Beasley and Comcare - [2002] AATA 67

DECISION AND REASONS FOR DECISION [2002] AATA 67

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/981

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JASON KEITH BEASLEY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date5 February 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Signed)
J Cowdroy
MEMBER
CATCHWORDS
COMPENSATION – extension of time to request for reconsideration of a determination

Safety, Rehabilitation and Compensation Act 1988 ss 25(4), 62(3)
Administrative Appeals Tribunal Act 1975 s 29

Comcare v Mihajlovic (2000) 170 ALR 420
Comcare v A'Hearn (1993) 119 ALR 85

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

5 February 2002 Ms J Cowdroy, Member

The matter was heard by the Tribunal on 7 December 2001. Mr A C Harding of Counsel, instructed by Messrs D'Arcys, Solicitors, appeared for the applicant and Ms E Ford of Counsel, instructed by the Australian Government Solicitor, appeared for the respondent. The matter was determined on the basis of the "T" Documents and the written and oral submissions of Counsel.
Background to the Application for Review
At issue is the decision of the delegate of the respondent dated 19 October 2001 in which the respondent denied the applicant's request to review the determination of 28 March 2000. The factual scenario leading to the applicant's request for review is as follows:
a)On 22 March 2000 an offer was made to the applicant by the respondent in respect of a lump sum compensation payment for a condition of the lower legs on the basis of permanent impairment of 10 per cent.
b)On 24 March 2000 the offer was accepted by the applicant and, on 28 March 2000, the respondent made a determination in accordance with the acceptance of that offer. The applicant subsequently received payment of $22,170.29.
c)On 8 July 2000 the applicant wrote to the respondent seeking compensation for a 20 per cent impairment and by reply dated 31 July 2000, the claim was refused. The decision of 31 July 2000 was a reviewable decision and following review on 9 January 2001 that reviewable decision was affirmed. That decision is the subject of an application for review to the Administrative Appeals Tribunal (Q2001/178).
d)On 9 October 2001 the applicant sought review of the determination dated 28 March 2000 and on 19 October 2001 the respondent refused to review that determination on the basis that there was no evidence that the degree of permanent incapacity was incorrectly assessed and that the request for review was outside the period of 30 days specified in Section 62(3) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

Applicant's Submissions

The applicant's case is succinctly outlined in its written submissions. It was pointed out that the decision to grant a lump sum payment on the basis of 10 per cent permanent impairment was based primarily on reports from Dr J Bartlett dated July 1998 and 22 October 1999 as well as a Vocational Assessment…

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 Beasley and Comcare

Details

AGLC: Beasley and Comcare [2002] AATA 67
Case: [2002] AATA 67
Decision Date: 5 February 2002

CaseChat Overview and Summary

In the case before the Administrative Appeals Tribunal, the applicant sought a review of a decision by the respondent denying a request to review a determination regarding compensation for a permanent impairment. The applicant had previously accepted an offer for a lump sum compensation payment based on a 10% permanent impairment, which was subsequently determined and paid. The applicant later sought compensation for a 20% impairment, which was refused. Subsequently, the applicant sought to review the original determination, but this request was denied by the respondent on the basis of a lack of evidence of an incorrect assessment and the late submission outside the 30-day period stipulated by the Act.

The legal issues before the Tribunal were whether the respondent's denial of the request to review the original determination was lawful and whether the Tribunal had the discretion to extend the time limit for the review request under the relevant legislative provisions. Specifically, the Tribunal needed to determine if the respondent's reliance on the 30-day period was mandatory or if the Tribunal could exercise its discretion under the Administrative Appeals Tribunal Act 1975 to extend that period. The applicant argued that the error in the assessment of the permanent impairment by Dr Bartlett, attributable to the respondent's failure to seek specific information, justified a review and a possible extension of time.

The Tribunal considered the statutory provisions and the authorities cited, including Comcare v Mihajlovic and Comcare v A'Hearn, as well as the case of Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment. The Tribunal found that while the statutory period for requesting a review was indeed 30 days, the Tribunal had the discretion to extend this period if it considered it just and equitable to do so. The Tribunal concluded that the circumstances of the case warranted an extension of time, as the error in the assessment was due to the respondent's failure to obtain accurate information, which the applicant could not reasonably have been expected to prevent or remedy. Consequently, the Tribunal allowed the application for an extension of time and ordered the respondent to review the original determination.

In conclusion, the Tribunal granted the applicant's request for an extension of time to seek a review of the original determination, finding that the respondent's error in assessing the degree of permanent impairment justified such an extension. The Tribunal's decision underscored the importance of accurate information in the assessment process and the Tribunal's discretion to ensure fairness in the application of statutory time limits.

Orders

Orders of the court

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Background

Background to the litigation

The matter was heard by the Tribunal on 7 December 2001. Mr A C Harding of Counsel, instructed by Messrs D'Arcys, Solicitors, appeared for the applicant and Ms E Ford of Counsel, instructed by the Australian Government Solicitor, appeared for the respondent. The matter was determined on the basis of the "T" Documents and the written and oral submissions of Counsel.Background to the Application for Review At issue is the decision of the delegate of the respondent dated 19 October 2001 in which the respondent denied the applicant's request to review the determination of 28 March 2000. The factual scenario leading to the applicant's request for review is as follows:a)On 22 March 2000 an offer was made to the applicant by the respondent in respect of a lump sum compensation payment for a condition of the lower legs on the basis of permanent impairment of 10 per cent.b)On 24 March 2000 the offer was accepted by the applicant and, on 28 March 2000, the respondent made a determination in accordance with the acceptance of that offer. The applicant subsequently received payment of $22,170.29.c)On 8 July 2000 the applicant wrote to the respondent seeking compensation for a 20 per cent impairment and by reply dated 31 July 2000, the claim was refused. The decision of 31 July 2000 was a reviewable decision and following review on 9 January 2001 that reviewable decision was affirmed. That decision is the subject of an application for review to the Administrative Appeals Tribunal (Q2001/178).d)On 9 October 2001 the applicant sought review of the determination dated 28 March 2000 and on 19 October 2001 the respondent refused to review that determination on the basis that there was no evidence that the degree of permanent incapacity was incorrectly assessed and that the request for review was outside the period of 30 days specified in Section 62(3) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The applicant's case is succinctly outlined in its written submissions. It was pointed out that the decision to grant a lump sum payment on the basis of 10 per cent permanent impairment was based primarily on reports from Dr J Bartlett dated July 1998 and 22 October 1999 as well as a Vocational Assessment Report of CRS dated 19 January 2000. It was contended that Dr Bartlett erred in his assessment of the degree of permanent impairment. That error, it was said, was attributable to the respondent not seeking specific information from Dr Bartlett. The applicant contended that it was not appropriate for the respondent to base its determination on Dr Bartlett's report in view of the fact it was based on responses to misleading questions posed by the respondent. It was pointed out that in accepting the offer, the applicant indicated that he was not entirely happy with it. It was contended that this was implicit from the applicant's response "Please be advised I am going to consult further medical advice on increasing my claim for compensation." (T29). In the proceedings Q2001/178, a report from Dr Thomson dated 12 June 2001 will be produced. That opinion, it is contended, is to the effect that the applicant suffers a 10 per cent permanent impairment in respect of his lower left limb and a 10 per cent permanent impairment in respect of his right lower limb. If that is the finding of the Tribunal, then, applying the principles outlined in the decision of Comcare v Mihajlovic (2000) 179 ALR 420, the Tribunal may find that although the applicant suffers a permanent impairment of 19 per cent, he is not entitled to further compensation on the basis that it does not meet Section 25(4) of the Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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