Mrmacovski and Comcare

[2001] AATA 845

DECISION AND REASONS FOR DECISION [2001] AATA 845

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/483
GENERAL ADMINISTRATIVE DIVISION
  Re:       BLAGOJA MRMACOVSKI
  Applicant
  And:     COMCARE
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:8 October 2001

Place:Melbourne

Decision:      The Tribunal refuses the application for an extension of time.

(sgd) G.D. Friedman
  Member
PRACTICE AND PROCEDURE - claim for compensation - determination of cessation of liability - application for extension of time to lodge claim for reconsideration
Safety, Rehabilitation and Compensation Act 1988 s62(3)(b)
A'hearn v Comcare (1993) 18 AAR 22
Comcare v Smith [1997] 140 FCA
CSIRO and Barbara (1987) 11 ALD 447

Hunter Valley Developments Pty Limited v Cohen, Minister for Home Affairs and

Environment (1984) 3 FCR 344

REASONS FOR DECISION

8 October 2001  G.D. Friedman, Member

1. This is an application by Blagoja Mrmacovski (the applicant) for an extension of time to seek reconsideration of a determination dated 7 December 1994 by Comcare (the respondent) that liability for a back injury sustained by the applicant on  7 November 1994 ceased on 18 November 1994.

2. At the hearing of this matter on 25 September 2001 the applicant was represented by Ms J. Forbes of Counsel. The respondent was represented by Mr J. Lenczner of Counsel. The evidence before the Tribunal comprised oral evidence, documents lodged under s37 of the Administrative Appeals Tribunal Act1975, four exhibits (Exhibits A1 to A4) tendered by the applicant and six exhibits (Exhibits A1 to A6) tendered by the respondent.
   BACKGROUND

3. The applicant was born on 29 April 1943.  On 7 December 1994 the respondent determined that it was no longer liable for the back injury sustained by the applicant on 7 November 1994.  Liability ceased from 18 November 1994.  On 11 January 1995 the applicant's union representative requested an extension of time to submit an application for reconsideration.  On 12 January 1995 the respondent informed the union representative that a 30-day extension of time had been granted and that the applicant had until 10 February 1995 to submit the application for reconsideration. 

4. On 8 December 2000 the applicant lodged a claim for permanent impairment.  On 9 January 2001 the respondent determined that the applicant was not entitled to permanent impairment compensation in relation to his back injury because liability on his compensation claim had ceased by the determination dated 7 December 1994.  On 19 January 2001 the applicant requested reconsideration of the determinations dated 7 December 1994 and 9 January 2001.  He contended that an extension of time to submit a request for reconsideration should be granted with respect to the determination dated 7 December 1994.

5. On 21 March 2001 the respondent decided that in accordance with s62(3)(b) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) an extension of time to submit an application for consideration should not be granted.  The respondent also affirmed the decision of 9 January 2001.

6. On 3 May 2001 the applicant lodged an application with the Tribunal for review of the decision.
   EVIDENCE

7. The applicant told the Tribunal, with the assistance of a Macedonian interpreter, that he migrated to Australia in 1969 and cannot read or write English.  He said that he has a limited understanding of spoken English.  He stated that after working as a forklift driver, labourer and machine operator he began employment at the Heidelberg Repatriation Hospital in 1991 as a cleaner and kitchen handyman.  He said that on 7 November 1994 he injured his back while working at the hospital, and was placed on restricted duties.  After medical examinations for continuing pain he was unable to work for about one month and gradually returned to duty.  He lodged a claim for compensation that was accepted.

8. The applicant said that he recalls receiving a letter dated 7 December 1994 which he did not understand, so he took it to Mr David Amesbury, his union representative, on 10 January 1995, accompanied by a Macedonian-speaking colleague.  He stated that Mr Amesbury made an appointment with Maurice Blackburn & Co., Solicitors (the solicitor), which he attended on 31 January 1995 with Mr Amesbury.  The applicant told the Tribunal that as there was no interpreter present at that meeting he understood little of the proceedings, although he stated that he did not remember anything said at the meeting about time limits or any follow-up action that he needed to take.  He stated that although he was suffering some back pain he was still working at the time.  The applicant said that he did not understand that the letter dated 7 December 1994 had an effect on his rights to compensation or that if he disagreed with any of the matters contained in the letter he could have the matter reviewed within certain time limits.

9. Under cross-examination the applicant agreed that the solicitor sent letters to him dated 20 February 1995, 3 July 1996, 6 December 1996 and 7 April 1998 concerning possible follow-up action.  He stated that as he was continuing to work and to see his doctor as required, he was not aware that he needed to take any further action to protect his rights.  Consequently he did not respond to the letters or do anything else about them.  He stated that he was made redundant in 1997.  In 1999 he consulted a Macedonian-speaking solicitor who commenced proceedings on his behalf in relation to the determination of 7 December 1994.  The applicant confirmed that in 1999 he did not remember that he had received any letter from the respondent in late 1994.

10. The applicant stated that his wife speaks no English, so he relies on his son and work colleagues to translate documents such as the letters from the solicitor.
    CONSIDERATION OF THE ISSUES

11. Under s62(3) of the Act a request for reconsideration of a determination shall:

    . . .

    (b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

12. Ms Forbes, on behalf of the applicant, submitted that the Tribunal should exercise its discretion to extend the period available to the applicant to enable him to lodge an application for reconsideration of the determination dated 7 December 1994.  She referred the Tribunal to Hunter Valley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344, in which the Federal Court set out a number of factors to be taken into account when considering the exercise of the discretion to grant an extension of time:

• proceedings should not be commenced outside the prescribed time and to do so the applicant must offer an acceptable explanation for the delay and must demonstrate that the grant of an extension would be fair and equitable in the circumstances;

• action taken by the applicant, apart from making the application for review, which is relevant to the question of whether an acceptable explanation has been provided;

• any prejudice to the respondent;

• any unsettling of persons other than the respondent, or of established practices;

• the merits of the application for review;

• considerations of fairness between the applicant and other persons in a similar positions.

1. Ms Forbes stated that the applicant took the letter dated 7 December 1994 to Mr Amesbury on 10 January 1995 and that on 11 January 1995 Mr Amesbury sought an extension of time of 30 days to lodge the application for reconsideration of the determination.  She noted that on 12 January 1995 the time limit was extended for 30 days from that date until 10 February 1995.  She stated that at the meeting on 31 January 1995 with the solicitor, no reference was made to the question of time limits.  Ms Forbes submitted that this constituted an acceptable explanation. 

2. Ms Forbes also submitted that any delay in seeking reconsideration of the determination was due to the actions of the union or the solicitor and not the applicant.  She referred the Tribunal to A'hearn v Comcare (1993) 18 AAR 22 as authority for the view that the negligence of a solicitor should not be visited upon the solicitor's client, and CSIRO and Barbara (1987) 11 ALD 447 which referred to a delay by a government department. She stated that the applicant's inability to understand written English contributed significantly to the delay.

3. With regard to the delay between 1995 and 1999 when the applicant consulted a Macedonian-speaking solicitor, Ms Forbes submitted that the applicant continued to work from 1995 until 1997 when he was made redundant.  She said that during this period the applicant thought that his compensation claim was finished, and he did not incur medical expenses or seek medical examinations that may have triggered concern about his rights to compensation.  She submitted that in the circumstances this period represented an acceptable delay and was not due to any actions by the applicant.  Further Ms Forbes submitted that his application for compensation has merit because medical evidence, including a CT scan of the applicant's lumbar spine on 27 April 1998 and reports from his general practitioner, show that the applicant has a history of ongoing back pain since 1994.  She added that there was no demonstrable prejudice to the respondent by the delay in seeking reconsideration of the determination as the respondent has had access to relevant medical records.

4. Mr Lenczner, on behalf of the respondent, submitted that there was no acceptable delay.  He referred to a letter dated 19 January 2001 from the applicant's solicitor in which the solicitor stated that the applicant could not recall ever having received the letter dated 7 December 1994.  Mr Lenczner said that this cannot be true because the applicant admitted taking the letter to the union on 11 January 1995.  Mr Lenczner said that the extension of time requested by Mr Amesbury on 11 January 1995 demonstrated the likelihood that time limits were discussed.  Further, he said that the applicant has been in Australia since 1969, has held several jobs, has bought and sold property and consequently an inference should be drawn that he understood the discussions with the solicitor on 31 January 1995. 

5. Mr Lenczner said that the solicitor's notes of the meeting show that the applicant was advised to obtain a specialist's report and that the applicant decided to arrange the appointment through the local general practitioner.  There was no mention of the need for an interpreter or that the applicant did not understand the issues discussed at the meeting.  Mr Lenczner stated that this view was supported by a letter dated 20 February 1995 to the applicant from the solicitor confirming these matters.  He added that the applicant had not provided a credible explanation for taking no action following receipt of the letters dated 3 July 1996, 16 December 1996 and 7 April 1998 from the solicitor. 

6. The Tribunal was told that although some medical reports suggested that the applicant was suffering from lumbar pain since 1985, the evidence strongly supported the view that since late 1994 the applicant had recovered to the extent that he did not need to seek medical treatment on an ongoing basis.  Mr Lenczner submitted that there was little merit in the claim and that there would be significant prejudice to the respondent if the time to lodge the application was extended.  He referred the Tribunal to Comcare v Smith [1997] 140 FCA in which the issue concerned a delay of 21 months.  Von Doussa J said at paragraph 34:

   Should an extension of time be allowed to the applicant, Comcare would require to take evidence from those persons with knowledge of the events surrounding the incident; and to make further enquiries into the applicant's medical history and personal circumstances, both pre-dating and post the incident. Considering the lapse of time since the incident occurred, I would anticipate that the recollection of persons with knowledge of the incident, and of the personal circumstances of the applicant from time to time would be adversely affected, if not poor. Further, documents which may assist Comcare in its consideration of the claim may have been destroyed or no longer available.

Mr Lenczner submitted that in the matter before the Tribunal the delay is more than five years, and that actual prejudice to the respondent would arise because of the difficulty in arranging specialist medical examinations after such a long period, and in determining whether the applicant suffered the injury claimed, particularly as the applicant had not worked since 1997.

1. In reaching its decision the Tribunal takes into account the written material, oral evidence and the submissions made at the hearing. The Tribunal applies the facts of this case to the factors in Hunter Valley Developments Pty Limited and notes that the application for an extension of time was made more than five years after the determination.  After observing the applicant in the witness box the Tribunal accepts that he has a limited comprehension of English.  However the notes prepared by the solicitor following the interview with the applicant on 31 January 1995 and the follow-up letters to the applicant give a strong indication that the applicant was aware of his rights and obligations in relation to any claim by him.  The Tribunal finds that the applicant received the letters yet he chose to take no action to arrange an appointment with a medical specialist or to pursue the issue with the solicitor.  If he did not understand the contents of the letters he had ample opportunity to seek a translation from family members, work colleagues or community organisations.  Therefore the Tribunal does not accept the submission that the solicitor or the union representative were responsible for the delay between 1995 and 2000 in seeking reconsideration of the determination.  The Tribunal does not accept that the applicant's belief in the period 1995 to 2000 that the matter was concluded represents an acceptable explanation for the delay.

2. The Tribunal notes that among the medical evidence there is a suggestion of a history of lumbar pain that pre-dates the incident in 1994 that led to the claim.  Other medical reports refer to clinical notes from Heidelberg Hospital on 15 March 1995 which state that the applicant had clinically recovered from an episode of facet joint arthritis.  The Tribunal notes the evidence from the applicant that he returned to work until 1997, he believed that his claims had been finalised and he seems to have recovered significantly during the period after 1995 as demonstrated by an absence of regular medical examinations and treatment.  The Tribunal finds that on the available material the applicant does not have a strong case on the merits.

3. The Tribunal accepts the submission by Mr Lenczner that there would be significant prejudice because of the time that has elapsed and the difficulty in obtaining relevant witnesses and arranging meaningful medical examinations and reports.  There is no evidence or other material that would satisfy the Tribunal that the public interest would best be served by the grant of the extension of time sought by the applicant.  The grant of an extension after such a long period may also unsettle existing practices regarding review processes and the gathering of evidence.

4. For these reasons the Tribunal finds that the discretion in s62(3)(b) of the Act to grant an extension of time to the applicant should not be exercised.
   DECISION

5. The Tribunal refuses the application for an extension of time.

   I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision of
   G.D.Friedman, Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of hearing:  25 September 2001
   Date of decision:  8 October 2001
   Counsel for applicant:                 Ms J. Forbes
   Solicitor for applicant:                  A.G.Novatsis & Associates
   Counsel for respondent:              Mr J.Lenczner
   Solicitor for respondent:              Blake Dawson Waldron