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Accident Compensation Cases

Joss v Accident Compensation Corporation (DC, 29/06/12)

Judgment Text

Judge D A Ongley
This is an application for leave to appeal against a judgment of His Honour Judge M J Beattie issued on 18 March 2011, Joss v ACC [2011] NZACC 90
The appeal concerned a decision by the Corporation based on a vocational independence assessment finding the appellant suited to a number of work types including: 
“Construction Manager 
General Manager (small Business Owner) 
Material and Production Planning Clerk 
Technical Representative 
Launch Master ”
Some other work types were eliminated by consent as being unsuitable. 
The appellant suffered a lumbar injury in 2004 when he was a self employed builder. In 2006 he had a discectomy and spinal fusion. He continued to have pain in his left buttock, manageable during the day and increasing at night. A vocational independence medical assessment was done in May 2006 by Dr Paul Noonan who advised the Corporation that the appellant had made slow progress and was not fit for full time work. 
In November 2006 the appellant had another vocational independence assessment. The occupational assessment identified 15 possible work types. Dr John Reekie prepared a medical assessment in later November and found seven work types medically sustainable. The Corporation then issued its decision on 14 December 2006 for those work types and one other, which was later abandoned. 
The appellant applied to review the Corporation's decision and he obtained a medical assessment from Dr J Hancock, pain specialist. He was unsuccessful at review and lodged an appeal. He then submitted an occupational assessment by Robyn Bailey, career practitioner. The Corporation submitted an opinion by Mr S Berry, registered clinical psychologist. 
In his judgment, Judge Beattie went through the new assessments and recorded the points that had been made for and against the assessments supporting the Corporation's decision. He briefly traversed submissions on behalf of the appellant that most of the job types were not listed in his initial assessments, that he had insufficient medical rehabilitation, that his vocational rehabilitation was not directed to those job types, and that the vocational independence process was premature. 
Judge Beattie found that while Dr Noonan found the appellant unfit in early 2006, he left open the question of his fitness after another six months. The Judge found that by November 2006 the appellant's vocational and medical needs had been properly addressed and that the Corporation was correct in deciding that vocational rehabilitation was complete, as required s 110(3)(b) of the Act, before embarking on vocational independence assessments. 
In considering the reports and assessments put forward by the appellant and the respondent, Judge Beattie eliminated the job types of Material and Production Planning Clerk, which required more advanced computer skills than the appellant had, and Construction Manager, which exceeded the appellant's physical capability. He found that the balance of evidence supported the remaining three job types as being within the appellant's vocational and physical abilities. 
After the application for leave to appeal was filed, the Registry requested submissions from Mr Miller who was shown as the solicitor acting. After some time, no submissions had been received and Mr Miller's firm advised that it no longer had instructions. 
The application for leave has not been pursued further. 
Leave to appeal may only be granted if there is a genuinely arguable case that the decision of the District Court is wrong in law. The application for leave rested on the general ground of error in law, but did not identify any aspect of the judgment as being wrong in law. 
The judgment dealt with fact questions concerning the completing of vocational rehabilitation before starting the process for vocational independence assessment, and the various reports and assessments relating to the three work types that the Judge eventually found to have been properly assessed. The findings are well within the ambit of the evidence that was referred to in the judgment. There is no apparent error of law on the face of the decision, and the appellant has not attempted to identify any particular error of law in the judgment. 
I find that there is no genuinely arguable question of law to be considered by the High Court. Leave to appeal is therefore refused. 

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