Lawrence and Comcare

[2003] AATA 797

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 797

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   W2003/205

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN LAWRENCE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr M Allen, Member

Date13 August 2003

PlacePerth

Decision The decision of the Tribunal is that the application for an extension of time for making an application for review of the decision made on 28 July 1999 is refused.

.......…(sgd M Allen)...........….

Member

CATCHWORDS

WORKERS COMPENSATION – whether extension of time for making an application for review should be granted – explanation for delay – possible prejudice to parties – merits of applicant’s case – extension of time not granted

Administrative Appeals Tribunal Act 1975 s 29(7)

Safety, Rehabilitation and Compensation Act 1988 s 65(4)

Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 58 ALR 305

Comcare v A’Hearn (1993) 119 ALR 85

Moody v Department of Defence (1993) 30 ALD 813

REASONS FOR DECISION

13 August 2003 Mr M Allen, Member          

1. This is an application by Mr John Lawrence for an extension of time, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) within which Mr Lawrence may make an application to the Tribunal for the review of a decision made by a delegate of the respondent on 28 July 1999. That decision affirmed a determination dated 6 July 1999 by a delegate denying liability in respect of the applicant’s claimed back condition under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

2.      At a hearing held on 8 July 2003 Mr Lawrence represented himself and the respondent was represented by Ms McCormick.  Mr Lawrence gave sworn oral evidence.

3.      At the hearing Ms McCormick tendered written submissions as to why the application should be rejected and I granted Mr Lawrence the opportunity to prepare his own written submissions, which he subsequently did and which were filed on 10 July 2003 and to which were attached copies of a number of documents.  The respondent filed further submissions in reply on 14 July 2003.

Background and other Evidence

4.      The oral evidence and documentary material before me reveals the following sequence of events and Mr Lawrence’s evidence in relation thereto.

5.      Mr Lawrence was born on 21 January 1951 and enlisted in the Royal Australia Air Force (RAAF) in 1968.  In July 1972, when he was stationed at the RAAF Pearce Base, Mr Lawrence was injured in a motor vehicle accident when he was a passenger in a motor vehicle.  The vehicle was being driven back to the Base late at night after Mr Lawrence and several others had been drinking for several hours in a hotel about 30 minutes drive from the Base.  The trip to the hotel involved Mr Lawrence being absent without leave, he having been confined to barracks by way of punishment for previous misconduct.

6.       In September 1972 Mr Lawrence was discharged from the RAAF. Medical examination records from that time reveal that Mr Lawrence had sustained a fractured spine in the motor vehicle accident and that he continued to have “an excessive amount of low back pain since this time”.  It was further noted that Mr Lawrence had “some restriction of movement of spine in all directions” and that he was “known to indulge excessively in [alcohol].  Sociopathic personality type.”  He was approved for discharge.

7.      In February 1999 Mr Lawrence lodged a claim for compensation in respect of the injury sustained in the motor vehicle accident and on 6 July 1999 the Military Compensation and Rehabilitation Service, as an authorised delegate of the respondent, denied liability on the grounds that at the time the injury was sustained Mr Lawrence had not been doing something reasonably incidental to his service in the RAAF, nor was he doing something that he was required, expected or authorised to do in order to carry out his duties.  In particular, despite being under punishment and confined to barracks, he had elected to absent himself without leave.  Accordingly the injury was not considered to have risen out of or in the course of his service.

8.      By letter dated 12 July 1999 Mr Lawrence sought a review of that decision, arguing that he was not responsible for his actions on the night of the accident and that the RAAF was responsible because he had become addicted to alcohol during his service and he was given no counselling or psychiatric treatment for his problems.  He also submitted that he should not have been approved for discharge from the RAAF in 1972 by the medical officer who examined him because of his known medical problems and his known alcoholism and personality disorder.

9.      The decision to deny liability was affirmed by letter dated 28 July 1999 on the ground that the injury had not arisen out of or as a course of his employment.  The delegate stated that “the fact that you now say you were an alcoholic does nothing to progress your claim.  Drinking is not a requirement of your employment, but rather it is expressly prohibited that you report for duty whilst under the influence of alcohol.  You were responsible for your own actions when imbibing alcohol, and you are responsible [for] the result and consequences.  The Commonwealth is not.”

10.     Mr Lawrence took no action in relation to that denial of liability until he filed an application for review of decision with this Tribunal on 26 June 2003.  The application for an extension of time was filed at the same time.

11.     Mr Lawrence said that he has always suffered pain from his back injury and he continued to be an alcoholic until about 11 years ago.  Between 1994 and 2002 Mr Lawrence was employed by BHP.  In July 2002 Mr Lawrence injured his left arm and back in an accident at work.  BHP did not accept liability, asserting that his injuries were the result of the 1972 accident and progressive degeneration.  He eventually accepted a lump sum settlement and ceased work.

12.     In early 2003 he submitted applications for a disability pension to Centrelink and to the Department of Veterans’ Affairs.  Centrelink rejected his application on the basis of his doctor’s assessment that he would be fit to return to work within 2 years.  That decision is presently under review. The Department of Veterans’ Affairs informed him that he was not considered to have a disability that permanently prevented him from working and that the lump sum he had received from BHP meant that a preclusion period would apply until January 2004. If his condition did not improve he could consider reapplying in December 2003.  Mr Lawrence said that the Department also suggested that he apply to Comcare for workers compensation benefits - not knowing of the events of 1999.  A delegate of the Repatriation Commission reviewed the Department’s decision and decided there were no grounds to vary the decision – noting that the motor vehicle accident occurred outside the eligible periods of service under the Veterans’ Entitlements Act 1986.

Consideration

13. Subsection 65(4) of the Act provides that the time limit for making an application to the Tribunal for review of a decision under the Act is 60 days. Subsection 29(7) of the AAT Act enables the Tribunal to extend that time. That subsection does not indicate the criteria by reference to which the Tribunal’s discretion should be exercised.

14.     A starting premise when considering applications to extend time is that limitation periods are not to be ignored and should be seen as the general rule.  An extension of time must be seen as an exception to the general rule and should be granted only where the facts of an individual case are such as to justify a departure from the general rule.  The extension should be granted only if the Tribunal is satisfied, after considering all the relevant factors and balancing fairness on both sides, that it is fair and equitable in the circumstances to grant the extension.

15.     An examination of the relevant factors usually begins with a reference to the matters referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. I turn to consider some of those factors.

16.     The reason why the application was not made within the specified time is obviously relevant. As to whether there must be an acceptable explanation of the delay the decision of the Full Federal Court in Comcare v A’Hearn (1993) 119 ALR 85 is authority for the proposition that there is no essential precondition for an extension that there be an acceptable explanation for the delay. Nevertheless, one would expect an explanation and the explanation is clearly a relevant consideration when exercising the discretion. In the present case Mr Lawrence said that:

·he was not aware of the comments made by the discharging medical officer in 1972 about his alcoholism and personality disorder until he obtained the documents in 1999;

·his on-going alcoholism clouded his judgement over the years;

·in 1999 when his claim was rejected he “... was aware of the process for a review by [this Tribunal].  As I was in a working environment, even though my lower back use to give me cause, but I decided to forego my rights. I put up with the pain and continued within that environment, until the work-related accident.”

·in 1999 he was influenced by the statement made in the letter he received dated 28 July 1999 that if he were to appeal to this Tribunal and the decision was not in his favour then he would be liable to pay his own legal costs.

·it was only after he had not been able to continue working with BHP and he was unsuccessful in obtaining disability support pensions that he decided to again raise the question of workers compensation in respect of the 1972 injuries.

17.     I conclude, therefore, that Mr Lawrence was, in 1999 and since then, aware of his rights of review and that he made a conscious decision not to avail himself of them for almost four years.  Nor did he attempt to challenge the situation in any other way.  It follows that between July 1999 and May 2003 Mr Lawrence took no action that would have made the respondent aware that Mr Lawrence contested the finality of the decision.  In this sense he “rested on his rights” and to that extent gave the respondent no reasons to believe that the matter was not finalised. 

18.     As regards the question of whether anyone will suffer prejudice if the extension of time is or is not granted, it is apparent that Mr Lawrence would be prejudiced if the extension were not granted because he would be deprived of the opportunity to argue his case before this Tribunal based on his 1999 claim and, if successful, establish a right to compensation.

19.     Ms McCormick submitted that the respondent would be prejudiced if an extension of time were granted. Apart from the difficulties associated with investigating an injury that occurred more than 30 years ago, the respondent would also be prejudiced by the lost opportunity to conduct radiological investigations in 1999 and up to the work accident in 2002, and hence an inability to assess whether Mr Lawrence’s present symptoms are related to his employment with BHP, natural degeneration, and/or to the 1972 accident.  There was now no ability to obtain contemporaneous medical evidence, and evidence from witnesses to the various accidents that may have been available in 1999 may no longer exist, or be reduced in reliability.

20.     In relation to that contention I note that Mr Lawrence attached to his final submissions copies of records from Royal Perth Hospital from 1972 (including references to x rays taken at the time of Mr Lawrence’s lumbar spine) and various reports regarding the 2002 accident and his then condition (including radiological evidence).  There is nothing before me to indicate whether more medical evidence would be available from those times.

21.     Ms McCormick also submitted that even if the respondent is considered not to be significantly prejudiced the mere absence of prejudice is not enough to justify the grant of an extension – and that there is a wider prejudice to the general public in terms of the costs involved in delaying the finality of claims and the effects on established practices.

22.     In my opinion there will be some prejudice to the respondent due to the inability to assess Mr Lawrence’s condition in 1999 i.e. prior to the 2002 accident, although that may to some extent be reduced by the availability of at least some records from 1972.  Any prejudice to established practices was not the subject of any evidence or more specific argument.  In the circumstances I consider any such prejudice to be not significant.  As regards possible prejudice to the wider public, I consider that there may be some prejudice to the respondent in that had the matter proceeded in 1999 the respondent could have made financial provision for the possibility of a successful claim by Mr Lawrence.  The ability to identify claims and make such provision is important to employers and insurers.  On balance, however I do not consider any such prejudice is likely to be great.

23.     A further matter that must be considered is the question of the strength or otherwise of the applicant’s substantive claim.  It is not appropriate for the Tribunal to attempt to undertake an evaluation of whether the applicant is likely to eventually succeed in an application if the extension of time is granted.  The Tribunal is, nevertheless, entitled to take the merit of the applicant’s case into account provided that it recognises that the evidence before it may be incomplete: Moody vs Department of Defence (1993) 30 ALD 813.

24.     Mr Lawrence said that on the day of the accident in 1972 he (and others who were confined to barracks) had completed the duties required of them and had then begun drinking (contrary to regulations) in the barracks.  After several hours of such drinking they had decided to drive to a hotel about 30 minutes away.  Despite being confined to barracks they had been able to simply drive out of the main gates of the Base.  They had drunk for several hours at the hotel and the accident occurred when attempting to drive back to the Base.  He conceded that he and the others were under the influence of alcohol at the time – and I note from the admission records from Royal Perth Hospital that Mr Lawrence was noted as presenting smelling strongly of alcohol and with his speech slurred.

25.     Mr Lawrence contended that the RAAF should have treated his alcoholism and personality disorder; that he should not have been allowed to leave the Base; that he should not have been allowed to drink alcohol on the Base and was in no condition to make a rational decision about leaving the Base; and that even though he was confined to barracks he was required to perform certain duties during that time and he was, therefore, still on duty.

26.     Ms McCormick submitted that Mr Lawrence’s claim has no merit because he made a personal choice to consume alcohol; he was confined to his barracks as a form of punishment; he wilfully disobeyed that order and left his barracks to go out drinking off the Base.  That was a personal choice and not the result of prior alcohol consumption or a personality disorder.  Although there may have been a temporal connection between the consumption of alcohol and the period of service, the injury did not arise out of or in the course of his service.  Alternatively, even if (which is not conceded) the injury did arise out of or in the course of his service, the injuries were the direct result of his serious and wilful misconduct.  In any event, the applicant’s current symptoms are the result of the 2002 work accident.

27.     In the light of the history of the matter set out above it seems to me that the applicant’s case has many problems.  In my opinion there is considerable merit in the respondent’s submissions regarding whether the 1972 injuries arose out of or in the course of employment or were the result of serious and wilful misconduct.  On Mr Lawrence’s own admission the decision to leave the Base and travel to the hotel was a conscious decision made in conjunction with his fellow-drinkers and in full knowledge that he (and they) were confined to barracks.  In the circumstances I can only describe the applicant’s case as weak and his prospects of ultimate success as low.

28.     Weighing up all of the above factors and in light of my conclusions about the conscious decision of Mr Lawrence not to contest the 1999 decision at the time; his failure to do anything at that time or subsequently to indicate to the respondent that he did not consider the matter finalised; the desirability of employers and insurers being able to manage claims and make provision for them; and the weakness of the applicant’s case, I conclude that it would not be appropriate to exercise the discretion to extend time in  favour of the applicant.

29.     My decision is, therefore, that the application for an extension of time for making an application for review of the decision made on 28 July 1999 is refused.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member

Signed:         ............(sgd V Wong)................................
  Associate

Date/s of Hearing  8 July 2003
Date of Decision  13 August 2003
Counsel for the Applicant         In person
Counsel for the Respondent     Ms I McCormick
Solicitor for the Respondent     Sparke Helmore