Janine Connors and Comcare
[2012] AATA 863
•3 December 2012
[2012] AATA 863
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/3502
Re
Janine Connors
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 3 December 2012 Place Canberra The application for reinstatement is rejected.
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Mr S. Webb, Member
COMPENSATION – accepted injury – aggravation of episode of schizophrenia – claim for permanent impairment compensation – failure to appear – application dismissed – request for reinstatement – factors to be considered – no reasonable excuse for failure to appear – history of delays – weak case – Applicant attempting to agitate matters in excess of jurisdiction – request rejected
Administrative Appeals Tribunal Act 1975 (Cth) s 42A
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19, 24
Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133
Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241
REASONS FOR DECISION
Mr S. Webb, Member
3 December 2012
Janine Connors was employed by the Australian Federal Police. She lived away from her family and suffered an episode of schizophrenia. She claimed compensation. Comcare initially rejected her claim but agreed to settle previous proceedings before the Tribunal by consent. Ms Connors was paid weekly compensation for a closed period. Subsequently, Ms Connors claimed compensation for permanent impairment as a result of the injury. This claim was rejected by primary determination and on reconsideration. Ms Connors applied to the Tribunal for review.
After many delays, a hearing was listed to take place on 12 July 2012. On the day, Ms Connors appeared but immediately asked for an adjournment for the purpose of seeking assistance from the Aboriginal Legal Service. Her request was granted, but legal assistance was not forthcoming, and a further hearing was listed to take place on 21 September 2012. On 19 September, Ms Connors informed the Tribunal that she would be unable to attend the hearing as she was in a place far removed from the listed venue with insufficient money to fund her return. The hearing was vacated and the matter was again listed for hearing on 19 October 2012. On the day set down, Ms Connors failed to appear without notice. The Tribunal telephoned Ms Connors at 10.05am to ascertain her intentions. Ms Connors said she had car problems, but she would be able to travel by train to attend the hearing – she lived within walking distance of a train station. The hearing was adjourned to 11.30am. Despite her undertaking, Ms Connors failed to appear and the Tribunal’s further efforts to contact her by telephone that day were unsuccessful.
In the circumstances, I dismissed her application under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Ms Connors was duly notified and provided with a copy of the dismissal order.
On 8 November 2012, the Tribunal received an email from Ms Connors (dated 7 November 2012), requesting reinstatement of her application –
“i’d like to have my claim reinstated the reason why i couldn’t make the hearing on 19th october was that i had car problems & could you please talk to my case manager at comcare james or Patrick about requesting early release of payments paid by my employer whilst i’m waiting for comcare payments due to hardship.”
Comcare informed the Tribunal that it opposed reinstatement of Ms Connors’ application.
A hearing was set down for 3 December 2012 to deal with Ms Connors’ request.
Ms Connors appeared at the reinstatement hearing by telephone. I explained the purpose of the hearing to her and the factors that I would need to take into account when considering her request for reinstatement. Ms Connors appeared to understand the purpose of the hearing and the issues that would be discussed. She gave a cogent explanation of her reasons for requesting reinstatement of her application.
She informed me that the reason why she did not travel by train to attend the previous listed hearing on 19 October, as she said she would, was that it was too hot and she did not feel like walking to the station.
She told me that she is in financial hardship and that she wants her compensation reinstated. She explained that she is still suffering from the condition that was caused by her employment, and that it requires on-going medical treatment, and she should be properly compensated for this condition. Ms Connors was critical of Comcare’s agreement to pay compensation to her for one year only, and she would like her compensation payments to continue.
When considering a request to reinstate an application that has been dismissed under s 42A(2) of the AAT Act, and the person who made the application applies for reinstatement within 28 days, the Tribunal has discretion under s 42A(9) to reinstate the application if it considers that it is appropriate to do so. The factors that should be considered when exercising the discretion have been discussed in a number of cases[1]. In short, the Tribunal should consider all of the relevant circumstances and factors and in particular whether there is any reasonable prospect of the application succeeding if it is reinstated – whether the person seeking reinstatement can establish a prima facie case, albeit untested. Of equal importance are issues of fairness. Fairness to the requesting party, in terms of being permitted to present his or her case; fairness to the other party, in terms of prejudice for example; and fairness generally, to others in similar circumstances, in terms of a consistent and principled approach. Other circumstances that it may be relevant to consider include the reasonableness of any excuse for the failing or failings that caused the application to be dismissed and the health of the person seeking reinstatement at relevant times.
[1] See, for example, Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133 at 135 and Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241 at 243 - 246.
Ms Connors’ case concerns her claim for payment of compensation for permanent impairment resulting from the injury for which Comcare accepted liability. The injury is an aggravation of an episode of schizophrenia in 1996. It appears that Ms Connors’ previous employment required her to live away from her family and that this separation was an operative factor in the onset of the episode that occurred in 1996. So much was accepted by Comcare when it accepted liability for an injury under s 14.
The psychiatric evidence of Dr Robinson proceeds on the acceptance of Ms Connors’ account of difficulties with Aboriginal people who became aware of her role providing information about Aboriginal drug dealing. There is no evidence to support or corroborate Ms Connors’ account. The federal agent to who she says she gave information expressly denies that this occurred. The employment evidence establishes that Ms Connors was an administrative officer who took on the role of an Aboriginal Liaison Officer – she did not appear to have an operational role. On 23 September 1996 she travelled to Canberra with colleagues to attend an Aboriginal Network meeting. And it was in this context that the episode began.
The medical evidence clearly suggests that Ms Connors’ schizophrenia is likely to be a life-long condition that was not caused by factors unrelated to her previous employment. Ms Connors’ assertion that events in her employment caused or significantly contributed to the schizophrenia she now suffers is not supported by the evidence I have seen. It is conceivable that the aggravation injury she suffered in 1996 continues, but there is little evidence to support this.
As to the proposition that the 1996 episode of schizophrenia was the first, purportedly marking the onset of the disorder, there is some evidence that suggests Ms Connors may have suffered earlier, undiagnosed, episodes during her teenage years.
The overwhelming weight of the medical evidence is that the episode Ms Connors suffered in 1996, in relation to which Comcare accepted liability, was effectively treated over a period of months and Ms Connors appears to have recovered by March 1997, when she claimed compensation. Subsequently, Ms Connors has suffered a number of episodes of schizophrenia of varying severity. The preponderant weight of the medical evidence is these episodes are part of the natural progress of the disease, albeit exacerbated by Ms Connors’ non-compliance with medical treatment regimes from time to time, and by her abuse of alcohol and drugs. Ms Connors maintains that her illness is the result of cultural actions taken against her by Aboriginal people in consequence of her alleged role providing information to a Federal Agent about drug dealing in the Aboriginal community. This proposition is not supported by probative evidence.
The issue for determination in the application that was dismissed relates solely to Ms Connors’ entitlement, if any, to compensation for permanent impairment resulting from her accepted injury. The medical evidence establishes that she suffers increased levels of psychiatric impairment when she is not taking medication to treat her schizophrenia, and a residual lower level of impairment even when she is compliant with the medical treatment prescribed. But the present evidence does not establish that this impairment is the result of the aggravation injury she suffered in 1996, rather it is likely to be the result of her progressive and ongoing illness.
Having regard to the matters set out in s 24(2), there is no probative medical evidence to support the contention that the aggravation injury for which liability has been accepted in relation to the 1996 episode resulted in a permanent impairment. Furthermore, for Ms Connors to succeed in her application, if reinstated, she would need to establish that the degree of any permanent impairment is of 10 percent or more under s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). There is simply no evidence whatsoever to support such a proposition.
Thus, to my mind, there is no readily discernable prima facie case and Ms Connors’ application. If it were to be reinstated it would have little prospect of success. On the present evidence, it is difficult to see how she could succeed at all.
If Ms Connors’ application is not reinstated, she will be denied an opportunity to present her case. That may appear to be unfair to her. But, as I have said, it is difficult to find merit in her case on the present evidence.
Comcare has been put to costs at least twice in appearing at hearings in Ms Connors’ application that have been rendered abortive. There is a risk of further prejudice of this kind if the matter is reinstated. Furthermore, if the application is reinstated and it proceeds to hearing, and Ms Connors were to appear, Comcare would be put to costs in a case that lacks merit.
It is clear that Ms Connors has an on-going psychiatric illness. There is no evidence before me that her judgement was impaired on 19 October 2012, when she failed to appear at the hearing. She made no complaint of that kind on the day, when she was contacted on the telephone by the Tribunal; and she made no suggestions to that effect during the hearing today.
There is no error of any relevance that I am able to detect in the dismissal of her application, and none has been identified or pressed by either party. Ms Connors was provided with adequate notice of the hearing (and those earlier listings for hearing that were rendered abortive). She was given leeway on the day in light of her asserted car problems. Even so, she failed to appear and she failed to inform the Tribunal of her intentions at the time. The explanation she has provided today is simply that it was hot and she did not feel like walking to the train station, even though she had informed the Tribunal that she would. This is not an explanation that requires further comment – it is a poor excuse.
Having heard Ms Connors, it appears to me that she is seeking to re-open her previous claim for weekly payments of compensation in respect of incapacity for work resulting from her accepted 1996 injury. In her application for reinstatement, she referred to matters of this kind. I have made it clear to Ms Connors that the Tribunal has no jurisdiction to address this matter. Counsel for Comcare, Rhonda Henderson, observed, correctly, that there is no bar to Ms Connors making a fresh claim for compensation of that kind and, if she does so, her claim would be assessed on the merits. Ms Connors informed me that she has made such a claim and it is presently being held by Comcare, pending the outcome of the Tribunal proceedings. If this is correct, it simply reinforces the point that the Tribunal has no jurisdiction to address matters relating to the claim for weekly compensation.
In sum, on balance, I am satisfied that it is not appropriate to reinstate Ms Connors’ application and it is not appropriate in the particular circumstances to exercise discretion to reinstate her application. Ms Connors’ application for reinstatement is rejected.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. .............................[sgd].......................................
Associate
Dated 3 December 2012
Date of hearing 3 December 2012 Applicant In person Counsel for the Respondent Ms R. Henderson Solicitors for the Respondent Australian Government Solicitor
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