Osborne v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION NO. 38 /2008 AND UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 301/06) BETWEEN KERRYN PEGGY OSBORNE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 22 August 2007 Appearances: Mr I S Young-Gough for appellant Mr S Hack for respondent Judgment: 18 February 2008 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] On 18 February 1999 the appellant lodged a claim for bilateral carpal tunnel syndrome occurring as a result of the repetitive work required in her profession as a hairdresser, an occupation in which she worked for about 29 years. She continued to work part time as a hairdresser. She had bilateral carpal tunnel release surgery in February 1999 and attended a number of consultations with specialists who were unable to offer further interventions to assist or alleviate her symptoms. The appellant finally ceased work in November 2004 when she was encouraged to do so in order to assist her rehabilitation. KERRYN PEGGY OSBORNE V ACCIDENT COMPENSATION CORPORATION DC WN DECISION NO. /2008 [18 February 2008] [2] There is no need to set out the background facts at length. They are referred to in counsel's arguments and much of the appellant's argument related to general rather than specific aspects of the management of the appellant's case. [3] The Corporation assessed the appellant's vocational independence in an occupational assessment by Ms Kelly Retter dated 12 December 2005, and a medical assessment by Dr Xiong dated 31 January 2006. [4] On 14 February 2006 the Corporation notified the appellant that she had vocational independence in the jobs of Cashier, Ticket Seller, Community Support Worker, and Hotel and Motel Receptionist and that as a result weekly compensation would cease after 14 May 2006. The decision was taken to review and in a decision dated 12 July 2006 the Reviewer modified the decision of the Corporation and decided that the appellant was fit only for the job of Community Support Worker. The Reviewer agreed with the appellant that she was not suitable for the jobs of Cashier, Hotel and Motel Receptionist and Ticket Seller and based this part of his decision on the task requirements of "frequent to constant hand and finger movements" that contradicted the restrictions identified by the medical assessor. The medical assessment did not satisfactorily explain how the appellant could overcome her physical restriction in order to meet that work requirement. Vocational rehabilitation [5] Mr Young-Gough submitted that the Corporation pressured the appellant to cease work in order to facilitate a change to the desired outcome of vocational rehabilitation from maintaining her employment to returning to work or work readiness. He submitted that this change got around s 77(4) of the Act which provides that the Corporation is not required to obtain initial occupational and medical assessments if the claimant's needs are solely related to maintaining employment. [6] Mr Young-Gough submitted also that the first initial occupational assessment, from Gary McRae dated 12 May 2002, should be regarded as a nullity because the appellant was still working and the desired outcome could only have been to maintain employment. Evidence for that is that the assessor stated that the appellant was only interested in pursuing her trade of hairdressing. Mr Mcrae then considered various work types: Hairdressers, Beauticians & Related Workers, Personal Care Workers and Education Associate Professionals (Teacher Aide). [7] The basis for these submissions is that the Corporation's primary obligation is to provide rehabilitation to maintain employment. Mr Young-Gough submitted that it would be wrong for the Corporation to ignore reasonable vocational rehabilitation to enable a claimant to maintain employment and then to obtain assessments directed towards vocational independence in jobs that the claimant might have difficulty obtaining. The submission depends on being able to find a reasonable basis in fact for the appellant to maintain her employment as a hairdresser, but there was no evidence that she could do full time work in that occupation. Without that, there is no evidence that the Corporation should not have directed rehabilitation towards other employment. [8] Concerning the first initial medical assessment by Dr Porteous on 7 June 2002, Mr Young-Gough noted that Dr Porteous summarised the appellant's limitations as follows. "It is likely that this is going to be aggravated by repetitive gripping activities or repetitive use of her wrist or forearm. It is also going to be aggravated by regular or moderate or heavy lifting, pulling, pushing or carrying". [9] Mr Young-Gough submitted that when matching those physical limitations with the physical requirements of Community Support Worker, being the only job considered sustainable by the Reviewer, Dr Porteous did not properly take those limitations into account and that the same failure applied in relation to Home Aide or Health Assistant and Teacher's Aide. It was therefore submitted that Dr Porteous indicated that the appellant could not perform any of the jobs full time unless they were limited in various quite significant ways that are contrary to the work details components. Further initial assessments in 2004 [10] After pursuing an individual rehabilitation plan on the basis of the 2002 assessment, the Corporation obtained further initial assessments in 2004. Mr Young- Gough submitted there is no provision in the 2001 Act for more than one round of initial assessments because s 89 is in the singular and the change in circumstances provided for in s 88 did not apply in the present case. Second and subsequent rounds of initial assessments can be considered to be shopping around for an economic result for the Corporation. [11] I reject that submission. It could not have been intended by the legislation that, after one set of initial assessments not leading to vocational independence, the Corporation should then be barred from addressing vocational rehabilitation and vocational independence on the basis of new and up to date assessments. The Act does not expressly limit initial assessments to one occasion and it is a well established practice that further assessments can be done within reason. Current and reliable assessments are required in order to inform the preparation or modification of the claimant's individual rehabilitation plan. [12] Mr Young-Gough submitted that there was a significant failure when an initial occupational assessment completed on 26 October 2004 was not made available to the appellant before she attended the initial medical assessment on 28 October 2004. Section 92(3) of the Act states that the Corporation must provide a copy of the report to the claimant and the medical assessor. I understand that was not done. [13] An initial occupational assessment does not lead directly to a decision affecting entitlement to weekly compensation. A claimant has an opportunity to address the content of the initial occupational assessment at various stages of the assessment and rehabilitation process. Failure to provide a copy of the occupational assessment before the claimant engages in an initial medical assessment discussion does not have the same consequences as it would in preparation for a vocational independence assessment. The appellant submits that natural justice demands that the subsequent procedures should be set aside. 14] Mr Hack submitted that the principles of natural justice on which cases such as Armijo (3/07) and Skedgwell (237/05) are based are not applicable here. Those cases concerned vocational independence occupational assessments which are required by cl 26 of Schedule I of the Act to be provided to the claimant and the medical assessor. A claimant who is not provided with the final vocational independence occupational assessment is ill-equipped to respond to the medical assessors investigation which can produce an assessment terminating weekly compensation. But I agree with Mr Hack's submission that different considerations apply to the initial assessments. The imperatives of natural justice did not apply here because there was no decision about to be taken concerning the appellant's right to an entitlement. [15] An irregularity does not automatically result in invalidity of all subsequent processes. The failure has to be linked to the question before the Court, which in this case is the eventual vocational independence decision, not the initial medical assessment. An example of a case where that view was taken is Bondarenko (173/05). In declining an application for leave to appeal against Judge Cadenhead's decision in that case, Ronald Young J in Bondarenko v ACC (unrep. High Court Wellington, CIV 2006-485-555, 23 February 2007) agreed that a failure by the Corporation did not affect the integrity of a rehabilitation plan where there was no evidence that the failure was a relevant factor. [16] It is of course highly desirable that a claimant should be fully informed throughout and the Corporation's failure to provide a copy of the occupational assessment to assist the appellant in the course of her medical assessment was a serious breach at the time. However it does not lead to the remedy which the appellant seeks in this appeal. [17] Mr Young-Gough submitted that while the appellant remained at work until 22 October 2004 the second round of initial assessments were irregular and a nullity having regard to Section s 77 of the Act which sets out the Corporation's obligations in preparing an individual rehabilitation plan and provides in subs (4): (4) However, the Corporation is not required to assess a claimant's needs under subclause (3)(b) if the claimant's needs are solely related to maintaining employment. [18] At the review hearing it was established that the appellant was in employment until 22 October 2004 and the second initial assessment had been done on 18 October. The assessment commented that she was interested in continuing her trade of hairdressing. This submission echoes the appellant's objection to the assessment process during 2002. In my view there is not enough evidence to show that the Corporation adopted a wrong course. Ascertaining a claimant's needs often requires an initial assessment. In some cases the claimant's ability to resume capacity to work in a former employment might be so obvious that an assessment is not required. There is no evidence that this was a case in which the appellant's needs could be established without an initial assessment. The appellant was not working full time and her limitations required assessment, including the possibilities of maintaining employment or doing other work. [19] Mr Young-Gough submitted that not enough effort was made to investigate how the appellant might continue in her profession of 38 years, for example as a self employed hairdresser, or with changes to her workplace, changes in her duties by widening her skills within the salon or changes to her work tempo. This is a submission that should turn on an analysis of evidence. As a bald statement it lacks traction. The overall position appears to be that the Corporation caused a series of occupational and medical investigations to be made but did not come up with a rehabilitation plan to enable the appellant to maintain her employment. She did not appear to have capacity to do that work full time. In the absence of evidence of a specific failure by the Corporation or its providers there is no fact basis for the argument that the Corporation failed to provide appropriate rehabilitation to maintain employment. 20] On an allied question, Mr Young-Gough submitted that the Reviewer was wrong to find no fault with the individual rehabilitation plans, because there was little of note in the plans, apart from referrals. Mr Young-Gough submitted that is in fact what was wrong, because the plans contained nothing constructive and omitted to properly address rehabilitation. He submitted that "Outcome to be achieved" was changed following the Corporation's pressure for her to cease work and that provided an avenue for the Corporation to move towards vocational independence rather than maintaining employment. [21] There is opportunity to object to the content of the individual rehabilitation plan at the time it is agreed or finalised. Of course an unrepresented claimant may not realise what can be achieved by having the plan reviewed. Nevertheless, an objection to the plan in the context of a challenge to a later vocational independence assessment cannot be entertained unless there is a ground of relevance and prejudice that can be said to carry through to a flaw in the vocational independence. No such ground has been described in these submissions. The point of the argument is really a repetition of the points already made. [22] Mr Young-Gough submitted that throughout a number of IRP's there was no evidence that the appellant was provided with review rights when the IRP was formulated and when some significant changes were made, and that there is no evidence that the IRP was provided to the appellant's GP initially and when changes were made. This submission lacks an evidential basis. The submissions would have to point to some evidence that the statutory requirement was not met, and demonstrate how that is relevant to an issue before the Court. [23] Mr Hack submitted that copies of the initial medical assessment and initial occupational assessment were in fact sent to the appellant's GP, Dr Rita Middleton, on 26 June 2002. Then there was a meeting between the appellant, her husband, her GP and her case manager on 14 August 2002 to discuss the recommendations in the initial medical assessment. On 16 August 2002 ACC, sent the appellant's GP a copy of the appellant's individual rehabilitation plan. Therefore the respondent submits that the appellant's GP was given the opportunity to participate in the preparation and finalisation of her initial IRP and that the appellant participated in discussion around subsequent rehabilitation and her updating her IRP. As to relevance, Mr Hack submitted that the argument is different from Barwood (307/05) where the issue at appeal was around finalisation of the IRP, not the validity of the vocational independence assessments. [24] Mr Young-Gough submitted that the jobs identified by the vocational independence assessments included what he called the "usual suspects", that is to say jobs requiring minimal skills or fitness. He submitted that few of the jobs were a match for the appellant's qualifications and experience after 38 years working almost exclusively as a hairdresser. Mr Young-Gough said that, had the opportunity been given, as it should have been pursuant to s 92 of the Act, the appellant may well have successfully challenged some of the jobs identified. That is certainly a point to be made. The purpose of providing the claimant with full information is to avoid mistakes being made. She may well have been alerted to the direction of the medical enquiry and could have volunteered information that might have resulted in the medical assessor taking a different view and perhaps excluding an occupation. But there is no specific point identified that may have had a relevantly different outcome if the appellant had been fully informed. [25] Mr Young-Gough submitted that the medical assessor, Dr Turner, an occupational specialist, failed to examine the appellant's workplace where she was still employed as a hairdresser. He submitted that Dr Turner could have been capable of suggesting changes to the workplace and other factors to enable the appellant to remain in her profession of some 38 years. This argument is speculative. There is no evidence that a work site assessment should have been done on the basis of information that was before the Corporation or its providers. Without specific reference to such evidence it is really an argument that a work site assessment should be done routinely. I accept that the appellant may have been at a disadvantage compared with a more insistent claimant who might actively engage a case manager into organising a work site assessment. But on the material now available it is not known whether an assessment might have been useful. I cannot find evidence that it is a failure in this case that prejudicially affected the vocational independence assessment. Vocational independence assessments [26] The vocational independence occupational assessment was done by Occupational Assessor Kelly Retter who reported on 12 December 2005. S considered that the appellant "had worked in very few occupations during her working career. She has a range of skills related to Hairdressing and Hairdressing related matters". Mr Young-Gough submitted that the assessor could not reasonably have assessed capacity for work in the following occupations (counsel's comments in brackets): Cashiers (has mental activities that are a limitation) Ticket Seller (as above) Employment Programme Teaching Associate Professional (as above) Community Support Worker (as above) Information Clerk and Other Receptionist (as above) Hotel and/or Motel Receptionist (as above) [27]. In my view, there is nothing in the mental aspect of any of the jobs that stands out as an activity for which the appellant would not have been capable. None of them seem to require complex or highly structured thought processes. The assessment appears to have been one within the scope of the occupational assessor's judgement. [28] The vocational independence medical assessment was done by Dr Xiong who reported on 31 January 2006. Mr Young-Gough submitted that it is clear from Dr Xiong's report that he was not aware of the appellant's other covered injuries to her back and knee, which might affect her ability to stand, walk or drive. He noted that the assessor showed the appellant as having no non-injury conditions. The following is extracted from Dr Xiong's assessment: "Past Medical-History She has a history of asthma. She has pain under the soles of both heels. She has a history of left knee condition which was covered by ACC for surgery some years ago. She does not smoke. She drinks a very moderate amount of alcohol. No history of allergic reaction. Past Surgical History Carpal tunnel surgeries in 1999. Gallbladder surgery. Non-Injury Conditions [no entry]" [29] Dr Xiong did note the left knee condition, which he did not enter under "non- injury" conditions, possibly because it was a covered injury. He did not note the back injury and there is no other evidence to suggest that it was causing any trouble at the time of the assessment. In her evidence before the Reviewer, the appellant said "just that its a problem that I go to my chiropractor". She did not suggest that it limited her ability to work in any of the assessed jobs. At the review, she said she was able to work with that injury. 30] Mr Hack noted that in the GP questionnaire of 7 December 2005, the appellant's GP answered that there is no potential or prospective treatment for any injuries or non injury issues and she noted that the appellant's asthma is "well controlled with her inhalers." In Kempster (291/04) the Court found that it was not necessary for the medical assessor to consider certain other injuries not then troubling the Appellant. [31] Vocational independence assessments, performed according to the process laid down by the Act, are not open to challenge on grounds of opinion alone: see Ramsay v Accident Insurance Corporation (High Court Dunedin, AP 412/14/02, 12 December 2002, John Hansen J). There must be a patent error or other cogent evidence of an error in the assessment. The evidence in this case does not show that omitting reference to the appellant's prior back injury was a flaw in the assessment. If there was medical evidence that the appellant did in fact have an injury that affected her ability to work, that would be a basis to argue that the assessment was flawed. There is no such evidence. [32] Mr Young-Gough referred to limitations noted by Dr Porteous in the initial medical assessment of June 2002 in which he noted that the appellant's arm problems would be aggravated by repetitive gripping activities or repetitive use of her wrist or forearm, and would be aggravated by regular moderate or heavy lifting, pulling, pushing or carrying. The report was not in Dr Xiong's list of appended documents and he would not have seen it. Dr Xiong was provided with the second set of 'initial" assessments. I agree that the first assessment should have been given to the medical assessor, however the significance of the omission is not a matter that was likely to affect the outcome. The caution expressed by Dr Porteous concerned the very injury that Dr Xiong was appointed to assess and was qualified to assess. The earlier report was not current and it referred only to common limitations caused by carpal tunnel syndrome. It is hard to envisage that Dr Xiong would have been assisted by the report. [33] In relation to the knee injury, Mr Young-Gough submitted that it was relevant to the physical requirements of the job of Community Support Worker which included "intermittent" standing, walking and sitting. He also submitted that "intermittent" like "variable" is a meaningless term as considered in Renwick (65/02), Vrins (299/02) and Corbett (108/2005). I think that "intermittent" is less vague than "variable", but it depends on the context. Intermittent has a meaning similar to occasional, and is opposed to continuous or regular. It may be a helpful description for a medical professional in matching a job with a claimant's fitness. I do not think that the use of the word intermittent renders the job description so vague that a medical assessor could not provide a reliable opinion. The Reviewer said: "The only remaining job is community support worker. Mr Young-Gough submits that sitting, standing and walking are described as intermittent. However, I see no evidence that Mrs Osborne has injury related restrictions associated with any of these activities. I consider that Dr Xiong's conclusions in relation to this job are consistent with the other medical reports on file. There is no medical evidence to contradict Dr Xiong's conclusion. Furthermore, contrary to Mr Young-Gough's submission, I do not consider that this option defies common sense because it is so consistent with other suggestions by examining medical practitioners on the file, such as Dr Turner." I respectfully agree with those findings. 34] Mr Young-Gough then turned to the question of what injuries the assessor might not have taken into account. Dr Xiong wrote at the end of his report: "Conclusion and Recommendations As mentioned above non accident conditions including bilateral osteoarthritis of hands and bilateral plantar fasciitis may well prevent Mrs Osborne from having vocational independent partly due to the fact that she cannot stand for a prolonged period of time and partly due to the partial contribution of the osteoarthritis to her regional pain condition. I have not identified any further treatments that may be required for Mrs Osborne. I have only taken into account the personal injury when informing my opinion of her capacity to engage in work in each of the identified jobs according to ACC's instruction. I have explained to Mrs Osborne my clinical findings and the likely nature of my opinion to ACC, any concerns have been discussed and documented in the report." [35] As Mr Young-Gough submitted, all of the injuries for which the claimant has cover must be taken into account. The statement "I have only taken into account the personal injury" suggests that the assessor did not take account of the left knee injury and back injury. This is an area in which the assessment might be flawed by a material omission. But to demonstrate a flaw there needs to be an evidential basis that the omission would have been material. It was open to the assessor to determine that there were no other covered injuries that affected the claimant's ability to work in the specified jobs and then to certify the assessment as he did. The certificate does not mean that the assessor did not consider the other covered injuries, but only that he did not take them into account. There is no evidence that the other covered injuries were relevant, or should have been taken into account, in determining vocational independence and the submission must fail on that point. (36] Mr Young-Gough then submitted that the assessor did not take account of the appellant's pain-related limitations when confirming the jobs he considered her fit to perform. Dr Xiong states "from the physical perspective " at the commencement of analysing the jobs and it was submitted that he therefore did not consider the pain perspective. [37] In my view that is not an effective way to address a possible omission in the assessment. It is only by inference that the comment might indicate that Dr Xiong failed to consider pain. He may have considered and rejected it. More importantly, there needs first to be some evidence that the appellant suffered pain that affected her ability to work. The proper way to do that is by pointing to medical opinion to that effect, then it is open to the Court to consider whether there is a relevant question that the assessor failed to consider. As this case stands, there is no evidence that pain was significant and relevant. For support, Mr Young-Gough referred to Buckthought (296/05) and Walker (218/05), but those cases only demonstrate that the challenge to a medical assessment depends on evidence of fact. [38] Mr Hack noted that, in the medical assessment, Dr Xiong inserted a heading: "Current State including Pain", under which he stated that the appellant's principal problem has been pain particularly around the left hand at the base of the thumb and wrist, as well as travelling up to the palmer aspects of the arm. Dr Xiong noted the discomfort as being "low grade", usually 2/10 but sometimes worse. Under 'Diagnosis", he wrote: "Chronic pain syndrome/regional pain syndrome especially the left hand and arm secondary to original carpal tunnel syndrome and subsequent surgery." [39] Mr Hack noted that Dr Xiong recorded that the appellant had been troubled with severe pain syndromes secondary to her original injury and subsequent surgery, but that her pain pattern was much more diffuse and generalised even though she did not have any more objective signs at that point to suggest a complex regional pain syndrome. Therefore, the medical assessor appeared to be clearly aware of the nature, type, and distribution of the appellant's pain. Furthermore he excluded jobs that involved repetitive use of hands and wrists or excessive hand and finger movement. I accept those submissions leave no room for the decision to be set aside on the ground that pain was not considered. [40] Mr Young-Gough submitted that there is no evidence that the job of community support worker exists other than as a part time job in the usual course where it is more likely to be an on call or as required basis through an agency or the like. [41] It is often said in the course of vocational independence assessment appeals that assessments lead to unemployment because the jobs that are recommended are not available, or because the claimant cannot do them. But when the occupational assessment has been carried out according to a process prescribed in the statute, a challenge requires cogent evidence to enable a Court to decide that the assessment was flawed: see Ramsay v Accident Insurance Corporation (above). When an error is not apparent on the face of the assessments, a challenge usually requires the evidence of a similarly qualified person in the relevant field. It is regrettable that an appellant can be faced with cost that can be prohibitive. In this appeal, there is no evidence to show that the job of a community support worker is not available as a full time job. The Corporation's decision [42] In his written submissions, Mr Young-Gough put it that "of very real concern is that the medical assessor's report was sent out with the decision letter". I am not sure whether it was intended to state that it was or was not sent out. The documents before the Court do not seem to help. In any case, the central submission was that the appellant was deprived of an opportunity to challenge the basis of the assessment and possibly avoid the need to access the review and appeal procedures. Mr Young- Gough submitted that the omission was a breach of natural justice. (43] Mr Hack submitted that there is no legislative requirement to allow the appellant time to consider or challenge the vocational independence medical assessment report prior to the respondent issuing a decision. The opportunity to consider the report is found in the review and appeal process. The principles of natural justice do not require an additional opportunity where there is a statutory process of objection. [44] There is in fact a statutory obligation cl 29(3) of Schedule 1 of the Act requiring the Corporation to provide a copy of the report to the claimant, but there is no time directive. Clause 29 can be read on the basis that there is a statutory obligation of communication, but not of a need to provide time for consultation or representation by the claimant. One consequence of a breach might be that the decision process is incomplete until the assessment is provided. There might be other consequences if there had been actual prejudice to a claimant because of the omission. But the present argument is put on the basis of a breach of natural justice. [45] As to specifics, the appellant says that Dr Xiong reported that her level of pain was two on a scale of ten, whereas the appellant says that she told Dr Xiong the level was from 6 to 10. If she had been given an opportunity to comment on the medical assessment, she could have made a representation about an error by the doctor in reporting information. The Corporation would have had to refer the question back to the assessor. In this context the appellant is really suggesting a second opportunity to be heard by the assessor. [46] Mr Young-Gough submitted that the review and appeal procedures are cumbersome and should be avoided where there is a point on which the parties could benefit from consultation before a decision is issued. There is authority that the existence of a right of appeal does not of itself cure a breach of natural justice or oust the jurisdiction of the Court to provide a remedy. But in this case, where the process of assessment and determination is so fully prescribed by statute, there is no necessity for the Courts to impose another layer of protection for the claimant by interposing a stage at which the claimant must be given an opportunity to be heard on the correctness of an already completed assessment in which the claimant had input at two stages. I accept Mr Young-Gough's submission that it would be in the claimant's interest to have an early opportunity to correct an error or misunderstanding, rather than having to go through a process of review and appeal. However the review process provides for that opportunity immediately upon the Corporation making its vocational independence determination. Where the statute provides such a remedy there is no need for a stringent application of natural justice principles in cases where the Corporation proceeds to make its determination by following the assessment. It is in any case doubtful that the District Court would have the power to set aside the decision on the ground of a procedural breach as distinct from its power to remedy an error on appeal from a review decision. [47] Mr Young-Gough raised a similar argument in Millar (247/07) in which I said: "[98] In the course of the assessments the claimant has an opportunity to be heard by presenting his views to the two assessors. Those views are incorporated in the assessments. The Corporation does not usually make any decision other than to accept the assessments. Under s107(2) "The Corporation determines a claimant's vocational independence by requiring the claimant to participate in an assessment", so the determination does not involve another independent decision by the Corporation. The Corporation could not properly reject assessments unless there is a flaw that renders them incomplete or wrong. One answer to the natural justice argument is that post-assessment representations could only be directed to an assessment flaw. The review process itself provides an opportunity to address an assessment flaw and the claimant has not been deprived of a necessary opportunity to be heard between the assessment and "determination" stages. In this case the requirements of natural justice were fully met by consultation with the assessors." [48] Mr Young-Gough submitted that the review process was flawed in that there was no review that adopted an informal investigative approach pursuant to section 140, merely a time-limited formal Review hearing pursuant to Section 141 that did not consider all of the arguments put forward by the appellant. In the Millar appeal (above) I said: [57] Section 140 of the Act sets out obligations of the Reviewer including to adopt an investigative approach. Section 141 governs aspects of the review hearing. There is nothing in these two sections to suggest that there are to be separate or sequential processes. The Reviewer may conduct the review in any manner he or she thinks fit. There may be cases in which an investigation is desirable and others where it is logical to proceed to a hearing. Mr Young-Gough's written submissions made reference to various other appeals in which the question of ACC Review procedure has been questioned, including a pending appeal to the High Court in Willson v ACC, (CIV 2005-485-1974), but that did not shed light on the argument in this appeal. Purposes of the Act [49] Mr Young-Gough mounted an extended argument based on the natural justice principle of providing a reasonable opportunity to be heard on a matter affecting the rights of a claimant. He referred to the Minister's Letter of Expectation dated 22 March 2004. He referred also to Rule 8(1) of the Health Information Privacy Code requiring a health agency to ensure the information is accurate, up to date, complete, relevant, and not misleading. Mr Young-Gough referred to Case Note 17749 [1999] NZ Priv Cmr 13 in which the Privacy Commissioner said:- "Cancelling the complainant's compensation without giving him an opportunity to respond was a serious decision. I considered that it would have been reasonable in the circumstances to check the assessment with information already held about the complainant. It would have been reasonable to give him an opportunity to comment on the report because the ACC was considering taking adverse action against him. The ACC failed to take these steps, and I formed the opinion that it had breached principle 8. Because he had suffered harm as defined in s 66 (1) [Privacy Act 1993] I formed the opinion that this breach had amounted to an interference with the complainant's privacy Although his compensation was ultimately reinstated, he was unnecessarily deprived of it for a time and thus suffered a detriment. I also considered he suffered significant humiliation and loss of dignity as a result of the ACC's actions." [50] In that framework Mr Young-Gough repeated some of the arguments that are outlined above. Mr Hack submitted that the Minister's letter does not have the force of law and that Court is not charged with decisions to be made under the Privacy Code. Mr Young-Gough submitted that the vocational independence assessment was a mechanical process permeated with significant failures from the initial formulation of the IRP through to the provision of the Medical Assessor's report as part of the decision letter whereby a major breach of natural justice has occurred. [51] It must of course be accepted that the objectives outlined by the Minister, reflecting the purposes of the Injury Prevention, Rehabilitation, and Compensation Act 2001, are guiding principles for the Corporation and the Court must always be sensitive to the purposes of the legislation. But that does not give the Court a discretion to set aside decisions on general grounds that the Corporation has failed to deliver its services in the best possible way over the history of the claim. Where a need for rehabilitation is identified and the Corporation has failed to address that need, the Court will do what it can to address the problem. But in this appeal the arguments nearly all relate to general aspects of practice by the Corporation and do not point to specific rehabilitation interventions that might have been evident in the appellant's case but were not addressed. Centrally, there is a lack of expert occupational or medical evidence to challenge the findings and recommendations that have been made in the course of assessment of rehabilitation needs and outcomes. [52] I do not find that any of the arguments demonstrate an error in the vocational independence decision. Therefore the appeal is dismissed. Judge D A Ongley District Court Judge