Young v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2011] NZACC 27 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 322/08) BETWEEN JAMES WILFRED YOUNG Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 13 October 2010 Appearances: Mr P J Sara for appellant Mr C J Hlavac for respondent Judgment: 28 January 2011 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The appellant was injured at work on 18 May 2000, when the Accident Insurance Act 1998 was in force. It was succeeded by the Accident Compensation Act 2001 which took effect on 1 April 2002. [2] The 1998 act required all employers to purchase accident insurance for work- related personal injuries suffered by their employees. The purposes of the 1998 Act did not focus on rehabilitation to the same extent as the 2001 Act. It contained similar provisions for assessment of capacity to work in alternative employment and termination of entitlement to weekly compensation. The process under the 1998 Act was the Work Rehabilitation Assessment Process (WRAP). [3] Management of Mr Young's entitlements was in the hands of an organisation called Fusion until it was taken over by ACC on 20 May 2004. Fusion had terminated Mr Young's weekly compensation in 2003 after it considered that his rehabilitation was complete. Faults were identified in the process adopted by Fusion and ACC conducted a new WRAP. [4] A review was conducted by Ms Jane Wilson on 14 July 2008. It addressed the questions whether rehabilitation was complete and whether the WRAP had been carried out correctly. The appellant submitted that the rehabilitation plan adopted by ACC dated 6 December 2005 was a near total failure. The Reviewer documented the steps that had been taken in the WRAP. She found that rehabilitation had been completed before the assessment commenced, and that the required steps had been generally complied with. There had been no failure of any substance and the review was dismissed. [5] In this appeal, Mr Sara renewed the submissions made at the review that rehabilitation had not been properly provided. Mr Hlavac submitted that the process was governed by the 1998 Act. That argument needs to be considered first. [6] Section 365 of the 2001 Act concerns weekly compensation under the 1998 Act: 365 Weekly compensation under Accident Insurance Act 1998 (1) This section applies to a person who,- (a) immediately before 1 April 2002, was entitled to compensation specified in subsection (2) ; and (b) on and after 1 April 2002, would have continued to be so entitled had the Accident Insurance Act 1998 not been repealed. (2) The compensation is weekly compensation- (a) based on weekly earnings calculated under section 287 or clauses 7 to 22 of Schedule 1 of the Accident Insurance Act 1998; or (b) paid at an agreed rate under section 302C of that Act; or (c) continued under section 428 or section 429 of that Act. (3) On and after 1 April 2002, the compensation under subsection (2) continues to be payable at the rate payable as if it were calculated under this Act (4) However, the person's continued eligibility for weekly compensation and adjustments to the rate at which it is paid are subject to this Act. ... (emphasis added) [7] Section 365 applies to the appellant because he was entitled to weekly compensation under the 1998 Act at the relevant date. Continued eligibility is therefore continued under subsection (4), but is subject to the 2001 Act. Section 342 of the Accident Compensation Act 2001 preserves parts of the 1998 Act in relation to accident insurance contracts and obligations of an insurer: 342 Savings in respect of accident insurance contracts and injuries to which contracts apply under 1998 Act (1) The 1998 Act continues to apply, despite its repeal and with any necessary modifications, for the purposes of this Part in respect of - (a) any personal injury to which an accident insurance contract applies; and (b) any accident insurance contract; and (c) any obligations of an insurer in relation to work-related gradual process, disease, or infection, or to subsequent injuries. (2) In particular, without limitation, - (a) the 1998 Act continues to apply in respect of any personal injury suffered on or after 1 July 1999 and before 1 July 2000; and (b) Parts 2 to 6, Part 12, and Schedules 1 to 4 of the 1998 Act continue to apply, with necessary modifications, to determine what personal injury is covered, how to make claims, what the entitlements are, and how to resolve disputes about claims; and (c) all relevant and necessary terms of the accident insurance contract continue to have effect (whether those terms are express or are implied by the 1998 Act) ; and (d) all relevant and necessary terms of any risk sharing agreement continue to have effect. (emphasis added) [8] Relevantly, s 342(2)(b) applies specific parts of the 1998 Act to specific determinations, including "to determine .. what the. entitlements are". The language may extend to determining when the entitlements cease, including conduct of the WRAP. The WRAP is found in Part 5. In a broad sense the WRAP determines "what the entitlements are", by either continuing or terminating weekly compensation. No specific mention is made of rehabilitation, but that is contained in Part 3 of Schedule 1, which continues to apply. Rehabilitation is an entitlement so that it follows that Schedule 1 continues to apply to determine what that the rehabilitation entitlement is. [9] A question that arises here is whether a covered claimant, whose entitlement to rehabilitation is acquired under the 1998 Act, has the benefit of more comprehensive rehabilitation processes prescribed by the 2001 Act. Mr Hlavac submitted that such a result would impose an unexpected burden on insurers who fixed the cost of cover on the basis of the obligations contained in the 1998 Act. Mr Sara submitted that it could not have been intended that persons injured at work during the short life of the 1998 Act would be forever locked into the provisions of that Act. [10] These arguments cover a broad scope of legislative policy which has not been explored in argument. My view is that entitlements available to a claimant under the 1998 Act are identified by that Act, but the processes of the subsequent legislation also apply. There are provisions relating to allocation of funds in accounts under the separate statutes, and preserving the obligations of insurers. The argument did not extend to whether those provisions can operate to impose a greater burden on insurers than was imposed under the 1998. I do not think that the purposes of the 2001 Act, with a primary focus on rehabilitation, could have been intended to discriminate and leave some claimants in an inferior position. There is one entitlement, and that is for rehabilitation (social or vocational). The entitlement is to be determined under the 1998 Act, but there is nothing to restrict the scope of the entitlement over time. [1 1] In support of the appellant having rights under the 2001 Act, Mr Sara referred to $369(2) of the 2001 Act which states: An assessment of vocational independence commenced under a former Act and not completed for the commencement of this Act may be completed under the former Act and had effect as if it were an assessment of capacity for work under this Act. This specific savings provision assumes that new assessments are under the 2001 Act. To be done under the 2001 Act they must carry the 2001 requirements, including completed rehabilitation. [12] The Reviewer in this case decided that the assessment had been comenced under the 1998 Act because the first assessment had been done before the 2001 Act came into force. The Reviewer decided that rehabilitation had been completed. But the assessment that led to the decision under review was made after December 2005 and was a vocational independence assessment under the 2001 Act. I find that the 2001 Act applied to the assessment. Mr Young's rehabilitation [13] Much of the argument in this case concerned Mr Young's rehabilitation. It was conducted under an unusual agreement that discharged the insurer from further obligations after funding six tertiary papers. That appears to have been a kind of contracting out, rather than a recognition of the need for suitable rehabilitation for alternative employment. [14] The appellant's leg amputation prevented his resuming capacity in his former employment as a driller. The planned rehabilitation was recited in a letter from ACC dated 11 June 2004: "Fusion negotiated an IRP with Mr James in June 2002. In the IRP, they agreed to rehabilitate Mr Young into paid employment by providing the following: 1. $571.78 for each of the following papers of the Diploma of Sport through Otago University: . Movement and physical education and coaching Sports management one and anatomy . Physiology and sports management two Mr Young had been offered the opportunity to work as a Kiwi Sport Co- ordinator in a paid role with Sport Northland. He was also offered a full time role with Hare Poata Petera Trust, which was to commence from January 2004. The IRP specified that he was to work part time while studying, and then on the completion of the above papers, at the end of 2003, commence full time work with HPP Trust and be independent of Fusion from 1 January 2004. 2. Fusion also agreed to pay for four further papers whilst Mr Young was working full time, at $571.58 per paper: . Sociology of sport . Sport and exercise psychology . Sport science . Principles of exercise Unfortunately the jobs with Sports Northland and HPP Trust never came to fruition Fusion ceased Mr Young's weekly compensation on 31 December 2003, as per his rehabilitation plan. Mr Young reviewed this decision, but was out of time and the reviewer declined jurisdiction. It appears that Fusion tried to commence the WRAP process in March 2004, however Mr Young refused to attend the assessments as his weekly compensation had already ceased. Fusion was incorrect to cease Mr Young's weekly compensation at 31 December 2003. After he had completed his diploma they should have commenced the WRAP/VI process. Weekly compensation should not have ceased until either he returned to his pre-injury employment, or the WRAP process confirmed that he was able to work 35 hours per week in an employment that matches his skills." [15] ACC set out to rectify the position by resuming weekly compensation and addressing the WRAP. Mr Young had agreed under his IRP that he would be independent of weekly compensation by 1 January 2004, after completing the initial 6 papers. A condition of providing this assistance was that he would meet all course requirements and pass all of the papers. [16] The plan was frustrated in two respects. First the proposed avenue for employment failed. Mr Young had expected a part-time role with KiwiSport and a full time role with the HPP Trust as a sport and health co-ordinator by the beginning of 2004. It is said that Mr Young discovered the change in circumstances but did not notify Fusion. The second problem was that he passed only five of his initial six university papers by the end of 2003. On 12 September 2003 Fusion wrote to him seeking advice as to any further assistance which the appellant required in relation to looking for other interim paid work. Then on 31 December 2003 Fusion stopped Mr Young's weekly compensation. The correspondence was not produced, but it appears that the weekly compensation was terminated because Mr Young had not passed all his papers. [17] He then decided to abandon the Diploma course and to apply for admission to study at Otago University for a Bachelor of Physical Education and a Bachelor of Arts. He commenced study towards a double degree during 2004. It is reported that he began with two papers in Maori and one in education. Mr Sara made particular note of the fact that Mr Young took this step when his weekly compensation had been wrongly terminated. It is submitted that he did not have an avenue for discussion of further rehabilitation at that stage. [18] In June 2004 all insurance contracts for active Fusion claims, including Mr Young's claim, were assigned to ACC. In July 2004 he contacted ACC seeking to update his IRP to provide for ACC to fund the double degree course through Otago University. He was advised that it was ACC policy (as it was Fusion policy) only to fund study on the basis that a claimant passed all of the papers. The case manager advised Mr Young to write to ACC requesting payment for study and that an occupational assessment and a medical assessment would need to be completed, with ACC looking at recommendations after that. [19] That was a suitable way to review the appellant's rehabilitation needs. Assessments were needed in order to identify prospects of alternative employment. In general, the Corporation is not obliged to provide a level of rehabilitation to meet the wishes of a claimant, exceeding what is otherwise reasonable for vocational rehabilitation. Claimant's have some responsibility for their own rehabilitation. ACC sent an updated IRP to Mr Young and he agreed to it on 16 July 2004. It provided for him to attend the assessments. [20] An occupational assessment was done by Veronica Howes of Vocab on 11 August 2004. It recorded that Mr Young had many transferable skills and that he was interested in returning to Northland to work in the community once he had completed his University degree. The report identified nine different job options that were considered suitable. The assessment resulted in his weekly compensation being stopped. He applied for review and a resolution was reached whereby he entered into a further IRP on 6 December 2005, but without any rehabilitation content. He was required to enter the vocational independence process again. [21] By that time he had completed a second successful year at Otago University. In April 2005 the Chief Course Advisor of the Physical Education course had wirtten: "James Young is in his first year of the Bachelor of Physical Education degree. This is a four year qualification with two years of compulsory papers and two years of specialisation. James has indicated an interest in rehabilitation and injury prevention which suggests his intended major is either Exercise prescription and management or Exercise and Sports Science. These majors explore body movement, exercise and performance from a strong bio-physical standpoint combining a wide range of knowledge from medical pathology and movement, athletic injuries, adapted physical activity, training and conditioning of athletes and motor control." [22] The letter supported his progress and employment opportunities. Paulette Henderson-Crofts, Maori Community Liaison Officer at Otago University also wrote a supporting letter in May 2005, describing the value of the contribution that Mr Young would be able to make in the northern region. The letter set out the expected recognition of Treaty obligations: "My concern for James and his whanau is the real possibility of him losing the on-going support of ACC. Currently this enables him to complete his university studies without the added pressure of incurring huge financial debt through student loans. ACC Clearly states under 'Service delivery for Maori' that ACC has a commitment to the principles of the Treaty of Waitangi, and that ACC is committed to upholding the principles of the Treaty of Waitangi in its delivery to Maori With reference to James Article 2 and Article 3 clearly highlight entitlements for him as a Maori claimant, but you would agree that it is Article 3 that conclusively concludes his right to continued financial support. Article 2 - Tino Rangatiratanga: Self-determination ACC will involve Maori claimants and their whanau, together with Maori service providers, in the planning, delivery and supervision of treatment and rehabilitation services. Article 3 - Oritetanga: Equality ACC will ensure that its services contribute to achieving optimal outcomes for Maori claimants In practice, Article 3 clearly indicates that ACC is under an obligation to continue financial support in order that James' optimal outcome is achieved, that being, to graduate from the University of Otago with the appropriate qualifications." [23] Despite those expectations, Mr Young signed the IRP in December 2005 without provision for further assistance. But he then wrote to ACC enclosing a number of testimonials to his progress and aspirations and requested that ACC consider funding of further study. ACC replied on 16 December 2005: "Thank you for your letter dated 14 December 2005. The information that you have supplied will be put on file and will be taken into account by the panel who decide on your work capacity." [24] Mr Sara submitted that there is no evidence that the panel took any notice of the submissions. The further occupational and medical assessments resulted in ACC's decision on 22 February 2006 finding Mr Young vocationally independent. ACC then wrote on 12 May 2006 to clarify that the decision was made under the 1998 work capacity provisions. Mr Young applied for review. The application was considered at a mediation meeting to address the appellant's request for further funding by way of rehabilitation. The mediator's minute of 28 June 2006 recorded: "1. Ray explained that ACC is unable to provide James with the support he needs to complete his studies, 2. ACC stands by its decision of 12 May 2006. 3. The matter has not been settled. 9. Application for review 45975 will be set down for hearing." Submissions [25] Mr Hlavac submitted that the training and qualifications which the appellant hoped to achieve from his original Diploma course were directed towards job opportunities wider than the specific employment as a Sport and Health Co-ordinator with the HPP Trust. There was a policy applied by both Fusion and by ACC to only fund tertiary study on the basis that a claimant is successful in passing all papers. It is submitted that this policy was reasonable, and that there was no obligation for ACC to continue to fund a double degree at Otago University. Supporting his own continued study was in line with a claimant's obligation to be in part responsible for his own rehabilitation. [26] Mr Sara submitted that there was a change in circumstances that should have been taken into account when prospective employers were not able to offer the appellant work. Fusion should then have reviewed the IRP. When ACC took over the claim, it simply ignored the reality of the appellant's study at Otago University and what he and others identified his vocational rehabilitation needs to be. He was offered only assistance for a forklift drivers license and an introductory computer course. Forklift driving was medically unsuitable. Mr Young found the computer skills course useless for him as he had no practical application to build on. In the result, he had no meaningful rehabilitation identifying his needs and appropriate rehabilitation services. [27] Mr Sara submitted that when the appellant attempted to put forward his own rehabilitation proposals with written support from a number of significant supportive persons, his needs were not acknowledged. He was told by his case manager that the information would be considered by the panel in due course, but there is no evidence that any consideration was given by the panel. The appellant's attempts to explain his rehabilitation needs were ignored. Treaty obligations [28] A letter from Ms Henderson-Crofts has been referred to. At the review hearing, the appellant called evidence of Dr Phillipa Pehi, clinical psychologist at the University of Otago. Dr Pehi provided a written report, in which she stated: "James is a passionate, focussed and resourceful man who has a clear plan for creating a career and means of providing for his family in the future. He is also proving to be successful in implementing this plan (e.g, relocating himself and his whanau to the other end of the country and excelling at his University studies). Be has achieved this despite two serious accidents sustained in his early adulthood and ongoing pain and discomfort from the loss of his lower leg from the second accident. While James has rehabilitated physically for the most part, there are still spiritual and emotional healing processes that he considers as ongoing. These processes are essential to making a new life that can transform James accident and 'loss' into a new direction that will ultimately benefit not only James, but also his whanau and the wider society. One of these processes is the continuing re-education that James is currently engaged in. This is what James understands to be true 'rehabilitation' in the sense that his loss is not seen as a disability, but rather the opportunity for a new ability." [29] In her evidence Dr Pehi traversed the spiritual and psychological needs associated with injury. Mr Graham Green, student counsellor at Otago University, also gave evidence, emphasising the need to involve whanau in rehabilitation. Content of the assessments [30] The next question in this appeal concerns the quality of the occupational assessment. the IRP in December 2005 led to a new occupational assessment by Ms Howes on 21 December 2005. The job types nominated were: Forklift Operator Employment Programme Teaching Associate Professional Teacher Aide Stock Clerk Conference/Function Organiser Community worker [31] The medical assessment was done by Dr Michael Kahan on 3 February 2006. Dr Kahan found the appellant fit to work 35 hours or more per week in the recommended occupations apart from forklift operating and teacher aide. [32] The appellant obtained another opinion from Robyn Bailey. She reviewed the earlier assessments and the final assessments. She noted Mr Young's experience as five years as a bricklayer, part time work as a bar tender, five years as a fork hoist driver/warehouse worker and five years as a directional driller. Most of his work experience was in semi-skilled work using manual and physical dexterity and strength. He had not undertaken any formal education or training since secondary school. Employment programme teaching associate professional [33] This recommendation was based around the appellant's experience as a foreman, his interest in sport, and his education in the part completed diploma and degree courses at Otago University. Ms Howes reported: "James has assisted in the Far North with coaching and sporting activities with children. He has an interest in using sport as a catalyst to assist youth in the Far North. His current course of study and his previous experience assisting in a voluntary capacity may assist him to work for a Training Opportunities Programme or similar. With his interest in sport he may be able to assist with a conservation corp or similar. He has demonstrated the communication, supervisory, creative and planning skills associated with work of this nature as well as ability to learn on the job." Dr Kahan noted: "This job is sedentary to light in nature and lifting and carrying would be on an occasional basis and involve teaching material. It is also mentioned in the work type detail sheet that there is some ability for employees to self-pace the required work tasks to suit physical requirements in most positions. This role is therefore suitable. James mentioned that he had never done such a role but agreed that physically it would not be too difficult." [34] Ms Bailey's opinion was that trainers or tutors may spend a lot of time on their feet. Mr Young is only able to stand for half an hour at a time. ACC's Work Type Detail Sheet says the work is light to medium but occasionally heavy. KiwiCareers says trainers or tutors need to have gained experience in a particular field before they make their entrance into the training environment, and they need to have in-depth knowledge and skills in the areas they are teaching. Ms Bailey thought that Mr Young had no applicable skills training from his work experience. [35] Ms Howes replied to Ms Bailey's comments and referred to discussions with Malcam Trust in Dunedin which holds the contract for the Conservation Corp courses. An example was given of a client who had no teaching training but had experience with coaching and sporting activities. The organisation looked for people with personal energy and knowledge of the youth sector. In reply Ms Bailey referred to the best match with the work type detail sheet based on the new Australian and New Zealand Standard Classification of Occupations (2006). She considered the best match is the old work type detail sheet of Polytechnic Teacher (trades) and that Mr Young did not have the skills training or physical requirement. She commented that Ms Howes' enquiries were anecdotal. [36] I am concerned that the appellant's skills and experience match may relate to a narrow sector of the job type. There must be some credibility in the view that a trainer or tutor in sports education is not an entirely sedentary job. The appellant may well be able to obtain employment in that field though his experience and personal attributes, but that is not the same as a match by way of skills, experience and training for the job type in its general context. The class of work is directed to employment programmes. Where the appellant would fit into employment programmes is not apparent. Possibly he could train people in motivational careers, coaching sport or physical development. There is not enough transparency in the assessment identifying the kind of work suited to the appellant's particular skills or experience, and the usual physical and educational requirements. It is a job type with some prospects but not a really clear match. Conference/Function Organiser [37] Ms Howes' report stated: "James has assisted with events as a volunteer with community groups in the far north. He has demonstrated problem solving, organisational, decision making and the communication skills necessary to be effective in this type of work. James may also use his enhanced transferable skills that he has developed over the last year from his studies which he indicated were working with and communicating with people and communities." [38] When interviewed by Dr Kahan, the appellant agreed that he could manage this role but mentioned he did not have required skills in conference organisation. Ms Bailey commented thet "event managers ... need to be reasonably fit as they may have to assist with physically setting up and running events". She noted: "Entry Requirements To become an event manager you need to have experience running events. However, a relevant ternary qualification is also preferred by some employers. A tertiary qualification in management, marketing, tourism and hospitality, communications or media studies may be useful. Useful experience for event managers includes work in the hospitality or tourism industries. Project management experience, or public relations and marketing work." [39] Ms Bailey's understanding was that the appellant did not run the events he had been associated with but rather assisted his wife who did the event management while he acted as the meeter and greeter. She considered that he does not have necessary skills: Ms Bailey listed specific examples as: "Organising funding, sponsorship and ticketing for an event. Developing concepts for an event Overseeing the running of the event Creating plans and documentation for an event Creating a budget for an event Finding and organising event contractors, staff and volunteers promoting and marketing an event to media and relevant groups managing finances and budgets Managing large projects and a large number of people Knowledge of venues, contractors and suppliers used by the events industry Relevant health and safety requirements" [40] In reply to Ms Howes' comments, Ms Bailey wrote: "To say that someone has knowledge of an industry because they greeted people is not accurate. Otherwise why would people engage in years of in- depth study or work experience to gain knowledge? Vocab points out that Mr Young has the 'ability' to take on this role but that is not the same as having the skills and experience. Ability is about potential. For example he also has the ability or potential to do a PhD but that is not the same thing as having done one." [41] I think that Ms Bailey's view is preferable and that the appellant's limited experience in assisting with community events and his demonstrated skills in problem solving and communication fall well short of a match for the more complex skills required of an event manager at a level beyond small community events. He would have potential for the job, and would be competent to a limited level, but that does not amount to a match for the job type. Community worker [42] Mr Young had worked as a community worker in the far north. Mr Robert Wells, kaumatua of Ngati Kuri Iwi, wrote in very complimentary terms of the appellant's ability, however he also reported that Mr Young left his Northland community after it became apparent, that without relevant qualifications, he would be unable to continue in his role in the community. [43] Ms Bailey noted that ACC's Occupational Assessor Guide says "it is essential that the claimant not only has the skills but also has completed the necessary training and education in a work type before it can be identified as suitable". She considered that he does not have knowledge of community, social assistance and family support agencies or knowledge of relevant government policies and regulations. He does not have training or qualifications in community work. He does not hold a National Diploma or Certificate in Community Work or a National Certificate in Social Services. The reason he moved to Otago to study was because was finding it difficult to find employment in his hometown without qualifications. He did not have experience in areas such as: Providing support to people such as released prisoners Facilitating and helping with public meetings and decision-making on community issues Providing one-to-one support by visiting people in the community Helping community groups obtain information, government resources and training Co-ordinating community activities, fundraising activities and apply for grants Work with paid and unpaid workers Writing letters, articles, submissions and reports as part of the support process Ensuring individuals and organisations comply with legislation and regulations in the area they are working in Counselling [44] I accept that Ms Bailey's views are valid. This is a job type in which some employment opportunities would be available, but the appellant's experience, skills and training do not provide a match for the job type requirements. Stock Clerk [45] The difficulty with this job type was the appellant's limited computer skills. Ms Howes reported in 2004: "Reason - James has experience dealing with the documentation for dispatch while working at Juken Nissho Ltd. He has demonstrated ability to learn on the job, organisational, record keeping and planning skills necessary for this type of work. The employment prospects for storepersons in the Otago region is expected to remain stable or grow moderately over the next few years, according to Kiwi Careers Strategy for obtaining this type of work - James may benefit from enhancing his computing skills to obtain this type of work. James told Vocab that he has very limited skills in computing. A short course specifically designed around his needs, perhaps through Step By Step or similar may assist him. He may also benefit from some on the job training and checking job web sites, the newspaper and enrolling with recruitment agencies to obtain this type of work." Dr Kahan noted "This job is sedentary in nature and the work type detail sheet mentioned that there is moderate flexibility of physical movement. Lifting and carrying would be in the sedentary weight range which he is able to manage." [46] Ms Bailey reported that the designation of stock clerk includes jobs with a number of different physical and skills requirements. Some stock clerk jobs are storeperson jobs that require lifting and physical activity. Some jobs have more focus on record keeping and require computer skills. Mr Young has limits in both of those areas. She reported: "ACC's Work Type Detail Sheet says the work of a Stock Clerk is purely office based and sedentary and that the work tasks may include any or a combination of the following: examines delivery and issue vouchers, making necessary entries in records, calculates stock held, examines production, sales and other records to estimate future needs, makes requisitions to obtain required stock, periodically checks records against stock held, checking inventories kept by other worker. The Kiwicareers and Work Type Detail Sheet descriptions do not reflect each other. Additionally the Kiwicareers descriptions for both Store Person and Inventory Clerk identify that both roles combine clerical tasks with physical tasks." [47] Ms Bailey made some enquiries that confirmed the physical requirements of a storeperson job. She referred to an information paper on ANZSCO (Australian and New Zealand Standard Classification of Occupations) which was to replace the NZSCO 1999 classification that was used in New Zealand. She said that the ANZSCO work type detail sheet for stock clerk identifies 28 job titles that the role may also be known as. Some of these are supervisory or manager's positions, some of them are clerical positions, some of them are store person positions. The skill level and skill specialisation varies between roles. [48] Ms Howes in reply stated that she based the role in her assessment on the description in the work detail sheet 41311 which states "Maintains stock records of an enterprise, verifies issues, estimates needs and requisitions new stock". The physical requirements in that job sheet were as follows: Sedentary role. Spend their day constantly sitting at a work station carrying out a variety of document checking and issuing, data entry and processing tasks. May carry out a variety of other clerical/reception type activities in addition to core tasks if working in smaller offices. Also need to operate printers, copiers and a range of other minor office equipment. Occasional standing and walking about the office and to other office and operational business areas will occur in order to manually check documentation. [49] Mr Sara challenged the requirement of "constantly sitting" in view of an assessment that the appellant had a sitting tolerance of one hour. Another aspect of this job type is that it requires computer use for data entry and processing tasks. Mr Young has no tested ability to use a computer. He has undertaken a Step by Step course that introduced various applications and functions, but he has no practical experience. That is not uncommon where a claimant moves from heavy physical work to recommended sedentary employment. A countervailing consideration is that on the job training may be enough for work involving limited repetitive keyboard functions such as entering numberical data. Submissions [50] In his submissions Mr Sara adopted the commentary provided by Ms Bailey. He submitted that Mr Young was unqualified for all job types except that of a stock clerk and, for that job type, a reasonable skill match was prevented by either his physical restrictions or lack of clerical skills. [51] Mr Hlavac submitted that the occupational assessor's reports clearly indicate a variety of transferable skills which the appellant possessed, which would have enabled him to obtain alternative work, within his physical capabilities, with minimal rehabilitation assistance on the part of Fusion. Given the appellant's failure to complete the rehabilitation which Fusion agreed to provide, and the appellant's subsequent request that ACC fund further retraining for the double degree course at Otago University, it was appropriate for ACC to review his rehabilitation needs within the parameters of the hierarchy of considerations and ACC's statutory obligation. It was quite appropriate for ACC, upon being advised that the appellant wished ACC to fund his double degree course through Otago University, to seek further information from him in relation to that request. Further, to assess the transferable skills which the appellant had obtained as a result of his pre-accident employment history and also through the study which he had undertaken to that date to consider whether as a result of those skills, there were any job options which were suitable based on his previous work history, experience, education and training. Discussion [52] I do not think that the Treaty obligations placed the appellant in a different category of claimants under the Act. Rather it required ACC to engage in appropriate consultation and to take account of Maori cultural values and aspirations in addressing any important step in the process. As Mr Green advocated, that must include an opportunity for consultation with whanau. Recognition of Treaty obligations would reasonably require the value of the eventual qualification to be considered in the light of the appellant's potential contribution to the far north region. It was not a course desired for mere personal choice, but was a qualification of significant worth. [53] There was an apparent failure when the IRP of December 2005 was treated as a final document although the appellant wanted to have further input before it was implemented. An IRP is a plan for the future and is not governed by rules of contract. Even though the appellant had signed it, he promptly followed up with information that he wanted taken into account. The question is whether there was any material consequence of a failure of ACC's obligations, that is to say a lost opportunity that should have been addressed as part of the appellant's vocational rehabilitation. The respondent's position is that it would not support the appellant during his degree course, and implicitly that it would not consider representations to that end. The appellant's contention is that he had a real opportunity to retrain and was shut out without further discussion. There may otherwise have been some reasonable avenue for support by continuing weekly compensation for a limited time. [54] There needs to be a test of realism concerning the purpose and cost effectiveness of rehabilitation. The appellant's study had been funded for 2003, after which he enrolled in his degree course and studied during 2004 and 2005. Fusion's error in stopping weekly compensation had been recognised and remedied. It appeared that the appellant was therefore provided with weekly compensation for the purpose of tertiary study for three years, during which he changed from a sports oriented Diploma to a degree course. There were two years of a four year course to complete, and he would then have been supported with weekly compensation for five years. The value of completing the course is not in dispute. The point of contention is the obligation of the Corporation to provide support for such a long period of time. [55] Another argument in this case is that ACC should have recognised the spiritual and emotional aspect of rehabilitation. That is an ideal that must have a high value in rehabilitation. Self-worth and contribution to community is likely to assist a person to overcome negative consequences of disability. However the purposes of vocational rehabilitation do not appear to encompass those considerations. Much of the documentation in individual cases managed by ACC refers simply to removing barriers to employment, sometimes psychological barriers. A broader holistic basis of recovery is an occasional by-product of a rehabilitation programme, but is not a primary aim. [56] The reason for this is found in the statute. Matters to be considered in deciding whether to provide vocational rehabilitation are listed in s 86. They refer to what is "reasonably practicable" to return a claimant to various levels of employment. Section 87 refers to cost-effectiveness "having regard to the likelihood that costs of entitlements under this Act will be reduced as a result of the provision of vocational rehabilitation". The central purpose of an occupational assessment under s 108 is to (b) consider whether the types of work (whether available or not) identified in the claimant's individual rehabilitation plan are still suitable for the claimant because they match the skills that the claimant has gained through education, training, or experience. [57] The theme of vocational rehabilitation concerns practicality, cost-effectiveness for the Corporation and suitable work. Frequently claimants want better rehabilitation to achieve more satisfying work. In some cases the Corporation provides limited support and points to the obligation under s 70 for claimants to be responsible for their own rehabilitation to the extent practicable having regard to the consequences of personal injury. [58] Positive obligations on the Corporation are found in s 3(c): (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 that restores to the maximum practicable extent a claimant's health, independence, and participation: and in s 70 which declares that a claimant: )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 It is to be noted that the "maximum extent practicable" is qualified by "the extent provided by this Act". [59] These references are not intended as an exhaustive analysis, but they illustrate the statutory limits on rehabilitation assistance. Questions of policy applied by ACC have not been traversed in this appeal. The Corporation's focus may well be on removing barriers rather than providing greater opportunities. I recognise that funding for more than three years in this case would have taken the appellant's rehabilitation to a level beyond the expected contribution of the Corporation or the insurer . Content of the assessment [60] The content of the occupational and medical assessments is also challenged. The appellant does not have event management experience, he does not have employment programme teaching experience or qualification, he has no community worker qualification and is marginally qualified to work as a stock clerk. [61] The Reviewer's decision rested largely on the basis that the assessments had been properly carried out. The Court is able to reach its own conclusion based on the evidence. Analysis of the suitability or unsuitability of approved job types requires scrutiny of the opposing views by Ms Howes and Ms Bailey. I am persuaded that the assessments have overstated the appellant's ability to meet skill requirements and physical capacity. The assessment looks to his potential rather than his existing qualification and experience. Clearly he has personal qualities that would equip him for employment programme training or community work, but he lacks qualifications that are usually required. He would therefore probably be suited only to a subset of those occupations. I find that he lacks the experience required for conference organising or events management, other than in a small way. [62] The closest match is the job of a stock clerk. Where there is only one suitable job type it needs to have a very clear match with the claimant's skills and training. Otherwise there will be a high probability that the claimant will remain unemployed. The purposes of the Act do not suggest that vocational independence should involve marginal capacity and probable unemployment. Here, there is a mismatch between the requirement for "constant sitting" and the appellant's sitting tolerance of one hour. The appellant lacks computer skills and would have to get a position with on the job training. That is not a suitable match. [63] If the assessor had had good reasons for taking a different view they are not identified. The overall impression from the evidence is that the job of a stock clerk is found to be suitable because it offers sedentary employment that anyone can do. In practical terms, the appellant's rehabilitation has been directed towards a sports education position and he has been found to have a capacity for work in a different kind of job, on the basis that it is a job that anyone can do. [64] The appellant was not entirely at fault in management of his own rehabilitation. He failed one diploma paper and then changed to a more ambitious course of study at a time when the insurer had wrongly stopped his weekly compensation and he did not have the benefit of consulting about the level of support that could be available. The Corporation then provided only a Step by Step introductory computer course before assessing the appellant for work capacity. An important feature of this case is that the appellant was successful in his degree course up to the time when the work assessment was done. He did not make an unrealistic choice for vocational rehabilitation. [65] The appellant was entitled to a genuine level of consultation if the Corporation's Service Delivery for Maori was to be given any effect. The relevant statement was that "ACC will involve Maori claimants and their whanau, together with Maori service providers, in the planning, delivery and supervision of treatment and rehabilitation services". It appears that the Corporation received the appellant's supporting documents but decided, without further consultation, that further educational support did not meet ACC's policy requirements. That followed the earlier error when there had been no effective consultation when the appellant had missed one course paper and was left to make an education choice without support from the insurer. Overall there was a failure to involve the appellant and his whanau. A consequence of the failure was that the appellant was marginally suited to only one job. [66] For those reasons, I find that there was failed or incomplete rehabilitation. The appellant applied himself with considerable effort and success to a worthwhile degree course. He had a reasonable expectation that the respondent would consult with him to provide at least some assistance for him to complete the course. The respondent did not consult but ended the rehabilitation with an IRP designed to lead directly to vocational independence assessment. The vocational independence assessment resulted in recommendations that did not match the appellant's skills, education and training. [67] The appeal is allowed and the review decision is quashed. The work capacity assessment is set aside. Given the time that has passed, the appellant's situation may now be different. No direction is required concerning the steps that the Corporation may now take. [68] The appellant will have costs of $2,500 and reasonable disbursements. Judge D A Ongley District Court Judge