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Accident Compensation Cases

Sparrow v Accident Rehabilitation and Compensation Insurance Corporation (DC, 04/04/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the decision of the respondent made on 12 April1999 that the appellant had a capacity for work was correct. 
The background to the appeal is that the appellant, who was employed as a Leading Hand at Bitumix, suffered a fracture to his leg in January 1995. He was able to return to work on a part time basis in February 1995 and resumed full time employment in July 1995. However in January 1997 he was again certified as unfit for work but after a period during which he received assistance from the respondent, he was able to return to full time work in March 1997. A further period of incapacity ensued in November 1997 when it was found that the appellant had been working excessive hours, up to 12 hours per day. 
His hours of employment were reduced to part time hours as a result of which the respondent obtained a Careers report with a view to identifying alternative forms of employment. The areas suggested were those of a Cleaner, Driver, Supervisor/Administrative, Community Worker, Employment/ Workplace Advisor. On 17 August 1998 the appellant completed an Individual Rehabilitation Plan (IRP) in which it was noted that the vocational and rehabilitation plan for the appellant was “Ken agrees try his best [sic] to work towards independence of ACC weekly compensation by 31st December 1998.” That plan was endorsed by the appellant's Case Manager and approved by the Branch Office Manager. Included under the heading of “Vocational action plan” within that IRP the description was: 
“ACC agrees to support Ken in a course at Nelson Polytech, Introductions to Windows starting on 27/8/98 for 5 weeks. Ken agrees that this computer course will provide him with the skills to adequately meet the need of using a computer in the workplace. ”
That section of the IRP states that the appellant completed that course. At the same time the appellant continued in part time employment with Bitumix. 
A file memorandum records that on 15 December 1998 the appellant met with his Case Manager to discuss his position. The appellant confirmed that he was then working one day per week at the Testing Station but considered that he was being “used in that position and was being pushed into doing more work in the workplace.” The record noted that he was enjoying the work and still wished to be independent as stipulated in his IRP by 31 December 1998. He told his Case Manager that he had endeavoured to obtain work in Nelson without success but anticipated going to Australia for ten days from 27 December 1998. The memorandum then notes that the Case Manager gave the appellant a copy of the “Fact Sheet for Work Capacity Assessment” and she discussed with him that he had a capacity for work and that it was intended to start the work capacity assessment procedure in January. The memorandum records that the appellant “agreed that he has a capacity to work and that he expects this to happen.” 
On 12 January 1999 the Case Manager confirmed the discussion with the appellant regarding the intention to start the Work Capacity Assessment process and that she recommended that the process be started. The appropriate WCAP1 form was then signed by the Branch Medical Advisor and the other review team member who confirmed that the procedure should commence and noted that the appellant's rehabilitation was completed. Details of the WCAP1, together with the IRP and associated medical report and the Work Vocational Assessment were then submitted to Mr G McRae for a Work Capacity Assessment. 
His assessment of 29 January 1999 identified as suitable job options, those of Storeman, Warehouse Supervisor, Barman (Manager), Mechanic Assistant, Safety Officer/Advisor. The appellant told Mr McRae that he was interested in at least four of the suggested vocations. 
Following that assessment the appellant was referred to Dr B Christian for a medical assessment. In a report dated 10 March 1999 Dr Christian confirmed that he had received all the necessary documentation and reports from which he could make a Work Capacity Assessment. In that assessment Dr Christian noted that the appellant was fit to undertake the position of a Warehouse Supervisor, Store person for small/light goods but not fit for large heavy goods. He also noted that the appellant was fit for a position as a Safety Officer/Advisor and as a Bar Manager. Dr Christian concluded his report stating: 
“I have discussed my recommendations for the listed job options with the claimant. We have discussed the nature for each job, and the tasks that would be required. Kenneth agrees with the above recommendations although he is concerned that he may not find a suitable job within his capabilities. ”
On 12 April 1999, following a meeting with the appellant, his Case Manager wrote to him and notified him that he had a capacity to work as a result of which his weekly compensation would stop three months from the date of that letter which meant the final weekly compensation payment would be made on 12 July 1999. The appellant applied for a review of that decision. 
The appellant was not represented at the review hearing but appeared on his own behalf. 
The Review Officer concluded that the Work Capacity Assessment process had been properly followed and declined the application for review. The Review Officer concluded that the vocational aspects of the IRP had been properly completed although the appellant had not been able to obtain a position by 31 December 1998. 
Mr Miller submitted: 
1.
That following the decision of His Honour Judge M J Beattie in Harris (263/99) the Work Capacity Assessment procedure constituted a code for which its compliance was mandatory. That in his decision Judge Beattie had stated: 
“I consider that the jurisprudence applicable in this field is similar to that which evolved under the Transport Act in its breath/blood alcohol testing provisions. ”
That having regard to the decision of Coltman v MOT [1979] NZLR 330 reasonable compliance with the provisions of the Transport Act would not save a prosecution. 
2.
That the rehabilitation goal had not been achieved as the appellant had not obtained full time employment as a Supervisor for community work or housing schemes by 31 December 1998. That when the Case Manager ticked the selection criteria in the form WCAP1 in reality those criteria had not been met in that the rehabilitation plan had not been completed. 
3.
That there was no evidence that the Panel had discussed the claimant's situation with the Case Manager before the Work Capacity Assessment procedure was commenced. 
4.
That the checklist on form WCAP2 is not ticked and does not indicate that the appropriate material had been referred to the Assessors. 
5.
That there is no indication that the Occupational Therapist received or considered medical or counselling reports which were essential, having regard to the fact that the appellant had a “hidden injury” in that he suffered depression as a result of his injury and other stresses. 
6.
That there was no evidence as to the qualifications and experience of the Assessors. In addition, that a Medical Assessor should receive input from a Specialist. 
7.
That the Work Capacity Assessment procedure cannot be used unless the appellant has completed a Vocational Rehabilitation Plan which had not been reached with this appellant. 
8.
That application of the procedure requires it to comply with the principles of natural justice. That it may be that there is a suggestion of bias in relation to possible hidden payments directly or indirectly to the respondent's staff or to the Assessors engaged to make the necessary assessments. 
Mr Barnett submitted: 
1.
That while the decision in Harris did refer by way of analogy to the provisions of the breath and blood alcohol test of the Transport Act, those procedures relate to the establishment of a case to the criminal standard of proof. That the basis of Judge Beattie's decision in that case was that there was an absence of proof of the Senior Case Manager's involvement in the second review which he considered was fatal to the case. Judge Beattie's finding was then that “these omissions I find are fatal to the respondent's assessment of this appellant as having a capacity for work. The assessment was not carried out in accordance with the Procedure and the omissions were matters of substance and went to the heart of the matter.” That taken in the context of the decision in Harris, it is the authority for the proposition that where there is a failure of substance which is at the heart of the objection taken by the claimant, the determination of a capacity for work cannot stand. 
2.
That the transcript of the evidence provided by the Case manager at the review hearing sets out in detail the provision of rehabilitation and the manner in which the work capacity procedure was carried out. In addition, this report to the review hearing was in the form of a document signed by the Team Manager, the Technical Claims Manager and the Branch Manager. 
3.
That while the appellant was not in employment by 31 December 1998, although still in part time employment with Bitumix, the vocational plan had been satisfied and the selection criteria in WCAP1 is that the rehabilitation plan had been completed. That the selection criteria also provided that vocational objectives are part of the rehabilitation process but it is not necessary that those objectives have been obtained. That the appellant had given as his objective that he would “try his best” to be independent by 31 December 1998. 
That while the appellant submits that the WCAP2 summary is incomplete, as the checklist does not indicate that all appropriate material had been referred to the Assessors. I consider this objection is overcome by the evidence given by the Case Manager at the review hearing that the Occupational Assessor had been provided with all the proper material required for him to make an assessment and that a similar position applied to the Medical Assessor. 
While the appellant submitted that in making the occupational assessment, the Assessor had not been provided with details of the appellant's medical condition and in particular the existence of depression this was not an issue for the Assessor whose only objective was to identify suitable job options and not to make a medical assessment. 
The appellant relies on Judge Beattie's statement at the conclusion of his decision in Harris that the Work Capacity Assessment procedure is similar to the drink driving procedures under the Transport Act. However, the basis of his decision was that where there is a failure in respect of an issue which goes to the substance of an appellant's objection, that can be fatal to the assessment. I do not consider that his decision goes further than that. I consider that what Judge Beattie was saying is that minor discrepancies in paper work will not necessarily mean that the assessment is flawed if the evidence, as a whole, demonstrates that the fundamental requirements of the procedure have been carried out. 
The Work Capacity Assessment procedure is a procedure brought about by the provisions of sections 49, 50 and 51 of the Act. Under section 49, a person who is assessed under section 51 as having a capacity for work shall cease to be entitled to compensation for loss of earnings upon the expiration of three months after the person is notified of the assessment. Section 51 provides for the assessment of capacity for work and the procedure for that assessment is required to be made as determined by the respondent under section 50. The respondent carried out the requirements of section 50 by publishing its notification in the Gazette of the procedure which would apply from 1 November 1997. That procedure is now set out in the booklet published by the respondent under the heading “Work Capacity Assessment Procedure (WCAP) Final Version”. It is that procedure which is at the heart of this appeal. 
The procedure sets out the various steps which the respondent must take in reaching a decision under section 49 to cease payments of weekly compensation on the grounds that the person has a capacity for work. In order to reach that position the first requirement is the duty of the respondent to provide the appellant with rehabilitation assistance. 
In this case this appellant completed his IRP in August 1998 with the vocational objective of endeavouring to become independent of the respondent by 31 December 1998. The vocational plan involved the appellant in undertaking a computer course which was completed while the appellant had not obtained the objective of being in full time employment by 31 December 1998. I consider that the intention of the vocational plan had been satisfied. 
While the objective of the criteria for rehabilitation in the WCAP1 was the appellant's endeavour to be independent of the respondent's assistance by 31 December 1998, that had not been fully achieved although he was still in part time employment. However, the objective as I see it was not full independence but an endeavour to try to reach that goal. I do not accept Mr Miller's submission that in ticking the selection criteria in the WCAP1 the Case Manager was wrong. I do not consider that it was necessary under the objective of the IRP for the appellant to have become fully independent by 31 December 1998 but merely to have tried to obtain that status. 
I consider that the appellant's submission that there was no evidence that the Case manager had discussed the intention to proceed with the Work Capacity Assessment procedure with the Panel is not substantiated because prior to the process commencing the full review team had approved and signed the appropriate form for referral for the assessment process. 
I do not agree with Mr Miller's submission that a failure to tick the checklist in form WCAP2 is a failure of a matter of substance as it does not indicate that either the Occupational Assessor or the Medical Assessor had received the appropriate and relevant reports before making their respective assessments. This objection was clearly overcome by the very complete evidence supplied by the Case Manager at the review hearing in a document signed by the Case Manager, Team Manager, Technical Claims Manager and the Branch Manager. That document leaves no doubt that all appropriate procedures had been carried out up to the referral to the Assessors, each of whom received all the material necessary for them to make their respective assessments. 
At the hearing of the appeal Mr Barnett provided written details completed by each of the Assessors setting out their qualifications from which I am satisfied that each has the appropriate qualification for carrying out their respective assessments. I do not consider that the legislation requires the additional appointment of a specialist as submitted by Mr Miller. The requirement so far as the medical assessment is concerned is that the Assessor had the appropriate qualifications to make the assessment of the capacity for work having regard to all the necessary reports submitted with his appointment to undertake the assessment. 
While Mr Miller raised the issues of natural justice and the possibility of bias, I do not consider that they are appropriate in the context of this appeal. Both Assessors are responsible practitioners who are duly qualified in their respective spheres. There can be no suggestion that because they might receive the bulk of their work from the respondent their reports would be biased in favour of the respondent. If there is any suggestion that such could be the case then certainly it would need to be supported by some very cogent evidence. 
While Mr Miller has raised issues regarding alleged deficiencies in the manner in which the various forms were completed, I must say that I thought that in this appeal the respondent's file was one of the best which had been presented to the Court in a number of similar appeals regarding this procedure. I consider that the Case Manager had been particularly diligent in the manner in which she kept the file and that she properly carried out the procedures required of her as did the other members of the respondent's staff. 
I consider that the procedures were appropriately carried out in accordance with the requirements of the Work Capacity Assessment procedure. 
The appeal is dismissed. 

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