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Accident Compensation Cases

McHoull v Accident Compensation Corporation (DC, 20/12/05)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from a decision of the respondent dated 19 April 2004 whereby it declined the appellant's request that the respondent support and fund a three-year course at Otago Open Polytechnic for the appellant to attain a New Zealand Diploma in Business, and Bachelor of Information Technology (hereinafter described as “the study option”
[2]
Whilst it is the case that the appellant is challenging the respondent's declinature decision, he is also advancing as a second option, the submission that the Reviewer in the first instance, and as a consequence of the Reviewer's default, that this Court should require the respondent to make a fresh decision requiring the funding of such further study as the Court considers would be necessary to upskill the appellant in order that he can demonstrate that he has the necessary accounting and negotiating skills required for a managerial position in the transport industry. 
[3]
Counsel for the Respondent submits that such a proposal is beyond the jurisdiction of this Court in its appellate jurisdiction and that the matter should be left to the parties to re-negotiate any further vocational rehabilitation in the event that the respondent's primary decision under appeal is confirmed. 
[4]
The background facts relevant to the issue in this appeal are not in dispute and may be stated as follows: 
In January 1998 the appellant, then aged 45 years, suffered multiple injuries in a motor accident. 
At the time of this accident the appellant was self-employed, being an owner/driver under a contract with Cadbury's Chocolate. He drove a milk tanker and it was in this vehicle that he had his accident. 
The appellant's principal injuries were to his shoulder and pelvis and he required a period of hospitalisation for the treatment of those injuries. 
The appellant underwent further surgery in November 2000 for right sacroiliac joint fusion and release of adductor tendons in the right groin. 
Despite that surgery the appellant continues to experience pain in his groin and also in his right shoulder. 
The respondent accepts that the appellant is incapacitated within the meaning of the Act and has not been able to return to his pre-injury employment. 
In 1999 the appellant purchased the lease of the Mayfield Tavern near Ashburton and operated this pub for some eight months before it became apparent that he was not physically capable of doing the work and employing staff to do that work meant that the business became uneconomic. 
The appellant also accepted that his lack of experience in dealing with suppliers was also difficult. 
In October 2002 the appellant underwent an Initial Occupational Assessment with Liz Holland of Career Services and she identified the following work-types as being suitable for the appellant. 
“(i)
1221 Production and Operation Manager, e.g., 12214 Transport Manager. The reason for this ‘work type option’ was the appellant's previous experience in managing his own transport business (20 years). 
(ii)
1226 Supply and Distribution Manager, e.g., 12261 Supply and Distribution Manager, 12263 Retail Manager (e.g. service station manager, dairy shop manager), 12264 Hotel or Motel Manager, 12265 Restaurant or Tavern Manager. The reasons for this ‘work type option’ were: the appellant's previous management experience in the transport industry; recent management experience of Mayfield Pub (8 months); existing interest in and research into a service station; and, the possibility of the appellant's wife assisting in running a business. 
(iii)
5211 Sales Person and Demonstrator. The reason for this ‘work type option’ was because the appellant had demonstrated excellent customer service skills in his own business, which were transferable to other businesses. 
(iv)
8321 Car, Taxi and light Van Drivers. The reason for this ‘work type option’ was the appellant's extensive driving experience. ”
An Initial Medical Assessment was then carried out by Mr J C Theis, Orthopaedic Surgeon and he issued an assessment dated 27 November 2002. Mr Theis identified that two work-types were sustainable from a medical point of view, namely General Manager and Supply/Distribution Manager. 
In February 2003 the appellant had a further meeting with Ms Holland and as a consequence of which she advised the respondent that she may have over-estimated the appellant's skills and experience in relation to the General Manager position and that the appellant would need to have further experience, and in particular experience in contracting and negotiation before he could fulfil requirements of that work-type. 
In June 2003 the appellant first mooted the idea of pursuing a two-year full-time course for New Zealand Diploma in Business through Otago Polytechnic, that course being due to commence in July 2003. 
It was at this point that the respondent's file and case management was transferred from Ashburton to Dunedin. 
Following further enquiries made of both Ms Holland and Mr Theis, the appellant's new case manager forwarded a new Individual Rehabilitation Plan to the appellant on 8 March 2004, which Plan did not include the study option. 
The appellant amended the Plan to include the study option and returned it. 
On 10 March 2004 the respondent advised the appellant that due to the inability to reach agreement the IRP, without the study option, had been finalised. 
The issue between the appellant and the respondent went to mediation and following a breakdown in that procedure the mediator requested the respondent to issue a formal decision in relation to the appellant's request that the respondent support and fund the study option. 
The respondent's decision on 19 April 2004, which is now the subject of this appeal, states as follows: 
“The work type of Transport Manager (Unit Group 12214), which you believe you would not be able to access without a tertiary qualification, is not endorsed by the initial occupational assessment (IOA). The purpose of the IOA is to identify types of work which might be appropriate for a claimant. While this work type was initially included in the IOA of 23 October 2002, further enquiries made of the assessor who completed the IOA have shown the inclusion of this work type is no longer supported. 
The work type that is supported both by the IOA and the initial Medical Assessment is that of Supply and Distribution Manager (Init Group 1226). This includes such options as Supply and Distribution Manager (12261), Retail Manager (12263) eg Service Station Manager, Dairy Shop Manager, Hotel or Motel Manager (12264) and Restaurant or Tavern Manager (12265). ACC therefore feels that vocational rehabilitation should focus on this option. ”
The appellant sought a review of this decision and a review hearing took place on 15 September 2004. 
By decision dated 3 October 2004 the Reviewer accepted the opinion of Ms Holland that it was gaining experience in management skills that was an important factor for the appellant's rehabilitation, not formal qualifications, and that the respondent had been correct to decline the appellant's request for the funding of a three-year tertiary education course. 
[5]
Whilst the foregoing is the outline of the background, the substance of matters of relevance are contained in the correspondence with Ms Holland, both at the time she gave her Initial Occupational Assessment and subsequent when she was appraised of the appellant's request for the study option. 
[6]
In her Assessment Report Ms Holland had noted that the appellant had left school at the age of 15 and then completed a book-binding apprenticeship before joining his father in the transport business, in which business he had been for some 25 years. Ms Holland was not aware at the time she made her Initial Assessment, that the appellant did not effectively carry out normal management roles in the conduct of his business, but had contracted those activities out to other persons. Without Ms Holland being aware of that gap in his business experience, Ms Holland had stated in her Assessment as follows: 
“Paul discussed the possibility of re-training, e.g., gaining a management qualification from Polytechnic. After further discussion, and listening to how he has gained his skills in the past plus Paul commenting a number of times that he was ‘not an academic’ I suggested that in my opinion this was not a good option. My reason for this comment is that Paul has gained the practical experience already, and would most likely find the programmes a source of frustration rather than something he could enjoy and learn from. Places like BizInFo and BizTraining are more likely to offer programmes that he could find of interest and built [sic] on the practical experience he has already. ”
[7]
It is also the case that Mr Theis discussed the possibility of further study and in Mr Theis' report he noted the appellant's position as follows: 
“When I suggested re-training he said ‘Yes, but into what though?’ He felt that going back to polytech or university would be problematic as he cannot sit in a classroom for too long. He also mentioned his sleep problems and from an academic point of view he has [sic] limited as left school at 15 years. ”
[8]
As earlier noted it was following the appellant having a further meeting with Ms Holland in February 2003 that Ms Holland further reported to the respondent about the major gap in the appellant's experience such as would be required for the work-type of Transport Manager, and she was of the opinion that he did not have the necessary general management skills. In her report she stated, inter alia, as follows: 
“Paul appears focussed on obtaining a qualification and informed me of an Employment Consultant suggesting an MBA would be required. In my opinion, MBA is a high level post graduate qualification and employment options could be increased with a lower level qualification, e.g., at Bachelor level. 
For a person who has not studied for many years, and no previous tertiary level study experience, I would recommend that they commence with one paper. This enables them to establish study skills, develop good study habits and provide the opportunity for success. This would be the only realistic first step, in my opinion. A general Business Course may assist Paul in seeing other opportunities for himself in the future. ”
[9]
Her report also noted the fact of the NZ Diploma in Business course at the Open Polytechnic but made no comment one way or the other about it. In conclusion, Ms Holland stated: 
“In my discussion with Paul, his goal appears to be to develop a self-employment consultancy option so that he can work in a flexible environment. His focus is still on the transport industry because of his previous experience, however n [sic] my opinion if he undertook study to increase his management/financial/marketing skills he could offer a service to a wider range of businesses. ”
[10]
Following the transfer of the appellant's file to Dunedin the appellant's new case manager wrote to Ms Holland seeking further information on various points. Ms Holland reported to the appellant's case manager on 26 September 2003 in which she stated, inter alia, as follows: 
“1211: General Manager. At the initial interview I understood that Paul's management experience was much greater than it appears it actually is. When I met Paul again on the 26th February 2003, he described his role as an ‘Owner-Operator Driver’ which used his driving and customer skills rather than general management skills. It is this gap in management experience that has raised the discussion on further education for Paul, therefore forms the basis of my reservation for this option. I am not confident, after re-interviewing Paul that he has enough management skills at the level required for 1211: General Management. ”
[11]
Ms Holland also referred to the change of direction which the appellant had indicated at their meeting on 26 February 2003, where the appellant had indicated that he had changed his focus from that of a self-employment option to one obtaining full management qualifications. It was Ms Holland's advice that the appellant would gain more from practical support training such as that offered through BizTraining compared to an academic route. She stated that the advice she offered was that for someone who had left school without any academic qualifications and had not studied for more than 30 years, it would be better to take one paper at a time and develop study skills before enrolling in a full-time educational programme. Ms Holland confirmed her advice that it was experience in the industry that was essential, along with general management skills, rather than formal qualifications that were required for the identified work option of 1226: Supply and Distribution Manager. 
[12]
Mr Sara for the Appellant submitted that the appellant was motivated to help himself, had endeavoured to operate a business but because of the physical constraints could not do so, and that the gap in his skills could be remedied by the completion of the study option which was sought. 
[13]
Mr Sara said that Ms Holland was the best person to give advice on what direction the appellant should take and that if the full-study option was not acceptable, then Ms Holland should be asked to advise a suitable alternative that would provide the vocational assistance that the appellant required. 
[14]
Ms Epati submitted that the self-employment option was the appellant's choice not that put forward by Ms Holland, and it had been a change of focus on his part. She submitted that the Occupational Assessment had indicated that the Supply and Distribution Manager work-type was the most suitable and that the appellant had the skills but simply required some further experience. 
[15]
Ms Epati submitted that the respondent accepted that the appellant did require some further assistance, but not to the extent of the full-study option that had been proposed. Ms Epati observed that the issue really came down to whether the appellant was entitled to expect the support and funding for the obtaining of some formal academic qualifications or alternatively providing the necessary practical skill and experience that the preferred work-type would require. 
Decision 
[16]
The decision which is the subject of this appeal must not be lost sight of, namely the respondent's decision to decline to fund a three year academic course at Otago Polytechnic, which would, if the appellant was successful, result in the appellant attaining a New Zealand Diploma in Business and a Bachelor of Information Technology. 
[17]
It is that request that must be considered against the relevant statutory provisions. Accepting that the purpose of vocational rehabilitation, as set out in Section 80, is to maintain employment or obtain employment or regain or acquire vocational independence, those goals must be considered with reference to the requirements of Section 87. That Section states as follows: 
“87 Further matters to be considered in deciding whether to provide vocational rehabilitation 
(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). 
(3)
This section is subject to any regulations made under section 324. ”
[18]
The appropriateness of vocational rehabilitation is also to be considered by reference to Section 86(2). In the previous Accident Compensation Statutes relating to this provision, it had been identified as a hierarchy of considerations. Those same considerations are re-produced in Section 86(2) but are no longer regarded as being in any hierarchical order. In terms of this appellant the appropriate considerations would be either: 
“(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: or 
(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. ”
[19]
The provisions of Section 87 provide the respondent with a discretion whether to provide the requested vocational rehabilitation or not and the principal consideration which the respondent must have regard to when exercising that discretion is whether the particular vocational rehabilitation is likely to achieve its purpose under the claimant's Individual Rehabilitation Plan. 
[20]
Whilst it is the case that the appellant's IRP does not currently contain the study option, that is what is sought to be in fact included in the IRP, so therefore it is whether that study option is likely to achieve the vocational rehabilitation purpose which is sought. 
[21]
In the case of this appellant an experienced Assessor, Ms Holland, has given considerable thought to his case, and it is her opinion that academic study is not the way for him to go, but rather for him to be placed in a position where he can obtain the necessary experience which she found was lacking, but which when it was obtained would complement his already existing skills in the preferred option of Category 1226 and the sub-category of Supply and Distribution Manager. 
[22]
The other work-type of Manager, as I have noted, was subsequently disavowed by Ms Holland because of the appellant's gap in his experience and that in effect the appellant does not have general management skills and I find it is the case that the study option is not going to provide that experience. That is certainly Ms Holland's advice. 
[23]
If it is the case that the appellant wishes to be considered for the higher work-type of 1221 Production and Operation Manager, that I find is not going to be achieved by the completion of the study option, as that would not provide the appellant with the managerial experience which Ms Holland says is an essential part of that work-type requirement. 
[24]
The Court is required to consider the issue in this appeal from the point in time when the respondent's decision was made and to consider whether, at that time, it was appropriate or not. I have endeavoured to do that when considering the appellant's case. In the final analysis I find that a claim cannot be made out for the provision of the study option and that that vocational rehabilitation cannot be one which would fit within the criteria of Sections 86 and 87 of the Act. 
[25]
Having said that, however, it would be unreal not to be cognizant of events that have occurred subsequent to the decision under appeal and of the fact that the respondent did commence a course of study more in line with that which had been mooted by Ms Holland,and the Court has been provided with a letter from Otago Polytechnic dated 13 September 2004 which indicates that the appellant had enrolled in a three month study course for Certificate Business Systems (Level 3) and that he was doing extremely well in this course and was likely to achieve the goals which that course was intended to achieve.. 
[26]
In the light of that, it must be the case that the appellant has “dipped his toe” in the water of academia with some initial success and which should afford the respondent fresh consideration of further study if it is particularly of the type necessary to provide the appellant with skills in the areas where they are needed for the particular work-type that he has been identified as being best suited for. 
[27]
I note that the respondent accepts that there may be gaps which need to be filled by further qualifications and I consider that the respondent should now look afresh at any new request for vocational rehabilitation that the appellant may present in the light of his achievements attained thus far at Otago Polytechnic. 
[28]
I mention this because I would not wish the respondent to consider that my decision in this appeal has effectively closed all doors for assistance for further study. This is not the case, and any further request for vocational rehabilitation support should be treated on its merits. 
[29]
In the final analysis, therefore, I find that the respondent was correct to decline the appellant's request for support and funding for the study option which he had presented, but that the refusal to support that option ought not to be taken as indicating that the appellant was not entitled to any support for any academic pursuits which may hereafter be sought and that any such requests from the appellant must be treated strictly on their merits as they present at that time. Whilst it is beyond the bounds of this decision, it might be helpful if Ms Holland was again briefed to identify what practical courses may be suitable and of assistance to the appellant and which would achieve the vocational rehabilitation goals contained in the Act. 
[30]
This appeal is therefore dismissed but with the provisos I have set out. 

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