De La Torre-Greene and Comcare (Compensation)

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De La Torre-Greene and Comcare (Compensation) [2020] AATA 419 (6 March 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4178

Re:Ruby De La Torre-Greene

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Chris Puplick AM

Date:6 March 2020

Place:Sydney

The decision under review (being the decision by Comcare on 3 October 2017) is affirmed.

..............................[SGD]..........................................

Senior Member Chris Puplick AM

CATCHWORDS

COMCARE – request for extension of time to lodge request for reconsideration – left shoulder injury – appropriate characterisation of appeal – where delay of 600 days – principles in extension of time applications – applicant failed to address the reason for the delay – where Applicant rested on her rights – where prejudice to the Respondent and others –  merits of the application – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 36, 60, 62

CASES

Australian Broadcasting Tribunal v Bond and Anors (1990) 21 ALD 1
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441
Crick and Prosegur Australian Pty Ltd [2016] AATA 313
Dela Rosa and Minister for Immigration and Border Protection [2018] AATA 1262
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Dix v Crimes Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297
Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283
Hanson v Comcare [1996] 41 ALD 639
Hewson v Australian Postal Corporation [1998] 50 ALD 994
Hillman and Australian Postal Corporation [2017] AATA 1411
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jamal v Secretary, Department of Social Services [2018] FCA 513
Kim and Minister for Immigration and Border Protection (2018) AATA 155
Lucic v Nolan (1982) 45 ALR 411
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478
Noonan and Comcare [2019] AATA 515
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Phillips v Australian Girls’ Choir [2001] FMCA 109       
Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Thompson and Comcare (Compensation) [2019] AATA 714
Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528
Zizza v Federal Commissioner of Taxation [1999] FCA 848

Zizza v Commissioner of Taxation [1999] FCA 37

REASONS FOR DECISION

Senior Member Chris Puplick AM

6 March 2020

  1. The determination which the Tribunal has to make in this matter is made all the more difficult by the fact that the parties to the proceedings are somewhat at odds as to exactly what these proceedings entail.

  2. The Applicant (Mrs De La Torre-Greene) invites the Tribunal…

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Details
Case
[2020] AATA 419
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Applicant for an extension of time to lodge a request for reconsideration of a determination made by Comcare. The Applicant had suffered a left shoulder injury, which she claimed was a consequence of compensating for an accepted right wrist injury. Comcare had issued a letter on 29 August 2017, which the Applicant argued constituted a determination regarding her left shoulder condition. The Applicant subsequently lodged a request for reconsideration of this determination on 21 or 22 September 2017, approximately 600 days after the initial letter.

The primary legal issue before the Tribunal was whether the Comcare letter of 29 August 2017 constituted a reviewable "determination" in relation to the Applicant's left shoulder injury, and consequently, whether the Applicant's request for reconsideration was lodged within the statutory time limit. If the letter was not a determination, or if the reconsideration request was out of time, the Tribunal would need to consider the principles governing applications for extensions of time, including the reasons for the delay, the merits of the application, and any prejudice to the respondent.

The Tribunal considered the definition of a "determination" under the *Safety, Rehabilitation and Compensation Act 1991* (Cth) and relevant case law, including *Australian Broadcasting Tribunal v Bond*. It noted that a reviewable decision is generally one that is final or determinative of an issue, rather than a step in a broader reasoning process. The Tribunal found ambiguity in the 29 August 2017 letter, observing that while it was headed "determination of no present liability" and discussed the shoulder claim, it also appeared to be part of a broader assessment of the accepted right wrist injury. The Tribunal also noted that Comcare's referral to Dr Thai sought advice on the compensability of the shoulder claim within the context of managing the accepted claim.

Ultimately, the Tribunal affirmed the decision, indicating that the Applicant had failed to adequately address the significant delay in lodging her reconsideration request and had not demonstrated sufficient grounds for an extension of time. The Applicant's submission that the letter constituted a determination of the shoulder condition within the time limit was not accepted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 60 of the SRC Act provides in its definition that a “determination” means a decision or determination made under certain sections of the Act, relevantly here sections 14, 16 and 19. The SRC Act defines a “decision” as:decision has the same meaning as in the Administrative Appeals Tribunal Act 1975. The Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) defines reference to a “decision” as including, inter alia: “making, suspending, revoking or refusing to make an order or determination” (section 3(a)). The High Court (per Mason CJ) has stated:That answer is that a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.[19][19] Australian Broadcasting Tribunal v Bond and Anors (1990) 21 ALD 1 at [11]. There is undoubtedly a degree of ambiguity in the 29 August 2017 letter. It is open to a variety on interpretations, for example:·it may be expressing some “conclusion reached as a step along the way” in making a final determination regarding the shoulder claim;·it may be merely stating (almost as obiter) part of Dr Thai’s assessment merely by way of completeness in reporting the totality of his findings;·it may be coming to a conclusion on a matter without making an actual decision on it;·it may be deciding the issue, albeit as almost an afterthought. The Tribunal notes the following:(i)the letter is headed “determination of no present liability” and this suggests that the matter under discussion and determination is that related to the Applicant’s current compensation claim, identified by the Applicant herself as “dequervains tenosynovitis (right) caused by typing and writing”. This is the only matter referred to under the heading “Background” which sets the parameters of the letter. The “compensable condition” is described in the singular;(ii)on the other hand Comcare’s referral/instructions to Dr Thai sought his advice to assist with its consideration of the compensability of the shoulder claim although within an overall framework of the management of the accepted claim of de Quervain’s tenosynovitis;(iii)the letter quotes at length from Dr Thai’s report with specific reference to his findings about the left shoulder claim;(iv)the conclusion of the letter refers to there being “no compensable condition” and then goes on to remark that Dr Thai has also made a finding that the shoulder claim is not related to the original injury.

Ratio Decidendi

Legal Principle Established

The letter, under the heading “Conclusion” states:“In determining ongoing liability for your compensable condition, I must be satisfied that you continue to suffer the effects of your compensable condition, and that your symptoms continue to be related to the mechanism of injury, which as identified by you as (sic) typing and writing in your work area.Dr Han Thai has indicated that in his opinion your current symptoms are unrelated to any incident on 9 May 2016, or in the period immediately preceding this, and that you currently have no condition which was caused by work. Furthermore, Dr Han Tai indicates that there is no current compensable condition, either requiring treatment or requiring time off work. Dr Han Thai has also indicated that any left shoulder symptoms ae unrelated to the initial injury, and are in fact age related and due to underlying degeneration.”Reconsideration request The Applicant then applied for a reconsideration of this determination on either 21 or 22 September 2017.[10] In this Reconsideration Request the Applicant wrote:“I wish to request Comcare’s reconsideration for my claim reference number 1137853/3 for work injury that occurred on 9 May 2016 – DE QUERVAIN TENOSYNOVITIS and INTERSECTION SYNDROME Right hand/wrist injury. Refer Comcare letter dated 29 Aug 2017.”[10] The date of 21 September 2017 is given on the front cover of the form (Section 37 Tribunal Documents at [159] whereas the date of 22 September 2017 accompanies the final signature (Ibid at [161]). The Reconsideration letter then further stated:“(3) Consequently my left shoulder pain is linked due to doctor’s restrictions on my right wrist/arm as I have been doing all the work with my left side. I was required to use my left hand to compensate for my damage in my right hand; but this overuse has caused me pain and discomfort in my left shoulder and I got bursitis that requires cortisone injection. Requested by Dr Manohar, the pain management doctor. Now I have a referral from doctor Pallewatta for this intervention.” This is the only specific mention of any shoulder issues in the Reconsideration Request. However, counsel for the Applicant urges upon the Tribunal a construction of the Comcare letter of 29 August 2017 and the Applicant’s Reconsideration Request in the following terms:[11]“…. It is beyond any doubt that a valid determination was made dealing with both the de Quervain’s tenosynovitis and the claimed new left shoulder condition, and the Applicant made a request for reconsideration of the whole of that determination, within the 30 day period.”[11] Applicant’s Submission Relating to Alleged Extension of Time Issue, dated 14 February 2020, Tribunal Evidence A3 at [13]. In other words it is asserted on behalf of the Applicant that:(a)the Comcare letter of 29 August 2017 constituted a determination of the Applicant’s claim for compensation for the left shoulder condition; (b)the Applicant’s Reconsideration Request went further than seeking a reconsideration of any determination related to the de Quervain’s tenosynovitis but included a claim for review of the alleged left shoulder determination; and(c)that claim for reconsideration of the left shoulder condition was made within the statutory time limit imposed by s 62(3) of the SRC Act and hence no issue of the claim being out of time arises.