Collins and Military Rehabilitation and Compensation Commission

[2008] AATA 1110

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1110

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3106

VETERANS’ APPEALS DIVISION		)
Re		JEFFREY COLLINS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Robin Hunt

Date12 December 2008

PlaceSydney

Decision The Tribunal grants an extension of time until 10 July 2008 for the making of an application for review of the reconsideration decision made on 30 July 1999.

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

Robin Hunt
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to apply to Tribunal to review reconsideration by respondent – injury accepted as service-related – determination to cease acceptance of liability to pay compensation on basis applicant no longer suffering from service-related injury – reasons for delay in making review application – prejudice to respondent – prospects of success – extension of time granted

Administrative Appeals Tribunal Act 1975 s 29

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

Comcare v A’Hearn (1993) 45 FCR 441

REASONS FOR DECISION

12 December 2008   Senior Member Robin Hunt

introduction

1.      Jeffrey Collins is seeking compensation for medical expenses in connection with an injury to his left shoulder he suffered in 1984 when he was serving in the Australian army. Mr Collins claimed compensation in 1998. The Military Compensation and Rehabilitation Service (“MCRS”) on 19 January 1999 wrote to Mr Collins accepting liability for “bruise left shoulder and haematoma left shoulder on 08/07/1984 and 20/10/1995” but further determining that, as there was “no evidence of any further medical treatment after 20/10/1995”, he was no longer suffering from the injury and it was not liable to pay compensation “on and from 20/10/1996”. The matter was reconsidered at Mr Collins’ request and the decision affirmed on 30 July 1999, but Mr Collins says he never received notification of the reconsideration decision.

2.      Mr Collins experienced problems with his left shoulder in 2006 which led to his claiming that he should be compensated for permanent impairment of the shoulder. This claim is not before me. He also requested reconsideration of the decision in 1999 to cease acceptance of liability to pay compensation for the left shoulder blade condition.

3.      On 3 July 2007, the MCRS noted in a letter to Mr Collins’ solicitor that the decision had been reconsidered and Mr Collins had been notified by letter from the MCRS dated 30 July 1999. Mr Collins lodged an application for a review of this decision with this Tribunal on 10 July 2008. Under the Safety, Rehabilitation and Compensation Act 1988 he had 60 days from the date that he received notification of the reconsideration within which to lodge an application for review. He seeks an extension of time in which to file his application for review with this Tribunal. The respondent opposes an extension of time.

issue

4.      The issue for determination is whether the Tribunal should extend the time within which Mr Collins may lodge an application for review of the decision of the MCRS dated 30 July 1999 to this Tribunal.

consideration and findings

5.      Mr Collins gave evidence at the tribunal hearing of his application for an extension of time that he never received notification of any reconsideration decision. He gave further evidence to the effect that he was under the impression that the MCRS or the respondent, continued to accept liability. Mr Collins acknowledged that he received the determination dated 19 January 1999 that no compensation should be paid on and from 20 October 1996 in relation to his left shoulder blade condition. He also recalled requesting reconsideration on 17 May 1999. He claimed, however, that not receiving the reconsideration decision made on 30 July 1999 left him thinking there was no final rejection. If he had received notification he would have responded.

6.      In further oral evidence, Mr Collins said that he had more pressing problems in 1999. He had no job, having been discharged from the army in 1998, he was going through the break-up of his marriage and he had psychiatric problems. Because of these competing events, he overlooked enquiring about the result of his reconsideration request. As well, he said he did not have continuing medical expenses related to his shoulder at the time and had hoped it would get better. There were no actual expenses he wished to claim at the time and the outstanding reconsideration request slipped his mind. He had no motivation to pursue the claim until he later developed shoulder problems that prompted him to seek medical attention.

7.      He also gave evidence about why he did not pursue a simultaneous claim he had made for shin splints. Mr Collins recalled seeing Dr Grant concerning his shin splints and refusing to undergo tests that Dr Grant wanted to carry out. The tests involved injecting dye into his legs and Mr Collins said that, what with the panic disorder he was suffering at the time, he could not face these tests and refused to undergo them. He realised that his claim for the shin splints would not succeed without these tests so he did not worry any further about this claim.

8.      A copy of a letter from Dr Chalk, psychiatrist, dated 21 December 1998 described Mr Collins as suffering severe panic disorder with other psychiatric symptoms or conditions. The respondent produced a copy of another short report written by Dr Chalk on 13 May 1999 saying that Mr Collins’ condition had stabilized. Mr Collins agreed that this was so, but that he was not getting any better. He told the Tribunal that he was hospitalised for a time and then continued as an outpatient attending the hospital every day. He did not claim that he was in hospital when the reconsideration decision was made on 30 July 1999, but simply claimed that he did not receive the letter of notification and did not recall ever seeing it.

9.      He also said that whenever he received correspondence from the army or the MCRS he responded and pointed to his letter responding to advice of overpayment in respect to another claim he made for a stress condition. The exchange of letters about this matter was contemporaneous with his reconsideration request. A letter from the Department of Defence dated 22 July 1999 set out the calculation of overpayments and the proposal to recover the sum of $1,111.96 by instalments of $50 per fortnight. Mr Collins wrote back asking that payments be reduced to $20 per fortnight. A date stamp shows his letter was received on 28 July 1999. As can be seen, this correspondence occurred around the same time as the posting of the reconsideration decision which was dated 30 July 1999.

10.     Mr Collins’ problems with his left shoulder in 2006 led to his having an ultrasound. The radiologist who performed the ultrasound reported that it showed a number of sites of longstanding calcification relating to previous trauma to the left shoulder. A copy of the report is attached to Mr Collins’ submission in support of his application for an extension of time. Mr Collins wrote to the MCRS on 16 November 2006, according to a copy of a letter before me, indicating he wished to make a claim for permanent impairment of his left shoulder and making reference to his previous claim. At some point Mr Collins was reminded of or became aware of the reconsideration decision made on 30 July 1999, which affirmed the determination denying continuing liability for the shoulder injury. Mr Collins wrote again to the MCRS on 23 March 2007 requesting reconsideration of “the decision to cancel liability”.

11. Under s 29 of the Administrative Appeals Tribunal Act 1975, the Tribunal has the power to extend the time within which a person can make application for review to this Tribunal. Subsection (7) provides that the Tribunal may extend the time for the making of an application “if satisfied that it is reasonable in all the circumstances to do so”.

12.     The legislative provision gives no guidance as to the meaning of the words “reasonable in all the circumstances to do so”, that is, to extend time. General principles have been enunciated in a number of cases and are well established. Wilcox J in the case of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 is often referred to. Wilcox J observed, among other matters:

• There is no onus of proof on the applicant but the applicant must place material before the Tribunal to justify the exercise of the discretion in his or her favour.
• The Tribunal must consider whether the applicant took any action to make the decision-maker aware that the decision was being contested.
• Prejudice to the respondent if the extension of time is granted must be taken into account.
• Wider prejudice to the general public is also relevant.
• The potential merits of the substantial application is a consideration.
• The fairness of granting an extension of time as between the applicant and other persons in a like position is also a relevant consideration.

13.     This is not an exhaustive list of relevant considerations but it is a useful framework. While the Federal Court has stated an acceptable explanation for the delay is not a prerequisite (see for example, Comcare v A’Hearn (1993) 45 FCR 441), an explanation is helpful. Mr Collins has furnished an explanation for the delay in applying for review of the 30 July 1999 decision and, on balance, I accept that he either did not receive the reconsideration notification or did not appreciate its significance because of surrounding circumstances and events. His assertion that he always responded to letters he received about his ongoing claims against the army is borne out by his quick response to the letter of 22 July 1999 about the overpayment making it unlikely to my mind that he chose to ignore the letter of 30 July 1999.

14.     He has offered a number of reasons to explain why he overlooked any pursuit of reconsideration after his initial request. His evidence that he was overwhelmed by other events including his psychiatric problems is borne out by independent medical evidence although this has not been tested. It is understandable that he decided not to pursue the concurrent shin splints claim for the reasons he gave. When giving oral evidence, Mr Collins was straightforward and not evasive or guilty of any contradictory statements.

15.     The extension of time sought is considerable, but the explanation for the delay is understandable when taking into account that no medical expenses arose between the time of the reconsideration request in 1999 and the symptoms that arose in 2006. On balance, I find the explanation acceptable.

16.     I have had regard to other considerations, such as prejudice and fairness between the parties and whether there is merit in the substantive application. In this respect, I note the initial claim was accepted in 1999 although ongoing liability was denied. As to prejudice caused to the respondent by the late application, there is, of course, prejudice but I note that there are other ongoing claims by Mr Collins and that correspondence between the parties or with the MCRS has continued since his discharge in December 1998. While it will be difficult for the respondent to investigate and accurately determine claims of as to causation of the present problems, this difficulty will be true for the applicant as well. In addition, the same or similar issues will need to be explored for the permanent impairment claim which I am told is under way. 

17.     With respect to the merits of the claim, Mr Collins does have medical opinions which he obtained in 2006 and 2007 which appear to offer support for his claim and may be tested at a full hearing. There is objective medical evidence available, Mr Collins has provided an acceptable explanation for not pursuing review sooner and he faces the prejudice of having to bear medical expenses for a possibly work related injury if he cannot have review of the reconsideration.

18.     Having considered all the above matters, I am satisfied that the extension of time should be granted until the date that the application was lodged, being 10 July 2008.

decision

19.     The Tribunal grants an extension of time until 10 July 2008 for the making of an application for review of the reconsideration decision made on 30 July 1999.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .............[sgd]...................................................................
  Associate

Date of Hearing  26 November 2008
Date of Decision  12 December 2008
Counsel for the Applicant         Mr M Vincent
Solicitor for the Applicant          Mr S Lott, Bale Boshev Lawyers
Solicitor for the Respondent     M B O'Brien, DLA Phillips Fox