JAQ SIMONS and AUSTRALIAN POSTAL CORPORATION
[2012] AATA 363
•15 June 2012
[2012] AATA 363
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1330
Re
JAQ SIMONS
APPLICANT
And
AUSTRALIAN POSTAL CORPORATION
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 15 June 2012 Place Melbourne Decision Summary The Tribunal refuses the application for extension of time.
[sgd]............................................
Miss E A Shanahan, Member
WORKERS COMPENSATION – extension of time ) application – delay of three years – failure to request review within 60 days – failure to obtain legal representation – financial considerations – failure to lodge supporting medical opinions – prejudice to the respondent – merit of the substantial application – extension of time refused.
Legislation Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re Becek and Department of Immigration and Citizenship [2012] AATA 237
REASONS FOR DECISION
Miss E A Shanahan, Member
On 5 April 2012 Mr Simons lodged an application for an extension of time for review of the reviewable decision of 25 February 2009, pursuant to s 29(7) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The reviewable decision confirmed the Respondent’s decision of 6 January 2009, which denied liability for Mr Simons’ claim for torn tendon right shoulder allegedly sustained in a fall at work on 20 August 2008. In accordance with s 65 of the SRC Act, the Respondent advised Mr Simons that he had 60 days in which to seek review of the decision by the Administrative Appeals Tribunal (AAT); that is until 26 April 2009. Mr Simons received a copy of the reviewable decision but did not act until 5 April 2012.
Mr Simons was self-represented. Ms Ann McMahon of counsel instructed by Mr Michael, Manager of Litigation appeared for the Respondent. The Tribunal was provided with a sworn affidavit by Mr Michael dated 2 May 2012 and the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T-documents). In 2011 Mr Simons had sought review by the AAT of a decision of the Department of Families, Housing, Community Services and Indigenous Affairs. This file was also available to the Tribunal (the AAT file).
BACKGROUND TO THE APPLICATION
Mr Simons commenced work with Australia Post on 11 February 2008 as a postal van driver. He previously worked for one year as a shuttle bus driver at Tullamarine Airport and prior to that as a tow truck driver. He stated he had last worked for Adams Towing in June 2007.
On 1 August 2008 Mr Simons suffered a glancing blow to the right eye from a parcel, which dislodged his contact lens. The Respondent accepted liability for the loss of the contact lens. On 21 August 2008 Mr Simons reported tripping on the bolt securing the roller door of his post van, injuring his left eye. He did not lodge a claim for compensation.
Between 25 September 2008 and 31 October 2008, Mr Simons was on leave, travelling overseas. On 20 November 2008 he lodged an incident report stating that he had developed right shoulder and hip pain on 10 November 2008. He reported that this was due to an aggravation of a previous incident which occurred some months ago when I fell and tripped on an obstacle on the ground and fell headfirst onto a parcel within the van. Mr Simons said this previous incident occurred on 20 August 2008.
On 6 January 2009 the Respondent denied liability for a torn tendon right shoulder was denied as Mr Simons had not reported any injury to his right shoulder and hip on 21 August 2008; had worked normal hours at his usual duties until he went overseas on 25 September 2008; and he did not seek any medical treatment for these conditions until 20 November 2008. The Respondent also suspected that Mr Simons had continued to work for the tow truck company as he had been unavailable for overtime with Australia Post on Sundays. Mr Simons denied having a second job with Adams Towing.
Mr Simons was represented by Maurice Blackburn, solicitors, in January and February 2009 but apparently not thereafter.
ORAL EVIDENCE BEFORE THE TRIBUNAL
Mr Simons gave evidence that the delay in lodging an application for a review with the AAT was due to difficulty in obtaining legal representation. He said he had initially retained Maurice Blackburn on a contingency fee basis but could not afford the cost of obtaining independent medical opinions which he was required to fund upfront. He consulted at least six other legal firms, none of whom were willing to represent him.
Mr Simons informed the Tribunal that he had qualified for the disability support pension (DSP) in 2011. He said that in the same year he had successfully applied for payment of a total and permanent disablement (TPD) benefit from his superannuation fund. He considered he was now in a more stable financial position and could possibly meet the costs of legal representation. Currently Mr Simons is attending a psychologist, a rheumatologist and the orthopaedic clinic at Northern Hospital. He said he has had several steroid injections into his right shoulder and hip, with pain relief lasting only two days.
DOCUMENTARY EVIDENCE
The T-documents contain very little in the way of medical evidence. The only reports are certificates from general practitioners containing the diagnoses of right shoulder strain and right hip strain. Mr Simons referred to specialist reports obtained by the Trustee of his superannuation fund and those generated for his DSP application. He has not provided any of these to the Tribunal, although he has copies in his possession or at least reference has been made to them in the decisions of the Trustee and in the AAT file respectively. He does not have any medical reports relating to his right shoulder pathology dating from 2008.
The Tribunal had access to the AAT file, which contained Mr Simons’ application for review of the Social Security Appeals Tribunal decision dated 3 March 2011 to reject his claim for DSP. That matter did not proceed to hearing as by consent the parties agreed on 8 December 2011 that Mr Simons qualified for the DSP, with payment being backdated to 9 March 2010. This file contains reports of MRI studies of the right shoulder and right hip. The MRI of the right shoulder was performed on 13 July 2009 and revealed defuse attenuation (thinning) of the shoulder muscles and minimal thickening of the subacromial bursa. The MRI of the right hip was performed on 7 December 2009 and showed a moderate sized tear in the labral cartilage in the hip joint with a minor loss of such cartilage. There was minor trochanteric bursitis.
RELEVANT LEGISLATION
Sections 29(7) to 29(11) of the AAT Act relate to extension of time for making an application. Subsection (7) states:
(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.
Subsections (8), (9) and (10) relate to the procedure to be followed with such applications.
SUBMISSIONS
Mr Simons did not make a formal submission.
Ms McMahon submitted that the Respondent had been severely prejudiced in defending the matter as it has and had no opportunity to obtain medical opinions within a reasonable period of the alleged work injury; that the Applicant had not provided contemporaneous medical reports and that he has not filed or provided those medical reports generated for his DSP and TPD benefit claims. Given that Mr Simons has managed unaided to deal successfully with both of the latter claims, Ms McMahon contended that he was capable of giving similar attention and effort to review of the Respondent’s reviewable decision.
Ms McMahon pointed out that Mr Simons had not sought review of the Respondent’s decision on 25 February 2009, within the statutory prescribed time of 60 days, despite acknowledging receipt of the decision and presumably reading it.
TRIBUNAL’S DELIBERATIONS AND DECISION
The evidence before the Tribunal strongly suggests that Mr Simons has rested on his rights (Fisher J in Doyle v Chief of Staff (1982) 42 ALR) for the past three years. This, he argues, was due to his inability to obtain legal representation and the lack of financial resources needed to obtain expert medical opinions. However, Mr Simons does have in his possession such opinions obtained by other parties and has not, for reasons that are unclear, provided these to the Respondent or the Tribunal. I exclude those reports available to the Tribunal on the AAT file other than the MRI reports.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J set out the principles to guide, not in any exhaustive manner, the exercise of the court's discretion: in relation to applications for an extension of time for review. These are contained in paragraphs 1 to 6 of pages 348 to 349 of the decision of the court. Paragraph 1, p348 states:
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 28 days is not to be ignored ... 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.
Paragraph 2, p348 states:
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. ...
The third principle is contained in paragraph 3, p349 which states:
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: ...
Paragraph 4, p349 states:
However, the mere absence of prejudice is not enough to justify the grant of an extension: ...
At paragraph 5, p349 Wilcox J stated:
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. ...
and at paragraph 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: ...
These principles and their application have been considered by the AAT on many occasions, most recently in some detail by Senior Member K Bean in Re Becek and Department of Immigration and Citizenship [2012] AATA 237.
Mr Simons was made aware of the prescribed period of 60 days in which he was required to apply to the AAT for review of the Respondent’s decision of 25 February 2009. He acknowledges he received the written reviewable decision.
Mr Simons said the delay was due to his inability to obtain legal representation and financial considerations. While these factors could prolong the pre-hearing process leading to the final disposition of the dispute, they do not prevent the filing of an application for a review by the AAT.
The prejudice to the Respondent occasioned by Mr Simons’ three year delay in seeking review is insurmountable. As Ms McMahon said, the Respondent has not had the opportunity to obtain contemporaneous medical opinions and has not had access to medical opinions obtained for other purposes in the past one to two years.
The merits of Mr Simons’ application for compensation are extremely difficult to assess given the lack of adequate medical reports and opinions before the Tribunal. The likelihood of obtaining such data from 2008 and 2009 seems remote. On 20 November 2008 Dr Branson certified Mr Simons as having right shoulder strain and right hip strain; and on 5 December 2008 Dr Tunaley certified him as suffering from right supraspinatus tear in shoulder. These certificates were provided some three months after the fall on 21 August 2008, which had resulted in an injury to Mr Simons’ left eye but no reported injury to his shoulder or his hip.
Applying the Hunter Valley principles, the Tribunal refuses Mr Simons’ application for an extension of time.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. ........................................................................
Administrative Assistant
Dated 15 June 2012
Date of hearing 7 May 2012 Date final submissions received
Advocate for Applicant
3 May 2012
Self-represented
Counsel for the Respondent Ms Ann McMahon Advocate for the Respondent Mr Cliff Michael, Australian Postal Commission
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