Gratton and Comcare

[2001] AATA 161

DECISION AND REASONS FOR DECISION [2001] AATA 161

ADMINISTRATIVE APPEALS TRIBUNAL)
  N° V01/16
GENERAL  ADMINISTRATIVE  DIVISION)
  Re:         PETER GEOFFREY GRATTON

Applicant

And:       COMCARE

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member

Date:2 March 2001

Place:            Melbourne

Decision:As the Tribunal does not have jurisdiction to hear this application the matter shall be removed from the list of matters for hearing before the Tribunal.

(sgd) H.E. Hallowes
  Senior Member
COMPENSATION — pes planus, Meuller Stage II tibialis posterior dysfunction/tendonitis — claim for permanent impairment — whether reviewable decision — whether time should be extended to lodge the application for review
Administrative Appeals Tribunal Act 1975 s.29(7)
Safety, Rehabilitation and Compensation Act 1988 ss.24, 27, 60(1), 62(3), (4), (5), 65
Compensation (Commonwealth Government Employees) Act 1971 s.39

REASONS FOR DECISION

2 March 2001  Mrs H.E. Hallowes, Senior Member

1. On 9 January 2001 the applicant lodged an application with the Tribunal for review of a decision, which he described as being made by "Military Comp Melb" on 5 February 1998.   He advised, by covering letter dated 5 January 2001, that he wished the decision to be reviewed as ". . . the army caused my injury and I still am suffering and my impairment is permanent and the degree of the impairment is around 30% or more.".   The applicant attached a copy of a letter dated 5 February 1998 from a delegate of the respondent  who, having considered a claim by the applicant under the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"), sent the following advice to the applicant care of his then solicitors:

   I refer to your application for a lump sum payment for permanent impairment for an aggravation of a pre-existing non symptomatic condition of flat feet causing pes planus (left foot worse that [sic] right foot) with corns and callouses on the soles of both feet, with aching feet, brought on by prolonged marching, PT and running.
   For you to be eligible for such a payment, I need evidence that:

• you suffer an impairment as a result of an injury,

• all reasonable rehabilitative treatment has been undertaken,

• the impairment is permanent (i.e. likely to continue indefinitely); and,

• the degree of whole person impairment has stabilised at 10% or more.

  The reconsideration decision dated 13 January 1998 states that the available evidence indicates that you are "no longer suffering from the service related injury".   The reconsiderations officer has therefore determined that you do not suffer an impairment as a result of your accepted condition.
  I have determined that no payment can be made under Sections 24 and 27 of the Act. I have enclosed copies of the documents used to come to this decision. [existing emphasis]  

1. The applicant also provided the Tribunal with a letter he had received from his solicitors dated 16 February 1998, which advised:

   We refer to your claim and enclose for your attention a copy of a letter from Defence dated 5 February, 1998.
   Accordingly, we advise we have once againg [sic] written to Defence requesting an assissment [sic] for you [sic] lump sum.  

2. The applicant also asked the Tribunal to extend the time within which he could lodge his application for review under subsection 29(7) of the Administrative Appeals Tribunal Act 1975, as modified by section 65 of the SRC Act. The time within which to lodge an application for review of a reviewable decision is 60 days. "Reviewable decision" is defined in subsection 60(1) of the SRC Act to mean, in the circumstances of this application, a decision under section 62. Section 62 provides, so far as relevant, that, if a delegate has made a determination, the claimant may ask for that determination to be reconsidered and

   62(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.   

   62(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.

   62(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.   

It is only a decision affirming or revoking the determination or varying the determination which this Tribunal can review.

1. On 10 January 2001 a deputy registrar of the Tribunal wrote to the respondent advising that an application for review of a decision and an application for an extension of time had been lodged, and seeking advice as to whether the application for extension of time was opposed.   By letter dated 24 January 2001, Mr P. Ontong, acting director, Military Compensation and Rehabilitation Service, Department of Veterans' Affairs ("the department") advised that the application for time to be extended was opposed for the following reasons:

   1.In February 1998, the Applicant applied to the Administrative Appeals Tribunal ("the Tribunal") for a review of the decision dated 13 January 1998 (the subject of the current appeal), only to withdraw that application shortly afterwards.   He has not provided an acceptable explanation of why he did not lodge a further appeal in the three years following the original withdrawal.   The Applicant's statement that "this is the first time I have had all my paper-work together" is not credible.  He was legally represented at the time of his earlier appeal, and received legal advice in relation to the merits of his claim at that time.   Therefore, the Applicant has not overcome the prima facie rule that proceedings should not be commenced outside the prescribed time.

   2.The Applicant's withdrawal of his earlier application, three years ago, does not indicate that decision of 13 January 1998 was not to be regarded as final.

   3.The Department is prejudiced by the delay in lodging the further appeal.   There was a significant delay between the time that the Applicant suffered his injury (1973) and the time at which his claim for compensation was considered (1993).   The Department has been prejudiced by this delay in not being in a position to properly investigate the circumstances of the injury and assess whether the Applicant has a valid claim.   This prejudice has been exacerbated by the further delay of three years since the decision of 13 January 1998.

   4.The merits of the Applicant's case do not justify an extension of time.   The available evidence indicates that he suffered a temporary aggravation of his pre-existing flat feet condition, the effects of which would have ceased in 1973.   There is no ongoing liability and certainly no liability for permanent impairment.   The Applicant's withdrawal of his previous appeal (at a time when he was legally represented) appears to confirm the limited merits of his case.

   5.There is no public interest in allowing an extension of time in these circumstances.  

2. When the matter came on for hearing the applicant appeared in person. Following contact by the Tribunal with Mr Ontong the night before the hearing, he advised that he wished to appear by telephone to represent the respondent.   However, on the morning of the hearing the Tribunal was advised that the respondent was now to be represented by Mr S. Marris, assistant director, Reconsideration and Appeals of the Military Compensation Rehabilitation Section, the department.   The applicant provided the Tribunal with medical information from the Ballarat Health Service, including medical imaging which discloses loss of articular cartilage of both left and right talo-navicular joints in keeping with early degenerative arthritis.  

3. The applicant outlined the cause of his delay in lodging an application with this Tribunal.   His solicitor had withdrawn his services and the applicant understood that he would need legal representation to appear before the Tribunal.   He spent sometime, unsuccessfully, trying to obtain his records from the solicitor and in attempting to obtain medical records from the department.   He had however been made aware of the decision outlined in the letter dated 5 February 1998 (see paragraph 1 above) immediately after it was made.   It was his contention that he had no problems with his feet on entry into Army service, but that on discharge, on 29 June 1973, he was suffering severe symptomatic pes planus left foot with corns and callouses on the soles of both feet.   On 5 July 1973 it was recorded that his feet were very flat and that he was totally unfit for military training.   He advised the Tribunal that he was discharged medically unfit.

4. The applicant also explained the delay in lodging his application for review by saying that he had had problems in his personal life and that he had moved address.   His solicitor had told him that it was "not worth going on" and suggested that he withdraw his application.   The applicant said that he did not know what to do but the issue has been playing on his mind ever since.

5. Having considered the material before it, the Tribunal is satisfied that there is no reviewable decision before it which would give it jurisdiction to determine the merits of the applicant's application in light of subsections 62(3), (4) and (5) of the SRC Act (see paragraph 3 above). It appears from the material before the Tribunal that liability for the applicant's condition was accepted by the respondent for a closed period. A claim was then made by his solicitors on his behalf for a lump sum payment under section 39 of the Compensation (Commonwealth Government Employees) Act 1971 for permanent impairment. A determination was made on 5 February 1998 under sections 24 and 27 of the SRC Act rejecting the applicant's claim. It appears from the solicitor's letter to the applicant dated 16 February 1998, that a reconsideration of the determination by the respondent was requested. Whether or not the applicant withdrew an application for review by this Tribunal with respect to the earlier reviewable decision accepting liability for a closed period, the Tribunal has no knowledge as to whether the solicitor did in fact request reconsideration of the determination made with respect to permanent impairment. That is a matter the applicant could pursue with the respondent. Although now a long period out of time, the only other course of action for the applicant is to again seek internal review of the determination made on 5 February 1998 if the determining authority is prepared to extend the time or, if the applicant thinks that he has additional evidence which would persuade the respondent that he has suffered a permanent impairment under the SRC Act, he could lodge a further claim. The respondent may contend however that that issue has already been determined. The Tribunal cannot make a decision on the merits unless there is a "reviewable decision" before it.

6. The Tribunal will direct that this matter be removed from the list of matters for hearing before the Tribunal as it does not have jurisdiction.

   I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of 
   Mrs H.E. Hallowes, Senior Member
   (sgd)       Catherine Thomas
                 Personal Assistant

   Date of Hearing:  22.02.01
   Date of Decision:  02.03.01
   Solicitor for the Applicant:           NIL — IN PERSON
   Solicitor for the Respondent:       NIL — Mr S. Marris, Assistant Director,
     Reconsideration and Appeals of the Military
     Compensation Rehabilitation Section