Agreement by ACC to stop regular rehabilitation assessments in light of information it already holds

Whether the Accident Compensation Corporation (ACC) was reasonable to carry out regular assessments of a claimant for vocational rehabilitation despite already holding medical and occupational assessments confirming the claimant’s limitations—Ombudsman concluded this was not reasonable in the circumstances

The claimant complained to the Ombudsman about ACC’s requirement that he continue to participate in further assessments. The complainant was a forestry worker who had been involved in an accident. For many years after the accident he received weekly compensation from ACC which he supplemented by working part-time as a store person for a local warehouse. ACC decided to stop the complainants weekly compensation after an occupational assessor found that the claimant had a ‘capacity to work’. The claimant sought a review of the finding. The reviewer quashed the finding on the basis that the assessor had ‘clearly erred by determining the claimant was suitable for work as a retail person’ and that the medical assessments were ‘fundamentally flawed’. The reviewer recommended that the claimant’s compensation payments be reinstated and backdated to the date they were originally terminated.

The claimant was later asked to attend training with a view to becoming a stock clerk. He was advised that he was required to attend the training to ensure that his weekly payments continued. However, the claimant’s leg injury and difficulty with reading and writing meant that he was unable to physically do the work. The claimant complained to ACC that its assessors were unreasonably referring him to be assessed for work that he was completely unsuited for. However, ACC remained of the view that he must attend the training course.

The Ombudsman wrote to ACC requesting comments on the complaint. ACC explained that in terms of achieving vocational independence, it was required to assist claimants with the support and training needed to help them obtain appropriate work. ACC said that it was currently conducting a work trial on the claimant by requiring him to attend various vocational rehabilitation assessments and courses. It said this was in accordance with its current policy of moving claimants to the maximum degree of independence possible. ACC advised that, once the work trial was completed, it would be in a better position to assess whether the claimant could achieve vocational independence.

The Ombudsman queried what further information ACC required in this case given that the state of the claimant’s health and literacy was well documented in medical and occupational assessments, all of which were known to ACC. In response, ACC referred the Ombudsman to the vocational rehabilitation provisions contained in sections 85-88 of the IPRC Act. It also provided copies of the claimant’s work trial reports and initial occupational and medical assessments. After considering this information together with the provisions of the IPRC Act, the Ombudsman noted that sections 85-88 of the Act were not absolute in their requirements. For example, section 86 of the IPRC sets out the matters that ACC should consider when deciding whether to provide vocational rehabilitation. However, many of the matters that need to be considered are qualified by the words ‘reasonably practicable’ or ‘appropriate’. The Ombudsman raised this with ACC who responded stating that it believed that the work trials the claimant had participated in were ‘reasonably practicable’ and ‘appropriate in the circumstances’ to help him in his quest to return to employment. ACC considered it probable that the claimant could work more hours in his current role and that further vocational rehabilitation could be offered to help him reach vocational independence.

However, the Ombudsman also received a letter from the claimant’s current employer which stated that, while he was a ‘conscientious, honest and reliable employee … he could not sustain his current role for more than his current 25 hours per week’. The employer also stated that the claimant was fully aware of his limitations and medical certificates supported his claims.  The Ombudsman forwarded the employer’s comments to ACC. After considering the employer’s letter, ACC agreed to review its original decision.

ACC reviewed its decision and agreed to cease the vocational independence rehabilitation process, re-assessing the claimant as a long term claim. ACC agreed that it would no longer ask the claimant to work more hours, it would not suspend or cancel his weekly compensation payments if he failed to do so and no further steps would be taken in respect of his vocational independence. The Ombudsman discontinued his investigation on this basis.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.