Kassiotis and Australian Postal Corporation (Compensation)

[2015] AATA 890

Kassiotis and Australian Postal Corporation (Compensation) [2015] AATA 890 (12 August 2015)

Division	GENERAL DIVISION
File Number	2014/5381
Re	Tony Kassiotis
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Senior Member Damien Cremean
Date	12 August 2015
Place	Melbourne

Under s 42A(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application under review.

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

Senior Member Damien Cremean

COMPENSATION — Failure to appear — application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), sections 42A, 42B

Safety Compensation and Rehabilitation Act 1988 (Cth), sections 14, 16

REASONS FOR DECISION

Senior Member Damien Cremean

14 August 2015

1. The Applicant has sought review of a decision by the Respondent dated 18 August 2014 that affirmed a determination dated 15 July 2014.  That determination denied liability to pay compensation for medical expenses associated with a recurrence of right knee pain under s 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

2. The Applicant was employed as a part-time postal delivery officer at Brighton Delivery Centre.  He began this job on 22 September 2011 and resigned in September 2013.

3. On 28 February 2012 the Applicant was delivering mail and fell from his bike.  He lodged an incident report and said that he landed on both palms, soreness to both wrists, right ankle and lower back/hip. A second incident arose on 1 March 2012 – two days later – when he lost concentration and crashed his bike.  The footpath was reportedly slippery and the Applicant said he lost control and fell onto it.  The incident report on that occasion said that he sustained sore wrists and sore / grazed knees.

4. On 16 March 2012 the Applicant made a claim for compensation in relation to both incidents.

5. By a determination dated 29 March 2012 liability to pay compensation for strain low back, both wrists and right knee was accepted under s 14 of the SRC Act.

6. By a determination dated 26 September 2012 the present liability to pay compensation for medical treatment and incapacity resulting from the Applicant’s compensable injuries was denied under ss 16 and 19 of the SRC Act on and from 7 September 2012. This followed a report dated 31 August 2012 from Dr Chris Baker, occupational physician, which certified the Applicant as fit to resume pre-injury duties. Dr Baker recorded the Applicant as saying that his right knee had settled and was no longer an issue.

7. The September 2012 determination was affirmed on 17 December 2012 following a request from the Applicant’s lawyers for reconsideration.

8. There was no appeal from the determination dated 26 September 2012.

9. However, on 4 July 2014, the Applicant attended Dr Harris, his general practitioner, reporting that on 26 June 2014 he had suffered a recurrence of strain right knee and that it had been getting worse when he went up and down stairs the previous week.  Dr Harris noted that the pain was the same as that which related to the Applicant’s compensable injury in 2012.  Dr Harris also wrote NO on the section of the form concerning the relationship between the worker’s employment and the injury. By a determination dated 15 July 2014 liability to pay compensation for medical expenses for a recurrence right knee strain was denied under s 16 of the SRC Act.

10. The Applicant requested reconsideration of that determination in an undated letter received on 14 August 2014.  He said that Dr Harris had confirmed that the injury was a recurrence of his compensable injuries and was not normal wear and tear.  He said that the delegate had taken a literal interpretation of Dr Harris’s comment regarding the role that work had played and that on the contrary, that Dr Harris was clearly of the view that the injury was a recurrence.

11. The July determination is the one affirmed by the Respondent’s decision of 18 August 2014. It is that decision which the Applicant has sought to review.

12. At the hearing scheduled for 12 August, however, the Applicant failed to attend at the appointed time.  An SMS was sent to him on 11 August to remind him of the hearing date and the commencement time of 10.00 am.  After that time four separate phone calls were made to him on his mobile number — all to no avail as there was no reply, even from a voicemail.  In addition, another SMS was sent at 10.29 am on 12 August — eliciting nothing.  Nothing on file had indicated that the Applicant would not be attending his own hearing.

13. At 10.45 am I convened the Tribunal.  The Applicant was still absent and nowhere in the environs of the Tribunal.  The Respondent, however, was in attendance and represented by Counsel.  The Applicant has not contacted the Tribunal subsequently to explain his absence.

14. The Respondent, which had been put to considerable expense in preparing for the hearing, submitted I should dismiss the matter under s 42B of the Administrative Appeals Tribunal Act1975 (the AAT Act). Under s 42B(1) the Tribunal may dismiss an application if it is satisfied that it is frivolous, vexatious, misconceived or lacking in substance; or it has no reasonable prospect of success; or if it is otherwise an abuse of process. If an application is dismissed under s 42B(1) the Tribunal, under s 42B(2), is able to give a written direction that an applicant must not, without its leave, make a subsequent application to the Tribunal of a kind or kinds specified.

15. In support of this submission counsel referred to the Applicant’s conduct at the Conciliation Conference and said that when he made the application he would have known the Respondent would have to pay a considerable sum on legal fees.  It was mentioned that the Respondent had been required to lodge its Statement of Facts and Contentions but that no such requirement had applied to the Applicant.  It was submitted that the Applicant had exceedingly poor prospects of success in his application in any event.

16. I do not consider that I should proceed to dismiss the application under s 42B(1). I do not know what actually transpired at the Conciliation Conference. Regardless, conduct at a Conciliation Conference may or may not be in point. I do not know what the Applicant’s intentions were in lodging his application with the Tribunal ­ except to have a hearing about the decision under review. I have no idea why the Applicant has failed to attend the Tribunal on this occasion and I am not able to engage in speculation in that regard. There have been no repeated failures on the part of the Applicant to attend the Tribunal or repeated applications, dealing with the same facts, lodged by him. As I have heard no evidence, I am not in a position to comment on the Applicant’s prospects of success on the merits of his case.

17. I do consider, however, that it is proper for the Tribunal to act under s42A(2)(a) of the AAT Act , as counsel submitted in the alternative, on the ground of the Applicant’s failure to appear this day.

18. Acting under s 42A(2)(a) I dismiss the application without proceeding to review the decision.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien Cremean

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Associate

Dated 14 August 2015

Date(s) of hearing	12 August 2015
Applicant	Non-appearance
Advocate for the Respondent	Michael Snell
Solicitors for the Respondent	Sparke Helmore