BIDLAKE V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2007-485-2665

BIDLAKE V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2007-485-2665 30 May 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2007-485-2665BETWEEN GRAEME ALLAN BIDLAKE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 29 May 2008 Counsel: I S Young-Gough for Appellant A Barnett for Respondent Judgment: 30 May 2008 at 3.30 pmRESERVED JUDGMENT OF RONALD YOUNG J[1] Mr Bidlake had been a plumber for 39 years when in 2000 he suffered an accident which injured his heel. He had an operation shortly afterwards but he continued to suffer pain and discomfort which prevented him from returning to plumbing. He was granted accident compensation. [2] Initially, the Corporation thought he could be rehabilitated to return to work as a plumber. However, later, it changed its view and focused on rehabilitation to get the appellant fit for any suitable employment. The appellant says that when the Corporation changed his individual rehabilitation plan (IRP) from having, as its outcome, maintaining his employment (as a plumber) to, regaining "vocational independence", it failed to give the appellant the right to seek a review of such a change. The appellant's first ground of appeal is that the Judge in the District Court wrongly concluded the failure to give such review rights did not affect the appellant.[3] The second ground of appeal alleges that the Judge wrongly concluded that the appellant had no right to be heard by the Corporation after the vocational medical assessment was completed and before it made a vocational independence determination.Background[4] This is an appeal on a point of law, leave having been given by the Judge in the District Court. A brief history of Mr Bidlake's treatment is appropriate. The District Court decision summarised Mr Bidlake's initial medical treatment in this way:[3] Mr Ian Denholm, orthopaedic surgeon, performed an open reduction and internal fixation of the os calcis fracture on 6 March 2000. In December 2000, Mr Denholm noted continuing pain although x-rays demonstrated the os calcis fracture had united well. He discussed with Mr Bidlake the option of subtalar fusion and noted that Mr Bidlake wanted to think about it. [4] In June 2001, Dr Peter Dodwell wrote that further surgery was not indicated at that stage, but he would be kept under review. He said surgery such as mid-tarsal fusion would not improve his mobility, in fact quite the reverse, but it might be warranted at some later stage if pain became a major problem. He said there was no other form of therapeutic intervention that would affect long-term outcomes. [5] In September 2001, Mr Denholm wrote that Mr Bidlake's symptoms were primarily arising from his subtalar joint. He explained to Mr Bidlake that the only option for surgical management would be fusion of the joint but it was likely that he would never return to work as a plumber if this were done. Mr Denholm noted that Mr Bidlake was looking at the option of retraining for a lighter job.[5] The Corporation carries out its rehabilitative responsibilities by the preparation of individual rehabilitation plans (IRP). The first plan prepared by the Corporation for the appellant had as its object to "maintain employment with the same employer". Its desired "outcome" was that Mr Bidlake return to work as a plumber. While this is what Mr Bidlake wanted medical advice from his General Practitioner and surgeon was that his was unlikely to occur. [6] The 2001 Injury Prevention and Rehabilitation Act came into force on 1 April 2002. Shortly afterwards a second IRP was completed for Bidlake. Thestated outcome of the plan was for Mr Bidlake to "regain the ability to work". Somewhat confusingly this phrase was more appropriate to the 1998 Act than the 2001 Act. The 1998 Act provided that one of the purposes of vocational rehabilitation was to "regain or require a capacity to work". This was changed in the 2001 Act to "regain or acquire vocational independence". Nothing, however, turns on what is essentially a change of words only. [7] The third IRP was dated 20 August 2003, the stated outcome by this stage was to "return to work or work readiness". [8] In August 2004 the Corporation proceeded with a vocation independent assessment pursuant to s 107 of the 2001 Act. The Corporation wrote to the appellant in August 2004 telling the appellant of its decision to proceed with the assessment and the nature and implications of the assessment. The appellant then underwent occupational and medical assessments as prescribed by the Act. A medical assessment was completed and sent to the Corporation and to the appellant on the same day. [9] On 11 October the Corporation decided that the appellant had vocational independence and they notified him on 15 October. He was advised, in accordance with the Act, that his weekly compensation would therefore cease in three months. The appellant sought a review of this decision which was unsuccessful, and appealed to the District Court. This appeal deals in part with decisions made by the District Court in that appeal. The appeal was dismissed.This appeal – Right of review[10] It is common ground that, as found by the District Court Judge, the appellant had a right of review of the second IRP of 26 April 2002, but was not advised of that right of review. The Judge in the District Court, however, concluded that failing to tell Mr Bidlake of his right of review did not have a significant consequence. He said:[33] Applying the principle to the present case, I find that the error in failing to notify Mr Bidlake of his right to review did not have a significantconsequence. For the next two years Mr Bidlake must have been aware of the purpose of vocational independence. It was first introduced in the IOA in May 2002. But he did not make any suggestion for vocational rehabilitation through further surgery or in any other way to promote his return to full time work as a plumber. There is still no clear opinion that return to work would be advanced by surgical arthrodesis. I am forced to the conclusion that there was no viable ground for an appeal against the 2002 IRP and that failure to notify had no practical effect on the subsequent procedures.[11] The appellant says that the Corporation's failure to provide the right to make an application for review deprived the appellant of an opportunity to exercise his rights and affected the integrity of the IRP and consequent vocational rehabilitation process that ultimately led to the cessation of his weekly compensation. [12] Counsel for the appellant accepted that the only possible question of law arising in these circumstances was as follows; pursuant to the 2001 Act where a person entitled to compensation is not notified of a right of review of a Corporation decision can an appellant Court take into account in deciding an appropriate remedy for such a failure that the failure to notify had no practical effect. [13] The appellant's case is that the failure to notify the right to such a review is fatal to any further process undertaken by the Corporation based on the decision that was the subject of the failure to notify. [14] The Judge approached the question in this way:[32] There have been a number of decisions dealing with defects in an IRP in the context of their likely effect on the subsequent process of vocational independence assessment, for example Judge Beattie's judgments in Millan (379/04) and Print (403/04), my judgment in Purches (239/05) and recently Judge Barber's judgments in Laidlaw (52/06) and Nadali (53/06). In Laidlaw, Judge Barber identified the general principle that, in considering the effect of non-compliance with statutory procedure, the context of the defect must be considered to determine its effect on the integrity of the procedure as a whole: A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA); Re Geotherm Energy Limited [1989] 2 NZLR 22 (CA).[15] I see no error of law in this approach. It is a perfectly orthodox approach and supported as noted by authority. Counsel for the appellant had no authority to support his stance, nor was it justified by the statutory regime. The answer to the question of law posed in [12] must therefore be yes.[16] Although not directly part of this appeal, Judge Ongley, in my view, correctly said failure to notify the right of review had no practical effect in this particular case. A change in the outcome of the IRP from maintaining his existing employment to being fit for other suitable employment in Mr Bidlake's case was inevitable. By 2002, as the Judge found, the medical evidence pointed to the conclusion that he could not return to full-time plumbing work. The only surgical intervention possible would, if anything, reduce his capacity to be a plumber. As the Judge emphasized, Mr Bidlake must have been aware that the Corporation was trying to get him fit for full-time work, that is to be vocationally independent. If Mr Bidlake thought that it was still possible for him to continue as a plumber through some form of surgery, or in any other way, then he had the opportunity to identify the treatment and ask that it be undertaken. He did neither. The Judge's decision on the facts was also correct. [17] There was also ample subsequent opportunity for the appellant to review his course of rehabilitation through either recasting his IRP or by way of an appeal. Mr Bidlake could have applied for a review of the April 2002 IRP beyond the three month time limit by claiming extenuating circumstances. It would surely have been an extenuating circumstance that the Corporation had failed to advise him of his review rights. [18] The IRP is subject to revision and updating constantly. Its intention is to reflect Mr Bidlake's current position and a future plan. When his third IRP was undertaken in August 2003 a similar outcome to the 2002 IRP was identified, that is a return to work or work readiness. After the 2003 IRP was complete, the appellant was told of his review rights. He chose not to seek a review. Mr Bidlake did, therefore, have a continuing right to review the IRP and he chose not to take it. [19] The vocational independence assessment commenced in August 2004. The appellant had, and knew he had, a right of review and ultimately a right of appeal from that decision itself, which Mr Bidlake has exercised in these proceedings. Part of that appeal process involved a consideration of whether the rehabilitation provided to him was sufficient. Mr Bidlake challenged the efficacy of his rehabilitation in his application for review of November 2004 which was ultimatelyrejected. Mr Bidlake, therefore, has in fact, had the opportunity to review the rehabilitation plans, including the 2002 plan. This ground of appeal is dismissed.Breach of natural justice[20] The appellant submits that he should have been given an opportunity to be heard by the Corporation after they received the vocational independence medical assessment and before they made a determination as to vocational independence. He says the failure to do so was a breach of natural justice. [21] Judge Ongley, when considering this submission, said:[62] Finally, Mr Young-Gough submitted that the Corporation decision was issued six working days after the vocational independence assessment report was delivered to Mr Bidlake. The short notice is said to be unreasonable and a breach of the principles of natural justice. [63] Ms Lester submitted that there is no legislative requirement for a period of time to elapse before the issuing of a decision. The claimant always has a right to access the dispute resolution processes, so there can be no breach of natural justice. [64] That is correct. There is no statutory provision requiring an opportunity for discussion at that stage. Consultation opportunities are provided at various stages of the process. They may have been unsatisfactory as the appellant contends. His own views may have been rejected in favour of the views of various assessors and other persons involved in the rehabilitation process. But once the Corporation obtained the information that it required in order to make a vocational independence decision, there was no statutory requirement to consult with the claimant. Whether or not it should have done so was a matter for administrative and policy considerations, but it could not affect the validity of the decision.[22] The question of law can be framed in this way; as a matter of law was the Corporation obliged (by natural justice principles) to provide the appellant with a chance to see and comment on its medical assessment before it made its vocational assessment. [23] I agree with Judge Ongley's approach. There was no breach of natural justice in failing to provide an opportunity for Mr Bidlake to comment on the medical assessment before his vocational independence was determined. It is not abreach of natural justice because a person in Mr Bidlake's position does not have the opportunity to make submissions on every single stage of the process. [24] There is no statutory review right provided in the Act or a statutory "opportunity to be heard" between the medical assessment and the independence determination. The Act contains an extensive process for reviews and appeals of numerous decisions. Clearly Parliament thought no such opportunity was required between the medical and the vocational assessment. [25] In any event, the appellant could easily have expressed his opinion to the Corporation on the medical assessment in the six days between receiving it and the vocational determination if he had chosen to do so. [26] More fundamentally, there is a right of review of the vocational independence determination and in turn appeal rights. The right of review obliges the reviewer to consider the matter anew. The appellant was therefore able to challenge the vocational independence medical assessment in any application to review the independence determination. [27] Finally, before the medical assessment is completed an assessor provided the appellant with the opportunity to discuss such matters as, the types of work that is identified as suitable for the complainant. The assessor is obliged to take into account the comments and information of the claimant in making his assessment. [28] Even if there was an obligation as identified by the appellant, the appellant has had several opportunities to challenge the medical assessment (see Singh v Attorney-General [2000] NZAR (CA)). [29] In summary, therefore: (i) There was no statutory obligation on the Corporation to produce a formal opportunity for the appellant to comment on the vocational independence medical assessment before the determination of vocational independence.(ii) It is not a breach of natural justice to fail to provide such an opportunity. (iii) In any event, the appellant did have an opportunity to discuss the medical assessment with the assessor before assessment is complete. (iv) The appellant, through the review and appeal process, can effectively challenge the medical assessment and the vocational assessment. [30] Even if an obligation existed to discuss the medical assessment and even if I concluded a failure to do so was a breach of natural justice, I would not have provided any remedy to the appellant. He did not suggest there was anything he could have said to the medical assessor which he has not subsequently had the chance to say and have taken into account. [31] The second ground of appeal is dismissed. [32] If the respondent seeks costs it should file memoranda within 14 days and the appellant has seven further days to reply."Ronald Young J"