Lori and Australian Postal Corporation (Compensation)

[2015] AATA 741

Lori and Australian Postal Corporation (Compensation) [2015] AATA 741 (23 September 2015)

Division	GENERAL DIVISION
File Number	2014/4198
Re	Sara Lori
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	23 September 2015
Place	Melbourne

The Tribunal affirms the decision under review. 

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

Regina Perton, Member

COMPENSATION – extension of time for lodgement of application for reconsideration of respondent’s original decision – relevant considerations

Legislation

Administrative Appeals Tribunal Act 1975 s 37

Safety, Rehabilitation and Compensation Act 1988 s 62(3)

Cases

Beecher and Telstra Corporation Ltd [1994] AATA 6

Comcare v A’Hearn (1993) 45 FCR 441

Dawson and Thales Australia Ltd [2012] AATA 318

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

REASONS FOR DECISION

Regina Perton, Member

23 September 2015

1. Sara Lori commenced working for the Australian Postal Corporation (Australia Post) in mid-2009 in a customer contact role at one of its Melbourne locations.  She quickly progressed to become an Acting Team Leader of the Customer Call Team.  When a Team Leader vacancy arose in 2011, Ms Lori was the successful applicant for the permanent position.  She found the work demanding and had a difficult relationship with the Centre Manager.  In early 2012 Ms Lori’s duties were increased and she managed staff members across two teams.  Ms Lori began to feel unwell and experienced anxiety and panic attacks. 

2. On 21 March 2013 Ms Lori lodged an application for compensation with Australia Post.  She stated that she suffered from health - anxiety stress/ panic attacks - mental health.  On 23 April 2013 Australia Post denied liability to pay compensation on the basis that it was not satisfied that her condition arose out of, or in the course of, her employment.  Australia Post advised Ms Lori that she could apply for reconsideration of the decision but must do so in writing, setting out her reasons for seeking the review and lodge the application within 30 days of receiving the decision.  She was also informed that in some circumstances an extension of time may be given.

3. Ms Lori’s request for reconsideration was not lodged until 2 June 2014, more than 13 months after Australia Post’s decision.  The solicitor now acting for Ms Lori stated that her client was aware that the request was out of time but asked that Australia Post exercise its discretion to grant an extension. The solicitor stated that Ms Lori had instructed that she was not well enough to seek legal advice with respect to her entitlements.

4. On 13 June 2014 the reconsideration delegate refused the extension.  The delegate indicated that the reason provided, namely that Ms Lori was too unwell to lodge her request for reconsideration earlier, was not borne out by the number of times Ms Lori and those supporting her had been advised of the need to do so.

5. A decision to refuse to extend the time for lodgement of a reconsideration decision is reviewable by the Tribunal and on 14 August 2014 Ms Lori lodged an application for review with the Tribunal.

   LEGISLATION

6. Section 62(3) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides   for reconsideration of a decision:

   (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.

   RELEVANT CONSIDERATIONS

7. There is no dispute between the parties that the application for reconsideration was lodged out-of-time.  The Tribunal concurs.

8. In the Federal Court decision Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348, Wilcox J stated that normally proceedings commenced outside the prescribed period will not be entertained. His Honour set out six principles which guide the use of the discretion to grant an extension of time:

   ·that the application for an extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;

   ·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;

   ·whether there is any prejudice to any other party;

   ·that the mere absence of prejudice to other parties is not enough to justify the grant of an extension. However, any wider prejudice to the general public is a relevant factor;

   ·the merits of the substantive application; and

   ·considerations of fairness between the applicant and other persons in a similar position.

9. Similar principles to the above have been set out in subsequent cases. 

   EXPLANATION FOR THE DELAY

10. With regard to lodging the application for an extension of time, Ms Lori’s solicitor stated that her client had not been well enough to seek legal advice as to her entitlements.  In a statement dated 16 February 2015 Ms Lori said that she had lodged an incident report on or about 22 May 2012 stating that she suffered from mental issues – stress – leading to anxiety – panic disorder.  She highlighted events, issues and work relationships that caused her to continue to experience stress and anxiety over the ensuing months and to seek professional assistance.  Ms Lori stated that she took sick leave frequently due to panic attacks and stress.  She ceased working on or about 21 March 2013, returning later in the year.

11. Ms Lori’s claim for compensation was lodged on 21 March 2013.  On 23 April 2013 Australia Post rejected the claim and advised her she could apply for reconsideration but must do so within 30 days. 

12. In her statement of 16 February 2015 Ms Lori gave the following explanation of her reasons for failing to meet the time limit:

    31.  I wanted to appeal the decision but I felt I needed assistance.  On 17 May 2013, I managed to consult Ms Annie Hooper, of the Community and Public Sector Union, regarding the handling of my workplace matter.  Ms Hooper took on the burden of contacting Australia Post for me in relation to appealing the determination.  Ms Hooper unfortunately did not write out the appeal of the determination.

    32.  On 31 July 2013, after nothing had happened, I consulted Ms Melissa Patterson, regarding assistance with my claim.  Ms Patterson was employed by Scomparin and Bernardi Lawyers and then by Noble House Lawyers.  Despite moving from one law firm to another, Ms Patterson continued to handle my matter and all correspondence of the period of representation.  I assumed that she was in control of the appeal process after that time.  I later learned that instead of writing out the appeal letter Ms Patterson lodged another claim form.

    …

    34. On 11 December 2013, I returned to work…at a different workplace location. …

    35.  I enjoyed returning to work…I felt that my psychological condition was improving… I was not provided with any support when I returned to the workplace and this made it hard for me to deal with anxiety symptoms and reintegration.

    ..

    37.  On occasion, I would need to take sporadic sick leave due to worsening anxiety…

    38.  On or about 24 March 2014, I ceased work for the employer due to the employee’s concerns regarding my psychological health and well being…

    39.  On or about to June 2014 I requested a reconsideration of the determination dated 23 April 2013…

    40.  I have previously sought assistance through my Union Representative and Ms Patterson, though both apparently failed to complete the request for reconsideration.  I had every reason to believe that they would properly represent me but apparently they did not.  I always intended to properly appeal the decision but I should not be penalised for relying on those who I had reason to believe would assist and represent me.

    41.  I had tried to send a request for reconsideration in or around July 2013 to Ms Heather Sutton [the original decision maker]. I sent it as an e-mail but apparently it never reached its intended recipient.  I then went to see Ms Patterson because I felt I needed professional assistance and the union representative did not seem to represent me.

13. In her oral evidence, Ms Lori indicated that she had been away from the workplace for about a month when she received Australia Post’s decision denying her compensation.  Ms Lori stated that she relied on her father for assistance and stayed with him as she was too unwell.  She said that she sought assistance from the union’s Ms Hooper.  Ms Lori said that it had been her understanding that Ms Hooper was handling the matter on her behalf.  However Ms Hooper had not lodged the request for reconsideration on her behalf. 

14. Ms Lori said that she then requested assistance from a family friend who was a lawyer. She said that she did not know at the time that this friend, Ms Patterson, specialised in family law rather than work related issues. 

15. Ms Lori said that she contacted the firm now representing her in May 2014 at the suggestion of a person working for the union.

16. Under cross-examination, Ms Lori said that she had read the Australia Post decision but was not in a fit state at that time to fully appreciate the situation.  She acknowledged that the Australia Post delegate had told her all she needed to do to apply for reconsideration was provide a letter setting out the reasons why she believed the decision should be changed.  Ms Lori also conceded that the Australia Post delegate had invited her to supply further information about her claim before the original decision was made but she had only supplied medical reports. 

17. Ms Lori acknowledged that she had authorised her father to deal with Australia Post on her behalf and said that there had been emails and telephone calls between Ms Sutton of Australia Post, Ms Lori and her father on 30 April 2013 and 1 May 2013. The documents provided to the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) contain copies of those emails and notes of telephone conversations.   There had been some technical issues in relation to Ms Lori’s remote access to Australia Post from her home computer but Ms Sutton suggested ways of overcoming that problem. Ms Lori’s father suggested he might deliver documents by hand and Ms Sutton agreed to facilitate this.

18. Ms McMahon, Australia Post’s counsel, suggested that by 1 May 2013 Ms Lori knew what she had to do to apply for a reconsideration and what time limits applied. Ms Lori said that she was getting a lot of mixed messages and that she was very unwell at the time.  She remembered receiving an email from Ms Sutton on 1 May 2013 but could not recall its details.

19. Ms Lori said that it was mid-July 2013 before she realised that the union had not lodged a reconsideration request on her behalf.  She said that she had been too unwell to do anything in the two preceding months. 

20. Ms Lori said that she had not sought a medical report from her general practitioner stating that she had been too unwell to lodge the reconsideration application.  When it was pointed out that her general practitioner had certified her fit for modified duties in June 2013, Ms Lori agreed that he thought she could work five hours per day, four days a week.  Ms Lori said that it was a very blurred period for her.   

21. Ms Lori said that she instructed Ms Patterson orally in relation to her case.  She said that she expected Ms Patterson to contact her if anything happened.  Ms Lori repeated that neither the union representative nor the solicitor had lodged a request for reconsideration on her behalf.

22. The T documents contain copies of numerous emails concerning Ms Lori’s claim.  On 15 May 2013, within the 30 day period, Ms Sutton sent an email to Ms Lori confirming that she had not received any letter from her by registered post.  She suggested that a friend of Ms Lori’s working in the building could bring in a copy of the request for reconsideration and use the internal mail system to send it to the compensation department.

23. The T documents also include a copy of an email sent by Ms Hooper, the union representative, to Ms Sutton on Friday 17 May 2013 in which she stated:

    I have been contacted by Sara Lori...Sara requests a reconsideration of your decision dated 23/04/2013.  I am aware that supporting evidence for Sara’s claim was never received by your department by either email or post.  Could you please outline the steps Sara needs to take in order to progress her claim further?

24. Ms Sutton replied on Monday 20 May 2013 by email.  She stated that Ms Lori was required to provide a written request for reconsideration and set out reasons why she wished her claim to be considered.  Ms Sutton outlined the various methods that she had suggested to Ms Lori, none of which had resulted in her receiving the request.  This included lodgement by a friend working in the building.   Ms Sutton went on to state:

    Now that Sara has sought advice from you, she also has the option to send a request by your office.

    The reconsideration process WILL NOT commence unless a request is received, in writing, AND reasons are provided (reasons can be supported by medical documents, statements or any other information that Sara wishes to produce).  A reconsideration request must be lodged within 30 days of the primary decision being made.

25. Ms Hooper emailed Ms Lori and her father the same day, 20 May 2013,  forwarding Ms Sutton’s email in full and stating:

    I have read through Heather’s denial letter.  Australia Post believes the stress/anxiety relates more to personal factors occurring in your life as early as April 2011.

    In order for the case to be reconsidered you need strong, clear points. The information you have given me is very disjointed and confusing.

    The reconsideration needs to answer these questions..

    1.    What tasks and accountabilities were  you asked to do that were outside your job description?

    2.    Examples of extra job pressures put on you by Sharon Anderton? 

    3.    Any emails/evidence were [sic] you report being overworked or harassed?

    4.    Examples of harassment/bullying by Sharon Anderton?

    5.    Were these incidents witnessed by anyone?  Do you have any statements from colleagues?

    6.    Medical certificates/reports/letters that support that the stress/anxiety and panic attacks work related?

    If you could compile these answers with evidence that would be our best chance at reconsideration.  It’s important the information is clear and coherent.

    Give me a call if you need.

    …

26. There is no evidence as to whether Ms Lori or her father was in touch with Ms Hooper after this email.   

27. The Tribunal was also provided with a copy of an email from Melissa Bencic (Patterson) to Ms Sutton on 31 July 2013 asking for copies of the original claim and supporting documents lodged by Ms Lori on 21 March 2013.  Ms Sutton responded to Ms Bencic on the same day as follows:   

    Sorry I missed your call.  I am working in another office for a couple of days and can only view my emails intermittently.

    Can you please arrange for Sara to provide written authority allowing us to provide information to you?  You can scan and email back to me if required.

    Also, Sara has already lodged a claim for compensation which has been denied.  I suspect she has come to you regarding a reconsideration of this decision.

    I can provide a copy of the claim form that she completed as per your request, but I suspect (as this has little detail) you probably would want a copy of the whole file.  When you send the authority, please specify exactly what you want copies of.  Copies will then be posted to you via express post.

28. Ms Lori returned to work at Australia Post in a different location in December 2013 but ceased work again on or around March 2014 due to her medical condition.  She consulted her present solicitors about two months later.  She has lodged further compensation claims which are not before the Tribunal. 

    WHETHER THE APPLICANT HAS RESTED ON HER RIGHTS

29. Australia Post advised Ms Lori of her entitlement to seek reconsideration of the original decision on 23 April 2013.  There was quite a deal of activity and communication with Australia Post over the following week but the request for reconsideration was not lodged.

30. Ms Lori has stated that she was too unwell to lodge the request. However, in the 30 days after the refusal of her claim, she had assistance from her father with whom she was staying at the time and who was  authorised to communicate with Australia Post on her behalf.  She also had telephone and email communication directly with Ms Sutton during that period.  Her union representative also provided advice at that time.

31. Ms Lori returned to work with Australia Post six months before she lodged the request for reconsideration.  She worked for three months in her new job at Australia Post before succumbing to her previous health issues.

32. The Tribunal finds that Ms Lori has rested on her rights to apply for reconsideration of the decision.  She lodged the request more than 13 months after the due date.  The Tribunal is satisfied that she knew what she had to do and had the assistance of others including her father.  She was back at work with the same employer six months before she lodged the request.  There is no evidence to suggest that in the three months she was back at work that she could not have prepared a letter setting out her reasons for making the original claim. 

    PREJUDICE TO OTHER PARTIES

33. There may be some prejudice to Australia Post in terms of collating and analysing evidence in relation to a matter which appeared to be closed.  However the Tribunal notes that there have been later claims lodged by Ms Lori so Australia Post will have had ongoing dealings with Ms Lori in relation to those other matters. 

    WIDER PUBLIC CONSIDERATIONS

34. The legislation requires applications for reconsideration to be lodged within 30 days of the person becoming aware of the Commonwealth licensee’s decision.  It is therefore clear that the Parliament wished parties to the dispute to seek reconsideration within a relatively short time from the original decision.  On the other hand the legislation allows for an extension of time.     

    THE MERITS OF THE APPLICATION

35. In the  claim form lodged on 21 March 2013, Ms Lori stated that her injury was Health – anxiety stress/panic attacks – mental health and that she had first noticed it in January 2012. Her supervisor provided a brief report on 28 March 2013.  The Australia Post delegate spoke with Ms Lori and also wrote to her twice seeking answers to a number of specified questions.  These included details of when she first noticed her symptoms and specific details regarding  the work pressures that led Ms Lori to claim her symptoms were work-related.  Ms Lori sent in some medical certificates on 9 April 2013 but did not provide any responses to the questions asked by Australia Post.

36. In her decision of 23 April 2013, the delegate stated:

    You were afforded the…opportunity to provide specific details of the circumstances of your alleged injury/illness via the written request made of you on 28 March 2013.  A further reminder was sent to you on 10 April 2013.  You have not responded to this request, opting rather to submit numerous medical certificates covering periods of incapacity over the last 3 months from January to March 2013.  You have also submitted, what appear to be copies of the clinical notes of the … Medical Centre for the period 23 January 2011 to 4 March 2013.

    I have examined the numerous medical certificates that you have submitted commencing in January 2013 and note that, save for the medical certificates issued on 9 March 2013, 17 March 2013 and 4 April 2013 that makes some mention of your employment, the majority of the certificates lodged are either silent or defer to personal illness or a non-specific medical condition in describing your injury/illness.

    I have also examined the clinical notes lodged and have noticed sporadic entries referring to mental health issues commencing from as early as April 2011, prior to the time that you claim your injury/illness to be allegedly work related.  In fact, these entries indicate other factors in your personal life that have contributed to your mental health state for which you received treatment and/or medication.

    …

    From the evidence available it appears that your injury/illness relates more so to personal factors occurring in your life since as early as April 2011.

    Further there is no evidence available that supports your employment has aggravated in the injury/illness, in a significant degree.

    In addition, you have failed to respond to specific request to provide further information to support your employment has aggravated your condition.

    Therefore, based on the evidence available, I find that the compensation claim for “health – anxiety stress/panic attacks – mental health” that you allege occurred in or around December 2011/January 2012 did not arise out of or in the course of your employment.

1. The Tribunal has been provided with psychiatric reports prepared several months after the claim in which opinions have been given that Ms Lori’s work affected her mental health.  There appears to be no contemporaneous psychiatric report in relation to this claim. 

2. A report by Dr Byron Rigby, psychiatrist, dated 6 June 2014 indicated that he had been treating Ms Lori for an Adjustment Disorder with Anxious and Depressed Mood since       1 November 2013, several months after the delegate’s decision.   He focused  mainly on Ms Lori’s inability to return to work after she ceased working in March 2014.  Dr Joel Aizenstros, consultant psychiatrist, provided a report dated 24 March 2014.  Dr Aizenstros provided another report dated 29 January 2015.  Those reports do not cover the period prior to March 2013.

3. It is difficult to assess the merits of the claim for which Ms Lori seeks to obtain an extension of time for reconsideration.  It is possible, but not necessarily probable, that she might succeed on the basis of the evidence presented to date. 

4. The Tribunal notes that Ms Lori lodged a further claim in July 2014 for which she has provided a detailed statement and attached to which are relevant psychiatric reports.  As indicated earlier, the Tribunal is unable to deal with that claim. 

   CONSIDERATIONS OF FAIRNESS

5. There does not appear to be anything in Ms Lori’s situation that makes her circumstances markedly different to those of other claimants in a similar position.  Others in that jurisdiction have the same rights to seek reconsideration and to seek an extension of time if they do not apply within the prescribed time limits.

   SHOULD THE TRIBUNAL GRANT THE EXTENSION OF TIME?

6. Mr Carey, counsel for Ms Lori, submitted that she had sought legal assistance and had relied on that advice in lodging a fresh claim rather than putting in a request for reconsideration.  He submitted that Ms Lori should not be penalised for the mistakes of the solicitor.  He cited the Full Federal Court decision of Comcare V A’Hearn (1993) 45 FCR 441. That matter concerned a delay in lodgement of an AAT application due to a solicitor’s inaction. Mr Carey also cited Beecher & TelstraCorporation Ltd [1994] AATA 6 as a relevant precedent in which the Tribunal extended time for lodgement of a request for reconsideration on the basis that the applicant was not fully aware of his rights.

7. Mr Carey submitted that Ms Lori’s incapacity at the time was also one of the principal reasons for her failure to lodge the request for reconsideration within time or soon after the expiry of the 30 day period. 

8. Mr Carey pointed out that Australia Post were continuing to deal with Ms Lori over the subsequent months, monitoring her health and seeking to assist in Ms Lori’s rehabilitation.  He stated that Australia Post were therefore in a position to know Ms Lori’s particular circumstances on an ongoing basis.  He submitted that they were aware of her intention to lodge a request for reconsideration. 

9. Mr Carey also pointed out that Ms Lori verbally sought legal advice and she was entitled to rely on this.  He submitted that Ms Lori should not suffer from the errors of her solicitor and the poor advice to sign a fresh claim form for the same injury (which had already been rejected).

10. Ms McMahon submitted that Australia Post had on several occasions explained to Ms Lori what she was required to do to seek reconsideration.  The father was also advised well within time as was Ms Hooper, the union official.  She pointed out that there was no requirement to provide documents but merely to send a letter with an explanation of why reconsideration was being sought.  Ms McMahon also submitted that Ms Lori had appeared to be well enough to instruct her lawyer, her father and the union representative in the first few months after the original decision.  She stated that Ms Lori was well enough by December 2013 to return to full-time work but still did not lodge the application for reconsideration.

11. Ms McMahon drew parallels in this matter with Dawson and Thales Australia Ltd [2012] AATA 318 where solicitors were tardy in lodging an application for review but the Tribunal was not satisfied it should extend time. Ms McMahon pointed out that in the present matter, the solicitor was not instructed until some two months after the expiry date for seeking reconsideration.

12. Ms McMahon also submitted that there was no medical evidence to corroborate that Ms Lori was not well enough to put in her request.  There were medical certificates stating that Ms Lori was not fit for full time work but they fell short of saying that Ms Lori was incapable of doing anything or preparing the request for reconsideration.

13. The Tribunal is not persuaded that Ms Lori’s failure to lodge a request for reconsideration within the prescribed period or within a short period thereafter was due to her union representative’s inaction.  The emails on 17 May 2013 show that both Ms Hooper and Ms Sutton were helping Ms Lori and that they acted promptly.  Ms Sutton appears to have gone out of her way and beyond reasonable expectations in trying to ensure Ms Lori lodged her request on time.

14. The Tribunal is also of the view that whilst Ms Patterson appears to have attempted to obtain relevant information quickly once her assistance was sought but this was some two months after the request for reconsideration due date had passed.  Ms Lori’s case is not one where the solicitor’s tardiness caused the late request for an extension of time.

15. Ms Lori and her father were both clearly aware of what needed to be done in relation to the request for reconsideration.  They were given unambiguous  instructions that a letter with the reasons for seeking reconsideration was sufficient to initiate the request.  They were told a number of alternative ways of providing that letter, and were even given a return express post envelope addressed to the relevant person.  Ms Hooper also informed them of what they needed to do.  There is nothing in Ms Hooper’s email to suggest she was preparing the letter for Ms Lori.  Nor was Ms Hooper in a position to provide the relevant information.

16. The Tribunal is not satisfied that the reasons for the delay in making the request for reconsideration advanced by Ms Lori and her legal representatives are strong enough to extend the period for lodgement by more than 12 months. Ms Lori had clear instructions about time limits and the information needed to start the process.  Those instructions − as well as an offer to facilitate lodgement by various means − were given a number of times.  While Ms Lori was unwell, there is no evidence beyond her assertions that she was incapable of making the request either within time or soon after the due date owing  to her illness. 

17. Australia Post (and the Tribunal) may well have had a different attitude to extending time if the request had been made within a few weeks of the due date.  Putting in the request more than a year later than the legislation requires, a timespan which included a three month period when Ms Lori returned to work, does not demonstrate an inability to do so because of health issues.  The Tribunal notes that when Ms Lori stopped work in March 2014, she was capable of lodging a fresh claim with supporting statements.  It took a further three months to lodge the request for reconsideration of the claim lodged more than a year earlier. 

18. While the Tribunal accepts that Australia Post was still dealing with other claims by Ms Lori at the time she sought the extension of time, it was entitled to consider the claim lodged in March 2013 closed, particularly when Ms Lori failed to provide relevant details following Australia Post’s requests for more information. 

19. On balance, taking all the factors into account, the Tribunal finds that the extension of time to lodge the request for reconsideration should not be granted.

    DECISION

20. The Tribunal affirms the decision under review.

    I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision of Ms Regina Perton.

     
     
    

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

    Associate

    Dated 23 September 2015

Date of hearing	30 March 2015
Counsel for the Applicant	Mr M Carey
Solicitors for the Applicant	Nowicki Carbone
Advocate for the Respondent	Ms A McMahon
Solicitors for the Respondent	Sparke Helmore