Helen Matthews and Commonwealth Securities Limited
[2013] AATA 726
[2013] AATA 726
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0529
Re
Helen Matthews
APPLICANT
And
Commonwealth Securities Limited
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 9 October 2013 Place Brisbane The Tribunal sets aside the decision under review and substitutes its decision that the time for the applicant to request review of the respondent’s determinations be extended to 13 December 2012.
...................................[Sgd].....................................
Mr R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Applicant claimed injured at work in 2011 – Claims rejected in determinations made by respondent in June 2011 and August 2011 – Request in December 2012 for respondent to allow extension of time for request to reconsider determinations – Request refused – Application to review refusal of request – Consideration of factors relevant to exercise of discretion to allow extension of time – Length of delay – Explanation of delay – Prospects of success of substantive claims – Prejudice to respondent – Decision set aside and extension of time allowed
LEGISLATION
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 36, 62
CASES
Doyle v Chief of Staff (1982) 71 FLR 56
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 12 FCR 187
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; [1985] 2 All ER 517
Re Bain v Military Rehabilitation and Compensation Commission [2008] AATA 730
Re Broadbent and Australian Telecommunications Corporation (AAT 7181, 25 July 1991)
Re Freeman and Australian Postal Corporation (AAT 8830, 9 July 1993)
Re Pulitano and Telstra Corporation Limited (AAT 8874, 7 July 1993)R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
REASONS FOR DECISION
Mr R G Kenny, Senior Member
9 October 2013
The following factual material in this matter is not in dispute.
From 2002, Helen Matthews (“the applicant”) was employed by the Commonwealth Bank of Australia (“the respondent”) as a merchant sales associate. On 29 March 2011, she lodged a compensation claim for work-related conditions she described as “acute left elbow/shoulder/cervical parathesis, tear in elbow and shoulder – RSI”.[1]
[1] Exhibit 1, T-Document 3, p. 19.
On 21 June 2011, the respondent, in its first of three relevant determinations, wrote to the applicant advising that, in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), the respondent accepted liability for “(L) lateral epicondylitis” but that it had rejected the claims for “cervical condition” and “(L) rotator cuff tendinosis”.[2] On 23 June 2011, in its second determination, the respondent advised the applicant that, in accordance with s 16 of the Act, she was entitled to weekly compensation benefits for the period from 22 February 2011 until 1 April 2011 in the gross amount of $6,560.58 and that, thereafter, there was no present liability in respect of her (L) lateral epicondylitis.[3] A claim by the applicant for “surgical procedures: humerus osteotomy/elbow arthroscopy/tenotomy” was rejected by the respondent in its third determination on 31 August 2011.[4] She was so advised by letter on the same date in which the respondent advised that it had no present liability to pay medical expenses in respect of the requested surgical procedure.
[2] Exhibit 1, T-Document 12, p. 49.
[3] Exhibit 1, T-Document 42, p. 136.
[4] Exhibit 1, T-Document 25, pp. 92-93.
Attached to each of those determinations were the respondent’s reasons for the respective determinations. In each case, these reasons included the following under the heading of “Rights”:
If you are dissatisfied with the determination, you can ask for a reconsideration of the determination under s 62(2) of the Act. Your request for a reconsideration must set out the reasons for your request and must be given to me within 30 days after you receive this Notice of Determination or within such further period (if any) as I allow. The reconsideration will be conducted by an appropriate officer of the Commonwealth Bank of Australia not involved in the original decision. If you need an extension of time allowed to request reconsideration, please contact me immediately.
On 13 December 2012, an application for extension of time was eventually lodged by Carroll & O’Dea Lawyers (“Carroll/O’Dea”), acting on behalf of the applicant. On 18 December 2012, the respondent determined that the extension of time should not be granted and advised the applicant by letter that she had a right to lodge an appeal against that reviewable decision to the Administrative Appeals Tribunal (“the Tribunal”).
In January 2011, the applicant, who is left-handed, complained of pain in her left elbow, left shoulder and neck. On 22 February 2011, she saw her treating practitioner,
Dr Rino Tringali, who provided her with a number of medical certificates and later referred her for an MRI scan. He also referred her to orthopaedic surgeon, Dr Jonathon Herald, and neurosurgeon/spinal surgeon, Dr Mark Winder. As noted above, on 29 March 2011, the applicant lodged a worker’s compensation claim with the respondent. She had a cortisone injection to her elbow in May 2011 but had no other medical treatment because the respondent declined to pay for it. The respondent arranged for a return-to-work program and, though this was prepared by the agency Workcom, it was not commenced because the respondent dispensed with the services of Workcom. The applicant did not return to work. She resigned from and has received no income from the respondent since April 2011. She continues to complain of pain in the left elbow, left shoulder and neck and of limitations in her activities of daily living. She takes Nurofen and Panadeine for pain relief and Endep to assist with sleeping.
In March 2011, the applicant was living in Sydney and she engaged the services of Sydney solicitor, Anthony Giurissevich, to assist her with her compensation claims.
On 5 July 2011, after the second determination, Mr Giurissevich wrote to the respondent requesting an extension of time to enable him to consider the determinations and to advise the applicant.[5] No time-frame was identified by Mr Giurissevich but, on 21 July 2011, the respondent granted an extension to 5 August 2011.[6] On 9 September 2011, the applicant e-mailed Mr Giurissevich and advised him that she was forwarding the respondent’s third determination and that she was moving to live in Queensland in October but would be able to fly down to Sydney at any time to attend to any matters.[7] Mr Giurissevich replied on 9 September 2011 thanking the applicant for her note and advising that he would have to look into her superannuation disability entitlements too.[8] The respondent’s file note, dated 6 October 2011, recorded that no further correspondence had been received in relation to reconsideration of its determinations and the applicant’s file was finalised.[9]
[5] Exhibit 1, T-Document 18, p. 72.
[6] Exhibit 1, T-Document 21, p. 76.
[7] Exhibit 8.
[8] Ibid.
[9] Exhibit 1, T-Document 27, p. 97.
In an exchange of emails between the applicant and Mr Giurissevich in March 2012, the applicant requested information about the progress of her claim; Mr Giurissevich advised that he had not heard from her since September 2011 and understood that she had decided not to proceed with her claims; and the applicant advised that she had believed her case was progressing. On 17 April 2012, Mr Giurissevich advised her that he would no longer be practising on his own and was to be employed by Carroll/O’Dea to whom he had passed the applicant’s files. On 13 April 2012, a partner in Carroll/O’Dea explained to the applicant that she now had the applicant’s file. On 25 June 2012, the applicant authorised the respondent to provide information about her claim to Carroll/O’Dea.
On 31 October 2012, Carroll/O’Dea requested a reconsideration by the respondent of its three determinations and an extension of time for that request to be granted until the date of that letter. The respondent wrote to Carroll/O’Dea on 8 November 2012 requesting an explanation for the delay in seeking a reconsideration. The respondent’s file note, dated 3 December 2012, indicated that a further extension to provide an explanation would be granted if that were received on or before 13 December 2012. This was provided by Carroll/O’Dea in a letter dated 13 December 2012 in which reference was made to the applicant’s belief that Mr Giurissevich had been acting for her, that she had been faced with the disruption of a move from New South Wales to Queensland and back again in a period of nine months and that she had not been familiar with the processes involved in furthering her claim. On 18 December 2012, the respondent made the determination not to extend time.
In addition to the claim for compensation under the Act, the applicant also claimed for total and permanent disablement from the Commonwealth Group Super Fund, also identified as the Officers’ Superannuation Fund (“OSF”), operating through the insurer CommInsure. Though the applicant was advised on 15 December 2011 that this claim had been declined, assessment continued and the applicant was advised on 17 January 2012 that a final decision had not been made at that stage. Further evidence was considered. This comprised reports from Dr Tringali and Dr Herald as well as material from the respondent, including the applicant’s workers’ compensation file. Exchanges by email between the applicant and OSF were dated 31 January 2012, 3 and 6 February 2012, 2 March 2012 and 14 June 2012. In the email, dated 3 February 2012, the applicant referred to her medical treatment, to her symptoms and to her sense of frustration at the claiming process she had been through. She included the comment:
I am well aware of my denial and now am accepting this but truely place a lot of blame on cba workcomp…[sic]
On 28 May 2012, CommInsure wrote to the applicant and advised that a further 30 days would be allowed for her to submit any further evidence with reference to her claim under the OSF. Her claim was finally declined on 5 July 2012.
SUBMISSIONS
Both Ms Brooks-Johnson and Mr Richards, for the applicant and respondent respectively, relied on the principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen[10] and by the High Court in Jackamarra v Krakouer.[11]
[10] (1984) 3 FCR 344.
[11] (1998) 195 CLR 516.
Ms Brooks-Johnson
Ms Brooks-Johnson referred to the respondent’s notices, included in each of the three determinations, in which the 30 day time-frame is noted. She submitted that there was clearly a discretion in that regard through the words “or within such further period (if any) as” is allowed. She submitted that this was a discretion that the Tribunal should exercise in the applicant’s favour. She recognised that time limits are necessary but submitted that, in the interests of justice, some flexibility was required in dealing with a reasonable application for an extension of time.
Ms Brooks-Johnson submitted that the applicant had a reasonable explanation for the delayed request for consideration; that her substantive applications had merit; and that she, but not the respondent, would be prejudiced by a refusal to grant an extension of time. She also submitted that the applicant’s claim in relation to total and permanent disablement to the OSF was of no relevance to her workers’ compensation claim or to the matter of the extension of time. Indeed, she submitted that it was a “red herring” relied on by the respondent.
The explanation for delay centred on the applicant’s complete reliance on the expertise of her legal advisors. She was aware that there were time limits for seeking a review of the decisions but understood that this would have been addressed by
Mr Giurissevich, initially, and then by Carroll/O’Dea. At no stage did she withdraw her instructions from Mr Giurissevich and made this clear when she said that, despite moving interstate, she could fly to Sydney at any time if necessary. She submitted that the delays continued after Carroll/O’Dea was involved and that the failure of the lawyers to advance her claim was not of her own making and was a matter beyond her control.
Ms Brooks-Johnson submitted that the applicant’s substantive claims had merit especially in light of the acceptance by the respondent of her initial claim in relation to her elbow. She submitted that the applicant’s claims for the shoulder, elbow and neck injuries were supported by her treating doctor and by Dr Herald, and that the claims for neck and elbow were supported by orthopaedic surgeon Dr Robert Breit. While their opinions were that she could undertake suitable work, Ms Brooks-Johnson submitted that no return to work program had been maintained by the respondent but that, after initially commencing an occupational and rehabilitation program through Workcom, cancelled this in July 2011 which was before the 30 day time-frame had expired for the first and second determinations. She also referred to the intervention mechanisms recommended by Dr Herald (arthroscopy) and Dr Breit, (non-operative treatment initially) that had not been implemented. She also noted that the applicant had not worked since she was injured.
Ms Brooks-Johnson submitted that there was no requirement for the applicant to demonstrate a lack of prejudice to the respondent if an extension of time were granted but that, in any event, none would arise in this matter. On the other hand, she submitted, the applicant would be highly prejudiced by not being able to pursue her claims. She noted the availability of x-rays and MRI reports and the several reports provided in relatively recent times by Drs Breit, Herald and Winder. She noted that Carroll/O’Dea had sought to have a review process commenced in October 2012 and that the respondent’s refusal had resulted in an additional 12 months delay. Further, she submitted that the applicant’s evidence was that the condition had not changed in its presentation since January 2011 and was capable of being currently assessed.
Ms Brooks-Johnson referred to the correspondence between the respondent and Carroll/O’Dea in July 2012 when Carroll/O’Dea requested,[12] and the respondent provided the applicant’s file.[13] She submitted that, at that time, the respondent was clearly aware that the applicant’s claim was continuing. She also submitted that it was significant that the respondent extended the time to give an explanation for delay until 13 December 2012 before denying the extension of time on 18 December 2012.
[12] Exhibit 1, T-Document 29, p. 99.
[13] Exhibit 1, T-Document 30, p. 100.
Mr Richards
Mr Richards submitted that it was for the applicant to persuade the Tribunal that the indulgence of extending time be granted to her and that this had not been achieved by the applicant in this matter.[14] He noted that the applicant’s request for an extension of the 30 day time-frame notified to her in each of the three determinations was made more than 15 months out of time. Further, although Carroll/O’Dea became aware of the absence of action by Mr Giurissevich in mid-2012, the request was not made by Carroll/O’Dea for at least six months. During that period, Mr Richards submitted, the applicant had been aware of the 30 day time-frame and took no action on her own behalf even though she was capable of doing so as demonstrated by her lodgement of her own application with the Tribunal and processing her own claim through the OFS. He submitted that, in that way, the applicant had sat on her hands[15] in relation to her compensation claim, giving precedence to her OSF matter after she had accepted the denial of her claim for compensation. He noted that the applicant had sworn to the truth of her email on
3 February 2012 in which she accepted the denial of her compensation claim. Only when she was rejected under the OSF scheme, Mr Richards submitted, did she seek, in March 2012, to reinstate her interest in the compensation claim by contacting
Mr Giurissevich with whom she’d had no dealings since September 2011. He submitted that there must have been some basis for Mr Giurissevich’s opinion that she had decided not to pursue her compensation claim.
[14] Citing Re Bain v Military Rehabilitation and Compensation Commission [2008] AATA 730 at [37].
[15] Citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.
Mr Richards submitted that the respondent would suffer prejudice if the request for extension of time were granted. This was because of confusion created by the applicant’s inconsistent evidence about the history of pain prior to January 2011 and about the cause of her injuries. Her allegation concerning the bump to her elbow in the lift was not referred to in her claim form or in statements to treating doctors. He noted that the first reference to this was in April 2011 to Dr Breit and, even there, she related to him that she hurt her elbow when she “simply knocked it when walking in the office”.[16] No witnesses were identified in her claim form and, in a statement on 27 July 2011, she wrote that she had no witnesses.[17] Yet, in evidence she said that she related the incident to work colleagues at the time. The applicant gave differing dates for the injury and delayed in seeking medical treatment until 22 February 2011 when she saw Dr Tringali. This meant that no light was shed on the mechanism of the cause of the injury especially to the shoulder and neck and he submitted that the causal process was important in making decisions about entitlement and about assessment of permanent impairment. Mr Richards submitted that these factors would contribute to prejudice for the respondent in fully investigating her claim, as would the inability to rely on rehabilitation reports close to the time of the injury. He noted that the applicant was unable to recall aspects of what occurred in January 2011 and submitted that this clearly demonstrated the prejudice which the respondent would face in its investigations if an extension of time were granted.
[16] Exhibit 1, T-Document 8, p. 37.
[17] Exhibit 1, T-Document 23, p. 88.
Mr Richards submitted that the applicant had no reasonable prospects of success in any of her rejected claims. This was despite the initial acceptance by the respondent of her elbow injury. He described as “flimsy” and “weak” her allegation that a bump on the elbow could bring about her shoulder and neck injuries. He submitted that it was significant that no further evidence had been provided to support the merits of her claims. He submitted that the evidence of Dr Breit was not sufficient to satisfy the causation requirements of ss 5A or 5B of the Act and that Dr Herald’s evidence was more oriented to a case of overuse rather than trauma. In that regard, Mr Richards noted that the applicant’s work duties mainly involved the use of a telephone with a headset rather than a keyboard. Mr Richards submitted that there were many inconsistencies in the accounts given by the applicant such that she should be considered unreliable. He submitted that Dr Breit’s reference to the injury not occurring but for her work was not enough to establish causation.[18] He accepted that the rehabilitation program was discontinued but submitted that this may have been persevered with if the applicant had continued with the claim.
[18] Citing Re Broadbent and Australian Telecommunications Corporation (AAT 7181, 25 July 1991).
ISSUES AND LEGISLATION
The time for seeking reconsideration of determinations is provided for in s 62(3) of the Act which reads:
(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.
The Act provides no guidance on the principles to be applied in determining whether an extension of the time referred to in that provision should be granted. The issue for the Tribunal is whether an extension of time should be granted in the applicant’s case.
CONSIDERATION
The applications for extension of time by Carroll/O’Dea were made on 13 December 2010 which was more than 17 months after the first and second determinations and more than 15 months after the third determination. In Hunter Valley Developments Pty Ltd v Cohen,[19] Wilcox J was concerned with an application to extend time for review of a decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour identified decisions made in relation to that provision and, from them, “distilled the following principles to guide, not in any exhaustive manner, the exercise of …. discretion”:[20]
1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. 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 ALR 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 ALR 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 (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).
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 (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR. 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. 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 ALR 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: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.
4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.
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: Wedesweiller at 534-535.
[19] (1984) 3 FCR 344.
[20] Ibid at 348-349.
In Jackamarra v Krakouer,[21] an appeal to the Full Court of the Supreme Court of Western Australia had been filed promptly but the appellant’s legal representatives delayed in entering the appeal for hearing.[22] The Full Court refused an extension of time, the decisive reason being that the appeal lacked “any real prospect of success”.[23] The High Court upheld the appeal against the Full Court decision. It was noted that the Full Court had referred to the relevant criteria in considering an application for extension of time. These, described as “four main factors”, were: the length of delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. The High Court drew a distinction between an application for extension of time to lodge an appeal and one in relation to a merely procedural issue. The matter before the Full Court was in the latter category because the appeal had already been lodged and the High Court held that the merit of the appellant’s appeal was not a relevant consideration “unless the appeal is so devoid of merit that it would be futile to extend time”.[24]
[21] (1998) 195 CLR 516.
[22] Rules of the Supreme Court 1971 (WA) O 63 r 7. This required the appeal to be entered for hearing before the expiration of 12 weeks from the institution of the appeal.
[23] See Jackamarra v Krakouer (1998) 195 CLR 516 at 519 (per Brennan CJ and McHugh J) and 539 (per Kirby J).
[24] Ibid at 521 (per Brennan CJ and McHugh J) and 542-543 (per Kirby J).
In Jackamarra v Krakouer, Kirby J noted that the four main factors, relied on by the Full Court, had been identified by the Court of Appeal in Palata Investments Ltd v Burt & Sinfield Ltd[25] which his Honour described as an application for extension of time for appealing rather than one concerned with “extending the time within which an appeal, already lodged within time, might be entered for hearing”.[26] While accepting that the four main factors were relevant to a consideration of extension of time in such a case, Kirby J’s opinion was that they were by no means exhaustive and he identified other factors which, from time to time, have been thought relevant. His Honour stated:[27]
These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.
[25] [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520.
[26] See Jackamarra v Krakouer (1998) 195 CLR 516 at 542.
[27] Ibid at 543 (citations omitted).
The matter before the Tribunal is in the former category identified by the High Court, impacting as it does on the substantive rights of the parties. Accordingly, consideration must be given to the length of delay, the reason for the delay including the role played by legal representatives, whether there is an arguable case and the extent of any prejudice to the respondent. I have also considered the matters referred to in Hunter Valley Developments v Cohen.[28]
[28] (1984) 3 FCR 344; and see Para 24 (above).
Length of and reasons for delay
The application for an extension of time was made by Carroll/O’Dea on 13 December 2012. This was more than 17 months after the first and second determinations and more than 15 months after the third determination. While the delay is significant, so is the reason for it. Mr Giurissevich made no formal application on the applicant’s behalf and Carroll/O’Dea did not do so until 13 December 2012, more than 8 months after Carroll/O’Dea first contacted the applicant. The applicant was aware of the reference to 30 days in the determinations sent to her but, quite properly, relied on her legal representatives to act in a timely manner. They did not do so.
Mr Richards submitted that the applicant sat on her hands during the period from September 2011 until March 2012 and concentrated on her dealings with OSF.
He submitted that Mr Giurissevich must have had some reason for believing that the applicant was no longer pursuing her compensation claim. However, there was no evidence of this and it is not known whether Mr Giurissevich actually formed that opinion or, if he did, on what basis he did so. Mr Richards also submitted that the applicant only re-ignited her interest in the compensation claim after her OFS application was denied. I do not accept that contention. The applicant was advised on 17 January 2012 that consideration of the OSF application was continuing. It was not finally denied until July 2012 and she had been in contact with Mr Giurissevich from March 2012 and Carroll/O’Dea from April 2012.
I have noted the applicant’s email, dated 3 February 2012, to OSF in which she stated that she was aware of her denial and was now accepting this. In her evidence, she confirmed that this was a reference to her compensation claim. However, by then, she had not received any material from the respondent about time limits and I do not accept that the email reference necessarily meant that she had decided to abandon her compensation claim. Within a few weeks, she contacted Mr Giurissevich about the progress of her claim. The applicant’s evidence was that she had been told by
Mr Giurissevich that her compensation claim may take up to two years to resolve.
Her evidence in that regard was not challenged and I accept that she had an understanding of that potential time-frame for the claim’s resolution. I am satisfied that this serves to explain the absence of contact by her with Mr Giurissevich in the period from September 2011 until March 2012. His email of 9 September 2011 confirms his continuing involvement with the applicant when he indicated that he would look into her “superannuation disability entitlements too”.[29]
[29] Exhibit 8, p. L175.
While the applications for extension of time were significantly out of time, I am satisfied that this was not due to the applicant “sitting on her hands” or being at fault in any other way. True it is that she pursued her OSF application but I am satisfied that she did not abandon her compensation claim and that she remained reliant on her legal representatives in relation to her compensation claim. While delay which is due to inaction by a person’s legal representative does not automatically excuse the delay in making an application for extension of time, it is a factor that may be taken into account in the exercise of discretion.[30]
[30] See Jackamarra v Krakouer (1998) 195 CLR 516 at 543 and 544; Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 351; Re Pulitano and Telstra Corporation Limited (AAT 8874, 7 July 1993) at [34]-[36]; Jess v Scott (1986) 12 FCR 187 at 195; Re Freeman and Australian Postal Corporation (AAT 8830, 9 July 1993) at [21]-[22].
Prospects of success
In Jackamarra v Krakouer, reference was made to R v Secretary for the Home Department; Ex parte Mehta[31] where, in the context of an extension of time in respect of the lodgement of an appeal, rather than a mere procedural issue, Lord Denning MR said:[32]
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it as proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.
[31] [1975] 1 WLR 1087.
[32] R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1088.
In Jackamarra v Krakouer, Kirby J said:[33]
The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused .However, this is basically because to grant it would be futile.
[33] (1998) 195 CLR 516 at 540 (citations omitted).
Mr Richards’ submission is that the applicant’s claims have no real prospects of success due, in large part, to the inconsistencies in her evidence and in the nature of her claim. The applicant has not provided consistent accounts of the manner in which she sustained her claimed injuries. In evidence she described a bump to her elbow in exiting a lift at work. In a statement on 27 July 2011, she referred to the bump to her elbow and that she had no witnesses. In evidence, she said that she told work colleagues at the time. In her claim form,[34] a question posed was: When were you injured or when did you first notice you were ill. The applicant’s response was “28th January ?”; “Early Feb” “Not sure”. She advised that she saw Dr Tringali on 22 February. As to the cause of her injuries, she responded: “? sudden acute pain ? in left elbow, neck, shoulder”. As to what actually injured her, the applicant responded “ ? ”. Dr Tringali completed medical certificates on 22 February 2011 and 1, 8, 16 and 25 March 2011 where he variously diagnosed “acute left elbow, shoulder. Right elbow, shoulder, wrist, cervical ligamentous”, “scapular” and “left hand paraesthesia”.[35] Also, in the first of those reports, he wrote: “Whilst repetitive use of left and right upper limbs due to carrying out data entry felt acute pain in these areas”. He entered the date of the injury as 21 February 2011.
[34] Exhibit 1, T-Document 3, p. 18.
[35] Exhibit 1, T-Document 5, pp. 26-30.
Copies of Dr Tringali’s clinical notes were in evidence.[36] He noted that she had “progressive upper limbs pain L > R / cervical region last 2-3 weeks”. The entry on
22 February 2011 describes pain in the right upper limb as well as the acute left elbow, left shoulder and neck pain on the previous day.
[36] Exhibit 1, T-Document 15, pp. 65-67.
An MRI was conducted on the applicant’s left elbow, left shoulder and neck by
Dr Alisdair Robertson. In his report, dated 22 March 2011, the clinical history is given as: “Repetitive use of left upper arm and left elbow. Cervical pain. Cervical lesion. Left hand numbness”.[37] The following interpretation of that report was given by Dr Herald in his report of 31 March 2011:[38]
MRI scans of her cervical spine show multi-level degenerative changes with severe left neural impingement of the C6 nerve root and C7 nerve root also on the left hand side.
MRI scans of the left shoulder show a partial thickness rotator cuff tear and a small degenerative superior labral tear.
MRI scans of the left elbow show a high grade partial thickness tear of the common extensor origin and also associated cubital tunnel syndrome.
[37] Exhibit 1, T-Document 6, p. 31.
[38] Exhibit 1, T-Document 7, pp. 34-35.
Dr Herald’s impression was :[39]
Cervical spine left sided C6 and C7 radiculopathy due to disc prolapse and impingement. Left shoulder impingement syndrome and biceps tendonitis.
Left elbow lateral epicondylitis and possible cubital tunnel syndrome.
[39] Ibid at p, 35.
Dr Herald referred the applicant for a nerve conduction study to see if she had cubital tunnel syndrome and recommended Lyrica to help with her radicular symptoms and cervical spine. Dr Herald completed further reports on 26 May 2011, 5 July 2011 and 7 July 2011. On 26 May 2011, he referred to a cortisone injection in the applicant’s elbow which had, initially, showed an 80% improvement but which has been slowly deteriorating.[40] He noted that nerve conduction studies had suggested no abnormality in the arm region with symptoms arising from her neck. He also opined that the applicant may benefit from surgical intervention. On 5 July 2011, Dr Herald noted that the applicant’s duties involved repetitively making telephone calls to customers which placed significant stress on her left upper limb. He descried occupational overuse syndrome involving her left elbow, left shoulder and neck. The history he recorded makes no reference to the bumping incident in the lift. He considered that it would most likely not have occurred had she not been employed in her work with the respondent. He referred to the applicant’s EMG studies as an indication that nerve compression was most likely occurring in her neck. He wrote that here was no disease process involved and that her injury resulted in “a tear to a tendon in her shoulder and her elbow and her disc being pushed out to pinch a nerve”.[41] He considered that she was fit for suitable duties but should avoid repetitive typing or calling customers. In his report of 7 July 2011,
Dr Herald confirmed that the applicant continued to present with left elbow and shoulder problems.[42]
[40] Exhibit 1, T-Document 11, p. 48.
[41] Exhibit 1, T-Document 19, p. 74.
[42] Exhibit 1, T-Document 16, p. 68.
At the respondent’s request, Dr Breit provided a report on 12 April 2011. He recorded the applicant as saying that, initially there was just pain in the left elbow which started “after she simply knocked it when walking in the office …”.[43] The applicant told Dr Breit that, as the pain persisted, she saw her GP who diagnosed tennis elbow. She then saw Dr Tringali who arranged for the MRI scans to be done. Dr Breit noted these and recorded the applicant as having pain in the neck and shoulder which “had been present for years”. He diagnosed cervical spondylosis, left rotator cuff tendinosis, left lateral epicondylitis, and possible left carpal tunnel syndrome. Dr Breit wrote:[44]
Lateral epicondylitis is largely a degenerative phenomenon which may be aggravated by direct trauma.
The cervical spondylosis is purely constitutional and there is no evidence to indicate that it has in any way been aggravated and the same applies to the left shoulder. Neither have any evidence of pathology clinically and the findings on MRI simply indicate pathology, not whether it is symptomatic or of any clinical relevance.
Carpal tunnel syndrome is not proven at this stage and probably why Dr Herald has requested EMG studies.
[43] Exhibit 1, T-Document 8, p. 37.
[44] Ibid at p. 40.
Dr Breit’s opinion was that Dr Tringali’s report did not provide a diagnosis other than pain. Apart from describing the elbow condition as an aggravation, Dr Breit gave no guidance in relation to a connection to the applicant’s employment. He was unable to advise whether the elbow condition was temporary or permanent. His opinion was that she could work normal hours where there was no forceful repetitive use of the left arm and he recommended a physiotherapy program for a period of 6 weeks followed by a reassessment.
Dr Breit provided further reports dated 24 June 2011, 25 July 2011 and 24 August 2011. Therein, he noted that the applicant had seen Dr Winder, that an injection into her spine had not been carried out and that her EMG study was said to be normal. He noted that the applicant continued to complain of pain at the left side of her neck and in her left elbow radiating into her hand. She descried pins and needles in the left hand in the morning. Dr Breit disagreed with Dr Herald’s opinion that the applicant’s problems are secondary to occupational overuse on the basis that it was not supported by the medical literature with respect to causation.[45] His opinion was that each of her complaints had a significant degenerative component of long standing. He accepted there was also an ‘aggravational’ component in relation to the neck from prolonged use of a computer and telephone. He saw no relationship between the applicant’s shoulder condition and employment but opined that trauma to her elbow could precipitate symptomology. He described the applicant as being fit for suitable duties but that she required a counterforce brace and a physiotherapy program. His opinion was that surgical intervention may assist her but that she needed to undergo an appropriate non-operative management program.
[45] Exhibit 1, T-Document 22, p. 83.
Dr Winder completed a report on 19 April 2011. He noted that the applicant experienced “some intermittent burning sensations and numbness”.[46] He recommended that she have a corticosteroid injection at C5/6 on the left.
[46] Exhibit 1, T-Document 10, p. 47.
The respondent referred the applicant to Workcom for assessment of her capability of undertaking a rehabilitation program.[47] Ms Kate Atkins, rehabilitation consultant, completed an initial assessment report on 15 March 2011.[48] She recorded the date of the applicant’s injury as 31 January 2011 but noted that the applicant had felt symptoms in her left elbow for 2 to 3 months. The applicant told Ms Atkins that she knocked her elbow 5 to 6 weeks earlier, that this resulted in significant pain, that she attended a doctor at a local medical centre who advised her she had tennis elbow and that, two weeks later when the pain had not subsided, saw Dr Tringoli. Ms Atkins recorded symptoms in the right upper arm and shoulder, right side of neck, left hand as well as left elbow, shoulder and neck. Ms Atkins recommended that the applicant undergo a rehabilitation program and completed a detailed Return to Work Plan which she attached to her report.
[47] See s 36 of the Act.
[48] Exhibit 2, Document 13.
In her statement, dated 17 April 2013,[49] the applicant wrote that she had experienced pain in her neck and shoulders on and off for some time. About three years earlier, she experienced pins and needles in her left arm and hand, and began using a wrist support at work. The pain increased at the beginning of 2011 and, towards the end of January, she banged her left elbow on the door of a lift. The pain was immediate and intense and has never gone away. She saw Dr Tringali on 22 February 2011.
[49] Exhibit 7.
In evidence, the applicant said that she had experienced neck and shoulder pain from about 2009. She was unable to explain why the various doctors she has seen did not refer to her bumping her elbow in the lift because she believed she had told them of it. She denied telling Dr Breit that she knocked it while walking in the office. She said that she had told some of her work colleagues about the incident at the time. She agreed that she had made complaints about her right arm and shoulder to Dr Tringali as well as the left. She did not make a compensation claim for the right limb because she was able to move her right arm. The applicant denied that she made the application to OSF because she was aware that her compensation claim was rejected and denied that she had abandoned her compensation claim to pursue the OSF application.
As submitted by Mr Richards, there are some inconsistencies in the applicant’s evidence in respect of the history of her neck, shoulder and elbow problems, and what she considered to be the cause of those problems. Giving differing accounts to the doctors of the cause has resulted in varying opinions as to whether her injuries are due to occupational overuse or to an incident of trauma. Despite that, there is support in the reports of both Dr Herald and Dr Breit in relation to her left elbow and her neck, albeit by differing causal mechanisms. There is also support from Dr Herald in relation to the applicant’s shoulder condition. While issues of credit may be relevant in the hearing of the merits of the applicant’s claims, it cannot be said that her case is “hopeless, unarguable or bound to fail” and therefore futile.[50] It is significant that the respondent accepted liability for the applicant’s left elbow condition. I am satisfied that there are prospects of success for the applicant’s claims.
[50] See Para 33 (above).
Prejudice to the respondent
Mr Richards submitted that the inconsistencies in the applicant’s evidence about the history and cause of her injuries as well as the absence of rehabilitation reports close to the time of the injury would contribute to prejudice for the respondent in fully investigating the applicant’s claims. I have noted the inconsistencies in the applicant’s evidence and it may be that, through the passage of time, the respondent will have difficulty in finding appropriate witnesses to the trauma which the applicant referred to. However, no evidence was led to the effect that attempts to do so have been unsuccessful. As for the absence of rehabilitation reports, the initial assessment by
Ms Atkins is available and no subsequent reports were prepared. However, significantly, this was because the respondent withdrew her services and provided no other form of support. The MRI report and the early reports of Drs Tringali, Breit, Herald and Winder were prepared within two or three months of the first complaint by the applicant of her injuries. They provide a sound basis for an assessment to be made of the applicant’s condition such that the respondent will not be prejudiced by an absence of appropriate medical material.
Other consideration
Although speaking in the context of the principles applicable to procedural time defaults, Kirby J, in Jackamarra v Krakouer, referred to the discretion to extend time where it is conferred in unlimited terms. That is the nature of the discretion in this matter under the Act.[51] His Honour said:[52]
….the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application.
[51] See Re Bain v Military Rehabilitation and Compensation Commission [2008] AATA 730 at [33].
[52] (1998) 195 CLR 516 at 539-540.
While it is important to recognise that time-frames such as that in s 62(3) of the Act should usually be complied with, I am satisfied, for the reasons outlined, that an extension of time should be granted in this matter. I am satisfied that the applicant has provided an acceptable explanation for the delay in seeking review of the respondent’s determinations; that there are prospects for her claims to be successful; and that the respondent will not be prejudiced by the granting of an extension of time. In so deciding, I note that the respondent was made aware of the applicant’s desire to continue the proceedings against the respondent[53] in July 2011 when Mr Giurissevich requested an extension of time (to which the respondent acceded); in June 2012 when the applicant advised the respondent that she had authorised Carroll/O’Dea to deal with her claims; and in October 2012 when Carroll/O’Dea requested an extension of time to provide an explanation for the delay (to which the respondent acceded). In all the circumstances, I am satisfied that the time for the applicant to request review of the respondent’s determinations be extended to 13 December 2012.
[53] See factor 2 (Para 24 above) as identified in Hunter Valley Developments v Cohen (1984) 3 FCR 344.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision that the time for the applicant to request review of the respondent’s determinations be extended to 13 December 2012.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member..................................[Sgd]......................................
Associate
Dated 9 October 2013
Date of hearing 17 September 2013 Counsel for the Applicant Ms Carol Brooks-Johnson Solicitors for the Applicant Shine Lawyers Counsel for the Respondent Mr David Richards Solicitor for the Respondent Mr Tim Clift
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