Coleman and Comcare

[2017] AATA 882

Coleman and Comcare [2017] AATA 882 (13 June 2017)

Division:GENERAL DIVISION

File Number(s):      2017/2571

Re:Norman Coleman

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 June 2017

Place:Sydney

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, and upon written application by the Applicant dated 2 May 2017, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 30 June 2017.

.........................[sgd] ...............................................

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – whether it is reasonable in all the circumstances to grant the extension – acceptable reason for delay – whether substantive matter has merit – extension of time application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s29(7)

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Dr L Bygrave, Member

13 June 2017

INTRODUCTION

1. On 2 May 2017, Mr Norman Coleman lodged an application under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a determination made by Comcare on 5 December 2015 (the reviewable decision).

2. Comcare opposes the application for an extension of time.

   BACKGROUND

3. Mr Coleman has an accepted injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of a ‘torn tendon left shoulder’ with a date of injury of 21 January 1987.

4. By determination dated 29 January 2015, Comcare decided it was not liable to pay compensation to Mr Coleman pursuant to sections 24 and 27 of the SRC Act. The Comcare delegate set out Mr Coleman’s history in the matter as follows:

   (a)Comcare initially determined on 3 April 1995 that Mr Coleman was entitled to payment under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) for 5% loss of use of the left upper limb and paid the sum of $2,399.20.

   (b)After a review of that decision, a determination dated 24 May 1995 assessed Mr Coleman at 9% loss of use of the left upper limb and a further payment was made to him under the 1971 Act in the amount of $1,919.00.

   (c)Mr Coleman received a subsequent payment after a decision by the Administrative Appeals Tribunal set out a degree of permanent impairment of 10% with entitlement to Mr Coleman for payment under sections 24 and 27 of the SRC Act. Mr Coleman was paid a further sum of $11,167.79 (entitlement was assessed at $15,485.99 with the money paid previously deducted from that amount).

5. In the determination dated 29 January 2015, Comcare denied liability to pay further compensation to Mr Coleman for permanent impairment and non-economic loss. The Comcare delegate relied on an assessment by Dr Richard Oak, who calculated the impairment ratings for restriction to range of movement of the shoulder as 10% impairment. The delegate considered Mr Coleman’s current degree of impairment is assessed at 10% by way of restricted range of motion, which does not represent a subsequent increase in the degree of impairment of 10% or more from his earlier assessment of impairment.

6. Mr Coleman requested a reconsideration of Comcare’s determination on 18 November 2015, relying on the opinion of Professor Ghabrial (orthopaedic and spinal surgeon).

7. On 5 December 2015, Comcare affirmed the determination dated 29 January 2015.

8. On 2 May 2017, Mr Coleman filed an application for an extension of time in respect of the reviewable decision. The applicant seeks an extension until 30 June 2017 to file an application.

9. The application for an extension of time was heard in Sydney on 24 May 2017. The parties’ legal representatives attended the hearing by telephone. Mr Coleman’s legal representative provided oral submissions and Comcare’s legal representative provided oral and written submissions.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

10. Ordinarily, in accordance with subsection 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant. Section 65(4) of the SRC Act modifies subsection 29(2)(a) of the AAT Act, such that an application for review must be lodged within 60 days.

11. Pursuant to section 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].

12. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] as follows:

    (a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;

    (b)a distinction is to be made between an applicant who has ‘rested on his rights’ and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    (c)any prejudice to the respondent caused by the delay;

    (d)whether the respondent or the general public would suffer any prejudice as a result of the extension;

    (e)the merits of the substantial application;

    (f)‘considerations of fairness as between the applicant and other persons’ in a similar position.

13. These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441.

14. All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.

    REASONS FOR DELAY

15. The extension of time application dated 2 May 2017 provided the following reason for the application: ‘We did not receive the Determination dated 5/12/2015 until 9/3/2017’.

16. At the hearing, Mr Coleman’s legal representative confirmed the reviewable decision was not received until 9 March 2017. He told the Tribunal he wrote to Comcare on 1 April 2016, 30 June 2016 and 3 March 2017 requesting the outcome of the determination. However, he only received the determination dated 5 December 2015 from Comcare by letter dated 6 March 2017 and received 9 March 2017. He then provided a copy of this determination to Mr Coleman on 14 March 2017.

17. Mr Coleman’s legal representative told the Tribunal Mr Coleman suffered a stroke in mid-April 2017, which has impacted on his memory. However, Mr Coleman has now provided clear instructions that he seeks to apply for a review of the decision by the Tribunal.

18. The legal representative for Comcare stated he was unaware of correspondence sent by Mr Coleman’s legal representative in 2016, seeking the outcome of the 5 December 2015 determination. He further contended that Mr Coleman’s request for an extension of time to lodge an application for a review until 30 June 2017 is 872 days beyond the prescribed time for making an application for review.

19. After considering the evidence before me, I find that the reasons for the delay in lodging a review of the decision, particularly the delay in Mr Coleman receiving the determination and his health issues, provides an acceptable explanation of the delay. I am satisfied that Mr Coleman did not ‘rest on his rights’ in seeking a review of the decision.

20. While this principle weighs for the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.

    PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC

21. It is in the interests of both Comcare and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I also accept that Comcare would have expectations about the finality of the decision-making process in relation to Mr Coleman’s application.

22. However, given the reasons for the delay seems to be in part due to Comcare’s prolonged delay in providing the determination, I am satisfied that there would be limited prejudice to Comcare if the extension of time is granted. This factor neither weighs against or for the applicant.

    MERITS OF SUBSTANTIVE MATTER

23. The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.

24. There is limited information before the Tribunal in relation to the merits of the application; I have regard to the reviewable decision and Comcare’s written submissions.

25. Comcare submitted the substantive application is without merit, referring to section 25(4) of the SRC Act that provides:

    Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.

26. Comcare contended the medical evidence of Mr Coleman’s doctor, Professor Ghabrial, demonstrates the application does not have any reasonable prospects of success. This is because Professor Ghabrial provided ‘a combined assessment in respect of [Mr Coleman’s] left shoulder impairment (19%) with his right shoulder impairment (6%) to arrive at a figure of 24% [sic]’. Comcare submitted this is an incorrect method to assess the degree of impairment.

27. I note it is open to Mr Coleman to seek further medical advice and/or reports, which may affect the merits of the substantive matter.

28. In considering all of the relevant circumstances and weighing the limited available evidence, I am of the view that Mr Coleman’s substantive matter may have merit. This weighs for the extension of time being granted.

    CONCLUSION

29. Taking into account all of the information before me, including the explanation of the delay and the merits of the substantial application, I am satisfied that it is reasonable in the circumstances to grant the extension of time.

    DECISION

30. The application for an extension of time is granted.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........................[sgd]..............................................

Associate

Dated: 13 June 2017

Date(s) of hearing:	24 May 2017
Solicitors for the Applicant:	Peter Moore, Brazel Moore Lawyers
Solicitors for the Respondent:	Christopher Bilboe, Comcare