Cope and Australian Postal Corporation

[2003] AATA 1224

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1224

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/381

GENERAL  ADMINISTRATIVE DIVISION		)
Re		TRACEY ANN COPE

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr M Allen, Member

Date4 December 2003

PlacePerth

Decision  The decision made on 26 August 2002 by a delegate of the respondent to refuse to extend the time within which a request for a reconsideration of the determination made on 15 September 1997 could be made is affirmed.

..........(sgd M Allen)....................

Member

CATCHWORDS

COMPENSATION – Request for reconsideration of determination – application for extension of time to make request for reconsideration – delay of almost 5 years – explanation for delay – merits of claim – whether respondent would be prejudiced by the granting of an extension of time – application refused

Administrative Appeals Tribunal Act 1975 s37

Safety, Rehabilitation and Compensation Act 1988 s62

Comcare v Willems [1996] 975 FCA 1

Comcare v Smith [1997] 140 FCA

Hunter Valley Development’s Pty Ltd v Minister for Home Affairs and Environment 58 ALR 305

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Agar v Australian Postal Corporation (1998) 56 ALD 361

Comcare v A’Hearn (1993) 45 FCR 441

REASONS FOR DECISION

4 December 2003 Mr M Allen, Member          

1.      This is an application by Ms Cope for the review of a decision made on 26 August 2002 by a delegate of the respondent to refuse to extend the time within which Ms Cope could request a reconsideration of a determination made on 15 September 1997 to cease liability for compensation in relation to two workers compensation claims made by Ms Cope.

2. At the hearing of the matter Ms Cope was represented by Mr Prast and the respondent was represented by Ms Giles of Counsel. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) (T1 to T245) and exhibits A1 to A3 tendered by Ms Cope and R1 to R12 tendered by the respondent.

3. Section 62 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) provides for reconsideration of determinations made by a determining authority. A request for reconsideration shall set out the reasons for the request, and be given to the 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. In the present case the request for reconsideration and the application for an extension of time were made on 29 July 2002, or approximately 4 years and 9 months after the expiry of the 30 day period.

4.      The principal issue to be determined in the case is whether, in all the circumstances of the case, an extension of time should be granted beyond the 30 days for the making of the reconsideration request. 

5. A decision made to refuse to extend the time for the making of a reconsideration request pursuant to s62 of the Act is a reviewable decision for the purposes of the AAT Act and the Tribunal has jurisdiction to review such a decision: Comcare v Willems [1996] 975 FCA 1 at 9.

Background

6.      The background to the proceedings can be briefly summarised as follows.

7.      Ms Cope is 35 years of age and commenced employment with the respondent in 1992. Her duties consisted primarily of sorting mail and delivering it on a motorcycle.

8.      On 14 January 1997 Ms Cope was referred for rehabilitation regarding muscular knee pain and on 21 January 1997 she made a claim for compensation for a left knee injury.  On 11 February 1997 the respondent accepted liability for  “aggravation of a pre existing condition namely patello femoral (L) knee.”

9.      On 23 May 1997 Ms Cope made an incident report concerning an incident said to have occurred on 10 April 1997, which involved her left shoulder giving way while taking the load off her left knee while supporting the motorbike that she was riding with her upper body.  On the same day she lodged a claim for compensation for her left shoulder and neck. 

10.     On 18 June 1997 the respondent accepted liability for a “right cervical and thoracic facet joint strain” although the determination accepting that liability referred expressly to the claim for the left shoulder and neck.

11.     In July 1997 the respondent received a report from a Dr Rosenthal to the effect that Ms Cope’s musculo skeletal complaints, apart from the left knee, were not work related. Subsequently, Ms Cope was invited to submit any further evidence or argument that she wished to have considered in relation to the question of liability.  On 15 September 1997 the respondent’s delegate determined to cease liability for both claims with effect from that date and Ms Cope was provided with a document notifying her of her right to ask for a reconsideration of a determination and her right to seek review of a decision by this Tribunal if dissatisfied with the decision made on reconsideration.

12.     It was not until July 2002 that Ms Cope’s solicitors requested an extension of time for the reconsideration of the September 1997 determination (but excluding the claim in relation to the left knee).  The reasons for the delay in requesting the extension were given as her failure to take legal advice until recently and she had relied on the medical advice of Dr Rosenthal and a Dr Low and had only recently obtained a proper diagnosis of her condition.  A copy of a report from a Dr Wright  dated 17 July 2002 was attached to the request. 

13.     As noted above that request for an extension of time was denied by the respondent by letter dated 26 August 2002.  By letter dated 5 September 2002 Ms Cope’s solicitors asked that the decision be reconsidered but by letter dated 18 September 2002 the respondent informed the solicitors that the decision would not be changed.  Both the letter of 26 August 2002 and that of 18 September 2002 contained a notification of a right of review of the decision by this Tribunal and the application that was subsequently lodged on behalf of Ms Cope referred to the decision made on 18 September 2002 as the decision to be reviewed by the Tribunal.  Although it may make little practical difference, I consider that the earlier of the two decisions to refuse to grant an extension of time is the operative decision in relation to Ms Cope and that it is that decision that is to be reviewed by the Tribunal. 

Consideration

14.     The documentary material before the Tribunal amounted to approximately 500 pages and oral evidence was given by Ms Cope and by 5 witnesses on behalf of the respondent.  Nevertheless, it is important to remember, as von Doussa J observed in Comcare v Smith [1997] 140 FCA at 7, “the matter before the Tribunal [is] not the merits of the substantial claim for compensation, but the merits of the request to reconsider the determination…”.

15.     The power to extend time is a discretionary one and the parties in the present case referred to principles of the kind identified by Wilcox J in Hunter Valley Development’s Pty Ltd v Minister for Home Affairs and Environment 58 ALR 305 as providing guidance as to the factors that maybe relevant to the exercise of that discretion. The factors identified by Wilcox J were not intended to be an exhaustive statement of the applicable principles regarding the exercise of the discretion. The discretion to extend time is a wide one to be exercised as the justice of the case requires. A starting principle to remember in all cases is that limitation periods must be seen as the general rule and that an extension would only be granted where the conceptions of what justice requires is overridden by the facts of an individual case: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. I turn then to consider the factors that may be relevant to the exercise of the discretion to extend time in the present case.

Explanation for the delay and action taken

16.     It is clearly relevant to consider the reasons why Ms Cope did not act within the statutory time frame. An explanation will usually be expected that would satisfactorily explain the delay, but the lack of such an explanation does not necessarily mean that an extension of time should be refused: Comcare v A’Hearn (1993) 45 FCR 441. Likewise, it is relevant to consider whether Ms Cope took any action after being informed of the cessation of liability in September 1997 and up to the period when her solicitors lodged the request for reconsideration in July 2002 that would have alerted the respondent that Ms Cope did not accept that the question of liability was closed and that would or should have alerted the respondent that the matter was not in fact finalised.

17.     In her evidence Ms Cope said that in the several months up to the time that liability was accepted in June 1997 she had continued to work but on alternative duties doing light duties as per a rehabilitation program that had been devised for her.  After acceptance of liability she had continued with her restricted duties despite the pain in her knee and neck.  She also continued to undertake the rehabilitation program. Although she acknowledged receiving the letter dated 15 September 1997 advising that liability had ceased she did not challenge the decision because of that time her main focus was to get back to full work.  She was able to work, despite pain in her knee and neck, but she decided that she would simply try and do her best to preserve her employment and would continue to work to the best of her ability.  As far as she was concerned her employer, the respondent, was “looking after her by tolerating the work that she was doing and providing her with rehabilitation as required”..  In a written statement filed in the proceedings on her behalf Ms Cope said that she was unaware of the significance of not challenging the decision and was unaware that it would cause her problems in the future.  In her oral evidence she acknowledged that she had received the notification about her rights to request a reconsideration within 30 days although initially she said she had not read it at the time because she was under stress and pressure.  She said that although she had an average standard of literacy  she had initially not understood what was meant by expressions such as “certain rights”  and that although she now understands what the notification meant she did not at that time.

18.     Ms Cope said that she had, and still has, a relationship with a Mr Thomas who had also made a compensation claim and received a payment for it but she had not discussed her situation with him in any detail. Although she had been a member of a  trade union since about 1992, knew that she could get advice from the union, and had in fact spoken to a union representative about compensation matters on a few occasions, she didn’t know that she could get compensation advice from the union until about the year 2000.  She was not aware she could obtain legal advice from organisations such as the Legal Aid Commission and did not consider other legal advice until 2002.  She had not sought any advice from any of these sources because of her view that she was managing at work and believed that her employer would continue to look after her. 

19.     It was not until she had received a letter dated 17 June 2002 from her employer, advising of an appointment for her to see Dr Low on 25 June so that her fitness for duty could be reviewed and that she was not required to attend work until that review had been completed, that she thought it was necessary to obtain legal advice. 

20.     It is apparent that in the period after September 1997 Ms Cope continued to experience neck and back pain despite being employed on a restricted basis.  The documents record extensive “return to work” programs and various referrals for rehabilitation throughout 1998 and into 1999.  The records also note that she was at various times coping well or not coping well and that limitations were placed on the weights that she could lift and the need to take regular breaks from her duties. 

21.     At various times the question of whether the respondent was obliged to pay for such things as massage treatment was raised and Ms Cope was advised that they would not be: see for example T117.  Likewise, in this period Ms Cope was reminded that her workers compensation claim was closed: see for example T153.

22.     In January 1999, Ms Cope was experiencing some difficulties at work (see T244) and on 14 January 1999 Ms Cope’s general practitioner certified her as unfit for work for 2 days due to “overuse strain injury (muscular) left shoulder/upper limb.”.  Ms Cope was ultimately off work on sick leave from 13 to 22 January 1999, on recreation leave from 25 January 1999 to 22 February 1999 and then on sick leave again from 23 February 1999 to 31 March 1999.  No compensation claim was lodged with respect to this episode although the rehabilitation case manager recorded that on 23 February 1999 she had advised Ms Cope of the need to lodge an incident report and claim form (T244 at p373).

23.     It is apparent from the evidence of Mr Bengt Neilsen, Mr John Bligh and Mr Colin Peterson that in the period up to about February 2002 Ms Cope was apparently managing in her work, albeit on somewhat restricted duties, and it was suggested by those witnesses that her supervisor at the time, a Mr Fallon, had been particularly accommodating of her work and had not sought to have her reach what was regarded as the standard or acceptable level of mail sorting.  In about February 2002 Mr Neilsen became the team leader, taking over from Mr Fallon, and took action to have Ms Cope’s sorting rate lifted. Ms Cope underwent physiotherapy treatment during February and March 2002 and was on sick leave from 8 to 15 February 2002, 13 to 15 March 2002 and then continuously from 24 June 2002.  On 11 July 2002 Ms cope informed her rehabilitation case manager that her sick leave entitlements would shortly expire and at that time mentioned that she may reopen her compensation claim.  Her solicitors letter at the end of July 2002 was the next event.

24.     I do not accept Ms Cope’s evidence that in 1997 she did not fully appreciate the significance of the advice that she received about cessation of liability and the need to take action if that determination was to be reconsidered.  I am satisfied that she was aware of the significance of the events regarding cessation of liability but that she chose not to seek a reconsideration because she believed that her condition would improve overtime and she was content that her employer was taking reasonable steps to accommodate her condition by way of a rehabilitation program and reduced duties.

25.     It also apparent, in my opinion, that Ms Cope did not formally contest the finality of the decision that had been made.  However, formality is not required and, as was noted by Moore J in Agar v Australian Postal Corporation (1998) 56 ALD 361 at 370 it would have been sufficient for the applicant to have notified some person in authority that there was an issue as to whether her compensable injury continued, and that an appropriate means of signifying to an employer will vary having regard to the facts of each case. In my opinion, although the evidence and documentary material shows that between 1997 and 2002 Ms Cope’s problems were a fairly constant source of interaction between her and her employer, she did nothing to indicate to any person in authority that her continuing problems were a compensable injury. In that sense she did not contest the finality of the decision that had been made in 1997 prior to July 2002.

Prejudice

26.     The respondent contended that the actual and potential prejudice to it that would flow from an extension of time being granted to Ms Cope was the most powerful reason for not granting such an extension.  The respondent identified a number of specific aspects of prejudice that, it was said, were applicable.

27.     The first of these was that two of the people who had managed Ms Cope, Mr Dennis Artemis and Mr Brian Fallon, had declined to provide statements to the respondent concerning Ms Cope. Both of these are no longer employed by the respondent. 

28.     In relation to Mr Artemis, in an affidavit sworn on 1 July 2003 Mr Raymond Winduss, who is a paralegal employed by the respondent’s solicitors, deposed that he had attempted to locate Mr Artemis but had failed to do so.  In a subsequent affidavit, sworn on 8 July 2003 Mr Winduss deposed that he had contacted Mr Artemis by telephone on 7 July 2003 and in a conversation Mr Artemis had answered the questions that were put to him but when asked whether he was prepared to sign a statement Mr Artemis had said that he was not prepared to do so and did not want to become involved in any proceedings as a witness.  In his oral evidence Mr Winduss said that he had only been instructed to ask Mr Artemis four questions and Mr Artemis had answered all those questions.  Mr Artemis had been Ms Cope’s manager from about 1995 until February 2000. 

29.     In relation to Mr Fallon, in his affidavit of 1 July 2003 Mr Winduss deposed that he had located Mr Fallon on 13 June 2003 and had asked if he would be prepared to provide a formal statement and if necessary give evidence at these proceedings - but that Mr Fallon advised him that he did not wish to get involved.  The impression conveyed by that part of Mr Winduss’ affidavit is that he had a very short conversation with Mr Fallon.  In fact, in his oral evidence Mr Winduss said that he had spoken to Mr Fallon for approximately 20 or 30 minutes and that he had asked questions that he had prepared, received answers to those questions and had taken notes of the answers provided.  Exhibit A3, which is a record of the conversation prepared by Mr Winduss, shows that he asked Mr Fallon 13 specific questions and received detailed responses.

30.     In his oral evidence Mr Winduss elaborated on his affidavits by stating that,  in addition to Mr Artemis and Mr Fallon, he had been asked to attempt to locate a number of possible witnesses who were former employees of the respondent  on about 13 June 2003.  Over the following week he had managed to contact four or five people, who were no longer employed by Australia Post, who had been either co-workers or supervisors of Ms Cope.  Some had had a poor recollection of the events concerning Ms Cope and some had expressed a desire not to become involved.

31.     The second aspect of prejudice identified by the respondent is related to the previous point and is that, because the relevant events occurred in 1996 and 1997, memories of witnesses are likely to have faded over the years to the point that they are unlikely to be reliable.  Ms Cope’s own recollection of the events is hazy – and she accepts this to be so.

32.     The third aspect of prejudice raised by the respondent is that had the respondent been aware of the possibility of the claim being revisited, it could have conducted contemporaneous investigations into a number of issues much closer to the date of the alleged incident.  This could have included making inquiries into matters such as Ms Cope’s recreational activities – which were said to include parachuting and motorbike riding – and which may have played a part in her injury and its symptoms. 

33.     On this point Mr Chris McMahon, who is a claims manager employed by the respondent and who made the original determination to cease liability in September 1997, gave evidence that the evidence given by Ms Cope that she had two falls from a motorbike was news to him.  He had been under the impression that Ms Cope’s problems had been of a gradual onset.  Although, as the original decision maker, he would not have been involved in a reconsideration decision, Mr McMahon gave evidence that had a reconsideration been requested there were a number of things that could and probably would have been done.  For example, further specialist evidence from Dr Rosenthal or others may have been requested and investigations may have been undertaken to better understand the circumstances of the accidents that had allegedly caused the injuries.  Investigations may also have been undertaken into Ms Cope’s recreational activities.  Specifically, it is possible that further medical evidence such as MRI scans, CT scans and x-rays could have been obtained at that earlier time which would have permitted a better understanding of the injuries and how the applicant came to be injured. In particular such investigations may have revealed a disc bulge that has been subsequently identified.

34.     Finally, the respondent contended that if a reconsideration had been sought the respondent would have been able to monitor closely the duties performed by Ms Cope and the level of her performance.  Although some of this information has been collected it has been more directed towards an assessment about Ms Cope’s fitness for work duties from time to time rather than directed towards the forensic question of whether the respondent is liable to her for compensation.

Merit of the applicant’s claim

35.     It is not appropriate in an extension of time application to attempt a full investigation of the merits of the matter sought to be reconsidered.  However, if there were to be such an obvious weakness in the applicant’s case that her eventual claim must fail then it may be appropriate to refuse an extension of time.  As von Doussa J said in Comcare v Smith (supra) at p9, “ even if the weakness is not fatal, there may be other reasons such as the length of the delay, an absence of any satisfactory explanation for the delay, or prejudice to the other party which combine with the weakness to make it fair and equitable that the discretion to extend time be exercised against the applicant”..

36.     In the present case the decision to cease liability was based upon specialist medical evidence.  In a report of 14 July 1997 Dr Rosenthal observed, in relation to the neck/thoracic injury that he could find no convincing evidence of cervical or thoracic facet joint strain, but rather her symptoms had a fibromyalgic quality.  Dr Rosenthal said that it was difficult to gauge the extent (if any) to which recent work practices have contributed to Ms Cope’s symptomatology, although they may in part be contributory.  In a report of 21 July 1997 Dr Rosenthal said that he had considered further the matter of causation and thought that Ms Cope’s complaints (other than the left knee) had an intrinsic aetiology and were not work related.  Rather, Ms Cope had a fibromyalgic type disorder.

37.     When Ms Cope’s lawyers sought the reconsideration in July 2002 they provided the respondent with a copy of a report from Dr Wright dated 17 July 2002.  That report, consisting of three short paragraphs, is document T241.  The report notes that Ms Cope is suffering from neck pain radiating to the base of the skull and down to the left shoulder and upper limb.  An MRI scan recently showed a broad based disc bulge at C4/5 level.  Dr Wright records that Ms Cope told him that she did not have neck pain until about 1996 when she wrenched her neck after her knee which she had injured at work gave way.  He expressed the view that her neck symptoms are likely to persist, that they would not preclude her from clerical or suitable light work but that it is possible it would be aggravated by work as a mail sorter.

38.     As the letter of 26 August 2002 from the respondent to Ms Cope’s solicitors pointed out, there is nothing in Dr Wright’s report to indicate that the broad based disc bulge was related to the original incident in April 1997 and that, at the time Ms Cope had made the original neck complaint claim, there had been no investigations undertaken to confirm that a disc bulge had resulted from a work incident.

39.     Ms Giles acknowledged that there was no obvious fatal flaw in Ms Cope’s possible claim for compensation.  It is sufficient that there be an arguable case.  In my opinion, although Ms Cope would face considerable difficulties of proof if her claim were to be reconsidered, it cannot be said that her claim is so without merit that it must inevitably fail.  Obviously, if and when her claim is reconsidered by a delegate (or this Tribunal on a subsequent review) there will be considerable issues that go to her credit and the reliability of the evidence that she and other witnesses can give, particularly in view of the passage of time.  Nevertheless, on balance, it seems to me that Ms Cope’s case has sufficient merit to justify it being reconsidered – but subject to the comments made above about there being other reasons for declining to grant the extension of time.

Fairness to Others

40.     A comparison of the position of the person seeking an extension of time with others in a like position may be relevant for the exercise of the discretion in an appropriate case.  In the present case neither the applicant nor the respondent contended that this factor is relevant and I agree that that is so.

Conclusion

41.     Moore J in Agar (supra) at 370 observed that the task of the Tribunal, when deciding whether to exercise the discretion to grant the extension of time, “…is essentially a balancing exercise the focus of which is the period of time that has elapsed since the cause of action arose and, in particular, since the expiry of the time limit.  What must be balanced is the consequences of the time having elapsed and why it has elapsed.  The balancing exercise would ordinarily involve a consideration of the impact on the interests of the affected parties of a decision to extend, or to refuse to extend, time.  The explanation given by an applicant for an extension of time as to why an application was not brought earlier might be a particularly compelling one.  In that circumstance, the decision maker might conclude that the balance favours the extension of time even though the adverse effect on the other party was a material one.  If, on the other hand, the explanation was not a compelling one then the decision maker might conclude that even some minor adverse effect on the other party justified the extension of time being refused.”

42.     In undertaking that balancing exercise, I have concluded that Ms Cope’s explanation for the delay is unconvincing and that she took no action during the period of the delay to indicate to the respondent that she contested the finality of the determination.  I have also concluded that, although her case cannot be considered a strong one, there is an arguable issue for determination.  However, most importantly, I have concluded that, in my opinion, the respondent would be prejudiced to a substantial degree if obliged to reconsider the September 1997 determination.

43. It is undoubtedly true that the recollection of the material events by all the parties, including Ms Cope and her supervisors at the time, must have deteriorated to a considerable degree. This is important given the apparent confusion as to the detail with which Ms Cope reported the original injuries, and whether she was involved in two motor bike accidents or not. It is true that the respondent has been in a position to monitor her work performance and her medical condition over the years, and there is ample documentary evidence of events that occurred between 1997 and 2002. Nevertheless, I accept the proposition that all of that documentary evidence was primarily directed towards a question of Ms Cope’s ongoing fitness for work and rehabilitation that might improve that fitness, rather than directed towards obtaining medical evidence regarding the precise nature of her condition that would inform a decision about causation, and therefore, liability of the respondent for compensation under the Act. A great deal of investigative work (of a medical and other nature) could have been undertaken at the time that cannot now be as effectively undertaken.

44.     Mr Prast for Ms Cope conceded that the delay in this case is very long and at the end of the spectrum of what might be alleviated by an extension of time. This is, in my opinion, a case of the kind referred to by von Doussa J in Comcare v Smith as set out in [35] above.  Although the weaknesses in Ms Cope’s case are not fatal, and there is an issue that could be determined, the length of the delay, the absence of any satisfactory explanation for it and any indication that the respondent was on notice that the finality of the determination was in question, and the prejudice to the respondent (both actual and potential) if an extension of time were granted all combine with the weakness of the case to make it, in my opinion, fair and equitable that the discretion to extend time should not be exercised in Ms Cope’s favour.

45.     My decision is, therefore, that I decline to exercise the discretion to extend the time within which Ms Cope may request a reconsideration of the determination made on 15 September 1997. 

46.     I therefore affirm the decision made on 26 August 2002 by a delegate of the respondent to refuse to grant Ms Cope an extension of time.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Murray Allen, Member

Signed:         ...............................(sgd T Heng)..................
  Associate

Date/s of Hearing  9 and 10 July 2003                   
Date of Decision  4 December 2003
Counsel for the Applicant         Mr C Prast  
Solicitor for the Applicant          Slater & Gordon
Counsel for the Respondent     Ms P Giles 
Solicitor for the Respondent     Sparke Helmore