JANET GASKIN v ACC [2021] NZCA 27

JANET GASKIN v ACC [2021] NZCA 27 [25 February 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA538/2019[2021] NZCA 27BETWEEN JANET GASKINAppellantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 19 November 2020Court: French, Cooper and Gilbert JJCounsel: A C Beck and P G Schmidt for AppellantD A Laurenson QC and F L Becroft for RespondentJudgment: 25 February 2021 at 11 amJUDGMENT OF THE COURTA The answer to the question of law set out at [5] of the judgment is "no".B The appeal is dismissed.C We make no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Ms Gaskin was formerly employed as a night filler at a supermarket inPalmerston North stacking products on shelves. In August 2013, Ms Gaskin injuredher back while carrying out this work. She continued working for about a week beforethe pain worsened to the point she was unable to continue. The AccidentCompensation Corporation (the Corporation) accepted her claim for cover and paidher earnings-related compensation for this work-related personal injury. Ms Gaskinsubsequently received treatment and vocational rehabilitation with the aim of herreturning to her pre-injury employment. However, it became clear she would not beable to resume her previous employment. In September 2015, some two years afterthe injury, Ms Gaskin was assessed as vocationally independent, being capable ofworking at least 30 hours per week in six different roles. Aon New Zealand (Aon),a contracted accredited provider of the Corporation's services, advised Ms Gaskin on7 October 2015 that her eligibility for weekly compensation would cease on7 January 2016 because her injury no longer prevented her from working full-time.[2] Ms Gaskin applied to the Corporation for a review of this decision, but it wasupheld on review on 31 May 2016. Ms Gaskin then appealed to the District Courtcontending that the assessment of vocational independence was premature becausevocational rehabilitation had not been properly assessed or completed. She alsoargued that the vocational independence medical assessment was flawed. The appealwas dismissed by Judge J H Walker for reasons set out in a lengthy judgment deliveredon 13 June 2017.1 Ms Gaskin applied for leave to appeal to the High Court ona question of law, but this was declined by Judge G M Harrison on 23 August 2018.2Ms Gaskin then applied to the High Court for special leave to appeal. On 5 December2018, Cull J granted special leave to appeal on the following two questions of law:3(a) Did the Judge err in failing to take into account whether the statutorythreshold test under s 110 of the [Accident Compensation Act 2001]had been met, before Ms Gaskin was referred for a vocationalindependence assessment?(b) Did the Judge err in finding [the Corporation] complied withthe legislative provisions on vocational rehabilitation for Ms Gaskin,in accordance with the Act and the applicable law?[3] Dobson J determined that the answer to these questions was "no" and hedismissed the appeal for reasons set out in his judgment delivered on 2 July 2019.4Dobson J declined Ms Gaskin's application for leave to bring a further appeal tothis Court on 27 September 2019.51 Gaskin v Accident Compensation Corporation [2017] NZACC 63.2 Gaskin v Accident Compensation Corporation [2018] NZACC 134.3 Gaskin v Accident Compensation Corporation [2018] NZHC 3190 at [50].4 Gaskin v Accident Compensation Corporation [2019] NZHC 1530 [High Court judgment].5 Gaskin v Accident Compensation Corporation [2019] NZHC 2455.[4] Ms Gaskin contends that the scheme of the Accident Compensation Act 2001(the Act) requires a strictly sequential approach when determining what vocationalrehabilitation is appropriate. She accepts it was not reasonably practicable for her toreturn to her former employment given her back condition. However, once thatpossibility was ruled out, she says Aon was required to consider in sequence whatvocational rehabilitation would be appropriate to achieve the stepdown outcomes setout in s 86(2) of the Act, starting with a return to employment of a different kind withthe same employer. Only after these possibilities had been exhausted, couldthe Corporation then assess whether she was vocationally independent. Ms Gaskinrelies particularly on s 86(2) of the Act:86 Matters to be considered in deciding whether to providevocational 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 forthe claimant to achieve the purpose of vocational rehabilitation undersection 80,—(a) the Corporation must consider whether it is reasonablypracticable to return the claimant to the same employment inwhich the claimant was engaged, and with the employer whowas employing the claimant, when the claimant's incapacitycommenced; and(b) if it is not, the Corporation must consider the followingmatters:(i) whether it is reasonably practicable to returnthe claimant to an employment of a different kindwith that employer:(ii) whether it is reasonably practicable to returnthe claimant to the employment in which the claimantwas engaged when the claimant's incapacitycommenced, but with a different employer:(iii) whether it is reasonably practicable to returnthe claimant to a different employment with adifferent employer, in which the claimant is able touse his or her experience, education, or training:(iv) whether it is reasonably practicable to helpthe claimant use as many of his or her pre-injury skillsas possible to obtain employment.[5] Because the issue raised by Ms Gaskin is one of general importance and likelyto have wide application, this Court granted special leave to appeal on the followingquestion of law:6Did the High Court Judge err in interpreting s 86(2) of the AccidentCompensation Act 2001 as permitting a contemporaneous rather thana sequential consideration of the matters in s 86(2)(a) and (b)?Relevant statutory provisions[6] One of the two overriding goals of the accident compensation scheme is tominimise the impact of injury on the community, including economic, social andpersonal costs. This is to be achieved by the Corporation primarily focusing onrehabilitation with the goal of achieving an appropriate quality of life throughthe provision of entitlements that restore a claimant's health, independence andparticipation to the maximum extent practicable.7 To this end, the first ofthe entitlements listed under the Act is rehabilitation, comprising treatment, socialrehabilitation and vocational rehabilitation.8[7] The purpose of social rehabilitation is to assist in restoring a claimant'sindependence to the maximum extent practicable.9 The purpose of vocationalrehabilitation on the other hand is to help a claimant achieve one of three outcomes asappropriate. These are to maintain employment, to obtain employment, or to regainor acquire vocational independence. Vocational rehabilitation includes the provisionof activities for the purpose of maintaining or obtaining employment suitable forthe claimant and appropriate for his or her levels of training and experience.10[8] Within 13 weeks after the Corporation accepts a claim for cover, it mustdetermine whether the claimant is likely to need social or vocational rehabilitationfollowing the expiry of that period. If so, an individual rehabilitation plan, which mayinclude provision for treatment, must be prepared in consultation with the claimant.11In preparing the plan, the Corporation must assess the claimant's needs for6 Gaskin v Accident Compensation Corporation [2020] NZCA 147.7 Accident Compensation Act 2001, s 3(c).8 Section 69(1)(a).9 Section 79.10 Section 80.11 Section 75.rehabilitation, having regard to the purposes of both social and vocationalrehabilitation. Among other things, an individual rehabilitation plan must identifythe claimant's needs for rehabilitation, the services appropriate to those needs andspecify which of those services the Corporation will provide, pay for or contributeto.12 However, there is one important qualification. The Corporation is not requiredto assess the claimant's needs for vocational rehabilitation if the claimant's needs aresolely related to maintaining employment.13[9] Individual rehabilitation plans must be updated to reflect the outcome ofassessments undertaken and progress made.14 If there is a change of circumstances atany time affecting the claimant's need for vocational rehabilitation, the Corporationand the claimant may agree to a consequent modification of the plan.15[10] In deciding whether to provide vocational rehabilitation, the Corporation isrequired to consider whether such rehabilitation is likely to achieve its purpose underthe individual rehabilitation plan, whether it is likely to be cost-effective and whetherit is appropriate in the circumstances.16 We have already quoted s 86 which sets outthe matters the Corporation must consider when deciding what vocationalrehabilitation is appropriate for the particular claimant to achieve its statutory purpose.Any vocational rehabilitation must be provided for the minimum period necessary toachieve its purpose and generally for no longer than three years at the outside.17[11] An assessment of a claimant's vocational rehabilitation needs must consist ofan initial occupational assessment to identify the types of work that may be appropriatefor the claimant and an initial medical assessment to determine whether the types ofwork identified are, or are likely to be, medically sustainable for the claimant.18[12] As noted, the purpose of vocational rehabilitation is to help a claimant achieveone of three possible outcomes, as appropriate. The first of these, to maintain12 Section 77.13 Section 77(4).14 Section 78.15 Section 88.16 Section 87(1).17 Section 87(2).18 Section 89.employment, will be appropriate in cases where a return to pre-accident employmentis reasonably practicable. Most claimants will fall into this category. However, ifa return to existing employment is not reasonably practicable, the next objective is toassist the claimant to obtain other employment. The third objective is to assista claimant to obtain vocational independence which is defined to mean the claimant'scapacity to engage in work for which he or she is suited by reason of experience,education or training for at least 30 hours a week.19 If the Corporation determines thata claimant has vocational independence, the claimant loses his or her entitlement toweekly compensation three months after notification of that determination.20[13] The Corporation may determine whether a claimant has vocationalindependence at such reasonable intervals as the Corporation considers appropriate.21However, the Corporation must not require a claimant to participate in a vocationalindependence assessment unless two pre-conditions are satisfied. First, the claimantmust be likely to achieve vocational independence. Secondly, the claimant must havecompleted any vocational rehabilitation the Corporation was liable to provide underthe individual rehabilitation plan.22 The purpose of the assessment is to ensure thatcomprehensive vocational rehabilitation as identified in the rehabilitation plan hasbeen completed and has focused on the claimant's needs and addressed anyinjury-related barriers to enable the claimant to maintain or obtain employment, or toregain or acquire vocational independence.23[14] An assessment of vocational independence consists of an occupationalassessment and a medical assessment. The occupational assessment considersthe progress and outcomes of vocational rehabilitation carried out under the individualrehabilitation plan and whether the types of work identified in the plan remain suitablefor the claimant in that they match the skills the claimant has gained through education,training or experience. The purpose of the medical assessment is to provide an opinionfor the Corporation as to whether, having regard to the personal injury, the claimant19 Section 6.20 Section 112.21 Section 109.22 Section 110(3).23 Section 107(3).has the capacity to undertake any type of work identified in the occupationalassessment and reflected in the plan.24The process followed in Ms Gaskin's case[15] Various treatment and other rehabilitation services were provided to Ms Gaskinover the two-year period between the time of her accident in August 2013 andOctober 2015 when she was assessed as having vocational independence. These stepsand the numerous medical reports that were completed during this time are detailed inthe judgments below. It is not necessary to repeat that detail for the purposes ofthis judgment. The following summary will suffice to set the context for considerationof the question of law we are to determine.[16] An initial rehabilitation plan was completed on 11 September 2013 andreviewed monthly thereafter. Initially, it was envisaged that Ms Gaskin would returnto work in her existing employment after receiving treatment, primarily physiotherapy.A graduated return to work plan was prepared with an agreed expected completiondate of 25 November 2013. However, this proved not to be possible.[17] Despite further treatment in accordance with the plan, it became increasinglyclear that Ms Gaskin was unlikely to be able to return to her pre-accident employmentand that other options needed to be considered. On 31 March 2014, David Hartshorn,a specialist occupational physician, assessed Ms Gaskin with the benefit of all relevantmedical reports including x-ray and MRI scan reports. Dr Hartshorn was askedwhether there were any additional treatment options that could be considered andwhether it was likely Ms Gaskin would be able to sustain her pre-accident work taskssafely long-term. Dr Hartshorn reported on 7 April 2014 that Ms Gaskin's presentationremained largely unchanged with persistent low back pain. He stated that hersymptoms were primarily due to protrusion of the left paracentral disc and associatednerve root irritation. He suggested that the potential for Ms Gaskin to return to herusual work activity would depend on resolution of these symptoms and herecommended a surgical referral to Tim Love, an orthopaedic surgeon. Dr Hartshornalso noted there was evidence suggesting Ms Gaskin had pre-existing disc24 Section 108.degenerative change at the time of the accident although this appeared to beasymptomatic.[18] Ms Gaskin was accordingly referred to Mr Love. He reported on 26 June 2014that Ms Gaskin was not a suitable candidate for surgery and he recommended that shebe referred to Jurriaan de Groot, a consultant physician in rehabilitation medicine anda specialist in pain management. By this stage, it was apparent that Ms Gaskin's needsfor rehabilitation may not be solely related to maintaining her existing employmentand therefore her needs for vocational rehabilitation to assist her to obtainthe stepdown outcomes (obtain other employment or vocational independence)needed to be assessed. Accordingly, as anticipated at the regular monthly review ofthe individual rehabilitation plan on 17 June 2014 and confirmed at the next reviewon 22 July 2014 following receipt of Mr Love's report, Ms Gaskin was referred foran initial occupational assessment and an initial medical assessment.[19] The initial occupational assessment was completed on 24 July 2014 andidentified 18 types of work that may be appropriate for Ms Gaskin, taking account ofher injury, her qualifications and her work experience in various roles over 27 years.Ms Gaskin's responses to these potential roles were recorded in the report and rangedfrom being "very interested" to "no". One of the roles identified was her existing roleas a shelf filler. Ms Gaskin's response to this was "[n]ot sure I can".[20] Dr Hartshorn carried out the initial medical assessment and provided his reportto Aon on 14 October 2014. He noted:Mrs Gaskin presents with a history of persisting back dominant pain withassociated left lower limb discomfort following a forward flexion manoeuvreon the 13/08/2013. Surgical review has resulted in recommendations for conservative treatmentgiven the lack of a well-defined surgical indication and persistence ofsmoking.It is appropriate at this time that Mrs Gaskin continues with conservativetreatment. There is no current surgical indication. It is appropriate thatMrs Gaskin is now referred for a multidisciplinary approach to her persistingpain. The referral to Dr de Groot is appropriate in this regard. It would beappropriate that she has some ongoing adjustment of her medication regimeand additionally has a combination of clinical psychology and exercise basedrehabilitation input.At this time Mrs Gaskin is approximately fourteen months post-onset of lowback pain. It is becoming increasingly likely that she will continue toexperience some degree of persisting low back pain. In this respect I believeit is unlikely that she will manage a successful return to her pre-injuryemployment which had a significant requirement for frequent bending andsome lifting activity. I believe it would be appropriate to plan for a degree ofvocational redirection into work activity at the light to sedentary end ofthe physical spectrum.[21] Of the 18 work types identified in the initial occupational assessment,Dr Hartshorn considered that 12 were likely to be medically sustainable forMs Gaskin. As to the existing shelf filler role, Dr Hartshorn reported that this workwas potentially very heavy in terms of physical demand and required frequent forwardflexion postures. Dr Hartshorn did not consider Ms Gaskin would be likely tomedically sustain this work and noted that she herself thought it unlikely she couldresume this type of role.[22] In accordance with Dr Hartshorn's recommendation, Ms Gaskin was referredto Dr de Groot on 13 November 2014. Dr de Groot recommended changes toMs Gaskin's medications to manage her back pain. He suggested that the heel beraised in her left shoe to correct leg-length discrepancy and improve the biomechanicsof her spine. He also recommended that Ms Gaskin be referred to TBI Health foran individualised functional reactivation programme incorporating specialistphysiotherapy and psychological input to help with pain management.[23] Ms Gaskin subsequently participated in a six-week programme at TBI Healthwhich was completed on 13 February 2015. The programme included corestrengthening exercises, flexibility, cardiovascular training and a conditioningprogramme with a work simulation component. However, the goal of returning to fullduties at work was not achieved. Ms Gaskin commenced a gradual return to work forthree hours per day doing light duties on 20 January 2015, but she could only sustainthis for one week due to significant lower back and leg pain.[24] Ms Gaskin also completed four of the eight sessions offered with Jaimee Coles,a registered psychologist. Ms Gaskin chose to terminate these sessions because ofthe early gains she made in her overall psychological functioning.[25] Following completion of the functional reactivation programme andthe psychological sessions with Ms Coles, Ms Gaskin was referred back to Dr de Grootfor further assessment. He reported on 8 April 2015 stating:[Ms Gaskin] has now completed a functional reactivation programme withKarmin Su, Physiotherapist at TBI [Health], and this has focused on achievinglumbar flexibility, core-strengthening exercises, specific stretches, andself-management techniques. She has also received psychological therapyinput from Jaimee Coles, and reviewing her today this appears to all have paidoff significantly. [Ms Gaskin] reports that her average pain level is now downto 4/10, whereas previously this ranged from 8-10/10 on a visual analoguescale, and on top of this she is coping better within her home environment.It became obvious that the tasks within her work environment, stackingsupermarket shelves with heavy items, was not sustainable for her, and it isacknowledged that she can no longer fulfil these duties. As such, the quest ison for [Ms Gaskin] to find suitable sustainable employment with lighterduties.[26] Dr de Groot made no suggestions for any other treatment or rehabilitation.He considered it would be appropriate to certify Ms Gaskin as no longer fit to bea shelf stacker but he stated that she had the capacity to work in a setting involvingmuch lighter duties, such as in the retail sector. Dr de Groot noted that Ms Gaskin hadstarted to explore these possibilities through Workbridge, a free employment servicefor disabled people or those with an injury or health condition. He also noted thatMs Gaskin would continue to practise the exercises as instructed by herphysiotherapist and psychologist.[27] Ms Gaskin completed a Work Ready programme on 23 July 2015.[28] All vocational rehabilitation then having been completed, Ms Gaskin wasreferred for a vocational independence occupational assessment. This was completedon 17 August 2015 and concluded that 14 of the work types identified in the individualrehabilitation plan were suitable for Ms Gaskin given her training and experience.Ms Gaskin's comments on each of these work types were recorded in the report andwere almost all positive, including "I would be really really interested in this sort ofjob", "[y]eah can do that" and "[c]ould do this". No potential vocational barriers toMs Gaskin successfully obtaining work in any of these work types were identified.[29] A vocational independence medical assessment was undertaken on4 September 2015 by Blair Christian, an occupational medicine specialist. In hisreport dated 11 September 2015, Dr Christian stated:[Ms Gaskin] is at the point where she is looking forward to a return to work,ideally to her old daytime merchandising supervising role, where she did havea variety of generally light tasks and postures through the day.I have no new treatment recommendations. I do not believe that [a] furthersupervised physical therapy programme or psychological programme isrequired.In my opinion [Ms Gaskin] is able to work for thirty hours per week or morein a suitable light role. The ideal role would be one with a mix of sitting andstanding and walking through the day. [Ms Gaskin] is unlikely to sustaina full-time role involving very prolonged standing or prolonged sitting, whereshe 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 roleor light office role for example, where she is able to change position and movearound through the day, does appear ideal.As noted earlier [Ms Gaskin] herself is very hopeful of being offered thirtyhours per week or more in her old role or a role similar to that. She says thatif she is offered thirty 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 thatrole this does appear appropriate and indeed ideal for her.As [Ms Gaskin] herself notes, she will have ongoing low back pain.Management from here really is avoidance of activity likely to lead toa marked worsening of pain or requirement of time away from work due topain. With [an] ongoing strengthening programme, nighttime medication, andavoidance of those physical activities/restrictions noted above, I believe[Ms Gaskin] will sustain thirty hours per week or more. Daytime fatigue orside effects from medication will not interfere with that type of light role, and[Ms Gaskin] herself feels ready for return to work and indeed is lookingforward to a return to work.[30] Dr Christian assessed Ms Gaskin's ability to carry out the job options detailedin the vocational independence occupational assessment for at least 30 hours per week.He considered six of these work types would be medically sustainable by Ms Gaskinat that level.[31] In view of these assessments, Aon determined that Ms Gaskin had obtainedvocational independence and her injury no longer prevented her from workingfull-time. It notified Ms Gaskin accordingly on 7 October 2015.Submissions[32] Mr Beck, for Ms Gaskin, submits the text of s 86 makes clear that a strictlysequential approach to vocational rehabilitation is required. The Corporation mustfirst decide whether to provide vocational rehabilitation at all. If so, it must thendecide what vocational rehabilitation it will provide. This entails a three-step process,with each distinct step being implemented separately and in sequence. At the firststep, the Corporation must focus entirely on whether it is reasonably practicable forthe claimant to return to their pre-injury occupation. Only if that is not reasonablypracticable, can the Corporation go on to consider the second step which is to assistthe claimant to obtain other employment with the same employer or the same role withother employers. The final step is to consider "completely new employmentdirections". In summary, Mr Beck says the scheme is designed to ensure a graduatedapproach, only moving away from the pre-injury status quo as far as necessary toachieve effective rehabilitation for the claimant.[33] Mr Beck submits this strictly sequential approach to vocational rehabilitationis supported by the immediate statutory context. While the purpose of vocationalrehabilitation — to assist the claimant to maintain employment, obtain employment,or regain or acquire vocational independence — is not stated in s 80 in hierarchicalterms, it follows a natural progression. He says this is consistent with the statutorypurpose of achieving effective rehabilitation with the minimum disruption toa claimant's life and work. Mr Beck argues it is not possible to achieve rehabilitationto the maximum extent practicable if the hierarchy of considerations is not reflectedin a practical rehabilitation programme and accompanied by a genuine effort bythe Corporation to put this into effect. In particular, the Corporation cannot"short-cut" the process by moving directly from step one to step three, which he arguesis what occurred in this case. Mr Beck contends that once it became clear Ms Gaskinwas not able to return to her pre-injury employment, Aon "abandoned all pretence offollowing the rehabilitation process specified under the Act, and embarked on takingthe steps necessary to exit the appellant from the scheme as soon as possible".[34] Mr Beck submits that the High Court erred in its interpretation of s 86 byadopting what he describes as a "muddling through" and "laissez-faire" approach thatis neither in accordance with the scheme of the Act, nor justifiable on conventionalprinciples of statutory interpretation. Mr Beck particularly criticises the followingpassages in the judgment:25[71] I am not persuaded that either the terms of s 86, or the broaderstructure of the provisions in the Act for vocational rehabilitation, necessarilyrequire a strict sequencing of the considerations required under s 86(2)(a) and(b). Clearly, in many circumstances there would be no point in[the Corporation] considering the matters specified in s 86(2)(b) untilthe prospects of returning the claimant to the same employment have beenexhausted. However, in other cases of which the present is an example, it maybe in the claimant's interests for consideration of the s 86(2)(b) factors to beundertaken without necessarily having exhausted the prospects of the claimantreturning to the pre-injury employment.[72] The prospect of progressing these options for rehabilitation withinthe same time frames is not precluded by s 77(4). That provision merelyexempts [the Corporation] from a requirement to consider vocationalrehabilitation where it is clear that the claimant's needs are focused onmaintaining pre-injury employment. That does not preclude [the Corporation]electing to advance considerations under both options at the same time.[35] Mr Laurenson QC, for the Corporation, submits that s 86(2) permits acontemporaneous consideration of s 86(2)(a) and (b) matters for the following reasons:(a) The purpose and effect of s 86(2) is to make a return to pre-injuryemployment the first goal of vocational rehabilitation, with obtainingother employment or acquiring vocational independence beingthe "fallback options".(b) A contemporaneous consideration is not inconsistent with the purposeor wording of s 86(2) as the provision does not provide that s 86(2)(a)and (b) matters cannot be considered at the same time to account forthe possibility that ultimately a return to pre-injury employment mightnot be reasonably practicable.(c) The statutory scheme supports a contemporaneous consideration inappropriate circumstances, such as through s 89, which provides thatthe assessment of a claimant's needs must consist of both an initialoccupational assessment and an initial medical assessment.25 High Court judgment, above n 4.(d) A requirement that there be a sequential consideration in allcircumstances has the potential to lead to absurd results contrary tothe statutory purpose of the Act, such as significant delays in thecompletion of the vocational rehabilitation process and so in claimantsbeing rehabilitated and obtaining other employment or acquiringvocational independence. This would be contrary to the Act's purposeof minimising the economic, social and personal costs tothe community of claimants being unemployed as a result of injury andso continuing to receive entitlements for a longer period than isnecessary.(e) A contemporaneous consideration would not "short-circuit" the schemein the Act as, regardless of the approach taken, the statutory vocationalrehabilitation scheme must be carried out and completed beforea claimant can be required to undergo a vocational independenceassessment.Assessment[36] We agree with Dobson J that there is nothing in s 86 or in the scheme of the Actrequiring a strictly sequential approach to be taken to the provision of vocationalrehabilitation. We accept Mr Laurenson's submissions that such a rigid approachwould be contrary to the statutory purpose of the Act, the entitlements provided forand the procedures prescribed.[37] From the outset, rehabilitation has been a key focus of the accidentcompensation scheme. The 1967 report of the Royal Commission of Inquiry(the Woodhouse Report that led to the enactment of the Accident Compensation Act1972) identified that injury by accident needed to be tackled on three fronts.26In descending order of importance, these were prevention, rehabilitation andcompensation. The Commission considered that incapacitated people requiringrehabilitation fell into three main groups — those who will quickly recover and return26 Royal Commission of Inquiry Compensation for Personal Injury in New Zealand(December 1967) at 2.to their former activities, those who will eventually be able to return to their normalwork but only after a period of treatment and convalescence, and a relatively smallgroup who will require considerable assistance and possibly retraining.27[38] The objective of rehabilitation is to restore the injured person to the greatestextent reasonably possible at the earliest opportunity. In the White Paper presented tothe House of Representatives by leave in October 1969, the Department of Labourcommented that the "boundary between those who will need retraining in their oldwork habits, skills, and capacities, and those who will need training in a new vocation,will frequently be blurred" but the "objective in all cases must be, as quickly aspossible, to get injured persons back into productive employment and to enable themto be useful members of the community once more".28[39] These founding objectives are reflected in the current Act. Section 3 states thatthe purpose of the Act is to enhance the public good and reinforce the social contractrepresented by the first accident compensation scheme with the overriding goals ofminimising the overall incidence of injury, and the impact of injury on the community(including economic, social and personal costs). Where injuries occur, theCorporation's primary focus must be on rehabilitation.[40] An insistence on a strictly sequential approach to the provision of rehabilitationto injured persons in all cases would result in services reasonably required by someclaimants being delayed unnecessarily and lead to poor outcomes. Forcing claimantsto exhaust all prospects of returning to pre-injury employment before receiving anyvocational rehabilitation directed to the attainment of other statutory purposes of suchrehabilitation would merely serve to prolong the rehabilitative process therebyincreasing the impact of the injury on the claimant and adding to the cost borne by thecommunity. This would be contrary to the social contract embodied in the Act.[41] As noted, one of the primary entitlements under the Act is rehabilitation,comprising treatment, social rehabilitation and vocational rehabilitation. A claimant27 At 361.28 Personal Injury: A Commentary on the Report of the Royal Commission of Inquiry intoCompensation for Personal Injury in New Zealand (Department of Labour, October 1969) at 258.is entitled to be provided with rehabilitation, to the extent provided under the Act, torestore their health, independence and participation to the maximum extentpracticable. The Corporation is liable to provide the claimant with rehabilitation inaccordance with the agreed individual rehabilitation plan.29 There is nothing inthe Act to prohibit an individual rehabilitation plan from identifying more than one ofthe purposes of vocational rehabilitation, as might be expected if a strictly sequentialapproach was intended. Absent agreement in the plan, a piecemeal approach tothe provision of vocational rehabilitation is not sanctioned, let alone required.[42] An assessment of the claimant's needs for vocational rehabilitation mustconsist of an assessment of the types of work that may be appropriate for the claimantand whether those types of work are or are likely to be medically sustainable forthe claimant.30 The assessment is not limited to returning the claimant to theirpre-injury employment; all rehabilitation needs to achieve the purpose of vocationalrehabilitation (maintaining employment, or obtaining employment or obtainingvocational independence) must be considered at this stage of the process.This provision implicitly recognises that some claimants will present with a mix ofneeds for vocational rehabilitation, including but not limited to maintaining theirexisting employment. This reflects the "frequently blurred" reality referred to inthe White Paper and quoted above at [38]. While the Corporation is not required tocarry out this assessment if the claimant's needs are solely related to maintaining theiremployment, it may nevertheless do so. The requirement for an initial occupationalassessment and initial medical assessment to identify the claimant's needs forvocational rehabilitation at the beginning of the process is not consistent withMr Beck's contention that a siloed and piecemeal approach to the assessment andprovision of the claimant's entitlement to vocational rehabilitation is mandated.[43] A strictly sequential approach would also inhibit the Corporation andthe claimant from pursuing the most effective and appropriate form of vocationalrehabilitation in an efficient timeframe. This would be at odds with the inbuiltflexibility of the legislative scheme which requires ongoing collaborative review andmodification of individual rehabilitation plans in order to respond appropriately as29 Accident Compensation Act, s 76(4).30 Section 89.circumstances change. So, for example, a claimant may wish to return to theirpre-injury employment but recognise that this may well not be possible such that otheroutcomes need to be explored. It would be perverse if no vocational rehabilitation formore likely outcomes could be provided to the claimant until rehabilitation solelydirected to returning them to their existing employment had been exhausted and thatprospect completely excluded. It would also be contrary to the direction in s 87(1)requiring the Corporation, in deciding whether to provide vocational rehabilitation, tohave regard to whether it is likely to achieve its purpose under the plan, iscost-effective and appropriate in the circumstances. A strictly sequential approach isnot one of the required considerations and may not be cost-effective or appropriate inthe particular circumstances of a claimant.[44] In conclusion, while in many cases the primary objective of vocationalrehabilitation will be to enable the claimant to return to their pre-injury employment,we see nothing in the language of s 86 or the scheme of the Act to require the strictlysequential approach to the provision of such rehabilitation in all cases. The answer tothe question of law set out at [5] above is "no".Costs[45] Ms Gaskin is legally aided and costs are not sought.Result[46] The answer to the question of law set out at [5] of the judgment is "no".[47] The appeal is dismissed.[48] We make no order for costs.Solicitors:Hazel Armstrong Law, Wellington for AppellantMedico Law Ltd, Auckland for Respondent