Johnston v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 278 ACR 859/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN GLENYS CHRISTINE MASON JOHNSTON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 7 June 2012 Appearances: C D Batt for the Appellant P A McBride for the Corporation Judgment: 16 August 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] This appeal (one of two by Ms Johnston that I heard on the same day) arises from a 9 December 2009 decision of the Corporation recording the deemed finalisation of a rehabilitation plan. [2] That decision was the subject of a review application made by Ms Johnston which was dismissed and from that dismissal she appealed to this Court. GLENYS CHRISTINE MASON JOHNSTON V ACCIDENT COMPENSATION CORPORATION DC WN [2012] NZACC ACR 859/10 Background [3] The judgment in this appeal is issued contemporaneously with the judgment in the other appeal by Ms Johnston. That dismisses her appeal against a review decision (upholding an earlier Corporation decision of 10 April 2008) to suspend weekly compensation on the ground that Ms Johnston had failed to attend a vocational independence occupational assessment. [4] I mention these matters for the two judgments could usefully be read together. [5] Before setting out upon a chronology it is convenient first to record the essence of the terms of the Corporation's 9 December 2009 decision - one which included the deeming of a rehabilitation plan and recorded that vocational independence assessments would now commence. [6] In so writing to Ms Johnson on 9 December 2009 the Corporation reminded her of discussions at a meeting on 10 November that year where, the Corporation said, it had been agreed that it would prepare and send out a draft rehabilitation plan for her to consider. The letter then continued: I forwarded a draft rehabilitation plan to you by email on the 10 November 2009. On the 2 December 2009 ACC received the following email from you: Could you explain why you have not sent me the draft rehab plan as discussed. I don't understand why you introduced the new format ACC 092 at the meeting, the reason given that I would recognise it when it was sent out, but then you sent me an ACC 091A. I have made a number of corrections to the IRP because as it stands it does not, as your letter suggests it should, 'outline all the steps that we agree on together to help with my recovery' but I will wait for your explanation of the ACC 092/ACC 901A before sending it to you. I do feel that the work I have done on it will be a further waste of my time however, as your stance at the recent meeting showed you are completely closed off to the issue that my vocational rehabilitation is complete and I will not sign any IRP that says that it is. ACC provided the following response to you on 2 December 2009. The plan I have sent you is a draft as neither party has signed it at this time. The rehabilitation plan I have posted to you is the starting point for our discussions. The ACC 092 that was sent to you 28 December 2007 has now been updated to an ACC 091A. This is the current format that ACC is using. You will note that this is a very similar format. I will try to accommodate any changes you have made and look forward to receiving the amended plan back to ACC for consideration. On the 3 December 2009 you provided the following response to ACC. I repeat that I am not prepared to sign an IRP saying that the business plan and marketing assistance to agreed to a mediation has been completed when it has not. You have made it abundantly clear that you are not prepared to change your view on this so I see no option but for you deem the IRP. Based on your email above I have finalised the rehabilitation plan. ... [7] I now set out what I do not suggest to be a complete, but which I regard as a sufficient, chronology of relevant events: At mediation on 6 March 2006 it had been agreed that: ACC will contract with a suitable business advisory service in Nelson to assist with development and review of a business plan and business planning. This will incorporate marketing and promotion advice. Such assistance will be offered concurrently with the programme in point 1. Any interventions which may be identified in the planning process are Glenys' responsibility to implement. The mediated agreement also recorded that wording changes in the IRP had been agreed upon and recorded and signed separately and a note attached to the agreement recorded Ms Johnston's current involvement in running a bed and breakfast called The Mud Castle, which had a small function facility, and an entity Creative Occasions which was a functions co-ordinator and that these incorporated components from job options identified in an earlier IOA and IMA. The note (signed by all concerned) also recorded as the "outcome" a return to work or work readiness by the end of November 2006 and that on completion of the agreed rehabilitation interventions the Corporation would meet by the end of July to discuss providers for VIO and IMA assessments. The next day the Corporation offered Ms Johnston the names of three business consultants to choose from and she selected a Ms Young for business planning advice and a Ms O'Flaherty for marketing and promotion advice. There was then correspondence between the Corporation and Ms Johnston's solicitors including as to whether the Corporation (which of course was funding the business plan) should be provided with a copy of this, it giving the assurance that such would not be released to any other organisation or person. In the course of subsequent correspondence the solicitors indicated disagreement with this approach essentially conveying (but not in the blunt words now following) that such was none of the Corporation's business. The Corporation responded (more than reasonably it might be said) that it would accept that it should not receive a copy of the plan if that would assist Ms Johnston in moving forward with her rehabilitation. But it would expect written confirmation from the consultants that the plan had been completed by 30 June 2006 and if that did not occur it would consider that Ms Johnston was not complying with her rehabilitation. But even then there was a reservation against the possibility that the consultant could not meet that timeframe. On 28 June 2006 Ms Johnston emailed the Corporation to advise that her solicitor had approved the business and marketing plan proposal and there then ensued negotiations between the Corporation and the advisers about the cost and extent of the support to be provided On 4 July 2006 Ms Young emailed the Corporation and Ms Johnston outlining the general nature of the support including that it should provide strategic mentoring and market mentoring for 12 months, assistance with developing a one year marketing and promotion plan and allow for a review of the overall business plan after one year, This email came four days after one on 30 June 2006 again sent to both parties by Ms Young in which she mentioned that one of the main objectives of the brief Ms Johnston had given her was that Ms Johnston herself be given the skills to go on and undertake the work after the joint planning process was completed and that "any interventions which are identified in the business planning process are Glenys' own responsibility to implement". In further ensuing correspondence the Corporation pointed out that 12 months of market mentoring was more than had been agreed at mediation and inconsistent with the return to work date of 30 November 2006 and the Corporation invited Ms Johnston to discuss the matter. To that invitation Ms Johnston's solicitors replied in terms that the plan itself had been provided before 30 June 2006 and claiming that: The Corporation, by its subsequent correspondence has waived all responsibility for entering the contract and has chosen to limit its involvement to setting a timeframe for completion of the plan and payment of the invoice. .. The Corporation's response of 29 August was to the effect that Ms Johnston appeared to be asking for a "blank cheque" from the Corporation for business advice but that it needed to retain some control over cost and content and the letter rehearsed that the Corporation had been impeded because Glenys would not progress with the business planning process unless we agreed that ACC would not receive a copy of the plan. Even then, the Corporation communicated that it would agree to the business advice plan so long as: The rehabilitation outcome date remained 30 November 2006 so that Ms Johnston would enter the VI process in the December. The period covered by the business plan would not affect those dates. The Corporation would not receive a full copy of the business plan, for confidentiality reasons, but the "digest" copy was to be provided and incorporated in the IRP; and it was recorded that The Corporation would pay for the business advice on a monthly basis with monthly updates. Ms Johnston's solicitors replied on 1 September 2006 agreeing to the above and the parties then concurred in the approach that the outline that the Corporation had received should become part of the rehabilitation plan. A consequential IRP was signed accordingly in February 2007 with the 'ready to work' date amended to 31 October 2007 and the date for business advice to be achieved to 30 July 2007. On 27 March 2007 Ms Johnston emailed the Corporation expressing concern about the quality of the support she was receiving from the providers saying however that she was confident the situation would be resolved satisfactorily and she would keep the Corporation informed. On 11 May 2007 the Corporation reminded Ms Johnston of the process whereby the providers in question had been chosen and told her that if she chose to pursue another provider it would not be able to fund that individual choice because it would be unreasonable for the Corporation to bear the inevitable additional expense. Ms Johnston immediately replied to say that her concerns had been resolved in that the provider in question was being replaced by another and asking that the former be released, but in so reporting she did not question the Corporation's immediately preceding intimation that business support was to end in September 2007. Other correspondence then alluded to makes plain that Ms Johnston cannot have been in any doubt but that she had a responsibility to inform the Corporation were it the case that it was paying for services not actually provided. On 3 September 2007 the Corporation had reminded Ms Johnston that the 12 month time frame would end that month whereupon the Corporation proposed to proceed to vocational independence assessments. Ms Johnston's solicitor's response was that their client considered she had not received the rehabilitation services outlined in the 23 June 2006 planning proposal, or what had been delivered was not of an appropriate quality, and to that the Corporation simply advised on 18 October 2007 that it considered it had met its obligations under the mediated agreement. Ms Johnston then sought to review that letter as if it were a decision which on review was held not to be the case and on 14 December 2007 it referred her to a VIOA and two weeks later sent her an updated IRP draft noting that the actions agreed at mediation had been completed. I note at this point that in net result the Corporation had actually provided (that is paid for) business support from September 2006 to February 2008. Through 2008 there was back and forth between the parties generated on account Ms Johnston's perspective that her vocational rehabilitation was not complete, but she underwent an occupational assessment on 3 November 2008 which identified a range of transferable skills. It should also be recorded (because it has a later recognised significance) that on 29 October 2008 Ms Johnston's solicitors, in writing to the occupational assessor prior to the completion of the assessment, had noted this: For some reason, ACC has not provided you with information relating to that (obviously a reference to business support) intervention although it has been the most significant and helpful rehabilitation assistance ever provided to Ms Johnston. Following upon a complaint from Ms Johnston that her rehabilitation was not complete the Complaints Officer, at the end of a quite lengthy review of, and response to, the complaints raised, said this: Ms Batt (Ms Johnston's solicitor) I would be remiss in my duty as an impartial and objective observer, if I did not comment on the actions ACC has taken to advance this matter. I consider ACC has gone to great lengths to meet you and your client's demands in following the VI process. I reiterate my colleague's statement that your client's reluctance to attend the assessments is unreasonable considering the time and resources ACC has put into the claim. It is not a good use of our limited resources, particularly in the current economic climate, to continually look at ways to overcome what can only been seen as obstacles to delay the VI process. On 10 November 2009 the Corporation sent Ms Johnston an updated IRP to which she responded on 2 December to say that she would not sign it given its statement that vocational rehabilitation was complete. The Corporation responded the same day, prepared to take the IRP as a draft as a starting point, and invited a response with changes which however evinced this reply: I repeat that I am not prepared to sign an IRP saying that the business plan and marketing assistance agreed to at mediation has been completed when it has not. You have made it abundantly clear that you are not prepared to change your view on this so I see no option but for you to deem the IRP. - Which of course the Corporation finally did on 9 December 2009, the event leading to this appeal. I then note that the Corporation's bundle includes at 19-20 a report from an Angela Mockett, marketing consultant, relating to work carried out referable to the original Sam Young proposal which included under the heading "recommendations" this: My involvement in this business planning contract has focused on marketing areas and as such has been directed by the balance of work left unfinished by Sarah. It was to combine with the work done simultaneously with Sam Young to form a complete business plan for Glenys but this has yet to be achieved. At this point, with considerable time having elapsed since the project's inception, it would be advisable to revisit the work to date to ensure it is still relevant and accurate for use. A great deal has changed both economically and competitively and this would affect the value of the work that was begun but not completed. The law [8] The Corporation has obligations under s 68 of the Act to provide (as appropriate) various entitlements which - see s 69(1)(a) - include that of vocational rehabilitation. That (s 80) has the purpose, as appropriate, to help a claimant maintain or obtain employment or regain or acquire vocational independence. [9] The obligation to provide vocational rehabilitation arises in circumstances including where the claimant is entitled to weekly compensation. [10] Indeed ($ 75) within 13 weeks after acceptance of a claim for cover the Corporation must determine whether the claimant is likely to need such rehabilitation thereafter and, if so, prepare an IRP in consultation with the claimant. [11] After a plan is agreed the Corporation is liable to provide the claimant with rehabilitation in accordance with the plan and Schedule 1 to the extent that it has specified services to be provided under the plan - see s 76. [12] The way in which the Corporation must assess the needs of a claimant, and thus the content of a plan, is prescribed in s 77 by reference to ss 79 and 80 and subs (2) of the latter says that: (2) An individual rehabilitation plan must - (a) Identify the claimant's needs for rehabilitation; and ( 6 ) Identify the assessments to be done; and ( C ) Identify services appropriate to those needs, whether or not the Corporation is liable to provide any or all of those services; and (d) Specify which of the services identified under paragraph (c) that the Corporation will provide, pay for, or contribute to. [13] Section 78 legislates for an obligation to update the plan from time to time to reflect the outcome of assessments done and progress made under the plan. [14] Section 86 is prescriptive of the matters to be considered in deciding whether to provide vocational rehabilitation. Regard must be had to the matters mentioned in s 87 and in deciding what vocational rehabilitation is appropriate the Corporation must consider the practicability of the return of the claimant to the same employment in which he or she was engaged (and, if there was such, with the then employer) when the incapacity commenced. [15] If that is not so practicable it must consider whether it is reasonably practicable to return the claimant to employment of a different kind with that employer, or even to return the claimant to different employment with a different employer in which the claimant can use his or her skills and knowledge and whether it is practicable to help the claimant use as many of his or her pre-injury skills as possible to obtain employment. [16] The then following s 87 prescribes further matters to be considered as regards vocational rehabilitation including whether that is likely to achieve its purpose under the IRP and be cost effective, and whether indeed vocational rehabilitation is appropriate. Such rehabilitation is to be provided "for the minimum period necessary to achieve its purpose, but it must not provide any vocational rehabilitation for longer than three years save in particular circumstances - s 87(2) - 2B. [17] Schedule 1 cl 8 includes a provision - at (2) - that if after a reasonable time the claimant declines to agree to a plan the Corporation may advise the claimant that the plan is finalised and the plan is then to be regarded as if the claimant had agreed to it and the Corporation must then implement same. [18] That provision obviously involves the Corporation in exercising a discretion rather than implementing an obligation one way or the other in which state of affairs K v B can be of importance for in that case the Supreme Court confirmed that general appeals against a decision made in the exercise of a discretion can only be pursued on the grounds of: Error of law [2010] NZSC 112 Taking into account an irrelevant consideration Failing to take account of a relevant consideration, and In terms that the decision is plainly wrong. [19] Vocational rehabilitation as such is not defined by the Act and thus whether or not that has been achieved must be a question of fact in each case. [20] Thus far, and in terms of the applicable law, I have been referring to the Corporation's actual or possible obligations. Unsurprisingly, the Act also deals in reciprocal terms with those of a claimant. An example of the emphasis rightly to be placed on a claimant's personal responsibilities is to be found in Robinson ; [21] The provisions drawn to my attention in that respect were these: Section 70 which, after providing that a claimant who has suffered personal injury and has cover for that is entitled to be provided with rehabilitation, ends with the qualification that he or she: ... is responsible for his or her own rehabilitation to the extent practicable having regard to the consequences of his or her personal injury. Going back to the fundamental obligation of the Corporation, or rather as it is described entitlement of the claimant, it is plain in the first part of s 70 that the entitlement, which of course can only be to the extent provided for by the Act, is referable to an obligation to assist in restoring the claimant's health, independence, and participation to the maximum extent practicable ... Those are the actual and obviously enough sensible constraints. Section 70 is consistent with the object of the Act set out in s 3 in which respect particular reference can be had to: 2 2008/05. (c) Ensuring that, where injuries occur, the Corporation's primary focus should be on rehabilitation with the goal of achieving an appropriate quality of life through the provision of entitlements hat restores (sic) to the maximum practicable extent a claimant's health, independence, and participation. What then is meant by "practicable". Well the answer lies in s 7 and this definition: Practicable, in relation to rehabilitation, means practicable after considering and balancing the following: (a) The nature and consequences of the injury: b) The achievement of rehabilitation outcomes: (c) Costs: (d) Cost effectiveness: (e) The availability of other forms of rehabilitation: Other relevant factors Importantly, s 72 of the Act states that: A claimant who receives any entitlement must, when reasonably required to do so by the Corporation, - (a) Give the Corporation a certificate by a registered health professional or treatment provider that deals with the matters and contains the information that the Corporation requires: (6) Give the Corporation any other relevant information that the Corporation requires: (c) Authorise the Corporation to obtain medical and other records that are or may be relevant to the claim: (d) Undergo assessment by a registered health profession specified by the Corporation, at the Corporation's expense: (e) Undergo assessment at the Corporation's expense; Co-operate with the co-operation and the development and implementation of an individual rehabilitation plan: (8) Undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation's expense: and (h ) Participate in rehabilitation. Case for Ms Johnston [22] Ms Batt described the purpose of the appeal as to achieve reinstatement of business planning assistance such as, she contended, would give her client the opportunity to complete the programme agreed with the business planners. [23] There may well, at this point in time, be some artificiality in that, given we are now at August 2011. But the Court will assume that there would remain a point in the remedy sought (albeit it is less than well informed as to what has since transpired) as it recognises that responsible counsel would not have persisted with the matter otherwise. [24] Ms Batt analysed the reason for declination review as comprising these elements to be taken from the Reviewer's findings: (a) That a reasonable time limit could be implied into the agreement to provide assistance; (b) That the scope of the plan was beyond what the Corporation would usually provide; (c) That the Corporation had substantially complied with its obligations. [25] Of course this Court looks at the whole matter afresh. But, as the argument for Ms Johnston was framed around those identified by her counsel elements, it is only right that I recognise and consider what was put to the Court in these respects and so I proceed accordingly. I do so with, as will become apparent, some apposite to the points raised observations of my own. Implied reasonable time limit [26] A principal plank of the argument here was that until September 2007 Ms Johnston and the contractors were working towards the budget approved by the branch manager in his September 2006 letter and had not been told that the Corporation was going to "time frame" the assistance and stop it part way through the process. No decision letter had issued changing the previously asserted parameters of that assistance. [27] Before going further I note that there is one respect at least in which the substance of this appeal is kin to that of the other heard on the same day and mentioned at the outset of this judgment. What I am referring to here is that many of the differences arising appear to have been born of the Corporation going well beyond (it might reasonably be said) the call of its statutory duty in order to accommodate the particular concerns of Ms Johnston, especially about privacy or confidentiality. [28] As will have been apparent to a careful reader of what I have set out under the heading "Background", several of the problems arising in the present case were born of the Corporation's concessions amounting to it accepting that Ms Johnston might deal with the providers without notice (to use the legal parlance) to the Corporation. Inevitably, that led to the Corporation being something of an outsider in respect of an undertaking which it was to - and did - fund. [29] To the extent, then, that Ms Batt made reference in argument to the Reviewer pointing to a responsibility on the part of Ms Johnston to make sure that she took the best advantage of the assistance available, and to keep the Corporation well and truly in the picture as regards any difficulties, she was referring to obligations at which Ms Johnston could not reasonably have cavilled. Scope of business plan [30] Ms Batt also pointed to the Reviewer having noted (as too would the Court) that the provision of assistance with business planning was an unusual kind of vocational rehabilitation. But then and with there being no statutory definition of that expression, I would accept that it should be regarded as malleable - at least so long as the statutory metes and bounds confining the range of forms of support are left in a state of integrity. [31] It was submitted for Ms Johnston that the Corporation had agreed to provide assistance that would be of direct and tangible benefit to her self employment (and I see no argument with that) and that the intention was (as could not be disputed either) that, given training in making her businesses profitable, she should have the capacity to produce an income such as would leave her independent of weekly compensation support. [32] But again, on the particular facts, there is the already identified problem which might in shorthand terms be described as an inappropriate imbalance of "power" between the parties in as much that, by and large, the Corporation never knew (although paying the piper) any more than Ms Johnston determined that it should know. Substantial compliance [33] I have already noted Robinson', a case where Judge Cadenhead held that an appellant's claim that he had not been sufficiently upskilled by the Corporation should be met by the recognition that it was not a requirement that rehabilitation was undertaken to upskill an appellant where he already had. transferable skills. That approach might be taken to recognise that a spirit of reasonableness must permeate the processes such as have been put in question here. [34] Ms Batt also referred me to another decision of that Judge as supporting the application of a test as to whether the Corporation had "substantially complied" with its obligations to provide assistance. [35] She said that that judgment had related to a challenge to a notice of referral for vocational independence and submitted that the doctrine of substantial See [20] above U v ACC (266/2006) compliance related to the effect of breaches of procedural requirements on the integrity of the process but could not apply in the measurement of whether or not the Corporation had provided such assistance as was its statutory obligation. [36] I would have no quarrel with that particular proposition. But the principle bearing that label is actually not of relevance in present context where the issue as I perceive it is whether, in reasonable (thus objectively measured) terms the Corporation has done all it should have done. [37] In any event, here Ms Batt was pointing (reference Sam Young's 'To whom it may concern' letter to the Corporation of 17 May 2010) to the contention that in fact and when support came to a halt a large portion of the initial proposal had not been completed. [38] I pause to note here that, so far as I can see, what is set out in this communication comprised a form of history of what had allegedly transpired between Ms Johnston and her helpers that, at the times in question, the Corporation could not have been aware of, and that needs very much to be borne in mind when one considers Mr Young's criticism that: It appeared to (him) that ACC did not understand the normal course of business consultancy work, nor the scope of the project. This lack of flexibility (on) ACC's part ensured that Mrs Johnston was unable to complete the work that the proposal had outlined - and it remains incomplete, four years later. Weekly compensation [39] A section of Ms Batt's submissions related to the point (as regards the Corporation's suspension of weekly compensation from 10 April to 3 November 2008 - that is dealt with by the Court in its other judgment issued today) that reinstatement of that had also been sought (in the review in question here) on account the Corporation being in breach of s 110(3)(b) when it commenced the vocational independence process. [40] Here it was submitted that the remedy of reinstatement, albeit essentially the same remedy as had been sought in the other appeal, was not confronted by any jurisdictional block. [41] I next simply record that, under the heading "Remedies", Ms Batt sought for her client the following: (a) A finding that the Corporation had failed to provide the rehabilitation assistance for which it was liable pursuant to the IRP; (b) A declaration that it fund the completion of the business plan and business planning assistance pursuant to the mediated agreement; (c) A finding that it was in breach of's 110(3)(b) by requiring Ms Johnston to attend a vocational independence assessment when it had not provided the vocational rehabilitation for which it was liable; and thus (d) Reinstatement of weekly compensation for the period in question. Case for Corporation [42] Mr McBride considered three issues to arise from the Corporation's decision of 9 December 2009 being: What did the parties agree would be provided by way of business support at the mediation? Was the timeframe and cost for that amended through subsequent correspondence and agreed IRPs? Had ACC met its obligation to provide the business support that was in the overall agreed. [43] Quite rightly, Mr McBride identified as important contextual elements that (a) Ms Johnston was already running the earlier described undertakings with her husband, relying in that respect on her pre-injury transferable skills and (b) considerable vocational rehabilitation had already provided (including pain management counselling, physiotherapy, computer training and an earlier business prepared as long before as 1996 before even the business plan issues arose). [44] As Ms Johnston's productive self employment was the primary consideration for her vocational rehabilitation, the Corporation was, counsel accepted, under an obligation to assist in restoring her health, independence and participation to the maximum extent practicable in the pursuit of that goal. But, as he emphasised, the statutory obligation was to assist, not to assume all responsibility. [45] The Corporation (see s 86) was required to help her use as many of her pre-existing skills as was possible. But the journey towards vocational rehabilitation was a two lane road with Ms Johnston having parallel responsibilities to work towards her rehabilitation as far as was practicable given the consequences of her injury - s 70. [46] The Corporation was not required to provide vocational rehabilitation with unlimited timeframes (s 87(2)). Ms Johnston had already undergone initial occupational and medical assessments way back in 2004 after which, from the May of that year, rehabilitation had been provided. That, submitted counsel, was the backdrop to what was agreed at mediation on 6 March 2006. [47] Mr McBride accurately identified that it was part of Ms Johnston's position that her vocational rehabilitation was not completed back in September 2007 because a business plan had not been finalised. Counsel's response was to argue that such a view was inconsistent with the terms of the agreement which specifically stated that the Corporation was required to assist with the development and review of a business plan and so on, thus its obligation was limited to such assistance rather than to see to the actual delivery of such a plan. [48] Here the Court turns to the terms agreed which were these: [i] ACC will provide, and Glenys agrees to participate in, a Training for Independence Home Based Physiotherapy Programme and pain counselling assistance if required to be provided by Nelson Nursing Service; [ii] ACC will contract with a suitable business advisory service in Nelson to assist with the development and review of a business plan and business planning. This will incorporate marketing and promotion advice. Such assistance will be offered concurrently with the programme in point 1. Any interventions which may be identified in the planning process are Glenys's responsibility to implement; ] The parties have agreed to wording changes in the Individual Rehabilitation Plan (IRP) which are recorded and signed separately. [49] It was noted that Ms Johnston, through her solicitors, had effectively asserted on 23 August 2006 that the Corporation had acted contrary to its accepted responsibilities. The solicitors had contended that: It was agreed, at mediation, that the Corporation would contract with the business consultant. Immediately after the mediation was concluded the Corporation abrogated this responsibility and insisted (reinforced by a threat of cessation of weekly compensation), that Glenys arrange the contract. The Corporation, by its subsequent correspondence has waived all responsibility for entering the contract, and has chosen to limit its involvement to setting a time frame for completion of the plan and payment of the invoice. In none of the correspondence from the Corporation did it reserve to itself any right to ultimately veto the negotiations which it had waived responsibility for. Glenys has complied with the obligations imposed on her by the Corporation in respect of development of the business plan. The plan has been finalised. Glenys wishes to be well on the way with implementing the business planning advice before the next summer season. She has thus instructed the business planners to commence work and is paying them herself, at this stage, to ensure that the maximum benefit is received from the business plan. Glenys has thus changed her position in reliance on the Corporation's approach to this matter. It is our view that the Corporation is bound by the terms of the mediated settlement as varied by its own correspondence and requirements. The Corporation is not now able to renege from [sic] the arrangement which it has reached with Glenys. . .. [50] Commenting on these assertions, Mr McBride submitted that the evidence demonstrated no such waiver (for whatever - if any at all - effect it could have had) but had been held at arms length by Ms Johnston's insistence on confidentiality. [51] He then alluded to the August and September 2006 correspondence, that leading to agreements that: The Corporation would provide the services outlined by Ms Young which envisaged 12 months of services. The Corporation would not receive business planning documents but would receive a monthly invoice and update from the contractors. Despite this period of business support, Ms Johnston would enter the vocational independence in December 2006. [52] Mr McBride noted that these terms were thereafter entered into the IRP (that on 27 February 2007) and that it had recorded that the business advice was due by 30 July 2007. [53] All of these terms had been signed off by Ms Johnston herself and the IRP had thus implemented and formalised the agreements that had been reached at mediation, plus the subsequently agreed timeline. [54] Mr McBride then came to what was, he submitted, the real problem that, becoming dissatisfied with the services, she herself had (using the lever of confidentiality) persisted along her own path instead of - even belatedly - bringing the Corporation usefully into the picture. [55] She had but briefly informed the Corporation of difficulties in March 2007, then advising that these had been resolved through a change of (upon which the Corporation was not consulted) personnel. As I have already recognised to be obvious, Mr McBride submitted that the reality was that, by then, and thereafter, the Corporation had no way of usefully monitoring what was going on. [56] Ms Johnston had assumed de facto responsibility for the monitoring of quality and, to the extent she had concerns, had not abided s 72(1)(b) and (1)(f) of the Act, at least not until it was altogether too late. Thus, so Mr McBride argued, the Corporation had effectively become hamstrung. Provision of information and acts of co-operation. [57] But in any event the reports from Young, O'Flaherty and Mockett, taken together, indicated significant assistance had in fact been provided with business planning and marketing. Here Mr McBride harked back to the solicitor's letter of 29 October 2009 in which (in terms dissonanceth the complaints that have driven this litigation) Ms Johnston's solicitor had described the support given as the most significant and helpful rehabilitation assistance she had got from the Corporation. [58] Mr McBride submitted that: (a) The focus of the appellant's rehabilitation was on the developing of the personal skills required to maintain self employment. b) The assistance she received was targeted at enhancing those personal skills. (c) How the appellant chose to use that advice and use her skills to progress her business was her responsibility in any event (self-assumed). (d) The appellant's personal responsibility to implement the advice she received was specifically recognised in the mediated agreement and in Ms Young's proposal. (e) ACC had no responsibility or liability to the appellant's business to provide her with a business plan. [59] Counsel then contended that the inference was there for the taking that inaction over, or inappropriate reaction, to the contribution or lack of it from her helpers was likely the substantial reason why a business plan was not confirmed within the time allocated. [60] He added, too, that personalities seem to have got in the way for Ms O'Flaherty had described her dealings with Ms Johnston as "an exceptionally 6 Included, as to the passage in question, in the chronology at [7] above. bad experience" and had said that "I have more than fulfilled my commitment to Glenys and am disturbed by her behaviour". [61] What, counsel submitted, appeared to be the unalloyed expectation of Ms Johnston was the funding of ongoing and open ended support with no consultation save at her will, and even then the Corporation had paid an additional four months worth of invoices. [62] Lastly counsel pointed to the express acknowledgement in the August-September correspondence that the vocational independence process would not be delayed by the fact that advice would be provided on an ongoing basis over 12 months. [63] There was no evidence that the Corporation made an error of law, took into account an irrelevant consideration, failed to take into account a relevant consideration or that the decision was plainly wrong. It had, in the given circumstances, been quite entitled to exercise its discretion to finalise the IRP as it did, having met its obligations to the extent provided under the mediated agreement. Discussion [64] Relative to the overall length of this judgment my discussion of the issues leading to the conclusion I reach will be rather brief. [65] The reason for that is that in my view what I have set out by way of background and have covered (with some interpolated observations of my own) in the course of rehearsing the arguments each way must surely operate to demonstrate why matters ended as they did, namely in the decision terms of 9 December 2009. [66] It will surely by now be obvious to the reader of this judgment (particularly if it is read in conjunction with that contemporaneously issued with it) that, at the most fundamental level of reality, Ms Johnston has been the author of her own perceived misfortunes. [67] That is not to say that the Corporation has not been something of a party to the problems, but it has only been that on account a (now surely plainly to be seen as quite misguided) endeavour usefully to progress with Ms Johnston's rehabilitation by seeking (all too often as it turns out) to mollify or appease her in the hope that that would serve to assist in the achievement of the statutory objectives in question. [68] In the circumstances as I have already recognised them to be, it is Ms Johnston rather than the Corporation which must accept accountability for any shortcomings - of which I find no clear and impartial evidence anyway. 69] As I see the facts, including in reference to the terms agreed at mediation, Ms Johnston effectively took it upon herself (which in other circumstances might have been quite laudable) not only directly to deal with but also effectively, or otherwise, to oversee the provision of the business plan services for which the Corporation paid. [70] In the way she went about that (with the Corporation even being excluded from access to the full plan or plans) she herself left the Corporation blind (an expression one of the Corporation staff used in a letter at one point) as to what was going on or not, usefully or not. [71] Something of the mark of Ms Johnston's approach to her dealings with the Corporation is evident in the summary of communications set out in the Corporation's decision letter of 9 December 2009 where it is recorded, accurately it seems to me, that Ms Johnston had even sought to avoid the finalising of the plan by adopting a pettifogging approach to the issue of what forms were being used. [72] In the end Ms Johnston effectively invited the Corporation to deem the IRP which - as she must have known would then follow - it duly did. And I find nothing in what has been put forward on her behalf such as might demonstrate that, in taking up that invitation, the Corporation was in any real sense, and in the singular circumstances of this case, in breach of its pertinent statutory responsibilities. [73] And that must mean, too, that to the extent that the suspension of weekly compensation was sought to be worked into the argument on this appeal (it being dealt with from another perspective in the judgment in the other appeal) Ms Johnston has not shown, even arguably, a remedy entitlement. Result [74] The appeal must fail and it is dismissed. Costs [75] In case the Corporation may have an application on this account, costs are reserved. Roderick Joyce Qa District Court Judge ACR 859-10.doc (aw)