McPhee and Comcare
[2002] AATA 1162
•29 October 2002
DECISION AND ORAL REASONS FOR DECISION [2002] AATA 1162
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/338
GENERAL ADMINISTRATIVE DIVISION )
Re NEELTJE MCPHEE
Applicant
And COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Date29 October 2002
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal refuses the application for extension of time to 18 September 2002.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – application for extension of time – delay attributed to moving house, overseas holiday and constant illness
Safety Rehabilitation and Compensation Act 1988 section 24
Administrative Appeals Tribunal Act 1975 section 29
Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
ORAL REASONS FOR DECISION
29 October 2002 Senior Member WJF Purcell
On 31 May 1999 the respondent (Comcare) made a decision on reconsideration, accepting liability for the applicant's condition of tinnitus in the period 9 June 1998 to 19 September 1998. On 14 July 1999 it disallowed her claim for permanent impairment, on the basis that Dr G. Vercoe had reported that she suffered binaural hearing loss of 4%, and 5% impairment due to tinnitus - a whole person impairment of 7%, and less than the 10% required pursuant to section 24(7) of the Safety Rehabilitation and Compensation Act 1988 (the Act). This decision was affirmed on reconsideration on 22 October 1999.
On 1 July 2000 the applicant lodged a fresh claim which was disallowed on 1 June 2001. On 13 July 2001 the applicant requested a reconsideration of the determination. On 6 August 2001 Comcare affirmed the determination, and on 18 September 2002 the applicant lodged an application for review, together with an application for extension of time, pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
At the Hearing of the application for extension of time the applicant appeared on her own behalf, and gave oral evidence. Ms Ware represented Comcare.
The applicant claimed in her application for an extension of time that she received a copy of the reviewable decision on 9 October 2001, in which case she was required to lodge her application for review by 9 December 2001. In any event she did not lodge her application until 18 September 2002, which is in excess of 13 months after the decision was issued, and in excess of 9 months following the day on which the applicant states that she received the decision. On the same date, she lodged an application for extension of time, pursuant to section 29(7) of the AAT Act, she stated that her reasons for her application were:
"Due to moving house from Mt Gambier to Pt Pirie and thence to Adelaide, which included overseas holiday, plus constant illness. Application was not lodged within the required time frame."
Comcare submits that the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted, and that the principles to be considered in relation to an extension of time were outlined in Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309. The applicant's application is entirely without merit, and therefore it is futile for these proceedings to proceed.
Comcare submits also, that no further evidence has been received from the applicant since the report of Dr Vercoe of 27 January 1999, and contends that this report does not support that the applicant suffers from a 10% permanent impairment. Accordingly, in the absence of any other evidence, Comcare submits that the applicant's application is without merit, and doomed to fail. She has already had her application for permanent impairment determined and reconsidered on two occasions based on the same medical evidence as that which is presently available.
In the matter of Mulheron, the Federal Court said at page 314 as follows:
"(a)Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however if it is appropriate to do so;
(b)it is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested;
(c)any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(d)any wider prejudice to the general public in terms of disruption to established practices is relevant;
(e) the merits of the substantive application are relevant; and
(f)fairness of granting the extension of time as between the applicant and other persons in a like position is relevant."
The applicant, in her request for reconsideration dated 13 July 2001, asked Comcare to "initiate proceedings so that my claim for permanent impairment can be sent to the Administration[sic] Appeals Tribunal for reconsideration". She said in evidence that she made plans to travel overseas in July 2001. She was absent from Australia from late July 2001 until the end of September 2001. She did not return to Mt Gambier until early October 2001, and read Comcare's letter of advice on 9 October 2001. She said in evidence that she did not know what to do until she contacted a friend, in about August 2002. The friend, in her words, "offered to help and knows about these things". He helped her fill in the Administrative Appeals Tribunal forms.
The explanation the applicant provided in her oral evidence does not accord with the reasons stated in her application for extension of time. Her explanation is in effect, that she did not know what to do, despite having requested Comcare to reconsider the decision so that the claim could be sent to the Administrative Appeals Tribunal. She has not obtained any further medical evidence to support her claim for permanent impairment. Dr Vercoe's assessment has not changed since his original assessment on 27 January 1999. Her application for review would, in my view, fail of necessity.
If the applicant receives further evidence in relation to her permanent impairment, which indicates that she suffers from a 10% or higher degree of permanent impairment as a result of her compensable condition, she is entitled to submit a further claim for determination.
In all the circumstances of this matter I do not consider it appropriate that extension of time be granted pursuant to section 29(7) of the AAT Act.
For these reasons the Tribunal refuses the application for extension of time to 18 September 2002.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 29 October 2002
Date of Decision 29 October 2002
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms N Ware
Solicitor for the Respondent AGS
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