Ahearn and Comcare (Compensation)

[2018] AATA 2975

Ahearn and Comcare (Compensation) [2018] AATA 2975 (20 August 2018)

Division:GENERAL DIVISION

File Number:           2017/5685

Re:Gerardine Ahearn

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member A Ward

Date:20 August 2018

Place:Adelaide

The Tribunal affirms the decision under review

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Member A Ward

CATCHWORDS

COMPENSATION – Claim for installation of a reverse-cycle split system air conditioner – Whether claim out of time – Whether direct link between injury and items requested – Whether prejudice to respondent – Whether delay in making claim and giving notice occasioned by mistake, absence from Australia or other reasonable cause – Decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 – s 39, s 62(3)

CASES

Maric v Comcare (1993) 40 FCR 244

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

REASONS FOR DECISION

Member A Ward

20 August 2018

BACKGROUND

1. Ms Ahearn (“the Applicant”), made a claim for the installation of a reverse-cycle split system air conditioner in her bedroom. A determination was made on 6 December 2013 that there was no evidence that a reversible split system air conditioner in her bedroom was required for the purpose of her rehabilitation program nor that it was reasonably required having regard to the nature of the Applicant’s impairment. It was determined that s 39 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) required a direct link between the items requested pursuant to s 39(1)(e) of the SRC Act and the injury. The Applicant gave evidence that she initially accepted that decision although did not agree with it. She did not request a reconsideration of the decision within 30 days, as required by s 62(3)(b) of the SRC Act.

2. By letter dated 7 August 2017, she said, “I would like to have the decision … dated 6/12/13 reviewed to supply of temperature control in my bedroom.” [1] 

   [1]  Exhibit 1, T37, p 127.

3. The decision was made on 17 August 2017 not to allow a request for an extension of time to lodge a request for reconsideration of the determination of 6 December 2013.

4. The Respondent, Comcare, disputes the request for redetermination on the basis that the Applicant should not be granted an extension of time to request reconsideration of the determination in accordance with s 62(3) of the SRC Act.

5. It falls to the Tribunal to determine whether an extension should be granted so that the decision can be reviewed.

   HISTORY OF CONDITION

6. The Applicant has a series of injuries that have been accepted by Comcare and has suffered poor health for a considerable period of time.  She advised the Tribunal that she stopped work in 1993 and had various attempts to return to work, both in a voluntary capacity and in return-to-work programmes.  She advised that she had essentially not worked since 2005 as a consequence of varying physical and emotional conditions.  The precise nature of the conditions are not directly pertinent to this issue but in addition to her claim of injuries to her lower back and fibromyalgia, there is medical evidence to support ongoing chronic adjustment disorder with depressed and anxious mood and severe post-traumatic stress disorder.  In a report by Dr Giardini dated 31 July 2017 , the Applicant is described as having chronic pain, panic attacks, agoraphobia, intermittently depressed mood, nightmares and other symptoms of her condition.[2]

   [2]  Exhibit 1, T36, pp125-126.

7. In the course of the hearing, she also described a diagnosis of rheumatoid arthritis.  It appears this diagnosis was made in 2013. 

8. The Applicant said in her evidence that there has been no significant change in her condition from the time of the decision being made in 2013 up to the time of the hearing.  She has had periods of increased pain.  The medical evidence would suggest a similarity of symptoms over the past years, noting that Dr Giardini had been treating her psychiatric symptoms since March 2004. 

   THE AIR CONDITIONER

9. At a certain point, the Applicant formed the view that she required an air conditioner in the bedroom of her house.  She moved to her current premises about 8 years ago in 2010.  In her previous house, the air conditioner in the living area blew through a door into her bedroom.  That apparently is not the case in her current premises. 

10. A report by Konekt dated 1 March 2010 assessed the Applicant’s activities of daily living, and sleeping was noted to be a self-reported problem.[3] The Applicant advised the assessor that she rarely experienced a solid night’s sleep.  When she would usually fall asleep, she would wake up and have a cigarette before trying to fall asleep again.  While she was taking medication to help her sleep, it would make her drowsy during the daytime.  This was at her property in O’Halloran Hill. 

    [3] Exhibit 1, T19, p59.

11. Dr Giardini sent a report to the Respondent on 1 August 2013 raising issues with regards to her bed being too hard due to her back injury.  This hardness caused her to wake up frequently with increased back pain.  His report then noted:

    “An additional problem is the lack of heating and cooling in her bedroom.  She has a split air conditioning system in the lounge, but not in her bedroom, which becomes quite cold during the winter months forcing her to try to sleep on the sofa in the lounge room on some nights which is not good for her back condition.”[4]

    [4]  Exhibit, T23, p70.

12. Mrs Ahearn agreed that this was the first reference to the air conditioning problem in the medical reports.

13. It is noted that the requirement for the air conditioning system was her suggestion to the doctor rather than something brought into her treatment regime as a consequence of medical necessity identified by a suitably qualified rehabilitation specialist.  There is no description in the letter of Dr Giardini as to why the cold in winter or the heat in summer would especially affect her or why, as a result of her condition, she was not able to properly cope with that situation.

14. However, on the strength of that report, the claim was pursued for the bedding and also, the air conditioning.  As noted, one was accepted but the other was not. 

15. To assess the claim, the Respondent sought a report from Dr Hill.  The letter of instructions specifically drew Dr Hill’s attention to the matters raised in the letter from Dr Giardini, namely the bed being too hard and the bedroom being cold in winter, so she would choose to sleep on the sofa. 

16. Dr Hill prepared a report on 3 October 2013[5] wherein he specifically addressed the issue of temperature control as follows:

    Temperature control.  Many people find they become quite stiff and sore with cool temperatures and it would seem reasonable that some form of temperature control within reasonable limit is available.  Again in chronic pain conditions the response to temperature variation can be extremely exaggerated.

    [5]  Exhibit 1, T26, p82.

    EXTENSION OF TIME ISSUE

17. As noted, the Applicant did not agree with the decision on 6 December 2013 but advised me she did not consider she could do anything about it.  She advised that she was not a combative person or a person to take on disputes.  She advised she had many illnesses affecting her during the relevant period. 

18. She said she did not read the report of Dr Hill when she first received it because reading such reports would upset her.  This was in 2013.  She said that she subsequently read the report prior to August 2017 and saw Dr Hill’s comments.  The fact that Dr Hill, in her mind, supported her request for an air conditioner was one of the prompts that led her to seek a review of the decision made in December 2013, by her letter of August 2017. 

19. The issue before me is whether, in accordance with s 62(3) of the SRC Act, the Applicant should be granted an extension of time to request a reconsideration of the determination dated 6 December 2013, which is her specific request.[6]  As that request was made on 7 August 2017, it is made over three and a half years following the decision.  The Act requires such an application to be made within 30 days of the decision. 

    [6]  Exhibit 1, T37, p127.

20. This matter has been subject to consideration by superior Courts and I note the Respondent referred me to the case of Maric v Comcare[7] which applied the earlier decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment.[8]

    [7] (1993) 40 FCR 244.

    [8] (1984) 3 FCR 344.

21. The cases summarised applicable principles which the Tribunal should have regard to in determining whether an extension of time should be granted or not.

22. Six points of consideration were set out in the Hunter Valley judgment.[9]  The time limits are not to be ignored, although they are not hard and fast and it is open to the Tribunal to exercise discretion in favour of the Applicant to extend time.  Normally, this would require an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.

    [9] (1984) 3 FCR 344 at [18]-[23].

23. When considering whether an acceptable explanation for the delay has been furnished, I am to consider the actions of the Applicant and make a distinction between a case where she has continued to make the decision-maker aware she would like to contest the decision and the case where the decision-maker was allowed to believe that the matter had been finally concluded.

24. The need for finality in disputes, and taking account of fading memories over time are also relevant matters.  I consider that finality of disputes is important here.  I do not consider that the issue of fading memory is so important in this particular case.

25. Prejudice to the Respondent occasioned by the delay is also a valid consideration.  However, an absence of prejudice is not enough to justify the granting of an extension.  It will be a matter determined on its facts.

26. I am also directed to take into account the merits of the substantive application. 

27. The sixth consideration is that of fairness between the Applicant in this case and other persons otherwise in a similar position.

28. The Applicant advised me in her evidence, and also in her Statement of Issues, Facts and Contentions (“Statement”), that she did not lodge an appeal at the time of the original decision of 6 December 2013 because she had difficulty standing up for herself in the face of authority figures. 

29. In view of the absence of a statement from the Applicant on the file, and with her agreement, I tendered her Statement as an exhibit which she adopted.  That is because it involves quite a narrative of factual matters as distinct from merely being submissions.

30. In that Statement, the Applicant stated that “due to my psychological conditions, I find it difficult to dispute what authority says”.  However, in her evidence before me, she said that although she did not apply for reconsideration formally, that the matter “has been continually brought up throughout the period after his decision”.  She said in her Statement, “I have made repeated attempts … to have the original decision questioned”.

31. She says in her Statement that she did speak to a number of other staff members about this matter and was told by one female staff member that she was “surprised” that it had not been approved.

32. Thus, there is a gross inconsistency in her evidence on this issue.  She has either complained of the decision on many occasions, or she did not complain of the decision because she has difficulty standing up for herself in the face of authority figures.  I find then that the lack of complaint within 30 days of the original decision did not arise as a consequence of some inability on her part to question a decision that had been made.

33. Another point the Applicant raised, in giving evidence, was that she did not read the report of Dr Hill dated 3 October 2013.[10]  She claimed the report of Dr Hill supported her contention that medically an air conditioner would be appropriate.  The Applicant advised that when she saw that in the report, she was astonished to read that he thought the request was reasonable.

    [10] Exhibit 1, T 26, pp 80-83.

34. The Applicant’s evidence was that she did not read that report initially because she found it very depressing and avoided it.  Her evidence was that she came upon the report when she was cleaning out some paperwork “recently” and to her astonishment Dr Hill thought the air conditioner was a reasonable request. By “recently” I believe she meant just prior to the Application for review on 7 August 2017.

35. I interpreted her reading the report of Dr Hill as being a trigger for her to take action, given he supported her overall contentions in her view.

36. The difficulty is that the Respondent’s determination on 6 December 2013 referred specifically to that section of Dr Hill’s report dated 3 October 2013.[11]

    [11]    Exhibit 1, T29, p87.

37. The determination of 6 December 2013 sets out in significant detail the reasons for the decision made.  This includes the decision-maker not being satisfied by the evidence of the Psychiatrist, Dr Giardini, or the evidence of Dr Hill, as to the installation of a reversible split system air conditioner as being reasonably required either as a therapeutic treatment or as a consequence of the nature of her impairment.  The direct quote from Dr Hill’s report upon which the Applicant relies was included in the reasons for the decision.

38. The determination refers to an enclosed information sheet which outlined the Applicant’s rights and obligations if she disagreed with the determination and also provided a telephone number to be called to deal with any questions.

39. The document entitled, “What do I do if I disagree with the Determination or Reviewable Decision made by Comcare?” was enclosed with the letter on the face of it and the Applicant accepted this.  She said she had seen it a number of times.  An example of this was tendered as Exhibit 4 and refers specifically to steps to be taken by a person in the Applicant’s position to request a reconsideration, including that a request for reconsideration should be made within 30 days of receiving the initial determination.  It even noted there could be an application for an extension of time if for some reason the person was unable to make the request within the 30 days.

    Second Request 21 November 2015

40. Almost two years following the original rejection, the Applicant took out another application to have an air conditioner installed on or about 21 November 2015.  This application enclosed a further report from her Psychiatrist, Dr Giardini, dated 2 November 2015 and a report from her General Practitioner, Dr Goodwin, dated 11 November 2015.

41. This request was denied by determination dated 26 November 2015. 

42. It will be noted that both the evidence and the response were essentially the same in this 2015 determination as in the 2013 determination.

43. It is not clear why, at that time, the Applicant did not seek a review of the 2013 decision, as she has now.  It is not clear why the 2015 determination was dealt with afresh by the Respondent when in fact it was simply a restating of the earlier 2013 request which had been dealt with.  Nevertheless, that exists there.  It demonstrates on the Applicant’s part a desire to persist with the request for air conditioning.  Thus, it is not as if the Respondent would have completely forgotten about the nature of the application that was made. Going back to some of the issues in the Maric case, this is not a matter of fading memories.

44. However, once again, when the 2015 determination was made the Applicant did not seek a redetermination within the 30 day period.  Nor has she up to the present time.  It is not clear why she went back to seeking a review of the 2013 decision, so far back in time, and not of the 2015 decision.

45. This might have been an error of judgment on her part.  However, I do not dismiss the matter on this technicality.  If the Applicant had brought this application to extend the time on the 2015 decision, my view would be the same.  Notwithstanding the delay of a review of the 2015 decision would not have been as extensive as a review of the 2013 decision, it is still considerably in excess of the 30 day limit.

    DETERMINATION

46. In my view, there is insufficient evidence to grant an extension of time to reconsider the decision made on 6 December 2013.  Nothing has changed in the Applicant’s condition (to any material effect) that would give rise to a change in circumstances where it would be appropriate to review the earlier decision because the original factual basis had altered.  The need for finality in disputes is important.  Considerable time and effort has been spent reconsidering this matter over the years.

47. I find the absence of an earlier application following both determinations may have sent a signal to the Respondent that it was not such a pressing matter and the Respondent is entitled to rely on that in my view. I note the Applicant stated the she made repeated attempts to have the decision questioned, however in the absence of any corroborating evidence and her inconsistent evidence that she “found it difficult to dispute what authority says”.  I do not accept this claim.

48. In looking at the decision of whether or not to grant an extension of time, as set out in the Maric and Hunter Valley cases, a requirement is that consideration be given to the merits of the substantial application.  The Applicant confirmed that the issue was first raised just before August 2013.  The report dated 1 August 2013 from Dr Giardini, Psychiatrist,[12] dealt with problems with the Applicant’s bed and that she had bought new beds but found that her current bed was too hard for her, causing her to wake up frequently with increased back pain.

    [12]    Exhibit 1, T23, p70.

49. Therefore, this issue was not raised by her treating doctors, but by her.  There is no description in the evidence as to why she could not deal with the winter months with additional blankets or the like.  Nor why, if it came to that, she could not move her bed into the lounge room.  She was sleeping there in any event.  It is a matter where the bulk of the medical evidence, including that of Dr Hill, refers to the desirability of temperature control in general terms rather than a specific need as a matter of medical necessity for her treatment. 

50. On the issue of prejudice, this was discussed in the Maric case. The Court noted at page 250 that:

    …Comcare had every reason to believe … that the issue had long been put to rest, and the learned senior member who constituted the Tribunal was entitled to draw on his experience and conclude that a public authority, such as Comcare, would suffer prejudice.

51. Prejudice is referred to in the Respondent’s submissions.  The air conditioner issue was re-agitated, and there was no request for reconsideration of the second decision which was made against the Applicant’s interest.  Disputes need to be resolved as quickly as possible so that resources are not wasted and in this regard the Respondent referred me to the matter of Brisbane South Regional Health Authority v Taylor.[13]

    [13](1996) 186 CLR 541 at 552-553.

52. Accordingly, and in accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975, the reviewable decision dated 17 August 2017 is affirmed.

    DECISION

53. The Tribunal affirms the decision under review.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Member A Ward

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Administrative Assistant - Legal

Dated: 20 August 2018

Date of hearing:	26 July 2018
Applicant:	In person
Advocate for the Respondent:	Andrew Schofield