Dabbs and Comcare (Compensation)

[2017] AATA 518

Dabbs and Comcare (Compensation) [2017] AATA 518 (20 April 2017)

Division:GENERAL DIVISION

File Number:           2014/2899

Re:Michael Robert Dabbs

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Regina Perton, Member

Date:20 April 2017

Place:Melbourne

The Tribunal affirms the decision to refuse to grant an extension of time under s 62(3) of the Safety, Rehabilitation and Compensation Act 1988.

[sgd]........................................................................
Regina Perton, Member

COMPENSATION – extension of time for lodgement of application for reconsideration of respondent’s original decision – relevant considerations

Legislation
Safety, Rehabilitation and Compensation Act 1988 s 14, 19, 62(3)

Cases

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

Regina Perton, Member

20 April 2017

1. Michael Dabbs started working for the Department of Veterans’ Affairs (DVA) in 1998 in the Melbourne office.  On 23 January 2009 he suffered an acoustic shock injury (ASI) in both ears during an Australia Day function at work when a microphone malfunctioned and Mr Dabbs was exposed to noise from the feedback.  He was subsequently diagnosed with hyperacusis (abnormal intolerance of noise) and later developed major depression and panic disorder.     

2. On 9 March 2009 Mr Dabbs lodged an application with Comcare (the respondent) for compensation for Acoustic shock – hyperacusis (Noise damage to ears – nerve damage).  On 13 June 2009 the respondent accepted liability for hyperacusis (bilateral) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 9 December 2009 the respondent accepted liability for the secondary condition of major depression and panic disorder (with mild agoraphobic symptomatology) under s 14 of the SRC Act.

3. On 14 February 2011 Mr Dabbs resumed his normal duties. On 10 March 2011 a fire drill was conducted at his workplace and he reported that the sound of the fire alarm and other associated noise caused hyperacusis symptoms and a panic attack. He had time off work on 10, 11 and 17 March 2011. On 29 April 2011 the respondent accepted liability under s 19 of the SRC Act in respect of 10, 11 and 17 March 2011, but on 4 May 2011 reversed its decision to provide incapacity payments.

4. On 30 June 2011 Mr Dabbs’s sound shield device on his telephone malfunctioned, causing a scratching-type noise. An alarm on a nearby security door sounded twice and Mr Dabbs suffered an anxiety attack. He took time off work on 30 June and 1 July 2011. On 13 July 2011 the respondent issued a determination accepting liability under s 19 of the SRC Act in respect of 30 June 2011 but then reversed the payment of incapacity payments.

5. On 11 October 2011, while on a lunchbreak, Mr Dabbs heard a loud noise associated with the dumping of rubbish in an alleyway. He reported problems with both ears, including ongoing earache in the left ear, and a panic attack. He took time off work on 11-14 October 2011. On 6 December 2011 the respondent issued a determination denying liability under s 19 of the SRC Act in respect of claims for 30 June and 1 July 2011, and in respect of the claims for 11-14 October 2011 because the injuries did not occur as a direct result of the claim for hyperacusis suffered on 23 January 2009. In the determination the respondent encouraged Mr Dabbs to lodge a separate claim for the incident that occurred on 30 June 2011.

6. On 6 September 2013 the respondent wrote to Mr Dabbs and provided a copy of the determination dated 6 December 2011.  On 3 April 2014 Mr Dabbs lodged a request for reconsideration of the determination.   

7. On 9 April 2014 the respondent refused to extend the time for Mr Dabbs to lodge his application for reconsideration.  On 6 June 2014 Mr Dabbs applied to the Tribunal for an extension of time in which to lodge his application for reconsideration.

   ISSUE

8. The issue before the Tribunal is whether to grant an extension of time to Mr Dabbs to lodge his application for reconsideration of the determination. 

   LEGISLATION

9. Section 62(3) of the SRC Act provides for reconsideration of a decision:

   (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.

   RELEVANT CONSIDERATIONS

10. There is no dispute between the parties that the application for reconsideration was lodged out-of-time.

11. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348, Wilcox J stated that normally proceedings commenced outside the prescribed period will not be entertained. He set out six principles which guide the use of the discretion to grant an extension of time:

    ·that the application for an extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;

    ·whether  the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;

    ·whether there is any prejudice to any other party;

    ·that the mere absence of prejudice to other parties is not enough to justify the grant of an extension.  However, any wider prejudice to the general public is a relevant factor;

    ·the merits of the substantive application; and

    ·considerations of fairness between  the applicant and other persons in a similar position.

    Explanation for the delay

12. In his request for review of the respondent’s determination of 6 December 2011 Mr Dabbs stated that from the date of the initial injury he has stayed at work and continued to perform his duties to the Australian public to the best of his ability until he was forced to take leave on 30 June 2011. But nothing had changed and he continues to experience pain and suffering.  He said that after the events of 30 June 2011 he received no notice from DVA or the respondent about the refusal of his application for review, and that only a change in his pay from DVA, identified from bank statements, alerted him to the decision.

13. Mr Dabbs stated that he had had no chance of appeal against the withdrawal of treatment or loss of wages as the statutory period had closed before he became aware of changes to the decision to accept the claim in respect of 30 June 2011, or the claims lodged afterwards.  He emphasised that if he had been slow to request a review it was because of the effort of attending work and being back on duty soon after hyperacusis attacks, in order to serve veterans and the Australian public.                    

14. In a written statement dated 18 December 2015 Mr Dabbs said that he has never received notification from DVA or the respondent denying liability for compensation.  He also said that he has never received a determination from the respondent ceasing liability for his accepted conditions.  Mr Dabbs claimed that he was not afforded an opportunity to lodge an appeal against the withdrawal of treatment or loss of wages.  He said that he was only advised of the determination of 6 December 2011 after he queried the reduction in his income, by which the time for lodging an appeal had expired.  Mr Dabbs stated that he had contacted the respondent a number of times in order to obtain his own personal information in order to make a claim, and was delayed by the process.  He maintained that it has been difficult to manage his injury and deal with his claim for compensation.  He said that if he had been notified of the decision of 6 December 2011 and had been afforded the opportunity to appeal, the process would not have been delayed.       

15. In oral evidence Mr Dabbs told the Tribunal that he had received an avalanche of documents from the respondent and could not remember receiving advice of the determination or an explanation from DVA for the reduction in his pay for the two days in question.  Under cross-examination Mr Dabbs agreed that he received payslips showing a reduction in his income, but he could not explain why he did not seek advice from the Human Resources section of DVA about the reduction or raise the matter with the respondent.

16. Mr Dabbs was shown a record of telephone calls made by him to the respondent on 7 March 2012, 14 February 2013, 6 September 2013 and 11 April 2014 regarding the claim for compensation.  He agreed that the record was probably accurate to the extent that he contacted the respondent on these occasions, but he disagreed that there was discussion about lodging a new claim for compensation or reconsideration of the determination of 6 December 2011.  He agreed further that in September 2013 he knew that he could seek a reconsideration, but he waited until April 2014 to lodge the request.  

17. The Tribunal is satisfied that the respondent sent the determination dated 6 December 2011, together with other relevant documents, to Mr Dabbs and that he received the documents and later contacted the respondent on several occasions to discuss his claim for compensation.  Mr Dabbs is an experienced public servant who has dealt extensively with queries from veterans about documents and administrative requirements of claims under Commonwealth legislation, yet he did nothing about seeking reconsideration of the determination for a number of months, and did not lodge the request until 26 months after the determination.  Similarly Mr Dabbs knew or ought to have known from payslips that his pay had been reduced to take account of the respondent’s decision not to pay him for 30 June 2011 and 1 July 2011, yet he took no steps to make enquiries from DVA or seek an explanation.            

18. For these reasons the Tribunal finds that Mr Dabbs has not shown an acceptable explanation for the delay in seeking reconsideration, and has not shown that it is fair and equitable in the circumstances to extend the time.  This weighs against the grant of an extension of time.

    Whether Mr Dabbs has rested on his rights

19. Mr Dabbs was informed of the determination and his rights to seek review, and was advised to lodge a new claim for compensation, but he took no steps to lodge a request for reconsideration for a considerable time after the time limit had expired, despite having the ability and knowledge to do so.  He lodged the request for reconsideration more than two years after the due date, despite indicating about seven months earlier that he may seek a reconsideration.  The Tribunal is satisfied that for some time he rested on his rights, and this weighs against the grant of an extension of time.

    Prejudice to other parties

20. There would be considerable prejudice to the respondent in terms of investigating events that occurred nearly six years ago.  Although there may be some relevant medical records in existence, the respondent would be required to conduct further inquiries and seek additional reports about Mr Dabbs’s medical condition and his capacity for work at the time, in circumstances where witnesses may no longer be available and memories may have faded.  This weighs against the grant of an extension of time.

    Wider public considerations   

21. The Act requires applications for reconsideration to be lodged within 30 days of the person becoming aware of the reviewable decision, so Parliament desired that applicants seek reconsideration within a relatively short time from the original decision. On the other hand the SRC Act allows for an extension of time. In this case, the Tribunal finds that there is no wider prejudice to the general public in the grant of an extension of time.

    Merits of the substantive application    

22. In the determination dated 6 December 2011 the respondent decided that compensation was not payable for Mr Dabbs’s time off work on 30 June 2011 and 1 July 2011 as a direct result of your claim for hyperacusis sustained on 23 January 2009, and Mr Dabbs was encouraged to lodge a new claim for compensation.  It was submitted that Mr Dabbs would have good prospects of success because the determination was flawed as it referred to a direct result of the original condition, which is not relevant to a decision under s 19 of the SRC Act. However, the words refer to the claim for hyperacusis, rather than the condition itself, so the Tribunal does not accept that the merits of the application are necessarily stronger because of this issue.

23. The basis of the determination was advice from DVA dated 8 July 2011 that liability should not be accepted under the claim because any incapacity related to new events or incidents that may have caused an aggravation of the accepted condition.  DVA suggested that if Mr Dabbs wished the respondent to consider whether liability existed for 30 June 2011 and 1 July 2011 he should lodge a new claim.  The advice referred to the events of 30 June 2011 when Mr Dabbs reported that he was suffering from an anxiety attack after hearing the sound of an alarm of a security door. 

24. Medical reports tendered to the Tribunal do not appear to deal specifically with the incident that occurred on 30 June 2011, or with any direct connection between Mr Dabbs‘s original condition that occurred in January 2009 and the medical issues that have arisen at various times since then.   

25. With the lack of substantial medical evidence, it is difficult to assess the merits of the claim for which Mr Dabbs seeks to obtain an extension of time to seek reconsideration.  However, the basis of the advice from DVA seems reasonable, as the link between the anxiety attack on 30 June 2011 and the original condition that occurred in January 2009 might be difficult to establish.    

26. On the basis of available material, the Tribunal considers that the merits of the substantive application are not sufficient to weigh in favour of the grant of an extension of time.

    Considerations of fairness 

27. The claim was originally accepted and it was submitted that Mr Dabbs’s situation makes his circumstances markedly different to those of other claimants in a similar position.  The Tribunal considers that there are no issues of fairness between Mr Dabbs and other persons in a similar position to seek an extension of time if they do not lodge their application within the prescribed time limits.

    SHOULD THE TRIBUNAL GRANT THE EXTENSION OF TIME?

28. The Tribunal has found that Mr Dabbs has not provided an acceptable explanation for the lengthy delay of 26 months in lodging his application for reconsideration.  He rested on his rights for a considerable time before indicating a desire to seek reconsideration and finally lodging his application. The respondent would suffer significant prejudice if the extension of time is granted.  The merits of the substantive application do not appear to be strong, certainly not strong enough to mitigate against the factors against granting an extension of time.

29. On balance, taking all relevant factors into account, the Tribunal finds that an extension of time to lodge the request for reconsideration is not appropriate.

    DECISION

30. The Tribunal affirms the decision to refuse to grant an extension of time under s 62(3) of the Safety, Rehabilitation and Compensation Act 1988.

    I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member.

     
     
    

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

    Associate

    Dated 20 April 2017

    Date of hearing  21 March 2016

    Counsel for Mr Dabbs  Mr R Ternes

    Solicitors for Mr Dabbs  Angela Sdrinis Legal

Counsel for the respondent 

Solicitors for the respondent

  Mr J Wallace

  Australian Government Solicitor