llijevski and Comcare (Compensation)

[2019] AATA 4484

llijevski and Comcare (Compensation) [2019] AATA 4484 (15 October 2019)

Division:GENERAL DIVISION

File Number:           2018/2410

Re:Iva Ilijevski

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date of decision:                   15 October 2019

Date of written reasons:        6 November 2019

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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

Mr A. Maryniak QC, Member

Catchwords

WORKERS’ COMPENSATION – lumbar sprain - whether the applicant should be granted an extension of time to lodge a request for reconsideration of a determination - where applicant seeks extension for a significant period well in excess of two years - application of principles from Hunter Valley Developments v Minister for Home Affairs and Environment (1984) – decision affirmed

Legislation

Safety, Rehabilitation, and Compensation Act 1988 (Cth)

Cases

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Mr A. Maryniak QC, Member

6 November 2019

1. At the conclusion of the hearing of this matter, the terms of the decision intended to be made and the reasons therefore, were stated orally.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

4.       I certify that the following twenty two (22) paragraphs are a true copy of the written reasons for the decision of Mr A. Maryniak QC, Member

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

Associate 

Dated: 6 November 2019

Date of hearing:

15 October 2019

Applicant:

Self-represented

Solicitor for the Respondent:

Counsel for the Respondent:

Lehmann Snell Lawyers

Kate Slack

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. [MEMBER:] The applicant in this matter seeks review of the reviewable decision of 9 March 2018 made on behalf of the respondent by a delegated review officer. In the reviewable decision a review officer declined to extend the time to reconsider a determination dated 13 March 2015. The determination denied ongoing liability under section 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for lumbar sprain, the accepted condition or injury, by the respondent, on 10 June 2003.

2. The Tribunal has considered the documentary evidence tendered by the parties, the oral evidence of the applicant, and the oral and written submissions of the parties. The issue before the Tribunal is whether the applicant should be granted an extension of time to lodge a request for reconsideration of the determination dated 13 March 2015, from 12 April 2015 to 5 March 2018, a significant period well in excess of two years.

3. Factors that the Tribunal should consider in determining this issue are well established and outlined in Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344. Essentially the prima facie rule is that the proceedings should not be commenced outside the prescribed time unless there is an acceptable reason for delay, and it is fair and equitable in the circumstances to extend the time.

4. The Tribunal also needs to consider whether there was any action on the part of the applicant to indicate dissatisfaction with the decision or whether it might be said that the applicant rested on their rights, whether there was prejudice to the respondent and whether there was prejudice to other applicants or to established practices or to anyone generally. The Tribunal is to consider fairness as between the applicant and other persons in similar positions, and the public interest generally.  

5. Importantly, the Tribunal needs to look at the merits of the substantive application. The proper approach in assessing whether an extension of time ought to be granted is to consider all the relevant factors and weigh them together to reach a decision. 

6. By way of brief background, the applicant was employed by the Australian Tax Office when she lodged an incident report on 28 March 2003 for an injury which occurred when she slipped at the entrance of the ATO building and hit her head and lower back. The applicant was approximately six months pregnant at the time. The applicant made a claim for workers’ compensation dated 15 May 2003 for a lower back injury, head injury, and injury to the left side of her shoulder. 

7. Comcare accepted liability for lumbar sprain on 10 June 2003. The applicant was paid compensation for partial incapacity for some days off during the period 28 March 2003 to 12 May 2003 only. In relation to medical treatment, compensation has been accepted for about 24 sessions of physiotherapy up to November 2004, about 20 sessions of massage up to November 2004 and a three-month Pilates programme in June 2004. Compensation has also been accepted for medical treatment, being GP consultations, pharmaceuticals and weekly massage for a three-month period up to 31 October 2014, commencing on 13 August 2014, and seven sessions of physiotherapy from May until July 2014.

8. On 12 January 2015 Comcare wrote to the applicant and advised her that it intended to determine a no present entitlement for the lumbar sprain, that is, the accepted injury back in 2003. On 12 February 2015 the applicant made a claim for compensation for permanent impairment in relation to her accepted psychiatric condition. On 13 March 2015 Comcare determined that the applicant had no present entitlement to compensation under section 16 and 19 of the Act, and that determination included information as to the applicant’s right of review.

9. On 22 June 2015 Comcare determined that the applicant was entitled to compensation for a 30 per cent permanent impairment in relation to her psychiatric condition. On 3 July 2015, by way of her then solicitors Slater & Gordon, the applicant requested reconsideration of the determination of 22 June 2015. The respondent affirmed the determination of 22 June 2015 on 23 July 2015. 

10. On 5 March 2018 the applicant emailed the respondent. The respondent took this email as a request for reconsideration of the decision of 13 March 2015. The applicant stated there, as she has put in evidence before the Tribunal today, that she was unaware of the purpose of her assessment with the respondent’s independent expert Mr Sharp, and that she thought the assessment was in relation to her psychological injury claim.

11. On 9 March 2018 the respondent declined to extend the time to reconsider the decision of 13 March 2015. Against that brief outline of the facts, whilst the Tribunal has substantial empathy for the applicant and her psychological condition, her assertions that she was mentally impaired and confused about the meaning of letters from the respondent, on balance, does not withstand close scrutiny. The Tribunal finds that the more reliable evidence is the contemporaneous documentary evidence rather than the applicant’s limited and unreliable memory of events. And, as importantly, memory of understandings of certain documents and letters she purportedly held in the past.

12. The Tribunal is not satisfied that the applicant was so impaired that she could not reasonably have requested a review of the determination within time. Further, the period of subsequent delay is very substantial. During the relevant period the applicant had some cognitive functioning, at least sufficient to cope with the following matters. The Tribunal notes the indication from Dr Fellman, the applicant’s treating psychiatrist, and in particular notes that in a report during the critical period on 25 August 2014, the applicant bought a block of land because she wanted to develop it, but had decided against it and was engaging with a lawyer to get out of the contract. Dr Fellman also noted that the applicant was taking the money from the car wash to the bank, and importantly reported that cognitively the applicant was able to attend to and concentrate on the assessment.

13. The Tribunal accepts that Dr Fellman also found that the applicant, on occasion, lost track of what she was saying. Further, in her report of 30 January 2015 Dr Fellman reported some functioning, including the fact that the applicant was getting her hair done weekly, driving her mum to the supermarket, and going out for lunch frequently with her husband, and describing the applicant’s symptoms as moderately severe.

14. Secondly, the applicant engaged directly with the respondent, despite being represented by solicitors, in the months preceding and following March 2015. She was clearly able to engage with the respondent, despite psychological impairments. Third, the applicant was able to instruct solicitors with respect to her claim for permanent impairment compensation in early 2015, and completed aspects of that claim form personally. 

15. The Tribunal notes the content and cross-examination with respect to the consultation note of Karen Kelly, psychologist, dated 4 December 2014, and the discussions in cross-examination with respect to various questions raised by the applicant about the pros and cons of lodging a claim. There is also a consultation note of 8 January 2015 noting that the applicant spent all day at her brother’s workplace collating information for lawyers. 

16. Further, the applicant personally prepared a complaint to the Human Rights Commission signed on 11 November 2014.  The applicant appears to have understood the outcome of her complaint about Peter Jones in late 2014. There are also various instances where the applicant has phoned people at the Australian Tax Office in early 2015.

17. On balance the Tribunal finds that the applicant’s level of impairment during the relevant period, 2015 to 2018, did not render her so incapable of lodging an application for review within time if she had wanted to. The Tribunal finds that the significant delay results in a general prejudice to the respondent. The Tribunal also finds that such a significant delay causes a general prejudice to other applicants, established practices, and is against the public interest.

18. Most importantly the merits of the substantive application are limited in the extreme. The 2003 accepted claim is for lumbar sprain. The applicant’s present complaint and apparent complaint during the relevant period of 2015 to 2018 is for neck and head pain. There is a total disconnect between the accepted lumbar injury and the current ailment. 

19. In any event, in the expert medical opinion of Mr Philip Sharp, the applicant’s injury caused by the fall in 2003 has long since resolved, and any current symptomology is due to underlying degenerative change. He is of the view that the applicant’s current symptoms are due to constitutional degenerative changes in her cervical and lumbar sacral spine rather than as a direct consequence of the fall in 2003.

20. He considered that the effects of any employment related condition ceased some years after her fall in March 2003. The Tribunal notes that Mr Sharp’s expert opinion, in his latter report, takes into account a consideration of the 2018 MRI. The only substantive evidence of the applicant is the report of her general practitioner. In the report of Dr Ajay Shatzdev of 19 July 2014 it states, without any real basis,

    I feel her current symptoms are related to the compensable injury.

21. Further, there is no indication that the applicant currently has any incapacity for work as a result of a back condition. There is no reference in the clinical notes, obtained on summons, of back pain between 2004 and 17 December 2010, and from that date such mentions of back pain are sporadic until 2014. 

22. On balance, the evidence supports a conclusion that the applicant does not currently suffer from an injury as defined by the Act with respect to the accepted back injury regarding her lumbar spine and, in particular, the accepted condition of lumbar sprain. This conclusion does not relate to the applicant’s claims regarding psychological injury. In light of such low prospects of success, combined with the other findings already mentioned, the Tribunal affirms the reviewable decision dated 9 March 2018.