MCGRATH V ACCIDENT COMPENSATION CORPORATION CA CA302/2009

MCGRATH V ACCIDENT COMPENSATION CORPORATION CA CA302/2009 19 November 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA302/2009 [2010] NZCA 535BETWEEN KAREN MCGRATH Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 15 September 2010 Court: Glazebrook, Hammond and Arnold JJ Counsel: A C Beck for Appellant P J Radich and M M Ahern for Respondent Judgment: 19 November 2010 at 4.00pmJUDGMENT OF THE COURT A The appeal is dismissed. B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Glazebrook J)Introduction[1] In 2002 Ms McGrath suffered a badly broken ankle after being struck by a tackled player as she was watching a rugby game. Since that time, Ms McGrath has suffered from chronic pain and has been receiving weekly compensation and variousrehabilitative measures from the Accident Compensation Corporation (ACC). This appeal concerns whether ACC has the power to require Ms McGrath to attend a vocational independence assessment under s 107 of the Accident Compensation Act 2001 (the Act). 1[2] In the High Court, Miller J held that ACC's decision to require a vocational independence assessment could be subject to judicial review but that ACC had reasonable grounds to require Ms McGrath to participate in the assessment. Ms McGrath appeals against that decision. 2The legislation[3] Under the Act, a claimant who has suffered personal injury, for which he or she has cover, is entitled to be provided with rehabilitation to assist in restoring the claimant's health and independence to the maximum extent practicable.3 Thus, within 13 weeks after ACC has accepted a claim for cover, ACC must determine whether the claimant is likely to need social or vocational rehabilitation for a longer period, and, if so, prepare an individual rehabilitation plan (IRP) in consultation with the claimant.4[4] The IRP must: identify the claimant's need for rehabilitation; identify the assessments to be done; identify services appropriate to those needs and specify which of those services ACC will pay for. 5 ACC must update a claimant's IRP from time to time to reflect the outcome of assessments done and the progress that the claimant has made towards rehabilitation. 6[5] A claimant has a corresponding obligation under the Act to work towards his or her rehabilitation to the extent practicable having regard to his or her personal1 Previously known as the Injury Prevention, Rehabilitation, and Compensation Act 2001. That title was replaced from 3 March 2010, by s 4 Accident Compensation Amendment Act 2010 (2010 No 1) by the current title pursuant to s 5(1)(a) of that Act.2 McGrath v Accident Compensation Corporation HC Wellington CIV-2008-485-2436, 1 May 2009.3 Accident Compensation Act 2001, s 70(a).4 Accident Compensation Act 2001, s 75(a).5 Accident Compensation Act 2001, s 77(2).6 Accident Compensation Act 2001, s 78.injury. 7 Rehabilitation "is accordingly both an entitlement and an obligation".8 The Act also provides that a claimant who receives any entitlement must undergo assessment at ACC's expense when reasonably required to do so.9[6] Under the Act, ACC is entitled to determine the vocational independence of any claimant who receives weekly compensation. Section 107 provides:Corporation to determine vocational independence(1) The Corporation may determine the vocational independence of— (a) a claimant who is receiving weekly compensation: (b) a claimant who may have an entitlement to weekly compensation. (2) The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment carried out— (a) for the purpose in subsection (3); and (b) in accordance with sections 108 to 110 and clauses 24 to 29 of Schedule 1; and (c) at the Corporation's expense. (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 (b) to regain or acquire vocational independence.[7] Vocational independence refers to a claimant's capacity, as determined under s 107, to engage in work, for which he or she is suited by reason of experience, education and/or training, for 35 hours or more a week. 10[8] A claimant's vocational independence is to be determined by ACC by requiring the claimant to participate in a vocational independence assessment which7 Accident Compensation Act 2001, s 70(b).8 Weir v Accident Compensation Corporation HC Wellington CIV-2003-485-1921, 18 August 2004 at [13].9 Accident Compensation Act 2001, s 72(1)(e).10 Accident Compensation Act 2001, s 6.comprises two parts: an occupational assessment and a medical assessment. Section 108 of the Act provides: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.[9] If ACC determines that a claimant has vocational independence under s 107, the claimant loses his or her entitlement to weekly compensation. 11 The determination that a claimant is vocationally independent must be revisited by ACC, and weekly compensation reinstated, if the claimant's vocational independence or capacity for work subsequently deteriorates. 12[10] Significantly, s 110(3) of the Act provides that ACC must not require a claimant to participate in a vocational independence 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.11 Accident Compensation Act 2001, s 112.12 Accident Compensation Act 2001, s 109(2)(b).[11] Finally, under the Act a claimant may apply to ACC for a review of any of ACC's decisions on his or her claim.13 In the first instance, ACC's decision on a claim is subject to review by an independent reviewer, who is required to consider the matter afresh on the basis of the information provided at the review and decide the matter on the basis of its substantive merits. 14 A claimant has a right to appeal to the District Court against the reviewer's decision, such an appeal being a general appeal by way of rehearing. 15 The claimant may also seek leave to appeal on a question of law to the High Court and Court of Appeal. 16Factual background[12] As noted above, Ms McGrath sustained an injury to her ankle in 2002. Since that time she has received weekly compensation, medical treatment and various rehabilitative measures. She also received lump sum compensation. [13] In 2003 and 2004 two occupational health medical practitioners assessed Ms McGrath and concluded that she was capable of working for more than 35 hours per week in several sedentary roles identified as suitable by an occupational assessor. [14] Following Ms McGrath's medical assessment in 2004, ACC determined that Ms McGrath had achieved vocational independence. This determination was overturned on review on the basis that ACC ought to have obtained an opinion from Ms McGrath's orthopaedic surgeon before beginning the vocational independence assessment process. It was found that ACC's failure to have obtained such an opinion meant that Ms McGrath's ongoing pain issue had not been properly addressed. [15] Ms McGrath was subsequently certified by her general practitioner, Dr Muir, as fit to work for 15 hours per week and she has a clerical position at a Dunedin school. On 28 April 2008 ACC gave written notice to Ms McGrath that she was13 Accident Compensation Act 2001, s 134(1)(a).14 Accident Compensation Act 2001, s 145(1).15 See Wildbore v Accident Compensation Corporation [2009] NZCA 34, [2009] 3 NZLR 21 at [29] and the Court's discussion of s 149 of the Act.16 Accident Compensation Act 2001, ss 62 and 63.required to attend a further vocational independence assessment. Accordingly, on 14 May 2008 Ms McGrath attended an occupational assessment. The occupational assessor identified 15 types of work suitable for Ms McGrath having regard to her qualifications, experience and skills. The types of work identified as being suitable for Ms McGrath included clerical, receptionist and telemarketing positions. [16] On 11 June 2008 Ms McGrath and ACC agreed on an IRP which stated that ACC would fund a referral to the Mercy Pain Clinic for medical treatment, including pain management and recommendations in relation to Ms McGrath's work hours and duties. Ms McGrath's stated objective in the IRP was to return to work or be work ready by 30 May 2009. [17] On 17 June 2008, following on from Ms McGrath's occupational assessment, ACC wrote to Ms McGrath requiring her to undergo a medical assessment in order to assess her vocational independence. Through her solicitor, Ms McGrath argued that any further steps towards determining vocational independence were premature as the Mercy Pain Clinic had not yet been asked to make recommendations about her work hours and duties, as was required by her IRP. [18] ACC nonetheless insisted that the assessment continue. This resulted in an application for judicial review. These proceedings were settled with ACC agreeing to fund a further referral of Ms McGrath to the pain specialist for ongoing pain management and to withdraw its requirement that Ms McGrath attend the medical assessment. [19] Dr Muir referred Ms McGrath to the Mercy Pain Clinic in July 2008. His referral letter explained that Ms McGrath barely coped with the hours she was working of 15 hours a week and in fact that she had recently tried a few more hours because of staff shortages but had increased pain both at and after work and was not able to continue. [20] Dr Acland of the Mercy Pain Clinic responded, by stating that the 15 hours per week "appear[ed] to be her limit" and added that he had no more to offer, particularly in relation to pharmacological approaches. Additionally, Dr Acland, inthe context of this judicial review application, provided his specific recommendations to Ms McGrath's solicitor about her work hours and duties. On 19 August 2008 he said:Thank you for your letter of the 1st of August requesting clarification about Karen's work capacity. I can only reiterate the fact that back in December 2005 we were quietly optimistic that she would be able to gradually increase her hours of work. With the passage of time this appears not to be an obtainable goal. As you are probably aware, there is a strong correlation between return to work and outcomes. Sadly it does not look as though Karen will be able to return to any vocational pursuit.[21] Ms McGrath's solicitor then asked Dr Acland's opinion about Ms McGrath's likelihood of achieving vocational independence; that is whether she would be able to work sustainably for 35 hours a week or more and Dr Acland responded that he did not think she could sustain that level of work. [22] ACC then decided that the vocational independence assessment process should resume. This led to the current judicial review proceedings being instituted. Ms McGrath's solicitors argued that, in light of Dr Acland's opinion, there was no basis for believing Ms McGrath could achieve vocational independence. The case officer, Mr Hurring, responded that the decision had been made in reliance on all of the information that ACC had on file. [23] In Mr Hurring's affidavit before the Court, he outlined that the information on Ms McGrath's file that he relied on to decide that a vocational independence assessment would be appropriate included: Ms McGrath's initial medical assessment indicating that she was medically capable of undertaking three different jobs; the 2004 vocational medical assessment report which stated that Ms McGrath was medically capable of working 35 hours per week; and a physiotherapist's report from 2007 that indicated there had been a significant and steady improvement in Ms McGrath's ability to perform physical activities. Mr Hurring also stated that he considered the vocational independence assessment was appropriate because of his experience with other clients with similar or greater physical impairment who had been able to return to work in a full-time capacity.Miller J's decision[24] Although ACC now accepts that the power to require claimants to participate in a vocational independence assessment is amenable to review, this was not its position in the High Court. ACC's position in the High Court was that a referral for a vocational independence assessment is simply a procedural step antecedent to a decision and does not in itself result in any loss of a claimant's entitlements under the Act. Therefore, it was argued in the High Court that judicial review of ACC's exercise of its power to require a claimant to undergo an assessment was not available. [25] Miller J accepted that the power to require a claimant to undergo an assessment does involve the exercise of judgment and does not in itself result in a loss of entitlement. However, he considered that ACC's power to require an assessment is expressly conferred by s 107 and constrained in mandatory terms by s 110(3). He reasoned that the restriction that ACC must not require a complainant to participate in an assessment unless the requirements of s 110(3) are met recognises that the assessment is of an intrusive and practically compulsory nature and further that it may lead to adverse consequences.17[26] Miller J therefore considered that the power to require an assessment sufficiently affects the rights, privileges or duties of a claimant so that jurisdiction for the Court to review the power exists under the Judicature Amendment Act 1972. He considered that any subsequent decision to remove entitlements was reviewable under the Court's remedial discretion rather than its jurisdiction under the Judicature Amendment Act. 18[27] As to whether s 110(3) had been complied with in this case, the Judge considered that the Act envisages that ACC must have reasonable grounds to conclude that vocational independence is likely before putting a claimant through the assessment process. Accordingly, the Judge considered that the first question that had to be asked was whether ACC must be able to point to reasonable grounds that17 At [23].18 At [23].the claimant is likely to achieve vocational independence or whether an honest belief would suffice. 19[28] The Judge considered that s 110(3) frames the test in objective terms; whether it is in fact likely that independence will be achieved, rather than whether ACC believes it to be so. He thought that this meant that ACC must be able to point to reasonable grounds for its belief that a claimant is likely to achieve vocational independence before it may lawfully require such an assessment. 20 He did say, however, "the decision is that of ACC, and the standard cannot be a high one". 21[29] The Judge held that, in considering whether to require an assessment, ACC need not accept the opinion of a claimant's general practitioner or a given expert to whom he or she has been referred under his or her IRP. He stated that the Act does not limit the information that may be taken into account in the decision-making process, nor does it preclude the exercise of judgement by a claimant's case manager, whose decision need not be preceded by any independent medical or other expert assessment.22[30] The Judge considered that ACC did have reasonable grounds for requiring Ms McGrath to participate in a vocational independence assessment. He said:23(a) Doctor Acland had completed the report contemplated by the individual rehabilitation plan. (b) Doctor Acland's opinion appeared, on the face of it, to rest on Dr Muir's assessment that Ms McGrath was unable to work more than 15 hours a week. That in turn appeared to rest on Ms McGrath's self-report, which ACC need not accept at face value. As mentioned, there is evidence that she had recently worked longer hours. (c) ACC had on file earlier assessments by two occupational health medical practitioners, who had separately concluded that Ms McGrath is able to work in positions that do not require her to stand for significant periods. Dr Porteous had concluded that because Ms McGrath had indications of chronic pain she needed to be in a sedentary job with the ability to put her foot up as required. He19 At [27].20 At [28].21 At [27].22 At [29].23 At [30].recorded that Ms McGrath acknowledged she could work as a cashier, ticket seller, receptionist, or information clerk. Dr Antoniadis considered that Ms McGrath could sustain up to 35 hours or more per week in a role as a cashier. She could also work as a ticket seller, telemarketer, patient receptionist, information clerk or other receptionist. Again, Ms McGrath had agreed with this assessment.The parties' position[31] ACC accepts that its power to require claimants to participate in a vocational independence assessment is amenable to review. However it says that any court should confine itself to a review for unreasonableness rather than evaluating whether ACC had a reasonable basis to conclude that a claimant is likely to achieve vocational independence. [32] We understand ACC's concession that judicial review is available is made on the basis that ACC accepts that the review and appeal procedures of the Act do not apply to the decision to require a claimant to undertake a vocational independence assessment but only to the results of any adverse decision after such an assessment. If that were not the case, the review and appeal proceedings could be clogged up with preliminary procedural decisions. [33] On behalf of Ms McGrath, Mr Beck submits that, in light of Dr Acland's report, ACC had no reasonable grounds to conclude that vocational independence was likely to be achieved. Mr Beck puts emphasis on the present tense in s 110(3)(a) and in Schedule One of the Act. He says that this means that there must be a high degree of probability that vocational assessment can be achieved immediately. Accordingly, he argues that ACC was unable to rely upon Ms McGrath's previous medical assessments and should have obtained further information indicating that there was a possibility that Ms McGrath could achieve vocational independence. Mr Beck submits that ACC could have obtained such information by requiring Ms McGrath to undertake an occupational and medical assessment under s 72 of the Act.2424 See at [5] above for discussion of s 72.Our assessment[34] While accepting that judicial review is available, ACC criticised Miller J's decision as applying too stringent a test. In our view, the distinction ACC attempts to draw between reasonable grounds and unreasonableness 25 is more semantic that real. As the Judge noted, the statute has provided pre-requisites before a vocational independence assessment can be undertaken, which have to be met. 26 However, the Judge recognised that the decision is that of ACC and the standard cannot be a high one. He also recognised that ACC is entitled to make a decision based on the exercise of judgement by the case manager whose decision need not be preceded by any independent medical or other expert assessment. He also held that ACC need not accept the opinion of a claimant's general practitioner or any given expert. [35] Turning to Mr Beck's submissions, we accept his submission that the provisions relating to occupational assessment and to medical assessment included within Schedule One of the Act do appear to require assessment of a claimant's current and immediate ability to achieve vocational independence. However, the phase "is likely to achieve vocational independence" 27 does not necessarily have a set timeframe. [36] Further, the provisions of s 107(3) 28 make it clear that the result of the vocational independence assessment could simply be that further rehabilitative steps are recommended. Thus a vocational independence assessment can be undertaken with a view to assessing what those steps should be. As ACC submits, the whole point of an assessment is to obtain information on the basis of which a decision can be reasonably made. It is merely a process commenced to obtain an outcome, which is not necessarily that of immediate vocational independence. [37] We consider that Mr Beck's submission that ACC should have, under s 72 of the Act, 29 undertaken an occupational assessment and medical assessment before25 See at [31] above.26 See s 110(3), set out at [10] above.27 See s 110(3)(a), set out at [10] above.28 Set out at [6] above.29 See at [5] above.requiring a vocational independence assessment introduces unnecessary complications and a doubling up of assessments. If Mr Beck's argument was accepted, this would mean that, if an opinion different from Dr Acland's was received under a s 72 assessment, then ACC could immediately require Ms McGrath to undertake yet another occupational and medical assessment under the vocational independence assessment provisions. [38] As to whether the prerequisites in s 110(3) were met in this case, we consider that it was open to ACC to take into account all of the information on the file, including information preceding Dr Acland's opinion and also to rely on the case manager's experience of similar injuries when deciding whether to order a vocational independence assessment. While it is clear that, under s 110(3), Parliament has put constraints on the ability of ACC to undertake vocational independence assessments it is hard to imagine a court intervening if there is some reasonable basis, whether only in terms of a case manager's experience or otherwise, for considering that vocational independence is likely to be achieved within a reasonable timeframe and thus that a vocational independence assessment is appropriate. [39] In the course of undertaking the vocational independence assessment and deciding on the next steps, however, ACC will have to take into account Dr Acland's opinion, including the basis for it, 30 and also Ms McGrath's chronic pain.Result[40] The appeal is dismissed. [41] As we understand Ms McGrath to be legally aided, there is no order for costs.Solicitors: Peter Sara, Dunedin for Appellant Minter Elllison Rudd Watts, Wellington for Respondent30 See at [30] above.