Sad v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WANGANUI Decision No. 222 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN JASON SAD DCA 280/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at WANGANUI on the 9th day of October 1997 APPEARANCES Mr K Mair for appellant Mr P McBride for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to cease payment of weekly compensation to the appellant pursuant to s.73(2)(c) of the Act was correct. 2 Background Facts The appellant lodged a claim with the Corporation for cover in respect of a knee injury he suffered on the 22nd of February 1990. The appellant had twisted his knee in a fall and it transpired that this particular injury was an aggravation of a previous sporting injury which had required surgery. At the time of this accident the appellant was 32 years of age. The appellant received weekly compensation and certainly within two months or so of the date of the accident his medical condition had largely returned to its pre-accident state and he was considered fit for light duties. It is noted that the accident causing his injury occurred when he was lifting some video equipment. In the report of the orthopaedic surgeon of 24th March 1990 he advised: "The knee is likely to cause him trouble on and off in the future and is liable to flair up after trivial accidents, however most of the time he should have good function of the knee and be able to perform work duties." The rather voluminous file which has built up over this claim records a lengthy tug-of-war which has occurred between the appellant and various persons who have been in charge of his particular case through the years and the situation can best be summed up by stating that the appellant has been an uncooperative and reluctant "client" over the years down to 1996. During that period there have been several instances where the appellant's weekly compensation has been stopped because of his failure to attend appointments or carry out obligations that may have been requested of him in relation to seeking work and the case history was narrated in detail at the review hearing. I do not propose to restate it. 3 The appellant was living in Auckland at the time of the accident but in 1994 or thereabouts he moved to Wanganui. The file certainly does not disclose any improvement in the relationship between the appellant and the Corporation nor in his attitude to rehabilitation in the form of gainful employment. In January 1996 the appellant's case manager sought to implement an Individual Rehabilitation Programme and when the appellant was finally contacted an appointment was made for the 17th of January for interview to develop an IRP. The appellant failed to keep that appointment and his weekly compensation was suspended. Another appointment was made for the 29th of January and no doubt because of the fact that his weekly payments had been suspended he attended on that date. An IRP was prepared as was a letter of referral to NZ Employment Services. One of the obligations contained in the IRP was for the appellant to sign it and return it by 5th February. Another was for him to register with NZ Employment Services and attend there at least twice every week for appropriate employment, also to prepare an updated CV and to meet each Friday at 9.00 am with his ACC case manager. The appellant failed to sign and return the IRP or attend his appointment on the 5th of February, nor did he contact his case manager about his non-attendance. Again his weekly payments were stopped. On the 13th of February the appellant met with his case manager and gave as his explanation for not keeping his appointment that he was "out of town". He signed the IRP on the 13th of February. An appointment was made with Mr Dempsey, orthopaedic surgeon for 5th of March. He failed to keep that appointment. He failed to provide an up to date CV and then when prompted he failed to keep an appointment with Key Copy 4 Services who were engaged by his case manager to prepare a CV in appropriate form. His case manager Mr Stanley gave evidence of further failures by the appellant to comply with requests regarding job interviews, attendances at New Zealand Employment Service and attendances with him as had been scheduled in the IRP. Matters culminated in the letter of 29th April 1996 to the appellant from his case manager advising him that he had failed to meet his obligations pursuant to s.18 of the Act. The letter stated: 'On Friday 26 April an appointment time of 9.00 am was made for you to attend with your case manager and provide a printout of monthly job search activity from NZ Employment Services. You failed to turn up or telephone me to inform me of what is going on. I reminded you on 29 March 1996 that if you cannot get to these appointments to give me a call with reasons why you are not getting to the scheduled appointment. In terms of s.18 you have failed to take responsibility with your rehabilitation by not attending the scheduled appointment. Therefore in terms of s.73 the Corporation is entitled to suspend your payments. Your payments of weekly compensation have been cancelled as of the date of this letter." It is that decision of the Corporation which the appellant sought to review. In her decision the Review Officer stated: "The evidence before me clearly identifies a pattern over the last six years, that taking part in any rehabilitation with a view to returning to employment has not been a priority for the applicant. This is evident from comments he has made to staff of the Corporation, staff of agencies to whom he has been referred and also the observations of his treatment providers. He has continually failed to keep appointments with all of these people which clearly demonstrates an 5 unwillingness on his part to take responsibility for his own vocational rehabilitation. He has placed great importance on rehabilitating himself to be physically fit and has not utilised the skills he has to rehabilitate himself back into employment. Mr Sad has for many years been medically certified fit to undertake selected employment and despite reasonable requests of the Corporation there is no evidence that Mr Sad has actively taken any responsibility to do so. It was reasonable and relevant that the Corporation should require the applicant to fully participate in the Individual Rehabilitation Plan to which he had agreed, especially when one considers the happening of events and pattern of conduct he had previously displayed." In his submissions to this Court Mr Mair sought to suggest that the appellant had not been given a fair hearing at the review hearing and had not been able to fully present his case. Having considered the transcript of the hearing I find that this was certainly not the case. The appellant is an intelligent person with a tertiary education and was articulate in presenting his position. Whilst the onus is on the Corporation to show that, in terms of s.73 of the Act, the appellant's conduct was an unreasonable refusal or failure to agree to or comply with an IRP I find that the evidence is overwhelming to establish that was the case to the standard required. Indeed the appellant in his own words at the review hearing has acknowledged that he is not a reliable person. I find that that is the essence of this case and the fact that his advocate at this hearing suggested that there were "personality difficulties", "too much paperwork", "bureaucracy gone mad", that the appellant felt himself "under siege", are just not justified. Mr Mair further submitted that it was the appellant who was the best person to judge what was best for his rehabilitation. That is a subjective test. 6 The law is quite clear that the test is an objective one and on any assessment of the facts of this case I find that this appellant has failed to comply with his obligations of rehabilitation as is intended under s.18 of the Act and that his failure to do so has been wholly unreasonable. I agree with the observations of the Review Officer stated above and simply observe that here is a man now aged 39 years who has been regarded as fit for all but heavy types of employment for over six years and who appears to have attempted to use the system to circumvent the obtaining of employment and to shirk the responsibilities and obligations which s18 of the Act places on him. In those circumstances I find that the decision of the Corporation was totally justified. Accordingly this appeal is dismissed. DATED at WELLINGTON this lo" day of November 1997 M J Beattie District Court Judge Sad.doc KD