Conti and Comcare

[2003] AATA 961

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 961

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/295

GENERAL ADMINSITRATIVE  DIVISION		)
Re		JANET CONTI

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date25 September 2003

PlaceCanberra

Decision The Tribunal decides not to exercise the discretion to grant an extension of time.

...............................................

Mr S. Webb, Member 

CATCHWORDS

COMPENSATION - application for extension of time in which to lodge an application for review – awareness of 60 day time limit – explanation for delay – no agitation in other forums – prejudice – merits of substantive case – extension of time not granted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections 62 and 65

Administrative Appeals Tribunal Act 1975 section 29

CASELAW

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

Re Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309

Comcare v A’Hearn (1993) 119 ALR 85

Barrett v Department of Social Security (1995) 38 ALD 609

Re CSIRO and Barbara (1987) 11 ALD 447

Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corp (1987) 12 ALD 520

Zizza v Commissioner of Taxation [1999] FCA 848

Windschuttle v Commissioner for Taxation (1993) 46 FCR 235

Comcare v Willems [1996] 975 FCA 1

REASONS FOR DECISION

25 September 2003 Mr S. Webb, Member        

1. On 4 August 2003, Janet Conti (“the Applicant”) applied for the review of a decision made by an authorised review officer (“ARO”) of Comcare (“the Respondent”), dated 27 August 2002, to deny her an extension of time in which to seek reconsideration of a primary decision of the Respondent’s delegate on 3 February 2000. The Tribunal application was not made within the time period specified at section 65 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) when read in conjunction with section 29 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). The Respondent opposed the making of orders to grant an extension of time in which to lodge the application for review by the Tribunal.

2.      At the hearing in this matter on 16 September 2003, the Applicant was represented by Mr R. Coen, solicitor.  Mr A. Reilly, solicitor, appeared on behalf of the Respondent.  The following items were taken into evidence and labelled as exhibits:

Exhibit	Description	Date
EOT1-EOT23	Extension of time documents prepared by the Respondent.
A	Affidavit of the Applicant.	10 September 2003
B	Clinical notes of Dr English.
C	Report by Dr L. Fridgant.	20 September 2002
D	Report by Mr P. Marshall and Ms S. Ozigul.	16 September 2002
E	Report by Dr L. Fridgant.	10 March 2003

BACKGROUND

3.      The following information is drawn from the documents in evidence and the oral evidence of the Applicant.

4.      The Applicant is a primary school teacher employed by the ACT Department of Education and Community Services.

5.      On 22 June 1999, the Applicant lodged a claim for compensation in respect of “anxiety depression disorder with panic/anxiety episodes” in consequence of which she experienced periods of incapacity (EOT 6). 

6.      On 3 August 1999, the Respondent accepted liability for “anxiety disorder with associated panic attacks” for the closed period 23 March 1999 to 31 October 1999 (EOT 7).  On 24 November 1999, the Respondent extended liability to 17 December 1999 (EOT 10) on which date the Applicant’s graduated return to work plan was completed and she was deemed fit to work 24 hours per week.  The Respondent informed the Applicant that a determination ceasing the Respondent’s liability for the claimed condition would be issued 28 days thereafter if no further medical evidence concerning continuance of the condition was provided.

7.      On 3 February 2000, in the absence of additional medical evidence from the Applicant, the Respondent wrote to the Applicant ceasing liability in respect of the claimed condition on and after 14 January 2000 (EOT 16).

8.      On 25 May 2002, the Applicant requested a reconsideration of the decision to cease liability (EOT 17), stating:

“In 2000 I returned to Wanniassa Primary School full-time.  The extreme effort I had to make to do this was exhausting.

In 2001 I made the decision to become part-time and began at Wanniassa Primary School on 4 days per week at which I lasted until October.  I organised a school camp which became a traumatic event when I returned to school to find a school fire had destroyed a part of the school.  I was unable to return to the School after this and have not been back.

I wish to claim that my condition is a residual carry over from my original state of health.  I have not been well since 1999 and have been receiving ongoing treatment from various doctors, psychologists and health professionals for my original condition.”

9.      On 27 August 2002, an ARO of the Respondent decided (EOT 22, folio 44):

“In the absence of a compelling reason to grant an extension of time, the Determination dated 3 February 2000 is affirmed.  I am unable to investigate the substantive merits of that Determination given the excessive time delay caused by the Employee’s failure to agitate her claim.”

In correspondence to the Applicant setting out this decision, the ARO set out the Applicant’s right of review before the Tribunal within a sixty-day period.

10.     On 4 August 2003, the Applicant lodged with the Tribunal an application for review of the decision dated 27 August 2002.

LEGISLATION

11. The relevant legislation is the SRC Act, especially sections 62 and 65, and section 29 of the AAT Act.

12. Section 62 of the SRC Act deals with the reconsideration of determinations and relevantly provides:

“62      Reconsideration of determinations

…

(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.”

13. Section 29 of the AAT Act sets out the manner of an application for review and confers power on the Tribunal to extend the period in which an application for review may be brought:

“29     Manner of applying for review

(1)       An application to the Tribunal for a review of a decision:

(a)       shall be in writing; and

(b)       may be made in accordance with the prescribed form; and

(c)except if paragraph (ca) or (cb) applies - must contain a statement of the reasons for the application; and

(ca)     …

(cb)     …

(d)if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) - shall be lodged with the Tribunal within the prescribed time.

…

(2)Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

(a)if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or

…

(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).

…”

14. Section 65(4) of the SRC Act prescribes a sixty-day period in which applications for review by the Tribunal under the SRC Act may be lodged:

“65 Modifications of the Administrative Appeals Tribunal Act 1975

(1) This section has effect for the purposes of the application of the Administrative Appeals Tribunal Act 1975 (in this section called the Act) in relation to a reviewable decision.

…

(4) Subsection 29(2) of the Act has effect as if the reference to "the twenty-eighth day" (first occurring) were a reference to "the sixtieth day".”

ISSUES

15. The matter before the Tribunal concerns the Applicant’s request on 29 July 2003, pursuant to section 29(7) of the AAT Act for an extension of time in which to make application for review by the Tribunal of a reviewable decision dated 27 August 2002. The Applicant agitated a second matter concerning the Applicant’s substantive application, dated 4 August 2003, for review of the reviewable decision dated 27 August 2002 on the merits. Questions concerning the merits of the substantive application will arise in the event an extension of time is granted.

APPLICANT’S SUBMISSIONS

16.     The Applicant submitted that the delay in making the application for review was caused because she was unable to cope with the stress of pursuing a dispute over her claim for compensation following her receipt on 30 August 2002 of the reconsideration decision dated 27 August 2002.  She told the Tribunal she was depressed and suicidal in July 2002 and receiving intensive psychiatric treatment, including a two week admission to the Hyson Green Private Psychiatric Hospital.  She stated that she had difficulty with activities of daily living at that time and was unable to return to work until December 2002, when she commenced part-time duties as a Teacher’s Assistant one day per week at the Latham Primary School.  She said she increased her hours of work as a Teacher’s Assistant to 25 hours per week at the start of the school year in 2003, noting that she felt unable to cope with the demands of a full teaching role.  In her submission, such incapacity is ongoing.

17.     The Applicant informed the Tribunal that she was encouraged to pursue her claim in 2003 by the Principal of the Latham Primary School and took the matter up with a union representative.  In her submission, she became concerned about industrial issues concerning her rate of pay as a Teacher's Assistant and decided to pursue the matter.  She stated that she is paid at the rate for a Teacher’s Assistant, even though she has many years teaching experience and is over qualified to work as a Teacher’s Assistant. 

18.     The Applicant accepted that she had been informed of the time period in which she could apply to the Tribunal for review of the decision dated 27 August 2002.  She submitted that, while she read the information concerning her right of review and the time limit thereon, she did not retain the information in her mind at the time because of her mental state and subsequently remained in ignorance.  She stated that she was not aware that she could seek a review in the circumstances until she was encouraged to do so.

19.     In the Applicant’s submission, prejudice to the Respondent must be weighed against prejudice to the Applicant if the extension of time is not granted.  The Applicant contended that she suffers incapacity to this day in consequence of a well documented medical condition for which she has sought treatment throughout the period in question.

20.     The Applicant’s case in relation to the merits of the substantive application relies on the continuance of medical treatment of her anxiety/depressive disorder since May 1999, as evidenced by the medical documentation of Dr J. English, General Practitioner (Exhibit B), Ms S. Ozgul, Senior Clinical Psychologist (Exhibit D), and Dr L. Fridgant, Psychiatrist (Exhibits C and E).  The Applicant submitted that she had a reasonable chance of success and should be permitted to place her evidence and arguments before the Tribunal.

RESPONDENT’S SUBMISSIONS

21.     The Respondent submitted that the Applicant was informed of the time limit applying to an application for review and it is unreasonable to suggest that the Applicant was unable to instruct her solicitor to pursue her claim within the prescribed time limit or soon thereafter.  The Respondent contended that the Applicant had rested on her rights, and that there is no evidence that the Applicant was so ill that she was unable to properly manage her affairs in the period from 27 August 2002 until 29 July 2003.

22.     In the Respondent’s submission, the Applicant is an articulate, well-educated professional with above average literacy skills who had dealings with the Respondent over her original claim.  The Respondent submitted that the Applicant did not indicate dissatisfaction with the reviewable decision, or place the Respondent on notice of her intention to further agitate her claim or her rights, or inform the Respondent that the medical condition for which she was compensated was ongoing.  This, the Respondent contended, is suggestive that she did not, at that time, intend to pursue her claim.  In the Respondent’s submission, it would be reasonable to expect the Applicant to alert the Respondent to her intentions, even if formulating grounds and obtaining legal representation was the subject of some delay (see Barrett v Department of Social Security (1995) 38 ALD 609).

23.     In relation to the issue of prejudice, the Respondent submitted that prejudice to the Respondent arises because it is precluded from obtaining contemporaneous and independent medical evidence concerning the existence or continuance of the Applicant’s claimed psychiatric condition throughout the period in question from 14 January 2000.  The Respondent contended that this prejudice is reinforced by the paucity of existing contemporaneous medical evidence comprising a report by Dr Saboisky and the clinical records of Drs Davey and Rodgers, General Practitioners.  The Respondent noted that any prejudice to the Applicant, were the application for extension of time not granted, is minimal, as the Applicant lodged a second claim in relation to the aggravation of her claimed psychiatric condition by incidents involving a school camp and fire in 2002.  In the Respondent’s case, the Applicant was in full time employment as a teacher in 2000 and worked four days per week as a teacher in 2001 until October of that year, when she commenced taking regular sick leave in consequence of the incidents referred to in her second claim for compensation.. 

24.     The Respondent asserted that the Applicant rested on her rights and there would be a wider prejudice to the general public were an extension of time granted in such circumstances (see Re CSIRO and Barbara (1987) 11 ALD 447).

25.     In relation to the merits of the application, the Respondent submitted there is an obvious weakness in the Applicant’s case and it is unlikely to be successful (see Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corp (1987) 12 ALD 520). In the Respondent’s opinion, the medical evidence does not support the claim that the Applicant’s psychiatric condition continued from 14 January 2000 until October 2001 or that during this period she was unable to properly manage her affairs. In any event, the Respondent submitted, even if an extension of time were to be granted, the Applicant would then be called upon to persuade the Tribunal that a further extension of time is warranted to permit the reconsideration of the decision dated 3 February 2000. This, in the Respondent’s submission, mitigates against the granting of an extension of time as such extension would not have the effect of enabling consideration of the merits of the substantive application.

CONSIDERATION OF THE ISSUES AND FINDINGS

26. Section 29(7) of the AAT Act permits the grant of an extension of time where the person seeking the extension has applied in writing. The Tribunal finds that the Applicant made a written application on 31 July 2003 (EOT1).

27. The AAT Act confers discretion on the Tribunal to extend the time in which an application may be made, but sets out no criteria to apply to the exercise of that discretion. The criteria to be applied when considering an application for an extension of time have been considered by the Federal Court (see Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344 at pages 348 to 350 and Comcare v Willems [1996] 975 FCA 1 at page 8) and the Tribunal (see Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309). In essence, the criteria that have been applied following such authorities are:

(a)Whether the applicant has a reasonable explanation for the delay.  Prima facie proceedings commenced outside time will not be entertained, but an extension of time will be granted if it is proper to do so.  The Federal Court in Comcare v A’Hearn (1993) 45 FCR 441 pointed out that such an explanation is usually to be expected but the lack thereof need not necessarily result in the refusal of an extension of time.

(b)Whether the applicant took action to make the decision-maker aware that the decision was being contested.

(c)Whether the grant of an extension of time would prejudice the respondent.

(d)Whether there is any wider prejudice to the general public in terms of disruption to established practices.

(e)Whether the substantive application appears to have merit.

(f)Considering other persons in a similar position to the Applicant, whether it is fair to grant the extension of time.

reasonable explanation

28.     The Applicant’s reason for delay was that she was unwell and ignorant of the implications of failing to apply in the prescribed time.  The medical evidence reveals that the Applicant was indeed unwell in August 2002, being admitted to the Hyson Green facility on 21 August 2002 (Exhibit B).  On 16 September 2002, Ms S. Ozgul, Senior Clinical Psychologist,  reported (Exhibit D):

“[The Applicant] attended again on 30 August and 13 September for ongoing assessment, psychoeducation about depression and cognitive behaviour therapy.  At the time of writing [the Applicant] has a much improved mood and is more optimistic about her future.  She also reports sleeping better.  However, she remains pessimistic about her return to full functioning, and to work.  In the light of the improvements in her mood and functioning, [the Applicant] intends to return to the Clinic in about 4 weeks’ time at which point a decision will be made about any further contact.”

29.     On 20 September 2002, Dr L. Fridgant, Psychiatrist, reported (Exhibit C):

“She appears to go from strength to strength with the passage of time … .

At present there is no ongoing need for my involvement.  She continues to receive 225 mg of Efexor … .

…

I have made an appointment to see her in six months … ..”

Dr Fridgant reported on 10 March 2003 (Exhibit E):

“She continues to do well on 225 mg of Efexor.  The problems she experienced with work have settled and she is now proceeding with graduated return to work.”

On 1 November 2002, Dr Fridgant reported (Exhibit A, Attachment A, page 5):

“[The Applicant] has been under my care since 9 July 2002.  She was referred for management of anxiety and depression occurring on the background of work-related difficulties precipitated by severe anxiety in the workplace.

She overcame a similar episode some two years ago successfully.

Unfortunately on this occasion she was more severely ill requiring admission to the Hyson Green Private Psychiatric Hospital. … Since then she has progressed gradually and is now feeling almost back to her normal self.  However, what remains is a propensity to become anxious under situations of even moderate stress.  The stress is specifically related to having to manage a variety of concurrent, competing demands.”

30.     Dr A. Lark, Occupational Physician for Health Services Australia, reported on 10 April 2003 (Exhibit A, Attachment A, pages 3 and 4):

“[The Applicant] indicated that she was still easily “thrown” by things that happened and still got a foggy feeling towards the end of the day on some days. …

…

Presentation

…

·     It would be fair to say that presentation is now within normal expectations.  The history indicates however ongoing sleep disturbance despite a relatively high dose of Efexor, and fragility from a mental health perspective.

…

An application for partial invalidity retirement would be supported if made, as [the Applicant] has clearly had a substantial problem with depression and continues on treatment with a higher than average dose of Efexor … .”

31.     Considering this evidence, the Tribunal is satisfied that the Applicant’s psychiatric condition prevented her from lodging an application for review within the first weeks of the prescribed sixty-day period.  However, it is clear that the Applicant’s condition improved with treatment to the extent that she was “feeling almost back to her normal self” by 1 November 2002 (Exhibit A, Attachment A, page 5).  This being the case, the Tribunal is not satisfied that the Applicant was unable to make application for review for reasons of ill health during the latter weeks of the statutory period.  However, if the Tribunal were wrong in that conclusion, there is nothing to suggest that the Applicant was so unwell that she was unable to make her application for review after 1 November 2002.  Nor is the Tribunal persuaded by the Applicant’s submission that she did not know she could apply for review, when she had clearly been informed on 27 August 2002 of her right of review and the time limit thus applying.

32.     It follows, therefore, that the Tribunal is not satisfied that the Applicant’s explanation for the delay in making the application for review is reasonable after 1 November 2002.  Following Comcare v A’Hearn (supra) this, however, does not conclude the matter.

action taken

33.     It is clear that the Applicant only decided to lodge an application for review by the Tribunal in consequence of encouragement by her school principal and union advisers.  In her submission, she did not rest on her rights.  The Tribunal does not agree.  The Applicant took no action to inform the Respondent of her intention to further agitate her compensation claim following the determination dated 27 August 2002, and apparently did nothing to that end until almost one year later.

prejudice

34.     There is prejudice to both parties arising from the passage of time since the substantive determination dated 3 February 2000, in relation to which the Applicant is seeking reconsideration.  The prejudice thus arising is greater as a result of the Applicant’s twelve-month delay in seeking a review by the Tribunal of the determination dated 27 August 2002. 

35.     Considering the question of double counting the delay discussed in the case of Zizza v Commissioner of Taxation [1999] FCA 848 and Windschuttle v Commissioner for Taxation (1993) 46 FCR 235, the Tribunal is satisfied that prejudice in this matter does not flow from delay alone. Prejudice to both parties arises from the paucity of contemporaneous medical evidence concerning the existence or continuance of the claimed psychiatric condition during relevant periods, and the difficulty now present in ascertaining the extent of psychiatric illness, if any, during the period in question. The prejudice to the Respondent in re-opening a matter that has been closed on two previous occasions in consequence of the Applicant’s failure to communicate any intention to further agitate her claims must be considered in relation to the prejudice to the Applicant that would arise if an extension of time were not granted. It is true that, if an extension of time is not granted, the Applicant will be denied the opportunity of a review of the reconsideration decision dated 27 August 2002. The Tribunal notes that the Applicant made a second claim for compensation in relation to alleged incidents involving a school camp and fire in October 2001. That claim is not before this Tribunal and is not subject to any finding in the instant case.

36. The Tribunal pauses to note that on 24 May 2002, after a delay of over two years, the Applicant sought a reconsideration of a determination dated 3 February 2000 pursuant to section 62 of the SRC Act. Section 62(3) of the SRC Act provides that a request for a reconsideration is to be made within 30 days of the determination in question or “within such further period (if any) as the determining authority … allows”. 

37.     The Respondent asserted that a public interest prejudice would arise were an extension of time to be granted in circumstances where there is evidence that the Applicant rested on her rights for an extended period.  It is clear that the prejudicial effects of the initial delay in seeking reconsideration of the determination to cease liability have been increased and compounded by the subsequent delay in seeking review by the Tribunal of the determination not to grant an extension of time. 

merit

38.     It is for the Applicant to show merit in the substantive application. The substantive application concerns a reviewable decision made in response to the Applicant’s request in May 2002 for reconsideration of a determination made over two years previously, in February 2000.  It may be true that she could succeed in some measure if the matter were to proceed, however, there is nothing before the Tribunal to suggest that the decision in question was improperly made.  Indeed, the medical evidence, when considered in its entirety, suggests the Applicant recovered from the initial psychiatric condition for which she was compensated and returned to full time employment in her chosen profession as a teacher.  The Tribunal notes the Applicant’s claim that she continued to consult Dr Davey about her claimed condition and continued to take Prothaiden throughout the period in question.  However, there is no corroborative evidence before the Tribunal to support this claim.  Subsequently in 2001, she suffered either a recurrence, or a relapse, or an aggravation of the psychiatric condition, in relation to which she made a second application for compensation, which is not before this Tribunal. 

39.     The Tribunal is not persuaded that the Applicant’s claims under cover of her substantive application to this Tribunal are infused with merit.  The Tribunal notes the absence of medical evidence concerning treatment of the claimed condition in the period from January 2000 until July 2001, during which period the Applicant was in employment as a teacher.

fairness

40. The Parliament prescribed an appropriate period in which a person may apply for review of a decision under the SRC Act. The certainty of closure on completion of that period is important to the operation of the compensation scheme as a whole. Disturbing the prescribed limit without good reason would be unfair to applicants and respondents alike.

conclusion

41. Considering all the evidence, the submissions of the parties, the relevant caselaw and legislation, the Tribunal is not satisfied that it would be fair and equitable to extend the time in which to review the substantive application in these proceedings. The Applicant’s explanation for the delay is not reasonable in the circumstances. She was aware of the time limit in which to lodge her application and chose to ignore it. It is clear that she was unwell, but not so unwell that she was prevented from taking action to either pursue her claim or, at least, alert the Respondent of her intentions in that regard. She did not take any action to inform the Respondent of her desire or intention to appeal the decision dated 27 August 2002 under the SRC Act, and rested on her rights for the period of almost one year, having previously, on 25 May 2002, sought reconsideration of a determination dated 3 February 2000. The Respondent was entitled to assume, in both cases, under the SRC Act that the matter was closed. The effluxion of time is prejudicial to both parties, not least in relation to the difficulty of adducing independent evidence about the psychiatric state of the Applicant since January 2000, especially during periods of time where no such evidence exists.

42.     Considering all the circumstances and the caselaw and weighing the evidence and the submissions of the parties, the Tribunal concludes that it would not be fair or appropriate to permit the matter to be resuscitated.  In so concluding, the Tribunal notes that it is open for the Applicant to pursue her claim for compensation for a psychiatric condition arising out of alleged incidents in 2001.

43.     However, in the current application, the Tribunal decides that an extension of time will not be granted. 

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         C. Gregson
  Associate

Date/s of Hearing  16 September 2003
Date of Decision  25 September 2003
Solicitor for the Applicant  Mr R. Coen
Representative for the Respondent        Mr A  Reilly