Guillemain and Comcare (Compensation)

[2018] AATA 683

Guillemain and Comcare (Compensation) [2018] AATA 683 (21 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7058

Re:Josee Guillemain

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Egon Fice, Senior Member

Date:21 March 2018

Place:Melbourne

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, and upon written application by the Applicant dated 27 November 2017, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 27 November 2017.

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

Egon Fice, Senior Member

Procedure  -  extension of time to lodge application for review – the giving of a notice of injury to employer in writing – requirement to make a claim in writing – significant delay – reasons for delay – merits of the application – prejudice to the respondent – extension of time granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s.29
Limitation of Actions Act 1974 (Qld)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss. 53-54, 62 and 65

Cases

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 54

Buhr v Comcare (2007) 45 AAR 270

Comcare v A’Hearn (1993) 45 FCR 441

Comcare v Luck (1999) 29 AAR 403

Comcare v Willems (1996) 70 FCR 244

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 34

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Egon Fice, Senior Member

21 March 2018

1. At the relevant time, Ms Guillemain was employed by the Department of Human Services. On 21 May 2015 she tripped over a bag handle and fell, suffering an injury to her right shoulder and her knees. On or about 3 June 2015 she lodged a claim for workers compensation in accordance with s. 54 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

2. Ms Guillemain sought medical treatment on 31 May 2015 and was referred to a specialist for x-rays and ultrasound. Ms Guillemain had a previous injury to her right shoulder for which she had received a surgical treatment. Ms Guillemain did not make a claim for any injury to her left shoulder even though, for unexplained reasons, an ultrasound of her left shoulder was taken at that time. According to an assessment made by Allianz, who appear to have acted as Comcare’s consultants, the left shoulder ultrasound disclosed: slightly thickened left subacromial bursa suggesting mild bursitis. All tendons are intact. No other lesions seen in the soft tissue.

3. According to Allianz, Ms Guillemain was examined by an orthopaedic surgeon on            26 June 2015 who diagnosed her as suffering from: recurrent right rotator cuff tendon tear, right supraspinatus tendon. The orthopaedic surgeon made no mention of any concerns with Ms Guillemain’s left shoulder. Comcare accepted the claim regarding her right shoulder.

4. In October 2015 Ms Guillemain submitted a request to Comcare to have the secondary condition of left shoulder bursitis assessed as part of her compensable condition.            An ultrasound of her left shoulder was performed on 17 November 2015 which disclosed: full-thickness tear supraspinatus, subscapularis tendinosis and bursitis.  I had before me a report from Dr Mario Johnson dated 29 November 2015 which described her left shoulder condition in the following way:

   With regard to her left shoulder there is an alleged fall at work that could have caused her shoulder bursitis/supraspinatus tear. I am unaware of a circumstance where her right elbow condition could impact her shoulders and cause rotator cuff tears in both shoulders, for further clarification an orthopaedician may provide utmost clarity on the same.

5. It is not clear on the evidence whether the request made in October 2015 was in writing. As will become apparent presently, this was the cause of some concern in respect of this application, which was for an extension of time to lodge a claim for Ms Guillemain’s left shoulder injury.

6. In January 2016 Comcare denied Ms Guillemain’s secondary claim for left shoulder injury on the ground that her injury did not arise out of, or in the course of, her employment.

7. On 9 February 2016 it appears Ms Guillemain sought reconsideration of the claim for her left shoulder injury which was subsequently, on 15 March 2016, supported by new medical evidence.

8. In a letter dated 2 May 2016 Allianz provided the Department of Human Services with an assessment of its investigation and reasons and recommendation which was to refuse liability for Ms Guillemain’s left shoulder claim. Essentially, the reasons for making that decision were that imaging taken in 2015, shortly after the injury, did not disclose the level of injury which later imaging, done in November 2015 and February 2016, disclosed.            In addition, although Dr Johnson stated Ms Guillemain’s left shoulder injury could have been caused by the fall on 21 May 2015, that was not regarded as a clear expression of opinion in respect of the relationship between her new claimed injury and her employment.

9. Although Ms Guillemain must have been aware of the unfavourable reconsideration decision made in May 2016, she did not lodge an application for review by this Tribunal until 27 November 2017. Although s. 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that an application to this Tribunal must be made within 28 days of receiving a reviewable decision, s. 65(4) of the SRC Act expands the time within which an application must be lodged to 60 days. Effectively, Ms Guillemain’s application to this Tribunal has been lodged some 16 months out of time. As is provided for in s. 29(7) of the AAT Act:

   The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

   And further, at (8):

   The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

10. On 27 November 2017 Ms Guillemain also lodged an application for an extension of time for making an application for review of decision with the Tribunal. On 13 December 2017 Comcare’s legal representatives lodged with the Tribunal a notice opposing the application for extension of time. I heard this application on 9 February 2018 and reserved my decision.

    GROUNDS FOR OPPOSING APPLICATION

11. In its notice opposing the application for extension of time, Comcare relied on the following:

    (a)applications commenced outside the prescribed period ought not be entertained; and

    (b)the applicant had not provided a robust explanation for her inability to lodge an application within the prescribed time.

12. However, in the course of the hearing, Mr Andrew Vas, who appeared on behalf of Comcare, pointed out that no application in writing had been made by Ms Guillemain as required by s. 54 of the SRC Act. Relevantly, that section provides:

    (1)   Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.

    (2)   A claim shall be made by giving the relevant authority:

    (a)a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and

    (b)except where the claim is for compensation under section 16 or 17 – a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.

    …

    (5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

13. In addition, in an email sent to the Tribunal dated 12 February 2018 and copied to           Ms Guillemain’s solicitors, Mr Vas also submitted that Comcare was prejudiced by the      16 month delay in Ms Guillemain lodging her application for compensation in respect of her left shoulder injury. Mr Vas made no submissions about the merits of Ms Guillemain’s application.

14. At all relevant times Ms Guillemain was represented by Maurice Blackburn Lawyers. In her application for review by this Tribunal, Ms Guillemain referred to the reviewable decision as having been made on 2 May 2016 and described the decision as:

    Comcare denies liability for the left shoulder injuries under sec 14 of the SRC Act.

15. Clearly, Ms Guillemain’s solicitors treated the letter sent from Allianz to a delegate of the Department of Human Services (recommending affirming the determination dated 20 November 2015 for which reconsideration was lodged on 18 December 2015 under s. 62 of the SRC Act) as a reviewable decision. It appears to me that attached to that recommendation from Allianz was a notice indicating to Ms Guillemain that if she disagreed with what was described as the reviewable decision made under the SRC Act, she could seek review by this Tribunal. It also advised Ms Guillemain that there was a time limit of 60 days from the day the determination was received in which to lodge her application.

16. Prior to lodging an application for review of a reviewable decision, on

    
    

    8 November 2017 Maurice Blackburn Lawyers sent to the Tribunal by email an application for an extension of time for making an application for review. The Tribunal responded on           17 November 2017 informing Maurice Blackburn Lawyers that because an application for review of the reviewable decision had not been lodged, there was no point in lodging the extension of time application. Although the extension of time application requested that time be extended to 8 November 2017, given that an application for review of a reviewable decision had not been lodged by that date, the Tribunal could not deal with the extension of time application. This was subsequently rectified by Maurice Blackburn Lawyers resulting in lodgement on 27 November 2017.

17. In her application for review of a reviewable decision, Ms Guillemain stated the reasons for the application in the following way:

    It is wrong at law and against the weight of medical evidence.

18. Prior to examining matters which must be considered in determining whether an extension of time should be granted, I should deal first with the claim made by Mr Vas that no claim had been made by Ms Guillemain for a left shoulder injury in accordance with the SRC Act.

    OPERATION OF S. 53 AND S. 54 OF THE SRC ACT

19. Section 53 of the SRC Act requires notice of injury to be given to an employer in writing. Relevantly, it provides:

    (1)  This Act does not apply in relation to an injury to an employee unless  notice in writing of the injury is given to the relevant authority:

    (a)as soon as practicable after the employee becomes aware of the injury; or

    (b)if the employee dies without having become so aware or before it is practicable to serve such a notice – as soon as practicable after the employee’s death.

20. On the scant documents which were before me on the hearing of the extension of time application, it is sufficiently clear that Ms Guillemain reported the accident and her injuries on the same day it occurred, 21 May 2015. However, in relation to the injuries she sustained, she said:

    … This caused me to fall and hurt my shoulder and knees… [She] will be seeing her GP as she is experiencing shoulder pain.

21. Ms Guillemain’s reference to her shoulder is a reference to only her right shoulder. Despite that, in her application for an extension of time, Maurice Blackburn Lawyers state:

    Ms Guillemain, fell on her outstretched arms at work. There is no dispute about this incident. Following the incident our client made a claim for injuries to both her right shoulder. Her claim was accepted in July 2015.

22. That statement is, obviously, confusing. It is unclear whether she made a claim for both shoulders or just the right shoulder. However, her claim form clearly refers to the singular and not to both shoulders.

23. In the extension of time application, Maurice Blackburn Lawyers stated that in October 2015 Ms Guillemain made a claim for left shoulder bursitis. It is not clear that the injury to the left shoulder was notified to her employer prior to making the claim. However, nothing appears to turn on that. There was no evidence that Comcare was in any way prejudiced by the failure to give notice. As French J said in Comcare v Luck (1999) 29 AAR 403, at 417:

    In this case the claim itself is headed up with the words “Incorporating Accident and Disease Report”. An attachment to the claim form included a description of the injury sustained. Indeed in this case it contained a history of events dating back to August 1956. Mr Luck, of course, was not, in making his claim, making distinctions between concepts of injury and disease for the purposes of s 4 of the 1988 Act. In my opinion however given the finding by the Tribunal of want of prejudice, the claim form itself could stand as notice of the injury and indeed purport to give notice of injury.

24. Although in her claim form, Ms Guillemain referred only to a shoulder injury, the Allianz report states that at the time of injury, an ultrasound was undertaken of her left shoulder as well as the right, the imaging disclosing slightly thickened left subacromial bursa suggesting mild bursitis. While I did not have an explanation before me regarding why an ultrasound was taken of her left shoulder as well as her right shoulder, it is reasonable to infer that Ms Guillemain must have informed her employer of the possibility of damage to her left shoulder as well as her right shoulder. The Allianz report states that Ms Guillemain attended an independent medical examination with an orthopaedic surgeon on               26 June 2015 who reported her as suffering from recurrent right rotator cuff tendon tear, right supraspinatus tendon.  The surgeon did not make any notes indicating concern with her left shoulder. Again, the reasonable inference to be drawn is that as at June 2015, Ms Guillemain did not have any symptoms suggesting an injury to her left shoulder as a result of the fall. If she had symptoms, no doubt that would have been reported. However, that does not necessarily mean she had not injured her left shoulder in the fall.

25. I have set out the relevant provisions of s. 54 of the SRC Act at [12] above. For the purposes of this application, what is important is set out in subsection (5). It appears that only one claim was lodged by Ms Guillemain following her accident. While that claim set out the detail of how she sustained her injury and the attached medical certificate referred to a right shoulder rotator cuff tear, the question is whether that claim was sufficient to meet the notification provisions in s. 53 and the requirements of s. 54 of the SRC Act such that Comcare was not taken by surprise by the left shoulder injury claimed, apparently orally, some five months after the first claim was lodged.

26. Although I am unable to find any authority which deals precisely with the circumstances in this case, Edmonds J in Buhr v Comcare (2007) 45 AAR 270 comes close. In that case Mr Buhr suffered an injury of extreme anxiety and in 1989, Comcare accepted liability of his psychological condition which was then described as adjustment disorder with features of anxiety and depression. However, in 2004 Mr Buhr suffered from delusional/paranoid disorder. He no longer suffered from adjustment disorder which was his accepted liability. Comcare submitted that the Tribunal was not limited to considering the case within the four corners of the diagnosis that had been previously accepted if it no longer applied. It was entitled to consider the evidence available to it and assess whether or not liability should be found for another mental condition that had emerged in the ongoing progress of the case (at 277). Comcare relied on the decision of the Full Court of the Federal Court of Australia (Heerey, Dowsett and Conti JJ) in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253. Heerey J said, at 255:

    As Conti J points out at [57], the SRC Act allows for progressive and evolving decision-making allowing for the changes in circumstances which are inevitably likely to happen. This is in the interests as much of employees as employers.

    A determination under s 14 is subject to the SRC Act, and in particular to PT II thereof, which provides for such benefits as medical expenses (s 16) and weekly payments (s 19). If an employee obtained a s 14 determination for, say, disease X but later claimed increase medical expenses for disease Y, it would be a strange construction of beneficial legislation to conclude that the employee was “estopped” by the original determination from alleging that he really suffered from Y all along.

27. Regarding the application of s. 54 of the SRC Act, Edmonds J in Buhr’s case said, at 280:

    Comcare further submitted that the Tribunal’s conclusion at [23] is consistent with s 54 of the SRC Act. That is, notwithstanding the applicant’s lack of a formal claim for delusional disorder, the requirements of the section were, on the facts of this case, substantially complied with by him.

    Finally, reference was made to the rationale for ss 53 and 54 of the SRC Act, namely, to prevent prejudice to Comcare by late notification of events that could give rise to a claim. Comcare has long been aware of the general nature of the applicant’s complaints about his work between 31 August 1989 and 26 November 1990. Neither the applicant nor Comcare adduced evidence that Comcare had been prejudiced by a claim being made in the way it was.

    I agree that the Tribunal’s finding at [23] was open on the evidence and that, notwithstanding the lack of a formal claim for delusional disorder, the requirements of s 54 were, on the facts of this case, substantially complied with by the applicant.

28. In my opinion, the same rationale should be applied in Ms Guillemain’s case. That is because, despite her claim referring only to her right shoulder, at the time of her medical examination shortly after the claimed injury, an ultrasound was undertaken of the left shoulder as well as the right shoulder. At that point, Comcare must have been aware of the possibility of injury to her left shoulder as well as her right shoulder. However, it seems that Ms Guillemain’s focus was on her right shoulder because it was the symptoms from that injury which caused her incapacity for her employment. Her left shoulder did not seem to trouble her at that time.

29. Subsequently, in October 2015 when she began to experience symptoms in her left shoulder, Ms Guillemain, according to the Allianz report, submitted a request to Comcare to have what she described as the secondary condition of left shoulder bursitis assessed as part of her compensable condition which related to her right shoulder. That resulted in her having an ultrasound taken of her left shoulder on 17 November 2015 which disclosed significant damage to that shoulder. Significantly, Comcare did not ask Ms Guillemain to lodge a fresh claim for that injury. In fact it determined the so-called secondary claim in January 2016 stating that it did not arise out of or in the course of her employment. There was no suggestion by Comcare that it was prejudiced or taken by surprise by her request for compensation for her left shoulder injury. It plainly treated it as having had notice of that possible injury and included it in her claim dated 3 June 2015.

30. Furthermore, following denial of compensation for her left shoulder, Ms Guillemain sought reconsideration of that decision, supported by additional medical evidence lodged on         7 February 2016. Having taken into account the medical evidence, the Allianz report states:

    All the medical evidence supports that Ms Guillemain suffers from an injury as defined in the SRC Act, namely left shoulder bursitis and subsequent supraspinatus tear.

1. Despite having made the above statement regarding all the medical evidence, the Allianz report then recommends that compensation be refused for Ms Guillemain’s left shoulder injury. The word injury is a defined term in the SRC Act and, broadly, it means a physical or mental injury arising out of, or in the course of, the employee’s employment. It follows, I should think, that where Allianz claims that Ms Guillemain suffered an injury as defined in the SRC Act, it must have been an injury which arose out of, or in the course of, her employment. Yet, the Allianz report effectively concludes that it did not do so. Nevertheless, after Ms Guillemain provided additional imaging results by way of an MRI done on 7 February 2016, which she wanted considered as part of the reconsideration process, Allianz recommended compensation not be paid.

2. Therefore, regardless of whether Ms Guillemain’s claim lodged with her employer, the Department of Human Services, was adequate notice of an injury to her left shoulder, the way in which it was dealt with by Comcare and Allianz makes it clear that no objection was raised by either of those parties at that time. Therefore Ms Guillemain was justified in forming the view that she had made a valid claim in respect of her left shoulder. Given the way in which the insurer has responded to her compensation claim for the left shoulder, it certainly does not fall to Comcare now to claim that a valid claim has not been made. I find that it has.

   GROUNDS FOR THE GRANT OF AN EXTENSION OF TIME

3. McHugh J in the High Court of Australia case Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 explained that for nearly 400 years the policy of the law has been to fix definite time limits for prosecuting civil claims. While an applicant for an extension of time may satisfy conditions for the exercise of discretion, nevertheless, the applicant bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.

4. After explaining the rationale behind limitation periods set out in statutes, McHugh J said, at 553-554:

   In enacting limitation periods, legislatures have regard to all these rationales.  A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society.  It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.…  A limitation provision is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.…  The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.  Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

5. Although the principles and bases upon which the discretion should be exercised are drawn from civil cases heard by the Courts, those principles apply equally to the Tribunal which is required to act judicially.

6. In further written submissions received by the Tribunal in response to unsolicited further submissions made by Mr Vas on behalf of Comcare, which I deal with below, Mr Carey of counsel, who appeared on behalf of Ms Guillemain, submitted that caution should be exercised in applying Taylor’s case to proceedings under the SRC Act. He referred to the following statement made by the Full Court of the Federal Court of Australia (Northrup, Wilcox and RD Nicholson JJ) in Comcare v Willems (1996) 70 FCR 244 at 252:

   In argument for Comcare on this appeal the Court was taken to the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. That was a decision relating to the limitation of the personal injury action and the exercise of the discretion to grant extension of time arising under s 31(2) of the Limitation of Actions Act 1974 (Qld). That is a very different statutory regime to the beneficial legislation in which s 62 appears. Taylor raises issues about the rationale of limitation periods (see especially the reasons for judgement of McHugh J), but those considerations are not germane to s 62(3).

7. With respect to Mr Carey, Willems’ case can be distinguished from the matter before me which concerns a statutory limitation imposed by s. 29(2) of the AAT Act as modified by

   
   

   s. 65(4) of the SRC Act. The question before the Full Court was a very different one. As the Court explained, at 249:

   The question before the primary judge was whether the Tribunal had been correct to conclude that in considering the question of extension of time to lodge a request for reconsideration it should consider only events up to the time of the lodging of the request for reconsideration.

8. Section 62 of the SRC Act deals with a determining authority making a reconsidered determination of the primary decision. It has nothing to do with the statutory limitation period imposed on an applicant to the Tribunal by the AAT Act. In fact, given that Taylor’s case was concerned specifically with a statutory limitation in the Limitation of Actions Act 1974 (Qld), that is not different to the limitations imposed by s. 29(2) of the AAT Act as modified. The different nature of the claim in Taylor’s case, that is a common law claim rather than a statutory claim, does not alter the fact that the limitation is imposed not by the SRC Act, but rather by the AAT Act. In fact, the SRC Act, which expands the limitation period from 28 days to 60 days, plainly does so because of its intended beneficial nature.

9. There are two cases which are generally followed by the Tribunal when considering whether an extension of time should be granted.  The first is the Federal Court of Australia decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments) and the second, a Full Court of the Federal Court of Australia (Black CJ, Gray and Burchett JJ) decision in Comcare v  A’Hearn (1993) 45 FCR 441. The relevant passages in Hunter Valley Developments are found at pages 348-349 where his Honour said:

   1.…  Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do.  The “prescribed period” of twenty-eight days is not to be ignored (Ralkon Agricultural Co.  Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time….

   2.  Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.  A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision… and a case where the decision-maker was allowed to believe that the matter was finally concluded… The reasons for this distinction are not only the “need for finality in disputes” (see Lucic at 410) but also the “fading from memory” problem referred to in Wedesweiller v.  Cole (1983) 47 A.L.R. 528.

   3.  Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension…

   4.  However, the mere absence of prejudice is not enough to justify the grant of an extension:…

   5.  The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted,…

   6.  Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion:…

10. A’Hearn was initially heard in the Tribunal and subsequently went on appeal from a single judge of the Federal Court to the Full Court. The Tribunal refused to grant an extension of time on the basis that there was a total absence of any acceptable explanation for the delay. The Full Court said, at 444:

    We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given.  Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition:…

11. Those factors which are relevant for consideration in Ms Guillemain’s case are those to which I have referred above at [39].

    Delay

12. There cannot be any question that there has been a significant delay in bringing an application to this Tribunal for review of the reviewable decision made on 2 May 2016. Furthermore, time limits should not be treated as arbitrary cut-off points. As McHugh J said in the High Court of Australia case Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 551:

    The discretion to extend time must be exercised in the context of the rationale is for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. (21) Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists.

    His Honour went on to say, at 553:

    In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgement that the welfare of society is best served by causes of action being litigated with in the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.

13. I am also mindful that an explanation for the delay is not a pre-requisite for the exercise of discretion in extending time. Nevertheless, it is a factor which must be taken into account.

14. In its objection to the grant of an extension of time, Comcare said that a robust explanation for failure to lodge within the time limit had not been provided. There is nothing in any of the cases which have dealt with the extension of time in the courts where it is so much as suggested that the explanation must be robust. I reject that submission.

15. In her reasons for application, Ms Guillemain’s solicitors said that Ms Guillemain underwent surgery in February 2016 following which was a period of rehabilitation. At the time the reviewable decision was made on 2 May 2016, Ms Guillemain was not focused on pursuing her second claim but rather on her recovery. In addition, Ms Guillemain later required surgery for her left shoulder and she was in dispute with Comcare following a determination to cease liability for her right shoulder on the grounds that her incapacity from that injury had resolved. As I understood that statement, there is an application before the Tribunal in respect of the cease liability determination.

16. It is unfortunate that I did not have a statement from Ms Guillemain setting out reasons for why her application regarding Comcare’s refusal to accept liability for her left shoulder injury was not made within the 60 days following that determination. The documents before me seem to indicate she did not obtain legal representation until she received a cease effects decision from Comcare. If she was, then I would have expected her lawyers to have advised her of her rights at a much earlier date. If she was not, then I accept that she may have been preoccupied with recovery from her right shoulder injury and the subsequent decision made by Comcare to cease liability for that injury. Either way, while the delay is unfortunate, it probably resulted from either her lawyers omitting to give her adequate advice or her preoccupation with her right shoulder injury. While regrettable, it is not, on its own, a reason to refuse the extension of time.

    Merits of the application

17. In assessing the merits of Ms Guillemain’s application for an extension of time, it is not my role to treat the enquiry as a hearing of the substantive matter. In order for Ms Guillemain to succeed on this application, I must be satisfied that there are facts and circumstances which, if established at the substantive hearing, would provide a basis for success on the substantive application, or, that there are points of law raised which if sustained would lead to that conclusion.

18. The evidence in this case at present is that following the fall experienced by
    Ms Guillemain at her place of work on 21 May 2015, she had ultrasound imaging taken of both shoulders. The ultrasound of the right shoulder disclosed significant damage while the left shoulder disclosed mild bursitis only with all tendons being intact and no other lesions seen in the soft tissue. Nevertheless, within five months of that imaging having been done, Ms Guillemain had difficulty with her left shoulder bursitis and in November 2015 had an ultrasound image taken of her left shoulder. That ultrasound disclosed significant left shoulder damage. There was no evidence before me of anything happening between the first injury and the November 2015 ultrasound.

19. An MRI taken on 7 February 2016 confirmed the injury disclosed by the ultrasound. In November 2015, Dr Johnson, who was her treating practitioner, stated that Ms Guillemain’s left shoulder injury could have been caused by the fall on 21 May 2015. On the other hand, Comcare argued that because the first ultrasound taken in June 2015 did not disclose the level of injuries subsequently disclosed in November 2015 and February 2016, the injury to her left shoulder could not have occurred from the fall she suffered in May 2015. Plainly, without further investigation and evidence, it is not possible to assess with any degree of accuracy what the outcome might be.

20. However, that is not my role at this point in time. It cannot be argued that there is no evidence which supports Ms Guillemain’s claim regarding her left shoulder injury. While there plainly remain significant questions about the cause of the subsequent problems
    Ms Guillemain has experienced with her left shoulder, it cannot be said that she does not have any prospects of success. Therefore, it seems to me that the correct conclusion in this case is that Ms Guillemain’s claim does have some prospects of success if the evidence of Dr Johnson is accepted, whether or not it is supported by further evidence.

    Prejudice

21. In her application for an extension of time, Ms Guillemain’s lawyers submitted that Comcare could not be said to have been prejudiced by the delay as Comcare had          Ms Guillemain examined shortly after the accident. There was no issue with unavailability of witnesses or documents. Mr Vas did not raise prejudice at that time. However, the Tribunal received an email from Mr Vas on 12 February 2018 stating that Comcare wish to clarify its submissions regarding the matter of prejudice. With respect, that was not raised by Comcare at the hearing. These were new submissions. Nevertheless, I shall have regard to them despite the fact that Ms May, a solicitor engaged by Maurice Blackburn Lawyers, objected to my receipt of that email on the ground that she claimed it was an ex parte communication despite the fact that it had been copied to her. With respect to Ms May, it was plainly not an ex parte communication given that it was given to Maurice Blackburn Lawyers. In any event, I left open the opportunity for her to respond. In fact this issue was responded to by Mr Carey on behalf of Ms Guillemain in an email received by the tribunal on 15 February 2018.

22. The points raised by Mr Vas were as follows:

    (a)the long delay will result in witnesses having impaired memory about the circumstances of the fall which gave rise to the injury;

    (b)if Comcare is found to be liable to Ms Guillemain, it may be prejudiced as a result of being unable to provide her with prompt compensation and rehabilitation thus resulting in a higher amount of compensation and a more entrenched injury that would have existed had Comcare been engaged promptly; and

    (c)Comcare suffers prejudice in a general sense being called upon to appear as a party to a review which it had good reason to believe had concluded.

23. Regarding witnesses’ memories, the incident itself was somewhat unremarkable and the detail of it was provided to Comcare on the day that it occurred. There was a witness named in Ms Guillemain’s application form and a telephone number provided. I am uncertain as to whether the witness provided a statement although that may well have happened before Comcare accepted liability. Comcare also had Ms Guillemain examined and ultrasound imaging taken. I have no doubt medical reports were prepared and provided to Comcare, although I have not seen those. In those circumstances, I cannot see any prejudice arising to Comcare on this ground.

24. I had no evidence before me regarding whether the delay will inevitably result in an extended rehabilitation period for Ms Guillemain. In fact there is some doubt about that contention as in the reasons for application for an extension of time, Maurice Blackburn Lawyers stated that Ms Guillemain later required surgery for her left shoulder. While not clearly expressed, that may be understood as having undergone surgery for her left shoulder but not having been compensated for the expense of that medical treatment.        I did not have any evidence to the contrary. Therefore, I do not consider that this element of the prejudice claim carries much weight.

25. As for the finality issue and the right of Comcare to consider the matter concluded, the issue regarding her right shoulder has not yet concluded. Mr Carey explained that an application had been made on behalf of Ms Guillemain as a consequence of Comcare determining to cease liability for any further treatment to her right shoulder. In addition,    Mr Carey requested that, if an extension of time were granted, this matter should be linked to the application relating to her right shoulder and that the evidence in that proceeding be permitted to be used in the application regarding her left shoulder. In my opinion, the course suggested by Mr Carey is an appropriate one in order to limit any prejudice which may be suffered by Comcare as result of the substantial delay in bringing this application to the Tribunal.

    CONCLUSION

26. Given the circumstances of this case which I have outlined above in some detail, I find that the preferable decision is that the time for lodgement of an application to this Tribunal be extended to 27 November 2017 in accordance with s. 29(7) of the AAT Act.

1. That is because I have found that while the delay in lodging an application has been extensive, there is an explanation for that delay which indicates that Ms Guillemain did not rest on her rights. As for the merits of her claim, while there was scant evidence before me about her prospects, there was evidence indicating that her left shoulder injury could be related to the accident which caused her right shoulder injury. It cannot be said she has no prospects of success. Although Comcare argued that it would suffer prejudice if that claim were to proceed at this time, I have found that because there is another application in this Tribunal regarding her right shoulder injury and Comcare’s decision to cease liability in respect of that injury, there is considerable overlap between the issues which will be before the Tribunal should this substantive application be allowed to proceed. I find that Comcare will not suffer the prejudice it claims.

2. Finally, in the belated claim made by Comcare that Ms Guillemain failed to comply with
   s. 54 of the SRC Act, I have found that claim to have no merit. Given the beneficial nature of the legislation dealing with compensation for work injuries, the Federal Court of Australia has clearly indicated that notice of an injury may be given by the lodgement of the claim. Furthermore, it has also noted that where further claims are made subsequent to an initial injury, but where those claims have arisen out of the same set of circumstances and a prior claim was made which had been accepted by the insurer, that was adequate to satisfy s. 54 of the SRC Act.

3. I direct that this matter be linked to the proceeding already before the Tribunal and that evidence in that proceeding be allowed in evidence in this matter.

I certify that the preceding 59 (fifty nine) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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

Associate

Dated: 21 March 2018

Date of interlocutory hearing:	9 February 2018
Counsel for the Applicant:	Mr M. Carey
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Solicitor for the Respondent:	Mr A. Vas