Chiavaro and TT Line Co. Pty Ltd - [2001] AATA 78

DECISION AND REASONS FOR DECISION [2001] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/863

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Ida Chiavaro
  Applicant
           And    TT Line Company Pty Ltd
  Respondent

DECISION

Tribunal Mr J.T.C Brassil, AM, Member

Date7 February 2001
PlaceMelbourne

Decision      The Tribunal decides that the claim and the request for reconsideration can be deemed to have been rejected hence the Tribunal has jurisdiction to hear the application and in the circumstances grants the necessary extension.
  .……(sgd. J.T.C. Brassil)…...
  Member
CATCHWORDS
SEAFARERS' COMPENSATION - order to provide information - reasonable excuse - whether claim deemed to be refused - whether reconsideration deemed to have been done - jurisdiction of Tribunal - extension of time

Seafarers Rehabilitation and Compensation Act 1992 ss 67, 73, 78 and 79

REASONS FOR DECISION

7 February 2001 Mr J.T.C Brassil, AM, Member

This is an application for review of decisions which could be deemed to have been made by the respondent following the claim made by the applicant for stress related illness on or about 20 October 1999 and also for the resumption of weekly payments in respect of a prior accepted claim for a back injury. The hearing was an interlocutory one to determine whether the Tribunal had jurisdiction for the review sought.
The applicant seeks, if it is found that her application to the Tribunal for such review is out of time, an extension of time to allow the review to be made.
The applicant was present at the hearing on 11 September 2000 and was represented by Mr P. Trigar of counsel. The respondent was represented by Mr J. Lenczner of counsel.
FACTS
The applicant had made a claim for a back injury sustained on 5 August 1999 on the vessel "Spirit of Tasmania" which is a car/passenger ferry plying between Melbourne and Tasmania. She reported that she had tripped on a storm step and had fallen forward striking a shelf. She presented herself to Dr Michael Bloom of the Bridge Street Clinic in Port Melbourne who found she had soft tissue injuries to her neck, arm and knee. In addition Dr Bloom noted that she was in an anxiety depressive state and stated she could benefit from a course of anti-depressant therapy for a few months. This report was dated 7 March 2000.
The applicant presented also to Dr Maryanne D'Amico, chiropractor of St Kilda on 14 August 1999 and was treated for these injuries over the next couple of months. Dr D'Amico provided a report dated 29 October 1999.
On 20 October 1999 she made a claim on the respondent concerning her psychiatric condition. This was received by the respondent on 29 October 1999.
On 8 December 1999 the respondent sent a s 67 Notice to the applicant which required her to provide more specific information about the persons on board the "Spirit of Tasmania" responsible for the alleged intimidation, assault and other incidents cited by her in her claim. Ms Chiavaro denies that this Notice was received. Her solicitors on 17 February 2000 wrote asking the respondent about the claim indicating it should be deemed to have been rejected and requesting reconsideration.
The solicitors for the respondent provided on 28 February 2000 a copy of the letter and Notice issued pursuant to s 67 for the information of the applicant's solicitors. On 6 March 2000 on behalf of the applicant her solicitors responded that she would not disclose the names of the individuals who harassed her as "she was fearful of her safety".
The applicant's solicitors wrote on 3 May 2000 to the respondent's solicitors noting that no response to the 6 March letter had been received. Further they noted that more than 60 days had passed since the request for reconsideration had been made hence the respondent could be deemed to have rejected the claim and they were able now to issue proceedings on behalf of their client if so instructed.
The application for review to this Tribunal was filed on 15 July 2000.
A report of Dr Colm Moore consultant psychiatrist dated 24 August 2000 was filed and served on 31 August 2000. This report provides an opinion that the applicant suffers from Chronic Post Traumatic Stress Disorder with a 10% impairment under the Comcare Guidelines.
ISSUES BEFORE THE TRIBUNAL
There are a number of issues before the Tribunal of which the fundamental issue is whether the Tribunal has jurisdiction to hear the appeal.
To determine this the Tribunal must consider whether the applicant received the s 67 Notice which the respondent sent on 8 December 1999, whether she complied with the Notice, whether the respondent in sending a further Notice to the applicant's solicitors accepted that she had not received the earlier Notice, whether the applicant complied, or was required to comply, with the later Notice in view of the response, through her solicitors on 6 March 2000 which may constitute a "reasonable excuse", that she would not do so because "she was fearful of her safety".
Then the Tribunal, if the claim remains on foot after the above issues are decided, must decide whether the respondent can be deemed to have refused the claim in the first instance and after reconsideration and thus whether the Tribunal has jurisdiction to decide the claim.
If it is determined that the Tribunal could have the required jurisdiction then the Tribunal must consider whether the claim made on 14 July 2000 is outside the time limit of sixty days and, if so, whether to grant an extension of time to the applicant.
The Tribunal will not decide the merits of any claim as a result of the proceedings thus far.
LEGISLATION
The relevant legislation is the Seafarers Rehabilitation and Compensation Act 1992 ("the Act") as amended. The significant sections are set out below. The power for the employer to request information and related matters are in s 67 of the Act.
"67 (1) Subject to section 69, if an employer who has been given a claim is satisfied that the claimant:
(a) has information or a document that is relevant to the claim; or
(b)may obtain such information or a copy of such a document without unreasonable expense or inconvenience;
the employer may, by written notice given to the claimant, ask the claimant to give the information, or a copy of the document, to the employer within 28 days after the date of the notice, or within such further period (if any) as the employer, on the request of the claimant, allows.
(2) A claimant who has received a notice under subsection (1) is taken to have complied with the notice if the claimant gives the employer the information, or a copy of the document specified in the notice, within 28 days after the date of the notice or within such further period (if any) as the employer has allowed.
(3) If a claimant, without reasonable excuse, does not comply with a notice under subsection (1), the employer may refuse to deal with the claim until the claimant gives the employer information, or a copy of the document, specified in the notice."

The time limit for determining claims is set out in s 73 of the Act.

"73 (2) The employee's employer must determine its liability in relation to the claim by the latest of the following times:
(a)at the end of the period of 12 days after the day on which the employer receives the claim;
(b)if the employer, by notice under section 67 given to the claimant within the period referred to in paragraph (a), requests the claimant to give information or a document or a copy of a document, or an authority to obtain information or a document or a copy of a document – the end of the period of 12 days after the employer receives the information, the document or copy of the document or the authority, as the case may be;

(c) …"

The requirements for the request for reconsideration are provided in s 78.

"78 (2) A claimant may, by notice in writing given to an employer, request the employer to reconsider a determination made by the employer.

(3) A request for reconsideration of a determination must:
(a) set out the reasons for the request; and
(b)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows."

The time limit for reconsideration of determinations and the consequence of not meeting the limit is provided in ss 79(1) and (6).

"79 (1) If a claimant requests an employer to reconsider a determination made by the employer, the employer must reconsider the determination before the later of the following times:
(a)       the end of the period of 60 days after the employer receives the request;
(b)       …
…
(6)       If the employer has not determined the claim by the end of the period allowed by this section, the employer is taken to have made a decision, at the end of that period, disallowing the claim."

SUBMISSIONS

Mr Trigar, on behalf of the applicant, submitted that the applicant had not received the s 67 Notice of 8 December 1999 and the employer did nothing when the 28 days had expired. When approached by the solicitors for the applicant on 17 February 2000 stating that the respondent was deemed to have rejected the claim and requesting a reconsideration they responded on 28 February 2000 by sending copies of the letter and Notice.
It was his submission that if a valid s 67 Notice was sent on 28 February 2000 then 28 days commenced on that date. The prompt response on behalf of the applicant on 6 March 2000 was well within the 28 days but refused to provide the information requested in relation to the names of the alleged offenders "as she is fearful for her safety". This should be accepted as a "reasonable excuse" for not providing the information requested in the Notice and would deny the employer any right to refuse to deal with the claim.
As there was no response from the employers Mr Trigar submitted that the applicant's solicitors were entitled to presume they did not dispute that they had refused the claim and, further, had not taken action in relation to the requested reconsideration.
The applicant's solicitors had provided to her employers at the same time a copy of the medical report of Dr Bloom in which he had serious concerns about her anxiety depressive state and reported she had told him of threats from crew members if she named names.
As the respondent had then rested on its rights and did nothing this was tantamount to a refusal to reconsider.
He submitted that the respondent had paid medical and like expenses including to a psychologist, chiropractor and for yoga and acupuncture which could be indicia that the respondent was accepting each claim.
Alternately he submitted that the claim had been lodged on 29 October 1999 by the applicant and a response should have been made in 12 days whereas there was no response to the claim except that a s 67 Notice was purportedly issued well after this time limit.
In all these circumstances he submitted that the claim could be deemed to have been rejected and the request for reconsideration made on 17 February 2000 could be deemed as rejected. The Tribunal therefore did have jurisdiction to hear the application submitted on 15 July 2000 and sought an extension of time for the applicant if it was considered that her application was outside the statutory period.
Mr Lenczner, on behalf of the respondent, submitted that the applicant was given a s 67 Notice on 8 December 1999 and she did not comply with the Notice. No decision had been made by the respondent disallowing the applicant's claim.
In the alternative the respondent repeated its s 67 Notice by issue of its correspondence of 28 February 2000 and s 79(2) extends the time for an employer to make a decision for reconsideration to a date at the end of a period of 60 days after an employer receives the information sought as the letter of 28 February 2000 together with the Notice of 8 December 1999 constitutes a request pursuant to s 83 of the Act.
He submitted that the applicant had not responded to the request and her solicitors had advised she refused to comply with the Notice.
Hence it was the respondent's considered view that even if it were deemed pursuant to s 73(2) to have made a determination it has not reconsidered the determination.
Further he submitted that decisions to refuse to deal with a claim or to reconsider a determination consequent upon the applicant's request to reconsider, are not decisions reviewable by the Tribunal.
Pursuant to s 78(3) the applicant in requesting a reconsideration is required to state the reasons for the request within 30 days after the determination first came to the notice of the claimant. As such a request was not received until 17 February 2000 he submitted this was outside the 30 days of the date on which the determination first came to the notice of the claimant or was deemed to have come to her notice.
Further no reasons as contemplated by s 78(3)(b) accompanied the request.
In regard to the "without reasonable excuse" provision in s 73(3) Mr Lenczner submitted that the declaration by the applicant that she was fearful of her safety is not a reasonable excuse in the circumstances. The employer may have taken action to protect her more if she had been prepared to give the required information necessary for her employer to examine her claim properly.
Mr Lenczner submitted that even if, as claimed by her solicitors in their letter of 3 May 2000, the respondent could of that date been deemed to have rejected the claim upon reconsideration, the applicant had not applied to the Tribunal within 60 days for review.
For each and all of these reasons he submitted that the Tribunal did not have jurisdiction for the review sought by the applicant.
CONSIDERATION OF THE ISSUES
The Tribunal did not have direct evidence from the applicant but her denial of receipt of the s 67 Notice sent by the respondent on 8 December 1999 was not contested at the hearing. The Tribunal is satisfied that her solicitors received the s 67 Notice with the covering letter of 28 February 2000 and that she responded to it by virtue of the letter of 6 March 2000, within the statutory time limit. She did not provide the information requested but it was indicated that she would not do so because "she was fearful of her safety" if she did comply.
While the respondent apparently did not accept this as a "reasonable excuse" there is no evidence that there was any reaction at all to the applicant's response. If it was accepted then the applicant is relieved of the requirement to provide the information sought.
If the applicant was seeking to have criminal charges laid against fellow crew members she would of course be expected to name the individuals. In this instance she was seeking treatment for the effect on herself of the actions she claimed to have experienced in her workplace. The respondent may well have wanted the information in order to make specific enquiries about the incidents. While the Tribunal respects that the respondent may have preferred to proceed in that manner it is satisfied that the applicant did have "reasonable excuse" not to comply with the Notice and finds that the respondent should not refuse to deal with the claim in these circumstances.
The Tribunal so finds in relation to the s 67 Notice if it was validly given. However it is of the view that it was not validly given as it was issued after the 12 days limit pursuant to s 73(2) of the Act for the employer to determine its liability under the claim from the date of receipt, 29 October 1999. If those 12 days have elapsed, as in this particular case, the employer can be deemed to have rejected the claim and would not have a right to send a s 67 Notice on 8 December 1999 nor on 28 February 2000.
The Tribunal is thus satisfied that the respondent can be deemed to have rejected the claim on or about 10 November 1999 but this may not have been the date the claimant first had notice of such deeming. The Tribunal has not been informed of the date that the applicant went to her solicitors for advice in respect to her claim but is satisfied that it was on or about the date on which the solicitors wrote requesting reconsideration, 17 February 2000. In the circumstances the Tribunal is satisfied that the request for reconsideration was made within the 30 days prescribed in ss 78(3)(b).
There is a difficulty raised by the respondent in submissions that the request for reconsideration on 17 February 2000 did not "set out the reasons for the request" pursuant to ss 78(3)(a). What were stated as grounds were that the applicant "is suffering from work-related stress which is contributing to her incapacity". The Act does not provide what an employer should do if the reasons provided are insufficient but it could be expected that, if that were the view of the employer, during the course of the reconsideration some request would be made for more and better particulars. In the event the employer did not respond to the reconsideration request and has submitted to the Tribunal that no reconsideration was made.
As there was no determination of the requested reconsideration within 60 days of 17 February 2000 the Tribunal is satisfied that on or about 17 April 2000 it could be deemed that the result of the reconsideration could be deemed to be rejection of the claim.
In the circumstances the Tribunal is satisfied that from that date an application could be made to the Tribunal for a review.
However the application was not received until 14 July 2000 which is out of time. The Tribunal has been requested to consider whether to grant an extension of time. The Tribunal is expected to consider whether the applicant has a case of some merit, worthy of review, and the Tribunal so finds although the merits can only be fully examined subsequently. The Tribunal should also consider whether the rights of the applicant would be severely affected by a refusal of an extension of time against whether the rights of the employer would be severely affected by the granting of the extension.
After consideration the Tribunal is of the view that the applicant does have a case worthy of consideration and, on balance, the extension of time should be granted.
CONCLUSION
The Tribunal has decided, for the reasons above, that it does have jurisdiction to hear and determine the review requested by the applicant and will grant the necessary extension of time.
In the circumstances of this case and the delays already experienced the Tribunal as presently constituted recommends that a hearing date for the review be determined as soon as possible.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J.T.C Brassil, AM, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  11 September 2000
Date of Decision  7 February 2001
Counsel for the Applicant        Mr P. Trigar
Solicitor for Applicant               Ryan Carlisle Thomas
Counsel for the Respondent    Mr J. Lenczner
Solicitor for the Respondent    Middletons Moore & Bevins