Karam and Comcare (Compensation)

[2020] AATA 64

Karam and Comcare (Compensation) [2020] AATA 64 (24 January 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4980

Re:Ayman Karam

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:24 January 2020

Place:Sydney

The Applicant’s application to extend the time within which his application for review may be made under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.

....................[sgd].................................................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

EXTENSION OF TIME – applicant seeking an extension of time to make an application to review a decision – whether application for extension of time is reasonable in all the circumstances – prejudice to the respondent and general public – whether the applicant rested on his rights – merits of the substantial application –extension of time refused

LEGISLATION

Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449

Comcare v A'Hearn [1993] FCA 498
Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344
Noonan  and Comcare (Compensation) [2019] AATA 515
Peters v Comcare (2013) FCA 808

Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

CASES

Administrative Appeals Act 1975 (Cth) ss 29

Administrative Decisions (Judicial Review) Act1977 (Cth) ss 11

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

24 January 2020

DECISION

1. The Applicant’s application to extend the time within which his application for review may be made under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is refused.

   BACKGROUND

2. The Applicant was employed by the Department of Agriculture and Water Resources since 2001 as a biosecurity officer. On 24 December 2018 he submitted a claim for workers’ compensation in respect of an adjustment disorder with depressed mood and anxiety allegedly arising from harassment at work by supervisors. On 19 February 2019 his claim was rejected by the Respondent (Comcare), the employer’s insurer. Comcare denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

3. Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

4. Injury is defined in s 5A of the SRC Act:

   5A Definition of injury

   (1) In this Act:

   injury means:

   (a) a disease suffered by an employee; or

   (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

   (a) a reasonable appraisal of the employee’s performance;

   (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

   (c) a reasonable suspension action in respect of the employee’s employment;

   (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

   (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

   (f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

5. Comcare determined that the applicant’s employment did not significantly contribute to his claimed psychological condition or alternatively, that even if it was found that his employment significantly contributed to his claimed condition, liability would be excluded pursuant to s 5A(2) of the SRC Act, as it was suffered as a result of reasonable administrative action undertaken in a reasonable manner.

6. On 25 March 2019, Comcare affirmed the decision of 19 February 2019, denying liability under s 14 of the SRC Act (‘the Reviewable Decision’). This letter of decision advised:

   There is a time limit of 60 days from the day you receive the reviewable decision in which to lodge the application but, in some cases, an extension of time may be granted by the AAT. [1]

   [1] Subsection 65(4) of the SRC Act modifies s 29(2) of the AAT Act such that the prescribed time for making an application for review by the Tribunal of a reviewable decision is the period ending on the sixtieth day after the decision is given to the Applicant.

7. An application to review the reviewable decision was due on or before 24 May 2019. On 16 August 2019 the Applicant lodged an Extension of Time (EOT) application to lodge his application to appeal the reviewable decision. The application for an EOT was necessary because the application was 84 days out of time. On 30 August 2019 the Respondent filed a notice opposing the application.

8. The matter came before the Tribunal on 20 September 2019. The Applicant was self-represented and the Respondent was represented by a solicitor. After hearing from both parties on the matter of an Extension of Time I made an Order allowing the applicant to file further material with the Tribunal and for any such material to be served on the Respondent.

9. On 27 September 2019 the Applicant provided further medical reports bearing upon his mental health during and after the appeal period.

10. I have considered this further material and had recourse to the Respondent’s Written Submissions (provided on 10 October 2019) and Further Written Submissions (provided on 23 October 2019) relating to the merits of the substantive application).

    The discretion to grant an Extension of Time

11. Section 29(7) of the AAT Act provides:

    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.

12. If the Tribunal is satisfied that it is reasonable in all the circumstances to grant an application for an extension of time then it has the power under 29(7) of the AAT Act to do so. The section does not set out any specific criteria by reference to which the discretion to grant an extension should be exercised.

13. Where the relevant statutory provision is silent as to the specific criteria to be applied in granting an extension of time, certain factors have been identified as especially important. In Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344 (‘Hunter Valley’), Wilcox J identified certain key factors in the context of s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (at 348-9). The Hunter Valley decision has been widely applied and refined in administrative proceedings.[2]

    [2] See Noonan and Comcare (Compensation) [2019] AATA 515, at [11]; Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449, at [48]; Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, at [10]; Comcare v A'Hearn [1993] FCA 498, at [11].

14. In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, at [10] the Federal Magistrates Court stated:

    [I]it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:

    1.    There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).

    2.    It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21: (1992) 1 VR 297 at 302).

    3.    Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124: (1982) 42 ALR 283 at 287).

    4.    Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287).

    5.    The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

    6.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).

    7.    Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528; [1983] FCA 94).

15. In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] Middleton J said, in the context of an application for an extension of time under human rights legislation, that the main three considerations were:

    ·the explanation of the delay;

    ·any prejudice to the respondent; and

    ·whether the applicant has an arguable case.

16. The Tribunal cannot lawfully be satisfied that it is reasonable to grant an extension of time unless positively satisfied that it is proper to do so.

    The explanation for delay

17. The reason given by the Applicant for requesting an Extension of Time is that he was not in a fit mental or physical state to apply for the review of the decision, and only did so due to encouragement from his family, friends and treating psychiatrist and psychologist. He states:

    I was not in a fit state to take the matter to the tribunal til now …[as] the two rejections of my claim by Comcare impacted me heavily. I suffered from low self-esteem, increased stress and a frozen ability to do much in life. Many of my friends, family members as well counselling from my psychiatrists and physiologist, who are aware of the circumstances, have encouraged me to apply to the Administrative Appeals Tribunal. I did not want to. I was so scared to be exposed to further legal and medical examination in the state I was in. I had lost all hope of achieving justice and returning to my full physical and mental health. I struggled against all my fears to apply for an extension, as I believe the tribunal is the only body that is able to allow justice to be served, as I have lost total faith in the management of my workplace and Comcare.

18. The Respondent relies heavily upon Noonan and Comcare (Compensation) [2019] AATA 515 where an extension of time of approximately six months was denied despite the psychological frailty of the Applicant.

19. The Tribunal has before it a number of relevant medical and psychiatric reports. Four of the reports relate to the period prior to the filing of the application for review.

    (a)On 18 June 2018 Dr Ashraf Phillips, consultant psychiatrist, examined the Applicant and stated that the Applicant “does not have any evidence of mental health issues as evidenced through history and mental state examination”.   

    (b)On 20 June 2018 Dr Bradley Ng, consultant psychiatrist, assessed the Applicant.  He concluded that the Applicant suffered from an adjustment disorder with depression and anxiety, mild severity, and recommended further treatment under the supervision of his general practitioner. There was no evidence that he suffered from a severe psychiatric disorder characterised by psychosis, mania, depression or anxiety. Nor did he see evidence of a personality disorder in the Applicant. 

    (c)On 27 November 2018 Dr Michael Hong, consultant psychiatrist, assessed the Applicant to be suffering from an adjustment disorder that was evolving into a major depressive disorder.

    (d)On 6 February 2019 Dr Graham George, consultant psychiatrist, assessed the Applicant. In a report dated 12 February 2019, Dr George asserted the possibility that the Applicant had an underlying bipolar disorder (hypomanic phase). Dr George stated: “at this stage, he would not necessarily be diagnosed with an ongoing adjustment disorder.” 

20. These Reports span a period of roughly eight months in the second half of 2018 and into 2019. The clinical depiction is of a person suffering from at the very least an adjustment disorder, of somewhat excitable nature and personality, and showing signs of considerable stress and anxiety, and some deterioration of mental health.

21. On 21 March 2019, Dr Michael Hong reassessed the Applicant at the request of the Respondent. Dr Hong identified certain barriers to ongoing employment in the pre-injury workplace. He was not able to recommend a return to work to the position previously assigned to him. He noted:

    [The Applicant’s] treating doctors have consistently diagnosed an adjustment disorder. In my last assessment I considered that [the Applicant] suffered from an adjustment disorder which had evolved into major depressive disorder. I noted a new report from Dr George who had considered the possibility of bipolar disorder, although he did not confirm the condition. Dr George also discussed the possibility of narcissistic personality as an underlying condition. Having reassessed the [Applicant], my view is that he suffered an adjustment disorder which occurred as an interplay between the described workplace events, interaction with various supervisors and his personality. I do not have evidence that he suffers a personality disorder.

22. In respect of the question whether the Applicant was fit to return to work, Dr Hong stated as follows:

    [The Applicant] has felt improved compared to last assessment and described being able to do more day-to-day, helping with the children and at the church, and perform various household chores and home repairs. He remains on the same psychiatric medication and has been having regular consultation with his psychiatrist. In my opinion [the Applicant’s] prognosis is steady at this point onwards. In my opinion his condition is unlikely to resolve until he is satisfied that the people that had bullied him are dealt with fully, and he is no longer going to be subjected to perceived bullying and harassment. However, I consider that this is unlikely to be achieved to his level of satisfaction and therefore, it seems unlikely that he will gain full resolution of his condition over time.

    [The applicant] described being reasonably productive at home and also with the local church. He experienced significant anxiety when he was near Port Botany. In my opinion it is unlikely that further treatment will offer substantial improvement and it is unlikely he could return to his pre-injury duties with the same group of people and maintain psychological stability, particularly as his perception of being bullied and harassed, in unlikely to be ameliorated.

23. As noted above, the prescribed period ended on 24 May 2019. I am required to consider the state of the Applicant’s mental health over the period of 12 weeks ending on 16 August 2019.

24. The Applicant provided the Tribunal with medical reports relating to this later period:

    (a)On 20 September 2019, Dr Ashraf Philips, consultant psychiatrist, provided a report. Dr Philips stated that the applicant had been under his care since June 2018 and that there was “no evidence of bipolar disorder seen on regular review.” He stated: “The depression, anxiety and unhealthy coping mechanisms may have led to missing his deadline of applying to important matters, e.g. Tribunal appeal deadline.” 

    (b)Dr Mourad Nosir, General Medical Practitioner, provided a medical certificate dated 25 September 2019 in which he stated that the Applicant was then suffering “from anxiety, depression and adjustment disorders due to problems at work. He was unable to meet the deadline to apply to the tribunal because of his condition.”

    (c)Dr Hala Gobran, General Medical Practitioner, provided a report dated 26 September 2019. She stated that the Applicant had been under her care for two years. She noted that his mental health had declined by reason of his perceived bullying at work. She noted that his psychiatrist was seeing him regularly, that he was on antidepressants and antianxiety treatment but he was not progressing. She continued:

    He was further depressed by the unfavourable decision of Comcare. He knew he had to challenge the decision and provide supporting evidence for his case but despite repeated counselling he was not able to motivate himself to do so. I have witnessed his downhill deterioration. His anxiety level was significant enough to prevent him from changing his situation. In fact it was reported in the early intervention report that he was encouraged to lodge a worker’s compensation claim few times and he was failing to initiate the process due to his fear depression and anxiety.

    It took him nearly five months of very regular counselling by his psychologist in addition to psychotherapy sessions with his psychiatrist Dr Ashraf Philips and a lot of support provided by myself (sic) because I was confident that his condition was purely adjustment disorder. He was also compliant with his pharmacological treatment.

    [The applicant] has no previous psychiatric history.

    I can categorically discount the diagnosis of bipolar disorder. Clinically I agree with the diagnosis of the two other psychiatrists that his condition is depression, anxiety and adjustment disorder manifesting in low mood and lack of motivation, withdrawal, lack of confidence, insomnia plus all the anxiety symptoms listed before.

    (d)Mr Medhat Metry, psychologist, by letter dated 4 October 2019 stated that “it appears that the applicant is suffering from Adjustment Disorder with Anxiety and Depressed Mood as result of work related problems”. Mr Metry outlined the nature of the therapy that the Applicant was receiving. He concluded by saying: “It appears that [the Applicant’s] psychological difficulties have clearly had a negative impact on the quality of his life, as a result he was unable to meet the deadline to apply to the tribunal”.

25. In summary, the evidence of one psychiatrist (Dr Philips), two general practitioners (Dr Nosir, Dr Gobran) and a psychologist (Mr Metry) is that his failure to agitate his appeal rights within the prescribed time is related to the deterioration of his mental health.

26. As against this, the Applicant’s medical certificates dated from 8 April 2019 to 2 August 2019 show that since 8 April 2019 he was consistently certified to work 22.5 hours per week. The latest medical certificate (dated 26 August 2019) certifies that he is fit to work 30 hours per week. For example, on 7 May 2019 Dr Gobran stated that the:

    [Applicant] is fit to return to suitable duties as agreed in conference with HR and Rehabilitation Provider. He will work 7 hours/day, 3 days weekly from, 1 May 2019 to 31 May 2019 inclusive in an area with less stress also as agreed in the RTW conference.

1. I note that the deadline for the application was 24 May 2019 and that on 26 September 2019 Dr Gobran opined that his condition is depression, anxiety and adjustment disorder manifesting in low mood and lack of motivation, withdrawal, lack of confidence, insomnia plus all the anxiety symptoms listed before.

2. The Respondent submitted (para 12(b) of the written submissions of 10 October 2019) that the ORAMS Early Intervention Rehabilitation Program Progress Report dated 1 July 2019 was against the Applicant. The Report stated that the Applicant had commenced suitable duties and was conducting basic administrative duties relating to vehicle maintenance, record-keeping and general administrative duties for 22.5 hours per week. 

3. I am not positively satisfied that the explanation for the delay is credible in light of the medical and rehabilitation record. The unfavourable Comcare determination was no doubt a setback such that even a person of normal fortitude might be depressed or demoralised. The evidence suggests that the Applicant was susceptible to criticism and liable to react with anger and frustration. He laboured under a handicap not shared by most other members of the community. It is however difficult to accept that he was unable to exercise his legal rights. According to the reports, he was then undertaking responsible administrative tasks three days a week. He was certified fit to work three days a week. While his fragile mental state must be taken into account, the evidence does not point to such a degree of incapacity so as to deprive him of the capacity to deal with the procedures necessary to engage his rights of review. I conclude that he has not provided a satisfactory explanation for the delay.

   Prejudice to the Respondent

4. The third and fourth points noted by Wilcox J in Hunter Valley refer to prejudice to the Respondent. His Honour referred to:

   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…. However, the mere absence of prejudice is not enough to justify the grant of an extension…In this context, public considerations often intrude... A delay which may result, if the application is successful, in the unsettling of other people…or of established practices…is likely to prove fatal to the application.

5. In this case the prejudice suffered by the Respondent is not to be lightly dismissed. The Respondent asserts:

   [T]he respondent, as an insurer and a public institution, has a significant interest in knowing that it has no liabilities beyond a definite period, and submits that it is inherently prejudiced if it is unable to arrange its affairs and utilise its resources on the basis that claims can no longer be made against it.

6. The Respondent also notes the observation by Bromberg J in Peters v Comcare (2013) FCA 808 that the mere absence of prejudice to the Respondent does not mean that the request for an extension must be granted. The Respondent also notes the observation by Wilcox J in Hunter Valley “in cases involving public administration, especially day-to-day matters such as personnel management, the public interest may well dictate refusal or an extension even after only a short delay”.

   Does the Applicant have an arguable case?

7. An extension of time application should be refused where it appears that the merits of the substantive application are futile. In determining whether there is at least an arguable case in favour of the applicant, one should have regard to the evidence supporting the application, without undertaking a wholesale merits review. It is of course not incumbent on the applicant to show that the substantive application is likely to succeed.

8. The Applicant points to psychiatric assessments performed by three psychiatrists who examined him: Dr Hong, Dr Ng, and Dr Philips. He says that those reports are at odds with the later report prepared by Dr George, which diagnosed bipolar as a possibility.

   (a)Dr Hong recommended that the applicant was fit to return to work gradually with modified duties that require less stress and cognitive demand, in an environment away from his pre-injury workplace. 

   (b)Dr Ng found that the applicant was suffering from adjustment disorder with depressed mood and anxiety, currently of mild severity.  He recommended that the applicant was fit for his usual hours and duties.

   (c)Dr Philips examined the applicant on 15 June 2018 and found no evidence of mental health issues.

9. In the determination letter of 25 March 2019, the Review Officer stated:

   “In reviewing the evidence, there is sufficient evidence to support a finding that you sustained an ailment which is outside the boundaries of normal mental functioning and behaviour. The precise diagnosis is subject to confirmation by you (sic) treating psychiatrist.” 

   “It is probable that your claimed condition is attributable to factors other than your employment and your symptoms could have been present at any event due to the nature of bipolar disorder. Therefore it cannot be found that employment contribution was significant.”

10. With regard to the reasonable administrative action exclusion within the meaning of s 5A(2) of the SRC Act, the Review Officer said:

    “The reasonable administrative action exclusion should only operate to exclude compensation if it can be shown that your injury would not have met the significant contribution test if this action had not occurred. Existing available medical evidence demonstrates that your mental state has been affected requiring presentation to your doctor on the background of administrative action relating to you and your employment. As I do not have any evidence to substantiate your claims of bullying and harassment, I cannot be satisfied that the action taken by your employer was unreasonable”.

11. It may well be that on a full hearing it would be open to find that the Applicant suffered from a health condition or ailment caused by his employment, and that the various administrative actions taken in respect of the applicant’s work performance did not satisfy the standard of reasonableness.

12. In determining whether the administrative action was reasonable, it would be necessary to conduct a detailed analysis of the evidence. I have not attempted any evaluation of the reasonableness or otherwise of the administrative action, because in my view, to do so would be to travel too far along the road of substantive review. The reasonableness or otherwise of the administrative action is one on which reasonable minds might well disagree, and in this context the fact that the Applicant was unrepresented at the hearing before the Tribunal is of concern. I note that the Respondent provided further detailed written submissions relating to the reasonableness of the performance management actions taken by the respondent.

13. I find that it cannot be said that the substantive application is futile, and therefore this factor is not by itself a reason for denying the application for an extension of time.

    CONCLUSION

14. I find, without forming a view as to the strength of the applicant’s case, that his application cannot be described as futile. I also find that the Respondent will suffer some prejudice if this matter is allowed to proceed some 84 days out of time. In terms of relative weightings, these factors tend to cancel each other out.

15. With regard to the explanation for delay, as noted above, I do not think that the medical evidence supports a finding that he was unable, by reason of his mental health condition, to exercise his review rights within the specified period. I find that the Applicant has not provided a satisfactory explanation for the delay, and that the factors relied upon as justifying his delay do not provide a convincing explanation in light of the medical evidence.

16. While I accept and apply the law that stipulates that an application for an extension of time may well succeed even in the absence of a satisfactory explanation, in this case I am not persuaded that the grant of an extension would be reasonable in all the circumstances of the case.

    DECISION

17. The Applicant’s application to extend the time within which his application for review may be made under section 29(7) of the AAT Act is refused.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

........................[sgd]...............................................

Associate

Dated: 24 January 2020

Date(s) of hearing:	20 September 2019
Date final submissions received:	25 November 2019
Applicant:	In person
Solicitors for the Respondent:	Ms J Koo- Comcare