Ayre and Comcare

[2003] AATA 1135

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1135

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/383

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HELEN AYRE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date12 November 2003

PlaceCanberra

Decision The time for lodging an application for review in this matter is extended to 30 September 2003.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - application for review by Administrative Appeals Tribunal - application not lodged within 60 days of notification of reviewable decision - whether time for lodgement to be extended - whether applicant has satisfactory explanation for delay - whether applicant agitated matter with respondent outside Administrative Appeals Tribunal processes - whether respondent prejudiced by grant of extension of time - whether applicant's case has merit - relevance of service provided to applicant by solicitor

Safety, Rehabilitation and Compensation Act 1988 s 65(4)

Australian Postal Corporation v Oudyn [2003] FCA 318

Comcare v A’Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

Lees v Comcare (1999) 56 ALD 84

Riverside Nursing Care Pty Ltd v Secretary. Department of Health and Aged Care [2003] FCA 1065

REASONS FOR DECISION

12 November 2003 Michael Sassella, Senior Member           

RESULT

1.      Mrs Ayre is granted an extension of time for lodging her appeal relating to her elbow problem.

BACKGROUND

2.      Mrs Helen Ayre (“the applicant”) argues that she has a work-caused condition of bilateral epicondylitis.  She has also claimed in the past for cervical and lumbar spinal conditions said to be employment-related.  She has had some success in these earlier claims, notably in relation to the lumbar spine.  Her employment was with the Canberra Hospital, although she is not working at present.  Most recently she had applications before the Administrative Appeals Tribunal (“the tribunal”) in respect of claims for compensation for permanent impairment of the cervical and lumbar spine.  These applications were settled at a conciliation conference on 24 April 2003 and a consent decision was published by the tribunal on 6 May 2003.

3.      Mrs Ayre’s claim for epicondylitis was rejected by Comcare on 24 October 2001 (ex D, paragraph 12)[1]..  She requested that Comcare reconsider that rejection.  On 12 June 2002 Comcare issued its decision after conducting a reconsideration (ex A).  Comcare did not change the earlier decision.  Comcare advised Mrs Ayre that she could challenge that reviewable decision by appealing to the tribunal within 60 days of the date of receipt of the reviewable decision.

[1] See the Schedule to these reasons for a list of exhibits.

4.      Mrs Ayre lodged her appeal on 30 September 2003 (ex A), some 13 months after the expiry of the 60-day period allowed by s 65(4) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[2].

[2] considering whether to grant an extension of time the Tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:

(a)The applicant should provide a reasonable explanation for the delay. 

(b)The applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision.

(c)The respondent should not be unduly prejudiced if the time is extended.

(d)The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.  Merkel J in Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 described the test as whether the applicant has a reasonably arguable case of error of law on the part of the decision-maker (paragraph 20).

6.      There are some additional matters to note.

·In Comcare v A’Hearn (1993) 45 FCR 441 the Federal Court pointed out that the lack of a satisfactory explanation for the delay need not be fatal to an application for an extension of time, although such an explanation should usually be given.

·In the Cohen case (supra) an additional criterion was identified, however, in the current tribunal’s view it has relevance in only some situations.  This criterion is “considerations of fairness as between an applicant and other persons otherwise in a like position”. 

7.      The wider prejudice to the general public, as it may be balanced against the interests of the individual applicant receives attention in other cases.

8.      The prime issues are therefore:

(a)Has the applicant provided a satisfactory explanation for delay?

(b)Has the applicant agitated the matter with the respondent in forums other than the tribunal?

(c)Would the respondent be prejudiced by the grant of an extension of time?

(d)Does the applicant’s case have merit?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

Has the applicant provided a satisfactory explanation for delay?

9.      The tribunal finds that Mrs Ayre provided a satisfactory explanation for delay.  Her sworn evidence and that of her husband was that they instructed the solicitor acting for Mrs Ayre in her permanent impairment applications to make the necessary applications in order to bring the epicondylitis before the tribunal.  For whatever reason such an application was not made.  Mr and Mrs Ayre said they were aware of the need to do this but understood that it had been done.  The first time they became aware that the necessary steps had not been taken was at the conciliation conference on 24 April 2003.

10.     After the matters before the tribunal at the conciliation conference were disposed of Mr and Mrs Ayre could not see their solicitor to inquire about the elbow matter for six weeks as she went overseas.  When they did see her she advised them to run the outstanding matter themselves.

11.     At the same time a senior officer in Comcare, at the Ayres’ request, was conducting a full review of Mrs Ayre’s various claims, their status and next actions after a request by Mrs Ayre dated 18 March 2003 (ex E).  Comcare provided a thorough and lengthy response on these matters dated 13 August 2003 (ex F).  That advice again canvassed, as it should, the option of applying to the tribunal in relation to the epicondylitis.

12.     The tribunal was impressed by the attitudes of all participants in the hearing in this matter.  Mr and Mrs Ayre gave evidence that was completely credible.  They were even prepared to suggest that they should have been put on notice that their solicitor had not followed their instructions when no new AAT application number was forthcoming.  Ms Ferry, for Comcare, handled a difficult task, cross-examining Mrs Ayre and, by extension, Mr Ayre, with commendable courtesy and sensitivity.  Ms Sutton, the case officer from Comcare was, as usual, helpful to the Ayres and the tribunal and extremely co-operative.  It was understandable that Comcare queried the grant of an extension of time here as Mrs Ayre had been assisted in the earlier proceedings by an apparently competent solicitor and the need for an application for review in relation to the epicondylitis had been raised in preliminary conferences.

13.     I am aware that the compensation process, and especially the compensation process once it reaches the tribunal, is not easily understood by lay people affected by it.  There are difficulties at times regarding whether jurisdiction exists in the tribunal.  Sorting these out can be a trial for lawyers.  See, for example, the complexities demonstrated in Federal Court decisions such as Lees v Comcare (1999) 56 ALD 84 and Australian Postal Corporation v Oudyn [2003] FCA 318. Not a great deal can be expected from a lay person in these matters, especially where he or she is relying on a solicitor to ensure that proper steps are taken. On balance in this matter I am prepared to find that Mrs Ayre’s solicitor let her down in fully protecting her interests. I am also prepared to find that Mr and Mrs Ayre had no way of knowing this to be the case until 24 April 2003. I further find that Mrs Ayre, from March 2003, had taken steps to try and protect her own interests by dealing directly with Comcare. This was a fortunate coincidence rather than action motivated by lack of confidence in her solicitor.

14.     The tribunal is aware that in Comcare v A’Hearn (above) the Federal Court said that it is not the case that the “sins” of a solicitor must be visited on his or her clients.  The tribunal sees no reason to visit the sins of Mrs Ayre’s solicitor on Mrs Ayre.

15.     For all of these reasons the tribunal decides that there is a satisfactory explanation for delay.

Has the applicant agitated the matter with the responded in forums other than the tribunal?

16.     The tribunal finds that Mrs Ayre has agitated the matter of the epicondylitis claim since receipt of the reviewable decision.  She instructed her solicitor to take the steps necessary to bring the matter before the tribunal.  When the matter was raised with Mrs Ayre’s solicitor in preliminary conferences it was not suggested that Mrs Ayre had abandoned the matter, even if the solicitor desisted from lodging an application for review.  Finally, and more recently, Mrs Ayre took the matter up with Comcare in March 2003.

Would the respondent be prejudiced by the grant of an extension of time?

17.     The tribunal finds that the respondent, Comcare, would not be prejudiced in any relevant sense by the grant of an extension of time.  Ms Ferry in her submissions (ex D) conceded this on the basis that there is available contemporaneous evidence because Mrs Ayre has been seeing doctors over the period of delay about the full range of her conditions.  This was an appropriate concession and the tribunal thanks Ms Ferry and Comcare for its fairness in making the concession.

Does the applicant’s case have merit?

18.     The tribunal has available no primary evidence regarding the strength of Mrs Ayre’s epicondylitis claim.  However, Ms Ferry in her submissions (ex D) referred to the medical evidence.  That from treating doctor, Dr Foo, asserts that Mrs Ayre has lateral epicondylitis that is work-related.  Dr D Dowda, an occupational physician, however, found no neurological abnormality in Mrs Ayre’s upper limbs which would explain her symptoms.  Dr Dowda is well known to the tribunal and is respected and so Mrs Ayre’s case may not be self-evidently strong.  However, the tribunal finds that there is a reasonably arguable case on the little before it.  The case would benefit from assessments by additional experts, in particular a rheumatologist. 

The other factors

19.     The tribunal does not consider that granting the extension here would conflict with the general policy against extensions of time.  The extension is not so long, and the available evidence not so stale, that the integrity of any further proceedings would be compromised.

20.     The tribunal does not consider that others would be adversely affected in any significant way by the tribunal proceeding with Mrs Ayre’s case.  Those who appealed to the tribunal in a timely fashion are unlikely to be significantly affected in securing timely resolution of their applications because Mrs Ayre is permitted to proceed with her matter.

SCHEDULE  – LIST OF EXHIBITS

21.     The tribunal had access to the following documents in this matter:

Exhibit A – Mrs Ayre’s application to the tribunal for review of Comcare’s decision dated 12 June 2002.

Exhibit B – Mrs Ayre’s application for an extension of time.

Exhibit C – Letter dated 1 October 2003 from the tribunal to Comcare seeking its views on the grant of an extension of time.

Exhibit D – Submissions on behalf of Comcare dated 29 October 2003.

Exhibit E – Letter dated 18 March 2003 from Mrs Ayre to Comcare.

Exhibit F – Reviewable decision and letter dated 13 August 2003 from Comcare to Mrs Ayre.

DECISION

22.     The time for lodging an application for review in this matter is extended to 30 September 2003.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .......................................................................................
  Associate

Date of hearing  11 November 2003
Date of decision  12 November 2003
Assistant to the applicant         Mr Glenn Ayre
Counsel for the respondent      Ms Jane Ferry
Solicitor for the respondent      Phillips Fox