Hillman v Australian Postal Corporation
[2017] AATA 1411
•5 September 2017
Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411 (5 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5754
Re:Lynette Hillman
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:5 September 2017
Place:Perth
The decision under review is affirmed.
..............[sgd]..........................................................
L M Gallagher, Member
CATCHWORDS
Compensation – ruptured long head of bicep (left arm) - request for reconsideration out of time – extension of time to seek reconsideration refused - application for extension of time – guidelines to be considered – length of delay – no acceptable explanation for delay – prejudice to respondent - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 14 – s 53(1)(a) – s 60(1) –
s 62 – s 62(3)(a) – s 62(3)(b)CASES
Hazelwood and Telstra Corporation Limited [2012] AATA 901
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Hewson and Australian Postal Corporation (1998) 50 ALD 994
REASONS FOR DECISION
L M Gallagher, Member
5 September 2017
INTRODUCTION
Ms Hillman and the Australian Postal Corporation (‘Australia Post’), (together, ‘the parties’) have agreed that Ms Hillman’s present application is best decided on the papers. Accordingly, the Tribunal gives its reasons for decision as follows.
Ms Hillman has been employed as a Postal Delivery Officer with Australia Post since 2008.
Ms Hillman has a number of claims for which liability has been accepted by Australia Post under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’), including accepted claims for “right shoulder tendinosis” (T20) and “bilateral shoulder injury” (altered to “bilateral shoulder strains”) (T74), both sustained on 15 December 2011.
On 2 March 2016, Ms Hillman lodged a claim for compensation dated 23 February 2016 for “rupted [sic] long head of bicep (L arm)” sustained on 24 October 2015 (T137) (the ‘claimed condition’).
The claim form states that Ms Hillman first had medical treatment for the injury on 26 October 2015.
Ms Hillman first reported the injury to her supervisor on 8 February 2016 (T137 and note also the Health and Safety Incident Form dated 23 February 2016, lodged on 2 March 2016 (‘the incident form’) (T138)).
The incident form states that in the lead up to the incident that “right arm was injured delivering mail – car backed into me Dec 2011, Left arm has [sic] compensated for this injury & now have a ruptured long head of bicep” (T138).
A medical certificate issued by Dr Willie Smit (GP) dated 23 February 2016 and provided to Australia Post on 2 March 2016 (T139), certifies that Ms Hillman sustained an injury to her left shoulder on 24 October 2015.
On 11 March 2016, Australia Post issued a determination denying liability for the claimed condition (‘the determination’) (T142), for reasons including that Ms Hillman failed to report her injury immediately and also failed to lodge an incident report as soon as practicable, the latter being a requirement by subsection 53(1)(a) of the Act.
The determination enclosed a notice of Employees’ Rights and Responsibilities, which sets out that requests for reconsideration “must set out the reasons for seeking the review and must be made within 30 days of [you] receiving the decision” (Respondent’s Statement of Facts, Issues and Contentions dated 14 July 2017 (‘R’s SFICs’) at Annexure A).
On 29 August 2016, Ms Hillman’s solicitors requested a reconsideration of the determination dated 11 March 2016 (T143) (‘the request for reconsideration’). The request states, relevantly, and in part:
We seek an extension of time within which to request the reconsideration, noting that Ms Hillman has only recently sought legal advice.
On 9 September 2016, Australia Post issued a reviewable decision refusing Ms Hillman’s request for an extension of time to reconsider the determination, pursuant to subsection 61(3)(b) [sic][1] of the Act (‘the reviewable decision’) (T144). The reviewable decision states, in part:
Your clients [sic] claim in 24 October 2015 was submitted on 23 February 2016 four months late. A primary determination was issued on 11 March 2016 together with a Notice of Rights detailing your client’s rights and obligations.
Your client rested on those rights until September 2016 some six months later, whereby she now seeks an extension of time to request a reconsideration.
She has provided no reasons as to the delay up to the time she instructed your firm and no fresh evidence to support her claim.
[1] The reviewable decision 9 September 2016 erroneously refers to subsection 61(3)(b) of the Act, rather than subsection 62(3)(b) of the Act. The Tribunal considers the intent and basis of the reviewable decision is otherwise clear that the error is likely to have been typographical or otherwise inadvertent.
On 27 October 2016, Ms Hillman’s solicitors lodged an application for review dated 26 October 2017, applying for review of the reviewable decision (T1). The application form states that the reviewable decision is wrong, because (relevantly) the respondent has suffered little prejudice and the time which has passed is relatively short.”
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
Part VI of the Act provides for reconsideration and review of determinations. By subsection 60(1) of the Act:
(a)A determination or decision made under section 14 of the Act is a determination for the purposes of Part VI of the Act;
(b)a decision made under section 62 of the Act is a reviewable decision for the purposes of Part VI of the Act; and
(c)a determining authority, in relation to a determination, means the person who made the determination.
Relevantly, subsection 62(3) of the Act provides that a request for reconsideration of a determination shall:
(a) set out the reasons for the request (subsection 62(3)(a)) of the Act; 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 (subsection 62(3)(b) of the Act).
[emphasis added].
In Re Hewson and Australian Postal Corporation (1998) 50 ALD 994 (at 998), Senior Member Allen stressed the desirability of finality in these matters (at paragraph 23):
In my opinion the major factor in this matter is that prima facie proceedings commenced outside the limitation period ought not to be entertained. The respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the materials adduced by either party to have a good case of succeeding in the action and there is little prejudice to the respondent.
A similar view was expressed by Judge Wilcox in the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, a decision which also set out the principles commonly referred to (as they were in Re Hewson and numerous other decisions) in considering whether an extension of time should be granted in these matters. Those principles are well-known and can succinctly be put as:
(a)Delay - the length of the delay and whether the applicant seeking an extension of time can demonstrate an acceptable explanation for the delay;
(b)Prejudice - any prejudice that might be suffered were an extension to be granted;
(c)Merits - the merits of the substantive application; and
(d)Fairness - considerations of fairness between the applicant and other persons in a similar position.
ISSUE FOR DETERMINATION
The issue before the Tribunal is whether Ms Hillman should be granted an extension of time to lodge her request for reconsideration of the determination dated 11 March 2016 with Australia Post.
EVIDENCE
The following evidence is before the Tribunal:
·T documents;
·Applicant’s witness statement dated 31 March 2017 (‘A’s statement’)
·Applicant’s undated Statement of Facts, Issues and Contentions lodged on 31 March 2017 (‘A’s SFICs’); and
·R’s SFICs.
Relevant aspects of the evidence before the Tribunal will be referred to below.
CONSIDERATION
Ms Hillman seeks an order which would have the effect of extending the time for lodging her request for reconsideration.
Before considering each of the matters set out in paragraph 17 above, the Tribunal makes the following preliminary comments and findings:
(a)The discretion to allow further time to request reconsideration is unfettered, the exercise of which is informed by the statutory time limit as well as the power granted by subsection 62(3)(b) of the Act to extend that time limit.
(b)Ms Hillman has not put any argument forward to the effect that her request for reconsideration was actually lodged within time. Therefore, the Tribunal proceeds on the basis that the parties agree that Ms Hillman’s request was lodged out of time and hence the issue for review is as set out at paragraph 18 above.
(c)Ms Hillman lodged her request for reconsideration of the determination dated 11 March 2016 on 6 September 2016, approximately 179 days after having received the decision and hence approximately 149 days after the 30 day timeframe prescribed by subsection 62(3)(b) of the Act.
(d)Ms Hillman has not taken any issue with having received with the determination dated 11 March 2016 a copy of Australia Post’s ‘Employees’ Rights and Responsibilities’ as they appear at Annexure A of the R’s SFICs. As such, Ms Hillman is deemed to have had notice of the applicable 30 day timeframe for lodging her request for a reconsideration (as stated in subsection 62(3)(b) of the Act and set out in Australia Post’s ‘Employees’ Rights and Responsibilities’ document).
The Tribunal considers from its review of the available material that the extent of Ms Hillman’s evidence is as follows:
(a)Ms Hillman cannot recall exactly when she received the determination (A’s SFICS, paragraph 13; A’s statement, paragraph 14);
(b)Ms Hillman did not feel that she would have the mental ability to challenge the determination, because she felt exhausted from the previous claim process and process of review relating to her bi-lateral shoulder strains. Ms Hillman was not confident that she would be able to successfully challenge the determination because it (the injury) happened on a Saturday. Ms Hillman phoned Slater & Gordon to obtain legal advice, but was told to contact her union (A’s SFICs, paragraph 14; A’s statement, paragraph 15);
(c)Ms Hillman contacted her union who referred her to Tindall Gask Bentley (A’s SFICs, paragraph 15; A’s statement, paragraph 17); and
(d)Ms Hillman consulted with Tindall Gask Bentley by telephone on or about 13 July 2016 however did not have all copies of the documents required by Tindall Gask Bentley. After providing the documents Ms Hillman engaged Tindall Gask Bentley to apply for an extension of time to request a reconsideration of the determination (A’s SFICs, paragraph 16; A’s statement, paragraph 17).
Delay
In relation to the explanation for Ms Hillman’s delay in lodging her request for reconsideration, Ms Hillman appears to attribute this to her delay in obtaining legal advice, which she submits was “occasioned by mental exhaustion, personal circumstances and arrangements between her union and lawyers which were beyond [her] control” (A’s SFICs, paragraph 1.10). Ms Hillman contends that this explanation of the delay is “acceptable” (A’s SFICs, paragraph 1.13).
While Ms Hillman refers to her sons’ personal problems and other matters “during that time” (A’s statement, paragraph 13) the period of time Ms Hillman is referring to in that context is the period between the occurrence of the injury and claim lodgement, not the period between Australia Post issuing the determination and Ms Hillman lodging her request for reconsideration. The latter period is the relevant period for present purposes, therefore Ms Hillman’s reference to her personal problems resulting in her delay in obtaining legal advice provides (in theory) no explanation for the delay. The only explanation offered by Ms Hillman regarding the latter, relevant period appears to be that she “felt exhausted from the previous claims process and process of review relating to my other bi-lateral shoulder strains” (A’s statement, paragraph 15).
In any event, Ms Hillman has not provided any specific dates or supporting documentation in relation to her submissions at paragraphs 24 and 25 above or any evidence that would otherwise demonstrate her inability to prepare (or instruct her solicitors to prepare) her request for reconsideration within time.
As such, the Tribunal finds there is insufficient evidence to conclude that Ms Hillman has disclosed an adequate explanation of the delay which caused her not to lodge the request for reconsideration in time.
Prejudice
In relation to prejudice, Ms Hillman contends that Australia Post will not be unduly prejudiced if her request for an extension of time is granted, because Australia Post is well aware of her previous claims and it already has relevant files and medical evidence from its previous investigations of her left bicep (A’s SFICs, paragraph 1.11). Ms Hillman also says that if her request for an extension of time is not granted, then she will suffer prejudice given the merits of her claim (A’s SFICs, paragraph 1.15).
In response, Australia Post contends that it has in fact been prejudiced given its inability to conduct factual investigations around the time of the claimed injury, including its inability to speak with Ms Hillman’s workmates, its inability to have Ms Hillman medically examined or implement a rehabilitation program in a timely fashion (R’s SFICs, paragraph 26). Australia Post also contends that witnesses’ recollections of events may have been impacted by the lapse of time of twenty months or so (R’s SFICs, paragraph 27). In this context, Australia Post reiterates the principle set out in the Hunter decision that the mere absence of prejudice to other parties is not enough to justify the grant of an extension of time (R’s SFICs, paragraph 28).
Weighing the considerations put forward in paragraphs 28 and 29 above, the Tribunal considers Australia Post has indeed been prejudiced by the delay in the manner it describes. Further, the Tribunal does not consider this prejudice to be negated or lessened by Australia Post’s knowledge of Ms Hillman’s previous claim regarding her left bicep because, on Ms Hillman’s own evidence (A’s statement, paragraph 7) that particular exacerbation injury occurred on a different date (being 29 July 2013, not 24 October 2015) under different circumstances to the present injury.
Based on the above, the Tribunal considers that given the lapse of time involved, there would be prejudice occasioned to Australia Post in attempting to meet Ms Hillman’s case.
Merits
Ms Hillman contends that based on the available evidence, she has good prospects of success in establishing that the injury is compensable under the Act (A’s SFICs, paragraph 1.12). In doing so, Ms Hillman has not directed Australia Post or the Tribunal to any evidence regarding the merits of the substantive claim.
Australia Post contends (R’s SFICs, paragraph 29) Ms Hillman failed to give Australia Post notice in writing of the claimed condition “as soon as practicable” after she became aware of it, contrary to subsection 53(1) of the Act and hence her substantive application is unlikely to succeed. Australia Post notes the time lapse in this regard was between late October 2015 and early February 2016. Australia Post contends that it any event, there is no medical or other evidence to enable Ms Hillman to establish a causative link between her employment and her claimed condition, whether it be characterised as an injury or a disease under the Act (R’s SFICs, paragraphs 33 to 35).
The Tribunal finds that Ms Hillman would likely face a preliminary hurdle given the matters raised by Australia Post in the context of subsection 53(1) of the Act and considers that in any event, as noted at paragraph 32 above, Ms Hillman has not provided any detailed submissions or supporting evidence in support of her contention that her substantive claim has good prospects of success.
The Tribunal considers that while Ms Hillman’s substantive claim clearly presents with a number of issues, including threshold issues, it is neither necessary or appropriate for the Tribunal to attempt to do anything other than gauge the apparent merit of the proposed case (Hazelwood v Telstra Corporation [2012] AATA 901, Deputy President Hack, at paragraph 30). In doing so, the Tribunal considers it cannot be said that Ms Hillman’s case is entirely without merit.
Fairness
Ms Hillman contends that it would be fair and equitable in the circumstances to grant her request to “extend the time” (A’s SFICs, paragraph 1.13). Ms Hillman has not provided any evidence in support of this submission or detailed any matters going to her situation that make her circumstances markedly different to those of other applicants in a similar position.
The Tribunal considers the delay of approximately four months within which Ms Hillman’s requested a reconsideration of the determination to be considerable and the explanations advanced by her for that delay to be unpersuasive. The Tribunal finds that this delay has diminished Australia Post’s ability to investigate Ms Hillman’s claim, obtain contemporaneous medical evidence and implement an appropriate rehabilitation program. On balance, the Tribunal finds that the extension of time is not warranted.
DECISION
The reviewable decision of the Respondent dated 9 September 2016, refusing Ms Hillman’s request for an extension of time to reconsider its determination dated 11 March 2016, pursuant to subsection 62(3)(b) [sic] of the Act is affirmed.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
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Administrative Assistant - Legal
Dated: 5 September 2017
Date(s) of hearing: 5 September 2017 Solicitors for the Applicant: Tindall Gask Bentley Solicitors for the Respondent: Moray & Agnew
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