Norris v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION NO. 46 /2008 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 139/07) BETWEEN ROBERT NORRIS Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 20 November 2007 Appearances: Ms M C Kavanagh for appellant Ms A J Douglass for respondent Judgment: 28 February 2008 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns a decision by the respondent dated 26 August 2005 declining to provide weekly compensation to the appellant on the ground that he had unreasonably failed to provide consent to the respondent to obtain an initial occupational assessment and an initial medical assessment. The decision was made under to s 117(3) of the Injury Prevention, Rehabilitation and Compensation Act 2001. [2] The appellant gave only a conditional consent for disclosure of the assessment. The central ground for the appellant's position is that the Corporation had itself failed to provide statutory information to the initial occupational assessor and that there was no proper assessment for the appellant to consent to disclosure. ROBERT NORRIS V ACCIDENT COMPENSATION CORPORATION DC WN DECISION NO. /2008 [28 February 2008] [3] In 1991, following back surgery for a covered injury, Mr Norris developed meningitis which left him with a brain injury and cognitive impairment. He has cover for the consequences of meningitis. The extent of his disability was described in August 2001 in a neuropsychological report by Dr Kris Fernando as follows: 'Attending to, processing and manipulating information is a considerable problem for Robert which means that he has some problems with taking in and processing complex and large amounts of information. Working out things in his head is also very difficult for Robert. Robert now learns new aural/verbal information at a slow rate and he has problems with encoding information in long-term storage. He tends to recall relatively well that aural/verbal information which he has managed to encode in long-term storage. Learning and recalling complex visual information is a significant problem for Robert. Since the meningitis, Robert has experienced more difficulty with thinking flexibly. He tends to become locked into one mode of thinking and then finds it difficult to shift his stance. Novel problem solving tasks are very difficult for Robert and he becomes confused if his routine is altered by unexpected events. Robert's speed of psychomotor responding is within the average range but the rate with which he can process information is slowed down. I consider that the spinal meningitis has had a very adverse [effect] on Robert's cognitive functioning, immediate and working memory abilities, learning and recalling verbal and visual information, rate of processing information, flexibility in thinking and novel problem solving. Robert becomes easily cognitively fatigued which means that he needs to have regular breaks throughout the day." Rehabilitation [4] After various interventions, an initial occupational assessment appointment was scheduled by Catalyst Injury Management for 1 May 2003 and again for 28 May 2003. On both occasions the appellant failed to attend. He applied to have his file transferred to ACC's Takapuna Branch for management. The request was approved and the file was transferred to the Takapuna Branch. At the beginning of 2005 ACC renewed efforts to advance the appellant's rehabilitation and, on 28 January 2005, wrote to the appellant to arrange a meeting for 14 February 2005 to discuss rehabilitation. [5] The appellant wrote to ACC on 11 February 2005 to advise that he would not attend as he wished to receive more information from ACC on the proposed content of the discussions at the meeting. ACC replied on 23 February 2005 providing an explanation and noting the appellant's request for social rehabilitation assistance. [6] Mr Alan Thomas then wrote to ACC to advise that he was acting as advocate for the appellant. ACC later advised both Mr Thomas and the appellant that it was not prepared to deal with Mr Thomas, described as "spokesperson" for the appellant. The reason for that was apparently that the Corporation had a history of dealings with Mr Thomas and it was thought that Mr Thomas' intervention would be an obstacle to reasonable communications between the Corporation and the claimant. [7] The Corporation arranged a meeting with the appellant for 8 March 2005 to discuss his rehabilitation. It arranged for a facilitator to attend the meeting. The appellant did not attend. On 10 March 2005 ACC wrote to the appellant to advise that a new appointment had been arranged for 16 March 2005 and that if he unreasonably failed to attend the meeting his entitlement to weekly compensation would be suspended. The meeting proceeded on 16 March 2005. The appellant attended but the meeting was unsuccessful. The Corporation recorded what had happened in a letter to the appellant on 18 March 2005 as follows: "ACC wrote to you on 10 March 2005. We asked you to attend a meeting in the office for the purpose of discussing a Individual Rehabilitation Plan between you and ACC. We advised you that Mr Alan Thomas was not welcome to attend the meeting. We advised you that you were welcome to bring along someone else as a support person, You attended the meeting but would not participate in the discussion of any rehabilitation strategies. You insisted on phoning Mr Thomas and would not continue discussion about your rehabilitation without Mr Thomas's involvement in the meeting. ACC has determined that this behaviour constitutes a failure to attend the meeting for the purpose of negotiating an Individual Rehabilitation Plan. As a consequence, ACC will not provide weekly compensation from 26 March 2005. This support will be restarted if you do subsequently attend a meeting with ACC and participate constructively in the development of a rehabilitation plan. However, the payments will not be backdated." [8] A further meeting was arranged for 30 March 2005 and the appellant's weekly compensation was reinstated when he attended that meeting. [9] On 6 April 2005 the Corporation sent to the appellant a draft individual rehabilitation plan (IRP) and on 19 April 2005 the Corporation wrote to require the appellant to undertake an initial occupational assessment (IOA) and initial medical assessment (IMA) before preparing an IRP. The appellant was requested to select assessors for the two assessments. The Corporation also wrote to the appellant to confirm that it would arrange for a social rehabilitation assessment and that the results of that assessment would also be considered when an IRP was prepared. The Corporation informed the appellant that his consent was required to obtain the reports for the IOA, IMA and the social rehabilitation assessment. The appellant was informed that the consent was required pursuant to sections 72(1)(c), (f) and (h) of the 2001 Act. [10] On 2 May 2005 the Corporation made a referral to Ergowise for a social rehabilitation assessment and confirmed this to the appellant by letter dated 5 May 2005. On 6 May 2005 Ms Vaughan of Ergowise advised that Mr Thomas had phoned her, pretending to be the appellant, and had been very difficult and argumentative on the telephone. Ms Vaughan's advice was documented in a file note dated 6 May 2005 and in particular, referred to her disquiet that Alan Thomas impersonated himself as a client and specifically introduced himself as Robert Norris over the phone. [1 1] No issue has been taken by the appellant contesting Ms Vaughan's opinion that Mr Thomas personated the appellant on the telephone. Ms Vaughan recorded that she was at first unaware, but was mystified by a difference in voice and attitude. When she discussed the telephone call with the appellant's case manager she was informed that Mr Thomas was assisting the appellant. She had conversed with Mr Thomas before and she was then confident that he was the person concerned. [12] On 13 May 2005 ACC wrote to the appellant about the proposed social rehabilitation assessment as follows, repeating its position that Mr Thomas would not be accepted as a support person. On the same day ACC also wrote to the appellant to advise that an IOA had been arranged for 30 May 2005. This letter stated: "Further to my letter of 27 April 2005 I am writing to advise that ACC has made an appointment for you to see Leigh Cowden of Taskmaster for an Initial Occupational Assessment. ACC has not provided any additional documentation to Mr Cowden other than what is noted on the referral form and I have enclosed a copy of the referral form for your information. You do however have a copy of your claim file in your possession. If you feel you would like to disclose particular documents to the assessor please take along your file and make available any documentation that you wish to do so. Please be advised that if you do not attend this appointment, or give ACC a reasonable explanation about why you have not done so, ACC will not provide weekly compensation from 30 May 2005. Whilst you are welcome to take along a support person to the assessment I must remind you that ACC does not recognise Mr Alan Thomas as an appropriate advocate or support person. He is not welcome to attend the assessment with Taskmaster or to participate in the assessment by phone. Should he attempt to do so ACC have instructed Mr Cowden to terminate the assessment. If the assessment needs to be terminated either because you do not participate in the assessment constructively or due to Mr Thomas's involvement, ACC will view such actions to be non-compliant which will result in your compensation being suspended from Monday 30 May 2005." [13] The letter appeared fairly heavy-handed, however the Corporation had evidently formed the view that Mr Thomas posed a significant obstacle to the proper administration and discharge of its obligations to the claimant. The impersonation incident was only one reason for that view. Thus far the Corporation's objection to Mr Thomas did not appear unreasonable. [14] There was however another problem. Attached to the letter was a copy of the referral to the occupational assessor, a Mr Cowden. It contained identification details and a description of the injury as: "Cognitive impairment secondary to chronic meningitis developed after spinal surgery, Lumbar spine dysfunction" [15] The form showed his occupation at date of injury as "Assistant Deli Manager-Supermarket" and for other headings under Employment details, such as employment tasks at date of injury it stated "Please discuss with Mr Norris". Ms Kavanagh submitted that the Corporation usually supplies a full list of previous medical and occupational reports for the assessor and submitted that the source of information for the assessment should not be left to the injured claimant, especially in this case where the claimant is brain damaged. The appellant says that the Corporation did not comply with s 91(2) of the Act. Section 91 provides: 91 Conduct of initial occupational assessment 1) An occupational assessor undertaking an initial occupational assessment must (a) take into account information provided by the Corporation and the claimant; and b) discuss with the claimant all the types of work that are available in New Zealand and suitable for the claimant; and ) consider any comments the claimant makes to the assessor about those types of work. (2) The Corporation must provide to an occupational assessor all information the Corporation has that is relevant to an initial occupational assessment [16] On 18 May 2005 Mr Thomas wrote to the Corporation about the incomplete information given to the assessor. He asserted that all previous initial occupational assessments had confirmed that the appellant's injuries permanently prevent a return to full-time employment. He then wrote: "So as to remove all doubt in regards to the Corporation's intentions to manage this file for vocational purposes Mr Norris first requires the Corporation to assemble the information intended for the purposes of any reporting and the purpose of that report to be clearly stated. Your letter dated 13 May 2005 clearly demonstrates you have no intention to comply with legislated procedures. Mr Norris does not have sufficient command of his entitlements to permit himself to reliably describe to any assessor any information as a result of his brain injury. The Corporation has further reduced referral information that is both incomplete and factually incorrect. Your letter confirms that you do not wish to correct this misrepresentative information on your referral. Your expectation that a brain damage person may properly speak for himself is irrational and not what is expected of a qualified case manager. Please refer your conduct to your supervisor. Mr Norris will attend any assessment but in accordance with the rights described in the Privacy Act will prevent any assessor from delivering private information to the Corporation until such time he is satisfied that the information is correct. The Corporation should assist incorrect reporting by providing any assessor with correct information. As the Corporation has not been permitted to disclose private information to a third party until this information is first checked the information submitted to the Corporation's assessor must first be approved. You are now instructed to supply a copy of the information you wish to assess. These protective measures entitled by legislation did not constitute a reasonable reason for the Corporation to believe that Mr Norris does not wish to participate constructively in his rehabilitation or that he is noncompliant to legitimate assessments. Please describe the purpose of the assessment together with the information you wish to assess with due particularity." [17] Mr Thomas wrote a number of other letters to the Corporation to similar effect. It appears that the Corporation maintained the view that Mr Thomas was not a suitable representative and did not, or at least did not always, reply to him. The case manager would have been in a difficult position, but the point about lack of statutory information given to the occupational assessor was a valid point and was not addressed. The appellant failed to attend the IOA appointment with Mr Cowden and on 31 May 2005 ACC wrote to the appellant seeking an explanation for his non- attendance. [18] On 22 June 2005 ACC received five facsimiles from Mr Thomas. On the same day Ergowise wrote a cancellation report in relation to the appellant's social separate rehabilitation assessment. The report noted that, after Mr Thomas had impersonated the appellant on 6 May some unsuccessful attempts were made in June to contact the appellant and the Corporation then advised Ergowise to give appointment dates by letter. An appointment was given for 22 June with a request for the appellant to confirm the appointment two days beforehand. He did not confirm or attend that appointment and after a further unsuccessful attempt to arrange an appointment Ergowise reported that no assessment had been done. [19] On 24 June 2005 ACC wrote to the appellant to advise that it had considered the appellant's explanation for his non attendance with Mr Cowden on 30 May 2005 and, while not satisfied that the explanation was reasonable, ACC arranged a new appointment for 6 July 2005 but did not provide the available reports to the assessor. On 6 July 2005 the appellant attended the IOA appointment with Mr Cowden. On that date Mr Cowden wrote to ACC to advise that the appellant had instructed him not to release the IOA to ACC until the appellant had had an opportunity to check the IOA to ensure that the appellant was satisfied with its accuracy. [20] On 28 July 2005 ACC wrote to the appellant requesting his consent to obtain copies of the IOA and IMA. The appellant was advised of his obligation under the legislation to provide the consent and the possible consequences if he unreasonably failed or refused. The letter was in these terms: "ACC wrote to you on 27.4.05, asking you to sign and return a consent for release of information form (ACC167), and you have not done so. Pursuant to section 72(1)(c), (f) and (h) you are required to authorise ACC to obtain medical and other records relevant to your claim as well as cooperate and participate in the development and implementation of a Individual Rehabilitation Plan. If you unreasonably refuse to do so ACC may decline to provide any entitlements for as long as you continue to unreasonably refuse or fail to do so. It has been indicated that you wish to view reports for accurateness prior to their release from the provider to ACC. ACC does not accept this explanation or process as reasonable. If there are matters in the body of the reports that you are not satisfied with, including its accuracy, you will have an opportunity to raise these concerns with ACC and the assessors subsequent to receipt of the reports. This is not a valid reason, however, for refusing to permit ACC to receive the reports in the meantime. I have enclosed a further ACC167 form to be completed. This is needed so that ACC can receive the report IOA and IMA assessment reports directly from the provider. You will also be sent a copy of the reports and have the opportunity to comment on any aspects that you feel warrant amendment. If you do not complete and return the form to ACC by 5 August 2005 confirming consent for ACC to receive these reports, or give ACC a reasonable explanation about why you have not done so by the same date, ACC will decline to provide weekly compensation to you from 6 August 2005 pursuant to section 1 17(3) of the 2001 Act. This compensation will be reinstated once you provide the consent to ACC. However, the payments will not be backdated." [21] In early August 2005, and in response to ACC's earlier request for consent to obtain copies of the IOA and IMA, ACC received from the appellant or from Mr Thomas a redrafted signed consent form. The following is most of the text of the consent: "The claimant acknowledges the need for the Corporation receive accurate information to the claimant's file so as to administer claims and entitlements properly in accordance with $72 ACC Act 2001. Whenever the Corporation makes reasonable requests for information requests will be particularised in writing so as to preserve an accurate record of what information is required, for what reason and in accordance with what particular portions of the Act. The claimant agrees to make the particular information available promptly once satisfied that the information request is proper and that the information assembled is correct, so as to preserve the integrity of the file ensuring a cost-effective delivery of entitlements. The Corporation is assured that Core Information requests such as Initial Occupational Assessment, Initial Medical Assessment, Vocational Independence Assessment, any other reasonable medical assessments will be verified so as to meet legislated standards and criteria prior to consent of delivery to the file from such third party assessors. As the Medical Council no longer supervise third party Medical Reports all such reports will be independently considered by the relevant medical treatment providers so as to preserve treatment protocols and funding entitlements that maintain the continuity of treatment integrity supervised by the Medical Council oversight for reasons of safety. The Corporation are expressly forbidden from making any inquiries seeking private information from any third parties. such as employers, colleagues, family, friends or members of the public, that have not been granted express written permission to release such information to either the Corporation, third party assessors or any Corporation information gathering and supplying agent, to the extent that the burden of liability under the Privacy Act is to be shifted from the person disclosing information to the Corporation requesting information. This form is designed to preclude inaccurate information coming into the possession of the Corporation that could cause any assumption that entitlements may be reduced. The information needed to be collected will be under the authority of separate written consents, will only be used in relation to the purposes of determining entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001. In the collection, use, disclosure and storage of information, the Corporation will at all times comply with the obligations and liabilities of the Privacy Act 1993, the Health Information Privacy Code 1994, Human Rights Act, New Zealand Bill of Rights Act, Summary Proceedings Act and cases of an employee/agent of the Corporation knowingly seek and submit information that may mislead the Judiciary, the Crimes Act. The claimant and/or representative will have free access to correct any information the Corporation holds about the claimant and agrees to allocate case management time as an overriding priority to correct such information found to be erroneous. On occasions where the Corporation has failed to address disputed information or correct Information known to be wrong, either reported to the Corporation or on the file, all previous consents will be rendered a nullity until the Corporation complies with the requirements to properly address disputed information and to cared wrong information during which time the Corporation agrees not diminish any entitlement. The Corporation accepts liability for all associated pecuniary losses. By accepting this pro forma consent the Corporation may not suspend any entitlement without failure of compliance to make available making a particular request for particular Intonation relevant to the claim and the Act." [22] On 12 August 2005 ACC wrote to the appellant to advise that the redrafted consent form was unacceptable and that a proper consent was required by 19 August 2005. The appellant was advised that failure to provide the proper consent may result in the suspension of his weekly compensation. On 13 August 2005 Mr Thomas wrote to ACC providing a four page response. The tenor of this letter was that the appellant alleged that information on the Corporation's file was incorrect and he would not provide a consent that could enable the Corporation to record further information that might also be incorrect. Therefore, he would consent only to the Corporation collecting information that he could first examine in order to ensure its correctness. [23] In my view, a consent in the form that was offered was not appropriate to enable the Corporation to obtain the reports required for the statutory process of rehabilitation. The Corporation was entitled to obtain the assessor's opinion and report, not a version corrected by the appellant, or withheld by the appellant if he was dissatisfied. The Corporation notified the appellant that it would provide him with a copy of the report for comment. It has a statutory obligation to do so. The Corporation therefore considered that the consent was so hedged with conditions that it obstructed the Corporation in performing its statutory obligations. The Corporation was therefore justified in requiring form the appellant an ordinary consent. The Corporation acted correctly in rejecting the form of consent. The process advocated by the appellant, through Mr Thomas, was designed to wrest control of the process from the Corporation and filter all information through the claimant. The potential advantage to the claimant is clearly outweighed by the important public interest in enabling the Corporation to effectively administer the statutory processes for compensation and rehabilitation. [24] On 26 August 2005 ACC wrote to the Appellant to advise that, as it had not received the consent, or a reasonable explanation for his refusal or failure to provide the consent, the appellant's entitlement to weekly compensation was suspended but would be reinstated once the proper consent was provided. Mr Thomas replied at length, but the Corporation maintained its position. That is the decision that is the subject of this appeal. [25] Mr Thomas lodged an application for review. In a decision dated 5 April 2006, the reviewer found that the appellant had acted unreasonably in not signing the consent form and that the Corporation acted reasonably in stopping his weekly compensation payments. Law [26] Section 117(3)(a) permits the Corporation to decline to provide entitlements where a claimant unreasonably refuses or unreasonably fails to comply with any requirement under the 2001 Act relating to a claimant's claim. Such power may be exercised by the Corporation where a claimant unreasonably fails or refuses to comply with an obligation under s 72. [27] An argument with some similarity to the present case was considered by Judge Cadenhead in Farquhar (176/05). A claimant refused authority for an assessment report to be given to the Corporation on grounds that it contained incorrect information. The information to which the claimant objected was not material to his claim. The Court considered the claimant's right under Rule 7 of the Health Information Privacy Code to have inaccurate portions of the medical reports corrected. There is no absolute right. Subpara (3) states: (3) Where an agency that holds health information is not willing to correct the information in accordance with such a request, the agency must, if so requested, take such steps (if any) as are reasonable to attach to the information, in such a manner that it will always be read with the information, any statement provided by the individual of the correction sought. [28] In the Farquhar case the objection was held to be unreasonable. In the present case it is argued that the respondent was at fault, and that it could not reasonably exercise its enforcement powers while not remedying its own error. Submissions [29] Ms Kavanagh for the appellant submitted that: (a) it was reasonable for Mr Norris to refuse to give consent until the ACC had fulfilled their obligations under 91(2) of the Act and (b) it was unreasonable for ACC to stop Mr Norris' weekly compensation for three reasons: [30] Ms Douglass submitted that the appellant could not refuse to provide his consent for the release of the IOA report simply because he believed that ACC had not properly provided all relevant documents to the assessor. The proper course was for the appellant to address those issues with the assessor and ACC. If not resolved to his satisfaction, then the matter could be pursued formally at review when an individual rehabilitation plan was issued. It was submitted that any alleged in inaccuracies or flaws with a report required under statutory process does not permit the appellant the right to refuse ACC consent to receive the report. To do so would create a situation where any report that a claimant does not agree with or believes does not represent his or her best interests could be withheld from ACC. The correct course is for the report to be disclosed and then for the claimant to highlight the alleged inaccuracies or flaws with ACC or the assessor. In this case, the appellant was expressly advised of this by ACC in its letter dated 28 July 2005. Ms Douglass submitted that any complaint of inaccurate information on the ACC file could be remedied by the appellant providing a correction once the report was done. [31] Mr Kavanagh submitted that ACC failed to provide to the occupational assessor all information the Corporation had that is relevant to an initial occupational assessment. Under s 91(1) an occupational assessor conducting an initial occupational assessment must take into account information provided by the Corporation and the claimant and s 91(2) places a positive obligation on the Corporation to provide to the occupational assessor all information the Corporation has that is relevant to an initial occupational assessment. It was submitted that the failure was significant when the appellant had a brain injury and cognitive difficulties. He was not ideally situated to provide relevant information and should not have been relied upon to do so. He was therefore properly concerned that the initial occupational assessment might not be correct. Mr Norris asked the ACC to provide the assessor with the relevant information for his assessment. He also asked that he be told what the information was first so that he could check that the assessor was given accurate information. Given that ACC have a statutory obligation to provide all relevant information to the assessor, it is submitted that this was a reasonable request. Decision [32] It is not disputed that the Corporation did not provide to the occupational assessor the information that it was required under s 91(2) to provide for an initial occupational assessment. The Corporation specifically advised the appellant that it had not provided any additional documentation to the assessor other than what was noted on the referral form. It is common ground that only the form was provided. [33] The referral occurred during a period of dispute between the Corporation and the appellant about representation by Mr Thomas, but that did not relieve the Corporation of the need for compliance with s 91. Quite why the referral was done in an usual way is not apparent. Possibly it was intended to give the appellant a clear field to convey his own information to the assessor so that he could not claim that the Corporation had polluted with waters with inaccurate information. [34] The question in the appeal is whether the Corporation acted unreasonably in stopping entitlements when the appellant did not give consent for the assessment to be provided to the Corporation. He notified the assessor that he did not consent, then he gave the Corporation only a form of restricted consent that did not reasonably meet the requirements for consent under s 72. [35] The appellant argued that s 72 only required authority to obtain records and not to give consent to disclosure of the result of an assessment. In my view the twin obligations under s 72 to undergo assessment and to authorise the Corporation to obtain records are intended to encompass the authority for the Corporation to obtain a completed initial occupational assessment. The Corporation has a duty to obtain such an assessment. Where the assessor requires the claimant's consent to release the information, s 72 must be intended to place the obligation on the claimant not only to undergo the assessment but also to facilitate the delivery of the assessment to the Corporation. It would be absurd if the claimant could be required to undergo the assessment and then be permitted to prevent it reaching the Corporation. [36] That is however what the appellant argues in this case, that is to say that he should have the right to edit or censor the assessment in order to ensure that the document reaching the Corporation is factually correct in the view of the appellant. The appellant argues that such a course would avoid having to persuade the Corporation to correct its records afterwards in the event of inaccuracy. I agree that there would be a benefit to the appellant in ensuring the accuracy of the Corporation's records, but such a process would be unrealistic and unworkable. An argumentative appellant could raise unjustifiable objections and prevent the Corporation from obtaining proper assessments. That is just what the Corporation anticipated in this case, in the event that Mr Thomas were to assist the appellant in his appraisal of the initial occupational assessment before it reached the Corporation. I do not consider that the statute could have been drafted to allow such potential disruption to an assessment process that has been legislatively devised to provide a basis for vocational rehabilitation. The answer to the appellant's concerns is that the Corporation is obliged by statute to provide to him a copy of the assessment, and would be obliged by dictates of reasonableness to place on the file a record of the appellant's objections to content. [37] There remains a technical problem in this case. It was put in argument on the basis that the Corporation could not reasonably suspend the appellant's entitlement on the basis of his failure to provide an authority to provide the Corporation with the assessment, when the Corporation had itself failed to provide the assessor with information that was required by the Act. [38] I consider that, on the facts of this case, the Corporation acted unreasonably. It has been said before that the suspension of entitlements is a grave step that should only be taken for sound reasons. In this case the Corporation had initiated a flawed process of assessment by failing to provide information to the assessor. In my view it was not reasonable to suspend the appellant's entitlements on the ground that he failed to give an unqualified authority for the Corporation to obtain the assessment. There was a clear reason why the Corporation could not use the assessment and the Corporation should first have addressed that problem and only then taken action under s 1 17 of the Act affecting the appellant's entitlement. [39] For those reasons the appeal is allowed. The appellant will have costs of $2,000 and reasonable disbursements. Judge D A Ongley District Court Judge