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Splite v Accident Compensation Corporation [2016] NZCA 302 (5 July 2016)

Last Updated: 27 July 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
24 May 2016
Court:
Cooper, Clifford and Katz JJ
Counsel:
A J McGurk for Appellant C J Hlavac and A L Keir for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal is dismissed.
  2. We answer the question by stating that a determination by the Accident Compensation Corporation that the requirements of s 110(3) of the Accident Compensation Act 2001 have been met is not a decision giving rise to appeal and review rights under pt 5 of the Act.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

[1] Under s 107(1) of the Accident Compensation Act 2001 (the Act) the Accident Compensation Corporation (the Corporation) may determine the vocational independence of claimants who are receiving weekly compensation or who may be entitled to do so.
[2] The Corporation must make its determination in accordance with a process set out in the Act.[1] The process includes a requirement that the Corporation give written notice directing the claimant to participate in an assessment for the purpose of ensuring the claimant has completed comprehensive vocational rehabilitation.[2]
[3] The written notice is given under s 110(1) of the Act and must state various matters set out in s 110(2), including the fact that the claimant is required to participate in the assessment.[3] Section 110(3) provides, however, that the Corporation must not require the claimant to participate in an assessment unless the claimant is likely to achieve vocational independence, and until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under a rehabilitation plan.[4] These restrictions on requiring the claimant to participate in an assessment were described by the Supreme Court in McGrath v Accident Compensation Corporation as setting a “threshold” or “legislative condition” for the exercise of the Corporation’s power to require an assessment.[5]
[4] Part 5 of the Act contains detailed provisions for dispute resolution including reviews of decisions of the Corporation and appeals from decisions on reviews (the statutory dispute process).[6] Its provisions include s 134(1), which gives claimants the right to apply for a review, amongst other things, of any of the Corporation’s decisions on a claim.[7]
[5] The principal issue raised by this appeal is whether the Corporation’s conclusion that the statutory threshold for the issue of a notice in s 110(3) has been satisfied is a “decision” able to be reviewed in the statutory dispute process.
[6] The appellant’s argument that the Corporation’s determination under s 110(3) could be challenged in the statutory dispute process was rejected by a reviewer, and by the District Court on appeal, on the basis that the determination was not a “decision” as defined in s 6 of the Act because it did not affect the appellant’s entitlements.[8] A different District Court Judge then granted an application for leave to appeal to the High Court under s 162 of the Act.[9]
[7] The appellant’s argument was also rejected in the High Court, which concluded that the act of the Corporation in forming the view that the conditions in s 110(3) were satisfied was not a decision by the Corporation on the claim within the meaning of s 134(1).[10] Brown J reasoned essentially that the Corporation’s conclusion about s 110(3) was of a preliminary nature, any actual decision on the claim being made subsequently, following the assessment process envisaged by s 107. He concluded the s 110(3) determination was not one able to be pursued in the statutory dispute process.
[8] Brown J later granted leave by consent for a further appeal to this Court under s 163 of the Act.[11] The question stated by him for this Court’s opinion is:[12]

Whether an assessment made under s 110(3)(a) of the [Act] that a claimant is likely to achieve vocational independence constitutes a “decision” giving rise to review and appeal rights under Part 5 of the Act.

[9] Counsel were agreed at the hearing in this Court that the question would be more appropriately extended to cover both paras (a) and (b) of s 110(3) and we proceed accordingly, dealing with both likely achievement of vocational independence and completion of vocational rehabilitation. The result is that the answer we give to the question will not respond in precise terms to the question actually raised.

Relevant provisions of the Act

[10] The arguments presented on the appeal turn on the meaning of a number of provisions in the Act, which it is appropriate to set out.
[11] Section 6 contains a definition of “decision” in the following terms:

decision or Corporation’s decision includes all or any of the following decisions by the Corporation:

(a) a decision whether or not a claimant has cover:

(b) a decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury):

(c) a decision whether or not the Corporation will provide any entitlements to a claimant:

(d) a decision about which entitlements the Corporation will provide to a claimant:

(e) a decision about the level of any entitlements to be provided:

(f) a decision relating to the levy payable by a particular levy payer:

(g) a decision made under the Code about a claimant’s complaint

As Mr McGurk for the appellant emphasised, the definition is inclusive and does not purport to be comprehensive.

[12] Part 4 of the Act contains provisions dealing, amongst other things, with entitlements, rehabilitation plans, social rehabilitation, vocational rehabilitation, weekly compensation, incapacity for employment and related matters. Sections 107 and 110, which are the most important provisions in pt 4 for present purposes, are part of a group of provisions (ss 107–113) under the heading “Vocational independence”. The broad context in which they operate may be outlined by reference to:
[13] Section 100(2)(c) provides that s 107 applies to a claimant while the claimant is receiving weekly compensation. Section 100(3) then states that “The claimant may lose his or her entitlement to weekly compensation through the operation of sections 103 to 112.” Of those provisions, ss 103–106 relate to determination of incapacity for employment. If the Corporation determines a person is not incapacitated for employment the entitlement to weekly compensation is lost or does not arise.[20] Section 107 provides:

107 Corporation to determine vocational independence

(1) The Corporation may determine the vocational independence of—

(a) a claimant who is receiving weekly compensation:

(b) a claimant who may have an entitlement to weekly compensation.

(2) The Corporation determines a claimant’s vocational independence by requiring the claimant to participate in an assessment carried out—

(a) for the purpose in subsection (3); and

(b) in accordance with sections 108 to 110 and clauses 24 to 29 of Schedule 1; and

(c) at the Corporation’s expense.

(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.

[14] It is important also to note the definition of “vocational independence” in s 6 of the Act. The definition reads:

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

[15] Section 108(1) provides that an assessment of a claimant’s vocational independence must consist of both an occupational assessment and a medical assessment. The following subsections set out the purposes of the two kinds of assessment.
[16] The purpose of occupational assessments is broadly to consider the progress and outcomes of the vocational rehabilitation that has been carried out under the claimant’s individual rehabilitation plan and consider whether the types of work identified in that plan remain suitable for the claimant, matching the skills the claimant has gained through education, training or experience.[21]
[17] The purpose of a medical assessment is to provide an opinion for the Corporation as to whether the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant’s individual rehabilitation plan.[22]
[18] Section 109(1) enacts that the Corporation may determine the claimant’s vocational independence at such reasonable intervals as it considers appropriate. Redetermination is mandatory in circumstances then set out in s 109(2). In summary, s 109(2) obliges the Corporation to determine the claimant’s vocational independence a further time if it has carried out a previous assessment of vocational independence and it believes, or has reasonable grounds for believing, that the claimant’s vocational independence or capacity may have deteriorated due to the claimant’s injuries. The s 109(2) obligation does not limit the Corporation’s discretionary power under s 109(1).
[19] Section 110 then provides:
  1. 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.

[20] Section 111 sets out certain consequences that follow if the Corporation “determines under section 107 that a claimant has vocational independence”. First, the determination is regarded as a determination under s 103 that the claimant no longer has incapacity for employment and the entitlement to weekly compensation is lost after three months.[23] Second, the determination is regarded as a determination under s 105 that the claimant is able to engage in work for which he or she is suited, and once again the entitlement to weekly compensation is lost after three months.[24] Next, s 113 provides for claimants who had vocational independence but lost it. Section 113(1) provides that if the Corporation “determines under section 109 that a claimant no longer has vocational independence, the claimant regains his or her entitlement to weekly compensation”.
[21] We mention for completeness that Mr Hlavac for the respondent also relied on s 76(4) of the Act, which applies after an individual rehabilitation plan for a claimant has been agreed. The subsection obliges the Corporation to provide the claimant with rehabilitation in accordance with the plan and sch 1 to the extent that the Corporation has specified which services it will provide under the plan. Schedule 1 to the Act is a detailed provision dealing with entitlements. Mr Hlavac drew our attention to the provisions of cl 9 of the schedule, one of the provisions relating to individual rehabilitation plans. Clause 9 provides:

9 Disputes about plan

(1) For the purposes of Part 5 of this Act, the Corporation makes a decision when—

(a) the claimant agrees to a plan; or

(b) the Corporation advises the claimant that a plan has been finalised.

(2) The fact that a claimant has agreed to a plan does not affect his or her rights to make a review application under Part 5 of this Act with respect to the plan.

This provision clearly contemplates that arguments about the content of an individual rehabilitation plan can be pursued in the statutory dispute process.

[22] Finally, we note that s 133(5) of the Act provides that if a person has a claim under the Act and has a right of review or appeal in relation to that claim:

... no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides.

Appellant’s argument

[23] The starting point for Mr McGurk’s argument is the prohibition in s 110(3) against requiring a claimant to participate in an assessment of the claimant’s vocational independence unless the requirements of paras (a) and (b) are satisfied. Mr McGurk submitted that in determining those requirements have been satisfied the Corporation is making a decision.
[24] He noted that the Act’s definition of “decision” is inclusive, and therefore not limited to particular decisions listed in the definition. He contrasted this with the definition that previously applied in s 13 of the Accident Insurance Act 1998. Citing Accident Compensation Corporation v Hawea, he submitted that a determination under s 110(3) is a decision because it involves the exercise of judgment followed by conclusion or resolution.[25]
[25] Mr McGurk placed considerable emphasis on McGrath, in which the Supreme Court had, as he put it, treated the s 110(3) determination as being one of substance, to be made objectively and on reasonable grounds.[26] In accordance with the Supreme Court’s decision, the Corporation could only require a claimant to undergo a vocational independence assessment when the claimant is likely to be assessed as vocationally independent. Mr McGurk submitted the decision established the importance of the s 110(3) prohibition by holding that a notice requiring a claimant to participate in an assessment, given when the Corporation could not reasonably have considered vocational independence was likely to be achieved, should be quashed.
[26] Mr McGurk noted that the Supreme Court had emphasised the role of s 110(3) in protecting claimants from unnecessary assessments under s 107. He argued the judgment essentially treated s 110(3) as requiring a conclusion as a result of the exercise of judgment, the hallmarks of the decision described in Hawea.[27] In order for the prohibition to be meaningful and taken seriously, there had to be an effective mechanism for claimants to be able to challenge the determination.
[27] All this made it appropriate to treat the determination under s 110(3) as a decision for the purposes of the statutory dispute process. That process, characterised by this Court as “simple, cheap and effective”[28] was preferable to the alternative of leaving claimants wishing to challenge the determination to the remedy of judicial review.
[28] Mr McGurk’s argument also relied on a number of District Court decisions in which appeals had been allowed against determinations of vocational independence made by the Corporation under s 107; the Court deciding that there had been insufficient evidence to support a reasonable conclusion that a claimant was likely to achieve vocational independence, that is, in terms of McGrath, the Corporation could not have been satisfied that the s 110(3) threshold had been met.[29] Mr McGurk submitted that the prohibition in s 110(3) should operate regardless of the point in time when non-compliance with the subsection is identified. Denying claimants the opportunity to identify a wrongful s 110(3) assessment until after referral to the vocational independence assessment process has occurred would deprive claimants of the protection the prohibition was intended to provide. The questions arising under s 110(3) would remain the same whether considered at the stage of the s 110(3) determination or subsequently under s 107. A determination under s 110(3)(a) might involve a comprehensive assessment of medical evidence: the determination should be susceptible to challenge in the statutory dispute process immediately after it is made, and to require the claimant to wait for the Corporation’s determination under s 107 is inappropriate.
[29] Although submitting that the Corporation’s determinations under both subs (3)(a) and (b) should be susceptible to challenge in the statutory dispute process, Mr McGurk advanced a separate and additional argument in relation to para (b). He submitted that a determination that a claimant’s rehabilitation is complete was in fact within the definition of “decision” in s 6 because vocational rehabilitation is one of the expressly stated entitlements set out in s 69(1)(a) of the Act. A determination that vocational rehabilitation has been completed for the purposes of s 110(3)(b) would be a decision directly affecting the appellant’s entitlement to vocational rehabilitation. Thus it could be brought within paras (c) and/or (d) of the definition of “decision”. Mr McGurk drew an analogy to the High Court’s decision in Weir v Accident Compensation Corporation in which the Corporation had prepared an individual rehabilitation plan under s 75 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 providing for the claimant’s return to work, and the High Court held that the individual rehabilitation plan was reviewable as a decision on the claim for the purposes of s 134 of that Act.[30]

Respondent’s argument

[30] Mr Hlavac submitted that the statutory dispute process applies to decisions made by the Corporation concerning issues of cover and/or entitlements that affect a claimant’s substantive rights under the Act. The statute provides for a number of administrative actions to be taken by the Corporation in the course of managing a claim. These include requiring a claimant to provide information or undergo assessment. While such requirements might have an impact on a claimant, they do not affect the claimant’s substantive rights under the Act. Ultimately, the actions might result in a decision that affects a claimant’s rights in respect of cover or entitlements but that would depend on subsequent decisions by the Corporation.
[31] Mr Hlavac submitted that a requirement by the Corporation that a claimant participate in an assessment of vocational independence was a requirement of an administrative nature. It might or might not result in a finding of vocational independence and, as a consequence, a decision to cease providing weekly compensation. While part of the Corporation’s decision-making process, it is not a “decision” as defined because it does not of itself affect a claimant’s rights in respect of cover or entitlement. Mr Hlavac pointed out that claimants complaining about the Corporation’s requirement that they participate in an assessment could not prove they are unlikely to achieve vocational independence other than in the process envisaged by s 110(3). He submitted it followed that any challenge could only be as to the process adopted by the Corporation and whether it acted reasonably in forming the judgment that a claimant was likely to achieve vocational independence. He submitted such a challenge is more appropriately dealt with through judicial review than in the statutory dispute process.
[32] However, if the vocational independence assessment results in a finding that a claimant is vocationally independent, any decision by the Corporation affecting the claimant’s rights to an entitlement is capable of being challenged through the statutory dispute process. Any challenge to the decision about the completion of vocational rehabilitation under the individual rehabilitation plan could itself be the subject of the statutory dispute process by reason of cl 9 of sch 1 to the Act.

Discussion

[33] There is no doubt, and it is common ground, that a decision by the Corporation under s 107(1) that a claimant has vocational independence could be the subject of the statutory dispute process. That would clearly be a decision on the claim: the consequences set out in ss 111 and 112 would bring the decision within paras (c) and (d) of the definition of “decision” in s 6. However, the appellant’s arguments focus on the character of a determination that the requirements of s 110(3) have been met.
[34] We accept Mr McGurk’s submission that the Supreme Court’s judgment in McGrath affirms the importance of s 110(3) in the statutory scheme. The Court described s 110(3) as setting a “threshold for exercise of the Corporation’s power to require vocational independence assessment for a claimant receiving weekly compensation”.[31] Subsequently, the Court observed:

[32] The legislative history of s 110(3) suggests that its purpose is to protect claimants from unnecessary assessments where there is no real prospect of vocational independence. Such assessments are intrusive and may be upsetting.

[35] The Court recorded that the provision had been inserted into the Injury Prevention and Rehabilitation Bill on the recommendation of the Parliamentary Select Committee.[32] In its report, the Select Committee had indicated that the recommendation resulted from the Committee’s acceptance of a submission that the Corporation should only refer claimants to the assessment procedure if it believed they were likely to be able to be engaged in full-time work. The objective of this and other amendments recommended by the Committee was to ensure there was sufficient emphasis on “targeted, realistic and achievable rehabilitation to meet the rehabilitation requirements of the Bill”.[33]
[36] Against the background of the legislative history, the Court noted that the prospect of the claimant being likely to achieve vocational independence was something that needed to be considered at the time the assessment was required.[34] In the circumstances, s 110(3) was not to be read as looking to future attainment of vocational independence, rather:[35]

... it is clear from s 110 as a whole that vocational independence is achieved through and at the time of the required assessment. Indeed, the Corporation did not support the approach suggested by the Court of Appeal and takes the view, in agreement with the appellant, that vocational independence must be likely at the time of referral, rather than within a longer timeframe.

[37] It followed also that this Court had been wrong to suggest that vocational assessment could be required with a view to identifying further rehabilitative steps that may be desirable. On the contrary, the effect of s 110(3) is that “the Corporation can require a claimant to undergo vocational independence assessment only when the claimant is likely to be assessed as vocationally independent”.[36]
[38] However, none of these observations support Mr McGurk’s argument that a determination that the requirements of s 110(3) have been satisfied amounts to a “decision” for the purposes of the statutory dispute process. While the point that we must now decide was not argued in McGrath, it is interesting to note that the Supreme Court’s discussion of s 110(3) proceeded on the basis that compliance with its requirements could be “compelled through recourse to the supervisory jurisdiction of the court”, plainly a reference to applications for judicial review.[37] Further, the Court observed:[38]

The responsibility of the court on judicial review is to ensure that the legislative condition is fulfilled. ... The court was obliged to assess the objective reasonableness of the view that vocational independence was likely to be achieved. ... It appears that the High Court and Court of Appeal did not properly consider whether the condition in s 110(3) was substantively fulfilled because of the mistaken view that the supervisory jurisdiction did not call for such assessment.

[39] Once again, the language is consistent with judicial review. This is significant for three reasons. First, the Court did not suggest that the remedy of judicial review of the s 110(3) determination would be inappropriate or ineffective. On the contrary, the decision implies that is the appropriate remedy. Second, the Court did not suggest that the matter was one that could be subject to the statutory dispute process. Although that issue was not referred to, we think it likely that had the Court been of the view that the statutory dispute process was available, it would have said so. Third, a decision that the statutory dispute process was available would have carried with it the necessary implication that any challenge to the Corporation’s determination should be made in the statutory dispute process and not by way of judicial review. That is the effect of s 133(5) of the Act, as Mr McGurk eventually conceded in argument. We think it unlikely the Court would have ignored that issue if it considered the statutory dispute process was available.
[40] Other considerations arising from the statutory scheme support the view that the determination made for the purposes of s 110(3) is not to be regarded as within the ambit of the statutory dispute process. While the definition of “decision” does not purport to be exhaustive, the issue whether it embraces particular matters that the Corporation has to decide must always be addressed in context. The relevant context here includes not only s 110(3), but all of the provisions under the heading “Vocational independence” in this part of the Act. These provisions, ss 107–113, have been addressed above. They deal with the Corporation’s decision-making in relation to vocational independence and the consequences of its determinations.
[41] The process envisaged is straightforward. It involves a determination of vocational independence, made under s 107(1). Section 107(2) then says how the determination is to be made: by requiring the claimant to participate in an assessment carried out for the purpose set out in subs (3) and in accordance with ss 108–110 and cls 24–29 of sch 1.[39] But the determination remains one made under s 107(1). In this setting, s 110(3) establishes matters of which the Corporation must be satisfied before it can set in train the process of assessment of vocational independence. If it is not satisfied that the requirements of paras (a) and (b) have been met it cannot give the notice required by s 110(1). Unless so satisfied, the Corporation could never make the determination contemplated by s 107(1).
[42] It is the s 107(1) determination of vocational independence that has the effects set out in ss 111 and 112. Both sections begin by referring to determinations by the Corporation “under section 107” that the claimant has vocational independence.
[43] These provisions do not support the appellant’s proposition that the Corporation’s conclusion the requirements of s 110(3) have been met is a decision “on the claim” so as to enable the statutory dispute process to be triggered under s 134.
[44] The right to apply for review, thereby commencing the statutory dispute process, is relevantly given in respect of decisions of the Corporation on the claim.[40] However, it is not sufficient to ask whether the determination might be characterised as a decision “on the claim” without having regard to the way in which “decision” is defined in s 6. The question raised is whether deciding the requirements of s 110(3) have been satisfied is a decision about:[41]

The s 110(3) determination fits into none of these limbs of the definition.

[45] While the definition is not exhaustive, it nevertheless apparently defines a class of decision that has direct implications for cover and the claimant’s receipt of entitlements under the Act. Here, the relevant consequences flow from the determination under s 107: that is the specific language used in ss 111 and 112. At most, the determination necessary for the purposes of s 110(3) is a determination preliminary to any decision on the claim. The actual decision is made under s 107. We are accordingly of the view that there is no separate right to apply for a review of the s 110 determination under s 134(1).
[46] We accordingly reject Mr McGurk's argument that the terms of s 110(3) (likely to achieve vocational independence and completion of vocational rehabilitation) mean that a claimant’s entitlement to rehabilitation is necessarily affected by the Corporation’s assessment that those preconditions had been satisfied. In our view, the terms of s 107(3) make it clear that that is not the case. Section 107(3) stipulates that the purpose of a vocational independence assessment is to determine not only that the claimant's individual rehabilitation plan has been completed but also that it has focused on the claimant’s needs, and addressed any injury-related barriers to enable the claimant to regain or acquire vocational independence. That is the substantive decision to be made. The way that decision is described necessarily means that a vocational independence assessment may, notwithstanding the s 110(3) threshold being met, result in a decision that rehabilitation thus far has not addressed injury-related barriers so as to enable the claimant to regain or acquire vocational independence.
[47] We do not overlook the fact that the Corporation must believe on reasonable grounds, before it issues a notice under s 110(1), that the claimant is likely to achieve vocational independence. In accordance with McGrath, the notice cannot be given on the basis that the Corporation can defer reaching a view on that likelihood to a subsequent point. However, determining that vocational independence is likely is not one and the same thing as determining that the claimant has achieved vocational independence.[42] The statute clearly contemplates that the various processes envisaged by s 107(2) will be influential in that ultimate determination.
[48] Nor have we overlooked Mr McGurk’s particular argument based on s 110(3)(b). As just mentioned, a determination that the claimant has completed any vocational rehabilitation the Corporation was liable to provide under the claimant’s individual rehabilitation plan is not the same as a determination that vocational rehabilitation is complete. While the former is another necessary precursor to the issue of the s 110(1) notice, what follows is a detailed assessment of vocational rehabilitation in the assessment process under cls 24–29 of sch 1. That assessment is for the purpose set out in s 107(3). It is to ensure not only that the vocational rehabilitation set out in the claimant’s individual rehabilitation plan has been completed, but also that it has focused on the claimant’s needs and addressed any injury-related barriers to enable the claimant to work, and regain or acquire vocational independence. Section 108(2) is also relevant, with its reference to the purpose of the occupational assessment under cl 25 of sch 1, including “the progress and outcomes of vocational rehabilitation under the claimant’s individual rehabilitation plan”.
[49] We consider it would be an odd outcome if the conclusion reached for the purpose of s 110(3)(b) were to be treated as the effective resolution of all issues relating to a claimant’s vocational rehabilitation. Once again, while the Corporation must be of the view under s 110(3)(b) that vocational rehabilitation as required by the rehabilitation plan has been completed, it is clear the Act envisages the assessment process that will follow issue of the notice might result in further consideration being given to a claimant’s needs for rehabilitation. There must, after all, be some purpose in the detailed process that follows the issue of the notice, and, as has been seen, s 109(1) empowers the Corporation to assess vocational independence more than once. Further, we do not accept that the conclusion s 110(3)(b) has been satisfied means that there has been a decision about whether or not the Corporation will provide an entitlement (vocational rehabilitation) or about which entitlements the Corporation will provide, having regard to paras (c) and (d) of the definition of “decision”. In this case too, the decision is that made under s 107(1).
[50] We have not thought it necessary to address in any detail the cases to which Mr McGurk referred apart from McGrath. While we accept the definition of “decision” in the statute does not purport to be exhaustive, we do not think anything is to be gained in this case by approaching the issues on the basis of the general characteristics of a “decision” in accordance with Mr McGurk’s submission based on Hawea. Nor have we been assisted by the High Court’s decision in Weir, which held that the scope of an individual rehabilitation plan could be reviewed because it was a decision on a claim.[43] The preferable approach is to ask whether the legislature envisaged that the s 110(3) determination should be subject to the statutory dispute process by examining the relevant statutory provisions, including the definition of decision, in context. For the reasons we have set out we do not think that it did.
[51] The fact that there are District Court judgments allowing appeals from determinations made under s 107 on the ground, amongst others, that the Corporation could not have properly reached a conclusion that the requirements of s 110(3) had been satisfied does not suggest there is a separate right to apply under s 134(1) for a review of the s 110(3) determination. The discussion in McGrath contemplates that issue can appropriately be pursued in judicial review proceedings prior to any decision under s 107, and the statutory dispute process is available in respect of those determinations directly affecting the claimant’s entitlements.
[52] Nor do we accept Mr McGurk’s assertion that the questions arising under s 110(3) will be the same as those arising under s 107. They may be, but not necessarily. Were it otherwise there would be no need for the assessment process that follows the issue of a s 110(1) notice or for a determination under s 107(1). Yet the statutory language consistently refers to the determination of the claimant’s vocational independence being made under that provision.

Result

[53] For the reasons we have expressed we dismiss the appeal. We answer the question by stating that a determination by the Corporation that the requirements of s 110(3) of the Act have been met is not a decision giving rise to appeal and review rights under pt 5 of the Act.
[54] The respondent does not seek costs and we make no order accordingly.

Solicitors:
T R Hawkins, Upper Hutt for Appellant
Young Hunter, Auckland for Respondent

[1] Accident Compensation Act 2001, s 107(2).

[2] Section 110.

[3] Paragraph (b).

[4] Paragraphs (a) and (b).

[5] McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [30]‒[31].

[6] We use this convenient shorthand intending to distinguish the review and appeal process under pt 5 from applications for judicial review under the Judicature Amendment Act 1972.

[7] Section 134(1) also gives claimants the right to apply for a review of any delay in processing a claim for entitlement that the claimant believes is an unreasonable delay, and of any of the Corporation’s decisions under the Code of ACC Claimants’ Rights set out in pt 3 of the Act.

[8] Splite v Accident Compensation Corporation [2013] NZACC 129 at [10].

[9] Splite v Accident Compensation Corporation [2014] NZACC 124.

[10] Splite v Accident Compensation Corporation [2014] NZHC 2717.

[11] Splite v Accident Compensation Corporation HC Auckland CIV-2014-485-7329, 17 March 2015 (Minute of Brown J).

[12] At [1].

[13] Accident Compensation Act, s 69.

[14] Section 70(a).

[15] Section 70(b).

[16] Section 75(a)(ii).

[17] Sections 81–84.

[18] Sections 85–96.

[19] Section 100(1).

[20] Sections 104 and 106.

[21] Section 108(2).

[22] Section 108(3).

[23] Sections 111(a) and 112.

[24] Sections 111(b) and 112.

[25] Accident Compensation Corporation v Hawea [2004] NZAR 673 (HC) at [18].

[26] McGrath, above n 5.

[27] Hawea, above n 25, at [18].

[28] Dean v Chief Executive of the Accident Compensation Corporation [2007] NZCA 462, [2008] NZAR 318 at [40].

[29] See Williams v Accident Compensation Corporation [2014] NZACC 187 at [20]; Briggs v Accident Compensation Corporation [2014] NZACC 194 at [18]; Cowley v Accident Compensation Corporation [2014] NZACC 197 at [20]; and Kennedy v Accident Compensation Corporation [2016] NZACC 75 at [29].

[30] Weir v Accident Compensation Corporation HC Wellington CIV-2003-485-1921, 18 August 2004.

[31] McGrath, above n 5, at [30].

[32] At [32].

[33] Injury Prevention and Rehabilitation Bill 2000 (90-2) (select committee report) at 6 and 15.

[34] McGrath, above n 5, at [34].

[35] Ibid.

[36] At [36].

[37] At [30].

[38] At [31].

[39] Clauses 24–29 contain detailed provisions for occupational assessments and medical assessments.

[40] Section 134(1)(a).

[41] Paragraphs (f) and (g) of the definition of decision in s 6 are not relevant.

[42] McGrath, above n 5.

[43] Weir, above n 30, at [42].

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