Jongeneel v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 279 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act . BETWEEN JOHANNA PETRONELLA JONGENEEL of Feilding Appellant (Appeal No. DCA 236/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at PALMERSTON NORTH on the 15th day of September 1999 APPEARANCES/COUNSEL A R V Rowlett - advocate for appellant A D Barnett - counsel for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to cease the payment of weekly compensation pursuant to s.49 of the Act on the grounds that the appellant had been assessed under s.51 as having a capacity for work. The appellant who was employed as a sexton and groundsperson by Heartland Contractors suffered a shoulder injury on 7 May 1997. The appellant had been employed in that position since December 1992. Vocational assistance was provided and on 14 July 1997 a work site assessment was undertaken under which various recommendations were made as to the appellant's suitability for various 2 aspects of work. As a result, a rehabilitation programme was completed on 10 October 1997 with the overall objective that the appellant was "to be fully independent of ACC by the end of December 1997". The vocational objective was to be that the appellant would work fulltime on normal duties as a sexton/labourer for Heartland Contractors by 1 December 1997. Thereafter there were several work site assessments with the object of returning the appellant to her pre-injury employment but on light duties, but these did not result in a sustainable return to work. On 4 December 1997 the appellant notified her case manager that because she had been unable to carry out the designated work she had lost her position at Heartland Contractors from 25 November 1997. The respondent then referred the appellant to Stu Mccann and Associates for a pre-employment assessment on 20 March 1998. At that referral the appellant indicated that her employment goals were to become a prison officer or to work in the security industry. This resulted in her being referred for a work trial with Securitas which commenced on 1 June 1998 with work gradually increasing until it was reported on 5 October 1998 that the appellant was then working approximately 30 hours per week. On 6 October 1998 the appellant was referred to the Work Capacity Assessment Procedure with the result that the job options identified as suitable were: Truancy Officer Teacher Aide Probation Officer Security Officer Pound Attendant Veterinary Assistant Goundsman Caretaker Landscape Labourer Garage Forecourt Attendant Occupational Therapy Assistant The appellant was then referred for a medical assessment by Dr Blair Christian which he did on 13 November 1998. Dr Christian considered that the appellant would be fit for all the proposed job options other than that of a landscape gardener and he did indicate that the appellant was "most interested in vet assistant and probation officer work". On 10 February 1999 the respondent notified the appellant that as a result of the occupational assessments the appellant had a capacity for work. She was notified that her entitlement to weekly compensation would stop at the expiration of three months from that date. The appellant applied for a review of that decision. At the review hearing Mr Rowlett submitted on behalf of the appellant that the decision that she had a capacity for work was incorrect and that she should be given further rehabilitation assistance to enable her to obtain work in her chosen options either as a probation officer or a veterinary assistant. The review officer concluded that the appellant had undertaken the work capacity procedures in accordance with the guidelines and that she understood the nature of the procedures. She found that 3 as the appellant was then carrying out work as a security officer for at least up to 30 hours per week she had a capacity to work as determined under s.51. The review officer declined the application for review. It is against that decision which the appellant now appeals. Mr Rowlett submitted: 1 . That pursuant to s.51(3) every assessment of capacity for work shall be carried out in accordance with the procedure determined under s.50. (His emphasis) 2. The procedure cannot be used until the appellant has completed a time-framed vocational rehabilitation plan. That in this case the appellant had not completed the rehabilitation plan. That the focus of the rehabilitation plan should be on returning the appellant to a job with similar levels of earnings, status and location as her pre-injury job. 3. That it is clear from the file that rehabilitation was not complete because her case manager had noted that the respondent "has provided Johanna with sufficient assistance in this". That the proposed objective of the rehabilitation plan would have achieved a return to work with the same employer which would have achieved the objective of "independence". That the expected progression should have been to consider retraining in order to obtain a job with similar earnings. 4 That the appellant's case can be distinguished from that in Grimstone (246/99) in that no discussion took place following the placement of the appellant as a security officer and no action was considered or agreed in order to investigate alternative job options with higher remuneration. That the appellant had indicated her desire to progress beyond that present job which would require further assistance and the opportunity to accumulate further skills in order to obtain employment with similar earning levels. Mr Barnett submitted: 1. That the issues in this case are almost identical with those in Grimstone (246/99). That Grimstone was issued on 3 September 1999 while the review decision in respect of his appellant was issued on 28 April 1999. That the issues in this appeal are substantially the same as the issues in Grimstone. 2. That while the appellant submits that she should not have been referred for a work capacity assessment because she had already returned to work as a security officer, a similar situation arose in Grimstone in which Judge Beattie concluded that where Grimstone was working and still receiving weekly compensation then the work capacity procedure can be applied. In Grimstone that appellant had returned to employment and had yet to achieve 40 hours per week and was still receiving weekly compensation from which Judge Beattie concluded that she had not returned to work in the "full sense of that phrase". That accordingly as this appellant was working approximately 30 hours per week it was no bar to her undergoing work capacity assessment. 4 3. That prior to undergoing the work capacity procedure the appellant was employed as a security officer working approximately 30 hours per week and not limited by her injury in that employment. That while the appellant submitted that at this point she may have achieved a "milestone" but had not completed her rehabilitation plan, the same argument was rejected in Grimstone. 4. That it was not open to the appellant to criticise the occupational assessment as she was suited by reason of education, experience or training to carry out some of the nominated occupations without further training. The issue falls to be decided under ss.49, 50 and 51 of the Act. In so far as it applies s.49 states: "49. Cessation of weekly compensation when person has capacity for work - Every person assessed under section 51 of this Act as having a capacity for work shall cease to be entitled to receive compensation for loss of earnings or loss of potential earning capacity upon the expiration of 3 months after the person is notified of that assessment." Section 50 then provides for the assessment of capacity for work. In order to satisfy the purpose of s.51 the respondent is required to develop a procedure for assessment of the capacity for work of the persons covered by the Act and in so doing is required to publish in the Gazette the proposed procedure by which the capacity for work will be assessed. The respondent carried out the requirements of s.50 by publishing its notification in the Gazette of the procedure as from 1 November 1997. That is now incorporated in a booklet published by the respondent under the heading "Work Capacity Assessment Procedure (WCAP) Final Version". In so far as it applies s.51 states: '51. Assessment of capacity for work - (1) For the purposes of determining whether or not a person who is receiving compensation for loss of earnings or for loss of potential earning capacity, or who may have any entitlement to compensation for loss of potential earning capacity, has a capacity for work, the Corporation shall determine the person's capacity for work in accordance with this section. 2) For the purposes of this Act, the term 'capacity for work', in relation to any person, means the person's capacity to engage in work for which the person is suited by reason of experience, education, or training, or any combination of those things, and that capacity shall be determined having regard to the consequences of the person's personal injury. (3) Every assessment under this section shall be carried out - (a) In accordance with the procedure for the time being determined by the Corporation under section 50 of this Act; and (b) In accordance with the principles of natural justice." It follows from s.51 that the respondent is required to carry out an objective assessment of the appellant's capacity for work which must have regard to her capacity to engage in work for which she is suited by reason of her experience, education or training, having regard to the effects of her personal injury. The work capacity assessment is only carried out to ascertain the appellant's capacity irrespective of whether or not employment opportunities within that capacity are available. In this case the appellant told Stu Mccann that she would like to become a prison officer or work in the security industry. Mccann's report of 20 March 1998 stated that these "employment goals (were) clear in her mind". The occupational assessment identified that she was suitable for a position as a security officer and a position in this field was found for her with Securitas, a job which she apparently enjoyed. She was able to build up her hours to approximately 30 hours per week in this position. While the appellant submitted that she should not have been referred for a work capacity assessment because she was then working as a security officer, a similar situation was considered by Judge Beattie in Grimstone where he held: "... I find that the flow chart is quite clear and can be said to permit the Respondent to select a claimant for the procedure where that claimant is still receiving weekly compensation, i.e. their entitlement to compensation has not ceased by reason of having returned to work in the full sense of that phrase". In that appeal Grimstone had returned to employment but had not achieved the 40 hours per week and was still receiving weekly compensation which was why Judge Beattie concluded that she had not returned to work "in the full sense of that phrase" I adopt His Honour's findings and consider that as this appellant was working for approximately 30 hours per week in a job which she had identified as being one which she would like to do, the respondent was entitled to ask her to undergo the work capacity assessment. It is quite clear from the flow chart on page 9 of the Work Capacity Assessment Procedure booklet that the finding by Judge Beattie that the procedure could be undertaken while the appellant was still receiving weekly compensation was correct. The sequence of the top line of the chart is "medical treatment" leading to "rehabilitation" leading on to "returned to work". If these steps have been attained the answer is that the work capacity assessment procedure can be instituted. The issues in Grimstone followed the same pattern as the issues in this appeal. In this case the appellant was working as a security officer for up to 30 hours per week without difficulties from her injury. While Mr Rowlett submitted that she had by then achieved "a milestone" he was concerned that she had not completed her vocational rehabilitation plan. In answer to a similar submission in Grimstone His Honour Judge Beattie said: "In certain circumstances a person in the position of the Appellant might be regarded as having only achieved a milestone and that vocational rehabilitation could be expected to continua with additional measurable milestones provided in the Plan. However in the case of this Appellant I find on the facts that she has expressed satisfaction with her job as a truancy officer, she has expressed a desire not to become engaged in any alternative re-employment initiative, and as such I find that her case manager was quite entitled to consider that the Respondent had reached the end of the road in so far as its obligations for vocational rehabilitation were concerned. Although the word 'terminated' was used when referring to her vocational rehabilitation, I find that the meaning in which it was used was that there was no purpose in pursuing further vocational rehabilitation initiatives as the desired level of the claimant herself had been achieved." I respectfully adopt His Honour's findings in that case which answered the same submission as is posed in this appeal. I consider that as the object of the appellant's rehabilitation was to obtain a position as a security officer she had fulfilled that ambition which therefore entitled the respondent to advance to the work capacity procedure. This position was also reached in Grimstone which led His Honour Judge Beattie to state: "... Both prerequisites stipulated in the Procedure namely, of being in receipt of weekly compensation and having completed a vocational rehabilitation programme that had suitable alternative occupations identified and agreed upon, had been achieved. It was therefore open to the Respondent to require the Appellant to undertake assessment under s. 51 of the Act." The appellant has submitted that she should be entitled to further education and training to enable her to reach a higher standard in order to qualify for a position as a probation officer or veterinary assistant which were two of the vocations which had been nominated as possibilities. It is submitted that she was entitled to the provision of this assistance in order to qualify her to attain a position of equal status and remuneration as that which she previously enjoyed prior to suffering the injury. I do not consider that the requirements of the Act go that far. Section 51(2) limits the term "capacity for work" for which the appellant is "suited by reason of experience, education, or training, or any combination of those things". It is quite clear from the assessments in respect of this appellant that she is qualified for the work as a security officer. It is also clear that without additional training she is not qualified for a position as a probation officer or a veterinary assistant. While Mr Rowlett submitted that the appellant had not achieved the desired level which she wanted for herself that is not the objective of the procedures under the Act. The objective is, so far as possible, to rehabilitate the appellant to a position for which she is suited by reason of her experience, education or training. I consider that as the appellant had demonstrated a capacity for work as a security officer, that being one of the options which she clearly identified to Mccann as being the type of work for which she would like to undertake and as the work capacity assessment showed that she was able to carry out this work for up to 30 hours per week, then the responsibility on the respondent to provide rehabilitation has been satisfied. 7 The appeal is dismissed. DATED at WELLINGTON this 6m day of October 1999 buuuddubai A W Middleton District Court Judge dca23699.doc(rd)