McCredden and Australian Postal Corporation (Compensation)
[2020] AATA 5142
•21 December 2020
McCredden and Australian Postal Corporation (Compensation) [2020] AATA 5142 (21 December 2020)
AppID: McCredden and Australian Postal Corporation
MatterType: Compensation
ReviewNumber: 2018/5539, 2018/7286, 2019/2129Division:GENERAL DIVISION
File Numbers: 2018/5539, 7286 & 2019/2129
Re:Devin McCredden
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:21 December 2020
Place:Melbourne
The Tribunal refuses the applications for an extension of time to lodge an application for review in matters 2018/7286 & 2019/2129.
.................[sgd].......................................................
Mr A. Maryniak QC, Member
Catchwords
PRACTICE AND PROCEDURE – extension of time application – application one year out of time – application two years out of time – motorcycle injury – respondent prejudiced – substantial delay – application refused
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beecher and Telstra Corporation Ltd [1994] AATA 6
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Comcare v Willems (1996) 70 FCR 244
Hunter Valley Developments v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344REASONS FOR DECISION
Mr A. Maryniak QC, Member
21 December 2020
Two applications for extensions of time to lodge an application for review are before the Tribunal. The first is a decision of 1 August 2018 to not extend time for the Applicant to make a request for reconsideration of a determination dated 9 June 2017 (application 2018/7286). The second is a decision of 12 March 2019 to not extend time to make a request for reconsideration of a determination dated 3 May 2016, at least inasmuch as liability for the Applicant’s right hip claim was not accepted (application 2019/2129).
The 51-year-old Applicant was delivering mail when his motorcycle was struck by another vehicle on 5 April 2016. The Applicant was injured and hospitalised. He subsequently made a claim for workers’ compensation dated 20 April 2016.
The two reviewable decisions are refusals to reconsider determinations requested outside the 30-day time limit from receipt of determination. Such review entitlements exist pursuant to s 62(3) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
In summary, the Applicant asserts that:
(a)The determination of 3 May 2016 did not reject liability for the claimed “(R) HIP” injury; and
(b)The determination of 9 June 2017 again failed to determine the liability for the right hip injury, alleged to have arisen from the work accident of 5 April 2016, in that the decision maker ‘again’ failed to consider the evidence of the right hip injury and its relationship to the work accident of 5 April 2016.
The Applicant submits his substantial delay is the direct result of the Respondent’s conduct and not his. He submits that the s14 Determination of Compensation Claim of 3 May 2016 did not reject liability for the claimed “R HIP” injury and was not a ‘real’ decision in respect of this injury, with the requisite degree of finality.[1]
[1] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The Applicant further submits that liability was accepted for “soft tissue injury to both knees, R leg and R arm” pursuant to s14 of the SRC Act; and determinations for specific compensation pursuant to ss16 and 19 of the SRC Act for consequential incapacity for work and to cover costs of medical treatment were received, including for right knee surgery by the Applicant’s treating surgeon on 3 September 2016. That written determination notes in bold that “liability could not be extended to the claimed injury “Right Hip” as the treating practitioner did not provide a diagnosis referring to this injury. If additional medical evidence is provided diagnosing the other condition/s claimed and the exact bodily location, an extension to the current liability can be considered.”
The Applicant notes that the treating physiotherapist did answer the question concerning diagnosis in the management plan of 29 April 2016, and refers to, among other injuries, the HIP & LOW BACK.[2] Nonetheless, liability was accepted for the right leg. The Applicant submitted he was not in a position to seek reconsideration for any denial of liability for the right hip injury because at that stage no decision had been made to deny liability. The Applicant elected to put no sworn evidence before the Tribunal which could be tested to determine if his state of mind at the time was consistent with that submission.
[2] T7 p20.
The Applicant asserts recurring right hip and back pain following his attempt to return to full motorcycle riding duties by May 2017. He lodged a claim in respect of “lower back and right hip pain” with the reported dated of injury being 2 May 2017. In the subsequent determination of 9 June 2017[3], the Applicant submits that the determination again failed to determine the liability for the right hip injury arising from the work accident of 15 April 2016.
[3] T18.
The Applicant submits that in respect of the 9 June 2017 determination the decision maker:
(a)Treated the evidence as being for a pre-existing condition without turning his mind to the issue of its connection with the 5 April 2016 accident and the right hip injury claimed on 20 April 2016;
(b)“…had before him the “additional medical evidence… diagnosing the other condition/s claimed and the exact body location,” that was referred to in the determination of 3 May 2016 from which an extension to the current liability can be considered”; and
(c)“… instead of considering the evidence in the proper light, the decision make concluded “The evidence at present is insufficient and does not readily enable a connection to be made between the reported first appearance of symptoms and the alleged incident of 2 May 2017.””
The Applicant submits that the terms of the 9 June 2017 determination are yet another instance of the Respondent’s failure to consider the claim for injury to the right hip from the 5 April 2016 accident, and thus created further delay in him dealing with that claim. He says the Respondent failed to come to grips with the task, by way of submission.
On 24 November 2017 Mr Nizam (the Applicant’s treating orthopaedic surgeon) requested the Respondent’s approval of the costs of a right hip arthroscopy[4] and on 28 May 2018 stated his conclusion as to the relationship between the need for medical treatment and the injury of 5 April 2015.
[4] T22 & 24.
The Respondent makes its submissions in the context of Part VI of the SRC Act, which deals with the reconsideration and review of determinations, including those made pursuant to s14 of the SRC Act, relating to compensation for injuries. A decision of a determining authority is defined as a determination (s 60(1) of the SRC Act) making it subject to reconsideration under s 62 of the SRC Act.
Determinations must also comply with the formal requirements of s 61(1) of the SRC Act, including that written notice be served upon the claimant setting out:
(a)The terms of the determination;
(b)The reasons for the determination; and
(c)A statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2) of the SRC Act, which provides the claimant the ability to request a determining authority (the Respondent in this instance) to reconsider a determination made by it. Such a request shall be given to the determining authority within 30 days after the day on which the determination first came to the notice of the claimant (the Applicant) or within such further period (if any) as the determining authority either before or after the expiration of that period allows.
The Respondent submits, in respect of the 3 May 2016 determination, that the decision maker accepted, in writing, liability for the conditions of ‘soft tissue injury to both knees, right leg and right arm’ and specifically advised the Applicant that liability was not extended to the right hip. The right hip condition having been considered, the Respondent decided that it was not liable for that condition. Whilst the Respondent accepts that the decision does say if additional medical evidence was provided an extension of liability could be considered, such was not an open-ended offer to the Applicant.
Consistent with this, is evidence before the Tribunal of the Applicant’s own understanding of this determination in paragraph 12 of his 16 July 2019 signed statement – “The reason why I did not seek further medical evidence in relation to my right hip within 30 days of receiving the determination was because…”
The Applicant’s request for reconsideration of the Determination dated 3 May 2016 was made on 26 July 2018; over two years after the original decision. The request for reconsideration of the Determination dated 9 June 2017, also made on 26 July 2018, being more than twelve months after that Determination was made. Hence the time permitted by s 62(3)(b) of the SRC Act had long since expired in both instances.
The guiding principles for consideration of requests of extensions of time are well known and set out in the often-cited Hunter Valley Developments v Cohen, Minister for Home Affairs and Environment (1984) 3 FCA 344. The Tribunal must be satisfied that the time should be extended.[5]
[5] Brisbane South Regional Health Authority v Taylor [1996] HCA 25.
On balance, it is clear from the evidence the Applicant chose to put before the Tribunal, namely signed statements of 30 June and 16 July 2019 that:
(a)The Applicant was aware that the 3 May 2016 determination had not accepted liability for the right hip condition; and
(b)The Applicant understood in respect of the 9 June 2017 decision that his claim including a right hip condition had been denied.
The Respondent submits that the Applicant has not provided any adequate reason for failing to request reconsideration of each determination within the time prescribed within the SRC Act.
In support of this submission the Respondent highlights the fact that the Applicant has previously lodged a request for reconsideration for a separate injury claim and that both in May 2016 and June 2017 there is nothing in the medical records to suggest that the Applicant was so impaired that he could not reasonably have requested a reconsideration of the Determination within time. On the evidence, the Tribunal finds accordingly.
The Respondent further submits it has suffered prejudice by the two year and one year delays respectively, at the hands of the Applicant. Importantly, the Respondent submits there are limited prospects of success, noting that the Applicant’s medical history in respect of the first incident on 5 April 2016 is not suggestive of any injury to the right hip. Also, regarding the second claim for an alleged injury to the right hip on 2 May 2017, in light of the one year delay, the Respondent’s medical experts were deprived of the ability to assess the Applicant’s medical condition at a time contemporaneous to the second alleged injury. Any evidence that the right hip pain became a concern to the Applicant shortly after 2 May 2017 is scant at best, and in the view of the Tribunal insufficient.
A decision by the Respondent to refuse to extend time for lodgement of a request for reconsideration is reviewable by this Tribunal “because it is one made under s 62 and thus falls squarely within the terms of the definition of ‘reviewable decision’ in s 60.[6] In Beecher, the Tribunal granted the extension sought on the basis of matters providing an acceptable explanation of the delay, including that a rehabilitation officer had given misleading advice about the desirability of reconsideration.
[6] Beecher and Telstra Corporation Ltd [1994] AATA 6, [1].
In respect of the applications for extensions of time to lodge applications for review it is appropriate that the Tribunal have regard to the cause of, and the explanation for, the delay in submitting the request, the Applicant’s conduct in this, and the consequences to the Respondent of the delay and the Applicant’s conduct.[7] Legislated time and limitation periods must be regarded as the general rule. Any extension is the exception, where general concepts of what justice requires may sometimes be overridden by facts in an individual case.[8]:
[7] Comcare v Willems (1996) 70 FCR 244.
[8] Brisbane South Regional Health Authority v Taylor [1996] HCA 25.
The Tribunal has considered the documentary evidence before it, and the oral and written submissions of the parties.
Critically, the evidence directly from the Applicant by way of signed statements is not consistent with the argument put by the Applicant by way of purported explanation of the delays.
In his statement of 16 July 2019 at [12], apropos the 3 May 2016 decision, the Applicant says
(a)“The determination made note that id(sic) medical evidence is provided for other claimed conditions, my right hip, and extension of liability to include the right hip would be considered…”; and
(b)“The reason why I did not seek further medical evidence in relation to my right hip within 30 days of receiving the determination was because I was on heavy painkillers and suffering from extreme lethargy”.
Hence the state of the evidence before the Tribunal, the Applicant electing not to provide any further evidence for the purposes of this preliminary hearing, is that he was not only aware that the determination had not accepted liability for the right hip condition at the time but, further, that any additional medical evidence should have been provided within 30 days of receiving the determination.
Although the Applicant adds at [15] of the 16 July 2019 statement ‘I assumed that the 30 day time limitation would be suspended whilst I gathered my medical records and obtained any further letters from my treaters,’ the Applicant has not put any sworn evidence before the Tribunal in this regard, or any further evidence to clarify his state of mind and the actual reasons for the delays. On balance, without more, on the state of the evidence the Tribunal finds that there is no satisfactory explanation put by the Applicant for his delays.
Consistent with the Tribunal’s finding is the fact that the Applicant was ‘not particularly relying upon’ his signed statements before the Tribunal.[9] In any event the Respondent (and indeed the Tribunal) were unable to test the Applicant’s minimal evidence explaining the delays. In such circumstances the Tribunal rejects the Applicant’s assertion that the delay was due to the Respondent’s conduct.
[9] Transcript of hearing, page 11.
In considering the body of evidence before the Tribunal, there is nothing produced on behalf of the Applicant to show that there was any indication given to the Respondent that the two relevant decisions were not final, or that he disputed the lack of liability determination for the right hip injury.
The Tribunal finds that the determination of 3 May 2016 did reject liability for the claimed right hip injury; and the determination of 9 June 2017 did determine the liability (against the Applicant) for the right hip injury alleged to have arisen from a work accident on 5 April 2016.
The Tribunal accepts that the substantial delays will cause prejudice to the Respondent if the Applicant was to succeed it its applications. And the Tribunal accepts the Respondent’s submissions as discussed above regarding the limited prospects of success of the Applicant’s substantive applications.
In all the circumstances of this matter, on balance, the Tribunal is of the view that the extensions of time to lodge the applications for review sought by the Applicant in applications 2018/7286 & 2019/2129 should not be granted.
On the basis that applications 2018/7286 & 2019/2129 will not be proceeding, the parties will be required to produce minutes by consent as to the future conduct of application number 2018/5539. If no agreement can be reached, a directions hearing will be held in the near future.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member
...........[sgd].............................................................
Associate
Dated: 21 December 2020
Date of hearing:
13 May 2020 Counsel for the Applicant: Mr Mark Carey Solicitors for the Applicant: Angela Sdrinis Legal Counsel for the Respondent: Mr Mark Seymour Solicitors for the Respondent: McInnes Wilson Lawyers
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