Gaskin v Accident Compensation Corporation (Vocational Independence)

IN THE DISTRICT COURT AT AUCKLAND [2017] NZACC 63 ACR 227/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN JANET GASKIN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 4 May 2017 Appearances: Mr Darke, advocate for the appellant Ms Becroft for the respondent Judgment: 13 June 2017 RESERVED JUDGMENT OF JUDGE JH WALKER [1] Ms Janet Gaskin is the appellant in respect of these proceedings and the respondent is the Accident Compensation Corporation ("the Corporation"). [2] The appeal is pursuant to s 149 of the Accident Compensation Act 2001 ("the Act"). The appeal relates to the decision of the Corporation dated 7 October 2015 that Ms Gaskin was vocationally independent in six job types. 3] The decision was a decision of Aon New Zealand ("Aon"). It was issued by Aon on behalf of Countdown, Ms Gaskin's accredited employer. [4] The position of Ms Gaskin is that the vocational independence decision is flawed for several reasons including incomplete vocational rehabilitation, dissatisfaction of s 1 10(3) and a flawed vocational independence medical assessment ("VIMA"). [5] The position of the Corporation is that the process has been appropriately followed, the assessments are robust, and a finding of vocational independence in the circumstances makes sense. Background [6] Ms Gaskin was working as a night filler at Countdown in Palmerston North. 7] On 13 August 2013 she was engaged in a night fill activity of bending and lifting heavy products to shop shelves. She suffered an accident in which, according to the ACC injury claim form filed on 27 August 2013, she was: Bending to floor level, lifted stock onto shelf, felt pain in back left side. [8] The pain became worse over a period of a week as she continued with night shifts. [9] Following an investigation the claim was accepted and Ms Gaskin was certified unfit from the date of accident and once weekly compensation was calculated payments commenced. [10] Ms Gaskin attended Grey Street Physiotherapy for treatment. [11] In September 2013 Aon referred her to VOC Health (Vocational Service Provider) for an assessment. A Stay at Work programme was developed in September and October. [12] On 4 October 2013 Dr Ra Durie, sports physician, reviewed Ms Gaskin's condition. After reviewing x-rays and undertaking a clinical examination he found no evidence of any defined injury entity. He provided a diagnosis of: ... mechanical problem in her lower back causing somatic referred pain down her left leg. On top of the above, she has a degree of increased muscle tension in the muscles in her lower back the whole of which is causing her movements to be somewhat guarded. [13] The report concluded that Ms Gaskin was not fit for her normal duties but was fit for light duties that did not involve her reaching, bending or using her back in a repetitive manner. [14] Dr Durie also recommended a continual manual/physical therapy and strengthening work. [15] During October/November 2013 Ms Gaskin undertook light duties part time and on 11 November 2013 an Individual Rehabilitation Plan ("IRP") was prepared by Work Aon which envisaged VOC Health Limited being asked to assess the her graduated return to work plan. [16] On 20 November 2013 Aon received a report from Dr Loo, general practitioner, stating that Ms Gaskin advised him at a consultation on 13 November 2013 that she had been working on light duties the night before and that her back went into spasm, she was in a lot of pain and was worse than when he last saw her. [17] Ms Gaskin was referred back to Dr Durie who saw her again on 26 November 2013 and reported that her pain had not improved. He recommended an MRI scan. [18] On 7 January 2014 an MRI was obtained which stated: Multilevel lower lumbar spondylotic changes with left sided L4-5 disc abutting on left L4 exiting nerve root and left sided L5-S1 disc impinging on left S1 passing nerve root [19] On 24 January 2014 VOC Health wrote to Dr Ra Durie reporting Ms Gaskin's progress in the Graduated Return to Work. The report included the following: Janet commenced a graduated return to work plan on 30/9/13. Over the following weeks her hours and tasks were gradually increased. Janet returned to normal work hours on the 21/10/13 but continued to only face the shelves as this was all she could complete. Janet also just began lifting lighter objects and stacking them. On 12/1 1/13 Janet was at work for 30 minutes when she suddenly experienced some spasms in her back. Janet left work and went to her GP who put her off work for 5 days. Janet then resumed the graduated return to work programme on 17/11/13. Since this time she has been completing half shifts for 3 days and has since returned to her facing duties. Janet has recently regressed as of the 22/1/14 and is now unable to continue working due to pain. 20] A Graduated Return to Work Programme was attached to the letter for Dr Durie's approval. The programme envisaged six weeks of work doing light duties. [21] On 11 March 2014 the file was reviewed by Dr Burgess, BMA, who noted that the initial injury event seemed to have been a minor one and that ongoing symptoms were probably reflective of an underlying degenerative condition exaggerated, but not caused by the injury event. [22] Work Aon subsequently sought advice from Dr Hartshorn, specialist occupational physician, who undertook a review and reported on 7 April 2014. At that stage Ms Gaskin was presenting with constant low back pain but continuing to work light duties around two hours a day undertaking office work. [23] Dr Hartshorn noted that Ms Gaskin also had referred leg symptoms and speculated she had suffered a left paracentral disc protrusion at the lumbosacral level with some nerve root irritation. He acknowledged there were some pre-existing changes present in the lumbosacral discs, but still thought that the paracentral disc protrusion was likely evidence of a defined injury entity. He recommended a CT guided transforaminal injection, which might provide further diagnostic clarity and some therapeutic benefit and a surgical referral if symptoms did not improve. [24] Dr Hartshorn was requested to answer a number of questions. In answer to question 7 he commented that there was potential for her to return to work: If the further treatment and intervention above suggests that the symptoms are primarily due to the left paracentral disc protrusion and left S1 nerve root irritation then there is potential for Ms Gaskin to return to her usual work activity in that her other changes within the lower lumbar spine were present in an asymptomatic fashion prior to the event of the 13/08/2013. There is potential that a disc protrusion superimposed upon already evolving disc degenerative change may result in symptomatic discogenic pain of the lumbosacral level and thus the resolution of the back pain component of the presentation cannot be predicted with confidence. [25] On 21 May 2014 At Work Solutions undertook a workplace assessment. [26] On 26 June 2014 Mr Tim Love, Orthopaedic Surgeon, saw Ms Gaskin and reported that she was currently working two hours per day doing light duties, and that her MRI scan was considered normal for her age. He also reported that she currently is in a Pattern II of back pain and is starting to move towards a Pattern V type situation and recommended a pain specialist (Dr de Groot review). [27] On 15 July 2014 her GP, Dr Loo, wrote to Work Aon and forwarded her consultation notes for the period 23 October 2013 to 1 July 2014. [28] On 23 July 2014 Mr Love provided a further report elaborating on his previous opinions in regard to pain. He explained: Pattern V pain is essentially where pain is becoming centralised, and they are developing an abnormal pain response to the injury. I wasn't completely convinced she is at this stage at this time, but I thought there were some concerning features that she may be developing a more chronic pain pattern. This is why I felt a referral to Jurriaan de Groot was important, as early intervention can prevent this developing. At this stage I do feel that the lifting injury is the cause of her incapacity to work. (29] In mid 2014 Ms Gaskin was referred for an initial assessment pursuant to s 89 of the Act. [30] On 24 July 2014 an Initial Occupational Assessment Report ("IOA") was undertaken by the assessor Linda Norfolk who detailed Ms Gaskin's work history canvassing 27 years in a number of positions. [31] Her report stated Ms Gaskin had left secondary school without any formal qualifications but had largely been gainfully employed since then. Ms Gaskin advised that sales assistant roles were of interest to her and Ms Norfolk went on to identify 18 job options that were vocationally suitable for her. Various barriers were identified also. [32] When Ms Norfolk identified eighteen job options as being vocationally suitable she also identified various barriers identified as: Jan would need to obtain a certificate in diversional therapy; however, this can often be obtained once in employment. For work type of Lotto Operator Jan would need to gain training in lotto operations to consider this work type. Jan has limited computer skills for many of the clerical and administrative type roles. May be beneficial for Jan to complete one on one computer training to enhance her skills and gain employment opportunities within these work types. Jan has never written a cover letter or attended a formal interview. Jan may benefit from completing pre-employment modules. Jan advised she has no convictions. Jan advised she does not drive or hold a motor vehicle licence. [33] In a report dated 29 July 2014 a Graduated Return To Work Programme ("GRTWP") was completed by Meg Campion of Work Solutions and was introduced with a caveat that Ms Gaskin needed to medically cleared before starting to return to an increase in task and hours. It envisaged 3 hours per day for the first 4 weeks, 4 hours per day for 3 weeks, 6 hours per day for 3 weeks, 7 hours per day for 2 weeks and 8 hours per day for the 13" week onwards. [34] At the end of August 2014 Ms Gaskin was working 3 hours a day but continuing to suffer symptoms of pain. [35] On 14 October 2014 Dr Hartshorn made an Initial Medical Assessment ("IMA"). He did not think that Ms Gaskin would be able to manage a successful return to her pre-injury employment, given its significant requirement for frequent bending and lifting. He thought vocational redirection into light sedentary work was appropriate and he concluded that she was likely to have capacity to undertake 12 job types. [36] On 3 November 2014 there was a report from Return to Work Monitoring by At Work Solutions who had been monitoring Ms Gaskin's return to work. This report indicates she was only able to manage 3/3.5 hours and would go home early. The report advises that she was not making sufficient recovery to enable increased work hours. [37] Dr de Groot met with Ms Gaskin on 13 November 2014 and prepared a report the same day. He indicated that she had self rated her pain as between 4 and 10/10 on a visual analogue scale with the pain aggravated by prolonged standing, walking, and sitting and any task which required her to reach outside her base of support. The physiotherapist reported aggravated symptoms. He described a muscle tension pain cycle and agree with Dr Hartshorn's conclusions in relation to light work. He made several recommendations including: Modifications to Ms Gaskin analgesic. A 6 millimetre heel raise on her left shoe. Referral to the Pain Institution for a functional re-evaluation programme incorporating specialist physiotherapy psychological input and ongoing monitoring and that her hours to be kept the same but a change in the shift pattern. [38] On 9 January 2015 a Functional Reactivation Programme Report was completed. A completion report was produced on 15 February 2015. This put in place a plan of action to support Ms Gaskin's recovery. It was noted that Ms Gaskin was unable to complete the majority of goals identified in the plan of action to return to work. She was however able to do her housework with decreased pain and increased her ability to walk. [39] On 27 February 2015, Jaimee Coles, registered psychologist, carried out a Simple Psychological Assessment (Pain). The diagnosis was that Ms Gaskin was a major depressive disorder (recurrent moderate) as well as a Somatic Symptom Disorder (with predominant pain). A suggested treatment programme was indicated that would take eight weeks. Psychological sessions commenced thereafter. [40] Dr de Groot undertook a Follow Up Specialist Medical Report on 8 April 2015. The report noted functional reactivation programme and psychological input had been undertaken. [41] In respect of receiving psychological therapy he noted: ... reviewing her today this appears to all have paid off significantly. Janet reports that her average pain level is now down to 4/10, whereas previously this ranged from 8-10/10 on a visual analogue scale, and on top of this she is coping better within her home environment. [42] He indicated the goal now was for Ms Gaskin to find suitable sustainable employment with lighter duties. [43] On 17 May 2015 Jaimee Coles completed the psychological pain completion report and reported that four of the approved eight sessions had been undertaken with the remaining sessions terminated at the request of Ms Gaskin due to an improvement in her psychological functioning. Overall she indicated that Ms Gaskin had made progress and had reached a point where she accepted her injury and was ready to resume life again. [44] On 16 June 2015 Ms Gaskin's case was referred to the VI panel. A work ready programme was subsequently provided for Ms Gaskin in July 2015 which included looking through newspapers, updating her CV and some physiotherapy. The case manager notes that because the work ready programme was complete he had "sent the file off to VI". [45] In August 2015 Work Aon wrote to Ms Gaskin to say that individual rehabilitation was complete and that "we are now planning to assess your capacity for work using the vocational independence process". [46] The file was signed off by the team manager and Dr Burgess, BMA. There were no outstanding rehabilitation issues identified. [47] A Vocational Independence Occupational Assessment ("VIOA") report was completed by Rachel O'Connell on 17 August 2015. She identified, in the vocational rehabilitation, Ms Gaskin's work experience and detailed transferable skills. She identified 14 job options that were vocationally suitable for Ms Gaskin and did not identify any barriers to her returning to work in those identified job options. She also noted that Ms Gaskin was keen on teacher aid work and she noted Ms Gaskin's comments in relation to each of the job options which was consistently positive. [48] Mr Darke notes in his submissions that on 22 August 2015 Work Aon wrote to Dr Loo to advise that Ms Gaskin's individual rehabilitation had been completed and advising on the Vocational Independence assessment process. [49] He also notes that on 25 August 2015 Work Aon received advice from Dr Loo who advised there was no capacity to return to the pre-injury role but there was capacity to work in other types of employment. [50] The Vocational Independence Medical Assessment Report ("VIMA") was completed by Dr Blair Christian on 11 September 2015 who set out a summary of the claim, undertook a clinical examination, listed current symptoms and medications and concluded that the treatment was appropriate and effective to a degree. [51] He indicated that Ms Gaskin reported she had managed her pain better than she had 6 to 12 months earlier. He indicated that she no longer required daily pain relief, was sleeping well and fatigue was not a usual day to day issue. [52] Dr Christian concluded that Ms Gaskin was able to work 30 hours a week in a suitable light role with a mix of sitting, standing and walking through the day. He stated that a light retail role or light work role for example where she was able to change position and move around through the day would appear ideal. He indicated that she agreed and felt she could manage well in that kind of role. [53] Dr Christian identified the following job options as suitable: Retail supervisor. Sales assistant - gifts and/or crafts and or flowers. Despatch or receiving clerk. Stock clerk. Diversional therapist. Occupational health and safety advisor. The Decision [54] On 7 October 2015 Work Aon issued a decision advising Ms Gaskin that she had been found vocationally independent in six job options and that her weekly compensation payments would cease accordingly on 7 January 2016. [55] On 21 December 2015 Mr Darke (on behalf of Ms Gaskin) applied for a review of the Corporation's decision. [56] The review proceeded on 11 May 2015 before Mr Woodhouse, reviewer. Mr Woodhouse issued a decision on 21 May 2015 dismissing the review application and concluding that the referral for vocational independence was appropriate, that the vocational rehabilitation provided was appropriate and there was no evidence of a flaw in the VIMA. [57] A Notice of Appeal was filed against the reviewer's decision on 17 July 2016. Legislation [58] Both Mr Darke and Ms Becroft have identified the legislation relevant to this appeal. [59] The term vocational independence is defined under s 6 as: vocational independence, in relation to a claimant, means the claimant's capacity, as determined under section 107, to engage in work- (a) for which he or she is suited by reason of experience, education, or training, or any combination of those things; and (b) for 30 hours or more a week. (60] Section 107 of the Act authorises the Corporation to determine a claimant's vocational independence by requiring the claimant to participate in the assessment. It sets out the purpose of the assessment in s 107(3) which states: 107 Corporation to determine vocational independence . . . (3) The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant's individual rehabilitation plan, has been completed and that it has focused on the claimant's needs, and addressed any injury-related barriers, to enable the claimant-. (a) to maintain or obtain employment; or to regain or acquire vocational independence.. [61] Section 108 states as follows: 108 Assessment of claimant's vocational independence (1) An assessment of a claimant's vocational independence must consist of- a) an occupational assessment under clause 25 of Schedule 1; and b) a medical assessment under clause 28 of Schedule 1. (2) The purpose of an occupational assessment is to- (a) consider the progress and outcomes of vocational rehabilitation carried out under the claimant's individual rehabilitation plan; and (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. (3) The purpose of a medical assessment is to provide an opinion for the Corporation as to whether, having regard to the claimant's personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant's individual rehabilitation plan. [62] Section 109 determines when a claimant's vocational independence is to be assessed and states as follows: 109 When claimant's vocational independence to be assessed (1) The Corporation may determine the claimant's vocational independence at such reasonable intervals as the Corporation considers appropriate. (2) However, the Corporation must determine the claimant's vocational independence again if (a) the Corporation has previously determined that the claimant had- vocational independence under this section; or a capacity for work under section 89 of the Accident Insurance Act 1998; or (iii) a capacity for work under section 51 of the Accident Rehabilitation and Compensation Insurance Act 1992; and (b) the Corporation believes, or has reasonable grounds for believing, that the claimant's vocational independence or capacity for work may have deteriorated due to the injuries that were assessed in the previous vocational independence or capacity for work assessment. (3) The claimant may give the Corporation information to assist the Corporation to reach a belief under subsection (2)(b). [63] Section 110 requires notice to the claimant in respect of the assessment and states as follows: 110 Notice to claimant in relation to assessment of vocational independence (1) The Corporation must give written notice to a claimant required by the Corporation to participate in an assessment of his or her vocational independence. (2) The notice must- tate the purpose, nature, and effect of the assessment; and (b) state that the claimant is required to participate in the assessment; and (C state the consequences of not doing so; and state the claimant's right to be accompanied by another person during the assessment. (3) The Corporation must not require the claimant to participate in an assessment- (a) unless the claimant is likely to achieve vocational independence; and (b) until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan. [64] Pursuant to s 111 of the Act a determination that a claimant has vocational independence is regarded, inter alia, as a determination that the claimant is no longer incapacitated. [65] Section 112 provides that a determination of vocational independence under s 107 results in the claimant losing his or her entitlement to weekly compensation three months after the date on which the claimant is notified of the determination. 66] The assessment is required to be carried out also in terms of clauses 24 to 29 of Schedule 1 to the Act which state as follows: 24 Occupational assessor An occupational assessment must be undertaken by an assessor whom the Corporation considers has the appropriate qualifications and experience to do the assessment required in the particular case. 25 Conduct of occupational assessment (1) An occupational assessor undertaking an occupational assessment as part of an assessment of a claimant's vocational independence under section 108 may- a take into account information provided by the Corporation and the claimant; and (b) consider the individual rehabilitation plan prepared for the claimant and review the vocational rehabilitation carried out under the plan; and (c) discuss with the claimant all the types of work that the assessor identifies as suitable for the claimant; and (d) consider any comments the claimant makes to the assessor about hose types of work. (IA) In considering the suitability of the types of work referred to in subclause (1)(c), the occupational assessor may take into account, among other things, the claimant's earnings before the claimant's incapacity. (2) The Corporation must provide to an occupational assessor all information the Corporation has that is relevant to an occupational assessment. 26 Report on occupational assessment (1) The occupational assessor must prepare and provide to the Corporation a report on the occupational assessment specifying- a the claimant's work experience; and b) the claimant's education, including any incomplete formal qualifications; and (c) any work-related training in which the claimant has participated; and (d) all skills that the assessor has reasonably identified the claimant as having; and (e) the vocational rehabilitation that the claimant has received under the individual rehabilitation plan or in any other way; and (f) the outcome of the vocational rehabilitation; and (g) all types of work reasonably identified as suitable for the claimant; and (h) in relation to each type of work, the requirements of that type of work, including any environmental modifications that the assessor identifies as necessary to enable the claimant to function safely in that type of work. (2) The Corporation must provide a copy of the report to the claimant and the medical assessor. 27 Medical assessor (1) A medical assessment must be undertaken by a medical practitioner who is described in subclause (2) or subclause (3). (2 ) A medical practitioner who provides general medical services must also- (a) have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and b have at least 5 years' experience in general practice; and (c) meet at least 1 of the following criteria: 1) be a Fellow of the Royal New Zealand College of General Practitioners or hold an equivalent qualification: ii) be undertaking training towards becoming a Fellow of the Royal New Zealand College of General Practitioners or holding an equivalent qualification: ifi) have undertaken relevant advanced training. (3) A person who does not provide general medical services must also- (a) have an interest, and proven work experience, in disability management in the workplace or in occupational rehabilitation; and (b) be a member of a recognised college. 28 Conduct of medical assessment (1) A medical assessor undertaking a medical assessment as part of an assessment of a claimant's vocational independence under section 108 must take into account- a) information provided to the assessor by the Corporation; and b) any individual rehabilitation plan for the claimant; and (C) any of the following medical reports provided to the assessor: (i) medical reports requested by the Corporation before the individual rehabilitation plan was prepared: ii) medical reports received during the claimant's rehabilitation; and the report of the occupational assessor under clause 26; and the medical assessor's clinical examination of the claimant; and any other information or comments that the claimant requests the medical assessor to take into account and that the medical assessor decides are relevant. (2) The Corporation must provide to a medical assessor all information the Corporation has that is relevant to a medical assessment. 29 Report on medical assessment (1) The medical assessor must prepare and provide to the Corporation a report on the medical assessment specifying- a) relevant details about the claimant, including details of the claimant's injury; and (b) relevant details about the clinical examination of the claimant undertaken by the assessor, including the methods used and the assessor's findings from the examination; and (c) the results of any additional assessments of the claimant's condition; and (p) the assessor's opinion of the claimant's vocational independence in relation to each of the types of work identified in the occupational assessor's report; and (e) any comments made by the claimant to the assessor relating to the claimant's injury and vocational independence in relation to each of the types of work identified in the occupational assessor's report. (2) The report must also identify any conditions that- (a) prevent the claimant from having vocational independence; and b ) are not related to the claimant's injury. (3) The Corporation must provide a copy of the report to the claimant. [67] In addition s 83 of the Act states: 83 Date of entitlement to social rehabilitation (1) This section applies to the provision of social rehabilitation that the Corporation- (a) is liable to provide under section 81; or b) has decided to provide under section 82. (2) The Corporation must provide social rehabilitation on the later of the following: (a) the date on which the application for the social rehabilitation is made: (b) if the need for the social rehabilitation is assessed to arise after the date of the application, the date when it is assessed to arise. (3) However, if the Corporation considers that, in the claimant's circumstances, it would be unreasonable for the claimant to have made an earlier application, it may begin providing social rehabilitation on and from another date it considers reasonable to the claimant. (4) Subsection (3) does not entitle a claimant to entitlements that the claimant would not have been entitled to had the application been made earlier. [68] Sections 86 and 87 set out the matters which need to be considered when deciding whether to provide vocational rehabilitation: 86 Matters to be considered in deciding whether to provide vocational rehabilitation (1) In deciding whether to provide vocational rehabilitation, the Corporation must have regard to the matters in section 87. (2) In deciding what vocational rehabilitation is appropriate for the claimant to achieve the purpose of vocational rehabilitation under section 80,- (a) the Corporation must consider whether it is reasonably practicable o return the claimant to the same employment in which the claimant was engaged, and with the employer who was employing the claimant, when the claimant's incapacity commenced; and (b ) if it is not, the Corporation must consider the following matters: (i) whether it is reasonably practicable to return the claimant to an employment of a different kind with that employer: (ii) whether it is reasonably practicable to return the claimant to the employment in which the claimant was engaged when the claimant's incapacity commenced, but with a different employer: (ifi) whether it is reasonably practicable to return the claimant to a different employment with a different employer, in which the claimant is able to use his or her experience, education, or training: (iv) whether it is reasonably practicable to help the claimant use as many of his or her pre-injury skills as possible to obtain employment. 87 Further matters to be considered in deciding whether to provide vocational rehabilitation (1) In deciding whether to provide vocational rehabilitation, the Corporation must have regard to- (a) whether the vocational rehabilitation is likely to achieve its purpose under the claimant's individual rehabilitation plan; and (b) whether the vocational rehabilitation is likely to be cost-effective, having regard to the likelihood that costs of entitlements under this Act will be reduced as a result of the provision of vocational rehabilitation; and (c) whether the vocational rehabilitation is appropriate in the circumstances. (2) The Corporation must provide the vocational rehabilitation for the minimum period necessary to achieve its purpose, but must not provide any vocational rehabilitation for longer than 3 years (which need not be consecutive). (2A) Subsection (2) is subject to subsection (2B). (2B) Despite subsection (2), the Corporation may, at its discretion, provide vocational rehabilitation for longer than 3 years if the Corporation considers that- a) the vocational rehabilitation would be likely to achieve its purpose under the claimant's individual rehabilitation plan; and (b) the vocational rehabilitation would be likely to be cost-effective, having regard to the likelihood that costs of entitlements under this Act will be reduced as a result of the provision of vocational rehabilitation; and (c) the vocational rehabilitation would be appropriate in the circumstances. (2C) However, despite subsections (1)(b) and (2B)(b), the Corporation must not take into account as a factor against providing vocational rehabilitation that the claimant is, or may become, a person to whom clause 52 of Schedule 1 (relationship between weekly compensation and New Zealand superannuateon) applies. (3) This section is subject to any regulations made under section 324. Position of the Appellant [69] Mr Darke refers to the decision of Walding v ACC as being relevant to the principles involving the conduct and procedure of the VI assessment. He refers to paragraph [62] and [63] of Judge Powell's decision when discussing legal principles: [62] Overall the issue of vocational independence has been widely canvassed in the District Court, where it has been continuously emphasised that a holistic and common sense approach should be adopted when considering vocational independence matters. [63] In short the correctness or otherwise of the decision will come down to the robustness of the process, the assessments themselves and a consideration of whether, in the circumstances, the decision makes sense. [70] Mr Darke also refers to the decision of McGrath v ACC which considered s 110(3) of the Act. Section 110(3) sets a threshold for exercise of the Corporation's power to require vocational independence assessment for a claimant receiving weekly compensation. 2014] NZACC 87 N (2011] NZSC 77 Compliance with the threshold as set by the legislation can be compelled through recourse to the supervisory jurisdiction of the Court, as has been accepted by the Corporation. In discussing the meaning and purpose of this section the Court states at paragraph [34]: The prospect to be considered is as at the time the assessment is required. That is consistent with the scheme of the legislation and the language of s 110(3). The legislation is built around rehabilitation. Vocational independence is achieved on successful rehabilitation. It is the end of the process, not part of the rehabilitation programme. [71] Further discussion of that section at paragraph [35] states: . .. Section 107 provides that the Corporation determines vocational independence only "by requiring a claimant to participate in an assessment carried out ... in accordance with sections 108 to 110 ..." In this statutory context the restriction of the requirement to participate in vocational independence assessments under s 110(3) to cases where "the claimant is likely to achieve vocational independence" can only sensibly be construed as a likelihood that the assessment itself will result in the outcome of vocational independence. [72] In paragraph [39] of that decision the Court discusses the fact that the medical reports received described Ms McGrath's inability to cope with more hours of work than 15 per week and accordingly: ... their substance cannot have been relied upon in forming a view that vocational independence was reasonably in prospect. [73] Mr Darke refers to the following sentence where it states: Rather, the formal completion of the plan seems to have been regarded as justifying the view that it was no longer premature to obtain vocational independence assessment, as if it were the next stage in an inexorable process, without further consideration of whether completion of the plan bore on whether vocational independence was likely, as required by s 110(3)(a). [74] This is relevant to one of Ms Gaskin's challenges to the decision on the ground that vocational rehabilitation was not properly assessed and completed. [75] Mr Darke states at paragraph 83 of his submissions: The IRPs [Individual Rehabilitation Plans] and there are a number of them signed by the appellant, are notable for the almost complete absence of any mention of vocational rehabilitation. The correct process is that following an IMA [Initial Medical Assessment], the case manager should meet with the claimant and agree what vocational rehabilitation is necessary in terms of one or more jobs. [76] The First Schedule, clauses 7-10 specifically deal with individual rehabilitation plans but the schedule does not go into the detail noted by Mr Darke. He noted in fact that if there is no agreement to a plan the Corporation can still implement its version of a rehabilitation plan as if it had been agreed to. The claimant has course to apply for a review under clause 7 of Schedule 1. [77] Mr Darke also refers to Dr Hartshorn's IMA report of 14 October 2014 and his comment that there needed to be "a plan for a degree of vocational redirection" at that stage. [78] To put it in context this was the second occasion Dr Hartshorn had assessed Ms Gaskin. He noted in his report: Since that time Mrs Gaskin has attempted a graduated return to work. She was able to increase to four hours per day performing three hours of facing up and other light shelving duties with an additional hour of paperwork. She has not been able to further expand her work hours beyond this. The occupational therapist supervising the graduated return to work has been unavailable and thus the current work hours have remained stable for a period. [79] In the part relating to Discussion he stated that it is appropriate that Ms Gaskin continue with conservative treatment and there was no current surgical indication. He also stated it was appropriate that she be referred for the multidisciplinary approach to her persisting pain and a referral to a Dr de Groot was appropriate. [80] Dr Hartshorn also stated it was appropriate that she had ongoing adjustment to her medication and additionally have a combination of clinical psychology and exercise based rehabilitation input. In the next paragraph he says: In this respect I believe it is unlikely she will manage a successful return to her pre-injury employment which had a significant requirement for frequent bending and some lifting activity. I believe it would be appropriate to plan for a degree of vocational redirection into work activity at the light to sedentary end of the physical spectrum. [81] He then continues: With these factors in mind a review of the occupational assessor's report was undertaken. In my opinion Mrs Gaskin is likely to medically sustain the following work types. ... [82] The "redirection" is accordingly addressed in his own report of identifying work types at the light to sedentary end of the physical spectrum. [83] Whether there were any subsequent meetings is unknown as the appeal is limited to the bundle of documents produced and the Corporation has not provided any further documentation. Mr Darke makes extensive submissions that post the IMA conducted by Dr Hartshorn and IRP there could have been drawn up an assessment of what vocational rehabilitation needs would need to be assessed and recorded. He states at paragraph 110 of his submissions: The IMA is the first specialist opinion where it is opined that it is unlikely that the appellant will manage a return to her pre-injury employment. Dr de Groot in his report of 8 April 2015 goes so far to say that it was appropriate that the appellant be certified as no longer fit to return to her previous job. [84] He continues at paragraph 1 11 stating: Notwithstanding these specialist reports, on 16 June 2015 the appellant's case was referred to the VI panel [85] Mr Darke submits after the IMA that the Corporation should have followed the proper process and prepared an IRP in conjunction with Ms Gaskin and that could have contained suitable vocational rehabilitation. [86] Mr Darke refers to the fact that Ms Gaskin had at this stage tried to return to work and failed including a graduated return to work programme. That had been over a period of 14 months. [87] He states it is important was that there was no retraining or work experience provided in any of the IMA identified possible occupations. Mr Darke concedes while work trials are not a statutory requirement they are considered a guide to assessing stamina and tolerance. [88] This effectively also covers the second area of challenge, that being: At the date of referral to the VI process, vocational rehabilitation was not complete. [89] The third challenge relied on by Mr Darke is that the VMA (Vocational Medical Assessment) undertaken by Dr Christian on 11 September 2015 is fatally flawed [90] This is also referred to in the review decision at page 13 and page 216 of the bundle of documents where it states: Mr Darke submits that the vocational independence medical assessment is flawed, as it failed to properly consider how the applicant would address the mental requirements with respect to her injury and the work options, nor how she would manage with her pain. Mr Darke also submitted that the assessor discusses a "capacity to work", which is not a correct legal test that the assessor needed to apply. [91] At paragraph 64 of Mr Darke's submissions he refers to the fact that there were no work trials, particularly in regard to the six suitable job types. [92] He submits that the VIMA assessor attempts to "bullet proof" his conclusions by stating at page 7: With these factors in mind (ie pain and physical limitations as above) and specifically noting that they have been taken into account for assessment of each job option and with regard specifically to the referred injury ... [93] However Mr Darke states: The key point is whether the assessor can adequately explain in each individual job option, as to how the appellant can manage to work 30 hours given her medical problems. The assessor must actually show how he carried out the assessment and how he reached his conclusion in each job option. Assurances in advance are not enough. [94] Mr Darke notes that the assessor had identified difficulties which had arisen for Ms Gaskin carrying out regular work with regard to her pain syndrome and back spasms: If there has been a flare up of back pain she can have poor sleep, then feel fatigued during the day. On occasions she will have a sleep in the day but this does not happen most weeks. [95] Mr Darke also states that the VIMA assessor underplays the flare ups of pain being very irregular despite better pain management noting the following passage from the VIMA report: Management from here really is avoidance of activity likely to lead to a marked worsening of pain or requirement of time away from work due to pain. [96] It is Mr Darke's view that this appears to say that he accepts the pain problem will require time off work. Mr Darke refers further to the comment at page 6 of the report which states: Daytime fatigue or side effects from medication will not interfere with this type of light work. [97] In addition Mr Darke states: A serious concern is the failure of the assessor to acknowledge that a graduated return to work had failed due to her pain levels. He makes no mention of this in the VIMA. Indeed it is not clear whether he ever saw the reports that dealt with the failure of the graduated return to work. All of the above indicates that any assessment of capacity for work requires a very careful analysis particularly when it is claimed the claimant can work for 30 hours a week. 98] Mr Darke also states: With respect to the assessor, it is clear that a full and proper consideration has not been made with respect to each individual job option. Each job option considered has almost identical wording in each first sentence. The only difference is that in some the word 'not' has been included so as to read 'not within Janet's physical capacity'. [99] He also states: While Dr Christian reports that he takes into account all the rehabilitation it is not clear what rehabilitation he is referring to, considering there was none. [100] He states at paragraph 80: Neither was it explained why, given the graduated return to work failed due to pain problems that the claimant could nonetheless work 30 hours per week in alternative employment. [101] In conclusion he states: Finally, it is clear pain can affect memory, concentration and communication. All the job options require skills in some if not all of the above. These effects of pain were not dealt with by the assessor in reaching his conclusions. The Position of the Respondent [102] Ms Becroft filed written submissions and spoke to those also at the hearing. [103] She refers in some detail to the treatment/rehabilitation of Ms Gaskin as set out at 2.3 to 2.21 of her submissions. She mentions specifically that when Ms Gaskin undertook the Initial Occupational Assessment (IOA) with Ms Norfolk on 24 July 2014 a number of other job type were discussed and it was noted that Ms Gaskin advised that sales assistant roles were of interest to her. It is also noted that her job history had included: Night filler assistant; General merchandising supervisor; Factory worker; Cleaner; and General clerk. [104] Ms Becroft also refers to Dr Hartshorn's IMA of 14 October 2014 when he identified that he did not think that she would manage a successful return to her pre- injury employment given its significant requirement for frequent bending and lifting. He thought vocational redirection into light/sedentary work was appropriate and concluded that Ms Gaskin likely had the capacity for 12 job types. [105] Subsequent to this report Ms Gaskin also met with Dr de Groot on 13 November 2014. He also identified the pain aggravated by prolonged standing, walking and sitting and any tasks requiring her to reach outside her base of support. He made various recommendations including: Modification to Ms Gaskin analgesics. A heel raise to partially correct a leg length discrepancy. Referral to the Back Institute for a functional reactivation programme, and Ongoing monitoring. [106] In the meantime he indicated she should continue with her limited hours of work. [107] Subsequently also, an FRP was completed in February 2015 (Functional Reactivation Programme). It is noted that in the report that some of the goals were not achieved returning a return to full duties at work but she was able to do housework with decreased pain and increase her ability to walk. It was noted she was also referred for psychological input. He states: Jan has started to make some progress towards her goals. However, she still needs more work on her strength, flexibility, fitness, pain management, functional activities and work stimulation. We feel she is benefitting well from the programme and there is a potential for her to continue to improve. Therefore an additional six weeks is recommended for Jan. [108] In respect of the psychologist report there was a diagnosis of moderate depressive disorder and treatment plan put in place and which states: 1. Help Janet cope effectively with pain. This would be achieved through psycho education about her injury, applying cognitive behaviour therapy principles to pain related fears that maintain her in an anxious and depressed state, as well as using different relaxation strategies to help manage pain flare up episodes. 2. Help Janet adjust to changes resulting from her injury. This will look at identifying current stressors, prioritising, setting realistic and achievable goals, as well as applying problem solving skills to current situation. It is expected that eight sessions would be required on a weekly basis. [109] Ms Becroft refers to a file note from Aon of 23 July 2015: Today I met with Janet and Kim to discuss the IRP and her Return to work plan. Janet has been completing a work ready programme before starting VI. As she has now finished I advised I will send the file off for VI. We discussed a return to work as she advised she is feeling good but the only job options are her pre-injury job which she feels will just cause problems again. [110] Ms Becroft refers to both the vocational independence assessments at paragraphs 2.32 and 2.33 of her submissions. [111] In the VIOA it was noted that she had been completing light duties at her current place since 21 January 2015. Ms O'Connell confirmed that the vocational rehabilitation programme had been completed within the last 12 months and that Ms Gaskin participated in identifying occupational choices. She recommended a work ready programme at the end of her report of 19 August 2015 and also wrote a further note subsequently stating: Work ready programme now completed. CV has also been updated. Vocational rehabilitation is now complete. [1 12] This was subject to Ms O'Connell earlier ticking the box which stated: We have identified potential medical or vocational issues but will discuss these with the case manager. [1 13] She also noted Ms Gaskin was keen on teacher aid work and noted her comments in respect to each of the job options which was consistently positive. [114] The VIMA was completed by Dr Christian. [1 15] Ms Becroft stated Dr Christian set out a summary of the claim and undertook a clinical examination, listing current symptoms and medication and concluded the treatment was appropriate and effective to a degree and indicated that Ms Gaskin reported she was managing her pain better than she had 6 to 12 months earlier. She was not longer requiring pain relief, she was sleeping well and fatigue was not a usual day to day issue. [1 16] She states that Dr Christian concluded that Ms Gaskin was able to work 30 hours per week in a suitable light role and that light retail role was most suitable. He also indicated that she agreed and felt she could manage well in that kind of role. He identified six job options as being suitable. [117] In her written submissions Ms Becroft states: The issue of vocational independence has been widely canvassed in the District Court , where it has continuously been emphasised that a holistic and common sense approach should be adopted. [118] She refers to the decision of Wildbore , where Judge Cadenhead DCJ provided: The recent decision in Bondarenko (173/05) held that the vocational independence assessment process is not to be examined in a mechanical and rigid way. Rather, what is required is a common-sense application of the legislation to the requirements of the procedure. [1 19] Ms Becroft refers to Judge Powell's comment with reference to the robustness of the process, the assessments themselves and a consideration of whether in the circumstances the decision makes sense. [120] However, at 3.9 of her submissions, Ms Becroft states this is subject to the provisos, stating: All three factors are of equal importance. Subjective considerations of what seems sensible should not override objective evidence, unless that objective evidence is flawed; and When considering issues of common sense and reality, one must remain conscious of the statutory test, i.e. the test is not whether a person will be able to find work tomorrow, or whether a claimant has actively demonstrated the ability to work 30 hours a week, but rather whether, despite injury and related impairments, a person can theoretically work 30 hours a week. A useful discussion of same is set out in Herlihy (196/06): [33] Obtaining employment and achieving vocational independence are associated but different outcomes. Obtaining employment does not necessarily involve fulltime work. Vocational independence does not guarantee work at all, but is only an assessment that the claimant has work skills and physical capacity to perform categories of work to which he is suited by reason of experience, education or training. It is possible that he may not be able to get a job because of his age, difficulties caused by his injury, unavailability of suitable work. Vocational independence is concerned with capacity to work, but not with the ability to get a job. Vocational rehabilitation may stop short of 3 Wildbore v ACC [2006] NZACC 94 equipping a claimant with the qualifications necessary to compete against other job applicants. And in Collins (146/09), Beattie DCJ: [17] That situation does not pertain in the present case and I agree with the submission made by Mr Hlavac that the correctness, or otherwise of a determination of vocational independence is not dependent upon a claimant actually being able to obtain employment in any work type. [18] I find that the determination of vocational independence is simply an identification that a claimant is a person who has skills and abilities to perform work in certain fields of endeavour and thereby put in the same category as any other member of the public who is not physically disabled from obtaining employment. [19] The assessment creates a situation where the Applicant is again part of the workforce, albeit probably in a more restrictive vein than a person who is not suffering from any physical disability. [121] In respect to the process undertaken, Ms Becroft submitted: 3.17 It is submitted that the treatment and rehabilitation provided during the 2-year life of this claim was targeted and responsive, and ultimately successful in terms of addressing the appellant's pain. That pain still exists by mid-2015, but the Appellant had learnt strategies to manage the pain and cope with it, and had also reported significant decreases in overall pain levels. 3.18 Before referring the Appellant for vocational independence assessment and (as per s 1 10(3) of the 2001 Act) the Corporation turned its mind to: (a) Whether rehabilitation was complete; and (b) Whether there was a reasonable likelihood of the Appellant achieving vocational independence. 3.19 A vocational independence quality check undertaken in august 2015 answered both of those questions in the affirmative. In addition to that, it is submitted that by August 2015 there was a reasonable prospect of the Appellant achieving vocational independence because: Initial assessments had identified the likelihood of the Appellant being able to undertake light work The Appellant had been undertaking light work albeit on a part-time basis for much of the time since the accident in August 2013. There was an overwhelming consensus amongst the physicians who had examined her since the injury in August 2013, that while the Appellant's pre-incapacity employment was not appropriate, she would be capable of undertaking light work. The rehabilitation provided had addressed the Appellant's pain issues, she had learnt strategies to manage her pain, but also had benefited from an overall reduction in her pain levels. 3.20 Accordingly, it is submitted that by August 2015 the Appellant had received appropriate rehabilitation. The rehabilitation was complete and there was a likelihood that she would achieve vocational independence, therefore, it was appropriate for the Appellant to be referred for an assessment of her vocational independence. [122] Ms Becroft subsequently deals with the VIOA completed by Ms O'Connell on 14 August 2015. She notes Ms O'Connell's report, in particular, refers to Ms Gaskin's transferable skills that are listed in page 5 of the VIOA and that at page 6 it is acknowledged that these transferable skills are pre-existing and not "enlarged upon" during vocational rehabilitation. Notwithstanding Ms O'Connell indicated: Janet demonstrated that she is willing to continue to learn/further her education through participating in courses/training and through hands on experience. Janet has demonstrated she has a range [of] strengths with her numerical, detail, communication, interpersonal and clerical skills. Janet has obtained basic computer skills - able to send/receive emails, search Trade Me, undertake internet banking and play a selection of games. Janet commented that she is able to gain computer skills relevant to her job through repetition, and was able to undertake a small component of computer based work while employed at Countdown. [123] She notes Ms O'Connell went on to detail vocational suitable jobs, 14 in all were identified and records the positive comments expressed in respect to all these matters by Ms Gaskin. Counsel submits that Ms O'Connell did not identify any barriers to Ms Gaskin finding work in the identified job options. Ms Becroft submits that the VIOA demonstrates two things: [a] That Ms Gaskin has a range of transferable skills that enable her to undertake many job options; and [b] Ms Gaskin did not raise any issues whatsoever with vocational suitability of any of the roles that were put forward by the assessor. [124] Counsel accordingly submits that the VIOA satisfies the statutory requirements in terms of determining vocational independence. [125] Ms Becroft then discusses the VIMA. She states at 3.27 of her submissions that the VIMA was undertaken by Dr Christian on 11 September 2015 which sets out a summary of the claim and contains detailed examination and symptoms profile. [126] She notes that Dr Christian acknowledges Ms Gaskin's constant central low back pain in aggravated positions, including prolonged standing, sitting and walking. He indicates: As long as she is able to alter her position and activity through the day she generally does manage well. [127] Ms Becroft refers to Dr Christian indicating that Ms Gaskin generally slept well and was not requiring any more intermittent pain medication. He listed her medication in his report and concluded that her treatment had been appropriate and effective to a degree. [128] It is noted that Ms Gaskin acknowledged to him that her pain had improved, that she had learned to pace activity and therefore avoid marked flare ups. He also indicated that she advised him she was looking forward to returning to work. [129] Dr Christian concludes in his assessment: In my opinion Janet is able to work for 30 hours per week or more in a suitable light role. The ideal role would be one with a mix of sitting and standing and walking through the day. Janet is unlikely to sustain a full-time role involving very prolonged standing or prolonged sitting where she cannot reasonably regularly change position or have a break. Similarly, she would not sustain a full time medium or heavy work role particularly one involving repetitive lifting or twisting thus a light retail role or light office role for example where she is able to change position and move around through the day, does appear ideal. As noted earlier Janet herself is very hopeful of being offered 30 hours per week or more in her old role or a role similar to that. She says that if she is offered 30 hours per week in that type of role she would take it, and feels that she would manage well with that. From her description of that role this does appear appropriate and indeed ideal for her. As Janet, herself notes she will have ongoing low back pain. Management from here really is avoidance of activity likely to lead to a marked worsening of pain or requirement of time away from work due to pain. With ongoing strengthening programme, night time medication and avoidance of those physical activities/restrictions noted above, I believe Janet will sustain 30 hours per week or more. Daytime fatigue or side effects from medication will not interfere with that type of light role and Janet herself feels ready for return to work and indeed is looking forward to a return to work. [130] Dr Christian then went on to consider the various job types concluding six were appropriate. All the identified roles were light and provided a mixture of sitting, standing and walking through the day. [131] Ms Becroft submitted that Dr Christian's assessment is careful and thorough and it is wholly consistent with the earlier opinions on the file including those expressed in the IMA and by Dr de Groot, Pain and Rehabilitation specialist. [132] Ms Becroft submits that the VIMA satisfies the statutory criteria for determining vocational independence. [133] In respect to Ms Gaskin's argument Ms Becroft identifies the three areas raised by Mr Darke in his submissions: . That vocational rehabilitation was inadequate; That the s 110(3) threshold was not satisfied; and That the VIMA was flawed. Vocational Rehabilitation [134] In respect of vocational rehabilitation, Ms Becroft states that Ms Gaskin does not identify any particular shortfall in respect to vocational rehabilitation. [135] Ms Becroft also refers to the fact that the IOA undertaken in July 2014 acknowledges that while Ms Gaskin had limited formal training in each vocation it also acknowledges 26 years of work and a broad range of practical skills which enable Ms Gaskin to undertake 18 job options. [136] She refers to the assessor identifying the potential barriers in respect of the job options but the assessor is still of the opinion that these are all within Ms Gaskin's existing skill base. [137] Ms Becroft states that if the IOA did not identify vocational rehabilitation that is necessary for Ms Gaskin to obtain alternative employment then it is submitted there is no requirement for vocational rehabilitation to be provided. [138] She submits this is not a case where Ms Gaskin made requests for vocational rehabilitation and was ignored or declined. [139] Ms Becroft refers to Ms Gaskin's generic submission in terms of the Corporation's responsibility to provide vocational rehabilitation without focusing on the facts of the particular case. [140] Having noted that Ms Gaskin's pre-incapacity employment was unsustainable counsel states: There were several other viable alternatives in terms of light work - once those were identified, treatment was provided, after treatment and at a point where the appellant's pain was under control, it was appropriate to assess the appellant's vocational independence. Section 110(3) Test [141] Ms Becroft states that Mr Darke also submitted the s 110(3) test was not satisfied i.e. there was no likelihood of Ms Gaskin achieving vocational independence. Ms Gaskin refers to the medication that she was on, her inability to return to her pre-incapacity role, ongoing pain, issues with fatigue and the absence of a work trial. [142] In response Ms Becroft submits: The Appellant's inability to return to her pre-incapacity employment does not answer the question of whether the Appellant can undertake alternative employment. The Appellant's ongoing back pain has been acknowledged throughout, as has the fact that the treatment addressed the appellant's pain, providing mechanisms to better cope with it and resulting in overall reduction of pain. There is no requirement for a work trial, particularly in a case where there has een such a ready acknowledgement by the Appellant that she could do alternative work, not only from a vocational, but from a functional perspective. As submitted previously, the likelihood of the Appellant achieving vocational independence is supported by the results of the initial assessments and by the conclusions drawn by various practitioners who have been involved in the Appellant's treatment including Dr de Groot, who recommended that the Appellant take up alternative suitable employment. Flaws in the VIMA [143] Ms Becroft also refers to the grounds relied on by Ms Gaskin that there are flaws in the VIMA. [144] She states at paragraph 3.41 of her submissions: The assessment of vocational independence is a theoretical assessment comprising of a VIOA and a VIMA. The question is whether the VIMA satisfies the statutory criteria for determining vocational independence. It is submitted that it does. [145] Counsel refers to Dr Christian's qualifications to comment on Ms Gaskin's capacity and his conclusions that: ... notwithstanding her ongoing pain and functional limitations she is capable of undertaking 30 hours work per week. [146] Ms Becroft noted: ... He[Dr Christian] explains that the Appellant's pain is aggravated by certain static positions which are avoided in the job options that he identified as appropriate. Dr Christian indicated that the Appellant's pain was present, but under control and that the Appellant had learnt strategies to cope with the pain, with only minimal medications. He did not perceive these medications as being an inhibitor to the Appellant's capacity. [147] She states that these issues were carefully considered in Dr Christian's report. Importantly there is no counter assessment here to indicate that Dr Christian's conclusions in relation to Ms Gaskin's abilities are wrong. [148] Ms Becroft also refers to the fact that Ms Gaskin herself throughout the process was positive and confident in regard to her own abilities. 149] In summary Ms Becroft's position is that the vocational independence decision came about after a responsive period of rehabilitation, the focus of which was on the treatment of Ms Gaskin's pain. [150] It was noted Ms Gaskin had been gainfully employed for nearly three decades and had picked up a wealth of practical skills, these skills will enable her to work in several job options and no vocational rehabilitation was requested in this case nor was it indicated during any of the initial assessments. [151] Ms Becroft also refers to the consensus that Ms Gaskin's ability to undertake light work was also shared by Ms Gaskin herself. She states that the VIOA and the VIMA are careful robust assessments and ultimately the conclusion is that Ms Gaskin is vocationally independent is a sensible one. Discussion and Analysis [152] The thrust of Mr Darke's submissions on behalf of Ms Gaskin are centred around the matter of the vocational rehabilitation. [153] This was also the focus of the review decision. [154] It is accepted that vocational rehabilitation is an important and significant part of the Act and creates the foundation to enable claimants to progress their return to employment and independence. As the wording of's 79 of the Act states, the purpose of rehabilitation is to assist in restoring a claimant's independence to the maximum extent practicable. [155] Accordingly it has a number of aspects which are interdependent. [156] Section 80 states the purpose of vocational rehabilitation is to help a complainant, as appropriate, maintain employment, obtain employment or regain or acquire vocational independence having suffered personal injury. To achieve this it is important that the claimant's needs are identified. It would be expected a large proportion of this relates to treatment and pain. In addition the assessments themselves, particularly the initial assessments, are a working tool to establish how claimants can be assisted. [157] Mr Darke in his oral submissions suggested accordingly that a target of a return to existing work and also looking at options cannot feasibly be dealt with at the same time. [158] There is no legislative base or authority provided for this view. [159] Also there is no rationale of why it should be a two step process expending greater time and resources. [160] Accordingly in respect of Ms Gaskin, the path taken by the Corporation was to support her initial wish to return to her pre-existing employment but it became evident that other options needed to be investigated and explored. [161] This falls under the criteria already discussed of: [a] The robustness of the process; [b] The assessments themselves and a consideration of whether in the circumstances the decision makes sense. [162] Accordingly I see no merit in Mr Darke's submission that a two step processes of, first, considering returning to pre-employment; and second, looking at alternative options, is necessary or has merit. [163] There appears to be no reason why they cannot be conducted together and through the same process, while identifying the alternate options. [164] Mr Darke also made submissions on behalf of Ms Gaskin that the assessment process and the determination of vocational rehabilitation required to be assessed and concluded prior to s 1 10(3) being progressed. [165] The decision of McGrath however can be distinguished in that in the case of Ms McGrath there was definitive medical information that she did not have the ability to work more than 15 hours a week and accordingly the determination of vocational independence could be determined on that issue. [166] I also accept Ms Becroft's submissions that there has been no identification by Ms Gaskin of what additional vocational rehabilitation could have been of assistance, and why Ms Gaskin's acknowledged abilities and skills after a long period of employment were not deemed to be sufficient. [167] It is clear that the matter of pain was addressed by the professionals, both in respect of physical and psychological functionality and this assisted in determining appropriate work types. [168] In respect of the VIMA I do not accept the submissions of Mr Darke that it is flawed. [169] As noted by Ms Becroft there is no equivalent professional evidence provided to the Court that provides any medical criticism of the report. I find that it was undertaken by Dr Christian carefully, taking into account Ms Gaskin's current symptoms and relevant history together with an interview with her in person. [170] In addition the discussion with Ms Gaskin as to job types indicates enthusiasm, interest and confidence in her ability to undertake those or similar type work. In addition there has been a recognised improvement in her pain levels and her ability to manage those which support her ability to undertake 30 hours a week in roles suggested. [171] As emphasised by Ms Becroft this is not to say of course there are jobs available and Ms Gaskin will necessarily obtain employment in those job types. This is only for identification, as stated in Collins noting she has skills and abilities to work in certain fields of endeavour and where she can again become part of a work force albeit in a more restricted role than a person who is not suffering from any physical disability. Conclusion [172] Accordingly I find that the decision made by the Corporation on 7 October 2015 has been properly made in terms of the process followed and in terms of all processes that were followed in obtaining the assessments relied on. [173] Accordingly the appeal is dismissed. [174] There is no order made as to costs. Footnote [175] At the conclusion of his submissions Mr Darke was also seeking appeal as to the provision of costs appointed at the review hearing. It is his submission that disallowing accommodation costs is not a proper exercise of discretion by the reviewer disallowing accommodation costs of $90 to Ms Gaskin's advocate. He states the reviewer's reasoning was that Ms Gaskin was entitled to appoint a representative from outside the region but the additional costs related to this should not fall on the employer. [176] The Award of Costs of Review are deemed to be on a reasonable basis. If Ms Gaskin was required to seek representation outside the area, given the limited advocates available, then I find that to be reasonable. [177] Accordingly that part of the appeal is allowed and the Corporation is to pay Ms Gaskin $90.00 in respect of accommodation expenses arising from the review. Judge J H Walker District Court Judge Solicitors: Medico Law, Auckland for the respondent ACR 227-16-Gaskin