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Accident Compensation Cases

Chalecki v Accident Compensation Corporation (ACAA, 26/10/12)

Judgment Text

R Bedford Member
This appeal is brought against a Review decision issued on 17 August 2011, in which the Reviewer declined jurisdiction to consider the rehabilitation and training received by the appellant under the Accident Compensation Act 1982 because no reviewable decisions had been made by the Corporation, and refused to award costs because he did not consider that the application for review had been reasonably brought. 
The Notice of Appeal 
The review was described as being held under Part 5 of the Accident Compensation Act 2001 and the right of appeal was given to both parties to the District Court. The notice of appeal was filed with the Authority. 
The grounds for appeal were that the Reviewer: 
Was wrong to consider the review under the 2001 Act and decide not to follow Langhorne v ACC [2010] NZACA 4
Was wrong to decide that a decision letter was required before a claimant could show ACC made up its mind as no written notice of the two decisions that were subject to the review was given to the appellant so the one month time period does not start ticking; following Cruickshank v ACC [2005] NZACC 310 and a right of review remains under the 1982 Act. 
The relief sought was that: 
The Authority decides that as ACC made the decisions under the 1982 Act and did not give review rights, review rights continue; 
The Authority determines: 
That Mr Chalecki is entitled to treatment at Burwood. 
That Mr Chalecki is entitled to rehabilitation at ACC's expense under the 1982 Act; 
The Authority awards costs for the review and the appeal. 
On 20 January 2012, the Corporation wrote to the Accident Compensation Appeals Registry and challenged the jurisdiction of the Authority to determine the appeal, as follows: 
“Perusing the review decision it is apparent that the decision is a decision on jurisdiction. The decision was made under the Accident Compensation Act 2001. The reviewer found that there was no jurisdiction to hear the review as there was no reviewable decision identified. 
ACC considers that an issue of jurisdiction raised at review under the 2001 Act is a matter which should be heard by the District Court, and not the Appeal Authority. The jurisdiction of the Appeal Authority is limited to appeals in relation to decisions made by the Corporation under the 1972 or 1982 Acts. Clearly there is no such decision in this case. 
We believe that it would be appropriate therefore for the appeal to be transferred to the District Court, so ACC respectfully suggests that the matter is referred to one of the District Court Judges to consider. ”
On 27 January 2012, His Honour Judge Beattie responded as follows: 
“I have considered the matter raised by Ms Ahern, but my view is that the matter is correctly required to be considered by the Appeal Authority and it should proceed as originally intended before that Authority. 
Ms Ahern can be advised that the matter was referred to me and that I have considered that this is a situation where the provisions of section 391 of the 2001 Act apply, and which allow for the continuation of the review proceedings on the 1982 Act. It is clear that the claimant is asserting a decision(s) allegedly made during the currency of the 1982 Act, and the decision of the Reviewer can be said to have been made under the banner of the 1982 Act, with the decision of the Reviewer simply being that the appellant has not identified any reviewable decision to be considered and it was for this reason that jurisdiction was declined. That is a valid determination under the 1982 Act review proceedings, such as it would be under the 2001 Act, if the decision I question was made during the currency of that Act. ”
The Corporation accepted this ruling and the appeal proceeded on the basis that jurisdiction was no longer challenged. This settles the jurisdictional issue in [2] above in the appellant's favour and opens up the possibility of awarding costs under s 102(15) of the 1982 Act on both the review and the appeal. I note, however, that I would have found for the appellant on this issue had it been argued, following Langhorne (supra) which was subsequently confirmed by the High Court with the Corporation's consent.1
| X |Footnote: 1
ACC v Langhorne HC AKL CIV 2011-404-415, Allan J, 26 June 2011 at [4] — [7] 
The remaining issues in terms of the relief sought are: 
Were reviewable decisions made and if so, what did they comprise? 
If reviewable decisions are identified, can the Authority grant any of the remedies sought by the appellant? 
Was the Reviewer correct to refuse costs on the review? and, 
Should there be costs on the appeal? 
Vocational Rehabilitation 
The appellant has cover for an injury suffered in 1984. The evidence before me shows that the appellant was provided with some rehabilitation and treatment under the 1982 Act, and he received earnings related compensation (ERC), but that his major concern was to recoup the costs involved in developing his farming business so as to be fully self-employed, as an alternative to retraining or other job placement. 
The appellant already ran a small farming business and also had outside employment at the date of his accident, and the expansion of his farm became an important matter for him, once he was certified fit for selected work and the Corporation started to initiate vocational rehabilitation requirements. The appellant could not resume his outside employment as a carpenter, he had no qualifications and after applying unsuccessfully for other jobs, he decided to build up his farm so as to be able to become fully self-employed. 
The form the Corporation sent the appellant to fill in for the purpose of seeking employment dated 17 December 1987, records the appellant's intention to build up his farm work. The Corporation treated this as an application for a self employment grant and responded by telling the appellant that he would have to decide whether he wanted to work part time plus farm, or put everything into self-employment. The appellant said he would rather become self sufficient and it was arranged that the Rehabilitation Co-ordinator (the RO) would visit at the end of January to discuss financing proposals. 
Nothing further happened regarding the application until 15 June 1988, when the RO told the appellant by telephone that as his self-employment ventures had not come to fruition, he would have to attend the rehabilitation course at Polytech. This would have a two-fold benefit of giving him ideas for his feasibility study and some form of constructive rehabilitation. 
The RO recorded in a reporting memorandum dated 27 June 1988, that she had warned the appellant that if he did not attend the Polytech course because he was concerned about leaving his animals unsupervised, he would be making himself unavailable for rehabilitation and that the appellant then became abusive and threatening. 
The memorandum shows that on 17 June 1988, the appellant and the RO again discussed his application for a self-employment grant by telephone. The RO told the appellant to go through a solicitor at their expense; after the feasibility study, the Corporation would consider a self employment grant of up to $5,000.00, then gradually reduce his earnings related compensation from full ERC down to zero, but with the Corporation still being responsible for medical expenses related to his injury. The appellant would not agree, and the balance of the memorandum records the actions of the appellant that the RO found objectionable and set the tenor of future interactions between the appellant and the Corporation. 
The next record concerning rehabilitation is a request from the client officer to the RO dated 27 April 1989, which referred to reports dated 28 July 1988, 6 December 1988 and 23 January 1988 and asked whether the appellant's ERC should be reduced and what was happening with the next visit. 
The next record is dated 14 June 1990. The client officer asked the RO to advise what was happening with the appellant's rehabilitation since the last rehabilitation memo dated 16 February 1990 and whether the appellant was still going to be considered for a Self Employment Grant? 
The next record is a memorandum from the client officer to the RO dated 22 August 1991. The appellant had complained that the RO had not given him enough information about the self-employment grant, he was bothered about money and he was in a financial bind because he had borrowed money for more land and he had not been able to sell his house. The appellant asked for a letter from the RO stating why he had not been given the necessary help and information for going into his self- employment venture. 
The next record is a letter from the Branch Manager to the appellant dated 14 April 1993. The Corporation declined to accept the appellant's self employment grant request under s 36(2)(b) of the 1982 Act, which was paraphrased in the letter, and the cessation of ERC was noted as a condition of any grant. This was to formalise the verbal advice that the appellant's self employment grant had been declined on 3 July 1992. Review rights were attached. 
On 27 April 1993, the appellant lodged an application to review the verbal and written decisions on the form used under the 1982 Act. He attached a full history, which I won't go into in detail, but he complained that he had asked for information, he had done as much as he could to comply with what was requested of him, and he had gone from being debt free to having a $20,000.00 bank mortgage and a $10,000.00 loan from his parents to try to develop the farming venture and he felt more than justified in requesting the decision be reviewed. 
On 5 May 1993, the Corporation carried out an administrative review. The appellant had provided estimates of costs of between $11,000.00 and $16,000.00, which was deemed an unsuitable proposal. Although it appears that the estimates were prepared by an accountant and properly documented, the Branch Manager said that no evidence had been provided regarding the viability of the venture, and she declined the review. The appellant was told that unless she heard from him within 14 days, the review would be treated as withdrawn. 
A meeting was held on 3 June 1993 between the appellant and the Senior Rehabilitation Co-ordinator, in part to informally review the appellant's application for the self employment grant. The resulting letter recorded that the appellant agreed to accept the decision with respect to the employment grant, provided the Corporation agreed to consider his actual earnings and not enforce a percentage in advance and his compensation was not cut off. An apology was included for past treatment of the appellant and he was asked to sign and return the letter if he agreed with the contents. 
Mrs Chalecki signed the letter and returned it with further comments and said that the appellant felt it necessary to again put in writing the reasons for him seeking the self employment grant. Mrs Chalecki subsequently wrote to the ACC Complaints Investigator giving a full history of the dealings with the Corporation from the Chalecki's perspective. 
There were two major complaints, the first being that the Corporation had retracted the agreement to allow the appellant to work as a part time farmer and the lack of information on the ACC file when the decision was made to decline the self employment grant application. The second complaint was that the appellant had been forced into vocational rehabilitation before he was ready and that he had been required to see so many specialists that he was suffering from lack of self esteem, low confidence, depression and mood swings. 
Medical Rehabilitation 
Regarding examples of the Corporation failing to make decisions and give review rights in respect of medical rehabilitation, I have not been able to identify any applications for such rehabilitation, or any complaints that such rehabilitation was not provided, or any actions of the Corporation that could be said to amount to a decision or direction to deny such rehabilitation. Indeed, all the evidence points to the appellant being understandably resistant to any rehabilitation that would require him to take time away from the livestock and hens that he was farming, as he had no-one to take over for him and the appellant's complaint as I understand it from Mrs Chalecki's letters, was that he was sent to far too many specialists. 
That said, I was only provided with three medical reports for the period covered by the 1982 Act; the first is from John Talbot, Orthopaedic Surgeon, to ACC dated 18 July 1988; the second is from Associate Professor J Donaldson, Neurologist, to ACC dated 15 September 1988 and the third is from Mr Talbot to the appellant's then solicitors dated 24 November 1988. 
Mr Talbot's first letter records the appellant's complaint that he was being pushed into rehabilitation he was not fit for and the difficulties with the RO and suggests that the appellant was being treated in a discriminatory way by other surgeons he had seen at the Corporation's request, but the only recommendation made was for the appellant to see a neurosurgeon because it was difficult to come to a definite diagnosis of his condition. The appellant was duly referred to a neurologist. 
Associate Professor Donaldson's letter contains a lengthy history and discussion, and he too was unable to make a clear diagnosis. He said that further investigation was unlikely to find the cause of the problem, and he recommended a trial of what appears to be TENS treatment and made other treatment suggestions as he felt it was best to treat the appellant symptomatically. The letter concludes with the comment that if these suggestions did not work, then it might be worth referring the appellant to the Pain Clinic at Christchurch Hospital. 
Mr Talbot's second letter explains the background to the referral to Associate Professor Donaldson, and the disagreement with the Corporation as to whether the appellant's condition had stabilised as early as was thought. He discusses the suggested referral to the Pain Clinic at Christchurch Hospital, and notes that strictly speaking, this indicates that the appellant's rehabilitation was not at the end of the road yet, despite the permanent disability assessment at 20%. This was the main focus of the letter, apparently in response to the appellant's lawyer's concern about the amount of the lump sum assessment, rather than rehabilitation and treatment options. 
The 2009 Review Decision 
In 2009 the appellant personally lodged four applications for review, two of which were brought under the 1982 Act, being review numbers 154956 and 159457 the substance of which was very similar to the present appeal. The appellant claimed that the Corporation made numerous decisions and never gave review rights, and that the Corporation was asked to pay for the costs of setting up his farm and no review rights were given, only threats. 
The Reviewer wrongly heard the reviews under Part 5 of the 2001 Act and applied the definition of a ‘decision’ in s 6 of the Act. The appellant could not identify the decision at issue, and the Corporation did not disclose the decision letter of 14 April 1993. The Reviewer held that he had no jurisdiction for two reasons. First, the review process can only be used for a “decision”, not general complaints; and secondly, the only entitlement preserved under the 1982 Act was for attendant care under s 80. The Reviewer gave the right of appeal to both parties to the District Court, which the appellant did not exercise. 
Mr Forster relied upon the “wider and more generous provisions of the 1982 Act”, in particular the ability to seek a review of a decision under s 101 if dissatisfied with a decision of the Corporation concerning the granting or payment of rehabilitation assistance under the Act, the extended definition of a ‘decision’ in s 2 to include any determination, requirement, assessment, order or direction, and the expansive definition of rehabilitation under s 37 concerning the Corporation's obligation to offer retraining and where justified, the granting of financial assistance to the incapacitated person. 
Regarding medical treatment, Mr Forster identified the issue here as the failure to action a referral to Burwood Pain Clinic2
| X |Footnote: 2
I assume the is the Pain Clinic at Christchurch Hospital under a different name 
by Associate Professor Donaldson which is contrary to s 36, which places a “statutory imperative” upon the Corporation to place great stress on rehabilitation and take all practical steps to promote a well-coordinated and vigorous programme for the medical and vocational rehabilitation of injured persons in the appellant's situation, and s 75(1), which makes it mandatory for the Corporation, subject to certain financial conditions, to pay the cost of any medical treatment required as a result of covered personal injury by accident (PIBA). Section 75(5) was also relevant as it provided the discretion to pay accounts rendered which are certified as being for services required as a result of PIBA. 
Mr Forster submitted that it was clear that as a result of the appellant's PIBA he required treatment at Burwood Pain Clinic, and the only issue, given that there was a statutory imperative on the Corporation to facilitate this, was what remedy was available for the Corporation's inaction? Alternatively, in this situation, when the Corporation receives information that they should do something and does nothing, is this a decision that affects the person's rehabilitation and thus carries review rights? 
In my view, the answer is in the negative on both counts. Concerning the first issue, the evidence before me does no more than suggest that the referral to Burwood Pain Clinic was a desirable option if other treatment did not assist, and although the appellant had legal representation at the relevant time, no application was made to formally follow up the suggestion if this was what the appellant wanted to happen and no issue was taken until well after it would be impossible for the appellant to obtain any tangible benefit. 
And, if I am wrong on this last point, as Mr Barnett submitted, there is nothing to stop the appellant from seeking such a referral under the current legislation on the circumstances as they now prevail and the same applies during the currency of the earlier Acts. Ultimately, though, I agree with Mr Barnett that none of the evidence demonstrates that the Corporation made a decision declining treatment. 
Concerning the second issue, while I accept that a reviewable decision can be implied under some circumstances, there is simply nothing to support such a finding in this case. The appellant's claim is really more akin to a claim of “legitimate expectation”, which I note was the subject of a recent decision by Dobson J on an application for leave to appeal to the Court of Appeal.3
| X |Footnote: 3
Sinclair v Accident Compensation Corporation HC WN CIV 2011-485-171, 4 October 2012 
If I were to find in the present situation that the mere suggestion of treatment with nothing further could trigger a decision through the Corporation not acting upon it, I would be imparting deeming provisions into the 1982 Act that far exceeded the Corporation's powers. 
Regarding vocational rehabilitation, Mr Forster said that there were three actions of the Corporation that could be seen as decisions — ACC told the appellant to see a vocational officer at the Department of Labour; he was told he had to attend a polytechnic course or else his only future would be self employment; and, he needed to pursue self employment or his entitlements would be stopped. 
Mr Forster pointed me to communications between the appellant and the Corporation, which are recorded in the background above, and submitted that it simply cannot be correct that the Corporation did not make a decision with regard to the appellant's rehabilitation. 
For the Corporation, Mr Barnett submitted that it is not sufficient to refer to an administrative process and assert, for example, that the claimant wanted certain rehabilitation or treatment and did not get it. There is, he argued, no right of review against an administrative process undertaken over a number of years nor a right of review seeking a remedy of a generally expressed dissatisfaction. 
I tend to agree, and I am not prepared to find that the Corporation made reviewable decisions by requiring the appellant to attend certain vocational rehabilitation programmes, or that in this case, such decisions could be implied by the Corporation's actions as demonstrated by the evidence that was before me. 
However, in the present case the arguments for and against this proposition are rendered largely academic by the fact the Corporation did make an identifiable determination affecting the appellant's rehabilitation, and provided formal review rights. This is the decision of 14 April 1993, which was issued to formalise the verbal advice given on 3 July 1992, that the Corporation had declined the appellant's application for the self employment grant. 
Because the appellant exercised his right to apply for a review of the decision and did not withdraw the application when asked by the Corporation to do so, the issue then becomes whether, as argued by Mr Barnett, the appeal is doomed because the appellant is attempting to re-litigate the 2009 review decision which he did not appeal, or whether the original application for review is still extant, as it has never been heard and determined by a tribunal of competent jurisdiction? 
In my view, the review decision of 2009 is largely immaterial as at no stage was the appellant's claim considered on its merits under either the 2001 Act or the 1982 Act, as the Reviewer declined jurisdiction under the misapprehension that there was no reviewable decision made by the Corporation. Moreover, the entire 2009 review process was ultra vires the powers afforded to both the Corporation and the Reviewer under s 391 of the 2001 Act.4
| X |Footnote: 4
Refer e.g. ACC v Langhorne (supra); Robinson v ACC [2012] NZACA 9 
I find, therefore, that the 2009 review decision does not affect the jurisdiction of the Authority to determine the present appeal. However, I cannot make a substantive decision on the merits as part of this appeal and I have not been asked to do so by the appellant. 
Regarding the directions sought by the appellant, I find as a fact that there is only one reviewable decision disclosed by the evidence, being the Corporation's decision of 14 April 1993. That decision did contain the right of review under the 1982 Act, which the appellant validly sought to exercise under the 1982 Act by way of the application for review dated 27 April 1993. 
This review application is to be referred to a Reviewer for a determination to be made on the merits and I have set out below the matters I consider essential for the fair and lawful conduct of the review of the Corporation's decision of 14 April 1993. 
For obvious reasons, the review cannot be heard by either of the Reviewers who conducted the reviews in 2009 or 2010 and I recommend that the appointed Reviewer should be familiar with the provisions of the 1982 Act and the wider discretions afforded to the Corporation in respect of rehabilitation and the Reviewer in respect costs, as opposed to the stricter limits of the current legislation. 
It will be necessary for the Corporation to make full disclosure to the appellant and the Reviewer of all relevant documents pertaining to the application for the self employment grant. This is to include all information given to the appellant concerning the grant and the information that the appellant provided to the RO from his accountant. Any documentation that demonstrates that the amount of the grant has a statutory limit of $5,000.00 and requires the applicant to agree to give up future ERC as a condition of the grant is also to be disclosed. 
It would also be appropriate for the appellant, if there is no statutory, as opposed to policy, maximum limit to the grant, to put in further proof of the actual costs incurred in developing and implementing the farming business between January 1988 up to April 1993, when the decline decision was formally made, and which the Reviewer is directed to take into account. 
Regarding the ambit of the review, the appellant and any representative acting on his behalf are reminded that the review process is to be utilised only for the purpose of conducting the review of the decision declining the appellant's self employment grant. Mr Barnett's submission that the process is designed to review an identifiable decision, not administrative actions, or the lack of them, is to be borne in mind as the issue on review is strictly limited to the decision of 14 April 1993 and the Authority does not intend to provide a forum for the appellant to air general grievances against the Corporation and the historical management of his claim. 
Decision and Directions 
The appeal in respect of the appellant's medical rehabilitation and treatment is dismissed. 
The appeal in respect of the appellant's vocational rehabilitation is successful to the extent only that the appellant has the right to a formal review in respect of the decision of 14 April 1993 and the application for review dated 27 April 1993. 
The appeal in respect of the Reviewer's refusal to award costs is successful to the extent that an application for costs will now be considered under s 102(15) of the 1982 Act. 
The decision of 14 April 1993 is referred back to the Corporation subject to the following directions: 
The Corporation is to make full disclosure to the appellant of the documentation discussed in [47] to [50] above, within 28 days; 
The appellant is to have 10 weeks (including the Christmas break) from the date he receives the Corporation's disclosure to put his case together and to submit to the Corporation all relevant financial information concerning the self employment grant that he wishes to be taken into account for the review hearing; 
As soon as practicable after receiving the appellant's information, the Corporation is to conduct an administrative review under s 102(2) of the 1982 Act and if the matter cannot be resolved, immediately refer it to an appropriately independent and experienced Reviewer for a hearing; 
In addition to the other powers afforded to the Reviewer under s 102, the Reviewer is to have regard to the matters specified in [54] to [58] above. 
Mr Forster is to file submissions covering costs on the review and the appeal within 28 days, to be supported in each case by relevant invoices for costs and disbursements and disclosure of any payments made by the Corporation. 
Mr Barnett has a further 28 days to reply and the decision will be made on the papers. 
Leave is reserved to apply for any further directions considered necessary to put the above directions into effect. 

ACC v Langhorne HC AKL CIV 2011-404-415, Allan J, 26 June 2011 at [4] — [7] 
I assume the is the Pain Clinic at Christchurch Hospital under a different name 
Sinclair v Accident Compensation Corporation HC WN CIV 2011-485-171, 4 October 2012 
Refer e.g. ACC v Langhorne (supra); Robinson v ACC [2012] NZACA 9 

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