Ottrey v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. . 16 /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 EDWARD THOMAS OTTREY DCA 280/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of December 1997 APPEARANCES: Mr P J Sara for appellant Miss C Taylor for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to decline to assist the appellant with his proposed university course under s.22 of the Act was correct. 2 Background Facts On the 24th August 1996 the appellant suffered a back injury during a game of rugby. His GP diagnosed a disc prolapse and on 30th September 1996 he lodged a claim with the Corporation for cover. At the time of lodging his claim he was suffering from incapacity within the meaning of the Act. At the time of the accident the appellant was employed as a farm labourer but in the preceding twelve months he had attended a horse management course at Marcus Oldham College in Australia and on his return had done some shearing. The appellant was referred to John Matheson, an orthopaedic surgeon, and in his report of 29 November 1996 he diagnosed an intervertebral disc protrusion and advising that the appellant would probably require surgery but that an MRI scan should be carried out to further assess the extent of the injury. Mr Matheson also advised the Corporation that the appellant was currently unfit for work. It was Mr Matheson's advice to the appellant that he get out of farming and this had also been the advice of his GP. The appellant had made enquiries about alternative career choices including Polytechnic and University courses and after seeing Mr Matheson on the 29th of November he saw a counsellor at Otago University. A few days later he attended at the Corporation's office at Alexandra and spoke to a Mrs Dodds and spoke to her about a university course as part of his retraining. She advised that he get some forms from his doctor and take them to the Corporation. On the 5th of December the appellant enrolled at Otago University to do a B Com majoring in Finance and Marketing. On the 28th of January 1997 the appellant had a discussion with his case manager and advised her that he had enrolled at university. He subsequently provided her with a letter from Mr Matheson confirming the nature of his injury and of the fact 3 that he would need to change his employment from that of manual labour to something involving less physical work. At the meeting with his case manager on the 28th of January the appellant requested that the Corporation contribute to the cost of his university studies. The matter was discussed with the case manager's team leader and his memorandum of 24th February 1997 stated: "Mr Ottrey has rather presented us with a fait accompli. From the medical opinions on the file it seems clear that the claimant cannot return to his pre- accident job and so vocational rehabilitation would be an entitlement. However university study would be the last intervention we would consider. Indeed we do not know what course, career prospects, length of course etc. Mr Ottrey has made a decision to enrol at uni with no reference to ACC at all. You need to write to Mr Ottrey declining ACC assistance with his university studies." It was as a consequence of that the appellant's case manager wrote to the appellant on the 18th of March 1997 and that letter is as follows: "Consideration has now been given to your request for assistance with your university course. As explained to you financial assistance for a course like this would be the last intervention that we would consider under vocational rehabilitation. You advised me that you enrolled with the university about one month after your injury in August of 1996. At this stage your injury and capability of returning to your pre- accident employment was still under investigation. A letter from Mr Matheson in February of this year advised me that you would be unable to return to farm labouring. At this point you had already enrolled with the University without advising us of your intentions. No vocational 4 interventions had been discussed or explored. It is important to investigate all other vocational options prior to approving any retraining. As this was not the case with you unfortunately, I must decline your request for payment of university fees." The appellant responded to that letter by letter of 29th March as follows: "Dear Tracey Thank you for letter explaining ACC's position on vocational rehabilitation. I feel there has been some miscommunication between us and would like to clear up all the details surrounding my request for assistance at university. I first seriously thought about changing my vocation after being treated by Dr Nicky Patel and Dr Martin Williamson, having received advice from them suggesting I give up any manual labor type work, this was approximately a month after I was first injured. At this stage I applied to both the Otago University and Dunedin Polytech for information about courses in the oncoming year which might suit me. On the 29th of November 1996 I had an appointment with Dr John Matheson in Dunedin, he also recommended giving up all manual labor work. It was about this time that I first mentioned to you that I was thinking about attending university and you suggested that ACC may be able to help if I had statements of recommendation from doctors backing up the need for a career change. After discussing my career options with various people including a liason officer I decided to enroll in a three year course at Otago University doing a 'B Com' majoring in Finance and Marketing. I did not know this needed to be discussed in detail by ACC until I handed in the statements from my doctors. My registration for university was received on the 5th December, less than a week before the registrations closed. It would seem that due to my lack of information, my limited knowledge of what was required, and the urgency required to enroll, I did not consult with you as 5 fully as I should have. However I would very much like to meet with you for your help and advice." A branch administrative review thereupon took place where again the team leader Mr Abel considered that the situation was unacceptable. He said there were so many unanswered questions and that the appellant had not afforded the Corporation the opportunity to fully explore the cost benefits of such a lengthy and expensive retraining course. As a consequence of the Corporation not changing its decision the appellant sought review of that decision. The Review Officer in his decision upheld the Corporation's decision giving as his reason the following: "Like the Corporation's representative at Alexandra, I am satisfied that the Corporation was presented by Ottrey with a fait accompli in that he had made his own choice to go to University before discussing it with the Corporation and had enrolled in the course of his choice. Mr Ottrey may not have been able to return to his principal economic activity of that of a farm labourer but he has chosen to pursue other avenues without consulting the Corporation which had no opportunity to have an involvement in his rehabilitation plan." Relevant Statutory Provisions Rehabilitation is defined in s.3 of the Act as "A process of active change by which a person who has suffered personal injury regains or acquires and uses the skills necessary for optimal physical, mental, vocational, and social function." Section 19 of the Act states: 6 "Provision of Rehabilitation (1) Except as provided in sub-section (2) of this section, the Corporation shall not provide or meet the cost 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 20 of the Act states: (2) Each individual rehabilitation programme shall consist of those elements of social and vocational rehabilitation as are appropriate to the individual and shall be prepared in compliance with this Act and any regulations made under this Act ..." Section 22 of the Act states: 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 s.38 or s.39 or s.44 of this Act and (6 ) Those persons who are entitled to compensation for loss of potential earning capacity under s.45 or s.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 7 loss of earnings or loss of potential earning capacity under this Act To maintain employment, obtain employment or in all other circumstances to have a capacity for work as defined in s.51(2) of this Act." Submissions Mr Sara for the appellant submits that the respondent ought to have made enquiries of the appellant and sought to obtain answers to the questions which had been identified by Mr Abel in his memorandum. He submits that the respondent simply washed its hands of the appellant once it discovered that he was about to attend university. Counsel submits that the respondent has had no account of the appellant's right to vocational rehabilitation or of the respondent's obligation to support and encourage same. He submits that the respondent ought not to have simply dismissed the appellant's request without making due enquiries as it was obliged to do under the Act. Counsel submits that the respondent has failed to discharge its statutory responsibilities to the appellant in relation to his vocational rehabilitation. Miss Taylor for the respondent submits that pursuant to s.19 of the Act the Corporation has no discretion to support vocational rehabilitation in the absence of any individual rehabilitation programme and that as there was no such programme in existence when the appellant enrolled at university, the decision to decline to meet the costs was correct. Counsel further submits that the information before the Corporation was simply that he was unable to continue in employment involving physical labour and there was little evidence to suggest that a university course was appropriate. Counsel submits that as the Corporation was not satisfied that the requirements 8 set out in s.22(3) of the Act would be satisfied if it supported the appellant, its decision to decline to do so was correct. Decision As a preliminary matter I observe that both counsel have referred me to s.22 of the Act being the provision in force at the time of the accident. That section was repealed, a new section substituted as from 2nd September 1996 by the Accident Rehabilitation and Compensation Insurance Act (No. 2) 1996. That new provision which I have set out in this decision was the relevant statutory provision in force at the time the respondent's decision was made. There is nothing in the 1996 Amendment Act which gives any further "life" to the earlier s.22 after the date of its repeal and therefore unless there is something in s.20 of the Acts Interpretation Act 1924 which enables it to continue for the purposes of consideration in this appeal, and which I certainly have not been able to discover, the statutory provision cited by counsel is not the relevant provision. Having considered the facts of this matter I have formed the clear view that the respondent was precipitate in its decision to simply decline to assist the appellant without making proper enquiries or indeed without itself putting up proper alternative proposals towards the implementing of an individual rehabilitation programme. The respondent complains of questions which remain unanswered but the fact of the matter is that neither the appellant's case manager nor her superiors considered it necessary to ascertain those answers or ask the questions which would give the answers. 9 When one reads s.22 in conjunction with the meaning given to "rehabilitation" I find it clear that the actions of the Corporation were not designed to meet those objectives. The appellant was simply cut off and left to his own devices yet there was clear medical evidence of an incapacity and of a need to retrain or at least to embark on a new employment path. Counsel for the respondent submitted that, looked at in a vacuum at the time that decision was made in March 1997, it was the correct decision. I cannot agree as I have previously found that the Corporation was derelict in not taking the opportunity of enquiring further into what was precisely intended by the appellant's proposed university training and in that regard I note that it did not see fit to take up his offer of further discussion as was contained in his letter to the Corporation after he had received the letter of 18th March 1997 declining assistance. I find it quite incredible that a branch administrative review was carried out and yet it did not involve taking up the offer that the appellant made to discuss the matter fully. At the hearing of this appeal I indicated to counsel a preliminary view which is along the lines that I have now formalised and as a consequence of that counsel indicated that if that were to be the view of this court then both accepted that the appropriate course to follow would be for the matter to be remitted back to the Review Officer and have the question of whether or not the appellant should receive assistance under s.22 to be reassessed in light of all the facts, including the circumstances which have arisen since March 1997 and including all matters relevant to the date when the reconsideration actually takes place. Accordingly then I formally rule that the respondent's decision to decline to provide assistance under s.22 to the appellant was incorrect and that it was made without a proper determination of all necessary facts and was not within the spirit and meaning of the relevant provisions of the Act. The matter is therefore 10 remitted back to the Review Officer pursuant to rule 16 of the Appeals Regulations 1992 to reconsider afresh the appellant's entitlement to vocational rehabilitation under s.22 of the Act. Mr Sara advised that the appellant had been granted legal aid for the purposes of this appeal. To all intents and purposes the appellant has been successful and is entitled to an award of costs which in the circumstances I fix at $500. DATED at WELLINGTON this 30" day of January 1998 Deaths M J Beattie District Court Judge Ottrey.doc KD