McMahon and Comcare

[2005] AATA 828

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 828

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2005/172

GENERAL ADMINSTRATIVE DIVISION		)
Re		PAUL McMAHON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member

Date26 August 2005

PlaceCanberra

Decision The application for an extension of time in which Mr McMahon may make an application for a review of the decision of Comcare of 19 October 2001 is refused.

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CATCHWORDS

COMPENSATION – application for extension of time to lodge Tribunal proceedings – application to Tribunal more than 3 years after statutory time limit – Applicant has reasonable excuse for delay – Respondent prejudiced by delay – Respondent lost opportunities to have Applicant examined by specialists of Respondent’s choice, to have the Applicant examined between April 2003 and the present and to have attempted rehabilitating Applicant – prejudice greater as claimed injury is psychiatric – application for extension of time refused

Administrative Appeals Tribunal Act 1975 (Cth) – s 29(7)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Duong v Australian Postal Corporation [2005] FCA 991

Comcare v A’Hearn (1993) 45 FCR 441

Maric v Comcare (1993) 40 FCR 244

REASONS FOR DECISION

26 August 2005 Mr J.W. Constance, Senior Member       

1.      On 22 June 2005 Mr McMahon applied to the Tribunal for an extension of the time in which to make an application for a review of a decision of Comcare made 19 October 2001.

2.      Although I am satisfied that Mr McMahon has shown an acceptable reason for the delay I am of the view that to grant the extension would be to unfairly prejudice Comcare and for the reasons set out this application will be refused.

STATUTORY FRAMEWORK

3.      The Safety, Rehabilitation and Compensation Act 1988 (Cth) provides for an application to review a decision of Comcare to be made to the Tribunal within 60 days of the decision being furnished to the applicant. The time for making other review applications is normally 28 days.

4. Sub-section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) permits the Tribunal to extend the time for making a review application. The Act does not set out grounds for granting or refusing such an application.

FACTS

5.      In 2000 and 2001 (and for some time previously) Mr McMahon was employed by the ACT Department of Justice and Community Safety.  On 2 May 2001 he lodged with his employer a Comcare Claim for Rehabilitation and Compensation form in which he alleged that he had been injured at work on 18 July 2000.  He described the diagnosis of the injury as “excessive stress and anxiety and raised blood pressure and blood glucose levels.”[1]  Comcare classified the claim as “major depressive disorder, single episode sustained on 29/3/01.”[2]

[1] EOT document 4.

[2] EOT document 6.

6.      On 27 June 2001 Comcare determined that it was not liable to pay compensation in respect of the claimed injury.  Sometime between then and…