Toto v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 56195 AT WELLINGTON DCA No. 252/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act 38/ 94 0014 BETWEEN W. TOTO APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland on: 23 February 1995 The appellant in person N. Morrison as counsel for the Corporation Date of Decision: 16 may 1995 RESERVED DECISION OF JUDGE J. W. IMRIE I have decided to allow the appeal. 2. Introduction: At issue is the Corporation's decision to decline to approve further vocational rehabilitation allowance. The relevant sections are 18, 20, 22, 23 and 24 of the 1992 Act. Although the decisions of the Corporation and the Review Officer and the submissions at the appeal hearing concentrated on an accident on 13 July 1992 the Corporation's files show that Mr Toto has been injured in three accidents. On 19 May 1990 while playing rugby league he was tackled by two players and experienced back pain. He came off the field and attended on his doctor and received physiotherapy. The diagnosis was "strain lumbar spine". He was off work for some time but in due course returned to work and to playing rugby league. On 28 October 1991 while playing rugby league, Mr Toto was tackled and landed on his right shoulder. The diagnosis was "bruised right shoulder". He received physiotherapy. He was unfit for work for two weeks. He returned to work on different duties. On 13 July 1992 he was having a shower when he slipped and fell. A further medical certificate dated 29 July 1992 said he still had severe pain and stiffness in his lower back and right buttock and would be unfit for work for ten days from 25 July 1992. He was unable to work for some time and received earnings related compensation as a result. 3. At some time early in 1993 he made an application relating to his attendance as a trainee teacher at Pukekohe North School. His request for a vocational rehabilitation entitlement was considered, and after further correspondence, the Corporation in its letter dated 21 October 1993, formally advised Mr Toto that it would meet the course fees incurred by him within the first twelve months of his primary teaching training programme, and there would also be a contribution towards transport and expenses. By letter dated 17 May 1994 the Corporation advised Mr Toto that an extension of his vocational rehabilitation allowance had been made for a further twelve months, to continue payment of training costs incurred during that period. In its letter the Corporation advised that the allowance would cease on 19 July 1995, and the Corporation was unable to consider any further funding of a vocational rehabilitation programme beyond that date. By application dated 27 July 1994 Mr Toto sought a review of the decision of 17 May 1994. He sought funding for the third and final year of the Diploma of Teaching course at the Auckland College of Education. The review was heard on 20 September 1994. The officer issued his decision on 28 September 1994. He reviewed the history of the claim and the correspondence, and he said:- "At the hearing the applicant told me that he was asking the Corporation to fund his third and final year. He said that were it to do so he would be a more attractive employment prospect. He felt that a lack of funding might jeopardise his study. In answer to a query from Ms Stevenson of the Corporation, the applicant told her that what in fact he was asking for was funding for a period ending in December of 1995 because his course was in fact a three year one. He confirmed, again in 4. answer to a query, that he had received tuition for a period of two years, but said that he wished to come off the 'ACC books' and the purpose of his re-training was to achieve that object." In his decision the officer referred to ss.22 to 25 of the Act and said:- "It is quite clear on the evidence available to me that the Corporation has approved vocational rehabilitation for a period of two years in order for him to undergo vocational rehabilitation. It is quite clear that s.24(3) precludes any payment be made in excess of a period of 24 months in total. As the applicant will by July 1995 have received vocational rehabilitation for a period of 24 months I have absolutely no discretion to extend that period and therefore the Corporation's decision must be confirmed." The Appeal Hearing: At the appeal hearing Mr Toto said he had nearly completed two years of a New Zealand Diploma of Teaching at the Auckland College of Education, and wished to completed the third and final year. If he did that he was virtually assured of a teaching position with the Pukekohe North Primary School. There is a demand for Maori teacher role models who are male. If he did not receive the assistance he sought from the Corporation, he would not be able to complete the diploma course because of lack of funds. He advised that his course finishes at the end of 1995, but it is possible that it will take until July next year. He said the Corporation has been paying his tuition fees and a travel and book allowance. The Corporation pays weekly compensation of $243 and that will continue. His tuition fees which 5. were due in February will be at least $2,200. Last year they were $1,800. He has been receiving $50 per week for travel when he has to travel, and about $500 per annum for books. The weekly compensation of $243 goes completely in living expenses, and if the Corporation will not make further payment, he will have to consider taking out a student loan. Mr Morrison presented written submissions. They outline the background to the appeal, and summarise the evidence on the file, and refer to ss. 18(1), 21, 22(3) and s.23. He said that the mandatory nature of s.24(3) has previously been recognised by the District Court in Kolo decision (14/94). He made the following submissions:- "5.1 The right to rehabilitation provided by the legislation is clearly restricted to the extent provided by the Act. 5.2 It is conceded that the funding sought by the Appellant may well meet the criteria required by section 22(3) of the Act. However, there are other criteria which must be met. 5.3 It is clear from the evidence, and appears uncontested by the Appellant, that he is seeking funding for rehabilitation in excess of twenty four months in total. This is clearly prohibited by section 24(3). This prohibition has previously been recognised by the District Court. 5.4 It is respectfully submitted that the Review Officer's decision should not be disturbed." Consideration and Decision: Section 23 reads:- 6. "23. Limitations on provision of, or payment for, vocational rehabilitation by Corporation - (1) Except as provided in section 24 of this Act, the Corporation shall not provide or meet the costs of any vocational element of an individual rehabilitation programme that are incurred in respect of any period more than 1 year after the commencement of the vocational element of the programme unless it is satisfied that further provision of, or payment for, vocational rehabilitation is expected to result in the employment of the person to whom the programme applies. (2) No such further provision granted under subsection (1) of this section shall continue for a period exceeding 1 year." Section 24 reads:- "24. Resumption of vocational rehabilitation - (1) Where a person has undergone vocational rehabilitation resulting in the person obtaining full-time employment and the person is unable to maintain the employment by reason of his or her incapacity, the person's vocational rehabilitation programme may be resumed with appropriate modification of its content. (2) The Corporation may at any time reassess the incapacity of any person, the person's rehabilitation needs, and the potential market for that person's skills and, if satisfied that there has been a change of circumstances so that vocational rehabilitation or further vocational rehabilitation is expected to be cost effective for the Corporation, commence or make further contributions to the vocational rehabilitation of the person. (3) The_total vocational rehabilitation provided under section 23 of this Act and this section shall not exceed a period of 24 months in total which need not be consecutive." 7 . There are two points to consider:- 1. The first is that in its letter dated 17 May 1994 the Corporation told Mr Toto that his vocational rehabilitation allowance had been extended from 19 July 1994 to 19 July 1995. That covers the months February and March 1995. The tuition fees for this year were payable in February 1995. Accordingly, they are included in the period set out in the Corporation's letter of 17 May 1994. They should be paid by the Corporation. The book allowance and the travelling expenses for the on-course block training periods up to 19 July 1995 should also be paid. That does not mean that the total vocational rehabilitation provided under s.23 of the Act exceeds the period of 24 months in total. 2. The second point is that as I have already indicated, Mr Toto suffered three accidents. The 24 month period referred to by the Corporation in its letter dated 17 May 1994 has been based on the accident of 13 July 1992. There is no reason why a further 24 month rehabilitation period cannot be based on the accidents on 19 May 1990 and 28 October 1991. Through the Registrar I obtained the file relating to the accident on 19 May 1990. (It also contains some particulars of the accident on 28 October 1991). It is not necessary for me to give full particulars of the injuries suffered by Mr Toto in those accidents, but each resulted in on-going disabilities and compensation entitlements. To some extent the injuries suffered in all three accidents have been dealt with together. In a report dated 25 August 1993 Mr C.R. Nicholson, orthopaedic surgeon, assessed under s. 78 of the 1982 Act the disability in Mr Toto's back 8 . of 10% of total. Mr Nicholson said that under s. 79 Mr Toto qualified for an assessment in the small range. In December 1993 the Corporation awarded Mr Toto a lump sum $4,000 under s.79 in respect of his back injury. In his report Mr Nicholson assessed the residual impairment in the right shoulder at 5% loss of use of the arm or 4% of total incapacity but questioned whether the symptoms experienced by Mr Toto were sufficient to warrant compensation under s. 79. In a report dated 26 September 1994 Mr B.K. Otto, orthopaedic surgeon, said that Mr Toto's right shoulder was of concern to him and qualified for a separate consideration under s.78 and s.79 of the 1982 Act. Under s.78 he said Mr Toto had 10% loss of shoulder function, and under s. 79 qualified for a further small consideration. In October 1994 the Corporation awarded Mr Toto a lump sum of $1,700 under s.78. It also awarded a further $6,000 under s.79. Those further payments may have been in respect of all Mr Toto's injuries. Obviously not every injury would entitle a claimant to vocational for rehabilitation another period of twelve or 24 months. However, in this case, the effect of the injury to Mr Toto's shoulder was significant (as of course was the effect of the injuries to his back.) I have not been referred to any section in the Act or to any authority which says that the limitation in ss.23 and 24 of vocational rehabilitation to a 9. total of 24 months applies no matter on how many occasions a claimant has suffered personal injury by accident. The Corporation allowed Mr Toto to undergo vocational rehabilitation for 24 months in respect of his personal injury by accident on 13 July 1992. It should now let him complete the course on the basis of his personal injury by accident on 28 October 1991 (and possibly on the basis of his personal injury by accident on 19 May 1990.) Conclusion: The decision of the Corporation is revoked. The appeal is allowed on the basis that the Corporation should provide or meet Mr Toto's costs in completing his teaching diploma. (J.W. Imrie DCJ) - -