William Wyatt v Accident Compensation Corporation (ACC)
Wellington District Court 2006
On 19 November 2002, Mr Wyatt suffered a back injury during his work as a welder. Mr Wyatt applied for and received weekly compensation. In November 2004, ACC commenced the vocational independence process. The occupational assessor identified twelve jobs options for Mr Wyatt. The medical assessor stated that Mr Wyatt had vocational independence in three job options. The job options were Employment Programme Tutor, University and Higher Education Lecturer and Wholesale and or Retail Buyer.
Section 107(1) of the Accident Compensation Act 2001 gives ACC the ability to determine a claimant’s vocational independence where that claimant is in receipt of weekly compensation. The purpose of this assessment under s. 107(3) 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” to either maintain or obtain employment or alternatively regain or acquire vocational independence.
ACC believed it had sufficiently trained and rehabilitated Mr Wyatt to assist him back into employment. ACC believes it had done this by providing Mr Wyatt with an extensive activity based programme aimed at strengthening the applicant’s work fitness; training in computer operation; and assistance to find employment. They believed this assistance was “significant, comprehensive and directly applicable to his needs.”
Mr Wyatt did not believe he was capable of the job options recommended in his vocational independence assessment. Mr Wyatt had been provided training in a twelve hour computing course. He had also in his position as a welder sometimes shown a less experienced welder an easier way to weld a joint. However, he had attended only two years of high school and had no formal training, experience or skills relevant to conducting classes, delivering lectures and instructing students. Nor did he have any experience in designing training courses which is a requirement to become an adult tutor. Further to this he had never been employed as a retail or wholesale buyer.
Decision: Judge Cadenhead, believed the issues in this case were whether Mr Wyatt had received adequate rehabilitation, whether he was suitable for the prescribed job options and, whether he was physically able to sustain the position for 35 hours a week.
• Job suitability
Judge Cadenhead stated that, “it is important when nominating suitable alternatives that a vocational assessor analyses with some particularity in a realistic manner the specific requirements against the known background of work experience, education of the appellant against the marketability to a prospective employer.”
The judge believed it was unrealistic to think Mr Wyatt could work as a lecturer or tutor given his limited education and background. The judge also believed that Mr Wyatt would not be able to work as a retail or wholesale buyer as he had no experience in this area. In regards to this Judge Cadenhead stated “realistically, in my view, no employer having regard to the background and experience of the appellant would entertain a job application from [Mr Wyatt].”
The Judge stated that for ACC to discharge their obligations under the Accident Compensation Act, they needed to provide Mr Wyatt with suitable rehabilitation. In particular Judge Cadenhead, believed ACC should have provided Mr Wyatt with specific training in respect to the nominated occupations, rather than the generalised training he received. Judge Cadenhead believed that the point of the rehabilitation should have been to “show that the nominated options were realistically within the grasp of [Mr Wyatt].”
• Ability to work 35 hours
Judge Cadenhead, noted that the medical assessor should have provided reasons in his assessment that the appellant could work the required 35 hours in any of the occupations. This is because the judge believed that, “where pain is a factor pertaining to capacity to work then that issue has to be dealt with as it is an important factor concerning the physical capacities of a claimant.”
Conclusion: A vocational assessment must be realistic. It must also look at a claimant’s individual skills which they have acquired through education, training and experience. Rehabilitation of a claimant should involve suitable training to ensure the claimant is prepared for the job options nominated. The medical assessment should also address the claimant’s ability to work a position for the required 35 hours.
Cases Referred to:
Ramsay (Christchurch Registry, AP 412/14/02) the High Court held that assessments of physicians qualified pursuant to the legislation will be preferred unless clear and cogent evidence to the contrary by a duly qualified physician can identify a flaw in that assessment.