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Accident Compensation Cases

Shelley v Accident Compensation Corporation (DC, 24/04/06)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal is whether the respondent's agent Catalyst's decision of 25 March 2003, declining to provide entitlements to the appellant on the grounds that he had refused to undergo an Initial Occupational Assessment, was correct. Catalyst's decision was made pursuant to Section 117(3) of the Act. 
[2]
The background facts relevant to the issue in this appeal may be stated as follows: 
The appellant has cover for a back strain and knee strain injury suffered in September 1992 whilst lifting a heavy weight in the course of his employment as a Stores Manager. 
The appellant had participated in a number of rehabilitation strategies between 1992 and December 2001. 
In December 2001 the respondent wrote to the appellant advising him that his Individual Rehabilitation Plan (IRP) was now complete and that he would be referred to the Work Capacity Assessment Process. 
On 5 March 2002 the appellant underwent an Occupational Assessment from which seven work types were identified as being suitable for the appellant having regard to his experience, education and training. 
On 25 March 2002 the appellant underwent a Medical Assessment which resulted in six of the seven work types being identified by the Medical Assessor as being within the appellant's physical capabilities for the necessary 30 or more hours per week. 
On 28 March 2002 the respondent issued a decision determining that the appellant had attained a Capacity for Work and that his weekly compensation would cease in three months from that date. 
The appellant sought a review of that decision and a Review Hearing took place on 22 July 2002, at which the appellant was represented by Mr Dixon-Mclver. 
In a decision dated 6 August 2002 the Reviewer determined that the Occupational Assessment was flawed and that it had not correctly addressed the necessary functions and activities of the employment types identified. The Reviewer went on to state that the Medical Assessor could not rely on the information provided in the Occupational Assessment for the purposes of his assessment. The Reviewer therefore quashed the respondent's decision. 
On 6 September 2002, Catalyst, which had taken over the management of the appellant's file, forwarded a draft IRP to the appellant. 
That IRP provided for the following time-framed interventions: 
“(i)
Mr Shelley will attend an Initial Occupational Assessment; 
(ii)
Mr Shelley will attend an Initial Medical Assessment to assess his ability to physically sustain the work-types identified in the Initial Occupational Assessment. 
(iii)
Mr Shelley and his Case Manager will meet to discuss the recommendations made in the Initial Occupational Assessment and Initial Medical Assessment and further develop his Individual Rehabilitation Plan to incorporate these recommendations. 
(iv)
Mr Shelley will attend the Hutt Valley ‘Stopping Violence’ Service for anger management counselling. ”
After an initial discussion between Mr Dixon-Mclver and the appellant's Case Manager on the contents of the IRP, it was contended for the appellant that the requirement that the appellant undergo further Initial Occupational and Medical Assessments was unreasonable. 
On 30 January 2003 the respondent determined that a reasonable period had expired since the IRP had been presented for the appellant's signature and it advised the appellant that his IRP was now considered finalised. 
The appellant did not seek to review that decision. 
The appellant, through his Advocate, continued to contend that the IRP was unacceptable in its present form. 
By letter dated 11 February 2003 the respondent requested the appellant to arrange an appointment with Human Capital Development for an Initial Occupational Assessment. That letter of request stated, inter alia — 
“Under Section 72 of the Injury Prevention, Rehabilitation & Compensation Act 2001, you have the responsibility to attend assessments and participate in rehabilitation. If you fail to attend this appointment without prior notification and can't provide a justifiable reason for your failure to attend, your weekly compensation will be stopped immediately in accordance with Section 117 of the Act. ”
The appellant did not make an appointment with Human Capital Development as requested. 
The respondent arranged an appointment date for 25 March 2003 and the appellant was notified of same by letter of 11 March 2003. 
That letter again advised the appellant of his responsibilities under Section 72 of the Act and of the likely consequence of his failure to comply. 
By letter dated 16 March 2003 the appellant wrote to Catalyst stating that he would not be attending the assessment appointment and gave as his reasons: 
“(i)
I have already attended several such assessments as required by law, thereby fulfilling this part of the Act. 
(ii)
The results of assessments have been examined by a specialist (Dr Wigley) who concluded that I was unable to work and that these results were upheld by the Disputes Tribunal, thereby ending the work wrap part of my Plan. ”
By letter dated 19 March 2003 Catalyst advised the appellant that his reasons for not attending were not reasonable and that he was required to attend the appointment as directed. 
The appellant failed to attend the appointment for the Initial Occupational Assessment on 25 March 2003 as required. 
By letter dated 25 March 2003 Catalyst issued its decision stating — 
“As you have not kept the appointment and have not given Catalyst a reasonable explanation, Catalyst will decline to provide weekly compensation from 25 March 2003. This support will be restarted if you attend an appointment with Sue Lawrence of Human Capital Development. However, the payments will not be backdated. ”
The appellant sought a review of this decision and a Review Hearing took place on 21 May 2003 at which the appellant was again represented by Mr Dixon-Mclver. 
In a decision dated 13 June 2003 the Reviewer stated, inter alia — 
“I concur with Catalyst's submission that Catalyst is obligated to reassess Mr Shelley as part of his updated IRP under the 2001 Act. 
Further to the legislative requirements, I find that it is logical that as Mr Shelley was concerned about his capacity for work that it is appropriate for him to be reassessed both occupationally and medically to further investigate his concerns and address these. ”
The Reviewer went on to rule that the appellant's refusal was unreasonable and that Catalyst was correct to decline to provide entitlements as it had. 
[3]
Mr Dixon-Mclver, for the appellant, submitted as follows: 
The appellant has complied with the statutory requirements of Section 89 of the Act in that he has already undergone an Occupational Assessment for the purposes of the Work Capacity Assessment Procedure earlier carried out. 
It was unreasonable of Catalyst to require the appellant to undergo an IOA immediately after the appellant's successful review, when such assessment offered no positive option of furthering the present Rehabilitation Plan of the appellant. 
A request to undergo an IOA ignored an issue identified in the Review relating to the appellant's memory loss, being a secondary condition arising from his injury. 
Catalyst failed to consider further clinical interventions relating to pain management and pain counselling and including anger management. 
The appellant had a legitimate expectation that Catalyst would first comply with the Review findings before requiring the appellant to undergo a further raft of assessments. 
At no time has the appellant challenged the type of occupations which had been identified under the previous Occupational Assessment. 
It is Catalyst which has acted unreasonably in requiring the appellant to undergo the assessment and invoking Section 117(3). 
[4]
Mr Potter for the respondent submitted as follows: 
Section 72(1)(e) placed an obligation on the appellant to undergo an assessment when required. 
The assessment was required to identify any new rehabilitation initiatives that might be necessary. 
The requirement that the appellant undergo a new IOA was reasonable having regard to the earlier review decision, that decision identifying that the earlier Occupational Assessment was fundamentally flawed. 
The respondent could not rely on that assessment and required to start the Procedure again in accordance with the 2001 Act. 
It is not open to the appellant to decide whether or not he will undergo an assessment. 
The respondent's request was reasonable and the appellant's refusal was unreasonable. 
Decision 
[5]
The decision which is the subject of this review was a decision made by Catalyst pursuant to Section 117(3) of the Act; that section states as follows: 
“117 Corporation may suspend, cancel, or decline entitlements 
 
(3)
The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to - 
(a)
comply with any requirement of this Act relating to the claimant's claim; or 
(b)
undergo medical for surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or 
(c)
agree to, or comply with, an individual rehabilitation plan …  ”
[6]
Two other provisions of the Act are relevant in this case, namely Section 72 and 89, and these respectively state as follows: 
“72 Responsibilities of claimant who receives entitlement 
(1)
A claimant who receives any entitlement must, when reasonably required to do so by the Corporation, — 
 
(e)
undergo assessment, at the Corporation's expense; 
(f)
co-operate with the Corporation in the development and implementation of an individual rehabilitation plan; 
(g)
undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation's expense; 
(h)
participate in rehabilitation. 
89
Assessment of claimant's vocational rehabilitation needs 
An assessment of a claimant's vocational rehabilitation needs must consist of— 
(a)
an initial occupational assessment to identify the types of work that may be appropriate for the claimant; and 
(b)
an initial medical assessment to determine whether the types of work identified under paragraph (a) are, or are likely to be, medically sustainable for the claimant. ”
[7]
There is no dispute that the appellant refused to undergo the IOA as he had been requested pursuant to Section 72 and the sole issue, I find, is whether his refusal when looked at objectively was reasonable or unreasonable. 
[8]
In that regard I find certain events in the background facts have considerable significance, and in particular the Review Decision delivered on 6 August 2002 which was the decision to quash the respondent's determination that the appellant had a Capacity for Work within the meaning of Section 15 of the 1998 Act. 
[9]
Not unnaturally, the appellant did not take issue with that decision, neither did the respondent, so each is deemed to be bound by it and the findings that were made in it. The first finding of significance made by the Reviewer was that at the time the appellant was referred to the Work Capacity Assessment Procedure under the 1998 Act his rehabilitation, and in particular the rehabilitation assistance which the Corporation was liable to provide, had been completed. The Reviewer notes: “Mr Shelley did not take issue with the rehabilitation he received.” 
[10]
Thus it was, I find, that no further aspects of rehabilitation could be raised by the appellant and indeed the appellant's whole thrust in that first review was the contention that the Occupational Assessment was flawed. That submission was accepted by the Reviewer and her second finding of significance was that the non-specific description of several of the functions and activities required for the various employment options identified meant that the Medical Assessor could not rely on that assessment when carrying out his own assessment. 
[11]
Thus it was, I find, that following the quashing of the respondent's decision that the appellant had a Capacity for Work, the respondent was in the position of having a claimant whose rehabilitation had been found to have been completed but who had not yet been correctly identified as having attained a Capacity for Work or, in the parlance of the new Act, having attained Vocational Independence. 
[12]
By the time these events had unfolded the 2001 Act had come into force and I find that it was quite appropriate that the respondent, through its agent Catalyst, sought to carry out the Vocational Independence Procedure from Step 1 by way of Initial Assessments in the first instance. 
[13]
At the earlier Review Hearing the appellant had relied in large measure on the medical report obtained from Dr Wigley and which called into question the appellant's abilities to sustain the various activities associated with the employment options identified for the requisite hours per week. 
[14]
In that light I find that it was essential that a further Occupational Assessment be carried out, in part identifying the limitations of the appellant but at least requiring the Occupational Assessor to fully and clearly set out all the functions and activities that may be associated with any employment type for which the appellant may be found to be occupationally suited. 
[15]
In that regard I note that Mr Dixon-Mclver had submitted to this Court that the appellant took no issue with the various work types that had been identified by that earlier assessment as being within his skill range. Therefore it was surely necessary to have a second look at those work types and identify precisely what was required from a physical perspective so that a Medical Assessor could then look at those factors and make his medical determination as to whether all or any of the work types were physically sustainable. 
[16]
This is not a case where the respondent sought immediately to re-implement the Work Capacity/Vocational Independence Procedure, but rather it took the preliminary step of seeking to identify with proper particularity the functions and activities of the work types accepted as being suitable and if, after receiving the Medical Assessment, that assessment indicated that some further lead-in time or to use a phrase often seen in these cases “work hardening”, might be of assistance before the actual Vocational Independence Procedure was set in train. 
[17]
In this case the appellant was given every opportunity to undergo the assessment. I am satisfied that both he and his advocate were given the correct explanation as to why that assessment was required and I find that the refusal was wholly unreasonable and the reason given quite incomprehensible, seeing as it had been the appellant's prime objection in the earlier proceedings that the Occupational Assessment was fatally flawed. That situation cannot sit with the contention now made in this appeal that the appellant had already undergone an Occupational Assessment and why should he be required to undergo another one? 
[18]
I find that none of the appellant's submissions have any validity. There was nothing in that first Review decision that the respondent was required to address which would mean any move to an IOA would be premature. The question of the appellant's “mental activities” would be addressed in the proposed Initial Medical Assessment. 
[19]
I was informed from the Bar that despite the last word being from Catalyst that weekly compensation would be reinstated as and when the appellant underwent his IOA, that assessment has not yet taken place. I find this state of affairs to be astounding and I urge the appellant to forthwith make contact with his Case Manager to arrange for such an assessment to be set in train. 
[20]
For the reasons I have given, this appeal is wholly misconceived and is dismissed. 

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