Parata v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 183 /2009 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN SHANE PARATA (Al 333/08) Appellant AND ACCIDENT COMPENSATION CORPORATIC Respondent HEARD at PALMERSTON NORTH on 11 September 2009 APPEARANCES Mr N King, Advocate for Appellant Ms A Douglass, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 22 February 2008, whereby it declined to provide funding for the appellant to complete a Dive Instructor's Course, being a request from the appellant for his vocational rehabilitation. [2] The reason given by the respondent for its declination the appellant's application was that it was not appropriate to provide further vocational rehabilitation to the appellant, he having been determined as having attained vocational independence. [3] In conjunction with the hearing of this appeal, the Court has also heard submissions from the parties in relation to the correctness or otherwise of the respondent's decision of 30 January 2008, determining that the appellant had attained vocational independence. The Court has issued a separate decision in relation to that matter, and where it was the principal submission on behalf of the appellant that his vocational rehabilitation had not been completed as there was still outstanding the prospect of the appellant undergoing the dive instructor's course, which is at the centre of this appeal. 2 [4] In that decision, I determined that the appellant seeking to undertake a dive instructor's course was only a possibility, but that in any event the appellant had not advanced the matter to any stage where it could be considered to be an application for entitlement [5] It was for that reason that I found both as a matter of fact and law that the respondent was correct both substantively and procedurally to have determined that the appellant had attained vocational independence. [6] It is the case that that was the status of the appellant when he lodged his application for further vocational rehabilitation by way of funding for the diving instructor's course on 5 February 2008. [7] Mr King, for the appellant, submitted that even though a decision determining vocational independence had been made, nevertheless as at the date that the appellant had made his application for further vocational rehabilitation he was still in receipt of weekly compensation, and for that reason he satisfied the criteria contained in Section 85, that section stating as follows: 5 Corporation liable to provide vocational rehabilitation (1) The Corporation is liable to provide vocational rehabilitation to a claimant who - (a) has suffered personal injury for which he or she has cover; and (b)ls - (i) entitled to weekly compensation; or (ii) likely, unless he or she has vocational rehabilitation, to be entitled to weekly compensation; or (ifi) On parental leave. . .". [8] Mr King was making that submission, as I understand it, on the basis that the Court may find that the determination of vocational independence was correct [9] It was therefore his submission that despite that being the case, and which was the reason given by the respondent for its decision, nevertheless, by virtue of Section 85, the Corporation was required to consider the application on its merits, that is, by reference to the criteria contained in Sections 86 and 87 of the Act. [10] Mr King went further and advised that he was not contending that the Court should make a decision granting the entitlement, but rather he submitted that the Court should 3 direct that the matter be returned to review for the Reviewer to make a determination on the claim, looked at on its merits. [11] This procedure would only be implemented if the Court were to accept that the appellant did have a potential entitlement to further vocational rehabilitation, and that potentiality should be looked at from a merit perspective. [12] The Reviewer who heard and determined the Review decision in this matter was a different reviewer from that who had considered the correctness of the respondent's vocational independence decision. Indeed, the Review hearing took place some three months after the earlier review. [13] Ms Douglass, Counsel for the Respondent, submitted that the determination of vocational independence meant that the appellant was accepted as having an ability to engage in work for which he was suited by way of experience, education and training and therefore no entitlement to further vocational rehabilitation could be had. Counsel further supported the finding of the Reviewer, namely that the appellant's entitlement to weekly compensation would cease well before the dive instructor course could be completed, and therefore the appellant would not be within the criteria of Section 85 of being a person entitled to weekly compensation. [14] Ms Douglass went on to make several submissions in relation to the merits or otherwise of the application, but which can be encapsulated in the submission that the appellant had received all vocational rehabilitation that the respondent was liable to provide and had been determined as being a person who had the necessary skills and abilities to engage in a number of different work-types. DECISION [15] I interpret the respondent's primary decision as meaning that the appellant could not bring himself within Section 85 in relation to his application for further vocational rehabilitation. That section must be looked at in conjunction with Section 112 which states as follows: "112 Claimant with vocational independence loses entitlement to weekly compensation If the Corporation determines under section 107 that a claimant has vocational independence, the claimant loses his or her entitlement to weekly compensation three months after the date on which he or she is notified of the determination." [16] That provision, I find, makes it clear that the entitlement to weekly compensation is lost on a determination of vocational independence and therefore such a person has no entitlement to weekly compensation, even though a period of grace is given for its cessation after the date of that determination. [17] in those circumstances I do not consider that the respondent was required to consider the application on its merits, that is, by reference to the statutory criteria set out in Sections 86 and 87. [18] I find that it is axiomatic that if a person is identified and determined as having attained vocational independence, he or she cannot be a person to whom the respondent is liable to provide further vocational rehabilitation. [19] I do not propose to consider the merits of the appellant's application for the further vocational rehabilitation he sought, as I find that he cannot bring himself within the statutory criteria for eligibility to apply. [20] For the foregoing reasons, therefore, this appeal is dismissed. rd DATED this 23 day of October 2009 Jente's M J Beattie District Court Judge