Paris v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 63 /98 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 DANIEL STEVEN PARIS DCA 307/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 26th day of March 1998 APPEARANCES: Mr D S Paris in person Mr A D Barnett for Corporation DECISION OF JUDGE MJ BEATTIE The issue in this appeal is whether the Corporation's decision not to provide the appellant with a further year's vocational rehabilitation assistance in the form of payment for a further year's University study for the 1997 academic year, was correct. 2 Background The appellant suffered a gunshot injury to his right foot on the 26th of May 1993. At the time of this accident he was employed as a viticulturalist. As a consequence of that injury he is unfit to return to his pre-accident employment. He was eligible for certain entitlements including vocational rehabilitation. On the 17th of January 1996 the appellant entered into an Individual Rehabilitation Programme agreement with the Corporation whereby the Corporation agreed to support the appellant for one year at University to study for an engineering degree. The first year's study for this degree was known as engineering intermediate and a satisfactory pass was required at that stage to enable a student to continue on and complete the degree course. The objective of the IRP was to enable the appellant to return to full-time employment after completion of the degree course. It was further stated in that programme that "Vocational rehabilitation funding is available for twelve months from the above commencement date. A further twelve months funding assistance may be available if this is expected to result in employment. On completion of the Vocational Rehabilitation Allowance (VRA), I understand that my entitlement will revert to weekly compensation. I am then responsible for my own vocational rehabilitation. At the end of the first year of the course the Corporation reviewed the appellant's performance and it was accepted that the appellant had only obtained a D average in all papers sat which in effect constituted failure and which, if he were 3 to continue with the engineering degree would require him to complete the intermediate year again in the 1997 academic year. The Corporation did, in its decision letter of 27th February 1997, advise that because of the failed result it was of the opinion that this particular rehabilitation direction was not appropriate for him. Furthermore the Corporation considered that he had skills and abilities necessary to find employment and to generate an income without the need for University study. In those circumstances it was not prepared to support him further at University but stated that it was prepared to discuss any other rehabilitation directions that he may care to consider. The appellant sought a review of that decision. The Review Officer held that it could not be considered that the Corporation's continued expenditure for University study was cost effective as the applicant had made no progress towards completion of his engineering degree after a full year's study. The Review Officer considered that the Corporation had exercised its discretion in an appropriate way. The relevant statutory provisions are sections 22 and 23 of the Act which are as follows: "22. Objective of vocational rehabilitation --- The objective of vocational rehabilitation is to assist -- (a) Those persons who are entitled to compensation for loss of earnings under section 38 or section 39 or section 44 of this Act; and (b) Those persons who are entitled to compensation for loss of potential earning capacity under section 45 or section 46 of this Act; and (c) Those persons who have cover under this Act and are likely, without vocational rehabilitation, to be entitled to compensation for loss of earnings or loss of potential earning capacity under this Act - 4 to maintain employment, obtain employment, or, in all other circumstances, to have a capacity for work (as defined in section 51(2) of this Act). 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 is expected by the Corporation to be cost-effective. (2) The Corporation may, at its discretion, provide or meet the costs of any vocational rehabilitation for the minimum period necessary to meet the objective set out in section 22 of this Act, but in no case shall such provision be made or costs be met in respect of any vocational rehabilitation that exceeds a period of 3 years in total, which need not be consecutive. (3) The 3-year period referred to in subsection (2) of this section does not include any period of vocational rehabilitation provided before the commencement of section 3 of the Accident Rehabilitation and Compensation Insurance Amendment Act (No.2) 1995." It is noted that section 23 of the Act gives a discretion to the Corporation to make provision for payment for vocational rehabilitation if it considers it appropriate in the circumstances and such payment is expected to be cost-effective. At the hearing of this appeal the appellant did not so much seek to establish that the Corporation's decision was wrong but rather, by having regard to subsequent events, have this Court make its own decision under section 23. It is a fact that the appellant returned to Canterbury University in the 1997 academic year, unassisted by the Corporation, and completed successfully the engineering intermediate year. Thus he is entitled to continue with the degree course. It was that which he submitted to this Court on appeal should be taken into account when considering the correctness of the decision appealed from. In effect the appellant is saying the decision of the Corporation in February 1997 not to fund a further year's University education may have been correct as things then stood, but that in the light of events which have occurred since that decision, that decision is now shown to have been wrong. The Court must consider what it is that it is charged with hearing on appeal under the provisions of the ARCI Act 1992. Under section 89 of the Act a claimant who is dissatisfied with a decision of the Corporation in respect of his or her claim or entitlement may apply for a review of that decision. Under the provisions of section 90 of the Act a claimant can have that decision reviewed. The purpose of that review is to determine whether the Corporation's decision should be confirmed, modified or revoked. Pursuant to the provisions of section 91 of the Act it is against that decision, made under section 90 of the Act, in respect of which an appeal lies to the District Court. The District Court is charged with determining the appeal by confirming, modifying or revoking the decision appealed against. In those circumstances I find the legislative intention is quite clear that the issues which can be canvassed in an appeal to this Court must be those which were the issues and the decision made on those issues at first instance and on review. Accordingly I rule that this Court, when considering this appeal, can only have regard to the facts and the circumstances as they existed at the time the Corporation made its decision to decline to fund a further year in February 1997. If it were to be otherwise it would have the effect of having this Court make a new decision based on new facts and circumstances rather than it being a . ON decision on the facts and circumstances which were pertinent at the time the original decision of the Corporation. According I find that the Corporation was quite within its powers under section 23 to exercise its discretion against the providing of further funding for the appellant's University course. The overwhelming evidence before it at that time was that such funding was not appropriate or likely to be cost-effective. Having said that I do find that there is possibly room for the Corporation to revisit the issue again based on the appellant's subsequent success if the appellant were to so request. However that would be a matter for it to look at afresh having regard to the statutory provisions and all relevant circumstances and to make a new decision in that regard. For the foregoing reasons this appeal, confined as it is to the Corporation's decision of 27th February 1997, is dismissed. DATED at WELLINGTON this 6 day of . April 1998 M J Beattie District Court Judge Paris.doc KD