Bidlake v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION NO. 25 1 /2007 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an application for leave to appeal pursuant to section 162 of the Act BETWEEN GRAEME ALLAN BIDLAKE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Counsel: I S Young-Gough for appellant A D Barnett for respondent Decision: 16 November 2007 DECISION OF JUDGE D A ONGLEY ON APPLICATION FOR LEAVE TO APPEAL [1] The appellant seeks leave to appeal to the High Court from a judgment delivered on 11 April 2006, Bidlake (90/06), dismissing an appeal against the respondent's decision that he was vocationally independent. The focus of the grounds for appeal concerns whether the appellant had completed vocational rehabilitation and whether the respondent was entitled to start a vocational independence assessment. [2] The appellant suffered a foot fracture that prevented him from continuing his work as a plumber. In the course of vocational rehabilitation he tried to regain capacity for his former work but could not do so. Arthrodesis of the subtalar joint was considered but was not recommended. In the appeal, I found that the appellant did not seek a surgical solution to improve his capacity to work, and that the medical evidence did not stipulate surgery as a need for rehabilitation for full time work. GRAEME ALLAN BIDLAKE V ACCIDENT COMPENSATION CORPORATION DC WN DECISION NO. [16 November 2007] Consequently, I found that the evidence did not show that surgery should have been a component of the appellant's rehabilitation plan. [3] I found that the Corporation failed to notify the appellant of his review rights at the time of an individual rehabilitation plan (IRP) of 26 April 2002 which initiated the purpose of vocational rehabilitation for regaining ability to work, which meant for vocational independence. The purpose for vocational rehabilitation had previously been to return him to his pre-injury occupation. I found that the change was significant and accepted the appellant's argument that, if the former purpose of maintaining employment had continued, there would have been no requirement to embark on an initial occupational assessment. I held that, when 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. [4] Mr Young-Gough submitted that the following points of law arise for consideration on appeal to the High Court: i) Whether a failure to advise review rights in respect of an IRP invalidates any subsequent vocational independence determination; ii) Whether a failure to advise review rights in respect of an IRP when the "outcome to be achieved" pursuant to the hierarchy provided in s 80(1) of the 2001 Act is changed invalidates any subsequent vocational independence determination; (ifi) Whether a failure to advise review rights in respect of an IRP invalidates any subsequent vocational independence determination only in circumstances where the failure to do so "did not have a significant consequence" when applying the 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; iv) Whether in exercising the discretion to initiate the vocational independence process when outstanding treatment is identified invalidates any vocational independence determination when such treatment that has been identified remains incomplete or un-addressed; (v) Whether when advising the outcome of a vocational independence occupational assessment determination and before advising the outcome of a vocational independence determination that then includes the medical assessment, the claimant has a legitimate expectation to be heard and should be give a reasonable opportunity to be heard. [5] As to submission (iv), the finding of insufficient evidence to show that surgery should have been addressed in the IRP was a fact decision that is not open to appeal. Mr Young-Gough referred in particular to an observation in my judgment that "it could not be said that ACC were obliged to address the prospect of surgery when it had not been initiated by the appellant". The appellant disagrees with that statement, but it is part of a fact finding and does not raise a question of law. The question of law that is suggested turns on a finding of fact that "outstanding treatment is identified" which is a vague and general description and does not represent a fact finding made in the case. I consider that the suggested question of law is not open to bona fide and serious argument. Leave is refused in relation to ground (iv). [6] On grounds (i), (ii) and (ifi) Mr Young-Gough submitted in support of leave to appeal that it was inconsistent, and also contrary to Weir v ACC (unrep. High Court, Wellington, CIV 2003-485-1921, 18 August 2004, Miller J), to find that the change was significant, and then to find that the error in failing to notify the appellant of his review right did not have significant consequences. In the judgment, I decided that: [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 significant consequence. 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 RP and that failure to notify had no practical effect on the subsequent procedures. [7] I made a finding of fact that the appellant had no viable ground for an appeal against the 2002 IRP, that is to say no ground for review in the first instance, so that failure to notify had no practical effect on the subsequent procedures. There was no evidence that the respondent could have been obliged to provide more by way of vocational rehabilitation. [8] Mr Young-Gough submits that, once the appellant was deprived of the advice that he was entitled to challenge on review the change in direction of the IRP, the appellant was denied a right to argue against the change. If he had gone to review, he may have been able to show that other vocational rehabilitation was appropriate. The argument is worth considering. My findings were expressed briefly in a judgment dealing with seven different arguments on appeal. I think that the appellant argues that the judgment did not consider whether the appellant lost an opportunity to influence the process after a change in purpose had been decided by the respondent. The scope of my decision, in practical terms, was that the evidence as it then stood, did not disclose a basis on which the respondent should have been obliged to continue with the original purpose of vocational rehabilitation. The further point for consideration is that the loss of opportunity to review had an effect on the integrity of the rehabilitation process, where there was a change in the puprose of rehabilitation that could have been addressed and possibly remedied on review or appeal. [9] Mr Young-Gough referred to authorities concerning leave to appeal, and in particular that a mixed question of law and fact is a matter of law: CIR v Walker [1963] NZLR 339. His argument is that loss of the right to challenge a change in the purpose of vocational rehabilitation deprived the appellant of an opportunity to address the question of surgery and future fitness for work and to put up a case. The need to recognise the available alternatives and to argue the question of capacity to return to his former occupation might have provided the impetus for a real change in the vocational rehabilitation process. [10] I do not agree with the submission that the Court failed to follow Weir v ACC. Weir has been consistently applied in this Court on the basis that there is a right of review from finalising an IRP, but that when the review right is not exercised, then the vocational rehabilitation may be completed and the respondent may be entitled to proceed with a vocational independence assessment. But when the integrity of the vocational rehabilitation process has been adversely affected, then the respondent's failure to advise a claimant of a review right may lead to a finding that vocational rehabilitation was not properly completed. [11] There are a number of decisions to fairly similar effect such as Print (394/2004), Henderson 9396/2004), Millin (397/2004), Gibb (122/2005) and Mckean (132/2005), dealing mainly with the point that a claimant could not be prejudiced by an IRP containing a requirement for initial assessments, so that failure to advise review rights could have no adverse effect at all. Other judgments such as Bondarenko (173/05), Purches (239/05) and Laidlaw (52/06) address the same problem arising from various fact situations. In Bondarenko (173/05), Judge Cadenhead said with regard to the vocational rehabilitation process that the legislation should be looked at in the round to ensure that the provisions of the legislation have been carried out in realistic way. When declining an application for leave to appeal in Bondarenko v ACC (unrep. High Court Wellington, CIV 2006- 485-555, 23 February 2007) Ronald Young J agreed that a failure by the Corporation did not affect the integrity of the plan where there was no evidence that the failure was a relevant factor. [12] In this case, my decision considered the circumstances as they were, but the appellant's argument is that the Court should have taken into account also the circumstances as they might have been if a right of review had been taken up, because if correct advice had been given the appellant would have had an opportunity to at least address the appropriateness of the plan and other avenues for rehabilitation. In my view the consideration of the circumstances as they were was a decision on a question of fact, and is not open to appeal. However I think that the other point raises a question of law that may be argued on appeal to the High Court. How that question is formulated might have to await the argument on appeal. It may be approached on the basis that in all cases, where the IRP contains a significant feature affecting the right of the appellant, the failure of advice of review rights deprives the appellant of an opportunity to exercise a right and affects the integrity of the vocational rehabilitation process. It might otherwise be approached on a narrower basis on the facts of the particular case. [13] Ground (v) was that there was no breach of natural justice by giving the appellant only six days notice of the outcome of the vocational independence assessment before the Corporation made its decision that he had vocational independence. I decided that consultation was available at various stages of the process and that there was no legislative or other requirement for a period of time to be allowed for representations by the claimant once the respondent received the vocational independence assessment. In a recent appeal of Millar (247/07), Mr Young-Gough raised the same question and I decided as follows: [98] In the course of the assessments the claimant has an opportunity to be heard by presenting his views to the two assessors. Those views are incorporated in the assessments, The Corporation does not usually make any decision other than to accept the assessments. Under s107(2) "The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment , so the determination does not involve another independent decision by the Corporation. The Corporation could not properly reject assessments unless there is a flaw that renders them incomplete or wrong. One answer to the natural justice argument is that post-assessment representations could only be directed to an assessment flaw. The review process itself provides an opportunity to address an assessment flaw and the claimant has not been deprived of a necessary opportunity to be heard between the assessment and "determination" stages. In this case the requirements of natural justice were fully met by consultation with the assessors [14] Whether the rules of natural justice require that the claimant should have an opportunity to be heard after receiving the vocational independence assessment and before the respondent makes a vocational independence determination is a question of law. I think that it is capable of bona fide and serious argument and that leave should be given. [15] I note that, in his application for leave, Mr Young-Gough mentioned that it was not known what file information was provided to the Court. It should be noted that the Court considered only the information that was available at the hearing, that is to say the formal bundle of documents and anything else offered by the parties in the course of argument [16] Leave to appeal is granted in relation to two matters. Costs on this application are reserved. Judge D A Ongley District Court Judge