Carvalho and Comcare (Compensation) - [2019] AATA 1130

Carvalho and Comcare (Compensation) [2019] AATA 1130 (5 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4751
Re:Lorraine Carvalho
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:5 June 2019
Place:Canberra

The decision under review is affirmed insofar as it relates to Ms Carvalho’s August 2018 request for reconsideration of Comcare’s 17 October 2007 determination denying liability to pay compensation for a gym program and for household help.
Nonetheless, Comcare has before it the request for reconsideration of this determination Ms Carvalho made on 3 March 2008 that has not yet been acted upon. The matter is remitted to Comcare to undertake this reconsideration, which is presently outstanding.
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Mr S. Webb, Member
COMPENSATION – accepted injury – determination denying present liability for a gym program and for household support made in 2007 – dispute about whether a request for reconsideration was made – legislative requirements for a request for reconsideration – persistent efforts to challenge decision – alleged missing documents - written request desirable but not mandatory – unresolved oral request for reconsideration – subsequent written request more than 10 years later – unresolved reconsideration request to be acted upon – time not granted in respect of subsequent written request - decision affirmed in part
Safety, Rehabilitation and Compensation Act 1975, s 16, 29, 60, 62, 64
REASONS FOR DECISION
Mr S. Webb, Member
5 June 2019

Many years ago, Lorraine Carvalho successfully claimed compensation for work-related injuries affecting her upper limbs. She was paid compensation. Disputes arose between Ms Carvalho and Comcare over related matters. In 2000, disputed claims came before the Tribunal. These were resolved by agreement between the parties, and a consent decision was issued – among other things, the Tribunal decided that Ms Carvalho’s injury was persisting at that time. Subsequently, Comcare approved and paid for Ms Carvalho to undertake a gym program. When this came to an end, Ms Carvalho sought an extension. In this context, Comcare re-assessed her claim and determined that it had no present liability to pay compensation for a gym program or household support services.
Ms Carvalho had 30 days in which to request reconsideration of this determination. She sought an extension of time in which to do so. Comcare acceded to this request. Subsequently, Ms Carvalho contacted Comcare about the reconsideration on a number of occasions spanning several years. These are matters in dispute. In 2018, Ms Carvalho lodged a written request for reconsideration of the 2007 determination, stating that she had already requested reconsideration on numerous occasions. Comcare refused to make a reconsideration decision as her request was out of time. Unhappy with this result, Ms Carvalho applied to the Tribunal for review.
Presently, it is this issue alone that must be determined.
FACTUAL BACKGROUND
In 1984, Ms Carvalho was employed by the Australian Bureau of Statistics. She successfully claimed compensation for a right shoulder injury. It is not necessary to set out the circumstances of the injury for present purposes.
In 1985, Ms Carvalho…

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 Carvalho and Comcare (Compensation)

Details

AGLC: Carvalho and Comcare (Compensation) [2019] AATA 1130
Case: [2019] AATA 1130
Decision Date: 5 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by Ms Carvalho against a decision by Comcare. Ms Carvalho had a history of work-related injuries, including a right shoulder injury, aggravation of that injury, and bilateral carpal tunnel syndrome, for which she had received compensation and undergone surgery. In 2000, a consent decision established that she continued to suffer from neuropathic cervico-brachial pain syndrome, to which her Commonwealth employment materially contributed, entitling her to ongoing compensation. Subsequently, Ms Carvalho sought approval for gym programs, which were approved at various times. However, in 2007, medical opinions suggested her work injuries were no longer active and that a gym program would be for general health and wellbeing rather than a necessary consequence of injury. Comcare subsequently made a determination on 17 October 2007, denying liability for a gym program and household help.

The primary legal issues before the court were: firstly, the date on which Ms Carvalho effectively requested a reconsideration of Comcare's 17 October 2007 determination for the purposes of section 62 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth); and secondly, if that request was made outside the statutory time limit, whether it was appropriate to exercise the discretion to extend time for such a request, particularly in relation to a request made in August 2018. Ms Carvalho contended that she was unable to make a timely request due to illness and had made multiple attempts to seek reconsideration over several years, which Comcare had not formally addressed until her July 2018 online request. Comcare argued that Ms Carvalho's communications prior to August 2018 did not constitute a properly formulated reconsideration request under section 62, and that her failure to produce supporting documents warranted an adverse inference.

The court considered section 62 of the Act, which outlines the process for reconsideration of determinations, including the requirement for a request to set out reasons and be made within 30 days or a further period allowed by the determining authority. The court noted that a request made on 3 March 2008, which was outside the 30-day period, had been accepted as being within an extended time due to Ms Carvalho's illness, and there was no indication that a different conclusion should be reached regarding the exercise of discretion for that period. However, the court found that the decision under review, which related to Ms Carvalho's August 2018 request, was affirmed.

The court remitted the matter to Comcare to undertake the reconsideration of the determination made on 17 October 2007, which had been requested by Ms Carvalho on 3 March 2008 and had not yet been acted upon.

Orders

Orders of the court

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Background

Background to the litigation

Presently, it is this issue alone that must be determined.FACTUAL BACKGROUND In 1984, Ms Carvalho was employed by the Australian Bureau of Statistics. She successfully claimed compensation for a right shoulder injury. It is not necessary to set out the circumstances of the injury for present purposes. In 1985, Ms Carvalho was employed by the Australian Federal Police (AFP). She successfully made a further claim for compensation in respect of aggravation of her right shoulder injury. On 20 March 1986, Ms Carvalho obtained surgical treatment – plating and graft of the right clavicle. Thereafter, symptoms of pain and pins and needles persisted. In 1987, Ms Carvalho successfully claimed compensation for a work-related injury in the form of bilateral carpal tunnel syndrome. In 1988, she underwent left carpal tunnel release surgery. Right carpal tunnel release surgery was undertaken in 1995. In 1992, Ms Carvalho claimed compensation for permanent impairment as a result of her injuries. Disputation ensued between the parties. On 17 March 2000, the Tribunal issued a consent decision in which it said –2. The Tribunal finds that whilst the effects of the episode of bilateral carpal tunnel syndrome suffered by the Applicant in July 1987 have resolved, the Applicant continues to suffer from neuropathic cervico-brachial pain syndrome (“the compensable condition”) being a compensable injury to which the Applicant’s Commonwealth employment materially contributed to and therefore the Applicant is entitled to ongoing compensation under the Safety, Rehabilitation and Compensation Act 1988… Subsequently, Ms Carvalho undertook gym, Pilates and personal training programs. On 27 July 2005, she sought approval of a further gym program.[1] This was approved.[1] T131, folio 315. On 6 November 2006, Ms Carvalho again sought approval of a further gym program. This was approved to 31 August 2007.[2][2] T150, folio 512. On 21 January 2007, at AFP’s request, Ms Carvalho was examined by Dr Pascall, an occupational physician. Dr Pascall reported –“…Mrs Carvalho’s level of symptoms and her level of activity in the past year make it reasonably evident at this time that there is no ongoing injury and whatever original injury had been present is now resolved.… … She does not really require anything further that should be provided by her employer or a compensation system as she should have learnt all the appropriate exercises and strategies in the past.I could recommend some postural based exercise to help her reposition her shoulders and neck and upper body, but she has already had these with Mrs Lauffenberger. A further 4 or 5 sessions may reinforce this.…”[3][3] T133, folios 332-333. On 27 June 2007, Dr Stevenson, a consultant physician, reported to Comcare and said –“… There are some symptoms suggestive of a recurrence of carpal tunnel syndrome but they are fairly modest; she has not had nerve conduction studies.There are some non-specific restrictions of movement of the right shoulder. The cause is not clear.…… I would agree with Dr Pascall that work injuries are not now active.…… A gymnasium program may have a role in rehabilitation of substantial injury, and it is also useful for general health. Injury seems notional and was 20 years ago. A gymnasium program may be of benefit for health and wellbeing but that seem [sic] to be a choice for Mrs Carvalho.…” [4][4] T138, folios 350, 352 and 353.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note that the 3 March 2008 request was also outside the 30-day period allowed under s 62(3)(b). At that time, there was no controversy about allowing additional time in the circumstances – Ms Carvalho had been unwell and this explanation was accepted at the time. The present materials do not suggest any different conclusion should be reached when considering if it is appropriate to exercise the discretion conferred by s 62(3)(b) to allow the additional time to 3 March 2008.DECISION The decision under review is affirmed insofar as it relates to Ms Carvalho’s August 2018 request for reconsideration of Comcare’s 17 October 2007 determination denying liability to pay compensation for a gym program and for household help. Nonetheless, Comcare has before it the request Ms Carvalho made on 3 March 2008 for reconsideration of this determination which has not yet been acted upon. The matter is remitted to Comcare to undertake this reconsideration, which is presently outstanding. I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.……………………………………………………AssociateDated: 5 June 2019Date of Hearing: 20 May 2019Applicant: In personCounsel for the Respondent: Mr Jason MoffettSolicitor for the Respondent: Mr Ronald Moss, Comcare Legal

Ratio Decidendi

Legal Principle Established

There are two issues for determination on review –(a)for the purposes of s 62 of the Act, the date on which Ms Carvalho requested reconsideration of the 17 October 2007 determination; and(b)if the request was made outside the time specified in s 62(2), and in respect of the request she made in August 2018, whether it is appropriate to exercise discretion to extend time for the request to be made.REQUEST FOR RECONSIDERATION Ms Carvalho argues that she was unable to make a request for reconsideration of the 17 October 2007 determination with 30 days because she was unwell. She says she did so as soon as she was able following recovery from an illness that necessitated hospitalisation, and she was granted an extension of time to do so. She says the time delay was short, but Comcare did not proceed to make a reconsideration decision. Ms Carvalho postulates several reasons why this may have occurred, including documents being lost, staff changes, bias against her and a deliberate conspiracy. In Ms Carvalho’s submission, she attempted to make a formal request for reconsideration of the impugned determination on a least four occasions, each without success. She asserts that she raised the issue with Comcare on at least 14 occasions, in writing, by email and orally, repeatedly, over months and years after October 2007; but did Comcare did not accede to her requests. She says it was not until she used the online Reconsideration Request form on Comcare’s website in July 2018 that Comcare provided a formal refusal of her request. Comcare maintains that Ms Carvalho did not make a request for reconsideration of the 17 October 2007 determination until 17 August 2018 (albeit that the written request is dated 9 July 2018). In Comcare’s submission, communications between Ms Carvalho and Comcare officers prior to this occurrence do not amount to a properly formulated reconsideration request under s 62 of the Act. Comcare argues that it is incumbent on Ms Carvalho to produce documents to support her assertion that she made a written request for reconsideration and a strong adverse inference should be drawn from her failure to do so, and a finding made that no such documents exist. Furthermore, Comcare asserts that Ms Carvalho’s explanations why she does not have copies of the alleged requests should be treated with some scepticism as these are not supported by probative materials and they are not made out on the balance of probabilities. Comcare argues that a request for reconsideration may be made in writing or orally, but it must include reasons for the request and Ms Carvalho’s communications with Comcare after 17 October 2007 do not reach this threshold. The issue is to be decided under s 62 of the Act –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 Commonwealth authority. (2A) If a determining authority holds a licence under Part VIII that is subject to conditions requiring the determining authority to arrange for the reconsideration by another person of any determination made by the determining authority, nothing in subsection (1) or (2) is to be taken to derogate from that requirement. (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. (6) The determining authority or person must decide a request made by a claimant to reconsider a determination within the period prescribed by the regulations.