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Accident Compensation Cases

Terry v Accident Compensation Corporation (DC, 05/05/16)

Judgment Text

JUDGMENT OF JUDGE J H WALKER 
Judge J H Walker
[1]
This is an application for leave to appeal from a decision of Judge A N MacLean dated 7 May 2015 pursuant to s 62 of the Accident Compensation Act 2001 (“the Act”). 
District Court Appeal Judgment 
[2]
The issue for determination in the District Court by Judge MacLean dated 7 May 2015 which arose from the Corporation's decision of 12 November 2012 determining that Mr Terry had capacity to work pursuant to s 105 of the Act. 
[3]
Judge MacLean concluded that the substantial issue to be determined was the reasonableness of the Corporation's decision in light of the Ellwood1
| X |Footnote: 1
test and having determined the decision was reasonable, he dismissed the appeal. 
Background 
[4]
Mr Terry suffered an injury in 2006 and was at the time a secondary school student. 
[5]
In late 2009 he applied to the Corporation for a loss of potential earnings (“LOPE”). The Corporation's decision in November 2012 was the end result of an investigation into the retrospective periods during which Mr Terry may have been entitled to LOPE. 
[6]
The Corporation's decision in November 2012 was determined pursuant to s 105 of the Act and concluded that Mr Terry had capacity to work from 1 November 2008 onwards. Weekly compensation was paid from the period between December 2006 (when Mr Terry had left school) and November 2008. 
[7]
Mr Terry argued on appeal that he had been given inadequate assistance to transition into full time employment. 
[8]
It was also submitted that the process undertaken to determine whether or not he was fit for work on a retrospective basis was artificial and flawed. 
[9]
The District Court determined that the Corporation's decision was reasonable on the facts and noted that there was no countervailing medical evidence supporting the case for Mr Terry. 
Grounds for Application for Leave to Appeal 
[10]
The grounds for this application can be summarised as follows: 
[a]
Did the District Court correctly approach its appellant task consistent with the dicta of the Court of Appeal in Wildbore v Accident Compensation Corporation?2
| X |Footnote: 2
[2009] NZCA 34 
 
[b]
Did the District Court make an error of law by requiring the applicant to prove, on the balance of probabilities, that their decision was not reasonable, rather than for the Corporation to prove its decision was reasonable? 
[c]
Was there an error of law by the District Court to make the limitations set out in s 87 of the Act upon the liability of the Corporation to provide vocational rehabilitation, as of any relevance in determining incapacity for work under s 105? 
[d]
Was the District Court finding, that the decision retrospectively declining to pay further weekly compensation was made on reasonable grounds, a conclusion available on the evidence? 
[e]
Did the Court err by not finding the manner in which the medical assessments were conducted by Dr Walls, to determine incapacity under s 105, had resulted in a substantial breach of natural justice against Mr Terry? 
[f]
Did the Court err by misinterpreting the statutory test under s 105(2)? 
[11]
With respect to this application Mr Darke for the applicant, and Ms Becroft, for the Corporation, have both filed submissions. 
[12]
Mr Darke filed additional submissions in reply to the respondent's submissions. 
I have taken all submissions into account in reaching my decision. 
The Applicable Law 
[13]
Section 162(1) of the Act states: 
“162
Appeal to High Court on question of law 
(1)
A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. ”
[14]
An appeal to the High Court is only in respect to the question of law. It has been held that a contended point of law must be capable of bona fide and serious argument to qualify for a grant of leave; Impact Manufacturing Limited3
| X |Footnote: 3
Impact Manufacturing Limited v Accident Rehabilitation and Compensation Insurance Corporation HC Wellington AP 266/00 6 July 2001, Doogue J 
[15]
The principles relevant to the exercise of discretion to grant leave are discussed in O'Neill v ACC4
| X |Footnote: 4
DC Wellington 250/2008, 8 October 2008 
a decision of Judge Cadenhead which held, inter alia: 
“[24]
The Courts have emphasised that for leave to be granted: 
(i)
The issue must arise squarely from ‘the decision’ challenged; e.g., Jackson v ACC unreported HC Auckland Priestley J, 14 February 2002, AP 404-96-01; Kenyon v ACC [2002] NZAR 385Has Cases Citing which are not known to be negative[Green] . Leave cannot for instance properly be granted in respect of obiter comment in a judgment: Albert v ARCIC unreported, France J, HC Wellington, AP 287/01, 15 October 2002
(ii)
The contended point of law must be ‘capable of bona fide and serious argument’ to qualify for grant of leave; e.g., Impact Manufacturing unreported, Doogue J, HC Wellington, AP 266/00, 6 July 2001
(iii)
Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being prescribed: e.g., Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361, 363 (CA)Has Litigation History which is not known to be negative[Blue] 
(iv)
Where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law: CIR v Walker [1963] NZLR 339Has Cases Citing which are not known to be negative[Green] , 354; 
(v)
A decision-maker's treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of, the decision, or the true and only conclusion on evidence contradicts the decision: Edwards v Bairstow [1995] 3 All ER 48, 57; and 
(vi)
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law; Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA)Has Cases Citing which are not known to be negative[Green] ; Edwards v Bairstow [1995] 3 All ER 48, 57. 
[25]
Even if the qualifying criteria are made out, the Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources. Leave is not to be granted as a matter of course. One factor in the grant of leave is the wider importance of any contended point of law: e.g. Jackson and Kenyon above. ”
Question One: Did the Court correctly approach its appellate task consistent with the dicta of the Court of Appeal in Wildbore v ACC? 
[16]
It is helpful, before discussing the positions taken by the parties, to first look at that decision. 
[17]
The Wildbore decision deals with the correct approach for the District Court to deal with, and determine s 149 appeals to the District Court. The Court of Appeal states at paragraph [29] as follows: 
“ … First, the District Court is required to come to its own conclusion on its assessment and evaluation of the evidence, and the merits generally. Where the District Court has a different opinion from that of the reviewer it would be an error of law for it to defer to the reviewer's assessment of the acceptability of, and weight to be accorded to, the evidence rather than forming its own opinion, although the District Court is entitled to have regard to what the reviewer said and give it such weight as he or she thinks appropriate …  ”
[18]
The Court of Appeal in paragraph [29] states that this conforms with the approach to general appeals enunciated by Elias CJ, for the Court, in Stichting Lodestar.5
| X |Footnote: 5
Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  
 
[19]
The Wildbore decision then deals with the matter of onus at paragraph [30] as follows: 
“Secondly, the onus of establishing that the reviewer is wrong is on the applicant for review. To adopt the actual language of the Supreme Court in Stichting Lodestar (at [41]): 
‘ … the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal. It is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it. ’”
The Applicant 
[20]
Mr Darke in his written submissions stated as follows: 
“1.1
In paragraph [54], the Court noted that the appellant had to persuade it the reviewer was wrong. However the Court was required to analyse and weigh the evidence itself and come to its own conclusion. While the review decision might be taken into account, the exercise undertaken by the Court involves the Court's own assessment, not the respondent's nor the reviewer's. 
1.2
The appellant in this case needed to persuade the Court that on its own assessment of all the relevant information, it should come to the decision that the appellant's argument should be accepted. 
1.3
The appellant was not required to prove the reviewer was wrong. ”
The Respondent 
[21]
Ms Becroft, Counsel for the respondent states: 
“2.11
The appellant indicated that the task before the Court was to analyse and weigh the evidence itself and come to its own conclusion. 
2.12
It is submitted that it is evident, under the subheading Analysis and Discussion in the District Court's decision, that the Court carried out exactly that exercise. Ultimately, this case was not determined on the basis of onus, but on a simple and thorough evaluation of the medical evidence (i.e. the case was determined on its facts). ”
Submissions in Response 
[22]
Mr Darke also filed submissions in reply. These briefly are: 
“(1)
The point being made here is straightforward. The Court held in paragraph [54], the Court noted that the appellant had to persuade it the reviewer was wrong. 
(2)
This misstates the correct test. The appellant did not need to show the reviewer had made some serious error which would nullify the decision. The Court may reach its own conclusion without identifying any significant error by the reviewer and indeed on quite different grounds to the reviewer. 
(3)
The danger of simply saying the appellant must prove the reviewer was wrong is that the Court can fail to analyse the evidence fully itself and come to its own conclusion …  
(4)
It was an error of law for the District Court to hold that the appellant had to prove the reviewer was wrong in this case …  
(5)
The appellant was not required to prove the reviewer was wrong. The Court erred in law by taking this approach. ”
Discussion 
[23]
It is unclear from the wording of the appellant's first question what exactly he is suggesting. His submissions deal with: 
[a]
The Court required to reach its own conclusions. 
[b]
The issue of onus of proof and the appellant not being required to prove the reviewer wrong. 
[24]
In respect to [a] it is noted that reference was made to Wildbore in the decision of Judge Beattie in Mitchell v ACC6
| X |Footnote: 6
[2010] NZACC 234 
in paragraph [16] of his decision where he states: 
“[16]
As a consequence of the Court of Appeal's decision in Wildbore (209 19 PRNZ 239 and the High Court's subsequent decision in Martin (Wellington Registry) CIV 2008-485-2617, the legal position is that the appeal before the District Court is by way of re-hearing, and as such is intended to be a full reconsideration of all relevant material so that the District Court can itself make its own determination as to whether the respondent's primary decision was correct or not. 
[17]
As His Honour Justice Young stated in Martin, ‘the function of the District Court when dealing with a medical assessment is to take all of the medical evidence and that in so doing the re-hearing appeal will essentially be broader than the Corporation was able to undertake at first instance.’ ”
[25]
It would appear from the submissions of counsel for the respondent that she has assumed too that this is the point that Mr Darke is making. 
If the appellant is looking at issue (b) i.e. whether the appellant is required or not to prove the reviewer was wrong, then essentially this would suggest the question relates to onus of proof. It is noted that in the decision of ACC v Simmonds7
| X |Footnote: 7
DC Wellington 349/2002, 16 December 2002, Judge Middleton 
the claimant argued that there was an onus on the Corporation to establish the claimant was not entitled to cover. 
Judge Middleton states at paragraph [25]: 
“[25]
The issue of the onus in cases in this jurisdiction was considered by Priestly[sic] J in Jackson v ACC, a decision issued in the High Court at Auckland on 14 February 2002 under Number AP 96/01. In that case His Honour noted that in respect of appeals in this jurisdiction: 
‘it is not the elaborate procedural game of who carries the onus which is determinative but rather whether the information and evidence justify a conclusion that a nexus has or has not, as the case may be, been established. Obviously a claimant will not gain cover if the information/evidence falls short of establishing a nexus on the balance of probabilities. This obvious proposition need not be obscured by recasting it as an onus. ’”
[26]
As to the Court reaching its own conclusion, it is accepted that the submission of the respondent is that the Court has carried out exactly this exercise. 
[27]
If this issue is one of the question of onus, then I accept Ms Becroft's submission that ultimately this case was not determined on the basis of onus but on an evaluation as to whether the decision of the Corporation was reasonable and whether in fact the appellant was able to displace this finding. 
[28]
The position of the respondent that this hearing was determined not on the basis of onus but by Judge MacLean making his own analysis of the evidence and determining whether the Corporation had fulfilled its obligations by an assessment of the reasonableness of the decision pursuant to s 105. I concur with this. 
[29]
Accordingly, I am satisfied the District Court applied the approach of Wildbore and reached its own decision based on its own assessment and evaluation of the evidence and merits. As a result no question of error of law rises. 
Question Two: Did the District Court make an error of law by requiring the applicant to prove on the balance of probabilities that the decision was not reasonable rather than requiring the respondent to prove that the decision was reasonable? 
The Applicant 
[30]
Mr Darke set out his submissions in support of this in question two as follows: 
“(4)
The Court noted that the respondent was required to make a reasonable decision but then implied that the appellant had not proved on balance, that it was not a reasonable decision. 
(5)
In Ellwood it was held that it was on the respondent to show it had made a reasonable decision. If the situation was not clear, the matter would be decided in favour of the claimant. The effect of Ellwood was that the respondent is charged with establishing the decision was reasonable not the claimant. 
(6)
On appeal the same test should apply, that is the Court must consider all the evidence and come to its own conclusion as to whether the decision was reasonable. Clearly in this case, the burden was put on the appellant to prove on a balance of probabilities that the decision was not reasonable and this is an error of law. ”
The Respondent 
[31]
Ms Becroft's response to question two is essentially that question two is a restatement of question one. The Court's determination did not come down to onus but through the evaluation of the facts of the case and the reasonableness of the Corporation's decision. 
Submissions in Response 
[32]
Mr Darke again made submissions in reply and states: 
“(6)
The appellant misunderstands the issue here. The Court noted that the respondent was required to make a reasonable decision (under both s 54 and s 117) but then implied that the appellant had not proved on balance, that it was not a reasonable decision. 
(7)
If it was initially required that the respondent establish it made a reasonable decision, then on appeal it is still for the respondent to show on balance the decision was reasonable. It was not for the appellant to prove it was unreasonable. 
(8)
In Ellwood it was held that it was on the respondent to show it had made a reasonable decision. ”
Discussion 
[33]
Judge MacLean deals with the section citing applicable legislative provisions. In paragraphs [20] to [26] Judge MacLean identifies the steps that are required. 
[34]
The issue which requires determination under s 105 is: 
“ … whether the claimant is unable, because of his or her personal injury, to engage in work for which he or she is suited by reason of experience, education or training, or any combination of those things. ”
[35]
His Honour states that pursuant to s 102 to determine this question the Corporation “must consider an assessment undertaken by a medical practitioner or nurse practitioner and may obtain any professional, technical, specialised or other advice from any person it considers appropriate”
[36]
It is clear that this is what the Corporation has done. 
His Honour then states at paragraph [24]: 
“For the purposes of this appeal the Court has to step back and assess the totality of the evidence now available and make its own independent assessment of whether the reviewer's decision was wrong. ”
[37]
In assessing whether the process of the respondent was reasonable he noted in the judgement the historical steps that were taken. In paragraph [8] of his decision he refers to the three reports undertaken by Dr Walls, an occupational specialist who had a discussion with the appellant in person and undertook a retrospective assessment. 
[38]
In paragraph [9] of his decision Judge MacLean refers to Dr Walls' prognosis regarding a return to work which is set out in a positive way. Dr Walls' conclusions are noted in paragraph [10] of the decision. On review, as noted by the Judge, is a direction that the appellant see an orthopaedic surgeon for an assessment and comprehensive report which was duly undertaken. 
[39]
In addition, the applicant attended an assessment by Raewyn Hart who produced an initial occupational assessment and he was subsequently assessed by Dr Chan the orthopaedic surgeon. Subsequent to this it is noted that Dr Walls produced two further reports at the request of the respondent which expanded on his earlier reports. In his analysis, Judge MacLean discussed in detail the process undertaken and does not accept the submission of the applicant that the Corporation has not undertaken a full review. 
In paragraph [53] of Judge MacLean's decision it is his view that the respondent has met its obligations. 
[40]
Accordingly, I accept that no question of law arises. 
Question Three: Was it an error of law by the District Court to take the limitations set out in s 87 of the Act upon the liability of the Corporation to provide vocational rehabilitation, as of any relevance in determining incapacity for work under s 105? 
The Applicant 
[41]
Mr Darke states in his submission: 
“(7)
The Court appeared to take the view that the 3 year limit on vocational rehabilitation, starts from the day of the accident — see para [45]. In fact, s 87(3) makes it clear that the respondent cannot provide vocational rehabilitation for any period in excess of 3 years and this does not need to be on a continuous basis. 
(8)
In fact the time limit starts from the date vocational rehabilitation is first provided, not the date of the accident or any other date. It is irrelevant in this case as the respondent never provided any vocational rehabilitation so no question of the time limit applies. 
(9)
The Court appears to take the view that vocational rehabilitation could not have been provided as it was out of time and used this to reject the appellant's submission that vocational rehabilitation should have been provided. 
(10)
The Courts' view on the availability of vocational rehabilitation was made on an erroneous view of the statutory time limit provisions. ”
The Respondent 
[42]
Ms Becroft states in her submission: 
“2.15
The Court's dicta in relation to s 87 does not form part of its substantive decision. It did not determine that the Corporation had no more vocational responsibility to the appellant after a three year time period had expired post-accident. 
2.16
The Court did, however, note that consideration of this issue on a retrospective basis was of necessity because of the appellant's late application for LOPE. So to argue that the Corporation had failed in its consideration of whether the appellant was fit by not providing the appellant sufficient vocational rehabilitation was a slightly artificial argument to make. 
2.17
The Court also noted the appellant's detachment from the process, his initial good recovery, his overseas absences in the period leading up to the application for LOPE and various, albeit brief, stints of part-time work in the years leading up to the application. 
2.18
Ultimately, the question of whether a claimant is fit is not reliant on the amount of rehabilitation that has been provided. It is a question based simply on a person's functional and vocational skills and limitations. The Court was satisfied that the evidence addressed those issues appropriately and comprehensively. ”
Submissions in Response 
[43]
Mr Darke states as follows: 
“(9)
The respondent says that the dicta by the Court here did not form part of the substantive decision. With the greatest respect, we cannot agree. The Court made it a central part of its reasoning for reaching its ultimate decision. At para 44 it states that section 87 is one of the ‘critical’ sections. 
(10)
It is clear the Court erred in taking the view that the 3 year limit on vocational rehabilitation starts from the date of the accident. The problem is then trying to determine the part this erroneous view played in the ultimate decision. 
(11)
I do not accept, as the respondent claims, that this error can just be dismissed on the basis it would have made no difference. That is speculation. 
(12)
The Court appears to take the view that vocational rehabilitation could not have been provided as it was out of time. If the Court thought this then obviously a claim the respondent failed to provide vocational rehabilitation would carry no weight as the Court mistakenly believed it could not have been provided. 
(13)
The Court misinterpreted that statutory provisions and this is an error of law. ”
Discussion 
[44]
In paragraph [39] Judge MacLean notes “Essentially the appellant's case is that there was insufficient focus by the respondent on its vocational rehabilitation obligations.” 
[45]
His Honour refers to s 69 of the Act which states “The entitlements provided under this Act are rehabilitation, comprising treatment, social rehabilitation, and vocational rehabilitation”
[46]
His Honour also refers to s 70 of the Act which states “A claimant who has suffered personal injury for which he or she has cover is entitled to be provided by the Corporation with rehabilitation, to the extent provided by this Act, to assist in restoring the claimant's health, independence, and participation”
[47]
The Judge also refers to the fact that s 80 of the Act explains that the purpose of “vocational rehabilitation” includes to “regain or acquire vocational independence”
[48]
The learned Judge also provides examples of vocational rehabilitation, including work trials, retraining courses, CV preparation, job search assistance, computer training and literacy assessment/training. 
[49]
It is correct that Judge MacLean states at paragraph [45]: 
“Generally vocational rehabilitation cannot go beyond three years which in this case would mean the time would have run out by about 1 May 2009 (i.e. six months after the deemed date of 1 November 2008 as assessed by Dr Walls). ”
[50]
It is accepted that the three year period is not required to be consecutive. 
[51]
In paragraph [46] Judge MacLean discusses the fact that there is the ability, at the discretion of the respondent, to extend this. He refers to the matter being complicated because it was done retrospectively which was “partly due to the appellant's own detachment from the process in the early years after his initial good recovery and including his absence overseas.” 
[52]
As stated by counsel for the respondent, the question that the Court is required to answer is “Was the Corporation assessing the applicant's capacity to work?”. This was undertaken in the absence of any specific medical evidence that conflicts with the reports produced by the Court. 
The Court needs to have a basis on which to make a determination for addition vocational rehabilitation, what nature and for what period. It cannot be assessed in a hypothetical manner as the basis of the decision is to determine whether the Corporation has exercised its discretion reasonably. 
Ms Becroft correctly identifies that both s 87, and the confusion about time limitation as to vocational rehabilitation, are not part of the decision. 
[53]
Accordingly, this is not a question of law that enables the applicant to be granted leave to appeal. 
Question Four: Was the District Court finding that the decision retrospectively declining to pay further accident compensation made on reasonable grounds, a conclusion available on the evidence of the applicant? 
The Applicant 
[54]
Mr Darke makes the following submissions: 
“(11)
The occupational medical specialist, Dr Walls himself in his report of 7 February 2011, accepted several times the completely arbitrary nature of the assessment. Essentially he retrospectively assessed the appellant as fully unfit from April 2006 to October 2007, up to 20 hours work from November 2007 to April 2008, increasing gradually to fulltime work by 1 November 2008. 
(12)
These periods were 2-4 years prior to Dr Walls first seeing Mr Terry and with the vocational history prior to 2009 being 4 attempts at work that lasted a few days on each occasion. Even if the relatively short period Mr Terry spent out of New Zealand is taken as a capacity for part-time work, it is later than the period Dr Walls provided an opinion on. 
(13)
While it is accepted that Mr Terry was incapacitated in terms of s 105 till October 2007, the assertion by Dr Walls that Mr Terry could have started work in 2008 (albeit part-time) in some kind of work is retrospective speculation without a clear factual foundation and it was flawed. 
(14)
While Dr Chan the orthopaedic surgeon, provided some ambivalent support, such an assessment was outside his expertise, as he accepted himself and could not have validated the flawed report from Dr Walls. 
(15)
The conclusion by the Court that the respondent's decision was made on reasonable grounds in terms of Ellwood and s 54 of the Act, was not an available conclusion on the evidence and was an error of law. ”
The Respondent 
[55]
Ms Becroft in her submissions stated: 
“2.19
Question 4 is more plainly a question of fact. It asks simply whether the Court had sufficient evidence available to it, to reach its decision. 
2.20
The decision itself notes the evidence available which included four reports from Dr Walls, an Occupational Specialist, as well as orthopaedic reporting from Dr Chan. The Court obviously also noted the complete absence of any objective evidence supporting the case for the appellant. 
2.21
The Court appreciated that the question that Dr Walls was asked was necessarily a retrospective one and, therefore, was a difficult task, but nonetheless was satisfied that Dr Walls had addressed the correct question, in an appropriate fashion. 
2.22
These are clearly questions of fact, not law. ”
Submissions in Response 
[56]
Mr Darke filed the following in response: 
“(14)
The respondent says this a question of fact. We disagree. It is settled law that a conclusion not supported by the evidence can represent an error of law. ”
[57]
Further, Mr Darke's response in (15), (16), (17), (18) and (20) effectively repeat his earlier submission. He does state in addition: 
“(19)
Ultimately there was no objective evidence indicating that, retrospectively, the appellant could have suddenly engaged in fulltime work. ”
Discussion 
[58]
The Judge in these proceedings discussed the positions of the parties. He made a decision on the evidence made before him and refers to this. 
[59]
It cannot be said that there is no evidence in support of this decision or that the Court has failed to take into account any contrary evidence. 
[60]
There was no contrary expert evidence brought before the Court for the Judge to refer to or make comment on. Accordingly, this cannot be stated to be an error of law. 
Question five: Did the Court err, by not finding the manner in which the medical assessments were conducted by Dr Walls, to determine incapacity under s 105, had resulted in a substantial breach of natural justice against the intended appellant? 
The Applicant 
[61]
Mr Darke make lengthy submissions in respect to this matter stating as follows: 
“(16)
Dr Walls wrote reports on Mr Terry on 4 occasions, 7 February 2011, 15 December 2011, 5 September 2012 and 30 October 2012. 
(17)
The February 2011 report followed the only interview with Mr Terry. This report was essentially a scoping report looking at his condition and possible capacity for non-specific employment from 28 April 2006 until October 2008 when it was said he would have capacity for some kind of full-time work. 
(18)
The December 2011 report was of 1 page merely repeating what he said in the first report above. Mr Terry was not seen by Dr Walls on this occasion. 
(19)
The September 2012 report identified specific options (12). Mr Terry was not seen by Dr Walls on this occasion and he had no input into the suitability or otherwise of the job options. Indeed the decision letter of the respondent dated 12 Novmeber 2012 was the first the appellant had heard of these ‘suitable’ jobs. 
(20)
Unfortunately Dr Walls forgot to say when these job types would have become suitable and this necessitated a further report in October 2012 which set out the dates of suitability. Again the appellant was not present and was given no input into the determination of the dates of suitablility. 
(21)
It was undisputed that Dr Walls never saw the appellant in respect of the September and October 2011 reports. Mr Terry had no opportunity to have his views heard as to job suitability or indeed when that job suitability supposedly commenced. 
(22)
It is trite law that a person must be given the chance to have some input into a decision-making process that concerns them. It is particularly so when such a decision will have a serious impact on their life. This is now such a universally accepted principle that it hardly needs to be said. 
(23)
In this case the appellant was entitled to be a key part of the decision-making process, it was after all his compensation and future at stake. In fact he was totally excluded and knew nothing until he was informed of these ‘suitable’ jobs in the decision letter. 
(24)
Submission from the appellant directly focused on this as a major point both in written and oral submissions however it appears, with respect, the Court overlooked this point. 
(25)
The Court accepted this process was akin to the vocational independence process however in that process, at clause 25, Schedule 1 of the Act, there is a statutory provision that requires an assessor to formally record and consider the views of a claimant on each possible job type. 
(26)
There is no valid reason where ‘suitable’ work is being determined under s 105, as to why the claimant should have any lesser protection than that afforded in the vocational independence process. 
(27)
The Court's failure to address this point has compounded the breach of natural justice, and is in itself a breach of natural justice equating to a clear error of law. The appellant has effectively not been heard on this issue. ”
The Respondent 
[62]
Ms Becroft submitted: 
“2.23
There is no set process under the legislation for determining capacity under s 105, though it was noted by the respondent in the District Court appeal that the process should be akin to the vocational independence one because there are significant similarities between the test for vocational independence and the test under s 105. 
2.24
These issues were canvassed at length before the District Court and, ultimately, the Court concluded that the process under s 105 had been properly undertaken. Dr Walls clearly had sufficient information available to him. He had clinically assessed and interviewed the appellant. He had all of the medical reporting available from the appellant's specialists, and the conclusions he drew, in relation to the appellant's capacity, were reasonable ones, given the nature of the appellant's injury, the type of entry level positions identified, and other relevant factors. 

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