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Gedye V Acc (230/2004) Entitlement suspension - noncompliance

#1 User is offline   ernie 

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Posted 01 October 2004 - 05:26 PM

GEDYE v ACCIDENT COMPENSATION CORPORATION

District Court, Wellington (230/2004)
Judge J Cadenhead

APPEARANCES
N King, for Appellant
J Opie, for Respondent

RESERVED JUDGMENT OF JUDGE J. CADENHEAD

Issue
  • This appeal concerns the respondent’s 19 March 2003 decision to suspend the appellant’s weekly compensation because the appellant failed to attend a vocational independence occupational assessment.

  • The respondent submits that there are only two issues that the Court has jurisdiction to consider in this appeal. Those issues are:

    1 Whether the respondent reasonably required the appellant to attend an occupational assessment; and

    2 Whether the appellant unreasonably refused to attend the occupational assessment.

    Background

  • The appellant has cover for injuries she sustained in 1992 to her right arm.

  • On 14 October 2002 the appellant’s case manager, Ruth Squire, sent a letter and an updated individual rehabilitation plan (IRP) to the appellant. The case manager advised the appellant that if she did not return the IRP by 29 October 2002, it would be deemed to be finalised. The case manager requested that the appellant contact her if she wanted to discuss the IRP, or if she did not agree with the changes to the IRP.

  • The appellant did not return the IRP by 29 October 2002. On 31 October 2002, the case manager rang the appellant. The case manager requested that the appellant sign the IRP and return it. The appellant responded that she would not do so until she had checked all of the dates.

  • During the same telephone conversation, the case manager informed the appellant that she had forwarded the appellant’s file to the Branch Medical Adviser and that the appellant would be referred to a medical specialist for a Vocational Independence Assessment. The appellant requested that she be given a further appointment with Dr Hartshorn (a doctor who had seen the appellant in March and April 2002 to review her symptoms and to advise her on her rehabilitation and work capacity). The case manager refused this request, considering that no new information would be gained through such an appointment. The appellant hung up on the case manager.

  • On 31 October 2002, the case manager sent a letter to the appellant, informing her that the respondent considered that her rehabilitation was complete (because all of the interventions set out in the appellant’s IRP had been completed) and that her vocational independence would be assessed. In her 31 October 2002 letter, the case manager provided the appellant with a list of occupational assessors and medical assessors and requested that she choose one of each so that an occupational assessment and a medical assessment could be carried out. The letter informed the appellant that the respondent could decline to pay weekly compensation if she unreasonably refused to attend the assessments.

  • Also on 31 October 2002, the case manager wrote to the appellant’s GP, Dr Larry Loo. She requested that Dr Loo complete a questionnaire to assist the medical assessor to establish whether the appellant had a capacity for work.

  • On 11 November 2002, the case manager called the appellant to ask whether she had chosen an occupational assessor and a medical assessor. The appellant stated that she wanted to discuss the issue with her GP, and would call the case manager the following week.

  • On 2 December 2002, the appellant called the case manager, stating that she had not received the front page of the 31 October 2002 letter. The case manager promised to re-send the 31 October 2002 letter to the appellant. In the case manager’s record of the conversation on the Pathway Activity Log, the case manager recorded that the appellant was upset that she had to go through the vocational independence process.

  • On or about 4 December 2002, the appellant sent back to the case manager the form the case manager had sent her listing the names of medical assessors and occupational assessors in the Palmerston North area. The appellant had selected Dr Hartshorn as her medical assessor, and had crossed out all of the occupational assessors. The appellant requested again that she be given another appointment with Dr Hartshorn, and also alleged that the case manager had not implemented all of the recommendations that Dr Hartshorn had made in his 19 April 2002 report. The appellant was specifically concerned that the respondent had not provided her with voice recognition software.

  • On 4 December 2002, the case manager sent a letter in response to the appellant’s communication. The case manager informed the appellant that as the appellant was unemployed, the respondent could not assess her need for voice recognition software, but that if the appellant were to become employed, the respondent would then assess her need for the software. The case manager also reiterated that the appellant did not require a further appointment with Dr Hartshorn, as she had already seen Dr Hartshorn in March 2002 and April 2002. The case manager also informed the appellant that she was entitled to see Dr Hartshorn at her own cost if she thought that was necessary.

  • Also, the case manager, yet again, requested that the appellant choose a medical assessor and an occupational assessor, and that the appellant communicate her choice to the case manager within seven days.

  • On 12 December 2002, the case manager rang the appellant to ask if she had chosen an assessor. The appellant informed the case manager that she had not, because she had no information on the assessors. The case manager advised her to contact a local advocate to ask their opinion, and also said that she would forward the appellant some information on the assessors.

  • On 18 December 2002, the case manager re-sent the 31 October 2002 letter (this time dated 18 December 2002) to the appellant, once again requesting that the appellant choose an occupational assessor and a medical assessor within seven days. The letter once again warned the appellant that if she unreasonably refused to take part in these assessments, the respondent could decline to pay weekly compensation.

  • On 6 January 2003, the case manager called the appellant to ask whether she had chosen any of the assessors. The appellant replied that she had not, but was intending to meet that week with an advocate in order to do so.

  • On 17 January 2003, the case manager called the appellant to ask again if she had chosen an assessor. The appellant informed the case manager that she would send her choices in the post over the weekend.

  • On 24 January 2003, the case manager again called the appellant, but was unable to speak with her. The case manager left a message requesting the appellant call her. The appellant did not do so. On 27 January 2003, the case manager called the appellant again. However, once again the case manager was unsuccessful in contacting the appellant.

  • Because the appellant had refused to select an occupational assessor, on 27 January 2003 the case manager wrote to the appellant to inform her that she (the case manager) had chosen an occupational assessor for the appellant.

  • On 28 January 2003, the case manager wrote to the occupational assessor it had selected, asking her to arrange an appointment with the appellant to undertake the occupational assessment.

  • On 30 January 2003, the appellant’s advocate, Mr King, wrote to the case manager, informing her that the appellant had requested his assistance. Mr King requested that the respondent take no further action regarding the occupational assessment until he had been able to review the appellant’s file.

  • On 3 February 2003, the case manager responded to Mr King. She agreed not to take any further action in choosing the medical assessor until he had reviewed the appellant’s file, and asked him whether he had any objection to the assessor that she had appointed. The case manager stated that if Mr King had any objection to the occupational assessor, another assessor could be chosen.

  • On the same day, the appellant’s advocate responded, requesting that the respondent “delay this assessors [sic] selection process until we have the claim file in hand”. He also requested that the case manager provide him with a list of the occupational assessors that the case manager had already provided to the appellant.

  • On 21 February 2003, the case manager replied. She forwarded all of the appellant’s files to Mr King. She noted that Mr King already had a copy of the list of assessors. She requested that Mr King inform her of the appellant’s two preferred choices for medical assessor within 14 days.

  • On 27 February 2003, the case manager wrote to the appellant to advise her that the original assessor that had been appointed for the occupational assessment was unavailable, and therefore she had appointed Roger Peak to carry out the occupational assessment.

  • On 4 March 2003, the appellant’s advocate wrote to the case manager, arguing that a number of interventions had not been included in the appellant’s IRP, and that the case manager had not forwarded him copies of the appellant’s IRPs.

  • On 5 March 2003, the case manager responded, stating that she did not have a copy of the IRPs that she sent to the appellant on 29 July 2002 or 14 October 2002. However, the case manager provided Mr King with a copy of the IRP she had sent on 14 October 2002 that she had sourced from Pathway. The case manager advised that Mr Peak would be in contact to arrange an appointment.

  • On 9 March 2003, Mr King wrote to the case manager, complaining about her letter and stating that he had instructed the appellant not to attend the occupational assessment.

  • On 11 March 2003, the case manager responded to Mr King, stating that the IRP was deemed to be finalised on 29 October 2002 after the appellant had failed to return it to her, and that because all of the interventions on the IRP had been completed, the respondent considered rehabilitation to be complete.

  • The case manager then wrote to Mr Peak, informing him that Mr King had advised the appellant not to attend the occupational assessment. She requested that Mr Peak set down an appointment so that she could forward the appointment time to the appellant and Mr King.

  • Also on 11 March 2003, Mr King wrote to the case manager, stating that he did not agree that the respondent could require the appellant to participate in an assessment because the appellant had not completed her vocational rehabilitation and because the appellant had not agreed to or signed her IRP. Mr King also stated that he could not be sure that the IRP that the case manager had sent to him was a copy of the IRP that she had sent to the appellant on 14 October 2002.

  • On 12 March 2003, Mr Peak replied to the case manager, stating that his receptionist had called the appellant, but that she had hung up after informing the receptionist that she would not be participating in the assessment. Therefore, Mr Peak wrote to the appellant, stating that an appointment had been made for 19 March 2003.

  • On 12 March 2003, the case manager wrote to the appellant, reiterating that she had made an appointment for the appellant with Mr Peak on 19 March 2003. The letter warned the appellant that if she did not attend the assessment without prior notification and without providing a justifiable reason for failing to attend, her entitlement to weekly compensation would be suspended under section 117 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (the 2001 Act).

  • On 19 March 2003, Mr King wrote to the case manager, advising her that the appellant would not attend the 19 March 2003 appointment. Mr King alleged that the respondent had not advised the appellant that her IRP was considered to be finalised, and also objected to the case manager’s affirmation in an ACC 191 Vocational Independence Assessment: File Summary, Team Review and Quality Check document that “The vocational rehabilitation components of the IRP were updated and signed by the claimant to reflect the claimant’s agreement.”

  • On the same day, the case manager replied to Mr King. In her letter, the case manager referred Mr King to her 4 December 2002 letter regarding the voice recognition software, and the IRP that the case manager had sent Mr King on 5 March 2003. The case manager also noted that as the IRP had been deemed to be finalised, the appellant’s signature was not required. The case manager informed Mr King that if the appellant did not attend the appointment with Mr Peak, the respondent would suspend her weekly compensation.

  • The appellant did not attend her occupational assessment appointment with Mr Peak. Therefore, after Mr Peak had informed the case manager that the appellant had not attended the appointment, the case manager wrote to the appellant. She informed the appellant that the respondent regarded her failure to attend the appointment as unreasonable, and that therefore the respondent would decline to provide weekly compensation from 19 March 2003. The letter also advised the appellant that if she did attend an appointment with Mr Peak, the respondent would reinstate weekly compensation.

  • The appellant applied for a review of the respondent’s decision to decline weekly compensation (ACC Review No: 21138). The application for review was heard on 14 May 2003. On 19 May 2003 the reviewer issued his decision. He found that in failing to attend the appointment on 19 March 2003, the appellant had failed to comply with a requirement of the 2001 Act. Therefore, the respondent could decline to pay the appellant’s weekly compensation for as long as the appellant unreasonably refused to attend an appointment.

  • On 21 May 2003, Mr King wrote to the case manager stating that the appellant would comply with her obligations under the 2001 Act.

  • On 22 May 2003, the case manager responded, informing Mr King that the appellant’s weekly compensation would be reinstated when she attended an appointment with Mr Peak. The appellant finally attended an appointment with Mr Peak on 30 May 2003. On the same day, the respondent advised that it had reinstated the appellant’s weekly compensation, but that it would not backdate that compensation.

  • The appellant applied for a review of that decision, and the review was heard on 19 August 2003 (ACC Review No. 22513).

  • On 4 September 2003, the reviewer issued her decision, reinstating the appellant’s entitlement to weekly compensation from 26 May 2003. The appellant has not lodged a notice of appeal of this decision.

    Legal Principles

    Claimant’s responsibilities

  • Section 72 of the 2001 Act provides, in relevant part:

    “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.”

  • Section 110 provides, in relevant part:

    “110.Notice to claimant in relation to assessment of vocational independence—

    (3)The Corporation must not require the claimant to participate in an assessment—
    (a)unless the claimant is likely to achieve vocational independence; and
    (b)until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan.”

  • Part 1 of Schedule 1 of the Act provides for the respondent’s obligations in relation to rehabilitation. Clause 8 of the Schedule provides as follows:

    “8.Agreement to plan—
    (1)The Corporation must then ask the claimant to agree to the plan prepared for the claimant under clause 7.
    (2)If, after a reasonable time, the claimant declines to agree to the plan, the Corporation may advise the claimant that the plan is finalised, and the plan is then to be regarded as if the claimant had agreed to it.
    (3)When the plan is agreed or finalised, the Corporation must implement the plan.”

    Corporation may suspend entitlements

  • Section 117(3) of the Act provides:
    “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 or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or
    ©agree to, or comply with, an individual rehabilitation plan.

    (4)This section does not limit or affect any other power of the Corporation to decline or end an entitlement.”

    The Decision of the Review Officer

  • The review officer said that the issue was whether the appellant had unreasonably refused to comply with a requirement of the Act imposed by section 72. The appellant had submitted that the respondent had failed to give reasonable notice of the suspension as required by section 117(2). As the reviewer pointed out section 117(2) did not apply to the decision under review, as that section only went to the provisions of section 117(1). The reviewer found that the appellant had unreasonably refused to comply with her requirements under the Act.

  • The reviewer said:

    “… I find that that she did not provide any good reason why she should not attend the assessment…When Catalyst then chose an assessor and set an appointment time Mrs Gedye chose not to attend. In doing so she has failed to meet her responsibilities under section 72 of the Act. I find her failure to attend the appointment an unreasonable refusal to comply with her responsibilities under the Act. Catalyst at all times made Mrs Gedye aware of the consequences of her actions and went to great lengths to provide her with the opportunity to comply. She chose not to and her actions can only be viewed as unreasonable.”

    Submissions of the Appellant

  • The appellant submits that she did not attend the appointment with the vocational occupational assessor on 19 March 2003, as she believed that the respondent had not completed her rehabilitation plan, and that accordingly she was not required to participate in the assessment of vocational independence. The appellant relies upon s.110(3)(b).

  • The appellant acknowledges the reviewer’s decision of 19 May 2003 that the reviewer considered that she had unreasonably refused to comply. However, the appellant believed that the reviewer failed to give full and proper consideration to the reasons for the appellant’s non-attendance at the arranged appointment.

  • The appellant does not agree with the reviewer’s decision, and continues to believe that her action was not unreasonable, as however, for the purposes of the appeal this aspect would not be argued further. Rather, the appellant would rely upon the High Court decision of Peck v ACC (later referred to in the submissions) in respect of the payment of her withheld weekly compensation entitlement.

  • The respondent suspended payment of the appellant’s weekly compensation because of her non-attendance on 19 March 2003, and the appellant applied for a review of the respondent’s decision to suspend payment of weekly compensation. Once the reviewer made its decision on 19 May 2003, the appellant advised the respondent that she would participate in the vocational independence assessment process, and that she would attend assessment by Roger Peak of Career Services. Consequently, the appellant’s weekly compensation payments were reinstated on 26 May 2003.

  • The appellant refers to the decision of Peck v ACC, (Wellington HC, CIV-2003-485-00960, 31 October 2003) where Doogue J stated as follows:

    “[24]I am satisfied there is nothing in s.116(3) – [i.e. s.117(3) under the Injury Prevention Rehabilitation and Compensation Act 2001] which entitles an insurer, in this case the respondent, to make permanent its justifiable declining to provide a statutory entitlement once the basis for its decision to decline no longer exists. There is nothing in s.116(3) which empowers the insurer to withhold statutory entitlements of the insured once the insured’s default has been made good. … “

  • The submission is that in accordance with the principles stated in the High Court appeal decision of Peck, the appellant’s weekly compensation for the period 19 March 2003 to 26 May 2003 must be paid to her by the respondent.

  • The respondent set out as part of its background of facts, that on 18 December 2002, the respondent wrote to the appellant advising that they considered her individual rehabilitation programme was completed, and they planned to assess her vocational independence. The respondent made an appointment for a vocational independence occupational assessment to be conducted by Roger Peak of Career Services on 19 March 2003.

  • From February 2003 to March 2003 there was correspondence between the appellant and the respondent concerning the vocational independence assessment process, and particularly the vocational occupational assessor’s appointment scheduled by the respondent for 19 March 2003.

  • The appellant submitted that her rehabilitation had not been completed, and therefore under s.110(3)(b) she should not be required to participate in vocational assessment. The applicant also pointed to a lack of a signed and agreed individual rehabilitation plan and deficiencies in the ACC 191 form. The respondent insisted that the appellant attend the appointment with the vocational occupational assessor that had been arranged for 19 March 2003.

  • The appellant advised that she would not be attending this appointment on 19 March 2003, as she considered that her individual rehabilitation programme had not been completed, and accordingly she should not then be required to participate.

  • The appellant said that they had been asked by the respondent’s counsel to withdraw the appeal because the appellant had indicated that it did not intend to argue the matter of whether the appellant’s refusal to attend the 19 March 2003 appointment was reasonable. The respondent’s counsel advised that they considered that the Court had no jurisdiction to consider the issue of backdating of weekly compensation in those circumstances.

  • The appellant submitted that it did not agree the Court had no jurisdiction in respect of the backdating of weekly compensation, and the appellant was not prepared to withdraw the appeal.

  • However, in view of the respondent’s counsel’s correspondence, a submission was made in respect of the appellant’s refusal to attend the appointment of 19 March 2003.

  • The appellant’s advocate submitted that he had reviewed the ACC claim files, and wrote to Catalyst on 4 March 2003 pointing out deficiencies in the claim file documentation, and other matters of concern. It was advised that the vocational independence should not proceed until the steps in that letter were undertaken.

  • The Catalyst case manager replied:

    “Enclosed is a copy of the individual rehabilitation plan from Pathway. Unfortunately I do not have a copy of the plan sent to Mrs Gedye on 29 July 2002 and 14 October 2002. 2 copies of the individual rehabilitation plan were sent to Mrs Gedye on these dates; Pathway activity log entries record that Mrs Gedye received these.

    Catalyst considers that Mrs Gedye’s individual rehabilitation programme is now complete and plan to continue to assess her Vocational Independence. Roger Peak of Career Services will be in contact to arrange an appointment to complete the Vocational Independence Assessment: Occupational Assessment.”

  • The advocate then replied to Catalyst on 9 March advising that the reply of 5 March 2003 did not respond to the matters that he had raised on 4 March 2003.

  • Catalyst replied on 11 March 2003, and the advocate wrote again on 11 March 2003. There were also telephone discussions between Catalyst and Injury Compensation Services.

  • Further letters between the parties followed, and when Mrs Gedye did not attend the vocational independence assessment appointment with Roger Peak on 19 March 2003, Catalyst declined to pay weekly compensation.

  • The advocate’s letter of 19 March 2003 outlined the appellant’s understanding of the legislation requirements, and advised that the appellant should not be required to undergo the vocational independence assessment as s.110(3) had not been satisfied.

  • In addition, there was an absence of a signed and agreed updated individual rehabilitation plan. The application of Clause 8(2) of Schedule 1 in respect of the missing individual rehabilitation plan was disputed, and the advocate also pointed to Catalyst’s actions of retrospective amendment to the ACC 191.

  • Despite these matters, Catalyst refused to alter their stance and attend to the issues relating to the individual rehabilitation plan, and the completion of the vocational rehabilitation as the claimant’s advocate had requested.

  • Catalyst continued to maintain that the appellant must attend the appointment they had made for the appellant. The appellant, on her advocate’s advice, and because of the issues raised are not resolved, did not attend the appointment on 19 March 2003, and her weekly compensation was discontinued.

  • The review application was submitted on 27 March 2003, but was not heard until 14 May 2003, and the decision was received on 21 May 2003.

  • The submission is there were significant differences of opinion between Catalyst and the appellant and her advocate. The respondent had in opposition to request from the appellant to reconsider the individual rehabilitation plan, insisted upon the appellant’s participation in the vocational independence assessment procedure, and attendance at the appointment on 19 March 2003. The appellant had disputed this request, and advised that it was not a reasonable requirement under s.72(1). Accordingly, the appellant did not attend the appointment on 19 March 2003 when Catalyst then immediately stopped payment of weekly compensation. The appellant exercised her right of review immediately.

  • The appellant submits that through no fault of the appellant this review was not heard until 14 May 2003, and a decision not received until 21 May 2003.

  • There is a period between 19 March 2003 and 26 May 2003 when the weekly compensation was stopped for non-compliance.

    Submissions of the Respondent

    The Court’s jurisdiction in this appeal


  • The respondent submits that the Court’s jurisdiction in this appeal is limited to considering whether reviewer P Barker’s 19 May 2003 review decision (ACC Review No. 21138) was correct. In that decision, the reviewer held that the appellant’s refusal to attend the 19 March 2003 appointment was unreasonable, and therefore the respondent’s decision to decline to pay her weekly compensation was correct.

  • Mr King, at paragraph 11 of his submissions, indicates that he does not intend to argue that the appellant’s refusal to attend the appointment was reasonable. Rather, he intends to argue that the appellant should be paid the weekly compensation the respondent declined to pay her from 19 March 2003 to 26 May 2003 during the time she was unreasonably refusing to comply with the requirements of the 2001 Act.

  • The respondent submits that the Court has no jurisdiction in this appeal to consider the issue of backdating. The 19 May 2003 review decision appealed from did not consider that issue, nor make any determination in relation to it. Indeed, it could not have done, because by 19 May 2003 the respondent had still not reinstated the appellant’s weekly compensation.

  • It was not until 30 May 2003 that the respondent decided that it would not backdate the appellant’s compensation to 19 March 2003. The appellant challenged this 30 May 2003 decision in ACC Review No. 22513. The appellant has not appealed this review decision. The respondent submits that she must do so before the Court has any jurisdiction to consider the issue of backdating.

    Did the respondent reasonably require the appellant to attend the 19 March 2003 occupational assessment?

  • The respondent submits that it was entitled to require the appellant to attend the occupational assessment on 19 March 2003 because the appellant had completed all of the interventions in her IRP. While the appellant and Mr King alleged in their communications to the case manager that the appellant’s rehabilitation was not complete, neither have suggested that any of the interventions in the IRP were not completed.

  • The appellant also apparently considered that she did not have to attend the occupational assessment because she had not signed her IRP and, according to her, the IRP had not been updated. Mr King was also concerned that there was doubt over whether the IRP that the case manager had sent him was the IRP the case manager sent the appellant on 14 October 2002.

  • The case manager forwarded the appellant two copies of her updated IRP on 14 October 2002. There is no doubt that the appellant received the IRP that the case manager sent her. If she had not received it, she would not have informed the case manager that she was not going to return the IRP until she had checked the dates when the case manager telephoned her on 31 October 2002. Further, in her 17 March 2003 letter to Mr King, the case manager was certain that the IRP she had forwarded Mr King was the same IRP that she forwarded the appellant on 14 October 2002.

  • The case manager gave the appellant a reasonable time to sign and return the IRP or to discuss it. The 14 October 2002 letter clearly stated that if the appellant did not return the IRP by 29 October 2002, it would be deemed to be finalised. The appellant did not contact her case manager, and did not return the signed IRP. It was only when the case manager rang the appellant on 31 October 2002 that the appellant indicated that she may have had an issue with the IRP in regard to the accuracy of the dates recorded in the IRP. However, it appears that the appellant never communicated what exactly her concerns were with the dates in the IRP or ever attempted to discuss, in a reasonable manner, any other issues (if there were any others) that she had with the IRP.

  • While the appellant subsequently raised the issue of voice recognition software, this did not occur until after 29 October 2002. Moreover, the provision of voice recognition software was not an intervention set out in the IRP.

  • If the appellant had wanted to contest or discuss any aspect of her IRP, she should have done so before the IRP was deemed to be finalised. She chose not to do so. Therefore, the respondent submits that, according to the IRP that was deemed to be finalised on 29 October 2002, the appellant had completed all of the vocational rehabilitation that the respondent was liable to provide. Accordingly, it was reasonable for the respondent to require that the appellant participate in the 19 March 2003 occupational assessment.

    Did the appellant unreasonably refuse to attend the 19 March 2003 occupational assessment?

  • The respondent submits that the evidence indicates that the appellant adopted an unreasonable and deliberately obstructive approach to the case manager’s attempts to arrange a vocational independence assessment for her.

  • The case manager first requested that the appellant choose a medical and occupational assessor on 31 October 2002. From that date until 27 January 2003, when the case manager wrote to the appellant to inform her that she had chosen an occupational assessor for her, the case manager wrote to the appellant on two occasions and telephoned her five times to ask that she make a choice. The appellant responded by making unreasonable requests, promising the case manager that she would make a choice and then failing to do so, and failing to return many of the case manager’s telephone calls. By the time that the appellant’s actions and inaction led the case manager to consider that she had no choice but to appoint an occupational assessor, almost three months had elapsed since the case manager initially asked the appellant to choose an occupational assessor.

  • When Mr King became involved in the appellant’s case, the case manager agreed to further delay the appointment of an occupational assessor until Mr King had had an opportunity to review the file.

  • Despite being given the opportunity in the case manager’s 3 February 2004 letter to Mr King, the appellant did not write back to the case manager with any objection regarding the occupational assessor that the case manager had chosen. Neither did the appellant inform the case manager of her choice for a medical assessor within 14 days that the case manager had requested in her 21 February 2003 letter. Instead, the appellant communicated her resolve not to attend the occupational assessment. The same issues regarding the appellant’s IRP that the appellant had already raised with the case manager, and that the case manager had already replied to, were raised again. The appellant consistently refused to accept any of the case manager’s reasonable responses to those issues.

  • It was not until 12 March 2003, almost five months after the case manager had first requested that the appellant provide her with a choice of an occupational assessor, that an appointment with an occupational assessor was finally set down for 19 March 2003. On 19 March 2003, the appellant indicated, through Mr King, that she would not be attending the occupational assessment. Therefore, after verifying that the appellant had indeed not attended the 19 March 2003 appointment, the respondent decided to decline to pay the appellant’s weekly compensation from 19 March 2003.

  • The respondent submits that the appellant was never proactive or timely in pursuing any of her concerns with the respondent about either her IRP or the vocational independence assessment. Rather, she adopted an obstructive approach to all of the case manager’s requests regarding the IRP and the occupational assessment, and provided no reasonable excuse for failing to attend the 19 March 2003 appointment. Indeed, the respondent submits that whenever the appellant could, she found a way to delay the process leading to the vocational assessment.

  • In all the circumstances, the respondent submits that the appellant’s behaviour was plainly unreasonable and that that unreasonableness and the delay it caused, culminating in the appellant’s refusal to attend the 19 March 2003 appointment, entitled the respondent to decline to pay the appellant’s weekly compensation.

    Decision

  • By a narrow margin, I reach the conclusion that the actions of the appellant were not unreasonable in attending the occupational assessment. I appreciate that the advocate for the appellant did not in his written submissions seek to argue that the appellant’s refusal to attend the appointment was reasonable. I think that this concession was misconceived.

  • At the hearing Mr King stressed that all times in respect to the refusal that the appellant was acting on his advice not to attend the appointment. Because of the difficulties that the respondent had had dealing with the appellant the respondent advised her on 12 December 2002 to contact a local advocate to ask their opinion. On 6 January 2002 the appellant in response to an inquiry from the respondent advised that she was meeting with an advocate to discuss the matter.

  • On 30 January 2003 the appellant’s advocate Mr King wrote to the case manager informing her that the appellant had requested his assistance. Mr King requested that the respondent take no further action regarding the occupational assessment until he had been able to review the appellant’s file. On 3 February 2003 the case manager agreed not to choose the medical assessor until he had reviewed the appellant’s file. On the same day the advocate requested that selection process be delayed until he had the claim file and a list of occupational assessors. On 21 February 2003 this information was provided and an answer was sought within 14 days as to the two preferred choices of medical assessor.

  • On 27 February 2003 the case manager said that Roger Peak had been appointed to carry out the occupational assessment. On 4 March the advocate responded in a detailed way to say that a number of interventions had not been included in the appellant’s IRP and that in his opinion he did not believe that the vocational assessment could be undertaken at that time. The case manager stated that she did not have a copy of the IRP, however she provided a copy of the plan sent on 14 October 2002 and advised that Mr Peak would arrange an appointment. She said that Mr King’s letter had been placed on file and did not deal with his detailed concerns, but stated generally that the respondent considered that the appellant had completed her individual rehabilitation and still wanted her to complete the vocational assessment.

  • On 9 March 2003 Mr King wrote to the case manager complaining about her letter and stating that he had instructed the appellant not attend the occupational assessment. A further letter was sent to Mr King on 11 March 2003 setting out further details and disagreeing with his view.

  • An appointment time was set for 19 March at 2pm, but the appellant said that she would not attend by telephone. On 11 March 2003 Mr King wrote to the case manager confirming his advice to the appellant and detailing his complaints.

  • On 12 March 2003 a letter was sent to the appellant detailing and confirming the time and date of appointment and advising that breach of this requirement would be grounds for stopping the appellant’s entitlements.

  • Mr King responded on 19 March 2003 advising that the appellant would not be attending and giving his reasons. On 19 March the respondent responded and treated the failure to attend by the appellant as not reasonable and suspending her weekly compensation.

  • I do not think that the respondent acted unreasonably in requiring the appellant to attend the occupational assessment in these circumstances. However, the issue then becomes as to whether the appellant unreasonably refused to attend the occupational assessment. In the critical circumstances the appellant was being advised by her advocate and it was on his advice that the appellant did not attend the appointment. The respondent had advised the appellant to take advice from a local advocate, and I at once say that this was sensible and proper advice. I must take into account the fact that the appellant acted upon this advice; see Dunlop v Woollaha Municipal Council [1982] AC 158 per Lord Diplock 171 as to the reasonableness of acting upon legal advice, even if that was wrong.

  • Here, the appellant had a history of not responding to the reasonable requests of the respondent. However, at the relevant time the case manager and the advocate were debating differing view points as to the assessment procedures. This case has been decided very much on its particular facts. I would have thought that if it is to have any precedent value the case illustrates the dangers for a solicitor or advocate advising against the reasonable requirements of the respondent.

  • As I said I have come to a view by a narrow margin that the appellant on the facts of this case should not be visited with the consequences of the advice given by her advocate. I allow the appeal and overturn the primary decision of the respondent to suspend entitlements. In all the circumstances there will be no order as to costs.

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#2 User is offline   watcha 

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Posted 10 October 2004 - 03:20 PM

This is a very interesting case of what is reasonable or unreasonable or, more importantly, who was reasonable and who was unreasonable.

I note that Cadenhead found for the claimant and allowed the appeal on the one hand but on the other, did not adequately address the "reasonableness" of ACC in proceeding with the VI assessments in light of the claimants objections.

Was the claimant unreasonable? What is unreasonable? Did the claimant do anything outrageous, objectionable, maliciously, irrational or criminal? Not from the evidence as presented in the decision. I take the opposite view; firstly, she disputed her IRP and secondly, she contended that her rehab had not been completed. A perfectly reasonable and justifiable stance I would have thought.

ACC, on the other hand, unreasonably insisted that she attend the assessment in the full knowledge that her plan was in dispute and that interventions had not been completed yet formulistically sent her down the path anyway. Was ACC outrageous - yes; was ACC objectionable - yes; was ACC acting maliciously - more than likely, yes, because of past history; was ACC irrational - who knows how its collective mind works; was ACC acting criminally - yes, in contravention of statute.

Other questions not adequately addressed by the judge were the timing of commencing the VI process and its purpose, which are open to abuse and are most vexing ones for claimants. An appeal is a rehearing and the judge is supposed to put aside the policies and processes and "look at the matter afresh", as is the reviewer, but after all this is New Zealand so don't expect justice to prevail.

Sec 107 gives ACC authority to assess claimants and 107(3) states that the purpose of the assessment is to ensure that the voc rehab it is liable to provide has been completed. No doubt that is what parliament intended. The test is clearly stated in Sec 110, a claimant is not required to be assessed if voc rehab is unlikely to be achieved and until voc rehab has been completed. The reality is that ACC ignores Sec 110.

Where was the evidence that voc rehab had been completed? ACC's word based on a dodgy IRP? Where was the medical evidence that she was in fact ready for voc rehab? Was ACC unreasonable? This decision raises more questions than it answered.

Good news for Mrs Gedye in that her weekly compensation was reinstated, although no back payment it seems, but bad news for all claimants.

Judge Cadenhead - brickbats only for you - again!!
1) No back payment, contrary to Peck.
2) Blamed her advocate - wrong advice maybe but right motive nonetheless - problem is, dealing with ACC, being right is irrelevant.
3) Blaming advocate - lets ACC off the hook thereby failing to apportion blame.
4) Did not address IRP issues.
5) Did not address elegibility for VI process.

Mikeg's prophecy has come to fruition - Judges are the gatekeepers to the ACC scheme.
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#3 User is offline   jocko 

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Posted 10 October 2004 - 11:08 PM

I presume the Woolaha Municipal council is Australia so I presume we can use the judgement of the full South Australian Supreme Court
(unreported 23 October 1978) quoted with approval by White J. in the Full Supreme Court decision of Donjerkovic v. Adelaide Steamship Industries Pty. Ltd. (1980) 24 S.A.S.R. 347. When faced with an assessment of damages where there was a disagreement by the medical specialists about the worker's prognosis, Bright J. said:-
'This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central, not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognize this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.'
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#4 User is offline   doppelganger 

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Posted 11 October 2004 - 07:31 PM

haven't read it all but does the corporation not know of schedule i clause 9

9.Disputes about plan—

(1)For the purposes of Part 5 of this Act, the Corporation makes a decision when— (a)the claimant agrees to a plan; or
(b)the Corporation advises the claimant that a plan has been finalised.

(2)The fact that a claimant has agreed to a plan does not affect his or her rights to make a review application under Part 5 of this Act with respect to the plan.

Cf 1998 No 114 Schedule 1 cl 34

Were is the letter explaining the right to review the IRP
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