Marinceski and Comcare
[2006] AATA 467
•30 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 467
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/253
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN MARINCESKI Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon R N J Purvis, A.M, Q.C Deputy President Date30 May 2006
PlaceSydney
Decision The application under review is affirmed.
[Sgd] The Hon R N J Purvis, A.M, Q.C Deputy President
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2006/253
GENERAL ADMINISTRATIVE DIVISION
)
Re
JOHN MARINCESKI
Applicant
And
COMCARE
Respondent
DECISION (CORRIGENDUM) [2006] AATA 467
TribunalThe Hon R N J Purvis, A.M, Q.C Deputy President
Date8 June 2006
PlaceSydney
WHEREAS:
1. The Tribunal published its reasons in this matter, which was dated 30 May 2006.
2. The Tribunal wishes to amend the reasons so as to rectify an error. To do so with the least cost and inconvenience to the parties, the Tribunal exercises its power under s.43AA of the Administrative Appeals Tribunal Act1975.
3. Now the Tribunal therefore orders that the cover page and final paragraph of the reasons of the Tribunal should read as follows:
The application for an extension of time with respect to the period 1 June 1974 to 1 April 1979 is refused.
[Sgd] The Hon R N J Purvis, A.M, Q.C
Deputy President
CATCHWORDS
COMCARE – extension of time – claim referable to period 1 June 1974 to 1 April 1979 – consideration of history of events – factors relevant to consideration of extension of time – decision under review affirmed.
Compensation (Commonwealth Government Employees) Act 1971 – section 45
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1981) 6 AAR 300
Comcare v A’Hearn (1993) 45 FCR 441
Mulheron and Australian Telecommunications Corporation (1991) AAR 42
REASONS FOR DECISION
30 May 2006 The Hon R N J Purvis, A.M, Q.C Deputy President the application
1. On 15 June 2004 a Comcare Independent Review Officer made a reviewable decision varying a determination dated 31 January 1986, by amending the incapacity benefits of Mr John Marinceski (“the Applicant”) pursuant to section 45 of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”). The decision also confirmed that incapacity benefits between 1979 and 1986 were subject to reduction pursuant to section 52(3) of the 1971 Act.
2. The determination dated 31 January 1986 provided for the Applicant to be entitled to compensation for total incapacity from the 2nd of April 1979 as a result of his psychiatric condition.
3. Under date the 6th of March 2006, the Applicant sought to make an application for review of the decision of the 15th of June 2004 stating that he disagreed with it “based on advice and evidence I have”. At the same time he lodged an application for an extension of time for lodging his application for review of the decision. In his reasons for making the extension of time application he stated:
“Since Comcare’s decision I received (sic) I was (sic) carried out an investigation and assistance from Centrelink. It was very long delay…. Further delay with Legal Aid Office.”
4. The reviewable decision of the 15th of June 2004 consisted of two separate claims:
(i) Entitlement to compensation for incapacity between 1 June 1974 and 1 April 1979 pursuant to section 45 of the 1971 Act; and
(ii) Calculation of compensation entitlements for incapacity between 2/4/79 to 6 February 1986 pursuant to the said Act.
5. Comcare was notified of the application for extension of time. Its attitude was sought in relation to it. Under date 4 April 2006 Comcare gave notice of its opposition to the application for extension of time with respect to the first of the above mentioned claims on the grounds that:
(1) Comcare will suffer significant prejudice if this aspect of the reviewable decision is reviewed.
(2) The prejudice arises because the employment and medical records of Mr Marinceski have been destroyed by the employing agency and are not available. In the circumstances, we do not consider that Comcare or the Tribunal can undertake a proper assessment of the entitlement of Mr Marinceski to compensation for that period.
(3) Mr Marinceski has not provided any reasonable explanation for his delay in seeking review of this aspect of the reviewable decision.
6. In the reviewable decision and in relation to this claim the review officer stated:
“…
3. It is considered:
(a) Incapacity entitlements between 01/06/1974 to 01/04/1979:
During the period 01/06/1974 to 01/04/1979, the claimant’s former employer was responsible for the administration of any claim for compensation lodged by the claimant.
The claimant’s former employer has indicated that his personnel records would have been destroyed 7 years after the termination of his employment, ie. approximately April 1986.
As a result, there is no record of the amount of sick leave pay the claimant received in respect of the compensable condition nor is there any record of the amount of recreational leave the claimant received.
Additionally, there isn’t any medical evidence currently held on the compensation file certifying the claimant as being incapacitated for work during any period between 01/06/1974 and 01/04/1979 as a result of the compensable condition.”
7. The present application relates to the issue as to whether an extension of time should be granted to the Applicant in relation to his claim referable to the 1 June 1974 to 1 April 1979 period.
historical resume of significant events
8. Under date 9 March 1979 the Applicant made a claim under the 1971 Act for compensation, for depression and cognitive impairment. The application stated that he was then incapacitated for work and had been “for periods of 1 to 2 weeks” since June 1974. He maintained that the injury occurred when he was a driver/sprayer for the “D.C.T Parks & Gardens” and was exposed to “pesticides and insecticides”. At the time of this application, the Applicant was in receipt of Sickness Benefit from the Department of Social Security. A report by Dr Edwin Cassar of 13 March 1979 notes the Applicant informing him of his non-attendance for work “being 153 days in 1977 and 81 days in 1978 and continuously this year.”
9.The Applicant was retired on invalidity grounds on 2 April 1979.
10. On 14 December 1983 the Applicant’s claim was disallowed. The Applicant applied to the Tribunal for review of the decision of 14 December 1983. Under date 19 February 1985 a Delegate of the Commissioner for Employees Compensation determined:
“…
(1) The determination dated 14 December 1983 is hereby revoked.
(2) The employment of the said John Marinceski was a contributing factor to the contraction by him of mixed anxiety depressive neurosis, and the said disease resulted in incapacity for work and necessitated medical treatment and is therefore a personal injury for which the Commonwealth is liable to pay compensation.
(3) In accordance with the provisions of sub-section 45(2) of the said Act, and from the date of this determination, the said John Marinceski is entitled to the payment of compensation of $159.60 a week, and in addition $41.80 a week in respect of Srosa Marinceski a prescribed person for the purposes of sub- section 45(3) of the said Act, and in addition $19.90 a week each in respect of Linda Marinceski and Mareinci Marinceski children to whom sub-section 45(4) of the said Act applies.”
11. Under date 30 August 1985 and 20 May 1986 determinations were made as to the quantum of incapacity payments from 1 May 1985 and 1 May 1986 referable to the Applicant, his wife and children. On 31 January 1986 a further determination was made as to quantum and it was accepted that the Applicant was totally incapacitated for work from 2 April 1979. Other determinations as to amount were made on 6 April 1987, 31 July 1987, 19 January 1988 and 22 June 1988.
12. In about August 1989 the Applicant retained a firm of solicitors, Kell Heard & McEwan, who on 17 August 1989 wrote to the Respondent stating:
“We have received instructions from the abovenamed to advise generally in relation to this entitlement pursuant to an award for a mixed anxiety depressive neurosis.
…
Our client is now concerned and confused as to his present entitlement and as to the payment that he is receiving.
Would you please provide us with the following information:-
(a) What our client’s current entitlement is;
(b) Under what legislation is our client now being paid;
(c) Whether our client is entitled to an allowance for his dependent wife and three dependent children? If not, why not?
(d) On what basis our client’s future payments are calculated i.e. is it a percentage of his award wage? If so please provide details.
…”
On 8 March 1990 in a further letter the said solicitors stated:
“We confirm that we act for the abovenamed and thank you for your recent correspondence.
…
In other words would you be kind enough to furnish us with details under the relevant legislation of what additional benefits our client is or may be entitled to other than the prescribed payments.
…”
13. The Respondent replied to the latter mentioned letter on 4 April 1990. Other correspondence not relevant to this application passed between the Applicant and Social Security.
14. The Applicant retained another firm of solicitors, Carroll & O’Dea, who on 28 March 1994 wrote to the Respondent as follows:
“We act for the abovenamed and enclose an authority authorising and directing you to supply us with information.
Our client appealed against a determination of the Department of Territory and Local Government to refuse a claim for compensation relating to his exposure to chemicals while in their employ.
Our client received compensation payments for total incapacity from 2.4.1979 to 7.2.1986. From this sum amounts of social security were deducted.
We are trying to answer the following questions and would appreciate your assistance in doing so:
1. What was the total amount our client received for the period 2.4.1979 to 7.2.1986?
2. What was the total of the commonwealth payments taken from this sum and how was this broken down into paybacks for invalid pension and paybacks for sickness benefits, if at all?
3. Were any payments made for our client’s partial incapacity between 1974 and 1979?
We would appreciate your assistance in obtaining as much detail as we can on our client’s claim.”
15. On 15 February 1996 the Applicant wrote to the Respondent and amongst other matters made an enquiry as to:
“…The other thing I like to know’s (sic) that as the date of personal injuries at work been accepted from 1-6-1974, no compensation payment been made to me up to the 1-4-79 for loses of un paid sickleaves (sic) and lost (sic) of wages. If payment was been made please advised (sic) me when, how much to whom…”
16. The Respondent replied to the February 1996 letter on 4 April 1996 and with reference to the abovementioned enquiry stated:
“…
·With regard to your query of no compensation payments being made to you from 1 June 1974 through to 1 April 1979, you would need to contact your, then employer, and discuss this particular matter. Comcare do not hold any information prior to March 1979 on your file.
…”
17. Under date 1 May 1996 Carroll O’Dea wrote to the Respondent in identical terms to the letter of 28 March 1994. On 21 May 1996 the Respondent replied to the May 1996 letter. With reference to the 1974 to 1979 period it was stated:
“…
3. Were any payments made to our client’s partial incapacity between 1974 and 1979?
From the records this office holds and as far as I can ascertain, Mr Marinceski did not receive any payments for partial incapacity between 1974 and 1979.
In order to establish partial incapacity during this period, Mr Marinceski would be required to provide the medical evidence of his alleged partial incapacity provided at that time ie. not back-dated medical evidence, dates of partial incapacity and records from his then employer of his alleged partial incapacity.”
18. The Applicant in 1997 sought advice from Legal Aid. On 20 November 1997 NSW Legal Aid wrote to the Respondent stating:
“We have been contacted by Mr Marinceski regarding compensation payments made following employment related injuries in about 1974.
Pursuant to Section 59 of the Safety Rehabilitation and Compensation Act we would be grateful if a copy of Mr Marinceski’s file regarding the injuries or any disablement be provided to us…”
19. On 22 December 1998 the Applicant wrote to “City Parks Administration“ stating:
“…
I had been advised by Comcare Office to write and ask C.P.A. to provide me with information in regard incapacity for work for the period of time out of work (non-attendance from work) and any sick leaves from the date 1/6/1974 to 1/4/1979. The total of days or weeks.
This information will be given to Comcare Office for determination.”
20. The Applicant under date 30 December 1998 wrote a lengthy letter to the Respondent. In this letter he raised matters referable to the 1985 determination and payments made since 2 April 1979. He also discussed his liability to tax. He did not raise any matter relevant to the 1974 – 1979 period.
21. On 6 January 1999 Urban Services replied to the Applicant’s letter of 22 December stating:
“I have received your request for information about leave during the period 1/6/74 to 1/4/79. It would assist our search if you could provide us with your date of birth and also the date of ceasing employment with City Parks…”
22.On 9 February 1999 Urban Services again wrote to the Applicant stating:
“In reference to your request for information about your sick leave during the period 5 August 1968 to 2 April 1979 I regret to inform you that as a temporary employee we are only required to keep your sick leave records for a period of seven years.
Consequently, we no longer have records of your sick leave for that period. If it would help you I could, however, confirm that you were employed with us for that period of time.
Due to the lack of records I unfortunately can not offer more information in regards to your question but if you feel I may be of further assistance please contact me…”
23. In September 1999 the Applicant instructed a Canberra firm of barristers and solicitors, Romano & Co. On 2 September 2003 the Applicant again wrote a lengthy letter to the Respondent. In it he stated:
“D:
I have not received payments for the period 1/6/1974 to 1/4/1979. According to the Workers Compensation Act, workers compensation benefits are payable from the date of injury, as this is part of the same claim, In my case, this means that I should have been paid for the above period at the same time as when the other payments were made to me (‘85/’86). I have contacted Christopher Sabel from Urban Services, my former employer, in regard to sick leave and time –off work records for the above period. I have been advised that they no longer have these records. I truly believe that it was Comcare’s responsibility to, one, pay workers compensation benefits at the time and two, if not paid at the time to ensure now, that I received all workers compensation entitlements under the Worker’s Compensation Act. The most effective and efficient way to have made these payments would have been during the time when the determination was made, as the above records would still have been accessible. However this was not done, which means that I loose out on a substantial amount of benefits to which I am entitled to. Could you please look into this issue and advise when I can expect payments?”
24. The Applicant retained Illawarra Legal Centre Inc to give him advice, but on 18 November 2003 they stated that “without further evidence from you we can no longer take your matter any further”.
25. With reference to the Applicant’s request of 2 September 2003 the Respondent reconsidered its determination of 31 January 1986 and under date 15 June 2004 varied the said determination. With reference however to “incapacity entitlements between 1.6.74 and 1.4.79” it made the observations as to the passage of time, destruction of records and absence of medical records as earlier noted in these reasons.
26. There is not now before the Tribunal any evidence of further correspondence between the Applicant and Comcare prior to the Applicant making his present application for extension of time. Nor is there evidence of any oral representations made by the Applicant to Comcare over that period.
factors relevant to exercise of discretion as to extension of time
27. Whilst prima facie proceedings commenced outside of a prescribed period will not be entertained, the factors to which the Tribunal is to have regard in exercising its discretion to extend time are as detailed by the Federal Court in Hunter Valley Developments v Cohen (1984) 3 FCR 344, summarised in Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300 at 301-302, and qualified by observations in Comcare v A’Hearn (1993) 45 FCR 441 at 444. Consideration was also given to them in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. They are as so summarised and qualified:
(1) The Applicant for extension of time should show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.
(2) Action taken by the Applicant which makes the decision-maker (and presumably also the other party to the decision) aware that he/she contests the finality of the decision is relevant. If the Applicant has rested on his/her rights this may operate against the exercise of the discretion.
(3) Prejudice to the Respondent is a material factor militating against the grant of an extension.
(4) The mere absence of prejudice is not enough to justify the grant of an extension. A delay which may result in the unsettling of other people or of established practices is likely to prove fatal to the application.
(5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(6) Consideration of fairness as between the Applicant and other persons in a like position is relevant.
28. The Applicant for extension of time should ensure that there is evidence indicating why time should be extended and the Tribunal is to be satisfied that it is proper so to extend time. The explanation for a delay is a matter relevant for consideration as is the prospects of the success of a substantive application. Whilst it is to be noted however that whilst the principles enunciated above act as a guide to the exercise of a discretion, they are not exhaustive.
additional material and submissions tendered to the tribunal
29. At the hearing of this extension of time application the Applicant was assisted by a friend Ms Rembovska.
30. It was submitted on behalf of the Applicant that the present application is not the first time that he has asked for the 1985 decision to be reviewed or looked into. Throughout the years it was said the Applicant had corresponded with Comcare “without getting anywhere basically – without getting any response from them”. It was said that “this is not the first time after so many years that Mr Marinceski has asked for a decision [as to] medical payments to be made for that period”. Further it was said that the Applicant “finds it difficult to believe that there won’t be any documents available because even at the time when he actually questioned that period of employment he was still employed by them. So the difficulty in him understanding as to how there cannot be any records when he was still in fact employed and his workers compensation case the claim was basically still open and ongoing”. He had never stopped asking it was submitted “for a resolution …in this area”. He had sought information from Comcare.
31. With reference to the determination of the 19th of February 1985 it was submitted that the Applicant’s understanding was that the “determination says that the Workers Compensation Benefits should be made from the injury date which it was known then to be 1974 and that that should be made from that period from 1974 clearly stating that it should be in addition to the pre-retirement period of total incapacity… So this talks about that and accepts that he was totally incapacitated for work pre that retirement date”. The Applicant’s contention is that that determination was made at the time “and payments should have been made at that time and since then Mr Marinceski has waited for those payments to be made… He had made several attempts by having two or three solicitors to actually get some progress or resolution in terms of where that was up to”. The Applicant submits that it is not his fault that “nobody took really any notice of that determination and really didn’t proceed to actually make any workers compensation benefits back to 1974. It is not his fault”.
32. It is said the Applicant did not stop asking for those benefits. The determination made in 1985 was at the time when there should have been medical information available. It was submitted, that the determination of the fact of the records was not the fault of the Applicant and that he “should not suffer because of not having that information at the moment”.
33. In a letter to the Tribunal of the 6th of May 2006 received after the hearing of the application had been concluded and the decision reserved, the Applicant argued that it was his expectation in 1985 that payments would be made “in due time”. Records, it was said, were available to the employers/Comcare at that time and the Applicant said “I felt that as the matter was in Comcare’s hands and I trusted that Comcare would make these payments in due time, I did not think at the time that it was necessary for me to ask them again to pay me”.
34. The Applicant maintains that he has “continuously been” pursuing these payments since 1988. He submits that it would be competent for the Tribunal to “estimate that the lost time off work due to this injury” was as he detailed in his letter.
35. It is not open to the Tribunal to estimate a time off work. The Tribunal can only act upon acceptable evidence or reliable information as to the actual time that the Applicant was off work. Mention was made of days in 1977 and 1978 when he was said to be on sick leave. However as was submitted on behalf of the Respondent evidence would need to be available as to the cause of the Applicant being on such sick leave. It would not be open to the Tribunal to make an assumption as to the sick leave being attributable to any work related incapacity.
36. Finally the Applicant suggested that “payments for the period in question could be worked out in a number of ways such as the average weekly earnings of the comparable employee in the same position today; the statutory rate applying at this date; actual average weekly earnings for the period plus interest to date” and “the set statutory rate for the said period plus interest”. Tribunal can however only act on evidence as to the loss experienced actually by the Applicant, if any, at the relevant time. It can not engage in an estimation.
37. As earlier indicated in these reasons the Respondent maintains that it will be measurably prejudiced if extension of time is granted to the Applicant. It is maintained that there is “simply no evidence for Comcare or the Tribunal to deal with the issues which the Applicant wants dealt with it”. It is said that it would be “fruitless” to grant an extension on this particular issue. As was further submitted on behalf of the Respondent a problem arises on account on the determination in 1985 having been made in relation to entitlements the Applicant would receive under the 1971 Act and on the basis that he was permanently incapacitated for work from April 1979. In the following years all of the calculations and all of the dealings with the Applicant were in relation to the period of total incapacity from 1979 onwards.
38. The 2004 decision does not purport to review an earlier decision. That is because there had not been a formal determination on the 1974 to 1979 issue, even albeit that there might have been a deemed failure to make a decision in the earlier period.
39. It was not until 1994 that the Applicant enquired about payments or entitlements that might have been made or to which he might have been entitled for the period 1974 to 1979. It was further submitted that the Applicant himself had delayed in making enquiries particularly following the 1985 decision. The Applicant having suffered the injury in 1974, he did not seek compensation for it until many years later. The Respondent did not have the opportunity to have the Applicant’s condition investigated between 1974 and 1979, he not making a claim for compensation at that stage. There was not and is not any medical evidence as to his capacity or otherwise to work at that time. Further there are no records of the days that he had off work or the days for which he may have been paid sick leave.
40. Thus it is submitted there is no medical evidence as to the Applicant’s condition between 1974 and 1979 and there is no payroll evidence to show the periods of time that he was off work. Further there is no evidence as to the causal or connection between his condition and the period or periods of time that he may have been away from his employment.
41. The Applicant has been represented by legal advisors for various lengths of time since he ceased his employment in 1979. He has applied his mind to the issue of his entitlements since the date of his injury. He has delayed for a significant period on this issue of his entitlements. The issue that he now seeks to enliven is one that was not raised until 1994, 20 years after his injury.
42. Further there is little if any evidence explaining the delay from the making of the decision in 2004 to the making of the present application or indeed of periods of delay that occurred prior to the 2004 decision. It might be assumed that there are very few if any medical records existent as to the period 1974 to 1979 and the memories of the Applicant’s medical practitioners, if they were to give evidence as to the Applicant’s capacity to work, is likely to be severely impeded by the passage of time. There is no evidence as to the time, if any, that the Applicant had off work attributable to the injury or as to why he may have been off work or whether or not any leave was due to his compensable condition or some other reason.
43. Overall it was submitted on behalf of the Respondent that the Applicant has not provided any satisfactory explanation for the delay or as to why it took him from 1985 to 1994 to raise the issue with Comcare. Being aware of a possible entitlement to compensation from as early as 1985 no explanation for delay has been forth coming as to why he did not raise this aspect until 1994.
decision
44. The factors to which the Tribunal is to have regard in an application such as the present have earlier been set forth. The period for which the Applicant now seeks to have a review application dealt with is that between 1974 and 1979. No explanation has been forth coming as to why the Applicant did not seek to raise a claim for this particular period at a date earlier than 1985. Thereafter the matter was not raised in any significant sense until 1994 and there after until the application was made the subject of the 2004 decision. No explanation has been forth coming as to the delay that occurred between the 2004 decision and the present application been made.
45. As with the absence of explanation for the delay, so it is that the Applicant did not inform the Respondent of his taking issue with the finality of the 2004 decision. The Respondent was perfectly entitled to consider the 2004 decision as being final and not to subject of further dispute with the Applicant.
46. There is evidence before the Tribunal as to there not being available at this time medical records pertaining to the Applicant in the relevant period, or employment records as the periods when the Applicant might have been off work, and if so, for what reason. Whilst it is true to say that the Applicant is not to blame for the destruction of the records, neither is the Respondent. The employer was perfectly entitled to cause the records to be destroyed after the passing of the prescribed period, the Applicant not having made any claim prior to such action being taken. There was no reason why the employer should have retained the records for a longer period of time. The Respondent will be prejudiced if it is required to contest a claim for this period. It will not be in a position to counter oral evidence forth coming from the Applicant.
47. On the basis of the material now before the Tribunal the Applicant himself would not be able to present evidence as to the periods that he was away from his work or the reason why he might have been on leave. There is no evidence as to the existence or otherwise of employment records relevant to that time and as to the remuneration that might have been payable to a person such as the Applicant. On the basis of the material before the Tribunal the Applicant would not be able to make out a case for compensation. Any substantive application would be without merit. It is not open to the Tribunal to proceed to a decision on a basis of assumptions unsupported by acceptable evidence. It is not open to the Tribunal to assume periods of absence from employment, to assume causation or to assume rates of pay that might have been applicable at the time.
48. It has been open to the Applicant to advance an application referable to the 1974 to 1979 period since at least 1985 if not before. He has not done so. He has had the benefit of legal advice from a number of law firms.
49. The Tribunal is satisfied that the Applicant has not satisfied the necessary criteria for an extension of time and is further satisfied that the Applicant has not established a situation where it is proper so to do. The Tribunal is not satisfied that an acceptable explanation has been tendered for the delay or that the application, if able to be pursued, has merit.
50.For these reasons the decision under review is affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, A.M, Q.C Deputy President:
Signed: Associate
Date of Hearing 3 May 2006
Date of Decision 30 May 2006
Representative for the Applicant Ms S Rembouska (Family Friend)Solicitor for the Respondent Mr C Hutchens
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