Graham v Accident Compensation Corporation

HE DISTRICT COURT HELD AT WELLINGTON Decision No. 100 /2007 Al 287/02 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to section 162 of the Act BETWEEN ROSS GRAHAM Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The Application [1] The appellant seeks leave to appeal against the 25 June 2003 decision (no. (37/2003) of Judge Cadenhead that the appellant had capacity for work as a clerical assistant and warehouse receiver. The appellant had injured his back in 1992. [2] The respondent opposes the application on the basis that the appellant has not identified any question of law requiring determination by the High Court. [3] Under s. 162 of the 2001 Act, a party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. [4] It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law as appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law and a Judge's treatment of facts can amount to an error of law. [5] Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course 2 The Submissions for the Applicant [6] In his submissions for the applicant/appellant, Mr A R V Rowlett, advocate, seems to be endeavouring to reopen the issues of fact and law thoroughly dealt with by Judge Cadenhead. [7] Mr Rowlett puts it that he outlines four specific points of law in his submissions in support of this application. The first question seems to be whether the fact of an insured agreeing to an individual rehabilitation plan, irrespective of the contents of that plan, is a "decision" within its meaning in s. 13 of the 1998 Act. He referred to Judge Cadenhead having stated in his decision: '[21] ... (vii) ... I am of the view that the IRP is only able to be reviewed if it contains or modifies entitlements and the section must be read as a whole, as predicated by Judge Beattie." [8] I agree with Judge Cadenhead. [9] Mr Rowlett's second question seemed to be that, ancillary to the above question, is an IRP a statutory entitlement under the 1998 Act and, if so, is failure by the respondent to comply with cl.31 of Schedule 1, when preparing an IRP, a ground of review with regard to that entitlement? Clause 31 details information which the insurer must provide to a covered person on the preparation of an IRP. [10] The third question formulated for the appellant seems to be whether the respondent failed to comply with cl.31 when preparing the IRP because the Fact Sheet (allegedly) did not fulfil the requirements of the respondent's obligations under that clause. Mr Rowlett puts it that Judge Cadenhead made no comment or ruling in that respect other than to note a submission of Mr Rowlett to that effect. Accordingly, the precise question on that point, which Mr Rowlett would like put to the High Court, is "Do the words in the Fact Sheet that "you are also most welcome to bring any support people to meet with your case manager when your plan is being prepared" adequately and legally fulfil the mandatory requirement of clause 31(1)(c) to provide information about the insured's right to have a representative involved in the preparation of the plan?" To me, it is obvious that those words in the Fact Sheet are adequate although they could have been expressed better in order to reflect clause 31(1(c). [11] Mr Rowlett's 4" question is that the High Court consider the consequences of the respondent's alleged failure to advise regarding review rights when putting the RP to the appellant for agreement and to comply with cl.31 when preparing the plan. Analysis [12] Judge Cadenhead particularly found that he could see nothing in the many procedural objections raised by Mr Rowlett for the appellant. In response to the more substantive challenges to completion of rehabilitation and to both the occupational and medical assessments, Judge Cadenhead found that ACC had reasonably attempted to rehabilitate the appellant over a period of time and rehabilitation was complete. Judge Cadenhead referred to the overriding question of reasonable use of discretionary power and concluded: '[37] .. the broad issue must be having regard to the legislation whether the discretionary power is being exercised in a reasonable and proper way to 3 achieve the statutory intent of the legislation. Concentration on the minutiae of legal reasoning may be unhelpful.' (13] Three of the four questions of law which Mr Rowlett seems to identify appear to relate to whether review rights needs to be provided with an individual rehabilitation plan despite there being no particular decision in that plan affecting entitlements. While those questions, which all relate to the need to provide review rights with an IRP, could in the light of Weir v ACC (CIV 2003/485/1921, 18 August 2004 per Miller at Wellington) arguably raise a question of law, Mr Rowlett has not shown how determining such a question in this case could have any material impact on the outcome of the appellant's assessed capacity for work. [14] Judge Cadenhead concluded that any procedural irregularities which there might have been in this case were insufficient to have any effect on the eventual outcome, namely, that taking into account the completion of proper rehabilitation and appropriate occupational and medical assessments, the claimant had a capacity for work in the two identified occupations. I agree with counsel for ACC that is a factual assessment and the particular procedural questions identified are incidental to that factual finding. [15] In Weir, the High Court specifically acknowledged that its conclusion was limited to the provisions of the Injury Prevention, Rehabilitation, and Compensation Act 2001. The Court noted that cl.34 of the Accident Insurance Act 1998, which applies here, was in different terms. While there may be a hypothetical and historical question relating to any right to review an IRP, that question will always be incidental to the Court's conclusion reached on the facts. That clause 34 reads: "34. Review and appeal rights - (1) For the purposes of Part 6, in putting a plan to an insured for agreement, the insurer makes a decision. (2) The fact that an insured has agreed to a plan does not affect his or her rights to make a review application or bring an appeal under Part 6 with respect to the entitlements provided in the plan." [16] At para [42] of Weir, Miller J stated: "[42] I conclude that the IRP in this case is reviewable, not because there is an independent right of review in clause 9 but because it was a decision on the claim for the purposes of s. 134(1)(a). The claim referred to is that lodged by Mrs Weir under s.48 for an entitlement in the form of weekly compensation." [17] In the present case, the IRP did not make a decision on the claim. [18] At para [47] of Weir, Miller J stated: "[47] However, there was no attempt to comply with s.77, which requires ACC to assess the claimant's needs for rehabilitation when preparing an IRP. With respect to vocational rehabilitation, an assessment must be made under ss. 89- 96. Where an IRP has previously been prepared, ACC's obligation is to update it under s.78 to reflect the outcome of assessments done and progress made under the plan. I record that the case was not presented to me on the basis that ACC was merely updating a previous IRP and therefore did not have to undertake a formal assessment. Although IRPs had been prepared in the past, 4 it appears that no formal vocational assessment had been done, because the goal had been one of regaining independence." [19] However, it is not suggested that, in the present case, there was any deficiency in the formal vocational assessment. [20] The other purported question of law formulated by Mr Rowlett appears to relate to a person's right to have a representative involved in the preparation of an IRP. It is put for ACC that cannot sensibly raise a question of law because it is a simply factual question about whether the particular wording used by ACC in a Fact Sheet was sufficient. It seems to me that a question of law is involved; but it is not necessary or appropriate to refer it to the High Court on appeal because the appellant has not shown how it could have a material affect on the assessment that the appellant has capacity for work in the two jobs identified. Conclusion [21] I do not think that the questions formulated by the advocate for the appellant raise any questions of law warranting an appeal to the High Court. Accordingly, the application for leave to appeal is hereby refused. DATED at WELLINGTON this 12 th day of June 2007 P F Barber District Court Judge WELLINGTON Al 287-02.doc(aw)