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High Court of New Zealand Decisions |
Last Updated: 10 December 2018
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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
[2018] NZHC 3190 |
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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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21 November 2018
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Appearances:
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A C Beck for the Appellant
D K L Tuiqereqere for the Respondent
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Judgment:
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5 December 2018
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JUDGMENT OF CULL J
[1] Ms Gaskin applies for special leave to appeal to this Court against the decision of Judge J H Walker under the Accident Compensation Act 2001 (the Act).1 Leave to appeal was refused by the District Court on 23 August 2018.2 The principal ground Ms Gaskin seeks to have argued is whether the Judge wrongly applied the law governing the vocational independence process under the Act and failed to consider the threshold test in s 110 of the Act.
[2] Ms Gaskin injured her lower back, while working as a night filler for a supermarket in Palmerston North, in August 2013. Following an investigation, the Accident Compensation Corp (ACC) accepted Ms Gaskin’s claim, and certified her unfit from the date of the accident. Ms Gaskin received weekly compensation
1 Gaskin v Accident Compensation Corp [2017] NZACC 63.
2 Gaskin v Accident Compensation Corp [2018] NZACC 134.
GASKIN v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 3190 [5 December 2018]
payments, and completed numerous assessments and return to work programmes. By September 2015, an assessment determined that Ms Gaskin could return to work in six job types for 30 hours a week, with light duties. In October 2015, Ms Gaskin was assessed to be vocationally independent in these job types, namely, she could return to work for 30 hours a week. Up to that time, Ms Gaskin had worked two to three hours per day doing light duties only. Ms Gaskin’s weekly compensation subsequently ceased.
[3] ACC opposes Ms Gaskin’s application for special leave. ACC submits that the grounds advanced are questions of fact dressed up as questions of law and there is no real prospect of success on appeal. ACC argues that the outcome of the case in the District Court turned on its facts.
[4] The principal issue before this Court is whether there is an arguable question of law to be determined on appeal.
Factual background
[5] Ms Gaskin was employed as a night filler at Countdown in Palmerston North. On 13 August 2013, she injured her lower back while stacking shelves. The pain became worse over the following week as she continued with night shifts.
[6] ACC granted her cover and Ms Gaskin was certified unfit from the date of the accident. Once her weekly compensation was calculated, ACC commenced paying her. Ms Gaskin also attended physiotherapy sessions.
[7] In September 2013 Aon referred her to VOC Health for an assessment. A Stay at Work programme was developed for her in September and October. In October, Dr Durie diagnosed Ms Gaskin with a “mechanical problem in her lower back causing somatic referred pain down her left leg” and she was fit only for light duties. Ms Gaskin completed light duties part time during October and November.
[8] On 11 November 2013, Work Aon prepared an Individual Rehabilitation Plan (IRP) for Ms Gaskin, which envisaged VOC Health being asked to assess her graduated Return to Work plan. On 13 November, Ms Gaskin suffered further back spasms and increased pain. On 20 November, she consulted Dr Loo, and later, on 26 November, she was referred back to Dr Durie and reported that her pain had not abated. He recommended an MRI scan which was obtained in January 2014 and showed impingement on the nerve roots in her lumbar spine.
[9] On 24 January 2014, VOC Health wrote to Dr Durie outlining Ms Gaskin’s return to work, although this regressed as of 22 January and she was unable to continue working because of pain. A Graduated Return to Work Programme was attached.
[10] In March 2014, Dr Burgess reviewed Ms Gaskin’s file and noted that the initial injury event seemed minor and ongoing symptoms were probably reflective of an underlying degenerative condition exaggerated, but not caused by, the original event.
[11] Work Aon sought advice and a review from Dr Hartshorn, a specialist occupational physician, who acknowledged that there were some pre-existing changes present but that there was still evidence of a defined injury. He commented that there was potential for her to return to work.
[12] In May 2014, a workplace assessment was completed. By 26 June 2014, Ms Gaskin was working two hours per day doing light duties. In mid-2014, Ms Gaskin was referred for an initial vocational rehabilitation assessment under s 89 of the Act. On 24 July 2014, an Initial Occupational Assessment Report was completed by Linda Norfolk. The report stated there were 18 job options that were vocationally suitable, although it identified various barriers Ms Gaskin faced, including the need for training in several areas.
[13] On 14 October 2014, Dr Hartshorn conducted an Initial Medical Assessment and identified that Ms Gaskin would not be able to manage a successful return to her pre-injury employment, given the requirements of bending and lifting. He considered vocational change into light sedentary work was appropriate and she was likely to be able to complete 12 job types.
[14] In November 2014, a report from Return to Work Monitoring recorded that Ms Gaskin could manage only three to three and a half hours a day, and that she went home early. She was not making sufficient recovery to enable increased work hours. That same month, Dr de Groot agreed with Dr Hartshorn’s conclusions about light work.
[15] Between 9 January and 15 February 2015, Mr Su, a physiotherapist, completed a Functional Reactivation Programme Report. This put in place a plan of action to support Ms Gaskin’s recovery. He noted that she was unable to complete the majority of goals identified in the plan of action to return to work. In particular, Mr Su recorded in his progress report and his completion report that Ms Gaskin’s return to full duties at work was not achieved. He wrote:
Jan started a gradual return to work for three 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.
[16] A follow-up specialist medical report was completed on 8 April 2015. Dr de Groot noted the functional reactivation programme and psychological input had been completed and had been beneficial for Ms Gaskin, reducing her pain and increasing her ability to cope in her home environment. Dr de Groot formally certified that Ms Gaskin was no longer fit to return to being a shelf stacker, but had the capacity to work in a setting which provides much lighter duties, such as in the retail sector. He recorded that her goal was to now find suitable sustainable employment with lighter duties through Workbridge. This was consistent with a further psychological pain report completed on 17 May 2015 by Mr Coles, a registered psychologist.
[17] In July 2015, Work Aon, on behalf of ACC, met with Ms Gaskin to discuss her individual Return to Work plan. Work Aon recorded that Ms Gaskin had been completing a work-ready programme, before starting vocational independence (VI). It was noted that in a discussion about Ms Gaskin’s return to work, her only job options were her pre-injury job, which Ms Gaskin “feels will just cause problems again.”
[18] In August 2015, Dr Burgess certified that Ms Gaskin’s work-ready programme was completed, her CV was updated, and her vocational rehabilitation was now complete. A Vocational Independence Occupational Assessment was then completed
on 17 August 2015 by At Work Solutions Ltd, which identified 14 job options as vocationally suitable for Ms Gaskin. It did not identify any barriers to her returning to work in those identified job options.
[19] In September 2015, Dr Christian completed a Vocational Independence Medical Assessment Report and concluded that the treatment was appropriate and effective to a degree. Ms Gaskin reported managing her pain better than she had six to 12 months earlier. He concluded that Ms Gaskin could work 30 hours a week in a suitable light role with a mix of sitting, standing and walking throughout the day. He recorded that Ms Gaskin had agreed that a light retail or light work role, where she could change position and move around, would be suitable. Dr Christian identified the following six job options as suitable: retail supervisor; sales assistant; despatch or receiving clerk; stock clerk; diversional therapist; and occupational health and safety advisor.
[20] On 7 October 2015, Work Aon issued a decision advising Ms Gaskin that she was vocationally independent in six job options and that her weekly compensation payments would cease on 7 January 2016.
[21] On 21 December 2015, Ms Gaskin applied for a review of the decision. The review was dismissed on 21 May 2015, concluding that the referral for vocational independence was appropriate, the vocational rehabilitation provided was appropriate, and there was no evidence of a flaw in the Vocational Independence Medical Assessment.
District Court decisions
Substantive decision dismissing appeal
[22] On appeal, Judge Walker rejected Ms Gaskin’s submissions that a two-step process was required for rehabilitation under the Act, namely:
(a) considering whether a return to work in her former employment can be achieved; and
(b) whether there is alternative suitable employment.
[23] The Judge found that the Act did not require this two-step process and could see no reason why these processes could not be conducted concurrently through the same process, while identifying alternate options.
[24] The Judge rejected Ms Gaskin’s submissions that the assessment process and determination of vocational rehabilitation and independence under s 110(3) of the Act was flawed. The Judge distinguished the case of McGrath v Accident Compensation Corp,3 on the basis that in that case there was definitive medical information that Ms McGrath did not have the ability to work more than 15 hours a week and vocational independence could be determined on that basis.
[25] The Judge accepted ACC’s submission that Ms Gaskin had not identified what additional vocational rehabilitation could have been of assistance and why her acknowledged abilities and skills were not deemed sufficient. The Judge held it was clear the professionals addressed her pain as well as her physical and psychological functions, which assisted in determining appropriate work types.
[26] Further, the Judge did not accept that the Vocational Independence Medical Assessment was flawed. The Judge found Dr Christian’s assessment was carefully completed and took into account Ms Gaskin’s current symptoms, relevant history and conducted an interview with her in person. The discussion with Ms Gaskin about job types indicated enthusiasm, interest and confidence in her ability to undertake those or similar types of work.
[27] The Judge observed there had been a recognised improvement in Ms Gaskin’s pain levels and her ability to manage her condition in the past, which supports her ability to undertake work for 30 hours a week in the roles suggested. The Judge clarified that the assessment did not mean that the jobs were available, but identified that Ms Gaskin had the skills and abilities to work in certain fields, albeit in a more restricted role than a person not suffering from any physical disability.
3 McGrath v Accident Compensation Corp [2011] NZSC 77, [2011] 3 NZLR 733.
[28] The Judge concluded that ACC’s decision was properly made in terms of the process followed and in obtaining the assessments that were relied on.
Decision declining leave to appeal
[29] Judge Harrison declined Ms Gaskin leave to appeal on 23 August 2018.4
[30] Again, the Judge rejected Ms Gaskin’s submission that ACC was required to undertake a two-step process in considering vocational rehabilitation and observed that under s 86(2) of the Act, the Act contemplates ACC concurrently addressing whether it is feasible for the claimant to recommence her previous employment and, if not, what other options might be appropriate. He considered that this can be undertaken at one assessment, without the need for a two-step process, and agreed with Judge Walker, that there was no identification of what additional vocational rehabilitation might have been of assistance to Ms Gaskin in assessing further options under s 86(2).
[31] The Judge rejected Ms Gaskin’s further grounds, finding that there was no error of law in the Judge’s findings on the Vocational Independence Medical Assessment processes, and nor did the Court err in failing to address or apply the statutory test in s 110(3) of the Act. The Judge held this was an issue of fact, not law and rejected Ms Gaskin’s other submissions, including the allegation that the Court failed to supply adequate reasons for its decision.
Special leave to appeal
[32] Ms Gaskin applies for special leave to appeal to this Court under s 162 of the Act, which permits a party to appeal a decision of the District Court to this Court on a question of law, if leave is granted by the District Court or special leave is granted by this Court.
4 Gaskin, above n 2.
[33] As s 162 prescribes, an appeal to the High Court is allowed only on a question of law. Dunningham J held in Gilmore v Accident Compensation Corp that a question of law properly arises in the following circumstances:5
A question of law does not arise where the Court has merely applied law, which it has correctly understood, to the facts of an individual case. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is the matter for the fact-finding Court unless clearly unsupportable. Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law. However, issues of fact should not be dressed up as questions of law. That said, a mixed question of law and fact is a matter of law.
[34] To obtain special leave, Ms Gaskin must identify a question of law that is also capable of bona fide and serious argument.6 Demonstrating that there is an arguable error of law is not determinative by itself, as the Court must still consider whether there is a question of sufficient public or private interest to outweigh the cost and delay of a further appeal.7
[35] The principles that apply to an application for special leave were set out by Fisher J in Kenyon v Accident Compensation Corp as follows:8
(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA)
(b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principal at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle; Manawatu Co-op Dairy Company Limited v Lawry [1988] DCR 509; Brown v Chowmein Fashions Limited (1993) 7 PRNZ 43
(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O’Loughlin v Healing Industries Limited (1990) PRNZ 464
(d) It is for the Applicant to show that leave is required in the interests of justice: Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA)
5 Gilmore v Accident Compensation Corp [2016] NZHC 1594 at [28] (footnotes omitted).
7 Gilmore, above n 5, at [5] and [29].
8 Kenyon v Accident Compensation Corp [2001] NZHC 1301; [2002] NZAR 385 (HC) at [15].
(e) As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chowmein Fashions Limited.
Grounds of proposed appeal
[36] Mr Beck, counsel for Ms Gaskin, submits that the Judge erred by:
(a) failing to correctly apply the law governing the vocational independence process and the provisions in Part 4 of the Act;
(b) failing to correctly apply the law under s 110 of the Act as determined by the Supreme Court in McGrath v Accident Compensation Corp;9
(c) failing to apply the correct approach on appeal and make an independent determination, based on the evidence, as to whether the applicant was vocationally independent; and
(d) failing to provide adequate reasons for her conclusions.
Relevant legislation
[37] The Judge in the District Court decision set out the relevant legislation in relation to the definition of, and the determination about, vocational independence and vocational rehabilitation.10
[38] For present purposes, the relevant statutory provisions are the s 6 definition, which defines vocational independence as:
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
9 McGrath, above n 3.
10 Gaskin, above n 1, at [59]–[68].
[39] Section 107(3) empowers ACC to determine a claimant’s vocational independence and sets out the purpose of the assessment as follows:
107 Corporation to determine vocational independence
...
(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.
[40] Section 110 of the Act requires ACC to give notice to the claimant in respect of the vocational independence assessment and s 110(3) provides that the claimant is not required to participate in a vocational independence assessment unless the claimant is likely to achieve vocational independence and until the claimant has completed any vocational rehabilitation. Section 110(3) provides:
[41] Sections 86 and 87 of the Act set out the matters which need to be considered when ACC decides whether to provide vocational rehabilitation to a claimant. Those sections are also set out for completeness:
(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.
(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).
(2A) Subsection (2) is subject to subsection (2B).
(2B) Despite subsection (2), the Corporation may, at its discretion, provide vocational rehabilitation for longer than 3 years if the Corporation considers that–
(a) the vocational rehabilitation would be likely to achieve its purpose under the claimant’s individual rehabilitation plan; and
(b) the vocational rehabilitation would be 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) the vocational rehabilitation would be appropriate in the circumstances.
...
Discussion
[42] Section 110 of the Act requires that two preconditions are satisfied, before any vocational independence assessments are undertaken. Those two preconditions are that rehabilitation must be complete and vocational independence must be “likely”.
[43] In McGrath v ACC, the Supreme Court held that s 110(3) set a threshold for the exercise of the Corporation’s power to require a vocational independence assessment for a claimant receiving weekly compensation. The Court said:11
Compliance with the threshold set by the legislation can be compelled through recourse to the supervisory jurisdiction of the court, as has been accepted by the Corporation since the judgment of the High Court.
... 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.
[44] From my review of Ms Gaskin’s assessments under the Act as set out above, I note that in February 2015, Mr Su recorded that Ms Gaskin managed work for three hours a day doing light duties for a week only and the functional goals identified in her plan of action were not achieved.12 When Dr Burgess certified in August 2015 that Ms Gaskin’s vocational rehabilitation was complete and Ms Gaskin was referred for Vocational Independence Occupational Assessment, there was no trial or assessment of Ms Gaskin’s ability to undertake work for 30 hours a week.
[45] By the time Ms Gaskin was referred to Dr Christian in September 2015, although job options had been identified as “vocationally suitable for Ms Gaskin”, the conclusion reached by Dr Christian, that Ms Gaskin was able to work for 30 hours per
11 McGrath, above n 3, at [30] and [31].
12 At [15] of this judgment.
week or more in a suitable light role, had never been tested. I consider – albeit on a preliminary view only – that it is arguable the legislative threshold test had not been satisfied, because Ms Gaskin’s rehabilitation was not yet complete and her vocational independence – i.e. her ability to work for 30 hours a week – was not “likely” at the time she was referred to Dr Christian for a Vocational Independence Medical Assessment report.
[46] Notwithstanding the submission from ACC that this is a question of fact, not law, I am satisfied that this case does raise an arguable mixed question of fact and law as to whether the legislative threshold for vocational independence assessment has been met. In the District Court decision, Judge Walker distinguished McGrath on the grounds that Ms McGrath had definitive medical information she did not have the ability to work more than 15 hours a week.13 The Judge did not consider whether Ms Gaskin’s inability to work more than three hours a day – which she completed for a week only – could translate into a likely vocational independence return to work of 30 hours per week.
[47] Further, the Judge focused on whether there had been any identification by Ms Gaskin of what additional vocational rehabilitation could have been of assistance and why her “acknowledged abilities and skills after a long period of employment were not deemed to be sufficient.”14 This observation reinforces my view that the Judge did not have regard to the statutory threshold test for vocational independence for Ms Gaskin and blurred the distinction between that and vocational rehabilitation, which must be complete before vocational independence assessments are undertaken.
[48] The second matter concerns whether Ms Gaskin’s rehabilitation needs have been properly addressed under s 86(2)(a) and (b). Mr Beck argues that Ms Gaskin’s vocational rehabilitation was not properly considered, because there was no clear distinction drawn between the return to pre-injury employment under s 86(2)(a) and, where that is not possible, considering alternative employment under s 86(2)(b). Judge Walker found that the two-step process can be undertaken in one assessment. However, the more important consideration, in my view, was whether ACC’s process
13 Gaskin, above n 1, at [165].
14 At [166].
followed the requirements of the Act to ensure that the processes required for returning to pre-injury employment were not confused with the process for obtaining vocational independence in a new occupation.
[49] I do not consider it is appropriate for me to delve into the facts and legal issues raised by the application for special leave to appeal, because I am granting the application for special leave. I am satisfied, however, that this issue also raises an arguable mixed question of fact and law as to whether, in terms of the High Court’s decision in Weir v Accident Compensation Corp and the legislative provisions on vocational rehabilitation under the Act, ACC complied with the statutory requirements in addressing Ms Gaskin’s vocational rehabilitation needs and whether the Judge erred in finding ACC so complied.
Result
[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?
(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?
Costs
[51] Costs in relation to this special leave application are reserved and will be determined in conjunction with the appeal.
Cull J
Medico Law, Auckland for the Respondent
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