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Accident Compensation Cases

Ranson v Accident Compensation Corporation (DC, 13/07/12)

Judgment Text

RESERVED JUDGMENT OF JUDGE D A ONGLEY 
Judge D A Ongley
[1]
This is an appeal againast a Reviewer's refusal to award costs to the appellant on a review of findings made under the Code of Claimants' Rights. 
[2]
The complaint under the Code was made under two heads: 
(a)
That ACC had requested a probation officer to order an Alcohol and drug assessment in circumstances that failed to address injury related issues; 
(b)
That ACC instructed a medical assessor not to answer questions contained in a letter from the appellant's advocate and presented to the doctor at the assessment consulation. 
[3]
Mr Ranson had a history of involvement with cannabis and claimed that he was no longer using it. In support, he was able to point to two blood tests which were clear for cannabis. He was however serving a community based sentence for cannabis related offending. He also had prescription medications for his injury, including morphine and diazepam. 
[4]
Mr Ransom was keen to get a job in motor vehicle sales. His advocate Mr Gibbons endeavoured to arrange an alcohol and drug assessment to clear the way for vocational rehabilitation to that end, including obtaining a motor vehicle dealers licence. The case manager filled in a social rehabilitation assessment referral describing Mr Ransom as having ongoing marijuana use. She described the referral as having the purpose of addressing and reducing drug use. She then asked Mr Ransom's probation officer to expedite an alcohol and drug report required for his current sentence. 
[5]
The alcohol and drug assessment was produced in April 2011. Mr Ransom was open and communicative, but the assessor did not believe his claim that he grew cannabis in order to photograph it. Under the DSM-IV criteria, the assessor diagnosed Axis I Cannabis Abuse due to continued use despite legal problems. The report recommended attendance at Addictions Service for relapse prevention counselling in relation to pain issues and involvement in the “illegal activity”. The goal was stated as follows: 
“The goal of this intervention should be abstinence from cannabis, as while this has not been researched at the time, there is some logic in cannabis interfering with pain processes. Cannabis, if used regularly, could also impede Zay's utilization of other rehabilitative options and also open him up to further legal problems with subsequent restrictions on his freedom, hence also impacting on his ability to undertake and follow through Interventions. ”
[6]
Mr Ranson was willing to implement the plan. However he did assert that the assessment was a consequence of a personal vendetta by ACC and he was annoyed at the way his case manager had used his personal information. He continued to protest that he was not using cannabis and had grown a few plants for photo shots. His sentence was for drug related activity nearly two years before and he was adamant that he had not used cannabis since then. 
[7]
Mr Gibbons resumed a request for an “in depth assessment including the likely influence of his current medications upon his ability to both learn and perform new work tasks and those tasks he already has the competencies to perform and that any recommendations be implemented”
[8]
In July 2011, ACC referred Mr Ranson to Dr McLaughlin for assessment and recommendations on these three questions: 
“1.
Can you please comment, based on the medication that Zay is currently taking, does he have the ability to drive and complete driving jobs listed above? 
2.
Are there any recommendations for changes in Zays medication? 
3.
Can you please comment if any of his medication is likely to influence his cognitive ability / affect his ability to undertake any work? ”
[9]
The case manager notifed Mr Ranson of his appointment with Dr McLaughlin and that he was entitled to have a support person present, but the support person could not interfere in the consultation. 
[10]
To assist Mr Ranson, Mr Gibbons prepared a letter to Dr McLaughlin setting out some of the background and asking Dr McLaughlin to consider possible recommendations: 
(a)
as part of Zay's return to work rehabilitation for ACC to fund an in depth assessment including the likely influence of his current medications upon his ability to both learn and perform new work tasks and those tasks; and 
(b)
whether, taking into account all of the factors, it is possible Zay could, over time and with sufficient initial support, return to work on a gradual process basis as a car salesman. 
[11]
The letter also asserted that ACC seemed resolute to not assist Zay into a car sales occupation “apparently because of possible driving limitations yet, given that there are likely openings for him, he is keen to do this and the reality that most car sales people rarely need to drive the vehicles they are selling, this seems to be a mistake on their part”
[12]
The case manager became aware of the letter and wrote in an email: 
“ACC understand that Zay or his advocate Tony Gibbons has written Dr McLaughlin a letter with question(s) that they want answered in regards to Zays medication/rehabilitation. Please be aware that ACC are funding this assessment for Zay. Therefore ACC choose the questions that are asked and any questions that the client or advocate have need to be presented to ACC first so that we can decide if they are relevant questions to be asked. ACC has not received a copy of the letter to Dr McLaughlin. Therefore, can you please advise Dr McLaughlin that he is not obliged to respond any questions from Zay's advocate. ”
[13]
The appellant also filed an application for review of his IRP on grounds that it did not properly address his rehabilitative needs, and that the case manager had communicated inappropriately with the probation officer with a view to focusing the alcohol and drug assessment on alleged criminal activity, thereby “criminalising … a social and vocational rehabilitation matter”. That seems to have resulted in some revision of the IRP. 
Complaint findings 
[14]
Mr Gibbons also lodged a complaint under part 5 of the Code relating to the right to effective communication. In the complaint he stated that he did not see his presence being helpful to the assessment, but he wrote the letter to “put straight the errors and half truths in the referral and to assist Mr Ranson to have an input into the assessment”
[15]
The Complaints Investigator, Mr J Sullivan, made findings on 9 August 2011. The focus of this appeal was on the second question in those findings. The text of the Investigor's report was addressed to Mr Gibbons, and in these terms: 
“You telephoned ACC on 11 July 2011 and advised that you would not be attending the assessment. 
On 20 July 2011 you discussed a number of issues with Mr Ranson's Case Manager. You advised that you had written to Dr McLaughlin and asked a number of questions. The Case Manager asked you for a copy of the letter and informed you that, as ACC was funding the assessment, it had responsibility for considering and choosing what questions were put to the assessor. You responded that you would consider ACC's request. 
Later that day, ACC emailed Nelson Nursing Services and informed it that it might receive a letter from you to Dr McLaughlin with a list of questions. ACC advised that, as it was paying for the assessment, it was responsible for determining the questions and that any questions from you or Mr Ranson needed to be presented to ACC first to establish if they were relevant. The email concluded: ‘Therefore, can you please advise Dr McLaughlin that he is not obliged to respond any questions from Zay's advocate’. ”
[16]
In this appeal Mr Castle pointed out that the case manager's email did not instruct Dr McLaughlin not to consider the letter, but only that he was not obliged to respond to the questions. That did not prevent communication from the claimant to the doctor. It only confined the scope of the assessment to questions that ACC wanted answered for the purpose of planning social and vocational rehabilitation. The Investigator then found: 
“While a client is free to ask questions of an assessor during the assessment itself, I do not consider it appropriate for a client or their advocate to submit additional written questions to an assessor. 
As you may be aware, when ACC makes a referral for an assessment, it is usual to ask questions of the assessor. This enables ACC to obtain answers to specific questions which can assist in planning a client's rehabilitation. For example, in ACC's referral letter to Dr McLaughlin, it asked whether Mr Ranson had the ability to drive in light of his current medication. By asking questions of the assessor, ACC ensures that useful information is yielded by the assessment process. I am sure you would agree that it would be confusing for an assessor to receive a set of questions from both ACC and the client or advocate. I am of the opinion that such an approach would likely diminish the value of the assessment. 
In addition, as ACC is funding the assessment, it has the right to consider what questions are appropriate. ”
[17]
The Investigator went on to note that assessments are time limited and subject to contractual arangements. He found no evidence that ACC had failed to fulfil its obligations under the Code. 
[18]
The case manager made a note of a meeting with Mr Gibbons eight days later, in these terms: 
“Lengthy discussion on what happended at medication assessment, I tried to point out that at assessment Zay is able to answer questions, but if Zay has a written set of questions prepared prior / after then these need to be sent to ACC for ACC to consider if we ask the assessor these. I noted to Tony that I asked him to send a list of these questions he had to ACC prior to Dr McLaughlin's assessment but he refused so yes, Dr McLaughlin did not have to and did not answer any questions from Zay. Lengthy discussion with Tony about this and whether ACC had the right to do this. Tony noted that he was not satisfied with the outcomes of the 3 complaints as he believes that the complaints department used EOS only and did not consult him or Zay. He will be reviewing these complaint decisions. Lengthy discussion with Tony about if Zay has questions he needs to put these in writing to ACC, we will put this in writing to Zay. He cannot provide written questions to assessor without sending to ACC first to consider the questions and their relevance. ”
(abbreviations modified) 
Review 
[19]
Mr Gibbons lodged a review of the Code complaint findings, claiming that the investigation was one-sided, that there was not proper recognition of a support person's role, that Mr Ranson and the support person were left out of the assessment process, that Mr Ranson had countersigned the letter and it was intended to be his communication to Dr McLaughlin, and that the contents of the letter were true and germaine to the assessment. 
[20]
The review was held on 30 September 2011. The point was made in evidence and submissions at review, and again on the hearing of this appeal, that Mr Ranson was inclined to be forgetful under stress and the letter encapsulated what he wanted to tell the assessor. The respondent's case was that it was not appropriate to submit additional written questions to the assessor, because ACC was concerned, with the cost and time limits of an assessment, to get answers to specific written questions that could assist in planning a claimant's rehabilitation. Mr Ranson told the Reviewer: 
“Mr McLaughlin, I said to him, ‘I have a couple of questions here that have been written out so as I don't forget them. Could you please look at it and read it?’ and he looked at it and he says, ‘Oh, sorry, I can't, I've been instructed that I can't take written questions from your advocate’. Now how silly is that? 
They were my words on Tony Gibbons' letterhead, Access Support, but halfway through talking with Mr McLaughlin, he - my wife was sitting there and he was quite happy to turn around and ask her questions and take her answers. I had three, I think it might have been three questions or something written down there, that I wanted which were quite important to be asked and he would not accept those but he did read the letter but he wouldn't take it into consideration because he had been instructed that he couldn't by ACC and that's exactly what he told me. ”
[21]
In a decision on 20 October 2011, the Reviewer addressed both complaints. Her findings on the first complaint are not directly relevant here. On the complaint concerning the letter, she noted that Mr Gibbons submitted that the Complaints Investigator had carried out a purely one-sided investigation, and that the conclusions drawn from that were a whitewash. He submitted that, as the Complaints Investigator had not contacted Mr Ranson as part of the investigation, the investigation could not be said to meet the requirements of the Code. The Reviewer recorded explanation of the purpose of the letter given by Mr Ranson and Mr Gibbons. 
[22]
The Reviewer then decided: 
“I agree with Mr Sullivan's conclusion that it was not appropriate for Mr Gibbons to write to Dr McLaughlan, setting out his involvement with Mr Ranson, his view of the background to the assessment, or to ask questions and seek advice on Mr Ranson's behalf. 
If Mr Ranson wished to ask questions at the assessment, but felt unable to do so either because he could not remember the questions or he did not understand the questions, there were several ways in which this could have been handled. 
Firstly, ACC did offer Mr Gibbons the opportunity of submitting questions to ACC for ACC to determine whether they might be included in the referral to Dr McLaughlan. Mr Gibbons, however, did not respond to this offer. 
Alternatively, Mr Ranson could have taken a list of questions with him to the assessment to remind him of the things he wanted to ask about. If he had done this and if Mr Gibbons was concerned that he was writing the questions on behalf of Mr Ranson, then Mr Ranson could have simply advised the assessor that his advocate had helped him to put together the list of questions he wanted to ask. 
It seems to me, in this regard, that Mr Gibbons has stepped outside his rote as Mr Ranson's advocate in that it was not appropriate for him to write to Dr McLaughlan on his letterhead, expressing his views on the background to the referral and posing questions that he had formulated. ”
Discussion 
[23]
Under s 148(2)(b) of the Act, a Reviewer: 
“(b)
may award the applicant costs and expenses, if the reviewer does not make a review decision in favour of the applicant but considers that the applicant acted reasonably in applying for the review: ”
[24]
The appeal is limited to a costs question. The Reviewer had a discretion to award costs if she considered that the application was reasonably brought. As a first step, the Reviewer was to decide whether the application was reasonably brought. That is to be decided objectively and is not a discretionary decision. 
[25]
The only ground that the Reviewer expressed for refusing costs was that the “application for review was very much about Mr Gibbons' involvement in Mr Ranson's case than Mr Ranson having genuine grounds for complaint that his rights had been breached”. That implied that there was little merit in the appeal touching on breach of rights, rather the appeal was driven by Mr Gibbons' concerns. Mr Gibbons was concerned that his letter had been treated by ACC as interference in the assessment process, whereas his purpose was to correct some points of the claimant's background and to get support for vocational rehabilitation directed towards work in motor vehicle sales. In the appeal he was concerned that the Reviewer treated his letter as exceeding the proper bounds of advocacy. 
[26]
In this appeal, the correctness of the Reviewer's decision is not the issue. There are two questions: 
(a)
Did Mr Gibbons (on behalf of the claimant) have reasonable grounds for making a Code complaint: 
(b)
Did he have reasonable grounds for applying for review. 
[27]
Whether or not he was right, I think that he did act reasonably in making a Code complaint because there was an important matter at stake. 
[28]
Rehabilitation is planned by the Corporation in consultation with the claimant and his medical or other advisors. Under clause 7 of Schedule 1 the Corporation must provide information to the claimant about his right to have a representative involved in the preparation of the plan. While the persons who must be given an opportunity to participate under cl 7(3) do not include an advocate, they do include the claimant (and a medical practitioner). Without looking at the limits of engagement, the principle is clear that the process is consultative and the claimant has a voice. After all it is his rehabilitation that is at stake. 
[29]
The Reviewer agreed that the appellant could have taken to his medical assessment a list of questions prepared with help from Mr Gibbons, but the Reviewer thought that a letter from Mr Gibbons putting questions to the assessor was going too far. That finding was a matter of judgement and I do not suggest that it was wrong. I do note however that Mr Gibbons' letter was worded in reasonable terms and had a purpose of supporting rehabilitation directed to work in the motor vehicle industry. In order to achieve that, the appellant needed to show that he was not adversely affected by cannabis or prescribed medication. There was a background disagreement about whether he was currently using cannabis and he had a legitimate interest in trying to establish that he was not. There was some ground for Mr Gibbons' assertion that the case manager unfairly suggested that the appellant was still using cannabis. 
[30]
In my view, there was at least a reasonable basis for Mr Gibbons' argument that his letter was constructive. There was an accompanying question whether he should have submitted it to the case manager for approval, but there was at least a reasonable basis for considering that it contained questions that the claimant should be allowed to put to the assessor, even if the assessor was limited by the terms of his referral. 
[31]
ACC wished to avoid another set of questions put by the client's advocate. That was a legitimate point. Then if the advocate had listed further questions and the case manager refused to put any of them to the medical assessor, that would be ground to question the value of the assessment afterwards. It would be more efficient from the claimant's point of view to have all his (and his advocate's) questions answered within reason. The Corporation allocated a certain fee to the assessment and did not want it sidetracked by questions that were not directly relevant to current the course of rehabilitation. 
[32]
It could have been handled differently. The Reviewer agreed that Mr Gibbons could have provided the claimant with a letter, by way of a sort of aide memoire to raise points with the medical assessor. Mr Gibbons' submission in essence was that he did no more than that. A different outcome may have been reached if Mr Gibbons had copied the letter to the case manager. It might also have been better if the case manager had defined the purpose of the assessment and advised Dr McLaughlin that it was for him to decide whether or not to take into account any additional material given to him by the claimant. 
[33]
I am satisfied that the appellant, through his advocate, had reasonable grounds for making a Code complaint about hindering his communication with the assessor. 
[34]
The question for the Code complaint concerned the claimant's right of effective communication. The Investigator found against the claimant. He decided the matter on the papers without interviewing the claimant. The claimant would have explained that he wanted Mr Gibbons' assistance in putting matters to the assessor. He was personally concerned about two matters (a) that he thought he was being unfairly portrayed as a current drug abuser, and (b) that he wanted vocational rehabilitation directed to the motor industry. There is a reasonable basis to argue that those were legitimate concerns to place before the assessor. 
[35]
The real question under the Code was whether the case manager had acted against the appellant's right to effective communication. In my view there was a reasonable argument that she did, not with an improper purpose, but in the result with a communication that could have hindered effective communication between the appellant and the assessor. 
[36]
For those reasons I find that the Reviewer was wrong in deciding that the applicant did not act reasonably in applying for the review. Therefore the discretion not to order costs was made on a wrong basis. Rather than return the matter to the Reviewer to consider a discretionary order for costs, I think this is a case that should be disposed of without any further hearing. 
[37]
The appeal is allowed. The Reviewer's refusal of costs is quashed and the Corporation is directed to pay the costs of the appellant on the review at the ordinary rate. Leave is reserved to refer the quantum to me in the event of dispute, but it is expected that this matter should be settled in short order without another extended argument. 
[38]
The appeal was argued on the same grounds that were put before the Reviewer and the argument on appeal would not have involved any significant further preparation. In line with the practice of ordering compensatory costs on successful appeals, the appellant will have costs on this appeal of $500 and reasonable disbursements. 

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