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.
........................................................................
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] AATA 901
Decision Date

CaseChat Overview and Summary

Ms Amber Hazelwood sought compensation from Telstra Corporation Limited for bilateral carpal tunnel syndrome she claimed to have developed while working in a call centre position for the respondent. The respondent, on the basis of a medical report, concluded that the condition was not related to employment and denied the claim. Hazelwood did not seek reconsideration of the decision within the statutory time limit, instead lodging a request for reconsideration over three years later. The respondent refused to extend the time for reconsideration and the refusal was affirmed on reconsideration. Hazelwood sought a review of that decision in the Administrative Appeals Tribunal. The central issue for the Tribunal was whether the considerable delay in lodging the request for reconsideration warranted an extension of time.

The Tribunal found that the delay was considerable and that Hazelwood's explanations for the delay were unconvincing. Hazelwood claimed that she had been misled about her rights to reconsideration and that she was fearful of losing her job if she pursued the matter further. However, the Tribunal found that Hazelwood had been informed of her rights to reconsideration and that her fear of losing her job could not have been a deterrent at the time she lodged the request for reconsideration, given that she had already resigned. The Tribunal also rejected Hazelwood's claim that she had been bullied by her supervisors, finding their evidence more credible. The Tribunal concluded that the delay was unjustified and that an extension of time was not warranted. The Tribunal affirmed the decision of the respondent not to extend the time for reconsideration.

Orders