Babbington and Comcare (Compensation) - [2017] AATA 2421

Babbington and Comcare (Compensation) [2017] AATA 2421 (5 December 2017)
Division:GENERAL DIVISION
File Number(s): 2017/5997
Re:Arthur Babbington
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:5 December 2017
Place:Sydney

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975 (Cth), after hearing both parties in relation to the application for an extension of time, the Tribunal extends the time for the making of an application for review of the decision of the respondent to 12 October 2017.
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Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – explanation for delay – whether prejudice to respondent because of prior agreement between the parties – whether substantive matter has merit – extension of time application granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988(Cth)
CASES
Australian Postal Corporation v Oudyn [2003] FCA 318
Comcare v A’Hearn [1993] FCA 498; 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Novosel v Comcare [2017] FCA 722
Plumb v Comcare (1992) 39 FCR 236
REASONS FOR DECISION
Senior Member A Poljak
5 December 2017

Mr Arthur Babbington, the applicant, has an accepted worker’s compensation claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for “displacement of lumbar 5 and sacral 1 discs of lower back” with a date of injury deemed to be 31 August 1984 (“the injury”).
On 1 May 2017, the respondent affirmed a determination dated 14 March 2017 refusing to approve the applicant’s request for medical treatment under section 16 of the Act, namely, a further supervised gym program and either physiotherapy or remedial massage treatments during the period from 28 February 2017 to 28 February 2018. The applicant applied to the Tribunal for review of this decision on 9 October 2017 (“the substantive proceedings”), approximately 105 days out of time.
These interlocutory proceedings concern an application for an extension of time with respect to the substantive matter, lodged by the applicant on 12 October 2017 pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The respondent opposes the extension of time sought.
PRINCIPLES TO BE APPLIED
Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant pursuant to subsection 29(2)(a) of the AAT Act. In workers compensation matters, this is modified by section 65 of the Act to 60 days. The Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to section 29(7) of the AAT Act.
The principles to be applied in determining an application for an extension of time are well-known. In Hunter Valley Developments Pty Ltd v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Babbington and Comcare (Compensation)

Details

AGLC: Babbington and Comcare (Compensation) [2017] AATA 2421
Case: [2017] AATA 2421
Decision Date: 5 December 2017

CaseChat Overview and Summary

This matter concerned an application for an extension of time brought by the applicant, Mr Babbington, against Comcare. The dispute centred on whether it was reasonable in all the circumstances to grant the extension, considering the explanation for the delay, potential prejudice to the respondent, and the merits of the substantive matter. The decision was made by A Poljak SM in the context of compensation proceedings.

The primary legal issue before the Court was whether to grant the applicant an extension of time to pursue his claim. This required the Court to assess the reasonableness of the delay, the prospects of success in the substantive proceedings, and any prejudice that might be suffered by Comcare. The substantive proceedings themselves involved determining the reasonableness and clinical justification of the applicant's ongoing medical treatment, including 'passive treatment' and concurrent therapies, within an appropriate clinical framework.

In reaching its decision, the Court acknowledged the limited material available regarding the prospects of success in the substantive matter, which would require further medical evidence. However, the Court was not convinced that the applicant had no prospects of success, noting that such evidence could likely be obtained. The Court also referred to a medical certificate indicating the applicant's need for numerous pain relief treatments, suggesting he should be entitled to have aspects of this treatment considered for ongoing compensation under section 16 of the relevant Act. Consequently, the Court was satisfied that it was reasonable in all the circumstances to grant the extension of time. The application for an extension of time was therefore granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is difficult to make a definitive finding on prospects when the material before me is limited. The issue in the substantive proceedings goes to the reasonableness of medical treatment, the benefits of the ongoing ‘passive treatment’, the clinical justification for concurrent therapies and how such treatment fits within the clinical framework. These aspects can only be determined on the provision of further medical evidence, none of which I have before me. It is reasonable to assume that such evidence can be obtained and provided prior to the hearing of the substantive matter. Accordingly, I am not convinced that the applicant has no prospects of success. Additionally, it is apparent from the Medical certificate of Dr Size, issued following an examination on 28 February 2017, that the applicant requires numerous treatments for pain relief as part of his medical management. The applicant should be entitled to have aspects of this treatment properly considered for ongoing compensation under section 16 of the Act.CONCLUSION Taking into account all of the information before me, I am satisfied that it is reasonable in all the circumstances to grant the extension of time. The extension of time application is granted.

Ratio Decidendi

Legal Principle Established

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