Maheswaran and Australian Postal Corporation

[2005] AATA 247

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 247

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/130

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUNTHARY MAHESWARAN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date18 March 2005

PlaceSydney

Decision An extension of time is granted to Mrs Maheswaran to 27 January 2005 for the making of an application to this Tribunal in respect of the reviewable decision of Australia Post dated 21 May 2004.

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

Ms N Bell
  Senior Member

EXTENSION OF TIME – Whether Applicant Meets Criteria Set Down in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

Hunter Valley Developments Pty Ltd & Cohen (1984) 7 ALD 315

REASONS FOR DECISION

18 March 2005 Ms N Bell, Senior Member

1.On 11 March 2004 Mrs Maheswaran lodged a claim for compensation in respect of “bilateral severe carpel tunnel syndrome both hands”.  On 5 April 2004 Australia Post rejected her claim for compensation and, after Mrs Maheswaran’s request for reconsideration on 3 May 2004, Australia Post on 21 May 2004 affirmed its determination. 

2.Mrs Maheswaran took no action to further her claim until 21 December 2004 when she wrote to Australia Post saying that she wished to “resubmit my request for this to be reconsidered”.  Australia Post replied stating that the decision had already been reviewed and Mrs Maheswaran’s appeal rights remained unchanged.  After consulting Slater & Gordon, Solicitors, Mrs Maheswaran lodged an application for review together with an application for extension of time on 27 January 2005.

3.Section 64 of the Safety, Rehabilitation and Compensation Act 1998 provided for an application to be made to this Tribunal for review of a reviewable decision and section 65 (4) allows 60 days to do so. Mrs Maheswaran has lodged her application well beyond the time limit and she requests me to extend the time for making her application pursuant to section 29 (7) of the Administrative Appeals Tribunal Act 1975.

4.In considering whether to grant an extension of time I have applied the principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. A number of criteria were set out by Wilcox J in that decision. Those most relevant to the circumstances of this application are:

a)   the Applicant should provide a reasonable explanation for the delay;

b)   the Applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision;

c)   the Respondent should not be unduly prejudiced if the time is extended;

d)   the merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.

5.The delay involved in this matter is some nine months.  However I note that the Applicant, although inappropriately, asked for further internal review in December 2004. 

6.As to the reasons for the Applicant’s delay, I accept Mrs Maheswaran’s evidence that:

·     she moved house in July 2004, the month during which the 60 day period expired;

·     she gave birth to her daughter in August 2004;

·     she changed her general practitioner in October 2004, given her new residential location;

·     she received advice from both her former and later general practitioners and from Dr Fleischer, Surgeon, that pregnancy can exacerbate  carpal tunnel syndrome and that it may take a few months after giving birth to see an improvement in symptoms.

7.I accept Mrs Maheswaran’s evidence that she attempted a return to work in early November 2004 but did not persist in that attempt.  By December 2004 her pain had not improved and she wrote the earlier mentioned letter to Australia Post in order to pursue her claim. 

8.I also accept Mrs Maheswaran’s evidence that she attempted, through her Union Representative, to attend Slater & Gordon, Solicitors but was unable to get an appointment with them until 20 January 2005 because of the intervention of the Christmas and New Year break. 

9.I note that, at least until November 2004 Mrs Maheswaran had not had any time off work as a consequence of her condition and she had not incurred any significant medical expenses.

10.I consider the above matters to amount to an acceptable or reasonable explanation for delay and I note the action taken by Mrs Maheswaran in December 2004, when she became worried about her condition.

11.In relation to prejudice to the Respondent if the time for lodging an application is extended, I note that the Respondent obtained a report from Dr Stapleton, Hand Surgeon on 31 March 2004, very soon after Mrs Maheswaran had lodged her claim.  Ms Henderson, for Australia Post, submitted that it is not only medical evidence that is important in applications of this kind but also lay evidence as to the work undertaken by Applicant’s prior to acclaimed injury.  Ms Henderson pointed to the reduced likelihood; the more time goes by, that the full range of evidence will be available to the Tribunal in its consideration of the substantive application.  I note, however, that Mrs Maheswaran was on maternity leave, leave without pay and recreation leave until late October 2004, which leaves a period of only three months at work prior to her lodging her claim.  While this may be a matter that goes to the merits of Mrs Maheswaran’s substantive application, it also narrows the range of the lay evidence that will be required to be examined in the substantive application.

12.As to the merits of the substantive application, I note that the report of Dr Stapleton expresses a clear opinion that Mrs Maheswaran’s carpal tunnel syndrome is not work caused.  He does, however, acknowledge that many doctors believe that carpal tunnel syndrome may be caused or permanently aggravated by repetitive activities.  I also note that an undated report from Dr K Bala, Mrs Maheswaran’s former general practitioner, records a history of her having noticed her pain more often while working as postal mail sorter and easing off when resting at home.  The report of Dr G Fleischer dated 24 March 2004, expresses no opinion on the causation of her condition but the report is written to Dr Bala and not apparently for medico-legal purposes.  It is therefore not surprising that it contains no opinion as to causation.  I do not consider that these reports, viewed as a whole, establish that Mrs Maheswaran’s substantive application is without merit. 

13.Miss Henderson also submitted that Mrs Maheswaran spent only a few months at work, following extended leave, before making her claim and that this indicates a disconnection between her carpal tunnel syndrome and her work at Australia Post.  Without the benefit of expert medical evidence on that point, I cannot reach the conclusion that this short period of work leading up to her claim precludes her from success in her substantive application.

14.Taking into account the above matters and having regard to the range of authorities referred to by Counsel for Mrs Maheswaran and for Australia Post, I consider that an extension of time should be granted to Mrs Maheswaran to 27 January 2005 for the making of an application to this Tribunal in respect of the reviewable decision of Australia Post dated 21 May 2004.

DECISION

15.An extension of time is granted to Mrs Maheswaran to 27 January 2005 for the making of an application to this Tribunal in respect of the reviewable decision of Australia Post dated 21 May 2004.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ................[Ms Linda Blue]..................................
  Associate

Date of Hearing  11 March 2005
Date of Decision  18 March 2005
Counsel for the Applicant         Mr David Richards
Solicitor for the Applicant          Slater & Gordon Lawyers
Counsel for the Respondent     Ms Rhonda Henderson
Solicitor for the Respondent     Graham Jones Lawyers