Raitt v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION NO. 136/2007 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 134/05 and 374/05) BETWEEN SHANE RAITT Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 19 February 2007 Appearances: Mr J Mccarthy for appellant Mr H A Evans for respondent Judgment: 21 June 2007 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal is a repetition of an argument that the Corporation is not entitled to require claimants to undergo successive initial occupational and medical assessments. [2] Mr Mccarthy's central argument is that the Corporation should not be entitled to recycle a claimant through the vocational independence assessment process without good reason. He submitted that many vulnerable claimants struggle with the fear of being periodically reassessed for full time work which they are in fact unable to sustain. He submitted that the reality is that many claimants who are assessed as vocationally independent are in fact unable to obtain work, and so they move from compensation to invalid benefits. He submitted that the statistics for SHANE RAITT V ACCIDENT COMPENSATION CORPORATION DC WN DECISION NO. 136/2007 [21 June 2007] increases in benefit dependency reflect the outcomes of vocational independence assessments. [3] The Court does not have evidence to support those contentions, but it is reasonable to accept that they have some validity. The appeal has to be considered in terms of the legislation, which cannot be interpreted in order to achieve broadly desireable social consequences, but which must be understood according to its text and in the light of its purpose, and should be given a generous and unniggardly interpretation: ACC v Mitchell [1992] 2 NZLR 436 at 438. [4] The purpose of referring to the social consequences of vocational independence assessments is to support a submission that s86, concerning matters to be considered in deciding whether to provide vocational rehabilitation, and s88 permitting vocational rehabilitation to start or resume if circumstances change, must be interpreted so as to provide some protection to claimants from an indiscriminate use of the Corporation's power to repeat the processes of assessment in order to remove claimants from the scheme. The argument is based on the proposition that revisiting vocational rehabilitation is often directed towards vocational independence to remove a claimant from the scheme without any genuine rehabilitation goal. [5] Mr Mccarthy submitted that the legislative history of the accident compensation statutes demonstrates a policy of permanence of compensation for severely injured victims. He referred to s60 of the 1982 Act which enabled the Corporation to make an assessment of permanent incapacity for earnings related compensation. Under that provision, a long term claimant could expect to continue to receive earnings related compensation without periodic reassessment. But it is not appropriate to extract an example of legislative policy from the 1982 Act and graft it upon the 2001 Act. The compensation statutes have changed along with shifts in legislative policy. The purpose of the present legislation can only be extracted from the text of the 2001 Act, with some limited exceptions based on conventional principles of interpretation. [6] A further argument advanced in support of the need for safeguarding the entitlements of claimants is the immunity of the vocational independence assessment process from challenge except when clear evidence of error can be found. Under ss 107 to 112 of the Act there is a statutory process that effectively assumes that the assessors' opinions are correct: see Ramsay v ACC (High Court Dunedin, AP 412/14/02, 12 December 2002, John Hansen J). Mr Mccarthy submits that the statute should therefore be interpreted to recognise a degree of protection to claimants, thus balancing the power of the Corporation to use the exit process. [7] The relationship between the initial assessment process and the final vocational independence process was expounded by Miller J in Weir v ACC (unrep. High Court, Wellington, CIV 2003-485-1921, 18 August 2004). Justice Miller stated amongst other things that "the initial occupational assessment and initial medical assessment will inform ACC's assessment of the claimant's vocational rehabilitation needs for the purposes of the IRP prepared under s 75 and s 77". The purpose of an IOA and IMA are therefore preliminary to planning vocational rehabilitation or to reviewing it from time to time. They are not assessments for vocational independence, but are part of the process leading eventually to an assessment of vocational independence being made if the claimant appears suitable. Vocational independence is supposed to be a positive outcome of rehabilitation, but it is not seen in that light by a claimant who loses a right to weekly compensation and yet cannot get a job. [8] The respondent's position is that vocational rehabilitation is a central objective of the 2001 Act and the Corporation is entitled to require a claimant to engage. The statutory process for vocational rehabilitation was described succinctly by Judge Cadenhead in Atley (271/04) where he stated: [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 OA, was not only reasonable but required under the 2001 Act." [9] Judge Beattie has given a series of judgments in this Court where Mr Mccarthy has appeared as counsel. The conclusion that His Honour has repeatedly reached in those judgments is that there is no point in attacking the Corporation's determination to do the initial s89 assessments. The statutory purpose of the assessments is to identify the claimant's vocational rehabilitation needs. That is what s89 says. The Corporation does not need to place the requirement for initial assessments in an IRP. By placing the requirement in an IRP, which is itself a reviewable decision, the Corporation has encountered applications for review by various claimants. This Court has decided that almost inevitably in such cases there is no viable ground for review. [10] Returning to Mr Mccarthy's argument, he has submitted that the process of renewed vocational rehabilitation leading to vocational independence assessment consists of four steps, as follows: Step 1 - the decision to again require vocational rehabilitation Step 2 - finalising an IRP containing a requirement for initial assessments Step 3 - completing the IRP Step 4 - final vocational independence assessments [11] He submits that Step 1 requires a preliminary decision to resume vocational rehabilitation. The respondent's position is that vocational rehabilitation is a primary purpose of the statute and needs to be kept under review. The power to resume or modify vocational rehabilitation is found in s88 which is as follows: 88 Vocational rehabilitation may start or resume if circumstances change (1) The Corporation may, at any time, decide whether or not there has been a change of circumstances affecting the claimant's need for vocational rehabilitation. (2) If the Corporation decides that there has been such a change, the Corporation and the claimant may agree to the modification of the claimant's individual rehabilitation plan to reflect the changed circumstances. (3) The Corporation may resume providing vocational rehabilitation under he claimant's individual rehabilitation plan, with any agreed modifications, to a claimant who - (a) had vocational rehabilitation; and b) as a result, obtained employment; but c) is unable to maintain the employment because of his or her incapacity. (4) This section is subject to section 87(2) and (3). [12] Mr Mccarthy's argument classifies a "decision" to require a new IOA and IMA as being the same as the decision to resume or modify vocational rehabilitation. It looks at the Corporation's requirement for initial assessments as the beginning of a new phase of vocational rehabilitation thus requiring prior consideration of the specific purposes found in ss 86 and 87 which are as follows: 36 Matters to be considered in deciding whether to provide vocational rehabilitation (1) In deciding whether to provide vocational rehabilitation, the Corporation must have regard to the matters in section 87. (2) In deciding what vocational rehabilitation is appropriate for the claimant to achieve the purpose of vocational rehabilitation under section 80, - (a) the Corporation must consider whether it is reasonably practicable to return the claimant to the same employment in which the claimant was engaged, and with the employer who was employing the claimant, when the claimant's incapacity commenced; and b) if it is not, the Corporation must consider the following matters: (i) whether it is reasonably practicable to return the claimant to an employment of a different kind with that employer: (ii) whether it is reasonably practicable to return the claimant to the employment in which the claimant was engaged when the claimant's incapacity commenced, but with a different employer (iii) whether it is reasonably practicable to return the claimant to a different employment with a different employer, in which the claimant is able to use his or her experience, education, or training: (iv) whether it is reasonably practicable to help the claimant use as many of his or her pre-injury skills as possible to obtain employment. [13] The appellant argues that the goal for the claimant in s86 needs to be considered first. The respondent says that it needs the initial assessments in order to consider s86. [14] Section 87 is directed to the decision to provide, rather than to the claimant's needs for vocational rehabilitation. The respondent says this also requires information to be gained from initial occupational and medical assessments. Section 37 is also set out as follows: 37 Further matters to be considered in deciding whether to provide vocational rehabilitation (1) In deciding whether to provide vocational rehabilitation, the Corporation must have regard to (a) whether the vocational rehabilitation is likely to achieve its purpose under the claimant's individual rehabilitation plan; and b) whether the vocational rehabilitation is likely to be cost- effective, having regard to the likelihood that costs of entitlements under this Act will be reduced as a result of the provision of vocational rehabilitation; and ) whether the vocational rehabilitation is appropriate in the circumstances. 2) The Corporation must provide the vocational rehabilitation for the minimum period necessary to achieve its purpose, but must not provide any vocational rehabilitation for longer than 3 years (which need not be consecutive). (3) This section is subject to any regulations made under section 324. [15] The Corporation's view is that Step 1 is taken in two stages, the first being the preliminary assessments which are not just an option but are mandated by $89, as follows: 89 Assessment of claimant's vocational rehabilitation needs An assessment of a claimant's vocational rehabilitation needs must consist of - (a) an initial occupational assessment to identify the types of work that may be appropriate for the claimant; and b) an initial medical assessment to determine whether the types of work identified under paragraph (a) are, or are likely to be, medically sustainable for the claimant. [16] Thus is might be said that the Corporation's interpretation would be more clearly apparent if ss 88 and 89 preceded s86. Mr Evans submitted that a referral to the IMA and IOA procedure, is purely administrative in nature and does not carry rights of review or appeal. If s89 can be described as a tool for assessing vocational rehabilitation needs, it has to be employed before addressing the considerations in $86. I agree that is the more logical way of reading these provisions. Under $88 the Corporation may at any time, decide whether or not there has been a change of circumstances affecting the claimant's need for vocational rehabilitation. That is also a decision about the claimant's vocational rehabilitation needs and naturally falls within the s89 requirement to assess the nature of the claimant's needs by formal assessments. [17] In his written submissions in this appeal Mr Evans said that the Court's determination on this question has been crystal clear, a referral to the IMA and IOA procedure is purely administrative in nature and does not carry rights of review or appeal. I note that in Newman (307/06) the Court said: [7] The competing assertions made by Counsel for the Appellant and Respondent respectively are that Mr Mccarthy, for the umpteenth time, submitted that before the Corporation could require the appellant to undergo the Initial Occupational Assessment ('IOA') and Initial Medical Assessment ('IMA') procedure as provided in Section 89, it was required to come to a decision in terms of Sections 87 and 88 as to whether to provide vocational rehabilitation for a claimant, those decisions needing to be both transparent and being decisions which were capable of being challenged by the review procedure of Section 134. [8] The answer from Counsel for the Respondent is that Sections 87, 88 and 89 do not involve the making of reviewable decisions within the meaning of the Act and are purely administrative, and insofar as Section 89 is concerned, requiring a claimant to undergo an IOA and IMA, was simply the precursor of a vocational rehabilitation regime which would be incorporated into an Individual Rehabilitation Plan. [18] Mr Mccarthy asks for a clear decision from the Court as to whether the Corporation's decision to require initial assessment is an administrative non- reviewable decision. I cannot see how the matter can be stated more clearly than it already has. It would be unwise to make a sweeping pronouncement that does not admit of exceptions. There may be cases in which vocational rehabilitation needs have already been so clearly established, or where a particular specific question has to be decided, so that the Corporation is called upon to make a reviewable decision when requiring a claimant to engage in further assessments to identify needs. But the facts in the present case are unremarkable, and I hold that in such a case a decision by the Corporation to require initial assessments under $89 is a purely administrative decision. [19] Two appeals are heard together flowing from review hearings on essentially the same point. Appeal Al134/05 concerned a review decision of 11 November 2004 against an IRP recording that the appellant would attend a further IOA and IMA assessment. Appeal A1374/05 concerned a review decision of 13 July 2005 concerning a similar IRP. The two decisions appear to relate to the same IRP. In any case the argument did not suggest otherwise and it was directed to the general question whether requiring initial assessments is a reviewable decision, rather than to any questions of fact particular to one or other of the review decisions. [20] Mr Mccarthy also touched upon an argument that under $87 of the Act vocational rehabilitation must be completed in three years and that the period begins with the first IRP, so that once three years have run from the first IRP the Corporation cannot require further rehabilitation and has no basis to require any further initial assessments. I have said in a decision of Gibb (137/07) that there would need to be a primary decision on that point. The same applies in this case. [21] If there are checks and balances to prevent unreasonably repeated attempts at vocational independence and termination of a weekly compensation entitlement they are to be found elsewhere in the Act. For example, s88 gives the Corporation the power to revisit vocational rehabilitation at any time, but has to decide whether or not there has been a change in circumstances. Section 109 gives the Corporation the power to revisit vocational independence at reasonable intervals, but under s110(3)(b) an assessment cannot be done until the claimant has completed vocational rehabilitation. The three year limitation in $87(2) is a point capable of argument, but I do not think it limits the Corporation's power to enquire into rehabilitation needs by obtaining further initial occupational and medical assessments. [22] For the above reasons the appeal is dismissed. Judge D A Ongley District Court Judge