Dewe v Accident Compensation Corporation

IN THE DISTRICT COURT AT CHRISTCHURCH WELLINGTON REGISTRY [2012] NZACC 37 ACR 58/11 UNDER The Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to s. 149 of the Act BETWEEN IAN LESLIE DEWE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 4 October 2011 DATE OF THIS DECISION 8 February 2012 APPEARANCES The appellant on his own behalf Mr H Evans, counsel for ACC RESERVED DECISION OF JUDGE P F BARBER The issue [1] This appeal raises issues. The first is whether ACC was correct on 25 June 2010 in declining to provide weekly compensation because Mr Dewe would not participate in a Work Preparation Programme (Review No. 192052). [2] The second issue involves a jurisdictional issue as to whether Mr Dewe's 20 September 2010 application for review constituted a valid application (Review No. 192161). Background [3] Mr Dewe was injured on 26 January 1993 when, working as an employee sprinkler-fitter, he fell approximately 1.8 metres from a scaffold platform. He attended A & E immediately, but was discharged. He attended again about four days later after an incident of acute pain at work. The original ACC claim form, dated 2 3 February 1993 described the diagnosis and social description of injuries as: "Thorocolumbar back strain?? Crush#" [4] The original ACC cover report dated 4 February 1993 records the injury site to be the upper back/spine and the diagnosis to be "sprain or strain" [5] Since 1993, Mr Dewe has not returned to work, except in a very limited part- time capacity. A number of attempts to finalise Individual Rehabilitation Plans and other vocational rehabilitation matters have resulted in numerous reviews and appeals. [6] Since approximately 2004, Mr Dewe's key concern has been that his injury was or is misdescribed by ACC. In particular, it is his position that the injury diagnosis used by ACC at present is "thoracic sprain-side: left and lumbar sprain lower back/spine side left". Mr Dewe's position is that this understates the severity of his injury, and that it is this understated estimation of the injury which has caused ACC to act prematurely in providing vocational rehabilitation and encouraging a return to work. It particularly concerns the appellant that he feels that ACC ignores a medical diagnosis of "crush". 7] ACC's position (and this has been confirmed on a number of occasions by Reviewers and by this Court) is that Mr Dewe's obligation to undertake rehabilitation extends to any rehabilitation which is reasonable in light of his injuries, and that the description of the injury is of little moment in assessing appropriate entitlements. [8] On 3 June 2010, ACC finalised an Individual Rehabilitation Plan (an IRP). This contained an agreement for referral for a Work Preparation Programme. [9] On 10 June 2010, ACC wrote to Mr Dewe advising that it would refer him for a Work Preparation Programme at the Southern Rehabilitation Institute (SRI). [10] By letter of 10 June 2010 ACC wrote to Mr Dewe regarding that referral. The relevant part of that letter is as follows: "Furthermore, it is not only a requirement that you attend the appointment, but it is a requirement that you participate in the vocational rehabilitation programme. If ACC receives any information from the SRI that you have acted unreasonably during any session, or that you are not participating in the programme, ACC will decline to provide further payments of weekly compensation to you." [11] On 15 June 2010 ACC approved funding for taxi transport for Mr Dewe to attend his rehabilitation programme at the SRI. This taxi funding included a return trip from Sumner, where Mr Dewe lives, to St George's Hospital in Merivale, and then a return trip home again. [12] On 17 June 2010, ACC wrote to Mr Dewe again in response to a letter from him of 16 June 2010. The relevant part of that letter is as follows 'I also note that you have advised, that you do not think it is appropriate to commence rehabilitation. You have been assessed by a number of specialists over the years, and they are all in agreement that you are fit for alternative employment, and that you 3 should be working towards a return to work and a return to independence. In addition to this, you have also been assessed as fit to work in certain job types by Dr Marshall. This confirms that it is appropriate for vocational rehabilitation to be commenced. You have an obligation to attend and participate in your rehabilitation, which includes attending a Work Preparation Programme with Southern Rehabilitation Institute. It is clear from the information available to ACC that you have the physical capacity to comply with the rehabilitation requirements places on you. ACC considers that the rehabilitation components of this rehabilitation programme are fair and reasonable, given your physical capabilities." The Work Preparation Programme [13] This programme was scheduled for 23 June 2010. On that date, ACC received an email from the Assessor stating: "Just to inform you that lan attended for his WPP initial assessment today but unfortunately I was not able to let the assessment continue as I was not satisfied that we had gained clear consent from him. lan stated very clearly that he had strong disagreement with the current ACC rehabilitation plan and also with the ACC definition of his injury. He did not feel he was ready for rehabilitation and wanted me to sign a pre-prepared document from him, before we could continue. We spent 50 minutes in discussion but in the end it was clear that any consent from him was in words only and that the requirement of genuine consent was not present. He clearly stated that he was presenting for the session under duress and coercion and hence his offer to sign the forms was not going to be ethically or professionally acceptable. I have contacted his GP with some mild/moderate concerns re lan's psychological status. We would be happy to see him again but the consent issues and rehab engagement would need to be discussed openly, preferably by a number of associate stakeholders." The Decision Letter - 25 June 2010 [14] On 25 June 2010, ACC wrote to Mr Dewe and noted: "Southern Rehabilitation Institute have advised that at your appointment with them on the 23 June 2010, you strongly voiced your objection to commence any vocational rehabilitation. You also advised that you would only sign the consent form "under duress". You made it clear that you had attended the appointment under duress. Southern Rehabilitation Institute terminated the appointment because of your refusal to give clear consent. ACC considers that this is behaviour is unacceptable, and that you are non- compliant with your vocational rehabilitation." 4 [15] ACC noted that weekly compensation would stop from 2 July 2010. [16] Mr Dewe completed two applications for review. One challenged the decision of 25 June 2010 and the second, which he termed a "default review hearing", related to an alleged failure to address an Official Information Act request. The Review Decision [17] A review hearing took place on 22 November 2010 before Reviewer John Greene and, in a decision of 20 December 2010, both applications for review were dismissed. Mr Dewe gave evidence at the review hearing and confirmed that he was unable to provide informed consent because, in his view, other relevant factors were not taken into account. As the Reviewer noted at page 7 of his decision: "Behind both of these applications is an insistence by Mr Dewe that ACC has not assigned a separate claim number to an injury diagnosed initially as a possible crush fracture. He believes that the one claim number assigned to his claim is not valid. He said there must be a correct injury diagnosis as a matter of fundamental principle." [18] The Reviewer then stated emphatically at page 8: "Mr Dewe needs to understand once and for all that there has been no mis- description of his injury. The M46 claim form to which he refers contained a number that has no relevance to the claim number ACC assigns to a particular claim. A District Court Judge has already told him in no uncertain terms that his insistence on using this reasoning to refuse to provide consent is unreasonable. If Mr Dewe will not accept that statement from a District Court Judge, he is even less likely to accept it from me. However, the fact remains that his insistence on the point was, is, and continues to be unreasonable." [19] The Reviewer then concluded on page 9 that ACC correctly declined to provide weekly compensation and the Assessor was unable to obtain proper consent "because Mr Dewe insisted this consent was being given under duress and with coercion." On page 10, Mr Greene recorded: "In this situation, I have no hesitation in concluding that Mr Dewe did not comply with his responsibilities as a claimant who receives entitlements. ACC clearly warned him of what it required in its letter dated 10 June 2010. Despite that, he would not provide a clear consent to participate in the Work Preparation Programme. I find that to be an unreasonable refusal or unreasonable failure to comply with his Section 72 responsibilities." Review 192161 [20] This application was described by Mr Dewe as a "default review hearing". He referred to his application for an alleged failure by ACC to address his Official Information Act 1982 request, and to "... this ongoing issue of cover for a crush fracture and the assigning of a separate claim number for that injury." [21] Mr Greene concluded that pursuant to Section 6 of the Accident Compensation Act 2001, there was no "decision" or "Corporation's decision", which fell within that statutory definition; and he declined jurisdiction in relation to that review. 5 Relevant Law [22] The relevant sections of the Accident Compensation Act 2001 are ss. 70, 72 and 117 as set out below. [23] Section 70 provides: '70 Claimant's and Corporation's obligations in relation to rehabilitation A claimant who has suffered personal injury for which he or she has cover - (a) is entitled to be provided by the Corporation with rehabilitation, to the extent provided by this Act, to assist in restoring the claimant's health, independence, and participation to the maximum extent practicable; but (b) is responsible for his or her own rehabilitation to the extent practicable having regard to the consequences of his or her personal injury." (emphasis added). [emphasis added] [24] Section 72 provides: "72 Responsibilities of claimant who receives entitlement (1) 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: (b) 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 professional specified by the Corporation, at the Corporation's expense; (e) undergo assessment, at the Corporation's expense: (f) co-operate with the Corporation in the development and implementation of an individual rehabilitation plan: g) undergo_assessment_of present_and_likely capabilities for the purposes of rehabilitation, at the Corporation's expense: (h) participate in rehabilitation. (emphasis added) (2) Every such claimant must give the Corporation a statement in writing about any matters relating to the claimant's entitlement, or continuing entitlement, to an entitlement that the Corporation specifies, and must do so whenever the Corporation requires such a statement. (3) If the Corporation requires the claimant to do so, the claimant must make the statement referred to in subsection (2) as a statutory declaration or in a form supplied by the Corporation." (25] Section 117 provides: "117 Corporation may suspend, cancel, or decline entitlements (1) The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. (2) The Corporation must give the claimant written notice of the proposed suspension or cancellation within a reasonable period before the proposed starting date. 6 (3) The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to- (a) comply with any requirement of this Act relating to the claimant's claim; or (b) undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or (c) agree to, or comply with, an individual rehabilitation plan.". (26] In relation to the second review, Section 6 is relevant as this defines what is a "decision" as follows: "decision or Corporation's decision includes all or any of the following decisions by the Corporation: (a) a decision whether or not a claimant has cover: a decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury): (c) a decision whether or not the Corporation will provide any entitlements to a claimant: (d) a decision about which entitlements the Corporation will provide to a claimant: (e) a decision about the level of any entitlements to be provided: (f) a decision relating to the levy payable by a particular levy player: g) a decision made under the Code about a claimant's complaint." [27] In the High Court decision of Weir (CIV 2003/485), Miller J said: "In the case of a claimant in receipt of weekly compensation, ACC is liable under Section 85 to provide vocational rehabilitation, to the extent provided by the Act, whether or not she applied for it, and the claimant must co-operate or risk loss of compensation. Section 72 requires a claimant to co-operate with ACC in the preparation of an IRP. And Section 117 allows ACC to suspend or decline compensation if the claimant fails to agree to an IRP or to comply with it." [28] In Dewe v ACC (290/06), Aon Risk Services suspended Mr Dewe's weekly compensation because he would not provide authority to Aon for the release of medical and other information. His reason for withholding his authority was because his injury was incorrectly described by ACC. He relied on the Privacy Act that information should not be misleading and should be complete and accurate. I found that this was not a reasonable basis for the claimant to refuse to provide the authority in question, and I dismissed the appeal. [29] In Elwood v ACC (2007) NZAR 205, the High Court held that ACC must have a sufficient basis before suspending entitlements. The case concerned whether the claimant's ongoing incapacity was wholly or substantially due to the aging process. As the evidence was uncertain, the Court held that there was no basis for ACC to be "not satisfied" that the entitlements could continue. [30] In Farquahar v ACC (176/05), the claimant refused to supply a signed consent form. His reason was that certain information in a medical report held by the Corporation concerning his former partner was allegedly incorrect. Judge Cadenhead found that the claimant's conduct was unreasonable. 7 [31] More recently, in O'Brien v ACC (81/11), ACC required the claimant to undergo a Functional Capacity Evaluation (FCE) as a part of its assessment of his physical capabilities. ACC had cleared the FCE with the claimant's General Practitioner who had approved it. The claimant attended the assessment and signed a consent form indicating that he was doing so "under duress" because ACC had told him that if he did not sign the form they would stop his weekly compensation. The provider refused to go ahead with the assessment and Judge Beattie concluded that the provider was faced with a consent to undertake the FCE which was not freely and independently given and, in those circumstances, it could not be considered to be a valid and informed consent - and that clearly from the claimant's perspective it was not intended to be so. The Court found that failing to carry out the FCE could not be "laid at the feet of the provider and there was no basis for finding the actions of the claimant were reasonable. There was no medical reason for not undertaking the FCE and ACC had a proper basis in the circumstances to decline to provide entitlements. The appeal was therefore dismissed Discussion The Appellant's Refusal to Participate in a Work Preparation Programme [32] Mr Dewe has statutory obligations pursuant to Section 72 of the Act to - (e) undergo assessment at the Corporation's expense (g) undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation's expense - h) participate in rehabilitation." [33] From ACC's letter of 10 June 2010, Mr Dewe was clearly put on notice that if he failed to attend the appointment or to participate in the vocational rehabilitation programme with SRI, then ACC would decline to provide further payments of weekly compensation. [34] In spite of that warning, Mr Dewe did not co-operate with the Assessor on 23 June 2010 nor give genuine consent. He maintained his "strong disagreement" with this rehabilitation plan and also with ACC's definition of his injury - an issue which has arisen and has been dealt with and determined against Mr Dewe on several prior occasions. The Assessor concluded that: "... any consent from him was in words only and that the requirement of genuine consent was not present. He clearly stated that he was presenting for the session under duress and coercion and hence his offer to sign the forms was not going to be ethically or professionally acceptable ...". [35] The situation is similar to the case of O'Brien (supra) where the Court concluded that there was no justifiable reason for withholding consent and that the appellant's actions were unreasonable. That appeal was subsequently dismissed. [36] In the case of Dewe v ACC (39/06), I addressed the issue of Mr Dewe's belief that there had been a mis-description of his injury and held that it was not reasonable for Mr Dewe to use that as a basis for refusing to sign a consent form. [37] With regard to the present appeal, I agree with Mr Evans that Mr Dewe had no reasonable or justifiable basis for refusing to participate in the Work Preparation 8 Programme and failing to co-operate with the Assessor. The Reviewer correctly determined that ACC was justified to suspend payment of entitlements. [38] It is concerning that Mr Dewe seems to have become so passionate to protect his interests that a very strained relationship has developed and existed for some years between him and officers of the ACC; and all this seems to have been to the financial detriment of Mr Dewe. There has been no need for him to become non- compliant. He should take a balanced and sensible attitude to the standard requirements from ACC as I have covered in another appeal of his being issued simultaneously with this decision. Mr Dewe has exaggerated in his mind what should be the proper description of the injuries he suffered by accident on 26 January 1993 and their effect on his situation. Somehow or another, he also seems to be convinced that there is no document to show that he became non-compliant with ACC rehabilitation procedures. The evidence is quite to the contrary. [39] Accordingly, that appeal is dismissed. The Request under The Official Information Act 1982 40] As the Reviewer noted, this application for review "does not refer to a decision by ACC". [41} Mr Dewe has had a long running dispute with ACC about alleged failure to address Official Information Act requests. ACC's position is that it has provided the information requested by Mr Dewe and this was addressed in letters of 15 June 2010 and 17 June 2010. As was noted in the letter of 15 June by a case manager: "I note in your letter, you have asked for a copy of the cover report for upper back/spine strain or strain injury as registered by Jenny Johnson. Whilst you have requested ACC provide you with a copy of this cover report, you have also attached a copy of the cover report that you have requested to your letter to ACC. I am unsure why you are requesting ACC provide you with a copy of this cover report, when you clearly already have a copy of it. ACC will not provide you with another copy of a report already in your possession. "" [42] Likewise, in relation to the letter of 17 June 2010, Mr Dewe requested a copy of the M46 claim for cover and treatment expenses. The case manager noted in that etter to Mr Dewe that: "ACC is aware that you already have a copy of this form, you have previously attached it to a number of letters that you have sent to ACC. You last attached this form to your rehabilitation plan that you returned to ACC on 3'd June 2010." [43] I find that it was proper and correct for ACC to conclude that it had no obligation to continuously provide Mr Dewe with copies of documents and material which he already had. [44] In any case, neither of those letters carried any review rights, because neither of them were decisions as defined by s.6 of the 2001 Act. 9 [45] I find that the Reviewer was correct to decline jurisdiction and this part of the appeal is also dismissed. Judge P F Barber District Court Judge WELLINGTON ACR 58-11.doc(aw)