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Barwood V Acc 307/2005 Finalising IRP's O/S claimant Voc Rehab

#1 Guest_Read Me_*

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Posted 07 November 2005 - 12:53 PM

A judgment for you to read up on about IRP's, overseas claimants and vocational rehab.

DECISION No, 307 /2005

Judgment: RESERVED JUDGMENT OF JUDGE D A ONGLEY
19 October 2005

Appearances: Alan Rowlett for appellant
Ms J K Hodgson for respondent

Medical Assessors: Otto, Monash, Seemann

This is an appeal against the finalisation of an individual rehabilitation plan under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

Note: Spelling errors are as they appear on the paper copy:

Attached File(s)


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#2 User is offline   MG 

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Posted 07 November 2005 - 03:02 PM

Interesting case - adherence to the provisions of schedule one is mandatory. Complete contrast to "Bondarenko" and "Martin" earlier this year.
Well done Alan Rowlett.
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#3 Guest_Percy_*

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Posted 07 November 2005 - 04:57 PM

Monash. Otto and Seeman, a fatal combination !!
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Posted 07 November 2005 - 05:16 PM

MG, on Nov 7 2005, 04:02 PM, said:

Interesting case - adherence to the provisions of schedule one is mandatory. Complete contrast to "Bondarenko" and "Martin" earlier this year.
Well done Alan Rowlett.

is there the statutory duty to inform claimants of available entitlements?

as said in Arts v ACC:
http://www.accforum....wtopic=2940&hl=

"common law duty of care to a claimant whom it knows to be entitled to benefits and in
need of benefits, and whom it knows to be failing to claim those benefits, and therefore probably to be unaware of an entitlement. Such a duty of care could arise once Corporation staff have had such other communications with the claimant through, for example, assessment of earnings-related compensation, to know that a situation exists............."

and

"The proposition of such a duty of care may be based on the Corporation's obligation
under s 20(3) of the Act to appoint case managers, and it may be fortified by the fact
that the Corporation has considerably improved its case management techniques in
order to provide that kind of advice. A duty of care of that kind may have existed in this case and it may have been breached by the Corporation failing to inform the appellant in an adequate way having regard to the distractions and stresses to which the appellant and his family were inevitably subject. There may be some notion of contributory negligence through failure to scrutinise carefully all communications from the Corporation"


and in respect to Barwood v ACC:

"This is an appeal against the finalisation of an individual rehabilitation plan under the Injury Prevention, Rehabilitation, and Compensation Act 2001. "


"Ms Barwood's IRP was notified as being finalised on 3 October 2003. That is a process authorised under cl 8(2) of Schedule 1 of the Act if, after a reasonable time, the claimant declines to agree to the plan. Clause 9(1) states that finalisation of a plan by the Corporation is a decision. Review and appeal rights apply to that decision; see Weir v ACC (unrep. High Court, Wellington, CIV 2003-485-1921, 18 August 2004, Miller J)."

and

"The response from the Corporation was to follow the course which it had set out in the draft IRP and, on 3 October 2003, to advise the appellant that the plan of 8 September 2003 was considered agreed upon. That was a reviewable decision under Clause 8(2) of Schedule 1, finalising a plan."


"Law
[17] Section 77 of the Injury Prevention Rehabilitation and Compensation Act 2001 refers to the content of a plan:
77 Assessment of needs and content of plan
(1) In preparing an individual rehabilitation plan, the Corporation must
assess the claimant's needs for rehabilitation having regard to the purposes in
sections 79 and 80.
(2) An individual rehabilitation plan must -
(a) identify the claimant's needs for rehabilitation; and
(B) identify the assessments to be done; and

© identify services appropriate to those needs, whether or not the
Corporation is liable to provide any or all of those services; and
(d) specify which of the services identified under paragraph © that
the Corporation will provide, pay for, or contribute to.
(3) For the purposes of subsection (2)(a), the Corporation must assess a
claimant's needs for -
(a) social rehabilitation under section 84 and clauses 13 to 23 of
Schedule 1; and
(B) for vocational rehabilitation under sections 89 to 96.
(4) However, the Corporation is not required to assess a claimant's needs
under subclause (3)(B) if the claimant's needs are solely related to
maintaining employment.

[18] Section 77 prescribes a process directed at identifying needs and developing services. The purposes include vocational rehabilitation under subs (3)(B). Under s78 the IRP must be updated from time to time to reflect the outcome of assessments done and progress made under the plan. It is not a static or final declaration of rehabilitation needs. To judge the statutory compliance of an IRP, it is necessary to look at the whole process, not just the last IRP which might not contain a full proposal for needs and services if that has already been accomplished. In some cases it might be appropriate to identify already completed services as all that can be achieved by way of vocational rehabilitation, but the process must be relative to "needs for rehabilitation" identified and considered at the time of the plan. It would not be enough to recite completed rehabilitation without identifying needs for rehabilitation.
"

"Development of the plan is regulated by cl 7 of Schedule 1. It refers to the assessments and assistance the Corporation may engage in preparation of a plan, and the claimant's right to have a representative and to have participation with or without a medical practitioner who is providing treatment to the claimant.

7 Preparation of individual rehabilitation plan
(1) The Corporation must provide information to the claimant about—
(a) the rehabilitation to which the claimant may be entitled; and
(B) the plan development process; and
© the claimant's right to have a representative involved in the
preparation of the plan; and
(d) in relation to a plan that will include vocational rehabilitation, the Corporation's right to require the claimant to undergo an assessment of his or her vocational independence at the completion of the vocational rehabilitation, and the potential consequences of such an assessment; and
(e) the consequences of the claimant's agreeing to the plan.
(2) The Corporation may engage a suitably qualified person or organisation
to-
(a) assist in the assessment and preparation and costing of a plan; and
(B) provide a link between the claimant and the services identified in
the plan.
(3) The following persons must be given an opportunity to participate in
the preparation and costing of the plan to the extent that they are willing and
able to do so:
(a) the claimant:
(B) any registered medical practitioner providing treatment to the
claimant:
"


"Under cl 8 the plan is to be either agreed and finalised, or finalised unilaterally if, after a reasonable time, the claimant declines to agree to the plan. The latter is the course the Corporation took in this case. "Reasonable time" to agree to the plan depends on the circumstances of an individual case. The appellant argues that reasonable time was not given."


"That casual reference was not enough to inform a claimant that the Corporation must provide the opportunity for participation by a medical practitioner in the preparation and costing of the plan"

"But there was a failure and, on balance, I do not think it could be regarded as merely a technical failure.......................................................
The Corporation should have recognised the need to comply with cl 7(3)(B), rather than finalising the plan on....."

The appeal is therefore allowed. I find that the individual rehabilitation plan did not comply with the requirement of cl 7(3)(B) and that the non-compliance was significant. :



discussion:
With reference to the above and if there can be identified the number of IRP's that fail to be implemented in accordance with the act, then how can it be enforced or remedied beyond goin g around in repeated circles of the Review and appeal process. That process does not seem to encourage ACC to get it right.???
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#5 User is offline   fairgo 

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Posted 07 November 2005 - 08:54 PM

Note the judge's comment:

37] ..... important to note that the rehabilitation process should not be directed at gaining vocational independence under s107 of the Act, but at true vocational rehabilitation commensurate with her experience and ability.

Amen to that!!!
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