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.
........................................................................
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 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.
On 17 August 2017, Comcare notified Ms Carvalho that she may not have a present entitlement to compensation under s 16 (in respect of medical treatment expenses and a gym program) and s 29 (in respect of household services) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), and invited her to provide further medical evidence in support of her claims.[5] At Ms Carvalho’s request on 31 August 2017, the time for her to do so was extended to 30 September 2017.[6]
[5] T139.
[6] T150, folio 511.
On 25 September 2007, Dr Leerdham, Ms Carvalho’s treating general practitioner, wrote to Comcare, stating –
“This patient suffers from a work-related right shoulder and neck injury.
She continues to have problems with movement and activity in her right shoulder and arm and has been having 2 hours of ironing help per week. She also attends a gym on a regular basis and requires a trainer.
I would be grateful for your consideration in approving ongoing ironing help for 2 hours/week and payment for the trainer at 4 x 1 hour sessions per week.”[7]
[7] T140.
It appears that Dr Leerdham’s letter was not received by Comcare until 23 October 2017.
On 17 October 2017, Comcare issued a determination denying present liability for a gym program under s 16 of the Act and for household help under s 29 of the Act as of 16 October 2017.[8] Attached to this decision was a document entitled ‘What do I do if I do not agree with a decision made by Comcare?’,[9] including information about processes for requesting reconsideration of the decision.[10]
[8] T141.
[9] In this decision, the use of italicised text is generally used to indicate direct quotation.
[10] Exhibit 1.
What happened next is disputed. Ms Carvalho stated that -
17. I contacted Maya Narayan [a Comcare employee] in November 2007 to advise her that I was in hospital and could Comcare on their own motion under S.62 of the SRC 1988 Act reconsider my claim for gym and household assistance…
18. In December 2007 I contacted Ms Narayan to request Comcare on their own motion under S.62 of the SRC Act reconsiders their determination of October 2007. Ms Narayan suggested that I write to Comcare to request a reconsideration. I explained to her that I was too ill and she told me she would see what she could do considering the circumstances.
19. It was not until early March 2008 when I had recovered from my illness that I sent Ms Narayan a request in writing for an extension of time so Comcare could reconsider their decision of October 2007 ceasing compensation entitlements for the gym and household assistance (ironing).
20. In mid-March 2008 I contacted Comcare to speak to Ms Narayan and see where my request was up to. Ms Narayan was not there and a person (a man) I spoke to said that he would pass the message on however he told me that there did not appear to be a request for reconsideration. After several minutes he confirmed his previous statement that they had not received any request for reconsideration so once again I sent a copy of my request for reconsideration and request for a waiver of time limit due to ill health.
21. On 17 or 18 March 2008 Comcare advised that there was no evidence from my treating medical practitioner for the need of Gym or Household assistance.”[11]
[11] Exhibit 2.
The records in Comcare’s Claim Comments Report (CCR) do not include reference to any communication between Ms Carvalho and Comcare from 30 October 2007 to 3 March 2008.
The alleged requests for reconsideration and extensions of time Ms Carvalho refers to in her statement (and in her oral evidence) do not appear in the documents placed before the Tribunal.
Ms Carvalho explained that she does not have copies of the requests for reconsideration and extensions of time she made during this period. She gave a number of reasons for this.
The first reason is that she did not receive the determination in October 2007 as she was unwell and in hospital – she only obtained a copy of the determination when she recovered and returned home some months later.
The second reason she gave is that many of her paper records, especially older documents, relating to Comcare are contained in a box that is stored in the basement of her home; but she cannot access this basement because the house was found to contain asbestos and the basement has been sealed by order of the ACT Government. Ms Carvalho’s evidence is that if she retained a copy of the requests she says she made in the months after the 17 October 2007 determination, it would be likely to be in that box.
The third reason she gave is that she sent the requests for reconsideration to Comcare via email, but she no longer has electronic copies of those emails. She explained that the computer on which she retained copies of her emails crashed some years ago, in 2012, and all those records, including the reconsideration requests and related communications, were destroyed.
The fourth reason she gave is that she sought access to documents pertaining to her claim in Comcare’s holding under freedom of information laws. This resulted in Comcare providing her with electronic records on a USB storage device; but the documents were incomplete. She maintains that Comcare lost, has destroyed or has not provided her with all relevant documents, including the requests for reconsideration she says she made in the latter part of 2007 and in 2008.
The last reason she gave is that, even if her memory is found to be faulty and she did not make a timely written request for reconsideration (which she conceded in cross-examination, but later sought to retract), she certainly made oral requests for reconsideration that were supported by written requests for extensions of time under s 62 of the Act in the weeks and months after she received the 17 October 2007 determination. She points to references to such conversations in Comcare’s CCR records that have been provided to the Tribunal (T150).
Whatever is to be made of these explanations, however inconsistent, implausible or credible they may be, the CCR records from March 2008 are on point. Arranged for ease of understanding in chronological order, these records contain the following entries –
“3/03/2008       [updated] 19/03/2008            Telephone Conference
Claimant called asking that the determination rejecting home help and gym be reviewed. She has been quite ill and has been unable to follow up request for reconsideration until now. I asked that she send in an email stating her reasons and quoting Comcare’s earlier decisions. She said that she hasabusy [sic] 6 weeks ahead of her but when she finds the time she will put in thereconsideration [sic].
…
Claimant then followed up with anothercall [sic] (12 March 2008) asking that we take a second look at the claim beforeshe [sic] puts in a reconsideration, because she thought it may be a mistake and she didn’t wantto [sic] put Comcare and herself through the whole reconsiderarion [sic] process. I indicated that I would take a second look at the claim and get back to her.”
“18/03/2008  Attd Care and Household Help
Called claimant and left message on the answering machine explaining that Comcare has looked at the decision to deny household help and will not be making a reconsideration of own motion. I advised that the only way forward isto [sic] send a letter requesting a formal reconsideration.”
“19/03/2008  Uncategorised general info
I contacted the employee to discuss the issues of her request for reconsideration – I advised her that the review area had not received her previous request. I advised her to submit a new request directly to me and I would deal with it appropriately, she was happy to do this and said she would get something to me today or tomorrow.”[12]
[12] T150, folio 510.
The identity of the Comcare employees who made these entries is not apparent on the present materials, and none were called to give evidence.
Nonetheless, as can be seen, the advice given to Ms Carvalho by the person who made the entry on 19 March 2008 was that her ‘previous request’ had not been received and she should ‘submit a new request directly to me’. From this it may be inferred that the person was aware of Ms Carvalho’s assertion of having already made a request for reconsideration and that she wanted Comcare to follow through and reconsider the 17 October 2007 determination.
There is no record of Ms Carvalho sending a new request for reconsideration to the person who made the 19 March 2008 entry. Ms Carvalho asserts that she sent this person a copy of the original request for reconsideration she made, probably by email. No such email or other communication of the alleged request has come to light.
Ms Carvalho’s evidence about what then transpired includes the following statements –
“24. In July 2008 I contacted Melbourne office [sic] to discuss my reconsideration and was advised to speak to a Mr Andrew Klein. I was transferred and spoke to whom I believed was Mr Klein and I was advised once again to resubmit my request for reconsideration and send it directly to him and he would see to it personally.
25. On or before 05-06 August 2008 I contacted my claims manager in Melbourne who now holds all my records and asked when Comcare were likely to finish considering my request for reconsideration of their determination in October 2007. Mr StMart I now understood was handling my case and informed me that he knew nothing about my request and to contact [email protected].
26. On the afternoon of 06 August 2008 I telephoned Comcare to speak to Mr Klein and was very promptly informed that nobody by that name worked for Comcare. I told the person that I had received an email after speaking to him however this person insisted that I had made a mistake and that he did not work for Comcare…
27. On 12 August 2008 I received a telephone call from Comcare to advise that an Andrew Klein did work for Comcare in their AAT team but had since left the organisation. I spoke to Mr Klein on three separate occasions and was not aware nor did he mention that he worked in the AAT team. I simply telephoned Comcare was [sic] asked a series of questions and then was put through to Mr Klein. Had I realised he was with the AAT team I would have asked to speak to the reconsiderations team area and I definitely would not have sent my request to his area.
28. On 28 August 2008 I sent a copy of my formal request for reconsideration for gym and household assistance to [email protected].”[13]
[13] Exhibit 2.
There is a CCR record of the 12 August 2008 conversation to which Ms Carvalho refers, as follows –
“12/08/2008 Doctor, treatment info
I called the claimant today – I advised that Andrew Klein was with our AAT team but he has since left Comcare. I also advised that Comcare will need receive [sic] a request for reconsideration. She said that we have her Dr’s report already and I clarified that it was Dr Leerdhams [sic] report of 25 September 2007. She said that she would send in a request for recon to [email protected] by next Friday 22 August 2008.”[14]
[14] T150, folio 510.
On 12 August 2008, Kevin StMart, a Comcare employee, sent a letter to Ms Carvalho in the following terms –
“I refer to your claim for cervicobrachial syndrome (diffuse).
I understand that you are seeking your compensation entitlements for Gym and Household Help to be reinstated.
As per our conversation today, please send an email to [email protected] requesting that Comcare reconsider the decision of 17 October 2007.
As advised Comcare already has Dr Leerdhams [sic] report of 25 September 2007. If you have any other supporting evidence please also include them with your reconsideration request.
…”[15]
[15] T142.
These records clearly reveal that Mr StMark was aware that Ms Carvalho was seeking reconsideration of the 17 October 2007 determination. Mr StMark was not called to give evidence. Nevertheless, had Mr StMark read the CCR records of previous communications between Ms Carvalho and Comcare officers, and it is open to infer that he did, he would have been aware of her assertions of previously having sought reconsideration of this determination.
Records of subsequent interactions between Ms Carvalho and Comcare indicate that Ms Carvalho raised issues relating to her alleged requests for reconsideration of Comcare’s 17 October 2007 determination on 20 October 2008, 21 October 2008, 16 November 2011, 21 December 2011 and 16 May 2013.[16] On each occasion, Comcare did not proceed to reconsider the 17 October 2007 determination.
[16] T150, folios 507, 508 and 509.
On 9 July 2018, using Comcare’s online service, Ms Carvalho completed a Reconsideration Request form in respect of the 17 October 2007 determination.[17]
[17] T146.
In all likelihood, the following CCR record relates to and preceded lodgement of Ms Carvalho’s online Request –
“10/08/2018 Employee to Comcare
1:00pm – ph call from Lorraine regarding a request for reconsideration on adetermination [sic] that denied gym and household services in 2007. I explained that she was well out of time, however Lorraine insisted that she had previously requested a reconsideration and it had not been undertaken. I explained on a number of occasions that she will need to put the request in writing, with reasons, and the reasons why she is outside the time frame. I advised her that we will look at her whole claim file and see what has happened, but as it is mostly paper I could not give her more information…”[18]
[18] T150, folio 504.
On 22 August 2018, Comcare refused Ms Carvalho’s request for reconsideration of the determination made on 17 October 2007 as the request was made 3,958 days after the determination, well outside the 30-day limit, and Ms Carvalho had not “provided sufficient reasons” for this delay.[19].
[19] T1.1.
ISSUES

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.
As can be seen, a request for reconsideration has three essential elements. It must identify the ‘determination’ to which it relates. It must set out reasons for the request. And it must be given to the ‘determining authority’ within the specified period or such further period as is allowed.
While, in the usual course, it may be expected that a request for reconsideration under s 62(2) would be made in writing, and there are good reasons for this relating to clarity, precision and certainty, there is no express requirement that this must occur. On this point, Comcare’s construction of the legislation can be accepted – a request for reconsideration may be made orally or in writing.
Nevertheless, however a request for reconsideration is made, it must comply with the conjunctive requirements of s 62(3)(a) and (b).
There are two important features of those requirements.
Firstly, the requirement to set out reasons for a reconsideration request is broad, and this requirement should not be construed in an overly technical manner. The legislation does not specify that reasons of a particular kind or which possess certain characteristics must be supplied, and it does not require a detailed exposition of reasons with supporting materials. Clearly enough, however, the purpose of requiring reasons is to assist the determining authority understand the basis on which the subject determination is impugned and to identify particular issues it should address when reconsidering the determination. Nevertheless, absence of particularity in the stated reasons underlying a request for reconsideration does not negate the request. Consistent with its beneficial purposes and the differing characteristics of claimants requesting reconsideration, many of whom would be lay people without legal knowledge or training, the legislation should be construed generously on this point - while a lawyer representing a claimant may identify contested issues of fact or law in a determination subject of a reconsideration request, a lay person may simply state their disagreement with the determination on grounds that it is unfair, unjust or wrong. The authority or person who reconsiders a determination is not bound by the reasons given in a request under s 62(2) – the decision maker exercises all the powers conferred by s 62(4) to make a fresh decision to affirm, revoke or vary the determination ‘in such manner as the person thinks fit’ under s 62(5) and, in this context, should consider all relevant matters and materials, without being confined to the reasons stated by the person requesting the reconsideration.
Secondly, the 30-day period allowed for the making of a request for reconsideration may be extended by exercise of discretion conferred by s 62(3). The discretion is broad in scope and subject to no statutory limit. Nevertheless, exercise of the discretion is subject to assessment of other considerations that may arise when deciding if the statutory period should be extended. These are matters to which I will return shortly. The clear purpose of providing discretion to extend the time in which a reconsideration request can be made outside the 30-day period is to allow some flexibility in response to the wide variety of circumstances that may arise in any case, such as where relevant new information comes to light after the 30-day period has elapsed, or where a claimant is too unwell to make a request within the specified period for example.
At this point there is one further matter that I should address in the circumstances of this case relating to s 62(1). There is no express provision allowing a claimant (or anyone else) to ask a determining authority to reconsider a determination ‘on its own motion’ under this section. Of course, this does not prevent a claimant from making such a request. Nonetheless, if a request of this kind is made, there is a question how it should be interpreted.
In order to answer the question, it is necessary to consider the text, context and purposes of s 62. The purpose of s 62 is to provide a mechanism for reconsideration of decisions that meet the description of a ‘determination’ as defined in s 60. Section 62 sets out two ways in which this can occur. The first is set out in s 62(1). This section confers a broad discretion on a determining authority to make a reconsideration decision ‘on its own motion’. The words ‘on its own motion’ do not contemplate a request or an application being made by anyone outside the determining authority, rather they refer to a decision being made by the determining authority to exercise the discretion conferred. The second is set out in s 62(2). Under this section, the claimant to whom the determination is directed (or the Commonwealth, or a Commonwealth authority affected by the determination) may request the determining authority to make a reconsideration decision. A request under s 62(2) is subject to the requirements set out in s 62(3) in respect of reasons for the request and the time in which a request may be made. In either case, the result of such decision-making is a ‘reviewable decision’ to which further review rights attach under s 64.
Considering these matters, where a claimant asks a determining authority to reconsider a determination, the request should be assessed under s 62(2) with regard to s 62(3). This is so even if the claimant’s request uses the language of s 62(1). Clearly enough, if a claimant asks a determining authority to reconsider a determination, the reconsideration would not be ‘on its own motion’. Nevertheless, where the claimant’s request is directed to the discretion conferred by s 62(1), and the request does not comply with the requirements of s 62(2) and (3), it will be a matter for the determining authority to consider whether to proceed on its own motion under s 62(1).
Within this framework, a request for reconsideration should be construed generously, without an unduly technical eye.
Ms Carvalho says she first requested reconsideration of the 17 October 2007 determination in November or December 2007. The only evidence that she did so is her own account, uncorroborated by any supporting material. Without any contemporaneous documentary or other supporting evidence, Ms Carvalho’s assertion is no more than a possibility. On the present materials I can no more find that she did make the request she asserts than she did not. Her own evidence about what occurred in the period from November 2007 to March 2008 is scant and attended by inconsistency. If she did not receive a copy of the 17 October 2007 determination for some weeks or months, as she asserts, on what basis is her assertion to have requested reconsideration during those same weeks or months raised?
Ms Carvalho says she next raised issues relating to reconsideration of the 17 October 2007 determination with Comcare officers in March 2008. The records of those communications from 3 March 2008 are compelling evidence of Ms Carvalho’s dissatisfaction with the determination.
On 3 March 2008 a Comcare officer noted that Ms Carvalho telephoned Comcare ‘asking that the determination rejecting home help and gym be reviewed’ and ‘She has been quite ill and has been unable to follow up request for reconsideration until now’. To my mind, on any fair reading, this is an oral request for reconsideration of the 17 October 2007 determination. The CCR notes suggest that the Comcare officer understood it in this way and asked Ms Carvalho to send an email ‘stating her reasons and quoting previous Comcare decisions’. It appears that this officer (and other Comcare officers who recorded subsequent CCR notes of communications with Ms Carvalho on related issues in July 2008 and subsequently) believed that a written request for reconsideration was necessary.
Insofar as Comcare argues that Ms Carvalho did not state any reason for the request, there are two things to say. Firstly, the record is a note of a conversation between Ms Carvalho and a Comcare officer – it is not a verbatim record of everything that was said. Secondly, it is open to infer that Ms Carvalho either gave reasons that were not noted or stated her disagreement or dissatisfaction with the determination – it was Ms Carvalho who telephoned Comcare to ask for review of the determination. Having heard Ms Carvalho’s evidence, on balance, it is probable that she would have expressed her dissatisfaction with the determination. No greater reason is required for the purposes of s 62(3)(a).
Even if I decided this point differently, or the inference drawn is not correct, in a further telephone call on 12 March 2008, Ms Carvalho is noted to have asked the Comcare to ‘take a second look at the claim beforeshe [sic] puts in a reconsideration, because she thought it may be a mistake and she didn’t wantto [sic] put Comcare and herself through the whole reconsiderarion [sic] process’. Once again, this note makes it abundantly clear that Ms Carvalho wanted Comcare to reconsider the 17 October 2007 determination that was the subject of her call. It is difficult to conceive of any other meaning for the words ‘take a second look at the claim’. To my mind, the words ‘before she puts in a reconsideration’ do not change the meaning. It is clear enough that Ms Carvalho wanted Comcare to reconsider the determination without having to construct a written case for that to occur. In this record, the reason given by Ms Carvalho is noted to be ‘she thought it may be a mistake’. Once again, no greater reason is necessary to satisfy s 62(3)(a).
It appears that Comcare ‘looked at the decision’ and decided not to make ‘a reconsideration of own motion’. Why Comcare construed Ms Carvalho’s request as directed to the discretion conferred by s 62(1) in respect of reconsidering a determination ‘on its own motion’ has not been explained. Even though it may be argued that this decision is a reviewable decision made under s 62(4) and (5), no such point was raised or taken, and I will go no further with it.
Considering the records of interactions between Ms Carvalho and Comcare officers in March 2008 (and subsequently), it is probable that these proceeded on the expectation or understanding that a written request for reconsideration of the 17 October 2007 determination was required under s 62(2) to commence ‘the whole reconsideration process’. On several occasions, Comcare officers noted Ms Carvalho’s oral requests but asked her to ‘send in’ or ‘submit’ a request for reconsideration. Ms Carvalho expressly sought to avoid this requirement on 12 March 2008.
Examination of the evidence of communications between Ms Carvalho and Comcare officers in July and August 2008 reveals that Ms Carvalho persisted with her efforts to have the 17 October 2007 determination reconsidered. While no records of communications between Ms Carvalho and Comcare officers, including ‘Andrew Klein’, in July 2008 have been placed before the Tribunal, and Ms Carvalho’s assertion that she sent Mr Klein a copy of her written request for reconsideration of the 17 October 2007 determination is not corroborated by probative evidence, the CCR record of 6 August 2008 documents a telephone call by Ms Carvalho to Comcare, in which she asked to speak with Mr Klein and referred to having received an email from him, informing her ‘to send a review request directly to Him [sic]’, which she says she did in July 2008.
Whether or not these alleged communication between Ms Carvalho and Mr Klein took place is not clearly established. Mr Klein was not called to give evidence. Nevertheless, the 12 August 2008 CCR record and the letter Comcare sent to Ms Carvalho on that day establish that Comcare clearly understood that Ms Carvalho was ‘seeking your compensation entitlements for Gym and Household Help to be reinstated’ and that she would be relying on Dr Leerdham’s 25 September 2007 report. This notwithstanding, she was asked to send an email ‘requesting that Comcare reconsider the decision of 17 October 2007’. Opportunity was given for Ms Carvalho to provide any further supporting evidence ‘with your reconsideration request’. Ms Carvalho asserts that she ‘sent a copy of my formal request for reconsideration for gym and household assistance to [email protected]’. Comcare maintains that no such document was received.
I am satisfied that, on 12 August 2008, Ms Carvalho orally re-asserted the requests she made on 3 and 12 March 2008 for reconsideration of the 17 October 2007 determination.
It is not necessary to go further on this point, although I am satisfied that Ms Carvalho followed up her requests for reconsideration on subsequent occasions, including on 21 October 2008 when the Comcare officer noted the following –
‘I rang her back later advising that a letter was sent to the claimant by Kevin StMark on 12 August 2008 to submit a request for reconsideration of the determination made on 17/10/2007. She then advised that we should have the information on file and I emphasized to her that as per the letter sent to her on 12/8/2008 she is required to submit a reconsideration of the determination of 17/10/2008. She hung up,’.[20]
[20] T150, folio 509.
On balance, I am satisfied that Ms Carvalho requested reconsideration of the 17 October 2007 determination on 3 March 2008. Subsequent requests she made, including the request for reconsideration she made in August 2018, in effect, reiterate her original request, which was not acted upon.
EXTENSION OF TIME
In order to determine when the 30-day period allowed under s 62(3)(b) commences it is necessary to determine when the 17 October 2007 determination ‘first came to the notice of’ Ms Carvalho. This is difficult to assess with any precision. By Ms Carvalho’s own account she was aware of the determination in November 2007. In all likelihood, she was aware of the determination when, also by her own account, she spoke with a Comcare officer on 30 October 2007 about a report of Dr Leerdham, dated 25 September 2007.
Insofar as the reviewable decision in these proceedings relates to the written reconsideration request Ms Carvalho lodged on or about 17 August 2018, dated 9 July 2018,[21] I would not grant additional time, amounting to more than 10 years, under s 62(3)(b) for the simple reason that it is not appropriate to do so.
[21] T146.
Much was said about factors that bear upon the exercise of discretion to grant additional time in the hearing, including the primacy of the statutory time limit, whether Ms Carvalho rested on her rights, any explanation for delay, prejudice that might arise, any relative merit of the case underlying the reconsideration request, public interest and issues of comparative unfairness. For reasons that will appear, it is not necessary to make detailed findings about such matters and to address the authorities to which reference was made, which are clearly correct.
Ms Carvalho’s explanation for the delay is that Comcare failed to act on requests for reconsideration of the 17 October 2007 determination she (allegedly) made over many years. I am satisfied that she did not rest on her rights. Even though there is no compelling evidence she made a written request for reconsideration before August 2018, the available materials clearly establish that she made oral representations to Comcare in pursuit of the reconsideration she requested on 3 March 2008. In these circumstances, assertions of prejudice against Comcare are somewhat vexed – if one accepts, as I do, that Comcare failed to act upon Ms Carvalho’s reconsideration request, any resulting prejudice cannot properly be attributed to Ms Carvalho: the prejudice arises from Comcare’s failure to act.

As for the relative merit, if any, of the case underlying Ms Carvalho’s request for reconsideration, the present evidence is sufficient to establish that it is not devoid of merit. The determination is fixed in time – it is a denial of (then) present liability under s 16 and s 29 of the Act as of 16 October 2007. Reconsideration of this determination requires an examination of circumstances at that time. It has not been suggested that the request lacks utility to the extent that it is vexatious. Clearly enough, the effluxion of time may cause difficulties and is likely to cause prejudice to both parties. This is so whether or not the extension of time Ms Carvalho seeks in respect of her August 2018 reconsideration request is granted - if the grant is not made, Comcare will have before it her 3 March 2008 reconsideration request to decide and the same issues will arise.
Certainly, there is a public interest in ensuring that decisions under the Act are made in a timely manner and that mechanisms for reconsideration of such decisions are exercised appropriately, without undue technicality or delay, fairly addressing disputation and bringing uncertainty to an end.
Unfortunately, this has not occurred in this case.
Comcare has before it an unresolved request Ms Carvalho made on 3 March 2008 for reconsideration of the 17 October 2007 determination. That request should be acted upon by Comcare. Comcare’s failure to do so, ultimately, led Ms Carvalho to make a further request for reconsideration in August 2018.
There is no utility allowing two requests for reconsideration of the same determination to proceed. To my mind, considering all of the circumstances, the preferable course is for Comcare to undertake the reconsideration Ms Carvalho requested on 3 March 2008. While the circumstances are somewhat exceptional, and there are some forceful arguments in favour of the grant of additional time, I am not persuaded that granting more than 10 years additional time is the preferable decision. The better course is for Comcare to reconsider the impugned determination as requested by Ms Carvalho on 3 March 2008 and subsequently.
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.
……………………………………………………
Associate
Dated: 5 June 2019
Date of Hearing: 20 May 2019
Applicant: In person
Counsel for the Respondent: Mr Jason Moffett
Solicitor for the Respondent: Mr Ronald Moss, Comcare Legal