Feyen v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 132/95, UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 69/94 / 0277. section 91 of the Act BETWEEN MICHAEL HERMAN FEYEN of Pahiatua Appellant (Appeal No. DCA 240/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of September 1995 APPEARANCES Appellant in person T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON This appeal concerns the extent of the vocational rehabilitation provisions under the Accident Rehabilitation and Compensation Insurance Act 1992. The facts which give rise to the appeal are that when the appellant was working as a Police Officer he suffered an injury to his knee on 7 February 1990 as a result of which he had to give up his service in the Police Force. The respondent in the exercise of its duty to rehabilitate arranged for the appellant to complete a short training course at Manawatu Polytechnic as a result of which it was arranged that he undertake a vocational training programme in the form of the completion of a Bachelor of Business Studies Degree at Massey University. The original arrangement between the appellant and the respondent was recorded in a letter of 20 December 1990 under which the respondent agreed to maintain the payment of earnings related compensation until 28 February 1994. The arrangement was on the basis that the appellant undertook the degree course and was subject to the respondent being satisfied that he was satisfactorily carrying out a course of study. The appellant provided me with relevant portions of correspondence between himself and his various case officers which showed that his examination results were excellent and that he was reliably complying with the arrangement into which he had entered with the respondent. As a result of his satisfactory performance the University recommended that the appellant should enrol for a degree of Bachelor of Social Work which required four years of study to which the respondent agreed. There was evidence that on completion of that degree the appellant would be able to take up permanent employment. On 18 August 1992 the respondent advised the appellant of the introduction of the 1992 Act and advised the appellant that "the new legislation places an increased emphasis on our commitment to provide rehabilitation which enables a person to enter the work force in a productive role." and later in the same letter it is stated: "from 1 July 1992, the Corporation is permitted to fund your rehabilitation programme for a maximum of one year. During this time, your payments will change from weekly compensation to a vocational rehabilitation allowance. The allowance will be payable at the same rate as that which you presently receive. If you remain incapacitated at the end of the one year period, weekly compensation will recommence. The Corporation may, in limited circumstances, extend the vocational rehabilitation allowance to a total of two years if it is satisfied that by doing so, employment will result." After receipt of that letter and confirmation by the University that the appellant would require two more years of study to complete the BSW degree, the University indicated that the market prospects for BSW graduates was very good. The University set out in detail the nature of the work which the appellant would undertake during his fourth year of study . The appellant received no further information from the respondent until a letter of 5 April 1993 requested him to consult to his client officer in relation to his entitlements with the respondent. The appellant stated that he sought clarification of his position from the respondent on a number of occasions during 1993 and was advised that he had the full support of the respondent for the completion of his BSW degree. While there was an interview with a member of the respondent's staff in April 1993 the appellant stated that at no time was he made aware of any difficulties which would preclude him from completing his BSW course. The meeting in April 1993 had been arranged by the appellant's client officer, Janice Meyer and was attended by the appellant and his solicitor Mr Shanks. This 3 had arisen because the respondent was concerned that the appellant was involved in outside activities which were not necessarily involved with his rehabilitation and wanted to know the extent of his involvement. It was for this reason that he had a solicitor present because he considered that this was necessary. The outcome was that it was agreed with the rehabilitation co-ordinator that the appellant had arranged to sign over his interest in his gym to his wife so there would be no problem in continuing to receive earnings related compensation. During the course of the interview the appellant raised the question of his future studies because he had not been given confirmation that they would continue for the completion of his BSW degree. The appellant stated that he understood that Ms Meyer had agreed to confirm in writing that he could expect to receive full cover for his University fees for the completion of his degree in 1994. No letter was sent to the appellant as had been agreed at the meeting. At the review hearing Ms Meyer could not recall making that commitment but Mr Shanks recorded that it had been given. On 5 January 1994 the appellant submitted details of his 1993 results to the respondent with the request that the respondent forward the fees for the next year direct to the University. On 24 March 1994 the respondent notified the appellant that in accordance with the provisions of section 23 of the 1992 Act it could only extend his Vocational Rehabilitation Allowance until 30 June 1994 and that that extension "represents the maximum entitlement available and enables the corporation to approve payment of 50% of the full years course fees, the corporation contribution will be $733.65". The appellant applied for a review of that decision and submitted that he had an agreement with the respondent to pay the full years fee for completion of his degree. The appellant was concerned that he was being pressed by the University for payment of the fees for the full year which he was not in a position to meet and he was out of pocket to the following extent: - Massey University fees half year $933.00 - Travel expenses for 16 weeks at $50.00 per week $800.00 - Legal Expenses $204.50 Total $1937.50 The appellant arranged for Ms Meyer to be present at the review hearing but she could not recall making the commitment to pay full fees to the end of his degree course. However, the review officer considered that whatever may have been said earlier the application of the provisions of the new Act as applied by Judge D A Ongley in Gough v ACC (48/94) precluded him from interfering with the respondent's primary decision. At the appeal hearing the appellant provided me with extensive detail of the background that led to this position which I have attempted to briefly summarise as many of his complaints related to procedural difficulties which he had with the 4 respondent rather than to the particular matter which is the subject of the appeal. The appellant was particularly concerned that he was required to make enquiries rather than the respondent providing him with information from time to time. He said that until the letter of March 1994, he was not aware that the agreement which he thought he had with the respondent which would enable him to complete his degree was likely to be changed. He also stated that he was never made aware until that time that the new Act restricted the respondent in the payments it could make to him for the completion of his degree. He submitted also that in his view University students should be entitled to 52 weeks of entitlement in each year rather than payments for the actual periods during which the University was open. He raised the question that he had some difficulty in applying the provisions of section 24(3) to the position of University students. Section 24(3) states "the total vocational rehabilitation provided under section 23 of this Act and this section shall not exceed a period of 24 months in total which need not be consecutive." In my view that simply means that a recipient of vocational rehabilitation assistance cannot receive more than 24 months assistance but it need not be month by month can only be paid within a period of 24 months in total. While I have some difficulty in understanding the appellant's arguments, I consider that an arrangement to pay the fees for an educational year means simply that. The appellant submitted that he should receive the equivalent of 52 weeks of payment, but I do not consider that that is the intention of the legislation. In my view one year's payment refers to one academic year. As I understand it from the appellant through the good offices of the Administration of the University, he has in fact completed his degree but is still out of pocket to the extent I have already recorded. Mr Cleary submitted that the respondent and the review officer were bound to apply the provisions of the Act notwithstanding that it may earlier have been arranged that the respondent would meet the fees until such time has the appellant completed his degree. Section 136(4) covers the transitional period whereby a person who is in receipt of vocational rehabilitation immediately prior to 1 July 1992 becomes subject to the limitations on the provision of or payment for vocational rehabilitation under section 23 as if the provision of or payment for that rehabilitation had commenced on 1 July 1992. Sections 23 and 24 of the Act state: " Section 23 of the Act states: 'Limitations on provision of, or payment for, vocational rehabilitation by Corporation---(1) Except as provided in section 24 of this Act, the Corporation shall not provide or meet the costs of any vocational element of an individual rehabilitation programme that are incurred in respect of any period more than 1 year after the commencement of the vocational element of the programme unless it is satisfied that further provision of, or payment for, vocational rehabilitation is expected to result in the employment of the person to whom the programme applies. 5 (2) No such further provision granted under subsection (1) of this section shall continue for a period exceeding 1 year'. "Section 24 of the Act states: Resumption of vocational rehabilitation---(1) Where a person has undergone vocational rehabilitation resulting in the person obtaining full-time employment and the person is unable to maintain the employment by reason of his or her incapacity, the person's vocational rehabilitation programme may be resumed with appropriate modification of its content. (2) The Corporation may at any time reassess the incapacity of any person, the person's rehabilitation needs, and the potential market for that person's skills and, if satisfied that there has been a change of circumstances so that vocational rehabilitation or further vocational rehabilitation is expected to be cost effective for the Corporation, commence or make further contributions to the vocational rehabilitation of the person. (3) The total vocational rehabilitation provided under section 23 of this Act and this section shall not exceed a period of 24 months in total which need not be consecutive.' The review officer referred to the decision in Gough v ARCIC (48/94) in which Judge Ongley stated: " Under the 1992 Act a claimant cannot get vocational assistance for more than two years in the first instance. There is further provision in section 24 for resumption of vocational rehabilitation after obtaining full time employment. The claimant who has had earlier support under the Accident Rehabilitation and Compensation Insurance Act 1982 stands in the same position as any other claimant as at 1 July 1992. The fact that he or she may have already had assistance for more than one year is not a disqualifying consideration but only a factor to be taken into account". I agree with Mr Cleary's submission that while the appellant contends that the two year time limit set out in section 23 relates to term time only, Judge Ongley's decision is authority that that interpretation is strained and cannot be adopted in preference to the natural meaning of the words which are to exclude provision of vocational rehabilitation after the anniversary of the commencement of the programme unless an extension of one year is expected to result in employment. The same interpretation must then apply to that one year extension. I agree also that Mr Cleary's submission that the reference in section 24(3) to "which need not be consecutive" relates to the intermittent nature of the vocational rehabilitation if resumed under that section and does not mean the total 24 months can be split into separate term time. The issue raised by this appellant is a serious one because I have no doubt that he was clearly led to believe that under the vocational rehabilitation provisions of the Act he would be paid his full fees for completion of his degree. The correct 6 interpretation of the new Act provides no discretion so that I am unable to change the position. However, this may well be a case where the respondent could consider that some form of ex gratia payment can be made because the appellant clearly acted on an understanding given to him by the respondent's staff that his fees would be paid in full. This however, is a matter which can only be considered by the respondent but in the interests of justice I am making this recommendation. As I have already held that the review officer's interpretation was correct the appeal is dismissed. DATED at WELLINGTON this 20" day of November. 1995 Senddive A W Middleton District Court Judge dca240-94.doc (nr)