Hazelwood v Telstra Corporation
[2012] AATA 901
[2012] AATA 901
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2696
Re
Amber Hazelwood
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 19 December 2012 Place Brisbane (heard in Lismore) The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
COMPENSATION - applicant suffering carpel tunnel syndrome – whether injury attributable to workplace – original decision determined respondent not liable – failure to seek reconsideration within time – extension of time to seek reconsideration refused – lengthy delay – unconvincing explanation for delay – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62(3)(b)
CASES
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
REASONS FOR DECISION
Deputy President P E Hack SC
19 December 2012
The applicant, Ms Amber Hazelwood, was formerly employed by the respondent, Telstra Corporation Limited, in a call centre position. She commenced that employment in about March 2007.
Ms Hazelwood says that by July 2008 she “was experiencing serious symptoms of carpal tunnel syndrome including pain in [her] wrists”. She consulted her general practitioner, Dr Michael Lambrou, on 11 July 2008. Dr Lambrou was of the opinion that Ms Hazelwood had bilateral carpal tunnel syndrome related to computer use in her employment. He referred Ms Hazelwood to Dr Geoffrey Boyce, a consultant neurologist. Dr Boyce made the same diagnosis.
On 14 July 2008 Ms Hazelwood lodged a claim with Telstra for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Telstra referred Ms Hazelwood to Dr Roger Parkington, consultant orthopaedic surgeon, for an independent medical examination. Dr Parkington concluded that Ms Hazelwood had bilateral carpal tunnel syndrome but considered that it was constitutional in origin, not caused by her employment.
On the basis of that report, Telstra’s then insurer, Allianz Australia Insurance Limited (Allianz) concluded that Telstra was not liable to pay Ms Hazelwood compensation in respect of the condition. Ms Hazelwood was first advised of the decision in a telephone conversation on 12 August 2008 with Ms Yvonne McIlvride, a case manager employed by Allianz. The terms of that conversation are controversial and are dealt with in greater detail below. It is, however, common ground that in the course of this conversation Ms McIlvride informed Ms Hazelwood that a decision had been made to disallow her claim based on Dr Parkington’s report and that Ms Hazelwood could obtain a copy of that report on request. Later that day Ms Hazelwood sent an e-mail to Ms McIlvride seeking a copy of the report and raising a question about the reimbursement of travel expenses incurred in seeing Dr Parkington.
On the same day Allianz sent a letter to Ms Hazelwood informing her of the decision and the reasons for it. That letter was accompanied by an information sheet which explained Ms Hazelwood's rights if she did not agree with the decision. That document informed Ms Hazelwood of her right to seek a reconsideration of the decision if she did not agree with it, the mechanism and time limit for doing so, the process involved in reconsideration and that she might seek a review in the Tribunal of the decision of the reconsideration officer if dissatisfied with that decision. The letter also advised Ms Hazelwood that she could discuss the matter with Ms Yvonne McIlvride if she had any further queries.
In the result, Ms Hazelwood did not request reconsideration of the 12 August 2008 determination within the period of 30 days specified in s 62(3)(b) of the SRC Act. That request was not made until 10 February 2012 when solicitors acting for Ms Hazelwood requested reconsideration by letter of that date. That letter was treated by Telstra (which, by that stage, was self-insured) as a request for the favourable exercise of the discretion to extend the time within which a request for reconsideration might be made.
Telstra refused that request by letter dated 15 March 2012. That refusal was affirmed on reconsideration on 1 June 2012.
Ms Hazelwood now seeks a review of Telstra's decision to refuse to extend the time within which she may seek reconsideration of the 12 August 2008 determination. She contends that it is appropriate to do so having regard to the apparent merit of her case and the explanations she gives for the very considerable delay in requesting that reconsideration.
For its part, Telstra accepts that there is a discretion to extend the time within which to seek reconsideration and that the refusal, on reconsideration, to do so amounts to a reviewable decision. But it resists the application and seeks affirmation of its decision.
By virtue of s 62(3)(b) of the SRC Act requests for reconsideration of the determination,
… shall… 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.
The discretion to allow further time to request reconsideration is unfettered. The exercise of the discretion is informed by the statutory time limit as well as by the power granted to extend that time limit. The principles that guide the exercise of the discretion are well-known and need not be repeated; it is sufficient for present purposes to say that time will be extended where the justice of the case requires that. For the reasons that follow I do not regard the present case as one where an extension of time is warranted.
The factors that seem to me to warrant particular consideration in the present case are,
(a)the length of the delay;
(b)the explanation proffered for the delay;
(c)any prejudice that might be suffered were an extension to be granted; and
(d)the apparent merit, or lack of merit of the proceedings.
Here, there is a very considerable delay. The 30 day period within which to seek reconsideration expired in about the middle of September 2008. The request was not made until February 2012, a period in excess of three years later.
Ms Hazelwood advances explanations for the delay. I find them unconvincing.
Ms Hazelwood attributes her delay to conversations that she alleges she had with Telstra's agents or employees. The first conversation, she says, was with Ms McIlvride on 12 August 2008. It is, as I have said, common ground that she spoke with Ms McIlvride in the terms already set out. But she says that she was told of her right to seek reconsideration in these terms,
…you can make an application to have your matter reconsidered however there is not much point because you will probably just get the same answer.
That statement, she says, left her “extremely confused and surprised”. She did not take the matter further because she did not know what she could do. Her statement continues,
I was not informed of the process I needed to undertake in order to request a reconsideration. All I was told was that there wasn't much point making the request. I was offered no additional help from Telstra and felt that they did not care about my situation.
She concluded, according to her written statement, that Dr Parkington “would know what he was talking about” and that the carpal tunnel syndrome must be constitutional. And, she says, she could not afford to pay for another medical report. In the course of cross-examination (but not in her written statement) she said that she was concerned about losing her job if she sought reconsideration.
She says that she responded to the situation that she was then in by reducing her work hours.
Between April 2009 and May 2010 Ms Hazelwood took a “career break”. She says that shortly after returning to work with Telstra she again experienced pain from carpal tunnel syndrome. This pain was accompanied by pain to her right shoulder. Encouraged by Dr Lambrou, she decided to make another claim for compensation. Dr Lambrou provided her with a Workcover NSW medical certificate dated 13 July 2010 which described her injuries as “Carpal Tunnel Syndrome and likely Bursitis of the Sub-Deltoid Bursa”, occasioned by “repetitive movements of right shoulder at work”. Ms Hazelwood says that when she brought the certificate to the attention of her team leader, Ms Rhonda Smith, Ms Smith was verbally hostile to her. Ms Smith, she says, made reference to her personnel file and that Ms Hazelwood “did the exact same thing to us two years ago”. Ms Smith, she says, then said that she would lodge the claim and undertake the necessary paperwork but added, sotto voce “but you'll end up losing your job”. This response shocked her and deterred her from lodging the claim.
Ms Hazelwood had a further break from her employment between November 2010 and March 2011. She returned to work on 21 March 2011. On this day, she says, she was bullied and humiliated by her new team leader when she complained of anxiety. The work she was required to perform caused her considerable pain. She went home and decided overnight to resign. She did so the following day.
She first consulted solicitors in late 2011 and consulted her present solicitors in February 2012. At that stage, she says, she learnt what her rights were and the extent of what she asserts was misinformation she had received from her superiors and her case manager. The request for reconsideration was made promptly after those solicitors had been consulted.
Telstra's case puts much of Ms Hazelwood’s evidence in issue. It does not directly contradict the evidence about the conversation claimed to have been had with Ms McIlvride; Telstra was unable to locate her. But a file note has been located of what appears to be a conversation at that time. It reads,
Advised based on report decision being made is to disallow claim as condition is not felt to be related to employment with Telstra. She understood. I informed her of her appeal rights and that she is welcome to a copy of the report.
Despite the absence of evidence from Ms McIlvride I regard it as highly unlikely that Ms Hazelwood was spoken to by Ms McIlvride in the terms she alleges. But it seems to me that it does not assist her even if she had been spoken to in those terms. Contrary to her evidence, she was informed of the processes she needed to undertake to request reconsideration. She was informed of that by the information sheet that accompanied the letter of 12 August 2008. And, coincidentally, she had, a few days earlier, been given another information sheet in connection with her rehabilitation plan that also set out the steps to be taken if she disagreed with decisions about compensation and rehabilitation. Moreover her assertion is contradicted by the evidence of Dr Lambrou with whom she discussed the decision in a consultation on 26 August 2008. His clinical notes (with a spelling error corrected) record that she told him,
Work cover declined cover for CTS [carpal tunnel syndrome]
Will think about pursuing it further
Those remarks reflect that Ms Hazelwood was still considering what steps she ought take and whether she should pursue her claim. To consider pursuing a claim further admits only of knowledge of the capacity to pursue the claim further. Moreover the clinical notes record a number of occasions where Ms Hazelwood discussed the possibility of a compensation claim with Dr Lambrou. He was, and remains, of the view that her condition was caused by her employment and that her claim ought to have been accepted. There are two instances in March 2011 where he suggested that she seek legal advice and he recalled there being other, earlier, occasions when he gave her similar advice.
Whatever Ms Hazelwood was told by Ms McIlvride, I am satisfied that she must have been aware at all times that she was entitled to seek reconsideration of the 12 August 2008 decision. I reject her evidence to the contrary. And I reject her evidence that she did not take the matter further at that time because of fear of losing her job. The inference I draw is that Ms Hazelwood was aware of her right to seek reconsideration but was not satisfied, at that time, that it would achieve anything given the opinion of Dr Parkington. It was likely that which deterred her from seeking reconsideration.
The next episode relied on by Ms Hazelwood occurred on 15 July 2010. Her account of this incident is summarized in paragraph 17 above. Ms Smith, who was Ms Hazelwood’s supervisor in July 2010, denies that Ms Hazelwood ever attempted to lodge a compensation claim through her at that time. She was certainly aware of Ms Hazelwood's condition and aware that attendances on medical practitioners for attention to her wrist were not uncommon. There was such an attendance on 13 July 2010 as appears from notes kept in Ms Hazelwood's attendance calendar. Then, on 15 July 2010, also recorded in the attendance calendar, Ms Hazelwood produced to Ms Smith a medical certificate requiring that she work fewer hours. That certificate, according to Ms Smith, was not accompanied by any claim for compensation. Ms Smith denies that she spoke to Ms Hazelwood in the manner alleged.
Ms Hazelwood’s evidence is that, because of Ms Smith’s demeanour, she “walked away without lodging the medical certificate”. Yet undoubtedly the medical certificate was lodged and her working hours were altered to accord with Dr Lambrou’s request. I have no reason to doubt Ms Smith’s evidence; it is corroborated by contemporaneous notes and accords with common sense. I accept her evidence and reject that of Ms Hazelwood.
Mr Anthony Maguire was acting as Ms Hazelwood's supervisor in March 2011 when she resigned from her employment with Telstra. He made a contemporaneous note of the conversation that he had with her on 22 March 2011 immediately preceding her resignation. His account of the conversation, which was not challenged (he was not required for cross-examination), is that he was told by her that the decision to resign was prompted by Ms Hazelwood's desire to spend time at home with her infant son. Telstra did not call the person said by Ms Hazelwood to have been principally responsible for the bullying on this occasion. While I find Ms Hazelwood’s evidence on the point unconvincing I need not reach a concluded view on the matter because, whatever was said on this occasion, cannot possibly have deterred Ms Hazelwood from lodging a request for reconsideration. If, contrary to the view I have, she was ever in fear of losing her job that fear could no longer be operating at that time – she had then left the job.
Moreover Dr Lambrou was encouraging her to pursue the matter. His clinical notes for 3 March 2011 record,
Discussed re Workcover issues and perhaps legal assistance would be of benefit.
On 15 March 2011 Dr Lambrou’s notes record a further discussion regarding compensation in these terms,
Talk re shoulder and work cover
Worth pursuing legal aspects as this is getting her down
Ms Hazelwood had no justification, even on her own case, for not seeking reconsideration at this time.
As I have said, I find Ms Hazelwood’s explanations for the considerable delay quite unconvincing.
Telstra pointed to no particular prejudice that would flow from an extension of time but relied on the prejudice inherent in a lengthy delay. Reference was made to the familiar passage from the judgement of McHugh J in Brisbane South Regional Health Authority v Taylor[1]where his Honour said:
The discretion to extend time must be exercised in the context of the rationales 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". 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. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
[1] (1996) 186 CLR 541, 551.
Necessarily, the delay has diminished the quality of the evidence available to determine the reconsideration and any proceedings arising from it.
It is neither necessary nor appropriate to attempt to do anything other than gauge the apparent merit of the proposed case. Given that Ms Hazelwood has the benefit of the opinions of Dr Lambrou and Dr Geoffrey Miller, a specialist surgeon, that her condition was attributable it cannot be said that her proposed case is without apparent merit.
But, on balance, I am of the view that an extension of time is not warranted. The delay is considerable and, more importantly is explained, in my view, by Ms Hazelwood having decided to accept the decision made on 12 August 2008. I would affirm the decision under review.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC ........................................................................
Associate
Dated 19 December 2012
Date of hearing 12 December 2012 Counsel for the Applicant Mr L Brazel Solicitors for the Applicant Summerville Laundry Lomax Counsel for the Respondent Mr M Black Solicitors for the Respondent Sparke Helmore
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