Jenns v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 259 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MARGARET ETHEL JENNS of Dunedin Appellant (Appeal No. DCA 306/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 4th day of November 1998 APPEARANCES P D G Schmidt for appellant A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether teacher training for the appellant was cost effective or achievable in the minimum necessary period to meet the objectives of vocation rehabilitation. The appellant had received cover under the Act for Occupational Overuse Syndrome which arose out of and in the course of her employment as a Computer Aided 2 Drafting Operator. As a result of that injury the appellant was unable to return to her former employment in which she had engaged for some 15 years. The appellant ceased her employment during 1997 while living in Auckland but in June 1997 she moved to Dunedin. The appellant met with her Case Manager in August 1997 to discuss vocational rehabilitation. On 26 November 1997 the appellant's General Practitioner, Dr J Wood advised the respondent: "I am not entirely familiar with Mrs Jenns work capacity-she has only recently joined practice-her main symptoms are pain continuing around her L shoulder girdle, which does not entirely incapacitate her, but would restrict certain activities. These would include stretching, heavy lifting, and repetitive movements." On 8 December 1997 the appellant met with her Case Manager whom she advised that she had been accepted for training as a primary teacher at the Dunedin Teachers College. That involved a three year course. There then followed a meeting between the appellant and her Case Manager which resulted in the Case Manager, Pania Tuhura advising the appellant by letter, dated 18 December 1997, re vocational training options: "Further to our meeting of 17/12/97 I wish to advise the following: 1. If you wish to undertake training to become a primary school teacher, ACC is able to pay your course food for the first wear up to a value of $1400.00 (textbooks and stationary are your responsibility). In addition, full weekly compensation would be payable for a period of not more than 3 calendar months from the start date of your course. Following this three-month period, your entitlements under the ACC scheme would cease. 2. If you choose not to take up this option, ACC would be able to pay for your C.V. to be updated, and for a job options report to be completed. Once these reports were completed, you would be eligible for up to six months of continued weekly compensation while you search for employment. Your entitlement to receive weekly compensation and continued support under the ACC scheme would then cease once you had secured employment or the six months was completed, whichever is the earlier. As stated in our meeting, under current ACC policy if you were to secure employment, which was at a lower rate of pay than you receive currently, you would be entitled to receive abated earnings from the Corporation. I look forward to discussing this matter further with you in the New Year. If you have any questions, please do not hesitate in contacting me." On 21 January 1998 the appellant stated that she considered she was entitled to assistance for the full three years. The respondent then arranged for "a return to work vocational assessment" which was undertaken by Mr P Mcbeth, a Vocational Assessor. As the appellant had expressed the wish to become a primary teacher, Mr McBeth 3 was requested to explore other vocational possibilities which might be available within the appellant's talents. In his report, Mr Mcbeth concluded: "Job Interest areas The following job interests were identified during the interview process and as a result of Margaret completing a Computer Aide Guidance programme and Self Directed Search instrument: Working as a teacher . . Staff training Speech therapy School counsellor Commercial artist Freelance writer Cartoonist A common theme in the Computer Aided Guidance programme was occupations dealing with people and creative elements. Concluding comments As indicated, Margaret is focused on pursuing teacher training regardless . ..-wm of the outcome of funding decisions by ACC. It was therefore difficult to..... establish alternative job options to which she has any commitment. There are occupations she could undertake however, persons who have no interest in pursuing a role will seldom (a) secure a job at an interview, and (b) perform well enough in the role to continue to hold the job. As indicated in the report provided by Work Abilities Otago, Margaret has envisaged how she will deal with the physical component of teaching. Discussions indicate she is managing well in her school placement and enjoying her experiences to date." In the meantime the appellant had, of her own volition, obtained an occupational assessment from Ms F Morgan, an Occupational Therapist, the assessment being dated 2 February 1998. Ms Morgan recorded the appellant's history as: 'Margaret was diagnosed in mid 1995 as having a fibromyalgia left shoulder and upper back pain which started in mid 1994. Sometime after this her symptoms became sufficient disabling for her to be put off work. She improved with physiotherapy and returned to work and gradually built up her hours. She eventually resumed full time work and managed this using self management techniques until mid 1997 following a flare up of symptoms when she was again put off work and has not returned since. (See reports on file). 4 Educational Qualifications and Employment History Margaret gained a Mechanical Draughting Certificate in 1976 and prior to this in 1967 a Cadetship in the Department of Lands and Survey. She has a work history of fifteen years using CAD for architectural, electrical and mechanical draughting with three employers in Wellington and Auckland. Prior to this she was also involved in mechanical, electrical, structural and survey draughting from 1965 until 1982. Within the latter period (1975 until 1980) she was involved with parenting children. During this time she did contract draughting at home and gained her Play Centre Supervisor's certificate. At her children's schools she was involved with school trips, reading and classroom activities and prepared illustrated reading charts. She also made costumes for school drama productions. While her two children were at school she was on the Parent Teachers Association at Northcote College. In her final work position as a CAD Operator for Peddle Thorpe Architects in Auckland, Margaret showed ability to produce high quality work and was involved in training new CAD operators on CAD methods and procedures, company health and safety issues. She was perceived to have natural ability as an organiser and as being cheerful, optimistic, dedicated and conscientious. Her job was perceived to being very pressured and she was apparently replaced by three people. Since being off work she has enrolled with the Correspondence School and has been studying 6th Form Biology gaining a mark of 87%. Her course tutor has written an evaluation stating that she is conscientious and above average student giving every indication of completing her Biology course to a very good standard. Margaret and her husband moved from Auckland to Dunedin at the end of June 1997 and since that time she has been giving careful consideration to her future work options. She considered returning to nursing having completed two years of her training at Wellington Hospital many years ago. (She did not finish her training after a motor vehicle accident and glandular fever). She has discarded this option because of the likelihood of nursing duties being beyond her capacity. I support her decision. Her choice instead is to enrol with the Dunedin College of Education." Ms Morgan concluded her report: "Margaret's condition continues to affect her left arm function and symptoms become apparent with muscle tension in her left shoulder and trunk if she does not take care to ensure postures which are least likely to aggravate. Self management has become an integral part of Margaret's life and with implementation of a variety of creative approaches she can manage to achieve goals without excessive difficulty. She has a high level of organisational ability. 5 While I believe sustained sitting with arms forward while performing small repetitive-arm-and hand movements such as needed for CAD operation will continue to be contraindicated I consider she has every chance of successfully completing her degree or diploma in teaching. Self management and excellent ability to problem solve plus history of creativity should ensure her success. Activities such as writing on a whiteboard can be replaced with overhead projection and Margaret is well used to working on the floor to produce charts and the like should sustained sitting prove to be problematic. She has already thought her way around problems which have the potential to arise during educational or study activities associated with the course work involved. Margaret has proved herself able to cope with study activity during 1997. She has enjoyed teaching and group management during past activities. During her children's education she involved herself in curricular activity and in management issues with the Parent Teachers Association." On 10 March 1997 the respondent issued a decision to the appellant which states: "I am unsure whether you are aware that Pania Tuhura is no longer with the Corporation. She left a short time ago and to date there has been no replacement appointed. In the interim I will be looking after your file and I note that there are a number of unresolved issues. Primarily at issue is your desire to pursue long term re-training at the Dunedin College of Education. I am aware that you have had discussion with Pania and Debbie Milne regarding ACC supporting for this option and that you have been advised that ACC would not be able to support you in this endeavour. The Corporation has received the Vocational Assessment report from the Careers Service. The report details your considerable experience and transferable skills and identifies a number of areas in which you may be able to locate employment with a lesser amount of vocational rehabilitation assistance. I note that you have amended your individual rehabilitation plan to include attendance at Dunedin College of Education with ongoing support until November in the year 2001. Unfortunately the ACC is not able to support this option. Section (18) of the Corporations 1992 Act allows for the provision of rehabilitation assistance to enable a person to lead as normal a life as possible. Section (18) also places responsibility for rehabilitation on the person who has cover under the act. When looking at re-training ACC is looking at the area of vocational rehabilitation. The objective of which is to assist persons who have cover "to maintain employment, obtain employment, or, in all circumstances, to have a capacity for work" (Accident Rehabilitation Compensation and Insurance Act 1992, Section (22)). Section (23) of the Act goes on to allow ACC to make "provision of or payment for vocational rehabilitation if it considers it appropriate in the circumstances and the 6 provision or payment is expected by the Corporation to be cost effective". Subsection (2) goes on to say that. "The Corporation may at its discretion provide or meet the costs of any vocational rehabilitation for the minimum period necessary to meet the objectives set out in section 22 of this Act ..." Given your transferable skills, as identified in the Careers Service report, ACC does not deem retraining at the Dunedin College of Education as either cost effective or achievable in the minimum necessary period to meet the objectives laid out in Section (22). Should you continue to pursue your studies at the College, you would effectively be making yourself unavailable for rehabilitation that would meet the requirements of the ACC Act. Because Section (18) places a responsibility on you to involve yourself with appropriate rehabilitation this unavailability could result in suspension or cessation of your entitlement to weekly compensation under Section (73) of the Act. I would be pleased to meet with you to discuss this matter. It will be necessary for us to formulate an alternative rehabilitation plan, which meets both your needs and the requirements of the Corporation. Please contact me on 479 6911 to arrange a suitable time to meet." The appellant applied for a review of that decision which was unsuccessful. It is against that decision which the appellant now appeals. Mr Schmidt took exception to the instruction to the Vocational Assessor to consider occupations other than primary teaching. However, I can see no problem with those instructions. The respondent was aware of Ms Morgan's assessment that primary teaching would be a suitable vocation but the respondent wished its Vocational Assessor to consider whether there were other vocations which the appellant would be capable of undertaking and which would come within the restrictions imposed on the respondent to ensure that whatever course was undertaken was cost effective. Mr Schmidt submitted that with the appellant's experience as a very capable Computer Aided Drafting Operator, a vocation as a primary teacher would achieve the objects of the legislation to enable the appellant to lead as a normal life as possible, having regard to the consequences of her injury. He submitted that the focus of vocational rehabilitation was on the rehabilitation of the individual and that the retraining to be undertaken should be with the objective of limiting incapacity as much as possible. Mr Schmidt submitted that section 23 of the Act permits the respondent to pay for retraining for up to three years which was the period which would be required if the appellant was retrained as a primary teacher. He submitted that there is no definition of the term "cost effective" so that it must be given in its ordinary meaning which would require the respondent to spend no more than is necessary to retrain the appellant. He submitted that before the appellant became incapacitated she occupied a position of responsibility so that any alternative employment into which she now moved as a result of having to be retrained should reflect her past experience and ability. 7 Mr Barnett submitted that sections 18 and 22 of the Act do not impose upon the respondent an obligation higher than that of assisting in rehabilitation to regain employment and to lead as a normal life as possible and does not impose upon the respondent an obligation to meet the costs of rehabilitation and/ or training of the appellant's choice. He submitted that the essential feature of section 23 provides a discretion in the respondent to meet the costs of vocational rehabilitation which is appropriate in the circumstances and must be cost effective and carried out within the minimum period necessary. He submitted that it was arguable that if teacher training was an option available and was undertaken there was no certainty that at the end of the training she would obtain a position. I have recorded the appellant's work history as set out in the report from Ms Morgan because it demonstrates that prior to her injury the appellant successfully held a very senior position which required technical skill in the work she had to undertake. She has had a good education which enabled her to develop and produce high quality work in a very skilled position. While she had expressed to Ms Morgan her desire to undertake primary teaching Ms Morgan apparently approached her vocational assessment predicated on that hope. However, Ms Morgan was of the opinion that having regard to her background and experience the appellant would be capable of undertaking the work as a primary teacher. Mr Mcbeth was asked to consider what other positions might be available to a person with the appellant's background and it was for that reason that he provided the list of job interest areas which might be suitable and available to the appellant. However, he noted that her specific interest was really towards primary teaching. The requirements of the rehabilitation provisions in the Act places a responsibility on both the appellant and the respondent to take active steps towards rehabilitating the appellant in some form of occupation which will be compatible with her present abilities, having regard to the injury she has suffered. The Act has the objective of endeavouring to return the appellant to work within her capacity provided that any retraining must be cost effective in so far as the respondent is concerned. I have not been able to discover in either the decision of the respondent or in the submissions made to me why the retraining of the appellant as a primary teacher is considered not to be cost effective other than that the cost is higher than for the suggested alternatives. Here is an appellant with very high skills who is now injured and unable to return to her former occupation but has a very strong work ethic which she considers can be satisfied by work as a primary teacher. While the respondent has purported to place a limit of two years on the appellant's vocational training, it does have the discretion to increase that to three years in appropriate cases. I agree with Mr Barnett's submission that it is not a question of choice for the appellant in situations such as this, but having regard to this appellant's ability and the nature of the work in which she was previously involved prior to the accident, primary teaching would appear to be the type of work which would naturally follow from her history. Mr Mcbeth went so far as to suggest working as a teacher's aid. If that was so, and the appellant's application was declined, merely because she could undertake work as a teacher's aide with two years of training rather than three years, I would consider that that was not an appropriate exercise of the respondent's 8 discretion. I consider that such a decision is more inappropriate when the appellant's background, qualifications and work history are taken into account. Moreover, the respondent's concern that on the completion of teacher training there was no certainty that a position would be available is equally applicable to any of the other suggested vocations. While Mr Barnett has reminded me that the Court should not lightly interfere when a discretionary decision has been made, I consider that I should do so in this case. I do not consider that on the evidence before it the Corporation reasonably exercised its discretion by deciding that the proposed teacher training course was not cost effective. Various alternative vocations were submitted on what appears to be simply the fact that the training could be accomplished within two years without regard to the objections to achieve the appellant's "optimal physical, mental, vocational, and social function." I consider that work as a primary teacher would be a most suitable vocational undertaking for this appellant who should be granted the opportunity to undertake primary teacher training. As the issue involves the exercise of a discretion by the respondent which I consider to be defective for the reasons I have stated the original decision is revoked. The file will be returned to the respondent for reconsideration of the appellant's request to undertake teacher training as a vocation with a view to her achieving maximum rehabilitation. There will be costs to the appellant of $1,000. DATED at WELLINGTON this 4th day of December 1998 A W Middleton District Court Judge dca306-98.doc (nr)