Kazangi and Australian Postal Corporation

[2004] AATA 82

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL        N2003/198

GENERAL ADMINISTRATIVE DIVISION

Re: Mary KAZANGI

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member        

Date:             30 January 2004

Place:            Sydney

Decision:The tribunal affirms the decision under review.

. . . . . . . . .. . . . . . . . . . . . . . . .

P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

Compensation – determination denying liability – reconsideration of determination requested seven years later - application for extension of time  – request refused - decision affirmed

Safety, Rehabilitation and Compensation Act 1988 s.62

Re Lewis and Comcare [2000] AATA 158

Comcare v Willems (1996) 43 ALD 253

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Zizza v Commissioner of Taxation 99 ATC 4711

Agar v Australian Postal Corporation (1998) 56 ALD 361

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. On 6 July 1994 Australia Post made a determination that denied liability for compensation for right and left hand pain sustained by Mary Kazangi (the applicant) on 20 October 1993. Under s.62(3) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) Ms Kazangi was entitled to request a reconsideration of the determination. Although she was required to make the request within thirty days of being notified of the determination, she did not do so for approximately seven years. Australia Post has the power to extend the thirty day period but on 11 November 2002 the delegate refused to allow her the extension of time. Ms Kazangi has applied to the tribunal for a review of the decision not to grant the extension. By order of Deputy President Handley under s.29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) time was extended to allow this application to be made.

2. The documents (T documents) lodged with the tribunal pursuant to s.37 of the AAT Act include the subject claim that Ms Kazangi made in December 1993 (T14) for rehabilitation and compensation in relation to pain in her left and right hands, numbness, and swelling particularly in the right hand.

3.      Ms Kazangi gave evidence at the hearing with assistance from an interpreter in Arabic.  She said she migrated from Lebanon to Australia in 1971.  She joined Australia Post in 1988, at age 38 years.  Ms Kazangi said that she was put on light duties after she lodged her claim for compensation.  Australia Post were provided with a number of medical certificates.  A certificate by Dr Wan of Westmead Hospital stated that the applicant was suffering from tenosynovitis of the right hand.

4.      In May 1994 Australia Post established a rehabilitation plan, which was approved by Dr J Chen, occupational physician.   Ms Kazangi worked on permanent restricted duties after making her claim (T26). As part of a graduated return to full duties, Ms Kazangi worked four hours a day, and later five hours a day. 

5.      By letter dated 6 July 1994 (T25) Australia Post informed Ms Kazangi that the claim had been disallowed.  The letter stated that “If you are dissatisfied with my decision you are entitled to request a reconsideration under Section 62(2) of the above Act.  Please refer to the Notice to Claimant for further information.”   In evidence Ms Kazangi said she did not receive any letters from Australia Post.  She explained that she did not know that Australia Post had rejected her claim because they were allowing her to work light duties and receive physiotherapy.

6.      In reaching its decision to disallow the claim, Australia Post referred to reports prepared by three specialists who had examined the applicant in the months after she filed her claim.  Dr Chen saw Ms Kazangi in February 1994 and reported “The history of pain, swelling and stiffness of the wrists, metacarpo-phalangeal and proximal interphalangeal joints is suggestive of rheumatoid arthritis.  At this stage there is no established relationship between her symptoms and work.” (T18)  Dr David Spencer, a specialist in rheumatic diseases, wrote to the applicant’s GP Dr Yu on 18 March 1994.  Dr Spencer stated that (T19)

Recent investigation including nerve conduction studies for carpal tunnel were negative. …

Resisted movements did not indicate any evidence of medial or lateral epicondylitis or tenosynovitis. …

I am unable to detect any specific abnormality with Ms Kazangi’s hands at the moment and with your normal blood studies including rheumatoid factor and antinuclear factor being negative, would suggest that she is fit to return to work.  I suspect that there is a degree of anxiety as evidenced by the shaking that she gets but any neurological cause for this has been excluded.

Australia Post referred the applicant to Dr S Potter, rheumatologist, who examined her on 14 June 1994.  By this time she had been off work for about four or five months.  Dr Potter reported  (T24):

Her symptoms seem to have varied over time and in fairness today she has lost most residual symptomatology of parasthesia and numbness, stiffness, swelling and shaking, but is left with chiefly pain on activity exclusively in the right hand and wrist.

Her symptoms have improved while off work. … She last had soreness when she returned to work 4 weeks ago doing restricted duties/light duties.

Diagnosis :

I have not been given a history that satisfies me any work injury has ever occurred.  … I understand from the patient that nerve conduction studies done are normal.

On the available evidence I have no evidence of a physical disease, rheumatic process or work injury, or work aggravation present in this context.  At present I believe this lady is fit to work and requires no other formal therapy….. I find no association between her complaints currently and the nature of work.

7.      A letter dated 16 May 1994 (T23) from Dr R Motum, consultant psychiatrist, to Dr Yu stated that Ms Kazangi did not suffer from a “classical psychiatric syndrome”, rather the applicant described a syndrome that fell into the repetitive strain injury category.  In Dr Motum’s view, the applicant would not appear to be likely to cooperate in pain management techniques.

8.      According to a note by her rehabilitation counsellor (T26-119) about a telephone call to the applicant on 9 January 1995, Ms Kazangi agreed to her rehabilitation case being closed because she was accepting the redundancy.

9.      Ms Kazangi said in evidence that she was given a redundancy by Australia Post in 1995 and subsequently has not worked. Some time during 1995, a friend who was a union official told her that she could claim compensation for pain and incapacity even though she was no longer employed by Australia Post.  She said that she did not go ahead with her claim because she had her redundancy, and was aware that if she had pain in the future and was unable to get work, she could at that point still bring a claim.  In cross-examination she said that she did not receive any letters from Australia Post.  A subsequent answer implied that it was the applicant herself who did not communicate in writing with the respondent – she preferred to use the phone, for example when calling in sick. 

10.     In subsequent years she spent some time overseas.  She thought she could neither claim nor receive compensation while she was not living in Australia. She said she decided to pursue her claim when she was unsuccessful in finding work once she resumed living permanently in Australia. She thought she made this decision after 1999.

11.     There is a report of a bone scan of the applicant’s right wrist carried out in November 1999 by Dr Larcos.  The report (T27) states “Degenerative arthritis is present in the wrists (right more than left).  No evidence of arthritis in the first carpometacarpal joints or in the small joints of the hands.”   

12.     On 10 August 2002 the applicant’s present solicitors sent Australia Post a further claim for compensation (T43).  The claim stated that she first noticed the problem with her hands and wrists on 20 October 1993.  The letter included a cross-reference to Ms Kazangi’s original claim made in December 1993. Australia Post sought clarification: was this latest claim a continuation or a duplication of the earlier claim?  The solicitors advised that it was a continuation of the earlier claim.  The solicitors obtained reports from a number of specialists:

·      The report dated 12 March 2001 by Dr M Giblin, orthopaedic surgeon, referred to acute pain suffered while doing indexing work on a particular day in December 1994.  Dr Giblin concluded (T29) that Ms Kazangi’s injuries were consistent with her work activities.  He diagnosed repetitive strain injury. 

·     The history referred to in the report of 16 November 2001 (T35) by Dr R Wallace, orthopaedic surgeon, stated that Ms Kazangi first had onset of bilateral wrist pain in October 1993 in the course of mail sorting duties.  On examination Dr Wallace found tenderness in both wrists, the right being worse.  His opinion was that Ms Kazangi suffered overuse syndrome in both wrists and hands sustained due to the nature and conditions of her employment from October 1993 to 1995.  The condition was stable although Dr Wallace thought her symptoms would persist.  She was unfit to return to her pre-injury duties.

·     Dr Fung, consultant neurologist and neurophysiologist, reported on 7 January 2002 (T36) that Ms Kazangi suffered constant pain in both wrists and intermittent numbness of the hands since 1993.  He found her neurological abnormalities were mild. Dr Fung made a clinical diagnosis of mild bilateral carpel tunnel syndrome, unsupported by electrophysiological findings, superimposed on arthritis of the wrists and fingers. 

·     Dr P L Harvey-Sutton, consultant occupational physician, examined the applicant on 5 September 2003 and reported (exhibit A1) a history of pain in her hands, more so in the right, over a couple of months in 1992-93.   The pain has continued. Dr Harvey-Sutton did not find signs of carpel tunnel syndrome.  Despite the bone scan showing degenerative changes in the hands, she diagnosed De Quervain’s tenosynovitis, which she considered to be related equally to work and to the applicant’s constitutional arthritis. 

13.     Mr C Colborne of counsel, who appeared for the applicant, submitted that the delay in this case was due to Ms Kazangi’s failure to understand what was required to request reconsideration and, more generally, ignorance of her rights and relevant procedures.  She has now found support for her claim, principally in Dr Harvey-Sutton’s report.  On the basis of that report it was submitted that Ms Kazangi has an arguable case. There was no prejudice to the respondent because it had thoroughly investigated the matter in 1994 and there is no difficulty in locating relevant material.  Reference was made to Re Lewis and Comcare [2000] AATA 158 where the tribunal would not dismiss a new claim covering a new period of incapacity, but made in respect of an injury that had been the subject of earlier proceedings. It was submitted that the tribunal should follow that approach and allow Ms Kazangi to pursue her compensation claim now that she has new evidence.

14. Ms Henderson for the respondent submitted that the tribunal is concerned with a request for a reconsideration of a determination and not a decision by Australia Post to refuse to consider a fresh claim for compensation. I accept Ms Henderson’s submission. Section 62 of the Act relevantly provides:

(3) A request for reconsideration of a determination shall:

(a) set out the reasons for the request; and

(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

The letter from the applicant’s solicitors of 5 November 2002 informed Australia Post that their letter of 10 August 2002 enclosing a fresh claim should be taken to be a continuation of the original claim made in December 1993. Although the respondent found that the solicitors had not set out any reasons for requesting a reconsideration, further medical evidence was provided in the form of reports by Dr Wallace, Dr Giblin and Dr Fung. The respondent consequently categorised the solicitors’ correspondence as a request for reconsideration. It is plain that the decision under review is the delegate’s decision of 11 November 2002 refusing to extend the 30 day period referred to in s.62(3) of the Act. The respondent’s decision on the request is reviewable by the tribunal (Comcare v Willems (1996) 43 ALD 253).

15.     In undertaking my review, I will have regard to the broad principles guiding the tribunal in its exercise of a discretion to grant an extension of time that are contained in Wilcox J’s judgment in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. I am mindful of the Full Federal Court’s caution that I would fall into error if I regarded the principles in Hunter Valley Developments as complete or treated each principle as necessarily applicable in every application for an extension of time (Zizza v Commissioner of Taxation 99 ATC 4711). In deciding an application of this kind I understand that my task is as follows:

… [it] is essentially a balancing exercise the focus of which is the period of time that has elapsed since the cause of action arose and, in particular, since the expiry of the time limit. What must be balanced is the consequences of the time having elapsed and why it has elapsed. The balancing exercise would ordinarily involve a consideration of the impact on the interests of the affected parties of a decision to extend, or to refuse to extend, time. The explanation given by an applicant for an extension of time as to why an application was not brought earlier might be a particularly compelling one. In that circumstance the decision maker might conclude that the balance favoured the extension of time even though the adverse effect on the other party was a material one. If, on the other hand, the explanation was not a compelling one then the decision maker might conclude that even some minor adverse effect on the other party justified the extension of time being refused.  (Agar v Australian Postal Corporation (1998) 56 ALD 361 at 370, Moore J)

16.     I note that prima facie, proceedings should be commenced within the prescribed period and although an acceptable explanation for the delay is not a precondition for success, it is expected that normally such an explanation will be given (Comcare v A’Hearn (1993) 119 ALR 85).

17.     Ms Kazangi’s evidence was brief and not at all clear. In essence, her explanation for the delay appears to be that she did not understand what she was required to do.  While she was on light duties and participating in rehabilitation she thought Australia Post must not have rejected her claim.  She said that she did not receive letters from Australia Post.  I do not accept that she was not informed that her claim had been unsuccessful.  She agreed to the closure of her rehabilitation program on accepting redundancy.   She later had discussions with a union official about her situation.  She stated that she did not proceed with her claim at that time, 1995, because she had her redundancy. In these circumstances I find that the applicant was then aware that her claim had not been successful, that is she would not be receiving compensation.  I infer that she was not unhappy with that outcome as she had her redundancy.  Receiving her redundancy was a significant reason for her not pursuing the matter of compensation. This inference is inconsistent with the submission that ignorance alone was responsible.

18.     As for the delay that followed in the ensuing years I accept that she did not pursue the matter due to advice from her friend that may have misled her and she had some of her own misconceptions about having to be present in Australia while pursuing her claim.  But I infer that her inability to find work in later years was an important factor in her re-starting the claim. Further, she was vague about the time when she decided she would claim compensation.  Ms Kazangi simply said it was some time after 1999.  And there was no explanation for the delay from that point until her solicitors wrote to Australia Post in June 2001, which appears to be the first contact with Australia Post subsequent to her redundancy. Taking all this material into account, I find that the explanation for the delay is not particularly persuasive.

19.     Prejudice to the respondent, if any, is a relevant factor although its absence is not enough to justify granting an extension (Hunter Valley Developments). Australia Post were puzzled by correspondence received in October 2001 which enclosed paid medical accounts and radiology reports but no explanation about the contents.  It was not until 17 April 2002 that Australia Post were informed by the solicitors that they were claiming weekly compensation payments for incapacity from 25 February 1995 to date in respect of bilateral carpel tunnel syndrome superimposed on arthritis of the wrists and fingers. I am conscious of the principle that the notice need be merely by way of informing a person in authority that she had not given up her claim (Agar v Australian Postal Corporation).  But the evidence does not allow me to find that, prior to June 2001, Australia Post had any kind of contact suggestive of an intention to continue with the claim.  Ms Kazangi let it fall into abeyance.. Her inaction in the interim allowed Australia Post to conclude that the matter had been finalised.  They were unaware of any continuing dispute.

20.     In Mr Colborne’s submission his client would suffer greater prejudice if her request for an extension of time were refused, than would Australia Post if she were to be successful.  He submitted that the condition was thoroughly investigated while Ms Kazangi was employed by Australia Post and in the interim Dr Harvey-Sutton has provided a new diagnosis that implicates the work.  Ms Henderson submitted that the long period between the applicant’s leaving Australia Post and her commencing again to pursue her claim has denied the respondent the opportunity to evaluate the progress of her condition.  In particular, Ms Henderson submitted the delay makes it more difficult for Australia Post to determine whether there have been other factors, such as the applicant’s activities away from the work place or degenerative changes, that account for the continuance of her symptoms. The passing of the considerable period of time involved in this matter brings with it the difficulty in obtaining evidence from supervisors and other work colleagues regarding the type of work that Ms Kazangi was undertaking when she last worked for Australia Post.  I agree that the delay necessarily presents obstacles to investigating Ms Kazangi’s condition on a timely basis and constitutes prejudice to Australia Post.

21.     Tied up in the argument about prejudice to the respondent is the apparent divergence in the histories that Ms Kazangi has given the specialists she has consulted in recent time. The history obtained by Dr Harvey-Sutton is of a condition that started in 1992-93.  This conflicts with the history obtained by Dr Giblin that referred to onset of symptoms on a particular day in December 1994.  Dr Wallace thought Ms Kazangi’s overuse syndrome was the result of injuries sustained from October 1993 to 1995.  I note that this is the period when Ms Kazangi was on restricted duties and participating in the rehabilitation plan. This history in turn should be contrasted with that given to Dr Fung that there had not been an acute injury, rather her symptoms occurred against a background of work at Australia Post from 1988 to 1995.  So it remains unclear from the different accounts that Ms Kazangi has given the specialists what case Australia Post is required to meet.  Despite Dr Harvey-Sutton’s opinion providing an arguable case, a matter that can be taken into account in considering whether to extend time for a reconsideration (Hunter Valley Developments), I am satisfied that the divergence in the histories demonstrates that the applicant’s poor recollection of her relevant symptomatology and its onset, provides an additional reason why there would be prejudice to the respondent if the extension of time were granted.

22.     I accept Ms Henderson’s submission that, in this matter, considerations of fairness as between the applicant and other persons in a like position, a matter referred to by Wilcox J, are not relevant to the exercise of the discretion.

23.     Having taken account of the guidelines in Hunter Valley Developments to my exercise of the discretion I find that the applicant has an arguable case on the merits. Against that, there is her weak explanation for the long, seven year delay. There is also prejudice to the respondent, not least in having to defend a claim the specific nature of which is not clear.  This difficulty stems from the inconsistent histories given to specialists in recent years as to the cause and onset of symptoms.  During the intervening period the respondent has lost the opportunity to investigate the contribution of any degenerative change to Ms Kazangi’s condition and to investigate, through timely medical review, whether and to what extent activities away from the workplace or other factors may have contributed.

24.     Consequently in carrying out the balancing exercise referred to in Agar v Australian Postal Corporation, my decision is that an exercise of the discretion to extend time for reconsideration of the respondent’s determination of 6 July 1994 is not justified. 

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member

Signed:         .......................................................................................
  Associate

Date of Hearing  17 November 2003
Date of Decision  30 January 2004
Counsel for the applicant               Mr C Colborne           

Counsel for the respondent            Ms R Henderson