appellant was not proceeded with after the Corporation indicated their willingness to return to the status quo ante In the week commencing Monday, the 4th of March 1996 Mr Cheyne sought to make contact with the person at the Corporation in charge of the appellant's file to discuss the appellant's proposed participation in the overseas wheelchair tennis circuit. The appellant's planned departure date was the 11th of March and it was not until the 8th of March that Mr Cheyne was able to speak to someone at the Papanui Branch of ACC with knowledge of Mr Keeman's file. That person was Edith Mcintyre, described as Team Leader. Mr Cheyne inquired what rehabilitation assistance would be available to the appellant whilst he was overseas. This was the first that anyone connected with the appellant's file knew of his pending departure. The advice that Mr Cheyne was given by Ms Mcintyre was that as Mr Keeman was fit for selected work, he was suitable for vocational rehabilitation and as such he would be required to be available for rehabilitation. He was advised that the appellant would have had contact from his new Case Manager once the case management units were up and running and that would have been within the next couple of weeks. There was a further meeting between Mr Cheyne, Ms Mcintyre and Mr Gutschlag, the Principle Case Manager, on 20 March and as a consequence of 2 Background Facts In September 1994 when aged 36 years the appellant injured his back in a fall at work. He suffered a severe back injury including a prolapsed disc. In January 1995 he underwent a disc compression operation. Following that operation he was certified as being fit for selected light duties and between May 1995 and September 1995 he returned to his previous employment with Ernest Adams Lid undertaking light duties. That employment terminated in September 1995 as a consequence of the employer no longer having light duties available for the appellant to perform. In January 1996 the appellant was assessed as being 100% disabled for the purposes of an independence allowance and in the main was confined to a wheelchair although it was possible for him for short periods to be mobile without a wheelchair. Prior to the appellant's accident he had for many years been involved in competitive tennis and was playing in the top echelon of tennis in Christchurch down to the time of his accident. In October 1995 he took up wheelchair tennis and his abilities were such that he determined to embark upon the professional circuit overseas known as the NEC International Wheelchair Tennis Tour. That circuit was due to run from April until the beginning of December. From the time he ceased working at Ernest Adams Lid the appellant was in receipt of weekly compensation. By that time he had Mr Philip Cheyne, an employment law consultant, assisting him, and the Corporation's file indicates that the only matter appears to have been of moment between 4 which the Corporation's decision letter of 22 March 1996 was written and is as follows: "Dear Mr Cheyne RE: CC KEEMAN Further to our telephone conversation of 8 March and your subsequent meeting with Ron Gutschlag, Principle Case Manager on 20 March, regarding Mr Keeman's travel overseas and entitlement to weekly compensation while he is out of New Zealand. On 8 March you spoke to me to query what rehabilitation assistance was available for Mr Keeman while he was overseas. At that stage we were totally unaware that Mr Keeman was planning to go overseas as he has not mentioned this to his Case Manager. You then informed me that Mr Keeman was leaving New Zealand on 11 March and would be away for a period of approximately 11 months to participate in wheelchair tennis on an international level, and that you felt this was his vocational rehabilitation. Within ACC, vocational rehabilitation is the term used to describe the planned approach provided to claimants to assist them to return to work. If a claimant is certified as being 'fit for selected work' by their GP, then their eligibility for vocational rehabilitation assistance is considered. If the claimant is eligible, then a Rehabilitation Programme is developed with the claimant, and with input from other providers such as the GP. The objective of vocational rehabilitation is 'to restore the claimant, to the extent practicable, to their former capacity for work in the occupation engaged in before the incapacity commenced, or a similar occupation: OR in any other case, to make it possible for the claimant to have a capacity for work. 5 With relation to the ARCIC Act 1992, there are several sections relation to vocational rehabilitation and I would like to bring your attention to the following sections - 18; 19; 20; 22; 64; 73 (copies attached). Mr Keeman's GP has verified that Mr Keeman is capable of undertaking suitable light work and Mr Keeman meets the criteria for eligibility to vocational rehabilitation assistance. He is therefore required to be available for rehabilitation in accordance with Section 64(f) & (8) of the ARCIC Act (1992). As Mr Keeman has decided to travel overseas without consulting with the Corporation, he will now have to make the choice of returning to New Zealand to be available for the development, implementation and monitoring of a rehabilitation programme or to have weekly compensation payment suspended until his return to the country when he will be available for rehabilitation. To give you time to consult with Mr Keeman and for him to be able to make a choice, I will give one month from the date of this letter by which time Mr Keeman is expected to be available for rehabilitation. If he is not available by 18 April 1996 entitlement to weekly compensation will be suspended under Section 73(c) until such time as Mr Keeman is available to participate in a rehabilitation programme. At this stage, Mr Keemans Independence Allowance will continue to be paid quarterly, as we agreed over the telephone. However, he will be required to be available for a reassessment which will be round about February 1997. If you are not satisfied with this decision, or if there is something you do not understand, you should contact us immediately and discuss your concerns. I 6 will explain the decision and will explain your right to ask that the decision be reviewed. If you do want the decision to be reviewed a request must be made in writing using a special form which is available from our ACC. The written request for a review must be received within three months from the date of this letter. Yours sincerely sd/- Edith Mcintyre Team Leader Papanui Branch" The appellant did depart overseas on the 11 March as he had intended and he returned to New Zealand on 27 September 1996. Whilst on that tennis circuit he achieved a world ranking of 28 in singles and 23 in doubles. Total prize money amounted to $3,721.00, which was considerably less than his expenses. Relevant Statutory Provisions Section 18 of the Act provides the right to rehabilitation and states: "18. Right to rehabilitation --- Every person who has suffered personal injury for which the person has cover under this Act is responsible for his or her own rehabilitation to the extent possible having regard to the person's condition and is entitled to the extent provided by this Act to rehabilitate necessary to enable the person to lead as normal a life as possible, having regard to the consequences of his or her personal injury." 7 Section 19 covers the provision of rehabilitation and states: "19. Provision of rehabilitation ---(1) Except as provided in subsection (2) of this section, the Corporation shall not provide or meet the costs of rehabilitation for persons who have cover under this Act unless that rehabilitation is provided under an approved individual rehabilitation programme. (2 ) The Corporation may provide rehabilitation within the first 13 weeks following the personal injury in the absence of an approved individual rehabilitation programme." Section 22 covers the right to vocational rehabilitation and provides: "22. Right to vocational rehabilitation ---(1) Vocational rehabilitation shall be available to --- (a) Those persons who are entitled to compensation for loss of earnings under sections 38, 39, and 44 of this Act: (6 ) Those persons who are entitled to compensation for loss of potential earning capacity under section 45 or section 46 of this Act: (c) Those persons who are likely, without rehabilitation, to be entitled to compensation for loss of potential earning capacity under section 46 of this Act upon the attainment of 18 years. (2 ) The objective of vocational rehabilitation is --- (a) To restore that person, to the extent practicable, to his or her former capacity for work in the occupation engaged in prior to the commencement of incapacity or a similar occupation; or (b) In any other case, to enable the person to have a capacity for work. (3) The Corporation shall not make any provision or payment in respect of vocational rehabilitation unless it is satisfied that the provision or payment 8 is necessary to enable the person to obtain or maintain employment, and is expected to be cost-effective for the Corporation. (4) The conditions under which vocational rehabilitation can be provided or paid for, and the maximum amounts which may be spent on vocational rehabilitation, may be prescribed in regulations made under this Act." Section 64 covers the responsibilities of a claimant and states: "64. Responsibilities of claimant ---(1) Every person who claims for or is in respect of any rehabilitation, compensation, grant, or allowance shall, when reasonably required to do so by the Corporation, --- a) Give to the Corporation the prescribed certificate of a registered health professional as to such matters, and containing such information, as the Corporation requires: b ) Furnish to the Corporation such other relevant information as the Corporation requires: c) Authorise the Corporation to obtain medical and other records which are or may be relevant to the claim: d) Undergo examination, at the expense of the Corporation, by an appropriate registered health professional specified by the Corporation for the purpose: e ) Undergo assessment of impairment, disability, or handicap at the expense of the Corporation: Undergo assessment of present and likely capabilities for the purposes of rehabilitation at the expense of the Corporation: 8) Take action by way of rehabilitation in order to endeavour to terminate or reduce the extent of any impairment, disability, or handicap. 9 (2) Every claimant under this Act and every person who is receiving or has received any payment or rehabilitation under this Act shall, whenever required by the Corporation, give to the Corporation a statement in writing, and, if the Corporation so requires, as a statutory declaration or in a form supplied by the Corporation, with respect to such matters relating to the person's entitlement or continuing entitlement to any payment or rehabilitation under this Act as the Corporation specifies." Section 73 of the Act provides for the suspension, cancellation or refusal of compensation and rehabilitation and in particular subsection (2) provides: "(2) The Corporation shall, and any exempt employer may, upon the unreasonable refusal or failure of any person to --- (a) Comply with any requirement made under any provision of this Act relating to any claim; or (b) Undergo medical or surgical treatment in respect of personal injury (irrespective of whether the Corporation is required or permitted to contribute towards the costs of that treatment); or (c) Agree to an individual rehabilitation programme Decline to make any payment under this Act." Appellant's submissions It was submitted that the provisions of the Act do not entitle the Corporation to require the claimant to be present in New Zealand and that in this case it was not necessary for him to be present in order to undergo any assessment they may have contemplated. The only basis for suspension given was that he had absented himself from New Zealand. He submitted that the requirement that he be present in New Zealand was not reasonable within the meaning of that word for the purposes of section 64. 10 It was further submitted by Mr Cheyne that the Corporation were aware that he was in communication with his client and could pass on any requests or communications in relation to any vocational rehabilitation requirements that they may have had. It was contended that no requirements had been made of the appellant pursuant to section 64(f) and/ or (g) and that the only demand was for him to return to New Zealand without any specified purpose or arrangements being in place for him to "undergo" or "take action" on. It was further contended that the Corporation had done nothing towards any vocational rehabilitation from September 1995 through to March 1996 and therefore in those circumstances where the appellant himself was taking some steps at Vocation Rehabilitation it was unreasonable for him not to be given the opportunity to do so. He submitted it could not be said that the appellant had unreasonably refused or failed to comply with any requirement made under any provision of the Act, as was required under section 73(2)(a). Respondent's Submissions Counsel submitted that the appellant had unreasonably refused to comply with the requirements of the Act. He submitted that the appellant had breached section 18, being the obligation upon him to make genuine efforts to rehabilitate himself. He submitted that the appellant had acted unreasonably in giving such short notice of his travel overseas. Counsel submitted that the "requirements" contained in section 73(2)(a) were those contained in section 64(f) and (g) and that the appellant was obliged to be available to meet those requirements, and to absent himself and not be so available was not in accord with the intent of the Act and was an 11 unreasonable failure on the appellant's part. He submitted that unreasonableness is exemplified by the lack of notice that was given of his departure. Decision The Corporation's decision to suspend weekly compensation for the appellant whilst he was overseas was made under section 73(2). Its decision advice is not made with any greater particularity than that but, a consideration of the three alternatives set out in section 73(2) would suggest that it could only be an alleged unreasonable refusal or failure to comply with any requirement made under any provision of the Act relating to any claim, under clause (a). For the avoidance of doubt I find that if the Corporation were purporting to rely on s.73(2) (b) or (c) they were in serious error. In its decision letter the Corporation refers to section 64(f) and (g) as being the provisions of the Act in respect of which a requirement had been made. It is clear from the evidence and from the Corporation's file that as at the 11th of March 1996 when the appellant departed overseas, no rehabilitation proposals, either social or vocational had been initiated by the Corporation. They were aware of his medical situation as being fit for the light duties. They had advice from Ernest Adams that the position he had formally had with them doing light duties had been terminated in September 1995 and yet there is no initiative taken by the Corporation over this period. It seems from the file that the principal activity to do with the appellant over this period was the question of the decision by the Case Manager to reclassify the appellant's injury as a non-work injury which brought about a 12 review, and as earlier noted, that re-classification was seen to have been misguided and the matter was corrected without the necessity of a formal review hearing. The only other matter advanced on the file at this time was the reassessment of his disability for the independence allowance. That was completed on 22 January 1996 where he was reassessed as being 100%. The letter advising him of that, stated that he would required to undergo further assessments as to his disability in the future but, that one would not be required for at least twelve months. The last direct communication between the Corporation and the appellant is a letter dated 5 March advising the appellant that the decision made on 7 November 1995 to reclassify his claim as non-work related was wrong and that has been reviewed administratively. And "your entitlements to compensation under current ACC Regulations still stands, and you are still entitled to weekly compensation if there are current medical certificates on file. If you have any questions please do not hesitate to contact me." This letter is signed by the third person in the space of three months who has described herself as the appellant's Case Manager. I find as a fact that the Corporation had made no requirement of the appellant to undergo any assessment of present and likely capabilities for the purposes of rehabilitation or to take action by way of rehabilitation in order to endeavour to terminate or reduce the extent of any impairment disability or handicap as is envisaged by section 64(f) and (g). Insofar as section 64(g) is concerned I find that this provision would not be applicable. Medical reports and opinions had been obtained which had determined a level of disability which was not going to terminate or reduce and there is certainly nothing in any medical reports to suggest that the 13 appellant ought to have been taking any action to terminate or reduce the extent of any disability. Insofar as section 64(f) is concerned, the position was as I find it, that the Corporation were aware of the full nature and extent of the appellant's disabilities and abilities. He was able to perform certain light duties and had demonstrated an ability to do so, and in respect of which the Corporation was aware. In terms of section 22(2)(a) and (b) I have had no evidence tendered to suggest that there were measures in train which were designed to further those objectives, and again, no requirements had been made of the appellant in that regard. I find that the provisions of section 73(2)(a) are specific rather then general and it requires an unreasonable refusal or failure to comply with a specific requirement that has been made under a particular provision of the Act. That is, that the requirement must be specific to call upon the person to do or undertake or submit himself for a particular specified task undertaking examination or attendance. That task undertaking examination or attendance must be specifically sourced from a provision of the Act which has cast a burden or obligation on the person to so comply. In the case of the appellant I find that the Corporation was simply requiring his presence in New Zealand so that questions of his vocation rehabilitation assistance could be considered. There had been nothing specific foreshadowed and indeed the Corporation had sat on its hands for some six months. It had been the appellant's contention, advised through his advocate Mr Cheyne, that embarking on this overseas tennis circuit was indeed vocational 14 rehabilitation and something which was going to be of benefit in every sense to him. The file records that the Corporation were loath to accept this as fact but, at the same time no alternative proposal was forthcoming. Furthermore, the Corporation had been dealing with the appellant through Mr Cheyne who had indicated right from the outset that he was available to as an intermediary insofar as any proposals were concerned. Again, there is no evidence to suggest that when considering the question of a rehabilitation programme, the appellant's presence in New Zealand was required. As I have already found, it was not necessary from any medical or abilities point of view, these were well known and established. Accordingly then, I find that in the circumstances of this case the Corporation had not made any particular requirement of the appellant within the meaning I have found that word to have under section 73(2)(a) and therefore, its decision to suspend weekly compensation in reliance on that provision was precipitate and that at the time it was made, grounds did not exist. This appeal is allowed and the decision of the Review Officer is revoked. I allow the appellant $700.00 cost. DATED at WELLINGTON on this 1| + day of December 1997 Jus . the M J Beattie District Court Judge Keeman.doc(gm)