Mitchell and Comcare (Compensation) - [2018] AATA 1293

Mitchell and Comcare (Compensation) [2018] AATA 1293 (15 May 2018)
Division:General Division
File Number(s): 2018/1470
Re:Scott Mitchell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:15 May 2018
Place:Sydney

The decision under review is affirmed.
.............................[SGD]...........................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
EXTENSION OF TIME – compensation claim – workplace injury – physical injury – simultaneous psychological compensation claim – extension of time principles – lack of substantive response – delay in requesting reconsideration – prejudice to the respondent – general prejudice and fairness
LEGISLATION
Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 62 and 72
Administrative Appeals Tribunal Act s 29
CASES
Beecher v Telstra Corporation [1994] AATA 6
Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441
Comcare v Willems (1996) 70 FCR 244; 43 ALD 253
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
O’Gorman v Comcare [2017] AATA 2192
Re Johnson and Commonwealth [1990] AATA 1
Re Jones and Svitzer Offshore Pty Ltd [2014] AATA 902
Rothsay and Secretary, Dept of Education, Employment and Workplace Relations (2011) 121 ALD 184; (2011) 54 AAR 562; [2011] AATA 280
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
15 May 2018

In April 2017 Mr Mitchell lodged an application to review a Comcare decision of 21 March 2017. That decision ended his previously recognised compensation and expense entitlements for psychological injury related to his employment, prior to July 2013, with the Australian Taxation Office. Those review proceedings have been listed for hearing in June this year.
Mr Mitchell’s September 2013 compensation claim, and its January 2014 acceptance, provide the background to Comcare’s 21 March 2017 decision. The September 2013 claim identified two injury conditions – (i) “exacerbation of physical disability” secondary to inadequate ergonomic office accommodation, and (ii) “depression and anxiety” secondary to management practices after July 2012. The claim disclosed that Mr Mitchell had previously suffered “pain in lower & upper back & neck” in 2002, 2007/2008 and again in 2012. None of those occurrences had been the subject of a previous employment related compensation claim, but the September claim was accepted on the basis that the relevant date of his injury was in February 2008 (ie., the date of the MRI study to which I refer in paragraph 10 below.)
Part of Comcare’s 21 March 2017 decision reasons referred to the physical injury aspect of Mr Mitchell’s September 2013 claim. The reasons noted that it had been put forward, and accepted, as an aggravation of lumbar and neck sprains. The reasons then alluded to Comcare’s 1 August 2014 decision, which had terminated Mr Mitchell’s medical expenses and compensation entitlements relating to that aggravation, on the basis that it had resolved and Mr Mitchell had returned to his pre-injury condition. The 21 March 2017 reasons also stated that Mr Mitchell had never sought to appeal the 1 August 2014 decision, nor request its reconsideration.
BELATED RECONSIDERATION / EXTENSION OF…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mitchell and Comcare (Compensation)

Details

AGLC: Mitchell and Comcare (Compensation) [2018] AATA 1293
Case: [2018] AATA 1293
Decision Date: 15 May 2018

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal for review of Comcare's decision of 9 March 2018, which rejected Mr Mitchell's request for an extension of time to seek reconsideration of a decision made on 1 August 2014. The original decision by Comcare had terminated Mr Mitchell's medical expenses and compensation entitlements relating to an aggravation of lumbar and neck sprains, finding that the condition had resolved and he had returned to his pre-injury state. Mr Mitchell's solicitors had lodged a request for reconsideration on 2 March 2018, significantly outside the usual 30-day period.

The primary legal issue before the Tribunal was whether to grant Mr Mitchell an extension of time to request reconsideration of Comcare's 2014 decision. This required the Tribunal to consider the principles governing the exercise of discretion to extend time under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), including the length of the delay, the reasons for the delay, the consequences of the delay, and the apparent merits of the underlying claim. The Tribunal also had to consider Comcare's obligation to act in accordance with equity, good conscience, and the substantial merits of the case.

The Tribunal reasoned that the request for reconsideration was made approximately three and a half years after the original decision, and the initial request lacked substantive reasons. While Mr Mitchell later provided a statement explaining his delay, including a misunderstanding of the possibility of an extension and a belief that his accepted psychological injury claim rendered the physical injury claim practically advantageous, the Tribunal noted the significant delay and the lack of new information accompanying the initial request. The Tribunal also considered the medical evidence available to Comcare in 2014, which indicated that Mr Mitchell's spinal condition had stabilised and that his ongoing pain could be managed with exercises and analgesics, suggesting the underlying claim might not have substantial merit.

The Tribunal ultimately upheld Comcare's decision to refuse the extension of time. It found that the delay was substantial and the reasons provided were not sufficiently compelling to outweigh the prejudice to the respondent and the general principles of fairness and timely resolution of claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The considerations identified in O’Gorman apply most directly to the exercise of the particular statutory discretion with which that decision was concerned. However, at least in relation to their emphasis on the length and reasons for any delay, the consequences of the delay, and the apparent merits of the underlying claim, they are consistent with the approach taken in other cases concerned with the discretion to extend time under the SRC Act:- see Comcare v Willems (1996) 70 FCR 244; 43 ALD 253 at 259; Re Jones and Svitzer Offshore Pty Ltd [2014] AATA 902. No doubt another relevant consideration is Comcare’s obligation in making determinations, to be guided by “equity, good conscience and the substantial merits of the case”: see SRC Act s 62(3)(b).LACK OF SUBSTANTIVE RESPONSE TO COMCARE’S 1 AUGUST 2014 DECISION. Mr Mitchell’s March 2018 statement makes plain that he had a long history of back and neck injury. That history included (i) 1986 surgery, as a result of traumatic injury affecting the C1 / C2 level of his cervical spine, and resultant restricted movement in his upper back and neck, (ii) an MRI study in February 2008 that had revealed a degenerative disc condition and a small disc protrusion at L5/S1 and, (iii) consequential May 2008 lumbar fusion surgery. That latter surgery had caused Mr Mitchell to take some time off work but, by September 2008 he had resumed work on a full time and unrestricted basis. It was presumably because of his history of spinal conditions that, as Mr Mitchell himself described the situation, his 18 September 2013 physical injury claim was for “exacerbation” of his (underlying) physical condition. It is a history that also provides both a background to Mr Mitchell’s claim, and also a background to Comcare’s July and August 2014 communications with Mr Mitchell about his claim. About three months after Mr Mitchell had lodged his injury claim, in December 2013, Comcare had received a medical report from a consultant orthopaedic surgeon, Dr Young. It opined that Mr Mitchell had suffered an aggravation of his pre-existing spinal condition and was likely to be suffering from further degenerative disease. Dr Young suggested that Mr Mitchell’s condition should be investigated with an MRI study. He also predicted that the imaging study would likely show progression of lumbar spondylosis and degenerative disc disease. It was as a result of Dr Young’s December 2013 opinion that (on 31 January 2014) Comcare had accepted Mr Mitchell’s claim for aggravation of lumbar and cervical spine sprain conditions. The MRI imaging study Dr Young recommended was carried out on 4 March 2014. The study report noted the artefacts of the surgery Mr Mitchell had undergone in May 2008. It observed that the postsurgical appearance was “unremarkable” and there were no features to suggest neural compromise”. A similar view emerges from a slightly later, 3 April 2014, report from Mr Mitchell’s treating orthopaedic surgeon. He noted that it had been “a few years” since he had seen Mr Mitchell after the 2008 surgery. Prior to that surgery, in a January 2008 report, the surgeon noted that Mr Mitchell had significant spinal deformity and left sided weakness. Despite having been “quite well” for many years, he had developed intense lower back pain – some months after experiencing “unusual” feelings as a result of back massage he had whilst holidaying in Bali. The surgeon’s review of plain Xray film and CT scan revealed gross disc degeneration at L5/S1, which the surgeon opined was likely the operative reason for his then current pain symptoms. In the surgeon’s April 2014 report he noted the March 2014 lumbar spine MRI study, and observed that there was no evidence of disc extrusion, or central or foraminal stenosis. There were some “minor degenerative disc changes” in parts of Mr Mitchell’s lumbar spine other than L5 / S1. However none of these was an apparently significant matter because the orthopaedic surgeon expressed his view that Mr Mitchell’s spine was stable. He considered that the appropriate treatment for Mr Mitchell’s ongoing pain was regular flexibility exercises and simple analgesics.

Ratio Decidendi

Legal Principle Established

Part of Comcare’s 21 March 2017 decision reasons referred to the physical injury aspect of Mr Mitchell’s September 2013 claim. The reasons noted that it had been put forward, and accepted, as an aggravation of lumbar and neck sprains. The reasons then alluded to Comcare’s 1 August 2014 decision, which had terminated Mr Mitchell’s medical expenses and compensation entitlements relating to that aggravation, on the basis that it had resolved and Mr Mitchell had returned to his pre-injury condition. The 21 March 2017 reasons also stated that Mr Mitchell had never sought to appeal the 1 August 2014 decision, nor request its reconsideration. BELATED RECONSIDERATION / EXTENSION OF TIME REQUEST On 2 March 2018 Mr Mitchell’s solicitors did write to Comcare requesting a reconsideration of the 1 August 2014 decision. That request was well outside the ordinary 30 day reconsideration request period. The request asserted that Comcare had failed to provide reasons for the August 2014 decision. In so doing it erroneously ignored the decision’s reference to the medical evidence it had previously drawn to Mr Mitchell’s attention, and the decision’s statement of the conclusion Comcare had drawn from that evidence. Perhaps as a consequence of that deficiency, the 2 March 2018 letter did not advance any substantive reason for the reconsideration request. Given its belated timing, Comcare treated the 2 March 2018 letter as first requiring it to consider whether to allow an extended period for the submission of a reconsideration request:- see Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) s 62(3)(b) & Comcare v Willems (1996) 70 FCR 244; 43 ALD 253 at 259. In a short statement of reasons dated 9 March 2018, Comcare rejected that invitation, without embarking on a reconsideration of the August 2014 decision. That rejection is the decision Mr Mitchell seeks to have reviewed in the present proceedings. It was common ground that it was a reviewable decision:- see Beecher v Telstra Corporation [1994] AATA 6 & Comcare v Willems (1996) 70 FCR 244; 43 ALD 253 at 260. Mr Mitchell acknowledged that when he first received notice of the 1 August 2014 decision he likely also received information about the possibility of requesting reconsideration of the decision. That information was in a standard form of notice attached to the decision letter, and Mr Mitchell conceded he would have read it. The notice indicated that a reconsideration request should (i) be in writing, (ii) provide reasons for the request, (iii) be accompanied by any new information or medical evidence and, (iv) be made within 30 days. In relation to the latter, the notice said, in plain terms, “if you are unable to make your request within 30 days you can apply for an extension”.BASIS OF THE EXTENSION OF TIME REQUEST Notwithstanding the approximately three and half years that had elapsed since Comcare’s 1 August 2014 decision, no additional information accompanied the 2 March 2018 reconsideration request letter. But, in support of the present review application Mr Mitchell provided a recently prepared three and half page statement. In that statement Mr Mitchell:(a)acknowledged that Comcare put him on notice, by letter dated 2 July 2014, of the likely termination of his compensation entitlements relating to the “aggravation” injury to his back and neck, and the reasons for that likelihood(b)acknowledged that the 2 July 2014 letter gave him an opportunity to submit further medical evidence to support his physical injury compensation claim(c)asserted that he had not pursued the physical injury claim after 1 August 2014 because (i)prior to the decision, a Comcare officer had explained to him that, because his psychological injury claim had been accepted, the continued acceptance of his physical injury claim would not provide him with any significant practical advantage (at least while his psychological condition persisted)(ii)he had not been well enough psychologically to pursue the physical injury claim(iii)until his Counsel advised him to the contrary (just before his 2 March 2018 application) he did not know it was possible to obtain an extension of time for requesting reconsideration of Comcare’s decision.ETENSION OF TIME PRINCIPLES