Bernard v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 253 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN PHILIP ERNEST BERNARD of Nelson Appellant (Appeal No. DCA 205/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at NELSON on the 9th day of August 1999 APPEARANCE/COUNSEL N Burley for appellant A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct in its decision of 26 November 1998 to decline the appellant's request for support for one year to undertake a computing course at the Polytechnic. The background to the appeal is that the appellant was a self-employed builder who injured his right shoulder on 8 July 1997 while carrying a heavy load of timber. He was able to return to work on a part time basis as a result of which he has continued to receive abated weekly compensation. On 25 May 1998 Mr W Brabant, an 2 Orthopaedic Surgeon, indicated that the appellant suffered problems which he considered would deteriorate and his view was "treatment options are conservative if he likes to retrain and consider other types of work although this may be impossible at his age." A further report from Mr Mcfarlane, a Neurosurgeon, dated 1 September 1998 confirmed that his condition would remain static and that he had a pain and disability syndrome. As a result of those reports the respondent accepted that the appellant is not able to return to heavy work. The respondent then referred the appellant to Career Services for vocational assistance. He attended a ten day workshop for the purpose of identifying suitable work options as a result of which he considered two options. One was a marketing course which would take three years and the second was a computer study course which would take place over one year at the Polytechnic which was the option preferred by the appellant. On 26 November 1998 the respondent advised the appellant: Further to our interview today, I can now advise in writing of the decision to decline your request for assistance and support for you to undertake the Polytech course in computing. As discussed, the reason for this decision is based on Corporation policy in respect of training. It is considered that you have a range of skills that are likely to help you obtain employment and give you a capacity for work. I will discuss with you again in a week or so your ongoing rehabilitation and assistance to regain employment within your capacity. If you have any questions in relation to this letter, please contact me on the number below. Thank you. Your rights as an ACC claimant are outlined in the attached leaflets "You & ACC Working Together" and "Is There a Problem ?". This includes your rights to a review and details of the strict time limits (3 months) that apply to the review process." The appellant lodged an application for review of that decision but the Review Officer upheld the respondent's primary decision. It is against that decision which the appellant now appeals. Mr Burley submitted that: 1. The Review Officer erred in holding: (a) that the appellant had a capacity for work; (b) that the respondent had correctly interpreted sections 3, 18, 20, 22, 23, 50 and 51 of the Act; 3 (c ) that the respondent had properly considered all factors which it ought to have considered in exercising its discretion; (d) that the appellant had no legitimate expectation as a result of the respondent's assistance. 2. That it was because the respondent arranged for the appellant to attend the Career Services' course he was entitled to expect that it would result in his obtaining a suitable position. 3. That the respondent has made no offer of retraining which would substantially increase his employability. 4. That certain types of employment suggested for the appellant were unrealistic, having regard to his incapacity. Mr Barnett submitted: 1. That the Act provides that vocational rehabilitation is available to those who are entitled to or are likely to be entitled to weekly compensation. That by virtue of section 22 vocational rehabilitation is directly linked to the provisions of section 51(2) of the Act. 2. That the respondent has a discretion to decide whether or not the one year computing training course should be funded, particularly having regard to the fact that although the appellant could not regain his employment as a builder, he was physically capable of undertaking a wide range of employment. 3. That because the appellant applied for a review of the decision of 26 November 1998 before the respondent had considered the second limb of section 22 to "obtain employment", the application for review had "derailed" the respondent's opportunity to fully implement the provisions of section 22. There is no argument that there is a duty on the respondent to assist an injured person to be rehabilitated in order to "regain or acquire and use the skills necessary for optimal physical, mental, vocational, and social function (s.3)". Again, it is acknowledged that section 18 sets out the general objectives which are: "Every person who has suffered personal injury for which the person has cover under this Act is responsible for his or her own rehabilitation to the extent possible having regard to the person's condition and is entitled to the extent provided by this Act to rehabilitation necessary to enable the person to lead as normal life as possible, having regard to the consequences of his or her personal injury". In support of those objectives, when it was recognised that the appellant was no longer capable of returning to fulltime building work or work which necessitated heavy lifting, he was referred to the Career Services' workshop for the purpose of identifying work for which he was capable. 4 That workshop provided the two options of marketing or computing. The appellant elected the computing course which he considered would qualify this for a number of positions in the local community without the requirement of heavy lifting. The course, however, would take a year to complete the cost of which would be borne by the respondent and the appellant would continue to receive weekly compensation. Pursuant to section 23 the provision of payment for vocational rehabilitation is a discretionary issue for the respondent to the extent that the respondent considers it "appropriate" and "cost-effective". In the case of this appellant the respondent considered that the wide range of skills exhibited by the appellant in his CV demonstrated that he could undertake a number of administrative positions related to the building trade without the necessity of undertaking the proposed computer training course. It was after considering those issues that the respondent made its decision to decline his application. While the appellant submitted that the respondent has incorrectly intermingled the provisions of section 22 and sections 50 and 51, it is quite clear that section 22 requires the respondent to turn to section 51 when considering the appellant's "capacity for work". Section 51(2) states: "For the purposes of this Act, the term "capacity for work", in relation to any person, means the person's capacity to engage in work for which the person is suited by reason of experience, education, or training, or any combination of those things, and that capacity shall be determined having regard to the consequences of the person's personal injury." As Mr Barnett has submitted, the letter declining the appellant's application indicated that the appellant had a wide range of skills which would enable him to regain employment within his capacity and did not refer to the second limb of section 22 which was to "obtain employment". I agree with his submission and that before the respondent could embark on the second limb of section 22 it would have been necessary to arrange for a work capacity assessment but because the appellant had applied for a review of the decision issued on 26 November 1998 that further step has not yet been undertaken but is still an option open to both the appellant and the respondent. However, I consider that it was open to the respondent to exercise its discretion to decline the application on the grounds that it was not a cost effective exercise having regard to the appellant's well documented skills. While the appellant submitted that because of the advertisement placed locally in the newspaper by the respondent which indicated that assistance could be given to the appellant and others in his position, by way of vocational assistance, that meant that he could expect a job at the completion of the vocational training it is clearly not open to the respondent to give such an unequivocal guarantee. The purpose of vocational training is to assist the appellant to regain as far as can be within his then capacity the status which he previously had and to enable him to lead as normal a life as possible but there can be no guarantee on the part of the respondent that a suitable position will automatically be available (my emphasis) if the respondent approves a 5 particular training course. I do not accept the appellant's submission that he could claim a legitimate expectation to undertake the course and be guaranteed a job. As I have said, I agree with Mr Barnett that it is still open to the appellant to undergo a work capacity assessment with a view to obtaining alternative employment within his present capacity as contemplated by the second limb of section 22. For the reasons I have outlined the appeal is dismissed. DATED at WELLINGTON this $ 7/ day of September 1999 bwunddubai A W Middleton District Court Judge dca205-99.doc (nr)