Li v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH [2012] NZACC 11 2 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN MICHAEL XIONG LI (Al 200/09) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 12 March 2012 APPEARANCES Mr K Murray, Advocate for Appellant. Mr H Evans, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 21 August 2008, whereby it declined to agree to fund a two-year course for a Diploma of Information Communication and Technology at the Christchurch Polytechnic Institute of Technology. The grounds for declining that vocational rehabilitation proposal was that it was identified by the respondent that the appellant already had sufficient experience, education and training to be suitable for employment. [2] This appeal arises from a review decision dated 20 April 2009, and it is the case that that review decision also considered and determined another decision of the respondent, namely its decision of 8 October 2008, whereby the appellant's Individual Rehabilitation Plan (IRP) was deemed to have been finalised. 2 [3] It is the case that Mr Murray, the appellant's Advocate, accepts that with the passage of time since that deemed IRP and the fact that the appellant has moved on as it were, it is not sought to have any determination in this appeal on that issue. [4] The real issue in this appeal is whether the appellant was entitled to have his two year course at Christchurch Polytechnic Institute of Technology (CPIT) funded by the respondent as part of his vocational rehabilitation. It is the case that despite the respondent's refusal to fund that course, the appellant did undertake that course on his own initiative, commencing on 28 July 2008. The appellant completed that course and was identified as having an extremely high record. [5] The background facts relevant to the issue in this appeal may be stated as follows: The appellant is a Chinese national who emigrated to New Zealand in 1999. He was university trained, a qualified teacher, and fluent in English. Despite his undoubted abilities his teaching qualifications were not recognised in New Zealand and he therefore sought and commenced alternative employment. The details of the appellant's work history in New Zealand, as contained in an Initial Occupational Assessment Report are as follows: ... Michael retrained as a CNAC Machine Operator, through an Adult Apprenticeship with Contex Engineering. Halfway through his apprenticeship, Michael transferred to Integrated Hydraulics to complete his Machining and Tool Making Certificate with CAD design experience; he then transferred to Quartic engineering where he was able to combine his design skills with machining. In 2005, Michael joined Hammer Precision for 2 years undertaking the same role before joining Transit. At Transit engineering Michael was responsible for programming of the machines using Master CAM software (Computer Aided Machining), together with CAD (Computer Aided Design) software. ... Michael continued this work at Transit Engineering until an injury in August 2007. On 20 August 2007, whilst at work, the appellant injured his back whilst pulling on a tool and he began to experience severe pain in his back. The appellant was accepted as being incapacitated and was off work for some five and a half weeks. He attempted to return to his 3 employment but the work he was required to do exacerbated his back pain and he could not continue. An MRI scan identified multiple annular tears in the appellant's thoracic and lumbar spine. The appellant was referred to Dr J Bonkowski, Neurosurgeon, and it was his advice that his back condition did not require surgical attention and that his condition should slowly settle but that he may have discomfort for anything up to 12 months An earlier medical assessment from Dr Mark Mclaughlin, Musculoskeletal Pain Specialist, identified the appellant as having non-specific low back pain localised to the lumbosacral junction. In March 2008 the appellant underwent an Initial Occupational Assessment with a Chris Horton of Employment Plus Limited. It is the case that a significant number of work-types were identified as being suitable having regard to the appellant's experience, education and training. On 4 June 2008, an Initial Medical Assessment was carried out by Dr Murray Smith, and he identified a number of those work-types as being medically sustainable. On or about 15 August 2008 the appellant made a formal request for the funding of the two-year Diploma course at CPIT. It was asserted by the appellant at this time that many of the work- types identified in the Initial Occupational Assessment could not be undertaken without further qualification that the Diploma, which he sought to undertake, would give him. Prior to the respondent making any decision on this issue, it sought the opinion of Mr Horton as to whether the appellant's assertion was correct. Mr Horton responded on 18 August 2008, the bottom-line being that his enquiries had identified that the further two year Diploma course was not necessary in order for the appellant to have the ability to take up the work-types referred to. It was consequent upon Mr Horton's advice that the respondent issued its decision of 21 August 2008 declining to fund the computer technology course. As earlier noted, the appellant nevertheless commenced that two year course in July 2008 and duly completed it some two years later. . The appellant sought a review of the respondent's decision and a review hearing took place on 23 March 2009, at which the appellant was represented by Mr Murray. In a decision dated 20 April 2009, the Reviewer, Mr J Greene, ruled that the respondent had correctly declined to fund the two-year Diploma course by reason of the appellant already having sufficient experience, education and training to be considered for employment with a different employer. [6] I have already noted the work studies which the appellant engaged in following his arrival in New Zealand, and it is the case that the appellant's transferable skills and abilities were identified by the Occupational Assessor, Mr Horton, as making him suitable for employment in 14 different work-types, which he set out in his report. [7] In his Medical Assessment of the appellant's medical ability to engage in those 14 work-types, Dr Smith assessed 12 of the 14 work-types as being medically sustainable. [8] It was shortly after that assessment that the appellant made his application to undertake the two-year Diploma course at CPIT. It seems to be the case that he asserted that many of the work-types which had been identified could not be undertaken by him without further occupational undertaking. [9] It was as a consequence of this contention that the respondent sought the opinion of Mr Horton and for the purposes of his report he carried out specific enquiries within the industries concerned. It was his advice following those further enquiries that the appellant already had sufficient skills and abilities to engage in those various work- types which he had earlier identified. [10] In his submissions to the Court, Mr Murray contended that the respondent had a responsibility to return the appellant to employment that was employment to the maximum practical extent and which would be in employment where he would receive 5 comparable earnings to that which he had earlier enjoyed. Mr Murray submitted that the two year Diploma Course would enable the appellant to be fully qualified to engage in such suitable forms of employment and which would be above the entry level position that a number of the work-types identified were referring to. [11] Mr Evans, Counsel for the Respondent, submitted that the evidence was clear that the appellant was already experienced in many fields and was well-qualified, and as identified by Mr Horton, had the ability to undertake a broad range of work-types. Counsel submitted that the statutory provisions did not require the respondent to substantially improve a claimant's training skills or experience through specific vocational rehabilitation, particularly where a claimant already had sufficient skills to perform work-types identified. Counsel referred to earlier decisions of this Court to that effect. DECISION [12] The issue in this appeal is in effect whether the respondent was obliged to fund the appellant's two-year Diploma course at CPIT as had been requested of it. [13] I consider that the relevant statutory provision is that of section 87(1)(c) which states: "In deciding whether to provide vocational rehabilitation the Corporation must have regard to whether the vocational rehabilitation is appropriate in the circumstances." [14] In the case of this appellant there is clear evidence that he is/was a person of significant ability and had shown this in the manner in which he had engaged in up- skilling himself in a number of capacities, and his history in that regard is well identified by Mr Horton in his Occupational Assessment Report. [15] The evidence from the Occupational Assessment and the Medical Assessment identifies that the appellant did have the ability to engage in a range of work-types and that his existing level of qualification was more than sufficient for him to be acceptable in those work-types. [16] In those circumstances, therefore, I find that the further vocational rehabilitation which the appellant sought, whilst it may have been desirable from his own personal perspective, was not appropriate in the circumstances from the respondent's perspective, as it was not a cost which was appropriate for the respondent to provide. 6 [17] If it had been the case that the appellant's physical condition prevented any of his then existing occupational abilities from being able to be used then it would be a case where further vocational training would be necessary and appropriate in order to return the appellant to the workforce. [18] That state of affairs does not exist in this case as I find the evidence establishes the appellant is quite capable, both from an occupational and from a medical perspective, of returning to the workforce. It is therefore the case that the purpose of vocational rehabilitation, as contained in section 80 of the Act, cannot be said to apply in the case of this appellant. It is stated in section 80 that the purpose of vocational rehabilitation is to help a claimant, as appropriate, to obtain employment. The appellant already has the abilities necessary to achieve that purpose. [19] For the foregoing reasons, therefore, I find that the respondent was correct in its decision to decline to fund the appellant's two-year Diploma course at Christchurch Polytechnic Institute of Technology. Accordingly this appeal is dismissed. DATED this 30 day of March 2012 M J Beattie District Court Judge