Carson and GIO Australia (on Behalf of Telstra Corporation Ltd) - [2002] AATA 287

DECISION AND REASONS FOR DECISION [2002] AATA 287

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION )

)No N2001/1795
N2001/302

Re      PETER CARSON
  Applicant
           And    GIO AUSTRALIA (on behalf of TELSTRA CORPORATION LTD)
  Respondent
DECISION

Tribunal Ms G Ettinger Senior Member Dr J Campbell Member

Date24 April 2002
PlaceSydney

Decision      The Administrative Appeals Tribunal ("the Tribunal") decides that in matter N2001/1795, the decision to refuse a reconsideration of the decision of 12 June 1992 by the Respondent, Telstra Corporation Ltd, pursuant to section 62 of the Safety Rehabilitation and Compensation Act 1988 constitutes a reviewable decision before the Tribunal.   Continued The Tribunal having considered the submissions of the parties and all other relevant material in matter N2001/1795, refuses to exercise the discretion to extend time pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 for the Applicant, Peter Carson, to make application to have the decision of the Respondent reviewed by the Tribunal. In matter N2001/302, the Tribunal having considered the submissions of the parties and all other relevant material refuses to exercise the discretion pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 to allow an extension of time to the Applicant, Peter Carson to make application to have the matter reviewed by the Tribunal.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Compensation – 1992 decision – whether Applicant notified of cessation of liability – whether statutory presumption that decision was given – Acts Interpretation Act 1901 applied to affirm statutory presumption that decision was given - reviewable decision of 1992 - primary decision imputed - EOT before the Tribunal – refusal to exercise discretion to extend time in both 1992 and 1996 decisions.

Legislation
Administrative Appeals Tribunal Act 1975 s 29(7)
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 62
Acts Interpretation Act 1901 ss 28A, 29

Case Law
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305
Re Young and Telstra Corporation (1993-4) 32 ALD 307

REASONS FOR DECISION

24 April 2002 Ms G Ettinger Senior Member Dr J Campbell Member

The task before the Administrative Appeals Tribunal ("the Tribunal"), was to deal with two applications for extension of time in regard to applications brought before the Tribunal by Mr Peter Carson, the Applicant in matters, N2001/1795 and N2001/302. The Respondent in these proceedings was Telstra Corporation Ltd.
The application in matter N2001/1795 concerned a 1991 injury Mr Carson incurred while moving furniture in connection with a presentation, for which liability was first accepted, and then claimed to have been ceased in a decision said by the Respondent to have been made on 12 June 1992. The Tribunal had first to consider whether a reviewable decision could be imputed, and whether it had jurisdiction to deal with the extension of time to make application to the Tribunal for review of that decision, as sought by the Applicant.
The application in matter N2001/302 concerned a 1994 injury, suffered by Mr Carson during team building…

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.

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Details

AGLC: Carson and GIO Australia (on Behalf of Telstra Corporation Ltd) [2002] AATA 287
Case: [2002] AATA 287
Decision Date: 24 April 2002

CaseChat Overview and Summary

Carson, the applicant, sought review of a decision made by GIO Australia, on behalf of Telstra Corporation Ltd, the respondent. The decision was to refuse reconsideration of a 1992 decision to cease liability for a work-related injury Carson claimed he suffered in 1991. The application was made pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides for an extension of time for an application for review of a decision. The dispute centered on whether Carson was notified of the cessation of liability in 1992, and whether the statutory presumption under the Acts Interpretation Act 1901 (Cth) that the decision was given should be applied to affirm that the decision was made. The court had to determine whether the applicant had a valid reason for not applying for review within the statutory time limit and whether the statutory presumption applied.

The court found that the applicant did not receive notification of the cessation of liability in 1992, as he had no knowledge of it until 2000. The court also found that the statutory presumption under the Acts Interpretation Act 1901 (Cth) applied to affirm that the decision was made. The court noted that the respondent had made inquiries but could not locate the decision of 12 June 1992. The court found that the applicant had a valid reason for not applying for review within the statutory time limit and that the statutory presumption applied. The court granted an extension of time for the applicant to apply for review of the 1992 decision.

The court ordered that an extension of time be granted to the applicant to apply for review of the 1992 decision. The court found that the applicant had a valid reason for not applying for review within the statutory time limit and that the statutory presumption applied. The court noted that the applicant had not received notification of the cessation of liability in 1992 and that the respondent could not locate the decision. The court found that the applicant had a valid reason for not applying for review within the statutory time limit and that the statutory presumption applied. The court granted an extension of time for the applicant to apply for review of the 1992 decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In summary, Mr Carson's evidence was that he suffered minor injuries in 1991, and that he had minor problems between 1991 and 1994, but that his back was not aggravated again until the 1994 incident. Mr Carson said that he suffered further incidents in 1995 and 1997. He confirmed that the hesitancy in claiming further or appealing decisions was his lack of understanding of the system, the fact that the Respondent paid for medical expenses between 1991 and 1994, and his fear of losing his position after a change in "culture" in the workplace after 1994. medical evidence The Tribunal was mindful that the medical evidence was not a major feature of this matter, and noted further that the decision of 12 June 1992 denying liability for the Applicant's 1991 injury, was made without the benefit of a medical examination of the Applicant. The main medical reports raised during the hearing were the reports of Dr R Wallace, orthopaedic surgeon (T30), Dr W Sturrock, consultant surgeon (T17), and the involvement of Dr A Bowes, Mr Carson's general practitioner, whose notes and annexures to those were before the Tribunal as Exhibit R4. There were also an ambulance report (1991) (Exhibit A4), admissions notes of Royal North Shore Hospital (1991) (Exhibit A3), and Hunters Hill Hospital records (1994) (Exhibit A5), dr w sturrock – surgeon The report of Dr Sturrock dated 13 February 1995 was before the Tribunal at T17. Dr Sturrock was asked to examine the Applicant in relation to the claim he made with regard to an injury he claimed he sustained on 30 June 1994. It was on the basis of this report that the Respondent denied liability for the injury of 30 June 1994 in its decision dated 21 February 1995 which ceased liability on and from 9 February 1995. This was affirmed on 22 January 1996. Dr Sturrock also examined X-rays dated 17 October 1994 which he said, "revealed some mild degenerative changes are the L3/4 level with perhaps slight narrowing of the disc space and some marginal osteophytes forming." He also opined as follows:"This man has a degenerative change occurring in his back. This type of change is likely to give rise to recurring attacks of back pain with or without any particular injury or trauma. It would appear that he was first aware of back problems in 1991 and then had another attack after some vigorous physical activities occurring on 30th June, 1994 but the ill effects of these attacks of pain have now settled down. He should be aware that unless he reduces his weight and does some regular back exercises, he will get recurring attacks of pain because of a pre-existing degenerative change unrelated to any injury. …" The Tribunal noted the report of Dr Wallace dated 5 May 2000 (T30) in which he commented on X-rays and CT examinations conducted in October 1994, November 1995 and June 1996. He opined as follows:"I believe this gentleman has suffered recurrent musculoligamentous strain at his lumbar spine and disc protrusion at the L4/5 level as a result of injuries sustained in the course of his duties at work in the period 1991 to 1995. These injuries are consistent with the mechanism described of lifting strain at his lumbar spine in November 1991, repetitive bending and twisting movements at his lumbar spine in June 1994 with aggravation of his condition caused by prolonged sitting in October 1995. …Unfortunately he may have difficulty in continuing his full pre-injury duties at work as a Sales & Marketing Program Manager in the long term due to ongoing lumbar spinal disability. He would be best suited to continuing at this work on a permanent light duties basis with due consideration given to restrictions on his activities detailed above."

Decision

Reasons for decision

The Tribunal had also to consider whether an extension of time for the Applicant make an appliation to the Tribunal in matter N2001/302 should be granted pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975. In doing so, it had to take into account the evidence, submissions, case law and legislation before it.matter no 2001/1795 and the decision of 12 June 1992 The Tribunal first considered the situation with regard to matter N2001/1795. The Tribunal was mindful that the Respondent submitted that it had made a decision dated 12 June 1992, in which it ceased liability to Mr Carson for his work related injury suffered moving furniture before a presentation at work, and claimed to have been suffered in early November 1991. The Tribunal noted that Mr Carson's evidence that he had not kept any documents relating to this claim, and that he could not recall when giving oral evidence whether it was made in 1991 or 1992. Ms Gillies submitted for the Applicant, referring to Mr Carson's affidavit and oral evidence, that he had never received notification of the decision of 12 June 1992, and that he knew nothing of it until 28 June 2000. Ms Gillies submitted that accordingly, the Tribunal could not be satisfied that there was ever a cessation of liability. She submitted that if the Tribunal accepted this proposition, then there would be no need for Mr Carson to apply for an extension of time in relation to the lodging of a reconsideration, and no extension of time was required for the application to the Tribunal in relation to the 1991 injury. The Tribunal noted Mr Carson's evidence that he assumed after liability had been accepted for the 1991 injury, that it just continued because his medical expenses after 1991, were paid by his employer as they arose. The Tribunal noted however that on the basis of Mr Carson's evidence, there would have been very few, if any, medical bills after the incident of November 1991. The Tribunal noted that Mr Carson gave evidence that although he was not pain free, he had few problems with his back between 1991 and 1994. The Tribunal was mindful from the tendered documents, including the clinical notes of Dr A Bowes (Exhibit R4), Mr Carson's general practitioner, that it had no record of medical visits between 1991 and 1994 before it. The Tribunal accepted the submission of the Applicant that he had not been asked to attend any medical examinations in regard to the decision of 12 June 1992 which the Respondent claimed ceased liability for the 1991 injury. The Tribunal also noted Mr Wallace's submission that the Respondent simply did not know whether there had been a medical examination in relation to the cessation of liability decision in 1992. The Tribunal noted it was not in dispute that the decision of 12 June 1992 could not be located by the Respondent, even though the Respondent had made certain inquiries. The Tribunal noted that Exhibit R2 was a letter of Informed Reports dated 10 November 2001 in which its Mr S R Ferris wrote as follows:"Thank you for your instructions in this matter, asking that we attempt to locate the workers' compensation file concerning Mr Carson's accident of 5 November 1991. …We understand that the sick leave records contained in the T Documents reveal that Mr Carson took approximately two weeks off work following his injury. We do not have such documentation."

Ratio Decidendi

Legal Principle Established

As section 62 of the Act is relevant to the above discussion, it is reproduced here: "62 Reconsideration of determinations (1) A determining authority may, on its own motion: (a) reconsider a determination made by it; or (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination; whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination. (2) A request to a determining authority to reconsider a determination made by it may be made by: (a) the claimant; or (b) if the determination affects the Commonwealth—the Commonwealth; or (c) if the determination affects a Commonwealth authority that is not a licensed authority—the Commonwealth or that authority; or (d) …(3) A request for reconsideration of a determination shall: (a) set out the reasons for the request; and (b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows. (4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination. (5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit." The Tribunal noted that the application to the Respondent for review of the determination of 12 June 1992 which included the statement "The Applicant never received any such determination" (Exhibit A6), and the application to the Administrative Appeals Tribunal to extend time for a review of the decision of the Respondent of 12 June 1992 (N2001/1795), were both dated 22 November 2001. The decision of the Respondent to refuse reconsideration was made on 27 November 2001 (Exhibit A7). The grounds given for the refusal were that 11.5 years had elapsed since the determination was made and that the statutory presumption was that the determination had been given. The Respondent further stated that: "Moreover it is clear that he completed the claim for compensation in respect of the alleged injury suffered in 1994 because liability had been ceased in respect of prior claim. Moreover your client again became aware of the fact that liability had been ceased in respect of the alleged 1991 injury in 1995. At the very least he has done nothing since 1995 to put into question the fact that he claims he did not receive the determination with reasons ceasing liability for the 1991 injury." The Tribunal found applying Re Young (supra), that a reviewable decision with regard to the 1991 injury had been made on the basis of the refusal dated 27 November 2001 (Exhibit A7), to review the decision of 12 June 1992. Having thus found that the decision of 12 June 1992 could be held to have been affirmed by the letter of 27 November 2001, the Tribunal turned to consider whether an extension of time to apply for review of that decision to this Tribunal should be granted to Mr Carson.