RITCHIE v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 2305 [23 September 2015]

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2014-485-11561

[2015] NZHC 2305

UNDER

the Judicature Amendment Act 1972

IN THE MATTER OF

an application for judicial review

BETWEEN

DONNA RITCHIE

Applicant

AND

ACCIDENT COMPENSATION

CORPORATION

Respondent

Hearing:

20 May 2015

Counsel:

A C Beck for Applicant

C J Hlavac and A L Keir for Respondent

Judgment:

23 September 2015

JUDGMENT OF WILLIAMS J

[1] The applicant, Ms Ritchie, seeks judicial review of the respondent’s decision

to require her to undertake a vocational independence assessment under s 110 of the

Accident Compensation Act 2001 (the Act). She says that the two threshold

requirements in s 110(3) have not been satisfied. Those requirements are that the

claimant be “likely to achieve vocational independence” and that ACC had satisfied

all agreed vocational rehabilitation responsibilities to the claimant. These must be

satisfied before an assessment can be required.

Factual background

[2] Ms Ritchie suffered an upper leg muscle injury in 2007 and was granted

cover. The injury was diagnosed as a hernia and surgery repaired it in December

2007. Following surgery, an assessment was carried out by a neurologist,

Dr Du Plessis, in 2009. It was found that the applicant suffered from neuritic pain as

a consequence of the surgery. In February 2011, Dr Michael Anderson, a pain

specialist, completed a comprehensive pain assessment of the applicant. He found

that she suffered from a regional pain syndrome predominantly of neuropathic origin

with a “marked myofascial component around the left hip”.

[3] Under the heading “Return to employment” Dr Anderson recorded in the

assessment:

It is felt that Donna is able to be self initiating and independent with the

objective of resuming an employment role. She has outlined definite plans

in this regard, and it is thought that she is able to continue to progress these

plans.

[4] At that point, the applicant was considering enrolling in a Masters’

programme in health sciences with a view to teaching or tutoring in that field in the

future.

[5] A follow-up report was completed by Dr Anderson in July 2012. The report

records:

With respect to her work, Donna continues with her studies and is close to

gaining her qualifications. Donna can’t sit for more than an hour (this is

particularly noticeable when driving). Employment where she can get up

and walk around and change positions regularly while still completing work

tasks, such as is available while preparing lectures and other activities such

as grading papers, would be ideal.

Donna experiences pain at various times during the day and night. When

pain is severe it is unlikely that she could maintain any level of concentration

for more than an hour. The flexibility to stop work tasks and return to them

at a later stage will be important in any position she undertakes.

It is unlikely Donna would have the ability to work a six hour day when

experiencing pain. A position where there is the ability to work a small

number of fixed hours, for example 1-2 hours a day with an additional

component of flexible work that is able to be completed in her own time, and

at her own pace, would be sustainable.

[6] A further report covering pain management was completed by Jeni Blezard in

December 2012, a psychologist with pain expertise.

[7] That report concluded:

Donna continues to hold firm with her belief that resuming a full time

employment position is not going to be sustainable for her. Given the

dealings I have had with Donna over a significant time period, and having

observed the way in which her coping continues to be significantly

compromised when her pain becomes heightened, I am inclined to agree

with her. This being the case, Donna also continues to have a problem with

ACC’s return to work agenda – that resumption of a full-time position is

possible. She plans to continue to seek the ability to maintain her ACC

support whilst she completes the qualifications which will enable her to

undertake the employment role she believes is viable for her and one from

which she will be able to derive a part-time income which is financially

sufficient for her. It is difficult and in some ways inappropriate for me to

comment on this, however I feel reasonably confident that Donna has the

where-with- all (sic) to realise her goals and this being the case the outcome

would be a satisfactory one for all, should some discretion be granted in the

manner in which it is sought.

[8] On 18 January 2013, ACC had Dr Nick Yarnall, an occupational medicine

specialist, undertake an Initial Medical Assessment (IMA) pursuant to s 95 of the

Act. He concluded as follows:

I assess Ms Ritchie as being capable of undertaking work within the

sedentary to light range initially on a part-time basis with appropriate

flexibility of movement.

Due to the potential for exacerbation of her symptoms due to prolonged

physical activities, walking, sitting, standing etc, a significant degree of

flexibility with limitations on these exacerbating activities will be necessary

in order to maximise her employability on a part-time basis.

…

Ms Ritchie told me that she has considered the possibility of being able to do

limited amounts of occupational therapy on a part-time, contract, basis

within the limits of her symptoms.

I consider that she would be fit to undertake such work on a part-time basis;

however, I would not consider that she would be able to sustain full-time

work as in her pre-injury role. In addition, she will require greater flexibility

of tasking in many jobs are likely to allow.

(my emphasis)

[9] On 28 January 2013 in an addendum, Dr Yarnall specifically assessed the

applicant’s suitability as a university and higher education lecturer and/or tutor.

Dr Yarnall concluded (here agreeing with the applicant) that she was suitable for

such work on a part-time basis.

[10] A series of Individual Rehabilitation Plans (IRPs) were prepared by the

applicant’s ACC case manager in accordance with s 75 of the Act. These included

plans in August 2013 and April 2014 the terms of which were agreed with

Ms Ritchie, as well as a draft plan in October 2014 that was not agreed.

[11] The August 2013 plan included the following:

ACC acknowledges that the vocational goal of “University and Higher

Education Lecturer and/or Tutor” is a realistic option for Donna.

[12] The plan then cites from the Careers New Zealand website the requirement

that university lecturers need to be studying towards, or have completed a Masters’

degree or have a doctorate. Experience is also required in research and teaching with

publications being an advantage.

[13] The April 2014 IRP set the goal of rehabilitation as “Get work that suits my

ability” with an estimated completion date of 30 September 2014. This was the date

at which it was expected the applicant would complete her Master’s degree.

[14] The draft IRP subsequently prepared in October 2014, extended the estimated

date of goal completion “Get work that suits my ability” to 31 August 2015.

[15] The draft plan records that the applicant’s Masters in health science had been

submitted for evaluation and the applicant was waiting for it to be returned so that

she could “begin writing for publication”. It also recorded that she was tutoring at

the University of Otago and working for the Pacific Island Centre and Disability

Centre. By an email to her ACC case manager, Ginette McConnochie, dated

20 October 2014, the applicant expressed concern that:

… there is no mention that ACC is supporting me to work towards becoming

a university lecturer. This has been in my previous IRPs. Given it is not a

goal I have achieved yet, it will need to stay there.

[16] On 29 October 2014, Ms McConnochie, advised the applicant by email that

she would look into the issue and a new draft plan would be forwarded shortly. But

on 14 November, Ms McConnochie wrote to the applicant advising:

… In looking at your journey since your accident, I am left believing that

your rehabilitation regarding your injury is now complete.

Ms McConnochie gave the applicant an opportunity to make further comment. The

letter advised that the next step would not be finalisation of the IRP but rather a

vocational independence assessment pursuant to s 110. Ms McConnochie also

advised that her comments were preliminary and subject to further internal

discussions with her Team Manager, Technical Claims Manager and the Branch

Medical Advisor “to ensure they agree that your rehabilitation is complete”.

[17] On 16 November 2014, the applicant replied (referring to earlier IRPs), that

the rehabilitation set out in the plans was not yet complete and there was no basis on

which a s 110 assessment could be undertaken.

[18] On 19 November 2014, ACC completed an internal vocational independence

assessment form in which a full review of the applicant’s file was undertaken. On

the form Ms McConnochie records her view that rehabilitation was now complete,

concluding:

In my view the client is likely to be able to sustain 30 or more hours of work

per week.

[19] By handwritten endorsement on the form, the Branch Medical Advisor,

orthopaedic specialist, Bill Taine, confirmed his agreement with that assessment. He

recorded that he relied for this conclusion primarily on the IMA undertaken by Dr

Yarnall in January 2013.

[20] Gary Clancy, the Team Manager and official with final responsibility, then

confirmed that the test in s 110 had been satisfied and agreed that a formal vocational

independence assessment should therefore be undertaken.

[21] On 21 November 2014, ACC wrote to the applicant accordingly.

The legislation

[22] A focus of the 2001 Act is rehabilitation for those who have suffered personal

injury. Section 3(c) provides:

The purpose of this Act is to enhance the public good and reinforce the

social contract represented by the first accident compensation scheme by

providing for a fair and sustainable scheme for managing personal injury that

has, as its overriding goals, minimising both the overall incidents of injury in

the community, and the impact of injury on the community (including

economic, social, and personal costs), through –

…

(c) ensuring that, where injuries occur, the Corporation’s primary focus

should be on rehabilitation with the goal of achieving an appropriate

quality of life through the provision of entitlements that restores to

the maximum practical extent a claimant’s health, independence and

participation.

[23] Rehabilitation is then specifically defined in s 6 as:

(a) … a process of active change and support with the goal of restoring,

to the extent provided under s 70, a claimant’s health, independence,

and participation; and

(b) comprises treatment, social rehabilitation and vocational

rehabilitation.

[24] Section 75(a) provides that the Corporation must within 13 weeks of

accepting a claim:

(i) determine whether the claimant is likely to need social or

vocational rehabilitation after the 13 weeks have ended; and

(ii) if so, prepare an individual rehabilitation plan in consultation

with the claimant.

[25] Section 76(4) then provides:

After an individual rehabilitation plan for the claimant is agreed, the

Corporation is liable to provide the claimant with rehabilitation in

accordance with the plan and Schedule 1, but only to the extent that the

Corporation has specified which services it will provide under the plan.

[26] Vocational rehabilitation (the focus of this application) is covered in ss 85 to

96. Once rehabilitation is complete in accordance with the IRP, ACC may determine

whether the claimant has achieved vocational independence as set out in s 107.

Vocational independence is defined in s 6 to mean the capacity of a claimant to

engage in work:

(a) for which he or she is suited by reason of experience, education, or

training, or any combination of those things; and

(b) for 30 hours or more a week.

[27] Section 107(3) sets out the purpose of a vocational independence assessment

as follows:

The purpose of the assessment is to ensure that comprehensive vocational

rehabilitation, as identified in a claimant’s individual rehabilitation plan, has

been completed and that it has focused on the claimant’s needs, and

addressed any injury related barriers, to enable the claimant—

(a) to maintain or obtain employment; or

(b) to regain or acquire vocational independence.

[28] Section 110 is the focus of this application. It sets out the circumstances in

which ACC may move to require a rehabilitating claimant to undergo a vocational

independence assessment. This assessment is significant because it is a precursor to

ACC ending cover. Section 110 provides as follows:

(1) The Corporation must give written notice to a claimant required by

the Corporation to participate in an assessment of his or her

vocational independence.

(2) The notice must—

(a) state the purpose, nature, and effect of the assessment; and

(b) state that the claimant is required to participate in the

assessment; and

(c) state the consequences of not doing so; and

(d) state the claimant's right to be accompanied by another

person during the assessment.

(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.

[29] The two triggers in s 110 are therefore the completion of ACC’s vocational

rehabilitation responsibilities pursuant to the IRP, and a conclusion by the

appropriate ACC official that the applicant was “likely to achieve vocational

independence”. As I have indicated, the applicant says neither requirement was met.

[30] I turn now to separately address each of those two requirements.

Likely to achieve vocational independence: s 110(3)(a)

[31] This requirement has been authoritatively interpreted by the Supreme Court

in McGrath v ACC.1 That case involved a claimant who had suffered an injury

producing reduced mobility and chronic pain. She worked part-time. Her GP and a

pain management specialist accepted that she was only capable of working part-time.

[32] Some years later, the claimant was required by ACC to undertake an

assessment under s 110 to determine her vocational independence. A case officer

made the decision without any updating assessment of likelihood under s 110(3)(a).

In the context of an application by Ms McGrath for judicial review, the Supreme

Court found that there was no proper basis upon which the Corporation could

reasonably have formed the view that vocational independence was likely in terms of

that provision.

[33] The Court found that the legislative history of s 110(3) suggests that its

purpose was “to protect claimants from unnecessary assessments where there was no

real prospect of vocational independence”. “Likely” in this context was taken to

mean “an outcome reasonably in prospect”.2

[34] On the facts in that case, the Court held:3

Nor could it be reasonable to rely on an assessment that was then four years

out of date as supporting the view in September 2008 that vocational

assessment was likely to lead to a conclusion of vocational independence

when other medical opinions in the interim (obtained as part of the

individual rehabilitation plan and which had necessitated compromise of

another premature attempt at vocational independence assessment) had

expressed quite different views.

1 McGrath v ACC [2011] NZSC 77, [2011] 3 NZLR 733.

2 See [32] and [33] and the reference to the Shorter Oxford Dictionary definition of ‘likely’ as “to

be reasonably expected”. 3 At [37].

[35] In short, in the context of that case, clear and relatively recent medical

evidence that the claimant was unlikely to achieve vocational independence had to

be met with more recent contrary evidence before the test in s 110(3)(a) could be

met. An opinion from an unqualified case manager, even one with experience, did

not meet the high threshold.

The evidence

[36] I have already referred briefly to the assessments undertaken by Dr Anderson

in 2011 and 2012, Ms Blezard in December 2012, and Dr Yarnall in January and

February 2013.

[37] Dr Anderson and Ms Blezard each took the view that Mrs Ritchie was

unlikely to be able to cope with full-time work, while Dr Yarnall took the view that

Mrs Ritchie was capable of working in a number of fields involving limited contact

time with service consumers and a majority of non-contact discretionary time. He

considered that she was capable of undertaking such work “initially” on a part-time

basis.

[38] The difference between the broad factual profile of this case and that

confronted by the Supreme Court in McGrath is the presence in this case of a further

recent medical opinion. This is the opinion of the orthopaedic surgeon, Mr Taine,

expressed in the context of the case review undertaken by ACC immediately prior to

the decision under s 110(3). For that reason Mr Taine’s opinion takes on real

significance in this application.

[39] It will be recalled that Mr Taine is the Branch Medical Advisor. It is common

ground that Mr Taine did not meet or examine Ms Ritchie. His assessment was

based only on the available written material in relation to Ms Ritchie’s case. On the

assessment form he ticked the box next to the standard form typed statement that

read:

In my opinion, from a medical perspective, the client is likely to be able to

sustain 30 hours of work per week. Provide rationale below.

(emphasis in original)

[40] A brief handwritten note next to that standard form sentence read “See prev

IMA”.

[41] This was a reference to the IMA undertaken by Dr Yarnall in January 2013.

Mr Taine provided an affidavit for the purpose of this proceeding setting out his

reasons more fully. He confirmed that, although he had read the earlier reports of

Dr Anderson and Ms Blezard, he considered the Yarnall report to be more

significant.

Most important to my mind was the report of Dr Nick Yarnall dated

18 January 2013 (with additions on 28 January and 15 February 2013).

These reports are annexed to this affidavit as exhibit A. Yarnall’s report,

which was a complex Initial Medical Assessment, provides a detailed

background to Ms Ritchie’s claim, information regarding her rehabilitation

to date, and his opinion about her likely ability to sustain work, and involves

consideration of the earlier medical evidence.

I noted that it was nearly two years old at the time of our meeting.

In summarising the background, Dr Yarnall said that Ms Ritchie had ongoing

pain in the area of her left groin, but that it was “typically at low levels and

on occasions she is pain free”. He did note exacerbations with pain

following exposure to exacerbating activity such as physical activity,

walking, standing or sitting for a prolonged period.

He described a number of inputs into pain management and said:

I would not recommend any specific additional pain management or

other medical management interventions at present following recent

rehabilitation inputs including clinical psychology, pain specialist

input and dietician input (the latter of which are ongoing).

He discussed ongoing input from a dietician and a swimming programme,

which I considered important.

As far as work-ability assessment goes, Dr Yarnall said:

I assess Ms Ritchie as being capable of undertaking work within the

sedentary to light range initially on a part-time basis with

appropriate flexibility of movement.

[42] According to Mr Taine, he ultimately based his decision as set out in the ACC

form on the following factors:

(a) Although Mr Yarnall’s report indicates that Ms Ritchie should

consider a return to work initially on a part time basis, it is very

common for work on a part time basis to be necessary as part of the

process of returning to work. That is because a long period out of

the workforce can require a period of “work hardening” before a full

(b) time return to work. The physical and mental discipline required to

maintain full time work can take a while to develop in any person,

regardless of injuries etc. This does not mean that 30 hours of work

is not medically sustainable.

(c) Added to that, Ms Ritchie’s condition (chronic pain) is the sort of

condition which varies over time. Improvement is at least as likely

as deterioration and functional improvement is a reasonable

expectation. Noting that Dr Yarnall did not consider any further

rehabilitation interventions to be necessary, I concluded that

Ms Ritchie is likely to have improved in her abilities from the time

of Mr Yarnall’s report.

(d) I noted that Ms Ritchie was working part time as well as studying, a

good indicator was that she would be able to transition to work.

(e) The work types recommended required the type of function similar

to her current activities (part time work and study) and therefore

likely to be compatible with an ability to work 30 hours per week.

(f) Her pain appeared to be largely under control, and well managed,

with Dr Yarnall noting that she was occasionally pain free.

(g) Some of the barriers earlier identified appeared to have been

resolved – for example her previous negative relationship with ACC

had apparently improved.

Assessment

[43] Mr Beck, for the applicant, submitted that there was no objective basis for the

assessment reached by Mr Taine. In particular, it was argued, Mr Taine:

(a) did not examine Ms Ritchie but merely reviewed her file;

(b) relied primarily on the Yarnall report which referred only to the

possibility of part-time work;

(c) incorrectly assumed that the plaintiff was working part-time and

studying, which, as Ms Ritchie pointed out in her affidavit, was

factually incorrect;

(d) inexplicably concluded that “barriers” to independence such as poor

relationships with ACC had been resolved;

(e) was not himself a pain specialist and failed to deal with the views of

Ms Blezard and Dr Anderson who were experts.

[44] It is quite inappropriate for this Court on judicial review to engage in an

assessment of the merits of the judgement made under s 110 by the case manager or

her team manager. Still less is it appropriate to judge the merits of the clinical

assessment Mr Taine made under each of the six assessment headings set out in his

affidavit. But it is in order, and within a reviewing Court’s expertise and function, to

assess whether there was an evidential basis for each of his conclusions. Mr Taine’s

assessment was the clinical basis for Ms McConnochie’s and Mr Clancy’s decision.

Without it, McGrath would have been indistinguishable.

[45] To be clear however, my inquiry is not about evidential sufficiency. That is

for the medical expert in this case in the first instance and ultimately

Ms McConnochie and Mr Clancy. Rather, my focus on judicial review is whether

there was evidence at all reasonably capable of supporting the conclusions reached.

[46] This seems to be the approach required by the Supreme Court in McGrath.4

The responsibility of the court on judicial review is to ensure that the

legislative condition is fulfilled. Since the condition turns on a judgment

(that the claimant is “likely to achieve vocational independence”), its

fulfilment may not be susceptible to exact demonstration. But to succeed the

plaintiff must bring the court to the conclusion that the condition was not

fulfilled. That assessment is one of substance. It is not enough that there is

information available to the Corporation upon which it acted, if that

information does not reasonably support the conclusion that the statutory

condition is fulfilled.

The substance is to be examined but only on the orthodox reasonableness/rationality

basis.

[47] After stepping back and considering the evidence, I have come to the view

that there is evidence that reasonably supports Mr Taine’s conclusion that vocational

independence is an outcome “reasonably in prospect”, such that a full assessment

under s 107 should be undertaken. That means Mr Taine’s conclusion provides in

turn, a reasonable basis for ACC’s s 110 conclusion.

4 At [31].

[48] I do not think the bar is set so high under s 110 that Mr Taine was required

personally to examine Ms Ritchie. A file review was enough in the circumstances of

this case in which there was at least some basis in earlier reports for the assessment

he made. I do not intend to establish a hard and fast rule here. There may well be

some cases where the material on file is so sparse or so contrary to the fresh

assessment, that a personal examination is the only basis upon which the necessary

conclusion under s 110(3)(a) may be reasonably reached. But this is not such a case.

[49] It will be recalled that Dr Yarnall said that Ms Ritchie was capable of

working “initially on a part-time basis”. It was open to Mr Taine to interpret that as

suggesting that part-time work was intended to prepare her for transition to full-time

employment. As he said, this is commonly the case. I do not think that, read in its

clinical context, Dr Yarnall acted on the mere possibility of full-time work rather

than its reasonable likelihood. A part-time “work hardening” period in transition to

full-time work was, he said, commonly necessary.

[50] Mr Taine was also entitled to combine that conclusion with the fact that no

further rehabilitative interventions were proposed, and that Ms Ritchie had in fact

been working and studying. There was debate about this last point – the extent to

which Ms Ritchie was capable of undertaking combined work and study was in

question. Ms Ritchie said Mr Taine had misunderstood the situation. That may well

be so, I do not know, but, in my view, that would be a matter to be considered, and if

necessary corrected in the full s 107 assessment where such issues would be highly

relevant to whether Ms Ritchie is in fact capable of working 30 hours per week. As

a general proposition, I am of the view that the clinical bar should not be set so high

that the full s 107 assessment is usurped by the prior likelihood assessment under

s 110. Parliament is unlikely to have intended that outcome.

[51] It follows that as long as the evidence shows some reasonable and rational

clinical and evidential basis for the necessary conclusion, this Court ought not to

interfere on judicial review. The true substantive debate is engaged at the s 107 stage

and that assessment must properly and fully consider Ms Ritchie’s perspective on the

question of her ability to engage in full-time employment. I do not, in short, think

that it can be said that Ms Ritchie needs to be protected, in terms of the McGrath

decision, from an unnecessary s 107 assessment, on the facts presented in this case.

[52] I find therefore that there is reasonable evidential support for ACC’s

conclusion that Ms Ritchie was likely to achieve vocational independence. The

s 110(3)(a) requirement was correctly applied.

Completion of vocational rehabilitation: s 110(3)(b)

[53] Section 89 directs that vocational rehabilitation must consist of:

(a) an initial occupational assessment to identify the types of work that

may be appropriate for the claimant; and

(b) an initial medical assessment to determine whether the types of work

identified under paragraph (a) are, or are likely to be, medically

sustainable for the claimant.

[54] Section 755 required that ACC prepare an IRP for Ms Ritchie because her

vocational rehabilitation needs were likely to extend beyond 13 weeks of accepting

the claim.

[55] As Ms King, a branch manager, noted in her affidavit, in practice the IRP is

the “definitive document” and the basis for assessing a claimant’s ongoing

rehabilitation entitlements. Section 77(2) provides that an IRP must:

(a) identify the claimant’s rehabilitation needs (s 77(2)(a));

(b) identify any assessments to be done (s 77(2)(b));

(c) identify any services appropriate to those needs (s 77(2)(c)); and

(d) specify the services ACC will provide, pay for or contribute to.

[56] Clause 8 of sch 1 to the Act provides that ACC must implement a plan that

has been agreed or finalised.6 ACC must fund the services that are specified in the

IRP as to be provided, funded or part-funded by the Corporation.

5 See [24] above.

[57] ACC must provide the claimant with the vocational rehabilitation services

outlined in the IRP but that responsibility is expressly “only to the extent that the

Corporation has specified which services it will provide under the plan.”7

[58] In this case, Ms Ritchie says there are still services specified in the IRP and

not yet completed – in particular supporting her to achieving her goal of becoming a

higher education lecturer or tutor by providing home help, an occupational therapy

practicing certificate, and weekly compensation to support her part-time study.

[59] ACC disagrees. It says Ms Ritchie’s career goal is not an outcome ACC must

provide in terms of s 76(4). In addition, home help is a social rehabilitation service

not a vocational rehabilitation service and so its provision is not relevant to the

decision under s 110(3)(b). As for Ms Ritchie’s practicing certificate, ACC indicates

it will fund that contribution this year but submits that its responsibilities in terms of

s 76(4) go no further than that.

[60] Since her injury in 2007, Ms Ritchie has had a number of IRPs. I have

already discussed in summary form the latest three IRPs.8 These have particular

relevance to this issue and it is necessary to review their terms in more detail.

[61] The first of the three IRPs I will consider was agreed on 5 August 2013. It

provided in part:

ACC acknowledges that the vocational goal of “University and Higher

Education Lecturer and/or Tutor” is a realistic option for Donna.

To lecture at a university you need to be studying towards, or have

completed a Master’s degree, or have a Doctorate. You also need to have

experienced in research and teaching. Having published some researches

also an advantage. (Careers NZ website.)

Donna is currently in the process of completing her Masters in Health

Science (likely in the second half of 2013) and will gain teaching experience

next semester. She is also on (sic) the process/working towards publishing

research.

6 Clause 8(2): If agreement is not reached after “a reasonable time, ACC may treat the draft IRP

as “finalised” and binding. 7 Section 76(4).

8 Above [11] to [15].

ACC will consider the funding of any associated reasonable costs to help

Donna achieve the requirements of becoming a University Lecturer.

ACC and Donna will review the progress and sustainability of this goal as

appropriate.

[62] Completion date for these employment-related action points was 11 March

2014 – six months later.

[63] A further IRP was agreed on 16 April 2014, that is shortly after the proposed

completion date of the March IRP. The essence of the 2013 entry referred to above

was repeated with two amendments: Ms Ritchie’s Masters’ degree in Health

Sciences was now to be completed in the second half of 2014 not in 2013, and she

would gain “further” teaching experience in the meantime. The latter amendment

was necessary because Ms Ritchie had by that stage spent a year tutoring part-time.

[64] In contrast to the 2013 IRP, this plan made two specific funding

commitments. The first was in the following terms:

ACC will fund 1.5 hours of home help a week until 31.8.14 which is to

support me [Ms Ritchie] in daily living tasks.9

[65] Completion date for this action point was noted as 31 August 2014.

[66] The second funding commitment was as follows:

ACC have funded my Occupational Therapist annual registration for

2014/15 which is to support me in obtaining vocational rehabilitation.10

[67] Completion date for this second entry was 15 April 2014, a date before the

IRP itself (16 April 2014). This suggests that the funding committed to in the IRP

had already been provided in that respect.

9 Note that the original typed wording provided “… which is to support me in my Masters’

qualification and taking on new/additional tasks at Otago.” In the agreed plan, this wording was

crossed out in pen and “… daily living tasks” substituted, again in handwriting. Ms Ritchie has

then counter-signed this adjustment. 10

Note that the original typed wording provided “… which is to support me in obtaining my

Masters qualification.” The phrase “… obtaining my Masters qualification”, is crossed out in

pen and “… obtaining vocational rehabilitation” is substituted in handwriting. Ms Ritchie has

again counter-signed the amendment.

[68] As I have said, the third and final IRP never progressed past draft. A first

draft was sent by ACC to Ms Ritchie on 12 September 2014. No agreement could be

reached following extensive exchanges in which Ms Ritchie proposed various

amendments to the document. A further draft was sent by Ms Ritchie’s new case

manager, Ms McConnochie, on 9 October. It seems however that ACC was

experiencing IT difficulties and the email was not received by Ms Ritchie until

19 October. In the draft it was proposed that ACC would continue to fund home help

until 31 August 2015.

[69] Ms McConnochie advised in her affidavit to this Court that in fact a one year

home care contract had already been agreed with a provider. That contract was not

due to expire until 11 October 2015, but review of this funding commitment was set

for the end of August to ensure there would be a review of the plan within six

months of its execution. This was, I am advised, standard ACC practice.

[70] It was noted in the meantime that Ms Ritchie had submitted her Masters’

thesis for assessment and waited only on receipt of her grade before she could

proceed to begin writing for publication. The plan also noted that Ms Ritchie was

tutoring part-time as in previous IRPs.

[71] As I have said,11

Ms Ritchie replied that the IRP lacked a reference to ACC’s

support for her goal of becoming a University lecturer. Because, she considered, this

goal had yet to be achieved, it needed to be repeated in the latest draft of the plan.

Ms McConnochie agreed to look at the issue12

and proposed to send a new draft to

Ms Ritchie in due course.

[72] On further consideration of the question however, Ms McConnochie changed

her mind. On 14 November, she advised Ms Ritchie that, subject to further

discussions she might have with her team leader, technical claims manager and

branch medical advisor, she considered that Ms Ritchie’s rehabilitation was now

complete. As we know, those officials came, in due course, to agree with

Ms McConnochie’s assessment.

11

At [15]. 12

See [16] above.

[73] The issue then is whether Ms Ritchie had completed “any vocational

rehabilitation that the Corporation was liable to provide” under her IRP in terms of

s 110(3)(b). That phrase in s 110 is clearly a reference to the specified services under

s 77(2)(d) which ACC is liable to fund under cl 8(4) of sch 1, although only to the

extent so specified in the plan in terms of s 76(4).

[74] For the purposes of that assessment, the relevant IRP is that agreed on

16 April 2014. The reference to the claimant’s IRP in s 110(3)(b) can only be to an

agreed or finalised IRP. That must be because ACC’s liability to fund specified

services under cl 8(4) of sch 1 is predicated on its obligation as set out in cl 8(3) to

implement an agreed or finalised IRP. Here, the later October 2014 draft was never

agreed, and ACC never advised Ms Ritchie that, notwithstanding her objections, the

plan was to be deemed finalised in accordance with cl 8(2) of sch 1.

[75] The cluster of provisions that circumscribes ACC’s resourcing liability to

claimants is carefully worded. Only services that ACC has specifically accepted it

will fund, attract resourcing liability and then only to the extent specifically agreed

or deemed finalised. In addition, the gateway in s 110(3)(b) for s 107 assessments,

relates only to specified vocational rehabilitation services. Other rehabilitation

services need not have been completed.

[76] There is no doubt that the requirements of s 110(3)(b) are satisfied in this

case. The fact ACC acknowledges that a University lectureship or tutorship was a

realistic option for Ms Ritchie creates no vocational rehabilitation obligation. No

service in that respect is specified. The notation is an observation, not a promise of

any kind.

[77] ACC does note though, that it will consider the funding of reasonable costs

associated with that goal. Two services are specified in terms, I presume, of that

consideration: a home help service is to be provided until the end of August 2014

and occupational therapy registration for the 2014/2015 year will be paid. Both

specified services have been completed to the extent specified in terms of s 76(4).

There was some debate about whether the home help support was vocational or

social rehabilitation, but that seems, on these facts, to be beside the point. Either

way, the obligation has been discharged because the commitment was only until

31 August 2014.

[78] ACC has in fact let a contract that will last until October 2015, but that too

seems beside the point. ACC can of course agree contractually to provide help that

is not provided in the plan, but the only relevant area of inquiry for the purpose of

assessing whether the s 110(3)(b) threshold is met, is what is committed to in the

IRP.

[79] I find therefore that the claimant has indeed completed all vocational

rehabilitation for which ACC is liable under the IRP and the terms of s 110(3)(b)

have been appropriately applied.

Disposition

[80] In light therefore of my answers to the two questions posed by s 110(3), the

application for judicial review must be dismissed accordingly.

[81] Costs may be dealt with by brief memoranda if necessary.

___________________________

Williams J

Solicitors: A C Beck, Solicitor, Greytown Young Hunter Lawyers, Christchurch