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Accident Compensation Cases

Morgan v Accident Rehabilitation and Compensation Insurance Corporation (DC, 02/05/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the respondent was correct to decline to fund the cost of the appellant's Certificate in Engineering on the basis that it was neither appropriate nor cost-effective. 
The appellant injured his shoulder playing rugby on 6 June 1998. At the time of the accident he was employed as a fitter with Hollander Waitotara Processing (NZ) Ltd. The respondent accepted that the appellant had cover for the injury as the result of which he received weekly compensation and home help. The injury precluded the appellant resuming his duties for some time until 15 November 1998 when he was certified fit to return for normal hours provided he undertook non-manual work. On 7 December 1998 the appellant returned to work on a part-time basis performing light duties. On 4 December 1998 an Individual Rehabilitation Plan was completed, with the goal that the appellant would return to his pre-injury level of hours independent of ACC. The medical objective of the IRP was recorded as: 
“That Nigel will continue to regain functional use of his L shoulder, and return to normal day-to-day activities. ”
The vocational objective of the IRP was: 
“Nigel will resume light duties from 9/12/98, increasing to full-time by 04.01.99. ”
The appellant was unable to return to the physical work which he had previously undertaken prior to his injury, and his orthopaedic surgeon notified the respondent on 15 December 1999 that he reserved his opinion as to whether the appellant would be fit to return to work as a fitter, but indicated that he required a less labour-intensive position rather than that of a fitter. In January 1999 the respondent referred the appellant to Career Services for a vocational assessment to identify alternative work options. In a report it was suggested that the appellant required additional skills, and suggested the NZ Certificate in Engineering course. The vocational assessment identified that the appellant had a range of transferable skills which were: 
1
Designing skills 
2
Engineering skills 
3
Rugby skills 
4
Teaching skills 
5
Coaching skills 
6
Computer skills 
7
Maintenance skills 
8
An ability to undertake analytical and task-oriented work. 
During the period he had been injured the appellant had voluntarily undertaken and completed Stages 1-3 of the NZ Certificate of Engineering. On 15 February 1999 the appellant moved to Wellington to enable him to complete Stage 4 of that certificate at the Wellington CIT. In April 1999 Hollander Ltd advised the appellant's Case Manager that he had resumed light work with the company for a two-week period from 5 April 1999 to 16 April 1999. On 23 April 1999 Hollander Ltd advised the respondent that it had no further light duties available for the appellant. 
On 29 April 1999 the respondent lodged an application with the appellant for financial assistance to meet the cost of the study for Stage 4 and Stage 5 of the NZ Certificate in Engineering. The total cost including fees, books, additional mathematics and communication skills papers, and accommodation, amounted to $9,349. The appellant was able to undertake some light duties with Hollander in the period 3 May to 16 May 1999 when he was between course blocks at CIT. On 21 May 1999 the appellant's orthopaedic surgeon certified him as fit to resume light duties. On 3 June 1999 the respondent issued its decision declining the appellant's application for funding of the cost of Stages 4 and 5 of the NZ Certificate of Engineering. The reasons given in that notification were: 
“(a)
There were alternative duties available at your workplace that you were able to perform for the period 07 December to 27 December 1998 and from 08 January to 30 April 1999; 
(b)
Your specialist Mr MacPherson confirmed on 21 May 1999 by way of return letter that the Appellant was then currently fit for light duties (letter attached); 
(c)
You have current transferable skills which would allow us to rehabilitate you into employment without the need to complete this course of study; 
(d)
You had commenced the course of study prior to the date of your accident; 
(e)
The Corporation would consider other employment using all your current transferable skills before considering retraining. ”
Following an enquiry from the respondent, the appellant's vocational assessor wrote to the respondent on 23 June 1999 stating that he considered that the appellant's core skills were in engineering (fitting and turning) and machining. The vocational assessor recommended three alternative considerations which could make use of the appellant's transferable skills and experience, which required less training than the engineering option. These were: 
1
Sport coaching 
2
Security work, and 
3
Bar and hospitality work. 
The appellant applied for a review of the respondent's decision which was declined by the Review Officer. It is against that decision which the appellant now appeals. 
Mr Rowlett submitted: 
1
That from an early stage there could be no doubt that the appellant would be unable to return to his pre-accident occupation. That the vocational assessment made on 28 January 1999 emphasised the appellant's opportunities in the engineering field, particularly as he was involved in obtaining the NZ Certificate. 
2
That all assessments made in respect of this appellant's possible vocations concentrated on his engineering ability as being the most appropriate rehabilitation option. 
3
That the suggested vocations made by the vocational assessor in January 1999 were not realistic viable options. 
Ms Callender submitted: 
1
That it was not appropriate for the respondent to fund the NZ Certificate of Engineering course because funding should only be necessary for the minimum period which would meet the objective of vocational rehabilitation. That the objective of vocational rehabilitation under section 22 is to assist the appellant to “maintain employment, obtain employment, or, in all other circumstances to have a capacity for work.” 
2
That the appellant did not need to complete the engineering study in order to achieve the objective of vocational rehabilitation. That, at the time he applied for funding for the engineering study, the appellant was not in a position to obtain paid employment. 
The issue is governed by sections 22 and 23 of the Act which respectively state: 
“22.
Objective of vocational rehabilitation — 
The objective of vocational rehabilitation is to assist — 
(a)
Those persons who are entitled to compensation for loss of earnings under section 38 or section 39 or section 44 of this Act; and 
(b)
Those persons who are entitled to compensation for loss of potential earning capacity under section 45 or 46 of this Act; and 
(c)
Those persons who have cover under this Act and are likely, without vocational rehabilitation, to be entitled for compensation for loss of earnings or loss of potential earning capacity under this Act — 
to maintain employment, obtain employment, or, in all other circumstances, to have a capacity for work (as defined in section 51(2) of this Act). 
23.
Provision of payment for vocational rehabilitation — 
(1)
Subject to subsection (2) of this section and to any direction for the time being in force under section 159 of this Act, the Corporation may make any provision of or payment for vocational rehabilitation if it considers it appropriate in the circumstances and the provision or payment is expected by the Corporation to be cost-effective. 
(2)
The Corporation may, at its discretion, provide or meet the costs of any vocational rehabilitation for the minimum period necessary to meet the objective set out in section 22 of this Act, but in no case shall such provision be made or costs be met in respect of any vocational rehabilitation that exceeds a period of three years in total, which need not be consecutive. 
(3)
The 3-year period referred to in subsection (2) of this section does not include any period of vocational rehabilitation provided before the commencement of section 3 of the Accident Rehabilitation and Compensation Insurance Amendment Act (No 2) 1995. ”
The respondent based its decision on the fact that the employer could provide alternative duties for which the appellant was then fit, and that he had transferable skills which could be employed without the cost of a further course of study. 
A consideration of the evidence makes it clear that there was no suitable work available to the appellant with his employer which could in any way be termed “long-term”. If the appellant was to remain with that employer it was going to be necessary for him to have additional skills which could be employed without the need of physical labour which was then beyond him. On his own initiative the appellant had commenced the course of study prior to the date of accident, but I do not consider that that should be held against him. It was an initiative which would have prepared him for a better position within his employer's business. Had he not had the accident he would no doubt have gone on and completed that course of study, but by virtue of the accident it became even more imperative that he do so. As a result of the accident, while the appellant did have transferable skills, they were all in a limited field which, on the basis of the evidence, would certainly not place him in a position commensurate with that which he held at the time of the accident. 
I consider that the vocational assessment made in January 1991 outlined certain skills, but I do not consider that the pursuit of any of them would have placed the appellant in a position similar to that which he held prior to the injury. I consider that the respondent failed to fully assess the totality of the evidence in exercising the discretion it is required to exercise in making a decision to decline to meet the cost of the final two stages of the engineering certificate. This was the field in which all the appellant's abilities had been channelled prior to the accident. He had on his own initiative commenced the course, and sought assistance only with the final two stages at a time when his physical ability had been seriously affected by the accident. I think that having regard to his reduced physical ability as a result of the accident and the fact that the appellant had financed the first 3 stages himself the objective of rehabilitation would have been most cost-effectively achieved by completion of the final 2 stages of the certificate. 
As the decision is discretionary for the respondent, it is necessary that the respondent should be aware of the principles I have outlined so far as this appellant is concerned, and reconsider its decision having regard to the totality of the evidence. The file will, therefore, be returned to the respondent for that purpose. 
There will be costs to the appellant of $850. 

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