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

1. 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”).

2. 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.

3. 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

4. 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.

5. The principles to be applied in determining an application for an extension of time are well-known.  In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, “although not in any exhaustive manner”:

   (a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

   (b)a distinction is to be made between an applicant who has “rested on his rights”, allowing the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;

   (d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;

   (e)the merits of the substantial application are properly to be taken into account;

   (f)“Considerations of fairness as between the applicant and other persons” in a similar position are relevant.

6. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; 45 FCR 441. All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.

   DELAY

7. The applicant advised that the reason for the delay in applying for review of the decision dated 1 May 2017 was because at the time that the decision was made he had recently had major surgery and was undergoing chemotherapy. At hearing, the applicant advised that the treatment was aggressive and debilitating and he was not able to consider his options for reviewing the decision until he had sufficiently recovered. He said that his recovery was long and that it took the best part of a year. The respondent does not appear to challenge this evidence.

8. I accept that the applicant had a sufficient reason to explain the reason for his delay in seeking review of the decision. This weighs in favour of granting an extension of time.

   PREJUDICE

9. On 29 November 2016, by consent agreement between the parties in Tribunal matter number 2016/3123 (matter number 2016/3123), the Tribunal decided, inter alia, that the respondent was liable to pay compensation to the applicant for the injury under section 16 of the Act, subject to the provision of accounts or receipts in support of the claims, for:

   i.…

   ii.up to eight physiotherapy treatment sessions and up to eight massage therapy sessions between 9 May 2016 and 27 February 2017;…

10. The respondent contends that it would suffer significant prejudice if the applicant were able to re-litigate matters that have already been determined in matter number 2016/3123.  Having regard to the circumstances of this matter and the relevant authorities, I do not agree with the respondent’s submission for the following reasons.

11. The Tribunal and the original decision-makers do not have the power to make a decision that extends beyond the date of the decision. As Justice Lockhart held in Plumb v Comcare (1992) 39 FCR 236 (with whose reasons Black CJ and Gummow J agreed) at [240]; “[the determining authority] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act”. In other words, the applicant is not barred from making future claims under section 16 of the Act. As Cooper J held in Australian Postal Corporation v Oudyn [2003] FCA 318 at [33], a determination under a section of the Act:

    “…operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act”.

12. In the recent decision Novosel v Comcare [2017] FCA 722, Justice Perry said at [110]: “the fact that an applicant may be able to bring a further claim does not mean that if a further claim is made, it cannot constitute an abuse of process in the circumstances of the particular case…”. This would be particularly so if the evidence relied upon by the applicant is not sufficient for the matter to be re-litigated.

13. In these proceedings, the applicant relies on the body of evidence already before the respondent and the recent Medical Certificate for Compensation of Dr Michael Size, with date of examination 28 February 2017, which notes that the applicant is unfit for work from 28 February 2017 to 28 February 2018 and requires a number of medical treatments; relevantly “physiotherapy + Physio Supervised Gym Programme up to 3 times/week each” as well as remedial massage “Approx 2^nd weekly” for pain relief.

14. As the agreement reached between the parties in matter number 2016/3123, covered physiotherapy and massage therapy expenses for the period up to 27 February 2017, I am satisfied that this new evidence is sufficient to agitate whether the applicant is entitled to further medical treatment after 27 February 2017. This period of time from 28 February 2017 to 28 February 2018 was (appropriately) not considered or dealt with in the earlier consent orders.

    MERITS OF SUBSTANTIVE MATTER

15. The respondent contends that the applicant’s prospects of success in the substantive matter are poor.

16. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of the application under review.

17. 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

18. 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.

19. The extension of time application is granted.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 5 December 2017

Date(s) of hearing:	16 November 2017
Applicant:	In person
Solicitors for the Respondent:	Mr C Bilboe, Comcare