McGrath v Accident Compensation Corporation

• Jurisdiction: New Zealand
• Judge: Elias CJ
• Judgment Date: 07 July 2011
• Neutral Citation: [2011] NZSC 77
• Docket Number: SC 127/2010
• Court: Supreme Court
• Date: 07 July 2011

Between

Karen McGrath

Appellant

and

Accident Compensation Corporation

Respondent

[2011] NZSC 77

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 127/2010

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against decision of respondent requiring appellant to undergo a vocational independence assessment under s110 Accident Compensation Act 2001 (notice to claimant in relation to assessment of vocational independence) — appellant receiving compensation since 2002 and in part-time work — whether appellant likely to achieve vocational independence — whether respondent entitled to rely on out-dated medical information — threshold required for requiring an assessment — level of scrutiny required on judicial review

Counsel:

A C Beck for Appellant

P J Radich and L I van Dam for Respondent

JUDGMENT OF THE COURT

• A The appeal is allowed and the notice given on 9 September 2008 by the Accident Compensation Corporation is quashed.

• B Costs are reserved. Counsel may file memoranda if necessary.

REASONS

(Given by Elias CJ)

1 Under s 107 of the Accident Compensation Act 2001, claimants who are receiving weekly compensation may be required by the Accident Compensation Corporation, “at such reasonable intervals as the Corporation considers appropriate”, 1 to be assessed as to their “vocational independence”. A determination that a claimant has achieved vocational independence results in the loss of weekly compensation three months after notification to the claimant. 2 “Vocational

independence” is achieved under the current legislation when a claimant is determined by assessment to have the capacity to engage for 30 hours or more a week in work for which he or she is suited. 3 At the time of the events in issue on the appeal, vocational independence was defined as attained when the claimant had the capacity to work 35 hours or more a week. 4 The assessment provided for by the legislation consists of an occupational assessment (which identifies the types of work suitable for the claimant) and a medical assessment (which provides an opinion as to whether the claimant has the capacity to undertake any of the types of work identified in the occupational assessment). 5

2 The general power of the Corporation to obtain an assessment of the claimant's vocational independence is restricted by s 110(3) of the Act. As is relevant, s 110 provides:

• 110 Notice to claimant in relation to assessment of vocational independence

  • (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) …

  • (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.

3 The appellant, Karen McGrath, has received weekly compensation from the Corporation since she suffered a severely broken ankle in an accident in 2002. After surgery entailing a bone graft and the insertion of screws in her ankle, Ms McGrath was left with mobility limitations (which have been accepted to date as restricting her capacity for employment to sedentary occupations) and with chronic pain for

which she has received and continues to receive medical treatment. She has limited her hours of employment to 15 hours a week, which she reports to be as much as she can cope with and is an assessment with which agreement is expressed by Dr Muir, her general practitioner, and Dr Acland, a specialist in pain management at Mercy Pain Service to whom she was first referred in 2005 and from whom opinions were further obtained in 2008

4 Ms McGrath first saw Dr Acland with the approval of the Corporation for pain management in 2005. In December 2005 he considered she was “coping with her current work hours” of 15 a week while indicating that “[i]f further recovery occurs a graduated increase in work hours could be considered in the distant future with assistance from an occupational health clinician”. In follow-up reports on 3 June 2008 and 22 July 2008, provided to the Corporation following funded referrals within the individual rehabilitation plan agreed upon for Ms McGrath, Dr Acland was pleased to find that Ms McGrath had been able to undertake clerical work of 15 hours a week. He considered her ongoing “significant pain symptoms” (with “features consistent with Complex Regional Pain Syndrome following the ankle fracture”) had not to that date been sufficiently contained by analgesic treatment to enable Ms McGrath to work longer than the 15 hours a week she was managing. In the letter of 22 July 2008 Dr Acland confirmed his opinion that 15 hours a week appeared to be Ms McGrath's “limit” and expressed the view that “her work capacity will always be pain contingent”. He expressed regret that he had “no more to offer, particularly in regard to pharmacological approaches”.

5 The Corporation gave notice to Ms McGrath on 9 September 2008 that she was required to undertake vocational independence assessment. At that time it did not have any current medical information or opinion contrary to the assessments of Dr Acland and Dr Muir to suggest that Ms McGrath could sustain longer hours than the 15 hours a week she was working.

6 In subsequent correspondence addressed to Ms McGrath's solicitor on 19 August 2008 and 2 September 2008 (not available to the Corporation at the time it gave notice of vocational independence assessment to Ms McGrath on 9 September but in evidence in the High Court), Dr Acland expressed the view that “[s]adly it does not look as though Karen will be able to return to any vocational pursuit” and expressed support for Ms McGrath's efforts to “obviat[e] the need for her to participate in a vocational independence process” on the basis of his view that she could not sustain working for 35 hours a week.

7 Ms McGrath applied by way of judicial review to the High Court seeking to have the Corporation's notice requiring her to participate in vocational independence assessment declared unlawful. She claimed that she had not yet completed vocational rehabilitation under her individual rehabilitation plan (which included referral to the Mercy Pain Service) and that the Corporation “had no reasonable basis on which to assert that the plaintiff is likely to achieve vocational independence” when “[t]he specialist to whom the plaintiff was referred reported that she was unlikely to be able to achieve vocational independence”.

8 The claim for judicial review was unsuccessful in the High Court 6 and on appeal to the Court of Appeal. 7 Ms McGrath now appeals to this Court. The appeal turns on whether the Corporation could reasonably have been of the view required by s 110(3)(a) that Ms McGrath was “likely” to achieve vocational independence when it gave notice on 9 September 2008 requiring her to undergo assessment.

Background

9 The September 2008 requirement of vocational independence assessment was the third initiated by the Corporation in respect of Ms McGrath. Since the Corporation relied in part on information obtained in respect of the earlier attempts to assess Ms McGrath's vocational independence, it is necessary to set out the context in which the information was obtained.

10 Ms McGrath's claim for earnings related compensation was accepted by the Corporation in June 2002. Initial occupational and medical assessments for the purpose of assessing her vocational rehabilitation needs and formulating an

individual rehabilitation plan under Part 4 of the Act were carried out in early 2003. In the initial medical assessment Ms McGrath was medically assessed by Dr Porteous in May 2003 as capable of undertaking a “sedentary job with the ability to put her foot up as required”. The individual rehabilitation plan subsequently prepared included work programmes and a pain management programme. On pain management assessment in November 2003 it was reported that Ms McGrath still had screws in place in her ankle and that “[u]ntil the screws are removed her pain is such that she is unlikely to be ready for more work than a few hours a week”. The Corporation sought advice in November 2003 from Ms McGrath's orthopaedic specialist, Mr Matheson, on the removal of the screws and his opinion as to whether vocational independence assessment was appropriate. But the request to Mr Matheson does not appear to have been followed up and did not result in any further report on Ms McGrath's unresolved pain issues before the Corporation initiated vocational independence assessment in early 2004

11 In February 2004 Ms McGrath was assessed for occupational capacity and 15 job-types were identified by the reporter as being within her skill capacity. In March 2004 Ms McGrath was then medically assessed as vocationally independent by Dr Antoniadis. While acknowledging the pain suffered by Ms McGrath, Dr Antoniadis expressed the view that additional medication could help modify her pain and could be introduced at the same time as she undertook employment. Dr Antoniadis recommended referral for specialist pain treatment if Ms McGrath's general practitioner, Dr Muir, was not happy with changing her medication for pain relief. On the basis that the introduction of different medication “could help in further modifying her periods of pain”, Dr Antoniadis considered Ms McGrath was capable of undertaking five types of work for periods of 35 hours or more per week.

12 As a result of the positive vocational independence assessment, the Corporation advised Ms McGrath on 31 March 2004 that her entitlement to weekly compensation would end. This determination was quashed on review under the provisions of Part 5 of the Act on 18 February 2005. The Reviewer took the...