Guillemain and Comcare (Compensation)

Case [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:

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AGLC
Guillemain and Comcare (Compensation) [2018] AATA 683
Case
[2018] AATA 683
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Guillemain for an extension of time to lodge an application with the Administrative Appeals Tribunal (AAT) concerning a claim for a left shoulder injury. The dispute arose from Comcare's position that Ms Guillemain had not made a valid claim for this injury under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) and that any such claim was out of time. The decision was made by Senior Member Egon Fice of the AAT.

The primary legal issues before the Tribunal were whether Ms Guillemain had provided sufficient written notice of her left shoulder injury to her employer in accordance with section 53 of the SRC Act, and whether an extension of time should be granted for her to lodge her application, given the significant delay. The Tribunal also considered Comcare's argument that it would suffer prejudice if the claim were allowed to proceed.

Senior Member Fice reasoned that while Ms Guillemain's initial report of the incident and her injuries only explicitly mentioned her right shoulder, subsequent documentation, including an ultrasound report, indicated that her left shoulder was also examined and showed signs of mild bursitis. The Tribunal inferred that Ms Guillemain must have informed her employer of potential damage to her left shoulder, thereby satisfying the notice requirements of section 53, particularly as Comcare did not demonstrate any prejudice arising from the delay in formal notification. The Tribunal also noted that the lodgement of a claim form itself can constitute notice of injury under the SRC Act, and that subsequent claims arising from the same circumstances as an accepted prior claim can satisfy the notice requirements.

The Tribunal granted Ms Guillemain an extension of time to lodge her application until 27 November 2017. This decision was based on the finding that while the delay was extensive, there was an explanation for it, and Ms Guillemain had not simply rested on her rights. The Tribunal also found that there was evidence suggesting a potential link between her left shoulder injury and the work accident, meaning she had prospects of success. Furthermore, the Tribunal determined that Comcare would not suffer prejudice because another application concerning Ms Guillemain's right shoulder injury was already before the Tribunal, creating significant overlap in the issues and evidence. The Tribunal directed that the two proceedings be linked.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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. 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.