Hutchinson and Comcare
[2016] AATA 650
•29 August 2016
Hutchinson and Comcare [2016] AATA 650 (29 August 2016)
Division
GENERAL DIVISION
File Number
2016/2186
Re
Karen Hutchinson
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Brigadier AG Warner, Member
Date 29 August 2016 Place Perth The applicant’s application for an extension of time to lodge an application for review of a decision of a Comcare delegate dated 17 September 2013 is refused.
..........[Sgd]..............................................................
Brigadier AG Warner, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of a Comcare decision of 17 September 2013 – explanation not satisfactory - lack of merit of applicant’s application for review – significant delay – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s(3)(3) - s 29(2) – s 29 (7) – s 29(8)
Safety, Rehabilitation and Compensation Act 1988 – 60 – s 65(4)
CASES
Comcare v A’Hearn (1993) 45 FCR 441
Comcare v Muir [2016] FCA 346
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Hutchinson and Comcare [2014] AATA 588Re Johnson and Commonwealth of Australia [1990] AATA 1
REASONS FOR DECISION
Brigadier AG Warner, Member
29 August 2016
INTRODUCTION
On 28 April 2016, Ms Hutchinson lodged an application with the Tribunal for an extension of time to make an application for review of a decision of 17 September 2013 whereby a delegate of Comcare refused to make a reconsideration determination of a decision dated 4 September 2013.
Ms Hutchinson stated her reason for the application as: “I have just become aware that a refusal to make a decision can be considered as a ‘decision’ for the purposes of the AAT Act.”
A telephone interlocutory hearing was conducted on 4 July 2016.
BACKGROUND
A summary of the background facts to this matter was provided by Comcare in the Respondent’s Submission on Extension of Time dated 26 May 2016 at paragraphs 1.1-1.27. That summary was not in dispute and although lengthy, the summary is repeated below because of its complex and protracted nature.
The Applicant was employed by Comcare as a Claims Services Officer (APS 4) and had been employed as a Claims Services Officer since 1988. The Applicant lodged a claim for workers’ compensation dated 8 February 2011 which states her claim is depression and anxiety, which she first noticed on 5 March 2010. The claim was based on an incident at a ‘Respect and Diversity’ workshop on 5 March 2010. The claim form states the Applicant’s anxiety was precipitated by this event.
The Applicant went on long service leave on 16 April 2010. On 3 August 2010, the Applicant sent an email to the Respondent and requested her leave be converted to half pay and extended as far as possible. The email was signed off “transiting the Panama Canal at present”. The leave extension was approved and on 8 December 2010 the Applicant sent an email to the Respondent stating her holiday and break from work had been wonderful and which team her preference was for, upon returning to work.
On 3 January 2011, the Applicant sent an email to the Respondent, while on extended leave, and informed them she was having some health concerns which required some extensive tests and scans and that she would not be in the office that week. On 12 January 2011, the Applicant sent an email to the Respondent stating she is likely to be scheduled for surgery as it appears a hernia had developed at the site of a previous surgery.
A medical certificate from Dr Kathryn Dunn dated 7 March 2011 states the Applicant first attended on 31 January 2011. A medical certificate (Victorian Workcover) dated 7 February 2011 from Dr Dunn states the Applicant was first off work from 16 April 2010 due to depression and anxiety from bullying at work. A certificate of attendance dated 13 January 2011 states the Applicant attended St Vincent’s Hospital as on (sic) outpatient and that she will be unable to work for 2 weeks.
By determination dated 23 May 2011 liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 was denied on the basis that it was excluded on the basis that it resulted from reasonable administrative action. By reconsideration dated 25 July 2011, the original determination was revoked and liability accepted for ‘Major Depression – single episode’, with date of injury 31 January 2011.
The Applicant then made an application to the Administrative Appeals Tribunal dated 30 October 2013, which was filed 1 November 2013. The grounds of the appeal were: “Not the compensable injury I claimed for, not the date of injury I claimed for, not afforded natural justice or procedural fairness, NWE under s8 of the SRC Act 1988 not correctly determined, relevant period under s9 of the SRC Act 1988 not considered”.
On 28 January 2013 the Applicant wrote to the Respondent to request an extension of time for reconsideration of the original determination (23 May 2011) and consequent reviewable decision (25 July 2011).
On 22 March 2013, the Respondent wrote to the Applicant and advised her she needs to apply to the AAT if she is dissatisfied with the reviewable decision dated 25 July 2011.
On 2 April 2013 the Respondent wrote to the Applicant in regards to her letter dated 28 January 2013 and stated that in reviewing the correct date of injury, it was satisfied on the medical evidence that the date of injury, 31 January 2011, pursuant to subsection 7(4) of the SRC Act is correct.
On 3 April 2013, the Applicant sent an email to the Respondent requesting a reconsideration of the determination dated 2 April.
On 30 May 2013, the Applicant completed a claim for workers’ compensation claim form for post-traumatic stress disorder and major depression which she states was precipitated by an event on 5 March 2010.
The Applicant completed a statement of claim which she submitted with the claim form dated 30 May 2013 and states she was incapacitated for work from 5 March 2010 and pursuant to subsection 7(4) of the SRC Act, this is the deemed date of injury.
On 20 June 2013, the Applicant requested an extension of time and a request for reconsideration of the determination dated 27 September 2012 regarding her claim for lump sum compensation for permanent impairment.
On 5 July 2013, the Respondent issued a reviewable determination, in regards to the determination dated 27 September 2012, for lump sum compensation for permanent impairment. The review delegate increased the rating for recreation and leisure from 2 to 4 and affirmed all other aspects of the determination.
On 22 August 2013, the Respondent wrote to the Applicant and informed her that the claim form she submitted dated 30 May 2013 includes the same stated cause as the workers’ compensation claim form dated 8 February 2011, which is already accepted. Therefore, the Respondent is unable to consider this claim as a new claim. The Respondent states that the medical evidence regarding Post Traumatic Stress Disorder (PTSD) provided with the claim form has been remitted back for consideration on the already accepted claim.
On 4 September 2013, the Respondent wrote to the Applicant and informed her that liability is accepted under section 14 of the SRC Act for PTSD and that the date of injury is deemed to be 31 January 2011 as there is no medical evidence to suggest that the Applicant was suffering from a diagnosable psychiatric condition outside the bounds of normal mental behaviour and functioning prior to this date.
On 17 September 2013, the Applicant sent an email to the Respondent and requested a reconsideration of the determination dated 22 August 2013 stating she wanted her PTSD accepted as a new condition under section 14 of the SRC Act.
On 17 September 2013, the Respondent emailed the Applicant to inform her that her PTSD condition has been accepted under section 14 of the SRC Act as a new condition in the determination dated 4 September 2013 and that the Respondent’s letter dated 22 August 2013 is not a determination. The Respondent also wrote to the Applicant on 17 September 2013 stating that the only issue the Applicant appeared to be contesting was the date of injury as deemed under subsection 7(4) of the SRC Act. The letter stated that, as section 7 is not listed in section 60 of the SRC Act, it is not a decision which can be considered under section 62 of the SRC Act. It is this refusal to make a reconsideration determination which the Applicant now seeks an extension of time to make an application to the Tribunal to review.
On 27 September 2013, the Respondent wrote to the Applicant and informed her that based on Dr Dellar’s report, the delegate is satisfied that her primary condition is post-traumatic stress disorder with a secondary condition of major depressive disorder and the deemed date of injury is 31 January 2011 on the basis that while the Respondent acknowledge the incident that led to her diagnosis of PTSD occurred on 5 March 2010, there is no medical evidence that the Applicant was suffering from a diagnosable psychiatric condition outside the bounds of normal mental behaviour and functioning.
On 1 November 2013, the Applicant made an application for review of the reviewable decision dated 25 July 2011, which accepted liability for ‘Major Depression – single episode’ under section 14 of the SRC Act.
The decision of Deputy President Hotop in Karen Hutchinson and Comcare [2014] AATA 588 was handed down on 22 August 2014. It is the understanding of the Respondent that it was common ground between the parties that her condition was described as ‘post-traumatic stress disorder and major depressive disorder’. That is the description of the accepted condition in the records of the Respondent. The Tribunal expressed its decision as varying the reviewable decision to describe the injury as ‘major depressive disorder’, although this is actually what the reviewable decision found.
The Tribunal noted at paragraph 59 that the determination dated 4 September 2013 and the letter from the respondent to the applicant dated 27 September 2013, in regards to acceptance of liability for post-traumatic stress disorder were not, ‘and could not validly be’, the subject of the application for review in this proceeding. It is the understanding of the Respondent that the Tribunal noted this in the decision as the applicant contented in her Statement of Facts Issues and Contentions at 1.1 that she sought review of the determination dated 4 September 2013. The Applicant further claimed the respondent had repeatedly refused to issue a reviewable decision in relation to her rquest for reconsideration of the determination dated 4 September 2013.
As a result of these intervening processes, therefore, the only substantive issue before the Tribunal became the date of injury. The correct date of injury for the applicant’s major depressive disorder remains unchanged from 31 January 2011 and while the Tribunal did not make a finding as to the date of injury for the post-traumatic stress disorder condition (we note the Respondent accepted the date of injury to be 31 January 2011 by way of determination dated 4 September 2013), the Tribunal was satisfied post-traumatic stress disorder condition was not present prior to March 2011 or between March 2011 to November 2012.
The Applicant then sought an extension of time to appeal the decision of the Tribunal to the Federal Court. The decision of Justice McKerracher in Karen Hutchinson v Comcare [2014] FCA 1300, was handed down on 1 December 2014. The Court ordered:
1)The application for an extension of time to appeal from a decision of the Administrative Appeals Tribunal dated 22 August 2014 be dismissed.
2)The applicant to pay the costs of the respondent, to be taxed if not agreed.
In his reasons his Honour noted there were difficulties with the applicant’s explanation regarding her delay in filing an appeal, namely, it was unclear if the affidavit dated 25 September 2014 and the sheets identifying the annexures dated 16 October 2014 were in existence on 19 September 2014 which is when the applicant claims she made several unsuccessful attempts to upload her documents (14-15) and her explanation (6.1) was inadequate. His Honour acknowledged the applicant expanded on the difficulties she encountered at the hearing and he accepted her explanation and found a minor delay taken alone would not result in this application being dismissed (20).
In regards to the prospects of the proposed appeal, his Honour found nowhere in any of the material filed or the draft notice of appeal was there pinpointed any specific error and the underlying problem, which was reflected in the lengthy submissions, was that there was no error of law identified (25). His Honour noted, it is often the case with these types of applications, that this is a merits challenge.
The Applicant filed an application with the Tribunal for an extension of time to make an application for review dated 28 April 2016. The Applicant states the reason for the delay is, “I have just become aware that a refusal to make a decision can be considered as a ‘decision’ for the purposes of the AAT Act”.
ISSUE
Ms Hutchinson has applied for an extension of time within which her application for review may be lodged. The issue before the Tribunal is whether it is reasonable in all the circumstances for such an order to be made.
THE RELEVANT LEGISLATION
Section 29(2) of the AAT Act relevantly states: “…the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;”
The Tribunal’s power to extend the time for the making of an application for review is conferred by subs (7) and (8) of s 29 of the AAT Act as follows:
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
Subsection 65(4) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) modifies subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) as follows: “Subsection 29(2) of the Act has effect as if the reference to “the twenty-eighth day” (first occurring) were a reference to “the sixtieth day”. “
EVIDENCE
The Tribunal had before it the following evidence:
·Respondent’s Submission on Extension of Time dated 26 May 2016 (Respondent’s Submission);
·Applicant’s Submission for an Extension of Time dated 3 June 2016 (Applicant’s Submission); and
·The oral evidence of the applicant
CONSIDERATION
As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia [1990] AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows:
(i) It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
(ii) Consideration is to be given to the action taken by the applicant. Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
(iii) Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
(iv) There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices…
(v) Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
(vi) Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.
Although, as held by the Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441, the provision of an acceptable explanation for delay in lodging an application is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of that application, the Full Court said (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered…..”
Length of delay
Section 29(2) of the Act requires that an application for review must be made within 28 days of receipt of the relevant decision. Subsection 65(4) of the SRC Act modifies this requirement such that the prescribed time for making an application is the period commencing on the day on which the decision is made and ending on the sixtieth day after.
In this matter, Ms Hutchinson stated in her application for an extension of time that she received the decision on 17 September 2013 and sought an extension of time until 28 April 2016. The delay is more than two years and five months beyond the prescribed time.
Before the Tribunal, the respondent submitted that: ‘beyond the tribunal hearing in the Federal Court the applicant has not made any – has not taken any action to indicate to the respondent that she was dissatisfied with this decision”. This submission was not contested. The Tribunal notes that some 17 months elapsed between the Federal Court decision and the lodgement of the current application on 28 April 2016.
This consideration does not weigh in favour of granting an extension of time.
Explanation
Ms Hutchinson gave her reason for the application for an extension of time as: “I have just become aware that a refusal to make a decision can be considered as a decision for the purposes of the AAT Act”.
In her written submission, Ms Hutchinson stated:
As stated in my original request to consider granting me an extension of time, I noted that I had only just become aware that a failure to make a decision could be considered as a decision for the purposes of the Administrative Appeals Tribunal Act 1975 (AAT Act) as outlined in Comcare v Muir (2016) FCA 346 (13 April 2016) which noted:
‘[58] If the review officer did not make a decision on the matter of the 009 injury, it is at least arguable that this amounted to a refusal to make a decision…A refusal to make a decision is a “decision” for the purposes of both the AAT Act and the SRC Act: AAT Act, s 3(3)(a); SRC Act, s 60. No such argument was advanced in the present case and it is unnecessary to consider the matter further. That is because I am persuaded that the review officer did make a decision.
[59] If an issue is before a review officer on an application for reconsideration and the officer does not deal with it expressly, (s)he might be taken to have implicitly rejected it.’
Ms Hutchinson further added: “Comcare should also have paid better attention to the decision recently handed down by the Federal Court in the matter of Comcare v Muir (2016) FCA 346 (13 April 2016) before deciding to challenge my request for an extension of time” (Applicant’s Submission 3.4).
In responding to Ms Hutchinson’s explanation contained in her application for an extension of time, the respondent submitted:
… the explanation raised in the Applicant’s application dated 28 April 2016 is not ‘acceptable’ for the purpose of the authorities and is further not substantiated, given the submissions made by the Applicant in her previous Tribunal proceeding. That is, the Applicant made submissions in that proceeding that the Respondent had refused to issue a reviewable decision in respect of the determination of 4 September 2013, by the letter dated 27 September 2013 and that she sought review of that refusal before the Tribunal (Respondent’s Submission 3.6).
The Tribunal notes that by virtue of the definitions in section 3(3) of the AAT Act, the refusal to make a decision on an applicant’s request for reconsideration can by itself be a decision which is capable of review by the Tribunal. Ms Hutchinson’s claim to have only just become aware of this provision does not add weight to the consideration to grant an extension of time. Relevantly, the Tribunal further notes that the matter of Comcare v Muir mentioned above postdates both the prescribed time for Ms Hutchinson to have lodged an application for review and the previous Tribunal proceeding referred to by the respondent in the preceding paragraph: Karen Hutchinson and Comcare [2014] AATA 588.
It is the Tribunal’s opinion that Ms Hutchinson has not provided a compelling or satisfactory explanation for not lodging an application for review with this Tribunal before the expiration of the prescribed period. This opinion is strengthened when Ms Hutchinson’s explanation is considered together with the significant length of delay.
Merits of the substantive application
It is not necessary for the Tribunal to conduct a merits review of Ms Hutchinson’s substantive application at this interlocutory stage. However, it is appropriate for the Tribunal to consider the merits of the substantive application for a review as part of the process of determining this application for an extension of time for lodging the substantive application: Hunter Valley Developments Pty Ltd; Re Johnson (refer to paragraph 37 above).
Before this Tribunal, Ms Hutchinson outlined what she wished to achieve with her substantive application as follows:
All right, so initially this is about a claim for injury that was originally made in 2011. The claim was in regards to an injury that took place on 5 March 2011 – sorry, 2010. And Comcare in determining that injury did not determine the injury that I submitted. They determined an – an entirely separate discrete injury. And – and have continued to deny me any opportunity to have the injury of 5 March 2010 correctly – identified correctly, have the date of – date of injury determined and consequently have denied me my – my correct entitlement in relation to suffering the injury on 5 March 2010. And I – I recently found a precedent in a Federal Court judgement about what the AAT can consider as a – as a decision made for its purposes. So I – I ‘ve taken the opportunity to apply for an extension of time with the tribunal to give them the opportunity to consider the decision that wasn’t made, and that – that Comcare refused to make in relation to the injury of the 5th of the 3rd 2010. And actually use that as a denial, so that I can apply to the AAT to have the matter correctly determined.
In the Respondent’s Submission, the respondent contends that: “…the Applicant’s case has insufficient merit to justify a review. In this regard, the Respondent submits that the issue has already been determined by the Tribunal and affirmed by the Federal Court” (Respondent’s Submission 3.12).
In relation to the previous Tribunal decision, Ms Hutchinson stated in her written submission:
As to the AAT decision referred to by the Respondent in their submission, it was handed down on 22 August 2014 by Deputy President Hotop and was, in its entirety:
‘The decision under review, being the reviewable decision of the respondent made on 21 July 2011, is varied by amending the description of the compensable mental injury suffered by the applicant to “major depressive disorder”, but otherwise affirmed (Applicant’s Submission 1.23).
The Tribunal has reviewed Hutchinson and Comcare [2014] AATA 588 in the context of the present interlocutory matter. The Tribunal notes that in that proceeding the Tribunal considered a significant amount of medical evidence and recorded its extensive consideration and findings at paragraphs 41 – 59. Relevantly, those paragraphs include the following:
…
[54]There is, however, no contemporaneous medical evidence before the Tribunal regarding the applicant’s mental state in the period from 5 March 2010 to 30 January 2011.
…
[57]Having regard to the abovementioned considerations the Tribunal is satisfied, and finds, that:
·Pursuant to s 7(4) of the SRC Act, for the purposes of that act, the applicant is “taken to have sustained an injury, being a disease”, namely, major depressive disorder, on 31 January 2011;
·The applicant subsequently sustained a mental injury, being a “disease” (as defined in s 5B(1) of the SRC Act), namely, post-traumatic stress disorder.
[58]Suffice it to say that, in the Tribunal’s opinion, the medical evidence before it does not, on balance, support the proposition that the applicant was suffering from post-traumatic stress disorder before March 2011 or in the period from March 2011 to November 2012.
[59]Finally, the Tribunal notes that, on 4 September 2013, a delegate of the respondent made a determination accepting liability under s 14 of the SRC Act to pay compensation to the applicant for “Post-Traumatic Stress Disorder”, the “deem(ed) date of injury”, pursuant to s 7(4) of the SRC Act, being 31 January 2011 (see paragraph 9 above). The Tribunal also notes that the same delegate, by letter dated 27 September 2013, notified the applicant that she was satisfied that the applicant’s “primary condition is post traumatic stress disorder with a secondary condition of major depressive disorder” (see paragraph 12 above). That determination, and subsequent letter, however, are not (and could not validly be) the subject of the application for review in this proceeding).
Ms Hutchinson’s subsequent appeal to the Federal Court is detailed at paragraphs 28-30 of the background summary above.
Having regard to all the information before it relevant to the merits of Ms Hutchinson’s substantive application, the Tribunal is not reasonably satisfied that the substantive application has good prospects of success.
Prejudice and fairness
The Respondent’s Submission contains references and submissions on prejudice and particularly public interest considerations (3.9-3.11). The Tribunal accepts these submissions. In her written submission, Ms Hutchinson indicated her support for these considerations, but cautioned the Tribunal “in accepting that the Respondent has been disadvantaged in the manner described because it was the Respondent’s own actions that caused the delay in this matter being correctly determined at the time”. Ms Hutchinson further stated: “I am the only person that has been caused legitimate prejudice and detriment by the ongoing lack of procedural fairness and delay incurred in making a correct decision in relation to this matter” (Applicant’s Submission 3.7-3.8).
Turning to the consideration of fairness, the respondent submitted:
The Respondent also submits that considerations of fairness between the Applicant and other persons otherwise in a like position is a relevant consideration. In this regard, the Respondent submits that there would be an inequitable situation which would result from granting an extension to the Applicant, while other applicants in similar situations have not been given an extension of time on the basis of the statutory time limitation (Respondent’s Submission 3.13).
The Tribunal accepts the respondent’s general proposition as it relates to extension of time applications, and notes Ms Hutchinson’s contention relevant to this extension of time application that: “The only unfairness that has been perpetuated by this matter being unresolved for such a long period of time has been to me, as the Respondent intended from the start.” (Applicant’s Submission 3.13). There was no evidence before the Tribunal to support this claim of intentional unfairness on the part of Comcare.
The Tribunal includes these factors of prejudice and fairness in its weighing for or against the granting of an extension of time, but does not consider them to merit the level of consideration afforded the more significant factors of length of delay, explanation for the delay and the merits of the substantive application.
CONCLUSION
The Tribunal, having regard to all the evidence and the circumstances of this application, and weighing the relevant considerations listed above, concludes that it is not reasonable in all the circumstances for an extension of time to be granted.
DECISION
For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the Act, the applicant’s application for an extension of time to lodge an application for review of a decision by a delegate of Comcare, dated, 17 September 2013.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member ........[Sgd]................................................................
Administrative Assistant
Dated 29 August 2016
Date of hearing 4 July 2016 Applicant Self-represented (by telephone) Representative for the
RespondentMr A Nawaz
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