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High Court of New Zealand Decisions |
Last Updated: 19 July 2019
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
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CIV-2018-404-1957
[2019] NZHC 1530 |
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UNDER
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the Accident Compensation Act 2001
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IN THE MATTER OF
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an appeal pursuant to s 162 of the Act
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BETWEEN
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JANET GASKIN
Appellant
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AND
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ACCIDENT COMPENSATION CORPORATION
Respondent
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Hearing:
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18 June 2019
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Counsel:
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A C Beck for appellant
F L Becroft for respondent
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Judgment:
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2 July 2019
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RESERVED JUDGMENT OF DOBSON J
The District Court judgment [33]
Was s 110(3)(a) satisfied? [42]
Did the Judge err in finding compliance with the vocational rehabilitation provisions? [62] Additional question raised [79]
GASKIN v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1530 [2 July 2019]
Introduction
[1] In August 2013, the appellant (Mrs Gaskin) injured her back while stacking goods on supermarket shelves in the course of her employment by the supermarket operator. The respondent (ACC) granted cover for it as a work-related injury, and she was subsequently paid earnings-related compensation when unable to continue with her work tasks.
[2] Between June and October 2015, Aon Work, a contracted accredited provider of ACC services retained by her employer, undertook a vocational independence assessment of Mrs Gaskin, concluding on 7 October 2015 that she was vocationally independent.1 The statutory consequence was that her weekly compensation would cease three months after that date.
[3] Mrs Gaskin sought a review of that decision, which was unsuccessful. The reviewer delivered his decision on 31 May 2016 and a notice of appeal against that decision was filed in the District Court on 17 July 2016. The hearing of the appeal proceeded on 4 May 2017 and Judge Walker delivered his reserved decision dismissing the appeal on 13 June 2017.2
[4] Thereafter, having been declined leave to appeal by the District Court, Mrs Gaskin applied to this Court for special leave to bring a further appeal against the District Court decision. Cull J delivered a reserved decision on 5 December 2018 granting leave in the following terms:3
[50] I am granting Ms Gaskin special leave to appeal. I consider there are two questions of law that this Court should address, namely:
(a) Did the Judge err in failing to take into account whether the statutory threshold test under s 110 of the Act had been met, before Ms Gaskin was referred for a vocational independence assessment?
2 Gaskin v Accident Compensation Corporation [2017] NZACC 63.
3 Gaskin v Accident Compensation Corporation [2018] NZHC 3190.
(b) Did the Judge err in finding ACC complied with the legislative provisions on vocational rehabilitation for Ms Gaskin, in accordance with the Act and the applicable law?
The statutory context
[5] A prominent feature of the scheme of the Accident Compensation Act 2001(the Act) is the process that ACC is obliged to undertake to facilitate medical and occupational rehabilitation for those who have suffered injuries covered by the Act.4 The scheme contemplates that medical and occupational support will be provided to enable claimants to achieve vocational independence. That concept is defined in s 6 in the following terms:
vocational independence, in relation to a claimant, means the claimant’s capacity, as determined under section 107, to engage in work—
(a) for which he or she is suited by reason of experience, education, or training, or any combination of those things; and
(b) for 30 hours or more a week
[6] The Act obliges ACC to determine, within 13 weeks of accepting a claimant’s claim for cover, whether the claimant is likely to need social or vocational rehabilitation after the 13 week period and, if so, to prepare an individual rehabilitation plan (IRP).5 That IRP must, inter alia, identify the claimant’s needs for rehabilitation.6 The purpose of vocational rehabilitation is specified in s 80(1) as follows:
80 Purpose of vocational rehabilitation
(1) The purpose of vocational rehabilitation is to help a claimant to, as appropriate,—
(a) maintain employment; or
(b) obtain employment; or
(c) regain or acquire vocational independence.
5 Section 75.
6 Section 77(2).
[7] The scope of ACC’s obligations to provide vocational rehabilitation is also specified. Section 85 states that ACC is liable to provide vocational rehabilitation to a claimant who has suffered personal injury for which he or she has cover and is, inter alia, entitled to weekly compensation. Section 86 then specifies matters that are to be considered in deciding whether to provide vocational rehabilitation. It provides:
(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.
[8] Section 87 provides:
(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
(c) 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).
...
[9] Section 88 provides for the need to revisit a claimant’s IRP if there is a change in the claimant’s circumstances. Section 89 addresses the scope of the assessment of vocational rehabilitation needs that is required:
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.
[10] Section 107 of the Act provides for ACC to determine vocational independence. In the relevant part it provides:
107 Corporation to determine vocational independence
(1) The Corporation may determine the vocational independence of—
(a) a claimant who is receiving weekly compensation:
...
(3) The purpose of the assessment is to ensure that comprehensive vocational rehabilitation, as identified in a claimant’s individual rehabilitation plan, has been completed and that it has focused on the claimant’s needs, and addressed any injury-related barriers, to enable the claimant—
- (a) to maintain or obtain employment; or
(b) to regain or acquire vocational independence.
[11] The process of assessing whether vocational independence has been achieved starts with ACC giving notice in terms of s 110, which provides:
110 Notice to claimant in relation to assessment of vocational independence
(1) The Corporation must give written notice to a claimant required by the Corporation to participate in an assessment of his or her vocational independence.
(2) The notice must—
(a) state the purpose, nature, and effect of the assessment; and
(b) state that the claimant is required to participate in the assessment; and
(c) state the consequences of not doing so; and
(d) state the claimant’s right to be accompanied by another person during the assessment.
(3) The Corporation must not require the claimant to participate in an assessment—
(a) unless the claimant is likely to achieve vocational independence; and
(b) until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan.
[12] The essence of the first question on the appeal is whether the Judge erred in assessing that ACC had reasonable grounds for the view that Mrs Gaskin was likely to achieve vocational independence (that is, in terms of s 110(3)(a)) at the time it required her to participate in the vocational independence assessment.
[13] The second question raises an argument that the Judge failed to recognise material inadequacies in the process for assessing Mrs Gaskin’s needs for vocational rehabilitation. The relevant dealings with her began on the premise that she would be rehabilitated to resume her pre-injury job. Arguably, sequential decisions were required first on whether she would be rehabilitated to resume her pre-injury work tasks and, if not, secondly on the vocational rehabilitation needed to prepare her for
other work tasks. Here, the consideration of her needs for vocational rehabilitation was not adequately adapted when, part-way through the rehabilitation process, it became apparent that she could not resume her pre-injury job. Arguably, that triggered an obligation to re-assess vocational rehabilitation that would be needed for other forms of employment, and that such re-assessment did not occur.
The facts
[14] At the time of her workplace injury in August 2013, Mrs Gaskin was 54 years old. She had approximately 26 years’ work experience in a wide range of jobs including factory worker, cleaner, science technician assistant, general clerk and sales assistant. Her experience included two periods, one of two years and another of three years, where she was self-employed in what appear to be family businesses. For a period of something more than 10 years before the workplace injury, she had worked in Palmerston North supermarkets.
[15] At the time of her injury, Mrs Gaskin was working as a night filler stacking goods on supermarket shelves. She suffered an injury to her lower back and was certified unfit for work. Following the injury, Mrs Gaskin began receiving weekly compensation.
[16] In October 2013, she was seen by Dr Ra Durie, a sports physician, who diagnosed a mechanical lower back problem. Dr Durie opined that Mrs Gaskin’s reported pain levels rendered her unfit to return to her normal work. She was considered fit for light duties. At that point she had undertaken a course of physiotherapy.
[17] In November 2013, an IRP was prepared.7 It envisaged a gradual return to her pre-injury work. However, Mrs Gaskin suffered back spasms and increased pain during November 2013 and her general practitioner referred her for a second consultation with Dr Durie, who recommended an MRI scan. He certified Mrs Gaskin as being fully unfit for a period in late 2013. It appeared that the on-going pain was a result of her undertaking too much work of the type she had undertaken prior to the
7 As required by s 75 of the Act.
injury. The MRI scan performed in early January 2014 showed a degree of impingement of some nerve roots in her lumbar spine.
[18] In early April 2014, Mrs Gaskin was reviewed by Dr David Hartshorn, a specialist occupational physician. At that time, she was working light duties for her employer for approximately two hours per day. The tenor of reports from around that time suggests that two hours per day may have been the limit of light duties work available for her. Dr Hartshorn was unable to be definitive in his prognosis and was accordingly unsure as to whether there was likely to be an extent of recovery enabling Mrs Gaskin to resume her pre-injury tasks.
[19] In June 2014, Mrs Gaskin had a consultation with Mr Tim Love, an orthopaedic surgeon. He recognised a pattern of back pain, considered there was no surgical management available and was not able to opine on her on-going work capabilities.
[20] In July 2014, Mrs Gaskin underwent an initial occupational assessment with a consultant. This was a little more than 11 months after her injury. It was intended to identify the range of possible forms of employment she could undertake, reflecting her individual skills and work experience. The assessment form required the consultant to complete a list of barriers to her returning to work. A number of such barriers were identified, but none of them appeared to be insurmountable in relation to the 18 job options that the consultant listed after conferring with Mrs Gaskin.
[21] Mrs Gaskin was seen again by Dr Hartshorn on 7 October 2014, this time for the purposes of an initial medical assessment report under s 89 of the Act. At the time, she was able to increase her work to four hours per day, performing three hours of shelf stacking and other light shelving duties, with an additional hour of paperwork. Dr Hartshorn reported:
At this time Mrs Gaskin is approximately fourteen months post-onset of low back pain. It is becoming increasingly likely that she will continue to experience some degree of persisting low back pain. In this respect I believe it is unlikely that she will manage a successful return to her pre-injury employment which had a significant requirement for frequent bending and some lifting activity. I believe it would be appropriate to plan for a degree of
vocational redirection into work activity at the light to sedentary end of the physical spectrum.
[22] Of the 18 job options identified in the initial occupational assessment, Dr Hartshorn identified 12 as being likely to be medically sustainable.
[23] Mrs Gaskin was then seen by Dr Jurriaan de Groot, a consultant physician in rehabilitation medicine, who reported in November 2014. He suggested a range of initiatives that might be tried and that in the meantime she should continue her limited hours work at the supermarket.
[24] On Dr de Groot’s recommendation, Mrs Gaskin was assessed by a registered psychologist in February 2015. A course of eight sessions of consultations with the psychologist was recommended.
[25] Mrs Gaskin was assessed again by Dr de Groot in April 2015. His follow-up medical report observed that a physiotherapy programme and psychological therapy had helped. It had become obvious that tasks within her pre-injury work environment were now not sustainable for her, leading to the observation:
... the quest is on for Janet to find suitable sustainable employment with lighter duties.
[26] Dr de Groot considered that she did have the work capacity to work in a setting which provided much lighter duties, for example in the retail sector.
[27] The documentary record includes an Aon Work vocational independence assessment process form. It is intended to reflect a summary of the file on the claimant, a team review and quality check form. The intended outcome of the process is a conclusion that the claimant can proceed with a vocational independence assessment. The team manager who had been involved signed off the final review in that form, having found no vocational or process reasons why Mrs Gaskin could not proceed through the vocational independence process. Dr Anthony Burgess, the branch medical adviser, confirmed there was no medical evidence why Mrs Gaskin could not proceed through that vocational independence process. The form was signed by the team manager on 16 June 2015 and by Dr Burgess on 4 August 2015. The form
records that a work ready programme was recommended and that by 24 July 2015 that had been completed. It involved the updating of a curriculum vitae for Mrs Gaskin. The form also noted that vocational rehabilitation is “now complete”.
[28] The documents produced in the proceeding did not include the written notice provided for in s 110, presumably sent to Mrs Gaskin, advising that she was to be assessed for vocational independence, but it can reasonably be inferred that it was dispatched around mid-August 2015.
[29] Thereafter, a 30-page vocational independence occupational assessment report was completed on 17 August 2015. The consultant preparing it identified 14 job options that could be undertaken by Mrs Gaskin. Comments from Mrs Gaskin are included in relation to each type of job. They range from, “I would be really really interested in this sort of job”, to simple acceptance of the suitability of the tasks involved, to doubts about employers wanting her for some tasks or concerns that the tasks were similar to her pre-injury work. The report noted that there were no barriers to overcome in obtaining work of the types listed.
[30] The medical assessment report, which was the second aspect of Mrs Gaskin’s vocational independence assessment, was completed by Dr Blair Christian, an occupational medicine specialist, on 11 September 2015. That assessment included the following observations:
Treatment has been appropriate and to a degree effective. Janet says that she manages better now with her pain than six to twelve months ago. She has learned to pace activity, and avoid marked flare-ups of pain.
[31] The report advised that Mrs Gaskin no longer required daily pain relief, that generally she slept relatively well and that psychological treatment had been helpful, as had vocational rehabilitation in the form of a work readiness programme. The report advised that Mrs Gaskin was at a point where she was looking forward to a return to work and Dr Christian had no new treatment recommendations. He recorded:
In my opinion Janet is able to work for thirty hours per week or more in a suitable light role. The ideal role would be one with a mix of sitting and standing and walking through the day. Janet is unlikely to sustain a full-time role involving very prolonged standing or prolonged sitting, where she cannot reasonably regularly change position or have a break. Similarly she would
not sustain a full-time medium or heavy work role, particularly one involving repetitive lifting or twisting. Thus a light retail role or light office role for example, where she is able to change position and move around through the day, does appear ideal.
[32] In reliance on the conclusions in both the vocational independence occupational and medical assessments, Aon Work issued a decision on 7 October 2015 advising Mrs Gaskin that she had been found to be vocationally independent with six job options, with the consequence that her weekly compensation payments would cease three months after that on 7 January 2016.
The District Court judgment
[33] On the first appeal from the reviewer who dismissed the challenge to the decision on vocational independence, Judge Walker conducted a thorough review of the various interactions between medical assessors, occupational assessors and Mrs Gaskin. He dismissed the appeal on the ground that the steps undertaken followed the statutory procedure.8 The Judge rejected a criticism that the vocational rehabilitation processes needed to be undertaken in two discrete stages, firstly considering a return to pre-injury employment and secondly looking at alternative options.9 The Judge also rejected criticisms that the vocational independence medical assessment was inadequate, or conducted on a wrong approach.10
[34] Given the terms of the questions of law on which special leave has been given, it is sufficient to address the Judge’s reasoning, and Mr Beck’s criticisms of it in supporting the present appeal, as I deal with those issues.
The approach to s 110
[35] The Supreme Court has considered the application of s 110 in McGrath v Accident Compensation Corporation.11 That litigation involved an application for judicial review of a decision by ACC under s 110 to require the claimant to participate in an assessment of her vocational independence. The Supreme Court observed that
8 Gaskin v Accident Compensation Corporation, above n 2, at [172].
9 At [162].
10 At [168].
11 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733.
the legislative history of the section suggests its purpose is to protect claimants from unnecessary assessments where there is no real prospect of vocational independence.
[36] The High Court had held in McGrath that s 110(3)(a) required there to be an objectively reasonable basis for a belief, formed at the time the claimant was required to participate in a vocational independence assessment, of the likelihood of the claimant achieving vocational independence. However, as the challenge to the exercise of the statutory power arose in judicial review, the High Court took the view that the standard of scrutiny of ACC’s basis for grounds to conclude vocational independence was likely could not be “high”. The Court of Appeal implicitly concurred.
[37] The Supreme Court differed on the standard for intervention by the Court in judicial review:12
... The responsibility of the court on judicial review is to ensure that the legislative condition is fulfilled. Since the condition turns on a judgment (that the claimant is “likely to achieve vocational independence”), its fulfilment may not be susceptible to exact demonstration. But to succeed the plaintiff must bring the court to the conclusion that the condition was not fulfilled. That assessment is one of substance. It is not enough that there is information available to the Corporation upon which it acted, if that information does not reasonably support the conclusion that the statutory condition is fulfilled. ...
[38] The Supreme Court interpreted “likely” in its context in s 110(3)(a) as being an outcome reasonably in prospect. That prospect is to be considered at the time the assessment is required. It is the end of the rehabilitation process, not a part of the rehabilitation programme.13
[39] The preponderance of the medical opinions about Ms McGrath was that she was not able to work more than 15 hours per week. The Supreme Court attributed to ACC the reasoning that because a rehabilitation plan had been completed, that justified a view that it was no longer premature to obtain a vocational independence assessment:14
12 At [31].
13 At [33]–[34].
14 At [39].
... as if it were the next stage in an inexorable process, without further consideration of whether completion of the plan bore on whether vocational independence was likely ...
[40] In Mrs Gaskin’s case in the District Court, Judge Walker distinguished the Supreme Court’s finding against ACC on the facts, in that the claimant in McGrath was recognised as being unlikely to be able to work for more than 15 hours per week. In contrast in the present case, he found that the preponderance of opinions available to the assessors suggested that Mrs Gaskin was capable of working more than 30 hours per week in a range of jobs for which she was qualified and that involved lighter physical duties than her pre-injury employment.
[41] Mr Beck argued that this ground for distinguishing McGrath missed the relevant point from the Supreme Court judgment, namely that there must be an objectively reasonable basis for ACC to come to the view, at the time at which notice is given under s 110, that there is a present likelihood that Mrs Gaskin would achieve vocational independence. Arguably, that test required a more rigorous analysis of the grounds for reaching such a view than were undertaken by the Judge.
Was s 110(3)(a) satisfied?
[42] Mr Beck described the process leading to the June 2015 notice to Mrs Gaskin that required her to participate in a vocational independence assessment as being “as if it were the next stage in an inexorable process”, in the same way that the Supreme Court characterised the process in McGrath. Mr Beck submitted that there was a rapid progression from April 2015, when it became clear that Mrs Gaskin would not be going back to her pre-injury employment, to the point in June 2015 or shortly thereafter when ACC started getting her into the exit process. The reports up to April 2015 addressed her capacity to work more than 30 hours per week in other jobs involving lighter physical duties than her pre-injury employment on the contingent basis that they were alternatives for her, should she be unable to return to her pre- injury employment.
[43] Arguably, neither before nor after return to her pre-injury employment was eliminated did any of those opining on her medical capacity turn their minds to whether she could in fact work 30 or more hours per week in any of the suggested
alternatives. Mr Beck submitted that none of the medical opinions addressed in a positive way the number of hours per week for which Mrs Gaskin could do jobs involving lighter duties. That meant there was no confirmation that she could do more than 30 hours per week. In particular, in a February 2015 functional reactivation programme report, the outcome of a goal identified in the plan of action for Mrs Gaskin stated:
Return to full duties at work – Not Achieved. [Mrs Gaskin] started a gradual return to work for 3 hours a day doing light duties on 20/1/15. She only managed this for a week as this caused a significant increase in her lower back and leg pain.
[44] Further, in Dr de Groot’s follow up specialist medical report of 8 April 2015, the physician opined:
I feel it would be appropriate to certify [Mrs Gaskin] no longer fit to return to being a shelf stacker, although she has the work capacity to work in a setting which provides much lighter duties, eg such as in the retail sector. She states to have started exploring this through Workbridge.
[45] Mr Beck criticises that opinion as inadequate to found any belief that Mrs Gaskin could manage work involving lighter duties for 30 hours or more per week. Without explicit acknowledgement of the number of hours contemplated, he submitted that it is inappropriate to assume that employment for those longer hours was in fact contemplated by the physician.
[46] Mr Beck criticises the District Court judgment for accepting at face value predictions that Mrs Gaskin could undertake other jobs for 30 hours per week or more, without any analysis of the reasonable basis for making that assumption when the Supreme Court’s test for application of s 110 spelt out in McGrath required the Court to do so.
[47] For ACC, Ms Becroft submitted that the rehabilitation process leading to the requirement to participate in a vocational independence assessment was more than adequate and that it laid an entirely adequate foundation for a view being taken that notice under s 110 could be given. Ms Becroft also argued that Mr Beck’s criticisms of the adequacy of grounds for a belief in the likelihood of Mrs Gaskin achieving vocational independence relied on selective references to the record.
[48] Ms Becroft submitted that, whilst Mrs Gaskin’s own input into the vocational rehabilitation assessments could not be determinative, nor should they be ignored. By June 2015, Mrs Gaskin had acknowledged the range of work skills and experience that qualified her for other jobs involving lighter physical duties than filling shelves in a supermarket, and indicated her preparedness, if not keenness, to pursue other prospects.
[49] Ms Becroft cited the Court of Appeal’s decision in Ritchie v Accident Compensation Corporation as another example of the approach the Court should take in assessing the adequacy of the grounds for the view ACC must form under s 110(3) before requiring a claimant to participate in a vocational independence assessment.15 That was another application for judicial review challenging the adequacy of the grounds for the requisite view that a claimant was likely to achieve vocational independence.
[50] The Court of Appeal applied the approach that had been adopted by the Supreme Court in McGrath in circumstances where earlier medical opinions had doubted Ms Ritchie’s ability to move beyond part-time work. However, the branch medical adviser involved had sworn an affidavit in the judicial review proceeding setting out six factors which justified his opinion that Ms Ritchie was likely to be able to sustain 30 hours per week of work. Those factors reflected the advice available to ACC when the relevant view under s 110(3) had been formed. A majority of the Court of Appeal found that the branch medical adviser’s evidence made out a sufficient basis for the view that the claimant was likely to achieve vocational independence.
[51] Clifford J dissented in Ritchie on his own analysis of apparent inconsistencies between the view of the branch medical adviser and the weight of earlier opinions expressed about Ms Ritchie’s capacity to work.
[52] Ms Becroft characterised the present case as more clear-cut than the circumstances in Ritchie. Like Ritchie, the requisite opinion was affirmed by Dr Burgess as the branch medical adviser signing off in August 2015. Unlike Ritchie,
15 Ritchie v Accident Compensation Corporation [2016] NZCA 577.
the consistent pattern of earlier assessments was that Mrs Gaskin would be able to expand her hours so long as she was undertaking lighter work.
[53] Although the sign-off of Dr Burgess is dated August 2015, his analysis of the reports would equally have been available to ACC in June 2015. Dr Burgess was able to tick the printed certificate that he had:
... found from the medical evidence on the file no reason(s) why this claimant cannot proceed through the Vocational Independence Process. (This includes no outstanding medical treatment, other physical rehabilitation or pain management issues that suggest from the weight of evidence on file that the claimant does not have a likely capacity for work.)
[54] The various medical assessments, whilst doubting the prospects for Mrs Gaskin to return to her pre-injury employment, consistently opined that she would be capable of undertaking other lighter work. The February 2015 functional reactivation programme report relied on by Mr Beck did state she had not returned to full duties at her work, and that she had not been able to maintain three hours per day doing light duties.16 That is to be considered in light of other reports that suggest there were no more than three hours per day of work on light duties available to her, and that difficulties had been caused by inclusion of aspects of her pre-injury work tasks.
[55] Mr Beck is correct that there is no explicit statement in the medical reports that those providing them had tested whether Mrs Gaskin was medically able to work at the various jobs involving lighter duties for more than 30 hours per week. However, given the context of all the reports, I treat that as reasonably implicit.
[56] The remaining aspect of Mr Beck’s criticism on this point is how ACC could accept that there was a reasonable basis for those providing the medical opinions to have satisfied themselves about Mrs Gaskin’s capacity, when the evidence since the injury showed her unable to continue working for anywhere near 30 hours per week.
[57] That criticism overlooks the distinction between the nature of the tasks she attempted in wanting to work past about three hours per day and the lighter duties involved in each of the alternative work options that had been identified for her.
16 Cited at [43] above.
[58] There is some scope for Mr Beck to characterise the sequence of events in retrospect as “an inexorable process”, but that does not make out an inadequacy in the grounds available to ACC for the view it was reasonably required to form under s 110(3).
[59] The judicial review challenges in both McGrath and Ritchie focused on the lawfulness of the exercise of the statutory power under s 110 to give notice to a claimant, and in particular the circumstances in which the pre-requisite opinion that the claimant is likely to achieve vocational independence had been arrived at. That somewhat different context does not give rise to any material difference in testing how the section has to be applied.
[60] Whilst the first question on which special leave was granted is notionally a question of law, provision of a meaningful answer involves questions of mixed fact and law. The Judge did engage with the manner in which the threshold test under s 110 had been dealt with on behalf of ACC and any criticisms of alleged failures to take into account the statutory threshold necessarily traverse the factual circumstances, evidence of which was available to him.
[61] Accordingly, whilst the District Court Judge did not undertake any extensive analysis of his own of the grounds for belief that Mrs Gaskin could achieve vocational independence in mid-2015, his conclusion that the statutory processes were appropriately followed is justified. In particular, I concur that the sequence of assessments up to June 2015 did provide sufficient grounds for ACC to take the view that Mrs Gaskin was at that time likely to achieve vocational independence.
Did the Judge err in finding compliance with the vocational rehabilitation provisions?
[62] The essence of Mr Beck’s argument on the second question was that the terms of s 86 of the Act required sequential considerations in deciding whether to provide vocational rehabilitation for a claimant.17 The first consideration should address whether it is reasonably practicable for a claimant to return to the same work with the
17 Set out at [7] above.
same employer. If that is not reasonably practicable, then a second consideration should address whether it is reasonably practicable to return the claimant to work of a different kind, either with the same employer or with other employers. Mr Beck submitted the District Court judgment erred in not acknowledging this sequential requirement.
[63] The relevance of the alleged error is that the District Court Judge failed to accept that there was a process failure in the sequence of dealings with Mrs Gaskin. Once it became apparent that she could not return to her old job, arguably ACC was obliged to assess what vocational rehabilitation was required to equip her for alternative forms of employment. The steps taken were arguably inadequate such that ACC should not have passively accepted her assurances that she would be happy to attempt alternative forms of employment.
[64] Mr Beck submitted that the rehabilitation needs of a claimant will be different depending on whether they are being prepared to resume the same work with the same employer, or being prepared for other types of work. In preparing an IRP as required under s 75 of the Act, ACC must comply with s 77 which obliges it to assess the claimant’s needs for rehabilitation, including vocational rehabilitation as addressed in ss 89 to 96 of the Act. Section 77(4) confirms that ACC is not required to assess a claimant’s needs for vocational rehabilitation if the claimant’s needs are solely related to maintaining (pre-injury) employment.
[65] Mr Beck cited Weir v ACC as confirming the need for ACC to follow the steps in the statutory processes, including under s 77.18 In that case, ACC had gone through the motions of what it intended to be an IRP, but the substance of compliance was missing:
[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 IRP’s had been prepared in the
18 Weir v ACC HC Wellington CIV-2003-485-1921, 18 August 2004.
past, it appears that no formal vocational assessment had been done, because the goal had been one of regaining independence.
[66] Arguably, assistance for Mrs Gaskin’s rehabilitation up to at least October 2014 focused on enabling her to return to her pre-injury work tasks. Once that prospect was excluded, provisionally from late 2014 and definitively from April 2015, there was no new assessment of Mrs Gaskin’s vocational rehabilitation needs in a context where she would definitely be seeking a job with new work content. If the need for vocational rehabilitation had to be sequential, then the absence of a distinctly new approach would more readily be found to be inadequate.
[67] Ms Becroft rejected the notion that the Act required any defined sequential consideration of a claimant’s vocational rehabilitation needs, depending on the types of prospective employment that are being considered. She submitted that there is nothing in the Act that precludes a concurrent assessment of vocational rehabilitation needs addressing both a return to pre-injury work tasks, or alternatives by way of other work tasks.
[68] Ms Becroft drew a distinction between the structure of the current s 86 and its predecessor, which was cl 55 to sch 1 of the Accident Insurance Act 1998. The former provision included a heading to the clause that read:
55. Hierarchy of considerations
[69] Ms Becroft suggested that the absence of any reference to a hierarchy in the current provisions indicates a deliberate move away from the sequential considerations that previously applied.
[70] Ms Becroft accepted that the terms of s 86(2)(a) do contemplate that ACC needs to form a view on whether it is reasonably practicable to return the claimant to the same employment before undertaking the considerations under s 86(2)(b) if a negative view has been taken on that first proposition. However, there is nothing requiring the considerations to be sequential or that they are mutually exclusive. ACC’s approach is that, depending on the individual circumstances of a claimant, it may be preferable to progress considerations on both alternatives at the same time, or
certainly not exhaust the prospects of a return to pre-injury work before canvassing alternatives and what might constructively be pursued for the claimant.
[71] I am not persuaded that either the terms of s 86, or the broader structure of the provisions in the Act for vocational rehabilitation, necessarily require a strict sequencing of the considerations required under s 86(2)(a) and (b). Clearly, in many circumstances there would be no point in ACC considering the matters specified in s 86(2)(b) until the prospects of returning the claimant to the same employment have been exhausted. However, in other cases of which the present is an example, it may be in the claimant’s interests for consideration of the s 86(2)(b) factors to be undertaken without necessarily having exhausted the prospects of the claimant returning to the pre-injury employment.
[72] The prospect of progressing these options for rehabilitation within the same time frames is not precluded by s 77(4). That provision merely exempts ACC from a requirement to consider vocational rehabilitation where it is clear that the claimant’s needs are focused on maintaining pre-injury employment. That does not preclude ACC electing to advance considerations under both options at the same time.
[73] Mr Beck’s reliance on the reasoning in Weir does not support the sequential nature of the obligations for which he contends. That case focused on the content of the assessments required, including on-going obligations, and did not focus on any requirement arising from the terms of the statutory provisions for the considerations to be undertaken sequentially.
[74] It follows that I agree with Judge Walker’s analysis that the provisions do not require a two-step process and that there is no reason why they cannot be conducted together while identifying alternative options.19
[75] That leaves the mixed question of fact and law that Mr Beck addressed in his submissions arising from his criticism that the Judge failed to recognise inadequacies in the provision of vocational rehabilitation for Mrs Gaskin once it became apparent that she could not return to her pre-injury employment.
19 Gaskin v Accident Compensation Corporation, above n 2, at [160]–[163].
[76] I am not persuaded that this criticism can be made out. Mrs Gaskin had an extensive and varied work history. In July 2014, an initial occupational assessment identified 18 job options, after conferring with Mrs Gaskin. In August 2015, 14 job options were identified. The view was taken that, although some occupational training was desirable, none was necessary and there is no suggestion that Mrs Gaskin identified a need or made requests for vocational rehabilitation assistance.
[77] It follows that I am not satisfied there was an error in the approach adopted by the District Court in considering the adequacy of the vocational rehabilitation.
[78] The outcome is that the answer to both questions posed at [4] above is no.
Additional question raised
[79] Mr Beck’s written submissions included argument on a question in respect of which special leave had not been granted. He did so primarily on the ground that the terms on which Cull J granted special leave admitted of the prospect of his doing so. The relevant terms of her Honour’s judgment are set out at [4] above. I do not accept that the terms of the special leave decision admitted of the prospect of Mrs Gaskin raising additional questions of law beyond those defined by Cull J as a result of being persuaded that special leave ought to be granted in respect of them.
[80] Mr Beck’s fall-back position was that the Court was in control of its own procedure and ought, in this case, to allow the additional point to be argued. For the respondent, Ms Becroft opposed argument being heard on any questions wider than those on which special leave was granted.
[81] The further issue on which Mr Beck wanted to advance argument involved a criticism of the standard of appellate review adopted in the District Court. He wished to argue that the Judge had failed to scrutinise the substance of the evidence on which ACC had relied in making relevant decisions, inconsistently with the directions of the High Court in Martin v Accident Compensation Corporation.20
20 Martin v Accident Compensation Corporation [2009] NZHC 974; [2009] 3 NZLR 701 at [33].
[82] I was not persuaded that there were sufficient interests able to be advanced by Mrs Gaskin to justify going beyond the questions on which special leave had been granted and accordingly did not hear any detailed argument on this additional point.
Costs
[83] Mrs Gaskin is legally aided. No question as to costs arises.
Dobson J
Hazel Armstrong Law, Wellington for appellant Medico Law, Auckland for respondent
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