Churchill v Accident Rehabilitation and Compensation Insurance Corporation

UQ(:, <. ton 'J.. ", /'I'+ IN THE DISTRICT COURT DCA 67/93 HELD AT WELLINGTON UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 IN THE MATTER of an Appeal pursuant to Section 91 of the Act REVIEW No. 29-92- 2046 BETWEEN DAVID PAUL CHURCHILL Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Date of hearing: 20 April 1994 Date of decision: s :n."""e· lGM'f- Appellant in person Mr A D Barnett for respondent DECISION OF JUDGE D A ONGLEY This is an appeal against a decision refusing further vocational training assistance for polytechnic study in management. The appellant is aged 39. He suffered personal injury by accident on 10 March 1983 when his shoulder was damaged and on 15 January 1989 when he sprained his ankle. He was employed as an electrical substation operator and was a qualified electrician. His job entailed a lot of walking and climbing and he was compelled to give it up after the 1989 accident. He considered retraining courses at Hutt Valley Polytech and CIT in order to qualify for a more sedentary occupation connected with his field of expertise. The Accident Compensation Corporation assisted Mr Churchill in studying the New Zealand Certificate in Electrical Engineering at Hutt Valley Polytech on the basisthat the vocational assistance would be reviewed at the end of the 1991:year. He - 2 - signed a rehabilitation programme on 28 February 1 990 starting his long term goal as obtaining electrical drafting work hopefully in 1991 and short term goal of achieving academic success in 1990. The Corporation's letter of 2 March 1990 stated There will, of course, be a review at the end of the academic year as to the Corporation's ongoing responsibilities for 1991. It is to be hoped that the qualification gained this year will give you marketability in a number of areas. There is a real expectation though that employment will be sought for 1991 as your studies level at the end of 1990 will qualify you to apply for a number of positions." The Corporation met study costs of $745.05. Mr Churchill then passed all his subjects in 1 990. A rehabilitation officer noted on 12 December 1990 that he had been applying for jobs, had been turned down once through insufficient qualifications and that it was important for him to study during 1991 if he did not get a job. On 1 3 February 1 991 the rehabilitation officer recorded that he had re- enrolled part time so that he could be available for work, at least part time. He had an operation to his shoulder in December 1991 . His incapacity associated with the ankle injury was duly assessed at 8 % of total. There is no record before the Court of the extent of incapacity resulting from the shoulder injury. Mr Churchill told the review officer that he has a reasonable range of movement but it causes constant pain. On 3 February 1992 he reported that he was still undergoing physiotherapy for his right shoulder and he was still incapacitated and unlikely to be able to return to his former kind of employment as an electrician or a substation operator. He said that he had been applying for office positions over the past two years and he had been advised to gain experience in office related skills to improve his chances of employment. For those reasons, he wished to undertake the Hutt Valley Polytechnic course in Engineering and Management. He then had his curriculum vitae with ten employment agencies but he was certified fully unfit for work. On 9 March 1992 the rehabilitation co-ordinator recorded that Mr Churchill had to complete the last of his stage 3 subjects for Electrical Engineering and he wished to study eight business management subjects to qualify for a Certificate in Supervisory Management. He sought $1,670 from the Corporation for that course. The rehabilitation officer believed that his transferable skills and employment options had not been exhausted and referred his case for employment placement and clarification of his medical status. Dr Gillies advised the Corporation of his opinioh that Mr Churchill was ready for alternative employment in the near foture\ - 3 - The appellant was interviewed by Quest Rapuara, Career Development and Transition Education Service in March, April and June. A report was not provided for the Corporation until 4 August 1992. Meanwhile the Accident Rehabilitation and Compensation Insurance Act 1992 had come into force on 1 April 1992. The report lacked detail and expressed opinions that the appellant should seek part-time work rather than engage in full time study. The report writer recommended that he should get "a foot in the door" by seeking work with organisations which could provide useful experience with a prospect of an eventual full time job, or that otherwise he could do fill-in work with Tisco 's, a retail shop such as Dick Smiths or photocopier servicing. The Corporation continued weekly compensation through 1 992 and requested evidence that the appellant was actively seeking work at November 1992. Payment of course fees was declined. The reasons which were expressed were: 1 . Because the retraining had not been formally approved in advance, 2. The Corporation had paid earnings related compensation and course fees for two years while the appellant was retraining, 3. The appellant should pay course fees for the third year while receiving earnings related compensation, and 4. By attending polytech for 2 years the appellant had shown that he was able to do some kind of work. The last comment is not supported by evidence and is only a view expressed by the rehabilitation officer. The appellant made written submissions in support of a review of the Corporation's decision and the claims supervisor then stated the following grounds for affirming the decision: 1 . C 1 5 still shows as fully unfit. 2. The extra course added to already extensive training. 3. Transferable skills and employment options have not been exhausted. The refusal was confirmed and a review was heard on 21 October 1992. The review officer referred to s 23(2) of the Act in error. That section relates to a second year of vocational rehabilitation, but where a rehabilitation programme had been entered into before 1 July 1992 s 136(4) _provides: (4) Where a person is in receipt of vocational rehabilitation immediately before the 1st day of July 1992, the limitations on the provision of or payment for vocational rehabilitation under section 23 of this Act shall apply as if the provision of or· payment for that rehabilitation had commenced on the 1st day of July 1992. - 4 - Hence the 1992 year was the first year of eligibility under the 1992 Act and the more stringent provisions of s 23(2) did not apply. The test for the first year is contained in s 22(3): (3) The Corporation shall not make any provision or payment in respect of vocational rehabilitation unless it is satisfied that the provision or payment is necessary to enable the person to obtain or maintain employment, and is expected to be cost-effective for the Corporation. The questions to be answered on the appeal are therefore whether the provision is necessary to enable Mr Churchill to obtain or maintain employment and whether it is expected to be cost-effective for the Corporation. If the provision meets those tests and is conducive to rehabilitation according to the definitions and objects of the Act, then it should be granted unless there are very good reasons to the contrary. The appeal is by way of re-hearing, but the Court will be reluctant to interfere with the decision where the Corporation has acted on evidence which it can reasonably take into account and where it has applied proper considerations to the statutory criteria. In this case the Corporation engaged Quest Rapuara as a consultant. Mr Churchill has protested that the report was not signed by the person who interviewed him. That is really a matter if internal administration and in the absence of any evidence that the report was not genuinely based on assessments of the appellant's qualification and prospects it will have to be accepted at face value. It has been said by the Appeal Authority in cases such as Neale v Acc. No. 134/93, 29 March 1993, that in the specialised field of rehabilitation it will not be proper to interfere with a Corporation decision simply by substituting a view formed by the tribunaJ hearing the appeal. It will at least be necessary for evidence of sufficient weight to refute the opinion of those tendering professional advice to the Corporation. In this case the views of the Corporation's rehabilitation officers co-incided with the Quest Rapuara report. Despite the shortcomings of the report, there is no real evidence to contradict the advice given to the Corporation. One helpful document is a letter of 24 September 1 992 from a senior tutor of the Engineering Department of Hutt Valley Polytech explaining that the practical work did not involve physical exertion but only the use of instruments on a laboratory table. The tutor considered tha t the _ . appellant's injuries prevented him undertaking his trade as an electrician, and. that satisfactory completion of the course of NZCE and Certificate of Sup.e.rvi;;ory, Management should enable him to take up employment. The letter di.d l.'.l_<.>{,- . •·.:· ,:: .. . . however, add to the information which the Corporation had. It was 09."t doc,b_te.d_ that the Management Certificate would be helpful but t he questi 9n was whe ther it , was necessary. - 5 - The Corporation decided that NZCE was sufficient qualification to equip the appella. nt to obtain suitable employment having regard to his injorfes. The. appellant wanted to go further and complete a managemerit course to improve his qualifications and his chances · -of- employment. There wa·s a difference of opinion between him and the Corporation concerning the necessity of 'further qualification but I can find nothing in the material on appeal to -show tha-t the corphration was unreasonable in _reaching that conclusion. Certainly the management training is likely to have enhanced the possibility of obtaining employment, but that is not the consideraiion which the Corporation is obliged to adopt. The question under s 22 is whether it is nece·ssary. I am concerned about the superficial nature of the duest report and if there was any persuasive evidence to the contrary I would be prepared· to review the matter. I can find nothing however which supports the appellant's. view of the necessity of completing a management certificate. In his own submissions on the appeal he has pointed out a number of areas of complaint but they do not relate tc> the question of the necessity of management training for him to obtain employment. His honest efforts to obtain work are not in question on this appeal. He has produced a folio of correspondence as evidence that he has been applying for work since 1991 and he has since obtained full time employment iri" 1993. For the above reasons I am unable to concludErtthatthe Corporation's decision. was unreasonable. The appeal is therefore dismissed. ·