Glaister and Comcare

[2008] AATA 1137

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1137

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6215

GENERAL ADMINISTRATIVE DIVISION		)
Re		LOIS GLAISTER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr P McDermott RFD, Senior Member

Date19 December 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd]..............................

Senior Member

CATCHWORDS

COMPENSATION – Application for extension of time – Whether acceptable explanation for delay – Prejudice – Decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305

Comcare v A’Hearn (1993) 45 FCR 441

Duong v Australian Postal Corporation [2005] FCA 991; (3005) 41 AAR 228

REASONS FOR DECISION

19 December 2008 Dr P McDermott RFD, Senior Member   

INTRODUCTION

1.      Ms Glaister has sought the review of a decision by Comcare to decline her request for an extension of time in which to seek a reconsideration of a determination which was made on 24 July 1995.  On that date, the determination provided that at that time she was no longer entitled to payments of compensation for injuries she had suffered as an employee of the Commonwealth.

BACKGROUND

2.      In August 1992, Ms Glaister commenced employment with the Australian Securities Commission.  In November 1993, she submitted a claim for workplace stress.  On 20 December 1993, she was certified as being incapacitated for work.  During the period of incapacity she continued to receive treatment from Dr Tracey (her general practitioner), Ms Knox (a psychologist) as well as Dr Yeomans (a psychiatrist).  

3.      On 13 July 1995, the Territory Manager of Comcare advised Ms Glaister that it intended to cease entitlements for the accepted condition on the ground that her psychological problems were not attributable to her employment.  In that notice Ms Glaister was advised by the Territory Manager that unless “you are able to present me with evidence to refute this opinion by 21 July 1995, I will be acting to cease liability on your claim from 24 July 1995”.  Ms Glaister did not respond to that notice.  Indeed, at the hearing of this application, I remarked that it would have been difficult for Ms Glaister to obtain such evidence in that short time period.

4.      On 13 September 1995, two workers compensation medical certificates were provided to Comcare.  On 20 September 1995, a determination was issued which denied liability on the basis that the work related effects of the accepted condition had then ceased.

5. On 26 June 2007, Ms Glaister wrote to Comcare to seek to have her file reopened. On 12 July 2007, Ms Glaister formally requested a reconsideration of the determination dated 25 July 1995. By a decision dated 5 November 2007, the delegate did not accept this request for reconsideration on the basis that it was not requested within 30 days or an allowable period for the purposes of s 62(3) of the Safety, Rehabilitation and Compensation Act 1988.

LEGISLATION

6. Section 62(3) of the Safety, Rehabilitation and Compensation Act 1988 provides that a request for a reconsideration of a determination is to be made within 30 days of a person receiving notice of the determination "or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows."

7.      In Hunter Valley Developments Pty Ltd v Cohen[1], Wilcox J discussed the relevant principles that have to be considered in such a case.  In Duong v Australian Postal Corporation[2], those principles are set out in the judgment of Edmonds J.  I appreciate that those principles provide guidance in setting out the considerations which apply in such a case.  The actual legislation that I have to administer contains no criteria for me to consider.

[1] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J.

[2] Duong v Australian Postal Corporation [2005] FCA 991 per Edmonds J at [17].

CONSIDERATION

8.      The request of Ms Glaister was substantially out of time.  In considering this application I have initially turned my attention to whether Ms Glaister has put forward an explanation for the substantial delay in her making her application for reconsideration.

9.      Ms Glaister in evidence before me has stated that she has consulted two solicitors: the tenor of her evidence was that she was seeking to have them take on her case on a speculative basis.  She has not found a solicitor to take on her case.  I appreciate that delay by solicitors may in some cases explain the delay in seeking the reconsideration of a determination[3].  However, Ms Glaister stated that she has destroyed all documents relating to her contacts with solicitors. 

[3] Comcare v A’Hearn (1993) 45 FCR 441.

10.     I have also had regard to the clinical notes of Dr Tracey which were admitted in evidence: exhibit E.  It is apparent from those notes that in 1995, Ms Glaister was aware of her right to “appeal” against the decision of Comcare.  The relevant entry on 31 July 1995 was made after Comcare made the determination of 24 July 1995.  I also mention that the clinical notes of Dr Tracey disclose that Ms Glaister did not consult Dr Tracey after October 1995.

11.     I am not satisfied that Ms Glaister has put forward an explanation for the substantial delay in seeking reconsideration of the determination of 24 July 1995.

12.     Comcare have submitted that they would be prejudiced should I extend the time for requesting a reconsideration.  Comcare have put forward as evidence of prejudice the fact that the clinical notes of Ms Knox have been destroyed and that the treating notes of Dr Yeomans, who is now deceased, are unavailable.  If I was to grant the application of Ms Glaister, I am conscious that relevant contemporaneous medical evidence would be unavailable.

13.     After Comcare notified Ms Glaister of the determination of 24 July 1995, Ms Glaister did not advise Comcare that she did not accept that determination.  It was only on 26 June 2007 that Ms Glaister sought the reopening of her file.  In these circumstances, Comcare was entitled to make the assumption that Ms Glaister had accepted its determination.  This is not a case where Comcare had even received a telephone call from Ms Glaister in which she stated that she contested the determination.  Ms Glaister has given no indication to Comcare in the years which have followed the determination that she did not accept the determination.

14.     I should direct my attention to the merits of the substantial application.  One matter that has concerned me is that there is no material before me concerning the present state of health of Ms Glaister let alone any evidence that she is presently being treated for a condition.  Perhaps more importantly, there is also no evidence (such as a medico-legal report) to contradict the report of Dr McLaren who in his capacity as a consultant psychiatrist examined Ms Glaister on three occasions.  Dr McLaren opined in 1995 that “there is nothing this lady has said during her three interviews which would indicate that her present symptoms are a direct or indirect result of her work at ASC” [T38].  I accept the submission of Mr Dube, who appeared for Comcare, that Ms Glaister has not presented a case on the merits.

15.     I am conscious that if I were to grant the application of Ms Glaister, I would necessarily require Comcare to expend funds in investigating this claim.  I do not consider that it would be fair in these circumstances to require Comcare to undertake such expense.

16.     I am not satisfied there are circumstances which would warrant me in granting an extension of time in which to request a reconsideration of the determination of 24 July 1995.

DECISION

17.     I affirm the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

Signed:.........[Sgd].....................................................................
              Bernadette Rogers, District Registrar

Date/s of Hearing  14 November 2008
Date of Decision  19 December 2008
The Applicant was self represented
Counsel for the Respondent     Mr B Dube
Solicitor for the Respondent     Mr M Hawker, Sparke Helmore Lawyers