Bermingham v Accident Compensation Corporation

IN THE DISTRICT COURT AT CHRISTCHURCH [2015] NZACC 279 ACR 169/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN REBECCA BERMINGHAM Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 21 May 2015 Appearances: The appellant in person I G Hunt for the respondent Judgment: 24 September 2015 RESERVED JUDGMENT OF JUDGE L G POWELL [1] The appellant, Rebecca Bermingham, has cover for injuries suffered in 1988, 1994 and 1998, but over the years her relationship with the Corporation has been difficult. 2] The present appeal arises because Ms Bermingham's entitlements, and in particular her entitlement to weekly compensation, were suspended by the Corporation by decision dated 27 November 2008 when she failed to attend an Initial Occupational Assessment ("IOA") that had been arranged by the Corporation. [3] The Corporation's decision was made pursuant to s 117(3)(a) of the Accident Compensation Act 2001 which provides: 117 Corporation may suspend, cancel, or decline entitlements . . . (3) The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to- (a) comply with any requirement of this Act relating to the claimant's claim; or (b) undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or (c) agree to, or comply with, an individual rehabilitation plan [4] The responsibilities of a claimant like Ms Bermingham are in turn set out in s 72(1) of the Act which relevantly provides: 72 Responsibilities of claimant who receives entitlement (1) A claimant who receives any entitlement must, when reasonably required to do so by the Corporation,- . . (e) undergo assessment, at the Corporation's expense: (f) co-operate with the Corporation in the development and implementation of an individual rehabilitation plan g) undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation's expense: (h) participate in rehabilitation. [5] There is no dispute that Ms Bermingham did not attend the scheduled assessment on 27 November 2008 but she none the less applied for a review of the decision, was unsuccessful, and has now appealed. At appeal Ms Bermingham has challenged the decision on the basis that the requirement to attend the IOA assessment was: [a] Inconsistent with the outcome of a review decision dated 7 September 2005 ("the 2005 review"); [b] Inconsistent with a mediated agreement reached between Ms Bermingham and the Corporation dated 10 June 2008 ("the mediated agreement"); [c] Premature, as the Corporation could not require Ms Bermingham to undertake an IOA because at the relevant time she did not have a current Individual Rehabilitation Plan ("IRP"); and [d] Otherwise inappropriate, as the proposed IOA assessor, Stephen Bentley, was not independent of the Corporation and otherwise was of "poor reputation". [6] The issue to be determined in the appeal is whether any of these matters provide a reasonable basis for Ms Bermingham refusing or failing to undertake the IOA assessment as requested by the Corporation. The 2005 Review and the Mediated Agreement [7] The 2005 review arose out of an earlier decision by the Corporation dated 10 January 2005 to suspend Ms Bermingham's entitlements pursuant to s 117(1) of the Act on the grounds that Ms Bermingham's need for ongoing entitlements was no longer due to her personal injuries. [8] After considering the evidence before her, reviewer Shirley Welsh reached the following conclusion: Although there are numerous medical reports on Ms Bermingham's file, I consider that ACC needs to make further investigations. ACC needs to establish from an appropriate expert who has examined Ms Bermingham, and considered all the medical reports on her file, whether here is a causal connection between her current condition and her covered injury. The specialist that is best able to determine this would be a musculoskeletal specialist. I therefore quash ACC's decision to suspend Ms Bermingham's entitlements and direct it to obtain the opinion of a musculoskeletal specialist as to whether Ms Bermingham's current condition is more likely than not to be causally connected to her covered injury. Those injuries for which Ms Bermingham has ACC cover must be drawn to the specialist's attention. After ACC has obtained such a specialist report, it is to consider it and make a new decision with fresh review rights. Pending obtaining the specialist's opinion, ACC must reinstate and backdate Ms Bermingham's entitlements. [9] In accordance with the 2005 review Ms Bermingham's entitlements were reinstated and Ms Bermingham was assessed by Dr Mark McLaughlin, musculoskeletal pain specialist, on 3 October 2005. As a result of Dr McLaughlin's report various decisions were then made by the Corporation with regard to Ms Bermingham's entitlements of which the most significant was a decision of 9 September 2006. The 9 September 2006 decision determined that Ms Bermingham had in fact been continuously incapacitated from November 1998 to the date of the decision and was therefore entitled to backdated weekly compensation for the entire period. [10] Despite this decision difficulties arose in determining whether Ms Bermingham had received all that she was entitled to from the Corporation as well as what further treatment needed to be provided. As a result the parties went to mediation on 10 June 2008 with the outcome being the mediated agreement which provided: ACC will write to Mr Bell [Ms Bermingham's accountant] detailing in relation to weekly compensation how it was calculated and confirming whether or not it has been correctly and fully backdated. 2 ACC will issue a decision in regards to treatment costs from 17" April 2008. 3 ) Dennis Lyons [ACC case manager] will undertake a full audit of Rebecca's file, look at: Has ACC fully enacted the review decision from 2005? Has ACC complied with previous agreements reached by both parties, with specific focus on areas of weekly compensation, medical expenses, transport costs and other entitlements? 4) The parties have agreed that Dr Tait is the appropriate specialist for ACC to seek an opinion of current treatment and make recommendations for future treatment. As part of that process, ACC will prepare a draft referral letter which it will send to Mr Bell and to Rebecca. Along with this letter, ACC will send a schedule of medical reports that it proposes to send to Dr Tait. ACC will no longer use Dr Jury Snyman's report for any purposes. ACC will send the draft referral letter to Mr Bell and Rebecca within ten working days of the date of this agreement. Mr Bell and Rebecca will reply to ACC within ten working days of receipt . [11] Implementation of the mediated agreement proceeded slowly. Various calculations were carried out by the Corporation and provided to Ms Bermingham and her advisers with regard to the backdated weekly compensation and decisions were also made with regard to treatment costs, while other investigations/audits were undertaken with regard to a range of matters. With regard to the proposed referral to Dr Tait set out in paragraph 4 of the mediated agreement, no agreement was able to be reached as between Ms Bermingham and the Corporation with regard to the referral letter, and although the Corporation eventually unilaterally finalised a referral letter to Dr Tait, no assessment had in fact taken place by the time the appeal was heard. [12] Despite this, having considered both the 2005 review decision and the mediated agreement as well as the relevant correspondence of both parties that relate to those documents it is clear that even if as Ms Bermingham asserts there remain matters still to be implemented in respect of either the 2005 review decision or the mediated agreement those matters are simply not relevant to the issue of whether Ms Bermingham was required to undertake an IOA. [13] In particular it is clear that nothing in either the 2005 review decision nor the mediated agreement require all matters to be finalised before any other steps could be taken with regard to the administration of Ms Bermingham's claims or that the request by the Corporation for Ms Bermingham to attend an IOA is otherwise in any way inconsistent with either party's obligations under either of the documents. [14] Specifically, it is clear that initiating an IOA was not dependent on all matters having been completed in either the 2005 review decision or the mediated agreement. There is in fact no connection between any of the matters considered the 2005 review decision or the mediated agreement. Instead an IOA is one of the two assessments required pursuant to s 89 of the Act in order to determine a claimant's vocational rehabilitation needs. In particular, an IOA is required to "identify the types of work that may be appropriate for the claimant". Importantly the nature of the IOA does not require any medical assessment whatsoever. Instead the focus is on the claimant's work history and work skills with medical issues standing to be considered as part of the second limb of the initial assessment process, the initial medical assessment required by s 89(b) of the Act. Thus, any argument over the terms of the referral to Dr Tait, the Corporation's ultimate unilateral finalisation of the referral or indeed the fact that no assessment by Dr Tait had taken place, is entirely irrelevant. [15] Instead the case law is entirely clear that the Corporation is entitled to require a claimant to undertake initial occupational and medical assessments from time to time. In particular in Print v Accident Compensation Corporation Judge Barber summarised the position as follows: "[24] Respective obligations of claimant and ACC in relation to vocational rehabilitation, with specific reference to a claimant's obligation to attend an TOA or IMA, were considered by Judge Cadenhead in Atley (271/2004) where he held: "[45] The Corporation is required under section 75 of the 2001 Act to prepare an individual rehabilitation plan (IRP) in consultation with the claimant. Pursuant to section 77 the Corporation is required to assess a claimant's needs for vocational rehabilitation under sections 89 to 96. [46] Section 78 provides that an IRP "must be updated from time to time to reflect the outcome of assessments done and progress made under the plan." The purpose of vocational rehabilitation, as prescribed at section 80, is to help a claimant maintain employment, obtain employment or regain or acquire vocational independence. [47] Section 89 provides that the assessment of a claimant's vocational rehabilitation needs "must" consist of an IOA and IMA. [48] Accordingly, the Corporation has an obligation to prepare an IRP In doing so the Corporation must arrange an IOA and IMA. The purpose of an IOA and IMA is to provide guidance to the Corporation and the claimant in relation to that claimant's vocational rehabilitation needs. [49] The requirement by the Corporation then, that the appellant attend the IOA, was not only reasonable but required under the 2001 Act." [25] In Print (394/04) Judge Beattie stated: "I find as a matter of law that it is not open to a claimant to refuse to undergo an IOA or an IMA because he does not think it appropriate and if a claimant elects to not comply then that claimant must suffer the consequences provided for in Section 117(3) of the Act. The assessment of a claimant's vocational rehabilitation needs is a precursor to any vocational rehabilitation initiatives that may be sought to be commenced, either on the direction of the respondent or at the request [2006] NZACC 311 of the appellant. It is not of itself part of the rehabilitation process other than being the vehicle by which the parties are informed of what may be appropriate or necessary by way of rehabilitation for a claimant. The requirement which the respondent gave to the appellant was one made pursuant to a statutory imperative. It was an administrative requirement and one not open to refusal in the ordinary course. There were no such reasons for refusal in the case of this appellant. It is also the case that this requirement is not a reviewable decision within the meaning of the Act." [26] In a series of subsequent decision (Henderson (396/2004), Millin (397/2007), Gibb (122/005) and Mckean (132/2005), Judge Beattie considered the effects of an IRP which contained within it, as its sole steps, referral of a claimant to the Initial Occupational Assessment ("IOA") and the Initial Medical Assessment ("IMA") procedure under the Act. In each of those cases, Judge Beattie held that, while reference to a claimant undertaking initial assessments was often included in the IRP, they are outside the true nature and purpose of the IRP. It is not open to a claimant to question the right of ACC to require that the claimant undergo the IOA and IMA. Both assessments are precursors to identifying what is appropriate rehabilitation for a claimant, and for the inclusion in the IRP thereafter of the necessary initiatives which had been identified by those assessments. [16] Given this position, I conclude that neither the 2005 review decision nor the mediated agreement provide any reasonable basis for Ms Bermingham's refusal to undertake the IOA. Requirement for a Current Individual Rehabilitation Plan [17] The primary argument advanced on behalf of Ms Bermingham both immediately before and after the Corporation suspended her entitlements in November 2008 was that such an assessment was premature in the absence of a current IRP. [18] In particular, it is apparent having considered the correspondence of both Ms Bermingham and her then solicitor, as well as the submissions made by Ms Bermingham in the present appeal, that both misinterpreted the nature of the assessment that the Corporation required to be undertaken. Specifically by referring to s 107 and s 110 of the Act it is clear that both Ms Bermingham and her then solicitor appeared to have been of the view that the assessment that Ms Bermingham was required to attend was a Vocational Independence Occupational Assessment which forms part of the vocational independence process rather than an IOA which as noted above is used to determine whether or not vocational rehabilitation is required by a claimant. The difference is substantial. While a VIMA would indeed have been premature in the absence of an up-to-date IRP, rather than being premature, an up to date IOA is in actual fact a prerequisite for the development of an IRP. [19] Although it appears that Ms Bermingham was mistaken, her mistaken belief did not and does not provide a reasonable basis for refusing to undertake the assessment. In particular I am satisfied that the nature of the assessment was made quite clear by the Corporation prior to the assessment being arranged as well as Ms Bermingham's obligation to attend it. For example in the course of a letter dated 17 September 2008 the Corporation's case manager Brad Meek wrote to Ms Bermingham's former solicitor in the following terms and which was copied to Ms Bermingham the next day, without dispute the Corporation's analysis of Ms Bermingham's obligations with regard to attend an IOA: I also note that Miss Bermingham's latest ACC18 medical certificate states [in part]: "state suitable alternative work tasks/duties (if any) study and retraining. I also note that Miss Bermingham's Individual Rehabilitation Plan does not contain any current rehabilitation interventions. I am also aware from Miss Bermingham's file that she underwent Initial Occupational Assessment and Initial Medical Assessment on 24/10/2003 and 18/1 1/2003 respectively. However, I note that at the mediation held on 10/6/2008 that Miss Bermingham stated that her condition had considerably improved and presented documentation to illustrate that point. ACC considers that it is appropriate to require Miss Bermingham to undergo initial Occupational Assessment and Initial Medical Assessment again. The requirement for Miss Bermingham to do so is set out in Section 72(1)(g) of the [Act]. Please note that several District Court decisions make it explicitly clear that if ACC requires a client to attend these assessments then they must do so 'without demur'. I refer you to the decision of Print (394/2004), Millin (397/2004), Henderson (396/2004), Gibb ( (122/2005), Newman (277/2006), and Print (311/2006) among others. (20] The Corporation's letter clearly and correctly reflected the law as it stood and as it continues to stand with regard to the obligation for Ms Bermingham to attend an IOA assessment. There was simply no basis for her not to attend and as a result Ms Bermingham's continuing refusal or failure to attend was clearly unreasonable. Issues with the Proposed Assessor [21] As I noted at the hearing there was absolutely no evidence placed before the Court that the proposed assessor, Mr Bentley, was not independent, was of "poor reputation" or was otherwise inappropriate or unqualified to undertake the IOA. I therefore conclude that the type of criticisms made by Ms Bermingham provide no arguable basis for refusing to undertake the IOA as required by the Corporation. Conclusion [22] For the reasons set out above I consider that from any point of view the evidence shows that Ms Bermingham's refusal or failure to undertake the IOA when requested to do so in November 2008 was unreasonable and that as a result the Corporation's decision to suspend her entitlements was indeed correct. Decision [23] The appeal is dismissed. There is no issue as to costs. Judge L G Powell District Court Judge ACR 169-11-Bermingham