Brundell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 24 /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 GABRIELLE BRUNDELL DCA 309/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of December 1997 APPEARANCES: Mr P J Sara for appellant Ms C Taylor for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to suspend payment of weekly compensation to the appellant whilst she was overseas was correct. 2 Background Facts The appellant suffered personal injury in a motor accident in November 1985. She suffered injuries to her head including concussion. She received a short period of earnings related compensation for the time she was off work and the file was then closed. In February 1993 the appellant applied for lump sum compensation, medical expenses, loss of earnings and rehabilitation. She provided a medical certificate which stated that the head injuries suffered in the accident had caused the subsequent development of temporal lobe epilepsy and then atypical bipolar mood disorder. As a consequence of this development the appellant had been on an invalid's benefit since November 1992. The Corporation obtained a medical report from a Neurologist which indicated that the appellant suffered from a post concussion syndrome with a bipolar affective disorder. The appellant received lump sum payments pursuant to sections 78 and 79 of the 1982 Act. She was also entitled to receive Earnings Related Compensation. At the time of her accident she was attending Massey University doing a three year Bachelor of Social Work Programme and following the accident she did return and complete her course and was duly qualified. However she had difficulty undertaking work in the social work field and until she obtained weekly compensation she had been on an invalid's benefit. 3 In late 1994 the Corporation sought to develop rehabilitation initiatives for her and she was referred to employment consultants in that regard and a specialist opinion from Dr Longmore, Consulting Clinical Neuropsychologist was sought. His report dated 25 January 1995 stated: "Ms Brundell has real aptitude and ability in the use of language and succeeded in her study of English. English language tutoring was one particular vocational avenue discussed following this assessment. Should her cognitive impairments or affective disorder require further therapy, then referral to a clinical psychologist for training in compensatory strategies and behavioural self controlled techniques would be helpful. In summary, Ms Brundell would benefit considerably from vocational rehabilitation assistance. Her residual cognitive deficits and affective disorder probably preclude professional social work and her residual strengths suggest that language tutoring may be an appropriate vocational option. Ms Brundell's affective disorder may require her to consider working reduced and flexible hours. As part of the appellant's rehabilitation she was enrolled in a TESOL Course (Teaching English To Speakers Of Other Languages) at Otago Polytechnic. She completed that course and subsequently obtained part time tutoring at the Polytechnic and weekly compensation was abated on the basis of her earnings. The appellant continued to work on a part time basis at Otago Polytechnic until June 1996 when because of funding cuts there was no further work for her there. She then became engaged in some private tutoring work earning between $50 and $90.00 a week. 4 In February 1997 the appellant wrote to the Corporation indicating that she had plans to go to the UK with her partner, a doctor, who was planning to further his medical studies and she wished to be with him for the duration of his time overseas. She indicated that she would like the opportunity of taking a course in Certificate in English Language Teaching to Adults administered by Cambridge University. She stated that this was a follow on from her TESOL course that she had completed. At this time her medical situation was that she was fit to undertake relieving work for 432 hours a week. In response to her inquiry about whether her weekly compensation would be maintained during her time overseas, the Corporation advised her in a letter of 11 March 1997 that as there was an obligation upon her to reduce or eliminate her dependence upon the ACC scheme and that she ought to be actively and continuously engaged in seeking employment and that going overseas would be a breach of her requirements in that regard and that for this reason she was advised that her compensation would not continue whilst she was away. By letter dated 18 March 1997 Mr Sara, then acting for the appellant, wrote to the Corporation questioning the Corporation's power to suspend weekly compensation should she go overseas and questioning the contention that the appellant must be seen to be actively and continuously seeking employment. In its reply dated 24 March 1997 the Corporation stated inter alia: "As I see this case at present the position is as follows: 1. Weekly compensation is continuing, and the Corporation has not issued a formal suspension decision. As such, a review application will not be registered over cessation of compensation when this hasn't occurred. With respect, no notice of decision has been issued. 2. If Gabrielle is requesting considering of vocational study, and this is the reason for her wanting to leave New Zealand, I believe this needs to be clarified. While I would think it unlikely on the information I have seen that the Corporation would approve overseas study, as part of a rehabilitation program, the Corporation would be prepared to consider a serious formal request from Gabrielle over this issue. Reasonable formal decision could then be issued here. Attached for your information is a copy of Corporation policy in respect of approval of study, and, if Gabrielle can show that these criteria are met, then it is by no means inevitable that compensation will stop. We would ask however that Gabrielle provide a proposal detailing her proposed course and subjects. This should include a resume showing that the proposed training will be of sufficient standard to make sure there is an identifiable market for the claimant once the training has been completed. Gabrielle should also provide some indication from prospective employers of their willingness to employ her following this study. We would ask that her doctor provide confirmation that this training is feasible, and that following this she would be likely to be considered as fit to return to work in some profitable capacity. Clearly if as is being requested, the Corporation is to increase payments to Gabrielle because she stops working part time, a clear reason is needed in order to meet the provisions of Section 64, and some form of argument to show this option is cost effective for the Corporation. 6 I would welcome your comment on whether Gabrielle wishes to pursue this approach, and formally lodge a vocational training proposal. From talking to Pania, I believe she may be thinking of the District Court decision in 'McDonald'. While there are obvious differences to Gabrielle's situation, this decision nevertheless determined that there is client obligation to actively seek work when a claimant is capable of so doing." On 25 March 1997 the appellant's GP Dr Muir wrote to the Corporation as follows: "I understand that Gabrielle has made application to your organisation for ACC support. That is maintenance of her weekly compensation while she attends a course in UK for teaching English as a second language to adults. The reason for seeking to do this in the UK is twofold: In the first instance so that she can accompany her partner to the UK. He is needing to be in the UK by June 1997 so that he may undertake ongoing medical training. The other component being that the English teaching course in the UK is part-time, rather than full-time as in New Zealand. As Gabrielle has presented to me she is led to believe that your organization will not support such a venture on the basis that it is not geared towards her ongoing rehabilitation for her head injury problem. She is also led to believe that if she leaves New Zealand without your organization's permission she will cease to get any ACC compensation on a permanent basis even when she returns to this country. She also believes that you will not officially inform her of this until she has left the country and until you officially inform her, she is not allowed to apply for a formal review. 7 At my last consultation it appeared very obvious that all the rehabilitation that Gabrielle has achieved, has now commenced into a downward destructive spiral. As a result of the destructive interaction with your organization she has not been well enough at the present time to continue her second language teaching which she does for a limited number of hours every week. She has found it necessary to increase the dose of her medication to try and control this situation and the current environment has caused significant elevation in her level of agitation as well as decreased functioning. As I am sure you are well aware, organic brain syndrome patients following head injuries often find it very difficult to achieve full rehabilitation. They are often very fragile under stress, they may have difficulties in establishing relationships. Gabrielle has worked very hard to help herself and while she has not achieved the number of working hours per week, which might satisfy your organization, she is at least back in the workforce on a limited wage with her adult teaching. This is also very positive in reinforcing her self esteem and increasing her level of function. She has also succeeded in sustaining a permanent relationship for over 3 years, which is a major rehabilitation for her. The current interaction with your organization has been destructive on a number of accounts. In the first instance it appears to be very negative towards her ongoing rehabilitation. 8 Secondarily it places her in the totally unacceptable position of having to decide whether she sustains a permanent relationship by going with her partner overseas, but in doing so she will lose her permanent ACC compensation even when she returns to New Zealand in the future. Thirdly, she is placed in a 'catch 22' situation where she cannot appeal, having in the first instance to go overseas and lose her ACC before she may have a formal appeal. I think most of us would have trouble coping with this situation even when everything was going for us, let alone trying to cope with it while we are suffering from organic brain syndrome. It would apprear(sic) to me as her general practitioner that the current process as outlined in hell bent on destroying any rehabilitation that has been achieved until Now." On 7 April 1997 Mr Sara wrote to the Corporation advising: "Our Client is not requesting consideration of vocational study nor the Corporation's approval of the same. We are instructed that within the limits of her capacity our client will actively seek while overseas". The Corporation replied by letter of 9 April 1997 as follows: "As I indicated it is by no means inevitable that the Corporation would or will cease compensation should Gabrielle go overseas. The issue is one of whether your client is prepared to enter into any serious discussion over the issue of whether there is any likely productive outcome from proposed overseas travel and study. 9 At present, the ACC is paying abated income to your client. Your client is asking that she be given clear grace to travel overseas and have ACC increase its level of weekly compensation accordingly. Given your comments now that any study is in no way related to vocational aims, it appears to me that the Corporation is being asked to approve a potential situation in the future which appears to have no long term aim or benefit, other than to meet Gabrielle's personal choice in lifestyle. Your statement that a decision over cessation of weekly(sic) has been issued is incorrect. Intention is not an action. The factual situation is that Gabrielle is receiving weekly compensation, and you wish to review cessation of this when it may not occur, and at present certainly hasn't. As you are aware, in any event the Corporation does have the capacity to revoke a decision it feels is erroneous under the provisions of Section 67. As it would appear that you feel the advise given constitutes a formal notice of decision, I am happy to confirm that the letter of 11 March 1997 is formally revoked, that the letter of 24 March 1997 replaces this and should Gabrielle develop a serious proposal? then the Corporation would consider this. As things stand the Corporation at present is not in a position to say whether it would or would not be able to continue to pay compensation should Gabrielle leave the country. From correspondence given to the Corporation, it has not even been stated when Gabrielle is thinking of leaving. From your last letter it appears you are asking that whenever this occurs, whether this year, or at a later future time, you are asking for a guarantee of and reinstatement of payment of full weekly compensation. Such a guarantee cannot be given for any individual. Comment about Gabrielle looking for work overseas is irrelevant given that abatement would not apply. 10 In this situation the Corporation obviously does have an interest in Gabrielle continuing as she is in New Zealand, but as I trust I have indicated we are prepared to consider Gabrielle's position. If you wish us to consider issuing a formal decision on weekly compensation clearly the Corporation needs to know exactly when Gabriella is leaving New Zealand and your confirmation that her study is not likely to result in any realistic work opportunities or prospects for her. In that situation the Corporation would consider if it felt Gabrielle's proposed actions are reasonable, but again if her intention is not to leave the country for some time, I cannot see that the Corporation is in the position to issue a formal binding decision over future potentialities." On 18 April 1997 Mr Sara provided the Corporation with a copy of a psychological report which had been prepared by a Clinical Psychologist Stefany Frost. Ms Frost had been involved with the appellant for some two years and had had a total of 29 individual sessions and 12 joint sessions with her partner. The summary of her report states as follows: "Gabriella's overall rehabilitation has been self-directed and positive, particularly over the last 4 years, where she has made every effort to decrease the extent of impairment by acquiring the skills necessary for optimal functioning in all areas of her life. I have every confidence that this process will continue whether Gabrielle is in New Zealand or elsewhere, as she has a strong motivation to function to the best of her capability, and a strong motivation to work within her mental capacity. When looking at Gabrielle's rehabilitation, it is important(sic) be aware that vocational rehabilitation is only one aspect of her overall rehabilitation. Her ability to train and/or work requires appropriate functioning in all other areas of her life (e.g. intimate relationship, social relationships, mood, 11 anxiety, confidence etc). Gabrielle's underlying difficulties mean that she will always have difficulty coping with stress and that she is highly unlikely to ever work more than a few hours a week (as has been established over the last 15 Months). With this in mind it is essential to emphasise the need for overall rehabilitation, rather than just vocational rehabilitation, and her relationship with Craig is an essential part of her overall rehabilitation. Gabrielle's relationship with Craig has become an essential and integral part of her life, to the point that if the relationship ended it would create severe grief and stress for Gabrielle and may even precipitate a complete psychological breakdown. The impact of the relationship breakdown would be even greater if it ended because she was prevented from following him to England as a result of the current dispute with AR & CIC. It is unreasonable and counterproductive to Gabrielle's rehabilitation for her to have to make a choice between her life partner and the security of AR & CIC's earnings related compensation, which she fought hard for the right to. Given the fact that she is never going to be able to support herself through work, the security of the AR & CIC's backing is essential to her psychological well-being. Gabrielle has a track record of self-initiated and self-determined action regarding her rehabilitation and it is clear that she will continue her rehabilitation process overseas at the same level as she has been in New Zealand. She will be continuing to manage the physical aspects of rehabilitation, will be developing her relationship with Craig, and will enhance her social rehabilitation by having to meet new people and make new connections. She will continue to work at the cognitive and psychological aspects of maintaining her functioning and will further develop her vocational rehabilitation by looking for work, and looking for further training or opportunities in the area of teaching English as a second language, all of 12 which will undoubtedly have a productive outcome for Gabrielle's overall functioning. I fully support Gabrielle's plan to reside in England for a year or so." On 1 May 1997 Ms Frost wrote to the Corporation requesting that approval be given for a further 20 hours of counselling. She noted that the appellant had become involved in a major dispute with the Corporation and that the stress of this had resulted in a significant deterioration in her functioning to the point where she has not been able to work, has had to increase her medication and is experiencing psychological distress. At about the same time Mr Sara advised the Corporation that the appellant intended to leave New Zealand on 16 June with plans to be away for a year and contending that during her absence she was entitled to receive the full amount of weekly compensation during this period. On 5 May 1997 the Corporation wrote to Mr Sara stating: "As you will recall, our discussion included two concepts which I note Gabrielle does not seem to have agreed to. 1. Agreement to return after 12 months to New Zealand. Alternatively if she were to choose to remain away from New Zealand while this obviously would be viewed as her personal choice, ACC would not continue payments for an indefinite and unlimited overseas trip. 2. That the abated level of compensation, which the Corporation has normally paid to Gabrielle in recent times, would be paid to her while overseas. I recall you mentioning that there is definite prospect of Gabrielle 13 working for positive remuneration while in the United Kingdom, and had understood you were to discuss this with Gabrielle. At present, I have asked Gabrielle's Case Manager, Ms Patterson, not to be actively involved in Gabrielle's rehabilitation at present pending the proposal on Gabrielle's intentions. As I indicated to you however, we must be clear that this is a temporary absence. If we agree that for a short term absence of 12 months we remain Gabrielle's financial support, the ACC does expect to have clear involvement and input into the long term management and rehabilitation of Gabrielle after this period. The alternative position of course is suspension of compensation for the period of Gabrielle's trip, under the provisions of Section 73(2) with probable reinstatement on her return, should she provide appropriate medical cover. Before we formally advise our position on the departure, I would ask whether these two points we discussed are acceptable to Gabrielle. If so, as I indicated, I am not unsupportive of the proposal and Ms Patterson can write these criterias into an agreement for Gabrielle." On 27 May 1997 Mr Sara wrote to the Corporation in response to its letter stating: "We appreciate that the Corporation desires to maintain some level of control over this claim if our client is absent from New Zealand. Following our telephone conversation with Mr O'Connor on 26th May 1997, we suggest that the Corporation might require our client to advise it about her intentions in relation to her return to New Zealand or otherwise at the end of twelve months from her departure from New Zealand. That way the Corporation could review its position in relation to ongoing weekly compensation or some other requirement in relation to vocational rehabilitation. 14 The position in relation to a fixed date for a return to New Zealand and the abated level of compensation has been dealt with in our letter dated 1st May 1997. Subject to medically certified capacity for work, our client's intention is to seek work or study while in the United Kingdom. As you know, any earnings our client might derive will not affect her weekly earnings compensation. That being so, she is not required to notify you about those earnings. Our client accepts that the Corporation will have a 'clear involvement and input into the long term management and rehabilitation' of our client after her return to New Zealand. In our opinion the alternative position of suspension of compensation for the period of our client's overseas stay would be unlawful. We refer you again to s.81(1) of the Act. We note the provisions of this section are mandatory not discretionary. We hope that the position is now clear to you. We do not see that there is any need for our Client to enter into any agreement with the Corporation about these matters. Our client's present plan is to leave New Zealand on 16th June next." On 12 June 1997 the Corporation responded to that letter giving its decision to suspend compensation for the duration of the appellant's period overseas. That decision letter is as follows: "Following discussion with Mr Hodgson, MP, your continued entitlement to compensation was discussed, in view of your pending departure. Mr Hodgson had asked that following discussion he was to have with Mr Sara, that the Corporation then formally issue a decision in relation to continued 15 compensation. Nor further contact has been made with the ACC since this meeting, and in accordance with that commitment a decision is now issued. The position of our Branch is that in the long term for compensation to continue you need to remain in New Zealand. In view of your personal circumstance, we have been prepared to consider temporary absence from New Zealand as reasonable, if it was agreed that you return to New Zealand at the end of your partners work overseas. Alternatively, it would be understood and agreed that if you chose to remain overseas, this would obviously be your choice, but the Corporation could not reasonably agree to indefinite and unlimited commitment to pay weekly compensation, and as such, suspension of compensation would then occur until your return. This we understand is not accepted, and the absence of any agreement places the Corporation in a difficult position. As we understand the position, we are asked to guarantee entitlement for an indefinite period overseas. In terms of policy, as you are aware, our Head office has view that any increase in dependence on the scheme for the purposes of travel is not reasonable, in accordance with the provisions of Section 64 of the 1992 Act. This would occur if the Corporation agreed to continue compensation whilst you are overseas. Additionally, it has been indicated to us that you will most likely be working while overseas, which further complicates the position for us. Clearly if you have such a capacity overseas, then we should be considering if you can redefine and develop your current part time work here and further reduce the current level of compensation. Overall, policy indicates that suspension of compensation in accordance with Section 73 should occur when you leave, with of course the ability to have compensation reinstated on your return to New Zealand. This would presumably be in line with your employment here as well. Most certainly the Corporation accepts that you do have a significant injury, and does not intend to permanently disentitle or cut off long term assistance to you 16 because of your travel, nevertheless, by leaving for what is an unspecified period, with a request that ACC increase its compensation at a time when it has been indicated you will also be deriving overseas income, we cannot accept that this position is reasonable or acceptable. As such, compensation to you is now suspended. Reinstatement is able to be made on production of appropriate medical certification on your return to New Zealand." The appellant duly departed for England on 11 June but returned to New Zealand at the end of July for the purposes of giving evidence at the review hearing which took place on 27 August 1997. She departed again for London on 1 September 1997. At the review hearing the appellant gave evidence that she wished to accompany her partner Craig Andrews, a Registered Medical Practitioner for the duration of his intended work and study period in the UK She said that she intended to take a course called Certificate in English Language Teaching to Adults (CELTA). She stated that this qualification had international recognition and that it would add to her qualifications and make her more employable in the field and on a better pay scale. She stated that she was unable to obtain a work visa for the UK so that she would not be working. She stated that as from February 1997 she was certified as totally incapacitated for work. In her decision the Review Officer stated: "From the outset Ms Brundell said that she wanted to go to England so that she could undertake a course of study and she confirmed this at the hearing. I find that the study was in fact 'vocational' in the sense that Ms Brundell said 17 it would enable her to have better qualifications for the work that she enjoys and is suited for, at a better rate of pay and was an internationally recognised qualifications. The Corporation made specific request for information regarding the course of study on 24 March 1997. The Corporation indicated that it would be. prepared to consider a serious formal request from Ms Brundell about the issue. Mr Sara responded that there was no request for consideration of vocational study but that Ms Brundell would be seeking work overseas. The Corporation reiterated that it would be prepared to consider a serious proposal regarding the study but none was forthcoming. I consider that it was reasonable of the Corporation to request further details about the proposed course as this would have required payment of weekly compensation, perhaps at an increased an unabated level, for some period. Despite requests for further details of the proposed plans these were not forthcoming. The Corporation's requests were for a proposed plan of rehabilitation through vocational study which would lessen her eventual dependence on the Corporation. At the very least the Corporation asked Ms Brundell through her solicitor to co-operate in helping to formulate a proposal by way of rehabilitation with regard to her wish to go to the United Kingdom with her partner. Ms Brundell was asked then to take action by way of rehabilitation by not going overseas for an uncertain period without providing the Corporation with information and an agreement about the parameters of the proposed 18 duration of her absence and the likely nature and benefits of any vocational study overseas. I consider that the refusal to take that action was unreasonable in the circumstances so that the Corporation's decision here suspending weekly compensation for the time being in terms of section 73(2) of the Act was correct." Decision As I have recently held in decisions of Hyde ( 14 /98) and Fletcher (18 /98) the power to suspend or cancel weekly compensation is not contained in section 73(2) of the Act. That power is contained in section 73(1) and can only arise where the person is no longer entitled to compensation, that is the person no longer meets the criteria stipulated in the Act for entitlement. Section 73(2) gives the Corporation a right to decline to make payment where the claimant is in a state of non-compliance with a requirement which has been made of him/her under any provision of the Act. However, for the purposes of this appeal I consider the use of the term "suspension" as opposed to the correct term "decline to make payment" to be really an exercise in semantics as the action taken was in effect the latter as the period of declination to be the period of the perceived non- compliance by the appellant. There was no contention that her entitlement was in any way affected. For the avoidance of doubt, I find that there were no grounds for the Corporation to act pursuant to section 73(1) and whilst the decision letter makes no mention of the particular subsection which is relied on, the earlier 19 correspondence alluding to the threatened suspension does refer to section 73(2) and the alleged non-compliance with certain provisions of section 64. Thus, I propose to consider the issue in this appeal looking at section 73(2) as being the provision relied upon by the Corporation. It was submitted by Mr Sara that before the appellant could be considered to be in breach of any obligation under section 64 she must have first been reasonably required to do something by the respondent. He submitted that no such requirement was made of the appellant by the respondent and therefore she could not be considered to be in breach and therefore the Corporation could not invoke the provisions of section 73(2)(a). Ms Taylor for the Corporation submitted that the Corporation was entitled to 'suspend' the appellant's compensation pursuant to section 73(2) because the appellant had unreasonably refused or failed to comply with a requirement of the Act namely (i) failed to furnish the Corporation with such other relevant information as it requires section 64(1)(b) and (ii) take action by way of rehabilitation to endeavour to reduce the extent of any impairment section 64(1)(g). Counsel further submitted that the right to receive compensation whilst overseas under section 88 of the Act only creates that right if the claimant can establish a continuing entitlement as set out in other sections of the Act. That is the right to receive compensation is dependent upon ongoing eligibility under the Act. In its decision letter of 12 June 1997 the Corporation acknowledged that the appellant had a significant injury and I further find that it had information both from the appellant's doctor and from a psychologist that she was 20 suffering from incapacity within the meaning of the Act and that as such she was entitled to weekly compensation. On an analysis of the correspondence which passed between the Corporation and the appellant, her solicitor and doctor I find that the Corporation had not made any requirement under any provision of the Act, in particular any provision of section 64. For the appellant was not engaged in an individual rehabilitation programme, one was not being sought of her so she could not be held to be in breach of any condition or term of same. I find that the decision to suspend from the time of the appellant's departure purportedly for unreasonable non-compliance with section 64 was a precipitate decision and was in fact made before any "requirement" under the Act had been made. It would have been open to the Corporation to have made a specific requirement of the appellant following her departure to spell out what it was she was intending to do and for her to comply with any requirement regarding ongoing medical certificates to establish continuing entitlement or declarations as to any income earned for the purposes of assessing whether there should be any abatement of compensation. None of these measures was taken or even contemplated and yet the Corporation believed that the mere fact of her departing entitled it to deal with her compensation entitlements. The provisions of section 73(2)(a)(b) or (c) are quite specific and I find that a claimant needs to be left in no doubt that a specific requirement pursuant to a stated provision of the Act is being made of him/her and that the failure to comply will result in the consequence of a refusal to make payment. 21 As submitted by Mr Sara I find there was no such requirement made of the appellant either before she left for overseas or subsequently. The Corporation had full particulars of the appellant's present condition and acknowledged that she qualified for entitlements and that until she could be. said to have been acting in a way which prevented the Corporation from being in possession of information which might affect her entitlement it could not cease payments to which she was otherwise entitled. I find that in terms of section 64(1)(e) the action which the appellant was in fact taking was appropriate action by way of rehabilitation and was stated as such by both her doctor and a clinical psychologist. There was certainly no requirement made by the Corporation for the appellant to take some other form of action, and certainly no specific requirement under section 64(1)(g). I find that for the purposes of section 64(1)(b) there was neither a specific requirement made under that section of the Act nor was there any "relevant information" which the Corporation did not posses at the time. The only information that it could be said not to have had was the exact duration of her stay overseas but that was a matter which could have been addressed, The correspondence indicated that the period of a year was acceptable and at any time the Corporation could have put a finite cap on her absence overseas if it considered that such absence was no longer conducive to or actually furthering her rehabilitation. However with expert evidence establishing that at the time of departure her time overseas was positively enhancing her rehabilitation any requirement to the contrary would not have been reasonable. Accordingly, I rule that the decision to "suspend" the appellant's weekly compensation was wrong and that there was no basis for so doing pursuant to the provisions of section 73(2) of the Act at the time that decision was made. The decision of the Review Officer is therefore revoked. The appellant 22 is entitled to costs which I fix at $850.00 together with such disbursements as may be fixed by the Registrar. DATED at WELLINGTON on this |2 day of February 1998 M J Beattie District Court Judge Brundell.doc(gm)