Muirden and Australian National University (Compensation)
[2019] AATA 5163
•2 December 2019
Muirden and Australian National University (Compensation) [2019] AATA 5163 (2 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5939
Re:Linda Muirden
APPLICANT
AndAustralian National University
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:2 December 2019
Place:Canberra
The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
WORKERS COMPENSATION – where the Respondent refused a request for an extension of time – application for extension of time five years after determination – explanation for the delay - whether the Respondent is prejudiced by delay – decision under review affirmed
PRACTICE AND PROCEDURE – jurisdiction – whether the Applicant made a new claim for compensation or a request for reconsideration of a determination – whether the Tribunal has jurisdiction to consider a new claim – reviewable decision found to be refusal to grant an extension of time
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 17, 54, 59, 60, 61, 62, 64, 65, 72
Cases
Batey and Minister of Immigration, Local Government and Ethnic Affairs [1991] AATA 295
Beecher and Telstra Corporation Limited [1994] AATA 6
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A’Hearn [1993] FCA 498
Comcare v Smith [1997] FCA 140
Comcare v Willems (1996) 43 ALD 253
Hewson and Australian Postal Corporation [1998] AATA 71
Hunter Valley Developments Pty Ltd & Ors v Minister of Home Affairs and Environment (1984) 3 FCR 344
Lower and Comcare [2005] AATA 551
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Novosel v Comcare [2017] FCA 722
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Saffioti and Comcare [2018] AATA 43
Secondary Materials
Peter H. Sutherland and John Oman Ballard with Allan Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988 (The Federation Press, 11th ed, 2011)
REASONS FOR DECISION
Member W Frost
2 December 2019
INTRODUCTION
This proceeding involves tragic personal circumstances, lengthy delay and a difficult jurisdictional issue. Mr Andrew Muirden worked at the Australian National University (ANU) in Canberra as a nightwatchman, or security guard, from 2004 to 2011. In August 2011, Mr Muirden suffered an epileptic seizure at home and died aged 47.
In March 2013, the Applicant, Mrs Linda Muirden, made a claim to Comcare (as ANU’s then insurer under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act)) for compensation for the death of her husband. In May 2013, Comcare made a determination disallowing Mrs Muirden’s claim (Determination). Mrs Muirden did not request reconsideration by Comcare of its Determination within the 30 day timeframe required under section 62 of the SRC Act.
In August 2018, more than five years after Comcare’s Determination, Mrs Muirden made a new claim for compensation for the death of Mr Muirden. The claim was made to ANU, not Comcare, because it became a self-insured licensee under the SRC Act from 1 July 2018.
ANU treated Mrs Muirden’s 2018 claim as a request for an extension of time for reconsideration of the 2013 Determination and it declined such an extension (Reviewable Decision). Mrs Muirden subsequently applied to the Administrative Appeals Tribunal for review of ANU’s Reviewable Decision.
ISSUE
The issue before the Tribunal is whether to grant Mrs Muirden an extension of time to request reconsideration by ANU of the 2013 Determination under section 62 of the SRC Act. Related to this issue is whether the Tribunal has jurisdiction to consider Mrs Muirden’s new claim made in 2018.
BACKGROUND
Because of the length of time that has elapsed and the significance of the events in this proceeding, it is necessary to set out the background in some detail.
In February 2004, Mr Andrew Muirden commenced employment with ANU on a full-time casual basis as a ‘nightwatchman’, or security guard.[1] Mr Muirden worked on a rotating roster that comprised three shifts over a twenty-four hour period, with the following designated times: 12.00am to 8.00am; 8.00am to 4.00pm; and 4.00pm to 12.00am.
[1] Document numbered ‘T7’ in the bundle of documents lodged on 12 November 2018, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, page 59 titled: Timeline for Comcare Concerning Andrew Muirden.
In December 2004, Mr Muirden became a permanent full-time employee of ANU.[2] The Contract of Employment[3] noted that Mr Muirden’s appointment commenced on 16 December 2004 and stated that:
Security Staff – 24 Hour Rotating shift / Extra leave
Your ordinary hours of work are 35 per week and are worked on a 24 hour, 7 day rotating shift basis with specified recreation leave. Your actual hours are determined by your supervisor and you must attend the University during these times except when you are on approved leave or your supervisor has agreed to alternative working arrangements.
Staff of the University are entitled to 20 working days Annual Leave for each completed year of service. A staff member employed in areas of the University which close between Boxing Day and New Years Day will be entitled to those days as additional leave.
In accordance with clause 35.2.1(b) you will be entitled to an additional 5 days annual leave whilst on rotating shifts.
[2] T7, page 59 titled: Timeline for Comcare Concerning Andrew Muirden; T7B, page 66 titled: Offer of Appointment to The Australian National University; T4, pages 18-23 titled: Contract of Employment between The Australian National University and Andrew Muirden.
[3] T4, pages 18-23 titled: Contract of Employment.
In 2007, as stated by Mrs Muirden, her husband:
began to have partial seizures upon wakening in January after the holiday period. The seizures were short and undiagnosed. He just had to lie down again and rest after wakening. These seizures occurred usually at the end of midnight-8am shift roster, every 3rd week and worsened each time.[4]
[4] T7, page 59 titled: Timeline for Comcare Concerning Andrew Muirden.
On each day from 4 to 6 July 2007, that is, for three consecutive days, Mr Muirden worked the 12.00am to 8.00am shift at ANU.[5] Mr Muirden’s timesheets indicate that he was also rostered to work four additional 12.00am to 8.00am shifts from 7 to 10 July 2007.[6]
[5] T33, Page 355, titled: ‘Summary of Hours and Days Worked for specified periods’, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
[6] T5, page 26, Mr Muirden’s ANU Timesheets.
However, on 6 July 2007, Mr Muirden experienced a seizure and was taken to the Emergency Department of Calvary Hospital. A ‘CT’ (or computed tomography) scan of Mr Muirden’s brain did not identify a ‘definite cause’ for his seizure.[7] Mr Muirden was referred to Dr Craig McColl, Neurologist, by Dr James Christie, Emergency Doctor, whom noted that:[8]
For over 10 years he has had intermittent episodes of ‘déjà vu’, after which he feels somewhat unwell, and if possible arranges to have a sleep afterward…Over the last few months these experiences have been more frequent. He has been somewhat unwell with the flu the last few days, and that plus his work roster meant that he slept less then [sic] 4 hours/day for the 3 days prior to today, although he slept 10 hours today. As he was due to do a night shift this evening, he had spent most of the day in bed. He noticed he wasn’t feeling well about 30 minutes after getting up, and about 15 minutes after that had a grand mal seizure. He was intermittently agitated and had a couple of further brief convulsive episodes during his ambulance trip to the ED.
…
I suspect he has had a partial seizure focus for many years and has now had a grand mal seizure, possibly precipitated by his flu-like illness with sleep deprivation.
[7] T18A, page 209, titled: Medical Imaging Department – Examination Report.
[8] T18A, page 210, Letter from Dr Christie to Dr McColl dated 6 July 2007.
From 7 to 10 July 2007 (inclusive), Mr Muirden was on sick leave for his rostered 12.00am to 8.00am shifts at ANU following the seizure.[9]
[9] T25A, page 241, Letter from ANU to Comcare dated 23 April 2013.
On 25 July 2007, Dr Fiona McDonald, General Practitioner, consulted Mr Muirden and also referred him to Dr McColl, as follows: ‘I seek your opinion regarding prob partial seizures for some years, recent grandmal prob precipitated by stress and tiredness’. Dr McDonald noted that Mr Muirden’s attendance at an ultrasound appointment for a potential hernia ‘interfered with his sleep routines, prob setting of [sic] his grandmal’.[10]
[10] T18A, page 197, Letter from Dr McDonald to Dr McColl dated 25 July 2007.
On 14 November 2007, Dr McColl assessed Mr Muirden following the medical referrals after his July 2007 seizure and reported to Dr McDonald as follows:[11]
He does shift work and, in July, became severely sleep-deprived during a shift change-over period and following a daytime ultrasound appointment, when he would normally be sleeping. He had an episode of déjà vu progressing to lips-smacking and slow speech and then, after ten minutes, progressing to a generalised tonic clonic seizure. He bit his tongue and had urinary incontinence. The jerking lasted for about two minutes, followed by post-ictal confusion for about 45 min. He attended the Emergency Department where no focal signs were found and he had a normal CT of the brain.
…
Examination showed no focal neurological deficits in the limbs or cranial nerves...He had a somewhat odd affect, with an air of unprovoked aggression. His partner hinted that this might peak around the time of his seizures.
His history is entirely consistent with temporal lobe epilepsy, and I have explained to him that all of his déjà vu episodes are likely to be partial seizures. His major seizure is likely to have been partly secondary to sleep deprivation, so his risk of recurrence could be lowered by avoiding sleep deprivation where possible. I have ordered an MRI, EEG, and given him a script for Tegretol CR, working up to a dose of 200mg BD.
He will need LFTs [Liver function tests] in one month, then again in another two months and approximately every three months after that. I have ordered baseline LFTs and re-ordered some Fe [iron] studies as Fe deposits in the brain could cause seizures.
He has been driving, but probably should have avoided driving for at least three months after his major seizure. Provided he remains seizure-free, or has only simple partial seizures, he could probably continue to drive with acceptable risk. He should inform the driving licensing authority of the situation and let them adjudicate on the matter. I have asked him to avoid swimming and bathing.
[11] T21A, pages 234-235, Letter from Dr McColl to Dr McDonald dated 14 November 2007.
In 2008, as stated by Mrs Muirden, Mr Muirden was ‘still having regular partial seizures. Getting worse, lasting longer. Harder to talk him out of them’.[12]
[12] T7, page 60, Timeline for Comcare Concerning Andrew Muirden.
In 2009, Mr Muirden commenced seeing a Psychologist. Mrs Muirden stated that her husband ‘had become very aggressive and angry about work commitments and how he was being treated by work colleagues. His anger would trigger a partial seizure and his family and friends suffered his wrath’.[13]
[13] ibid.
On each day from 28 April to 2 May 2010, that is, for five consecutive days, Mr Muirden worked the 12.00am to 8.00am shift at ANU.[14] Mr Muirden’s timesheets indicate that he was also rostered to work two additional 12.00am to 8.00am shifts on 3 and 4 May 2010.[15]
[14] T33, Page 355, titled: ‘Summary of Hours and Days Worked for specified periods’, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
[15] T5, pages 29-30, Mr Muirden’s ANU Timesheets.
However, on 2 May 2010, Mr Muirden was taken by ambulance to the Emergency Department of Calvary Hospital. The presenting problem was recorded as follows: ‘Acute onset of confusion, making odd noises associated with tonic-clonic seizures. The patient reports occasional marijuana intake but no other substance abuse. CT brain normal on admission. Patient not well known to me; I only met him briefly in ICU before he self-discharged himself’. The principal diagnosis is recorded as ‘Sleep deprivation seizures’, with an additional diagnosis of ‘Fall 4 days before presentation; had some neck pain following the fall’.[16] Progress notes recorded Mr Muirden’s history of seizures and that he had:[17]
[16] T18A, page 108, titled: Discharge Referral.
[17] T18A, page 133, titled: Patient Progress.
worked a midnight shift lastnight. Came home this morning and went to bed. Had some sleep; woke up with headache, took some panadol ? Endone. At about 17:30 hrs, he became vague
-making abnormal noises
-talkative
-with ? rolling eyes, but was still talking
-These symptoms are similar to those that preceded a seizure 2 yrs ago
An ambulance was called.
Tonic and clonic seizure in the ambulance.
…
? Fall 4/7 ago while “land-kiting”. c/o neck pain then. Not sure whether he had hit his head or not.
From 3 to 4 May 2010 (inclusive), Mr Muirden was on sick leave for these two rostered work days following his seizure. ANU confirmed that Mr Muirden had sick leave for the following twelve days (commencing from 5 May 2010).[18]
[18] T25A, page 241, Letter from ANU to Comcare dated 23 April 2013.
On 4 May 2010, the Crisis Assessment and Treatment Team at the Canberra Hospital reported to Dr Ragg, General Practitioner, regarding Mr Muirden’s presentation to the Mental Health Crisis Team, following his admission to Intensive Care as a result of his seizure.[19] The report stated that:
[19] T27A, pages 292-294, Facsimile from Crisis Assessment and Treatment Team to Dr Peter Ragg dated 4 May 2010.
BIB [Brought in by] ambulance yesterday with seizure history. Sedated and intubated as had become very agitated and aggressive. CT brain and EEG done, apparently normal. Previous admission 2-3 yrs ago for seizure but nil cause found. Team are considering sleep deprivation as primary cause for his seizure.
…
He was able to express some stress he felt in his night shift work and the terrible roster (3 weeks of 2 days, 5 nights, one day off) and juggling family commitments. He was dismissive that he had a potential seizure disorder and did not wish treatment, feeling he could manage it himself. He became very intimidating and hostile and I was some-what relieved when he decided to end the discussion.
He would not consent to me talking to his wife Linda and in the process of me talking with ICU staff about next options he self-discharged with his family in tow.
…
Phone call to landline at 21:30.
…
Linda said that the concern about seizures is not resolved and they are frustrated about this. They have been to a neurologist before with no success. He did not have any seizures before he started doing shift work.
…
She stated that in a family with four children it is very difficult for him to get to sleep during the day and that as a consequence he is sleep deprived.
On 18 May 2010, Dr Peter Ragg wrote an open letter following Mr Muirden’s appointment with him on 11 May 2010, stating that:[20]
This is to confirm that Andrew is not to work the 12.00am until 8.00am shift as this increases the risk of Grand Mal seizures. This advice is for the long term.
[20] T7E, page 72, Letter from Dr P.J. Ragg dated 18 May 2010.
On 22 February 2011, nine months after Dr Ragg’s letter, Mr Muirden worked his last 12.00am to 8.00am shift at ANU.[21]
[21] T5, page 31, Mr Muirden’s ANU Timesheets; T25A, page 241, Letter from ANU to Comcare dated 23 April 2013.
In March 2011, as stated by Mrs Muirden, Mr Muirden ‘continued to have partial seizures’.[22] On the evidence before the Tribunal, it appears that around this time, Mr Muirden provided a copy of a doctor’s certificate confirming that he should not work the 12.00am to 8.00am shift.[23]
[22] T7, page 61, Timeline for Comcare Concerning Andrew Muirden.
[23] T25A, page 242, Letter from ANU to Comcare dated 23 April 2013.
In late March 2011, Mr Muirden’s direct supervisor, Ms Sue Lawrence, emailed a Human Resources Manager at ANU regarding Mr Muirden’s sick leave and stated that:[24]
Andrew first talked to Tony [James, Facilities Coordinator at ANU] and I on Tuesday 15 March and said that he had a Doctor’s appointment the coming Thursday but that he expected the Doctor would tell him that he should not work the midnight shift because he thought it was too stressful. He explained that in addition to that his partner did not what [sic] him to work it and him continuing to do it was causing more stress at home. He also said that he had a certificate sometime ago but had not acted on it and had thrown it out. I told him that if he did not want to work the midnight shift that he would have to either have to have to have a doctor’s certificate or look for another position because the position of nightwatchman included the midnight shift and he was not going to work he was not fulfilling the role. He recognised this.
He said he felt that things would improve once an issue with his partner’s family was over and that if the doctor decided he could not work the midnight shift he would take that on personal leave.
When the doctors certificate arrived I was surprised at the reason and that it was a permanent restriction on working the midnight shift. It was then that I gave the certificate to Sarah and suggested she should discuss it with you. I talked to Andrew when he came on shift and told him I was surprised and that given the certificate said permanent that he might have to be medically retired. He said he realised it would cause him problems.
[24] T25B, page 247, Email from Sue Lawrence to Melissa Austin dated 29 March 2011.
On 7 April 2011, Mr Muirden emailed Ms Lawrence as follows in response to questions from ANU’s Occupational Health and Safety team regarding his condition:[25]
I was taken to hospital by ambulance in July 2007 and diagnosed with having a Grand Mal. Then I was taken to hospital by ambulance on the 2nd of May 2010 again suffering from a Grand Mal. After seeing Dr McColl (Calvary neurology Clinic) and being tested for Epilepsy by Dr Andrews (Neurologist, Deakin) in between hospital visits it was decided I didn’t have epilepsy but the events were due to sleep deprivation.
[25] T25B, page 244, Email from Andrew Muirden to Sue Lawrence dated 7 April 2011.
On 12 May 2011, as stated by Mrs Muirden, her husband ‘had two partial seizures which developed into Gran [sic] Mal – Ambulance to Calvary Hospital, put into a coma and resuscitated’.[26] As Dr McColl subsequently noted in his 2018 report, there are no medical records from either Calvary Hospital or Canberra Hospital, regarding an admission of Mr Muirden for any seizures in or around May 2011.[27]
[26] T7, page 61, Timeline for Comcare Concerning Andrew Muirden.
[27] T39, page 377, Letter from Dr Craig McColl to Capital Lawyers dated 12 February 2018.
On 17 May 2011, Dr Ragg completed a Medical Certificate for Workers’ Compensation and diagnosed Mr Muirden with ‘adjustment disorder secondary to unreasonable working conditions’ and ‘epilepsy – provoked by unreasonable working conditions’.[28] Dr Ragg certified Mr Muirden unfit for work from 17 May to 7 June 2011. Mr Muirden’s timesheets indicate that he was on sick leave or had rostered days off from 17 May to 20 May 2011 (inclusive), however they also indicate that he worked for nine days between 21 May and 29 May 2011, inclusive (being within Mr Muirden’s period of unfitness for work as certified by Dr Ragg).[29] From 30 May to 10 June 2011 (inclusive), Mr Muirden was on sick leave or had rostered days off from work.[30]
[28] T7G, page 74, titled: Medical Certificate for Workers’ Compensation.
[29] T33, Page 357, titled: Summary of Hours and Days Worked for specified periods attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
[30] T5, pages 37-38, Mr Muirden’s ANU Timesheets; T33, Page 357, Document entitled ‘Summary of Hours and Days Worked for specified periods’, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
In May or June 2011, Mrs Muirden stated that she:[31]
telephoned Comcare and the union in May/June in distress that Andrew wouldn’t hand in the Comcare workers compensation form into work from Dr Ragg advising that he had brain damage and that he had to stop working and try to regulate his stress and sleep levels after a near fatal Gran Mal. We knew Andrew wouldn’t survive another Seizure.
[31] T7, page 62, Timeline for Comcare Concerning Andrew Muirden.
From 11 June to 19 June 2011 (inclusive), Mr Muirden worked at ANU.[32]
[32] T5, page 39, Mr Muirden’s ANU Timesheets; T33, page 357, titled: Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Between 20 June and 1 July 2011, Mr Muirden was on sick leave or had rostered days off from work at ANU.[33]
[33] T25A, page 241, Letter from ANU to Comcare dated 23 April 2013; T33, page 357, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
From 2 July to 10 July 2011 (inclusive), Mr Muirden worked at ANU.[34]
[34] T5, pages 40-41, Mr Muirden’s ANU Timesheets; T33, Page 357, titled: Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Between 11 July and 22 July 2011, Mr Muirden was on sick leave or had rostered days off from work at ANU.[35]
[35] T25A, page 242, Letter from ANU to Comcare dated 23 April 2013; T33, page 358, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
From 23 July to 31 July 2011 (inclusive), Mr Muirden worked at ANU.[36]
[36] T5, page 42, Mr Muirden’s ANU Timesheets; T33, page 358, titled: Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Between 1 August and 12 August 2011, Mr Muirden was on sick leave or had rostered days off from work at ANU.[37]
[37] T25A, page 242, Letter from ANU to Comcare dated 23 April 2013; T33, page 358, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
From 13 August to 21 August 2011 (inclusive), Mr Muirden worked at ANU.[38] The 4.00pm to 12.00am shift on 21 August 2011 was Mr Muirden’s last at ANU.
[38] T5, pages 43-44, Mr Muirden’s ANU Timesheets; T33, page 358, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Between 22 August and 29 August 2011, Mr Muirden was on sick leave or had rostered days off from work at ANU.[39]
[39] T5, page 44, Mr Muirden’s ANU Timesheets and T25A, page 242, Letter from ANU to Comcare dated 23 April 2013; T33, Page 358, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
On 29 August 2011, eight days after his last shift at ANU, Mr Muirden died at home aged 47. Mr Muirden was survived by Mrs Muirden and their four children who were then aged 7, 15, 19 and 22.[40] Mr Muirden’s Death Certificate lists the cause of death as ‘sudden unexpected death in epilepsy’ or ‘SUDEP’.[41]
[40] T6F, page 58, Death Certificate of Mr Andrew Muirden dated 16 September 2011.
[41] ibid.
On 31 August 2011, a post mortem examination was performed on the body of Mr Muirden. The subsequent report stated that:[42]
[42] T27A, pages 308-309, Letter from Dr Lavina Hallam to the Coroner dated 10 December 2011.
TOXICOLOGY REPORT:
…
Screening Analysis: Cannabinoids were detected.
…
This 47 year old man appears to have collapsed while hanging out the washing. He was found face down on the grass below the washing hoist. The deceased was a known epileptic non-compliant with treatment. There were no suspicious circumstances arising from the Police investigations.
At autopsy there were no findings to readily account for death. Formal neuropathology report is appended (Appendix 1). Epilepsy is associated with increased risk of sudden death (Appendix 2).
IN MY OPINION THE CAUSE OF DEATH WAS
1. DIRECT CAUSE:
Disease or condition directly leading to death:
(A)SUDDEN UNEXPECTED DEATH IN EPILEPSY (SUDEP).
The Macroscopic Brain Report dated 5 December 2011 enclosed at Appendix 1 to the post mortem report concluded: ‘Features consistent with agonal hypoxia/seizures/global ischaemia. No evidence of underlying hippocampal sclerosis’.[43] The post mortem report also enclosed at Appendix 2 an article titled ‘unexpected death in epilepsy’ by Dr Steven Schachter from the medical resource ‘UpToDate’.[44] The article notes that:
[43] T27A, page 311, Appendix 1, titled: Macroscopic Brain Report, to Letter from Dr Lavina Hallam to the Coroner dated 10 December 2011.
[44] T27A, pages 312-319, Appendix 2, titled: unexpected death in epilepsy, S.C. Schachter, MD, last literature review version 19.3: September 2011.
Patients with epilepsy have a small risk of sudden unexpected death, a condition referred to as sudden unexpected death in epilepsy (SUDEP). SUDEP is defined specifically as the sudden, unexpected, witnessed or unwitnessed, nontraumatic and nondrowning death in patients with epilepsy with or without evidence for a seizure, and excluding documented status epilepticus, in which post mortem examination does not reveal a structural or toxicologic cause for death.
The cause of SUDEP is uncertain. Observations in individual cases have suggested possible cardiogenic, pulmonary, and primary neurologic etiologies. It may be that SUDEP is a heterogeneous condition.
…
SUDEP causes between 2 and 18 per cent of all deaths in patients with epilepsy.
…
Risk factors for SUDEP include early age of epilepsy onset, frequent generalized tonic-clonic seizures, and intractable epilepsy. Case-control and cohort studies of SUDEP have identified certain clinical and demographic features as potential risk factors:
· Seizure frequency (>1/month)
· Medication noncompliance, subtherapeutic AED level
· Age 20 to 45 years
· Generalized tonic-clonic seizures
· Polytherapy
· Duration of epilepsy (>10 years)
· Alcoholism
· Male gender
…
While SUDEP is only rarely witnessed, most observations suggest that SUDEP occurs in the context of a seizure.
…
Possible causes of SUDEP include cardiac arrhythmia, central apnea, neurogenic pulmonary edema, and laryngospasm.
…
SUMMARY AND RECOMMENDATIONS – Patients with epilepsy have a small but significant risk of sudden unexpected death (SUDEP).
· The most consistently observed risk factors for SUDEP are frequent convulsive seizures.
· The etiology of SUDEP is uncertain; most cases appear to occur in the context of a seizure. Theories include a cardiac arrhythmia, central apnea or a primary central nervous system event complicating the seizure ictus. It may be that causes are heterogeneous.
· There are no strategies that have been shown to reduce the risk of SUDEP. Maximizing seizure control is recommended, including timely consideration of epilepsy surgery.
On 15 March 2013, Mrs Muirden completed, and subsequently lodged with Comcare, a Claim for Compensation for a Work-related death in relation to Mr Muirden’s death on 29 August 2011, with the cause stated as being ‘sudden unexpected death in epilepsy (SUDEP)’.[45] The claim was not completed with the assistance of a legal representative and Mrs Muirden acknowledged in the claim form that she did not need another person to act on her behalf in relation to her claim.[46]
[45] T6, page 45, Claim for Compensation for a Work-related death.
[46] ibid at Question 8.
On 18 March 2013, Comcare wrote to Mrs Muirden acknowledging receipt of her claim for compensation.[47]
[47] T8, page 81, Letter from Comcare to Mrs Muirden dated 18 March 2013.
On 27 March 2013, Dr Colin Andrews, Consultant Neurologist, provided Comcare with his ‘EEG Report’[48] on Mr Muirden from 4 December 2009 that was issued to Mr Muriden’s General Practitioner, Dr Ragg. The EEG Report noted that the test was ‘normal’.[49]
[48] An ‘EEG’ is an ‘electroencephalogram’ test to detect abnormalities in brain waves, or in the electrical activity of the brain ( accessed 14 October 2019).
[49] T14, pages 98-99, Facsimile from Dr Andrews to Comcare on 27 March 2013 enclosing EEG Report to Dr Ragg dated 4 December 2009.
Also on 27 March 2013, Comcare wrote to Mrs Muirden acknowledging receipt of a timeline and attachments she had provided and noting that Comcare had requested medical records and reports from various practitioners.[50]
[50] T16, page 104, Letter from Comcare to Mrs Muirden dated 27 March 2013.
In April and May 2013, Comcare wrote five times to Mrs Muirden providing updates on her claim.[51]
[51] T22 to T24, pages 236-238, Letters from Comcare to Mrs Muirden dated 23 April 2013 (but the latter two letters appear to have been sent after 2 May 2013 and 20 May 2013, respectively); T26, page 255, Letter from Comcare to Mrs Muirden dated 23 April 2013 (but which appears to have been sent on or after 29 April 2013); T34, page 359, Letter from Comcare to Mrs Muirden dated 29 May 2013.
On 29 April 2013, Dr Ragg provided Comcare with a medical report, which stated that:[52]
[52] T27, pages 256-337, Medical Report of Dr Peter Ragg with attachments.
Mr Muirden first attended my practice on 18 November 2009. At this time he told me of an incident 2 years earlier which fitted the diagnosis of Grand Mal Epilepsy. He was not aware of this diagnosis, had had no similar episodes since, had undergone no investigations and was on no treatment. He told me he was a Security Officer at the Australian National University.
I organised an EEG and this was reported to be normal.
I next saw him on 11 May 2010. He told me he had been admitted to Calvary Hospital after another Grand Mal Fit. He told me that, due to shift work, he had not slept for over 24 hours due to shift work.
I wrote a letter to his employer suggesting that, on a longterm basis, Mr Muirden should not work the midnight to 8AM shift as it increased his risk of further epileptic fits.
He next presented to me on 17 May 2011. He told me he was continuing to work night shift. He told me this resulted in his being sleep deprived and having further fits. He was having other conflict in the workplace and felt his job was at risk. He talked about the crippling, frustrating pressures of work.
I prescribed Tegretol for his Epilepsy (he had previously refused any prescription) and referred him to a Psychologist, Mary Carse, at Catholic Care Psychology at Watson.
I have not seen Mr Muirden after that but understand from his wife that he suffered a prolonged Grand Mal Fit at home on 29 August 2011 and died.
Mr Muirden, despite his normal EEG, suffered from Grand Mal Epilepsy. He also had an Adjustment Disorder. He was not keen to accept either of these diagnosis.
His psychological condition was caused by multiple factors. Mr Muirden referred to prolonged conflict in the workplace with supervisors but I do not have any specific details re this. His relationship with his wife was difficult – partially because of his shift work and resultant sleep disturbance and anger. He also smoked Marijuana at home and this can contribute to mood disturbance.
I do not believe that Mr Muirden’s Epilepsy was caused primarily by his employment. However, both he and his wife strongly felt that the sleep disturbance secondary to shift work was a trigger to most of his fits and this is quite likely.
I understand he actually stopped the shift work several moths prior to his death but his five previous fits all occurred at a time of sleep deprivation. [sic]
On 31 May 2013, Comcare informed Mrs Muirden by letter of its Determination disallowing her claim for compensation under section 14 of the SRC Act in relation to Mr Muirden’s death.[53] The letter from Comcare also stated that: ‘your rights relating to this determination are enclosed’. Together with Comcare’s Statement of Reasons for the Determination, its letter enclosed a document entitled ‘What do I do if I disagree with a determination or a reviewable decision made by Comcare?’[54] Directly beneath that heading, the document says:
[53] T36, page 362, Letter from Comcare to Mrs Muirden dated 31 May 2013.
[54] T2, page 15, titled: What do I do if I disagree with a determination or a reviewable decision made by Comcare?
If you disagree with a determination issued by Comcare under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) you can request that it be reconsidered by Comcare.
…
To request a reconsideration you may:
> put your request to Comcare in writing
> refer to the date of the determination you would like reconsidered
> provide reasons for the request and explain why you disagree with the determination
> provide any new information that supports your request, such as medical reports or x-rays that have not previously been considered by Comcare
> make your request within 30 days of receiving Comcare’s initial determination.
If you are unable to make a request to Comcare within 30 days you can apply for an extension.
Comcare’s Statement of Reasons notes that it was satisfied that Mr Muirden ‘suffered from a sudden and identifiable change when he suffered from the epileptic fit on 29 August 2011 which resulted in his death’.[55] Comcare was therefore ‘satisfied that the late Mr Muirden suffered from an injury as defined in the SRC Act’.[56] However, the Statement of Reasons confirms that:
Having regard to the available evidence, I cannot be satisfied that it supports that the late Mr Muirden’s Grand Mal epileptic fits and subsequent death constitutes as an injury arising out of or in the course of his employment. He sustained his injury at his home which is not considered to be his place of work or that he was required to be there in the course of his employment.
For the sake of completeness, I have also assessed whether the Grand Mal epilepsy was contributed by his employment to a significant degree, under the ‘disease’ provisions [of the SRC Act].
…
As required under the disease provisions, it is necessary to be satisfied that on the balance of probabilities as opposed to possibilities that the claimed condition was significantly contributed to by the employment. However, the available evidence does not support that this is the case.
As such, I am not satisfied the late Mr Muirden’s injury resulting in death arose out of or in the course of his employment or that his employment contributed to the condition to a significant degree.
[55] T36, page 364, Statement of Reasons.
[56] ibid. page 364.
Mrs Muirden did not request a reconsideration of Comcare’s Determination within 30 days after the day she received that Determination, as required under section 62(3) of the SRC Act. Mrs Muirden stated that she was advised by Comcare in a telephone call following the making of the Determination that ‘there was no time limit on an appeal process’.[57] This claim was not the subject of any further evidence before the Tribunal. Mrs Muirden said she sought assistance from Maurice Blackburn Lawyers in Sydney, who advised her that they were not practising in the ACT and there were no industrial lawyers in the ACT. Mrs Muirden then spoke with the solicitors for the union, United Voice, who told her they could no longer assist her because she was ‘flogging a dead horse’. As a result, Mrs Muirden said she ‘ended up in a way giving up in total despair’.[58]
[57] Exhibit A11, Statement of Linda Muirden dated 17 December 2018, page 3.
[58] ibid.
On 16 August 2016, more than three years after Comcare’s Determination, Mrs Muirden’s solicitors informed Comcare that they had instructions to act on her behalf and, pursuant to section 59 of the SRC Act, requested Comcare’s documents relating to the disallowed compensation claim.[59]
[59] T37, page 370, Letter from Capital Lawyers to Comcare dated 16 August 2016.
On 22 August 2016, Comcare provided Mrs Muirden’s solicitors with a copy of its documents relating to her compensation claim.[60]
[60] T38, page 372, Letter from Comcare to Capital Lawyers dated 22 August 2016.
On 12 February 2018, Dr McColl provided Mrs Muirden’s solicitors with a report regarding Mr Muirden.[61] Dr McColl’s report contains a chronological account of Mr Muirden’s epilepsy, based on his clinical notes and hospital records, and his responses to Mrs Muirden’s solicitors’ questions. The report relevantly states that:
[61] T39, pages 373-379, Letter from Dr Craig McColl to Capital Lawyers dated 12 February 2018.
14th November 2007
…he was a 43 year old man with a history of temporal lobe epilepsy. He reported many years of déjà vu episodes, in which he maintained awareness but had the feeling that events around him were repeats of previous experiences. Typically, these events lasted for about two minutes, and were followed by a sluggish mentation and drowsiness, which lasted for several minutes or up to a few hours. The description was consistent with simple partial seizures (focal seizures with preserved consciousness).
In July 2007, he had a more severe event, consistent with a secondarily generalised seizure, and this event prompted referral to me. As noted in my clinic letter, dated 14/11/2007, he became severely sleep-deprived in the setting of a shift changeover period, in combination with a daytime ultrasound appointment that was scheduled at a time when he would normally be sleeping. He also had a mild flu-like illness…
The event continued to progress, and after ten minutes of focal seizure activity, he had a secondarily generalised tonic clonic seizure (GTCS) with tongue-biting and urinary incontinence. A secondarily generalised GTCS represents a major seizure in which the focal activity has spread to involve the whole brain, and it consists of a tonic phase (full body stiffening) followed by a clonic phase (jerking of the limbs).
He was observed in the Emergency Department at Calvary Hospital, and had a CT scan of the brain, which was reported as normal. Because he had only had a single convulsive event, which appeared to have been provoked by sleep deprivation, he was not immediately started on anticonvulsive treatment, but was instead referred to me.
…
In view of the fact that he had experienced multiple focal seizures over many years, and had exhibited a secondarily generalised seizure, I made a diagnosis of temporal lobe epilepsy and advised him to commence anticonvulsant treatment with carbamazepine (Tegretol CR), working up to a dose of 200mg twice daily (BD) initially.
I ordered an encephalogram (EEG) and a magnetic-resonance imaging (MRI) scan of the brain, and expected to see him for follow-up of these.
His EEG was subsequently described as normal. I can not find any evidence that he had the recommended MRI scan.
As noted in my clinic letter (dated 14/11/07), I suggested to Mr Muirden and his doctor that sleep deprivation was likely to have played a significant role in lowering his seizure threshold and converting his tendency to have mild focal seizures into a more severe epileptic tendency with a secondarily generalised seizure. I advised him that his risk of similar events could be reduced by avoiding sleep deprivation, including shift work.
2nd May 2010
Mr Muirden attended the Calvary Hospital following a generalised tonic-clonic seizure in the setting of sleep deprivation. I was not directly involved in his care, apart from giving phone advice about medication, but I have read the notes taken by the doctor who saw him in the Emergency Department (Dr Thomas Koroma). Mr Muirden’s wife told Dr Koroma that Mr Muirden had not had much sleep for two days, and had worked a “midnight shift” prior to the seizure…The pattern of events is consistent with a focal seizure progressing to a secondarily generalised GTCS…The Emergency Department notes indicate that he had also had increasing partial seizures about two weeks prior to the presentation. He was noted to have had a minor fall four days earlier, while “land-kiting”, but he was not known to have hit his head.
…
The working diagnosis was a secondarily generalised tonic-clonic seizure, induced by sleep deprivation, on a background of temporal lobe epilepsy.
He did not wait in the Emergency Department to be seen by me, but discharged himself against medical advice.
3rd May 2010
According to hospital notes, Mr Muirden was brought back to hospital with a reduced conscious state…It is unclear whether he had suffered another seizure, but this seems likely in view of his reduced conscious state…but did not commence long-term anticonvulsant therapy, and denied that he had epilepsy.
He was advised that he had untreated epilepsy…He did not pursue follow-up with a neurologist after this presentation.
Progress to August 2011
I was not further involved in Mr Muirden’s care, and have no direct knowledge of the circumstances of his death, but I will base my comments on the history outlined in your email…
…
I note that the death certificate for Mr Muirden states that the presumed cause was “SUDDEN UNEXPECTED DEATH IN EPILEPSY (SUDEP). There are insufficient details available for me to know if this diagnosis is likely.
I cannot confirm that he was admitted to Calvary Hospital in May 2011, and I can find no Calvary Hospital records covering this period…He has had no known admissions to Canberra Hospital with seizures.
Response to Specific Questions
Your client, Mr Muirden’s wife, has requested my opinion on whether:
1. Sleep deprivation to those suffering from epilepsy does increase the frequency of seizures or otherwise amplifies the effects of them.
2. [Whether] Mr Muirden being rostered on for 12:00AM – 8:00 AM shifts would have caused Grand Mal seizures and other small seizures.
3. If the 12:00AM – 8:00AM shifts did not cause the Grand Mal and other seizures, whether it would have increased the frequency of seizures or amplified the effects of any seizures that Mr Muirden would have suffered.
Response 1
Sleep deprivation is a well-known risk factor for seizures. Many patients present with their first convulsive seizure after a period of sleep deprivation, and patients with epilepsy are routinely advised to avoid sleep deprivation.
Most textbooks list sleep deprivation as a common factor lowering the seizure threshold. For instance, the handbook “Fast Facts: Epilepsy”, 3rd Edition, by Martin Brodie et al…includes a table that lists 9 common factors for lowering seizure threshold, with sleep deprivation listed as the first: “sleep deprivation, alcohol withdrawal, television flicker, epileptogenic drugs, systemic infection, head trauma, recreational drugs, antiepileptic drug con-compliance, and menstruation”.
…
Response 2
In Mr Muirden’s case, it is almost certain that sleep deprivation played a key role in producing his GTCSs. Both of the known presentations to the Emergency Department with GTCSs followed periods of greater-than-usual sleep deprivation. For the GTCS leading to his appointment with me, the sleep deprivation occurred as a result of shift work in combination with a daytime ultrasound appointment. An additional provoking factor was a flu-like illness.
For the second presentation, which led to his Intensive Care admission, he was described as having had severe sleep deprivation, although I do not know the precise details. An additional factor was the lack of any ongoing anticonvulsant medication.
The risk factor of sleep deprivation cannot be considered to be the sole cause of his GTCSs, because other risk factors were also present, and he almost certainly had underlying temporal lobe epilepsy, that is likely to have been caused by an underlying structural abnormality of one temporal lobe.
It is unclear whether his chronic history of minor focal seizures was caused, in part, by chronic shift work. On balance, this appears probable, so that mild chronic sleep deprivation caused chronic focal seizures which perpetuated and enhanced his epileptic tendency, and more severe acute sleep deprivation precipitated more severe events with secondary generalisation.
Response 3
Sleep deprivation increases a patient’s overall seizure tendency, which affects both the frequency and severity of seizures. On balance, it is more likely than not that chronic sleep deprivation contributed to his chronic mild focal seizures, and highly likely that acute severe sleep deprivation contributed to the increase in severity that led to his two known episodes of secondarily generalised tonic-clonic seizures. If he died of sudden-unexpected death in epilepsy (SUDEP), and if he experienced more than his usual sleep deprivation prior to his death, it is also more likely than not that sleep deprivation contributed to his death.
I do not know the precise circumstances of his death, and therefore do not know whether sleep deprivation played a specific role in his case. The published epilepsy literature reports that SUDEP is more likely in subjects with poorly controlled epilepsy, and sleep deprivation is a known risk factor for poor epilepsy control, but other factors such as not being on antiepileptic medication also contribute to the risk.
On 1 July 2018, ANU became a self-insured licensee under the SRC Act and therefore took on responsibility for the management and funding of claims related to its employees, including those claims made prior to 1 July 2018.[62]
[62] Exhibit R1: Statement from Mark Mulligan, Associate Director of the Work Environment Group at ANU, dated 1 October 2019.
On 3 August 2018, more than five years after Comcare’s May 2013 Determination and more than two years after requesting documents from Comcare relating to her compensation claim, Mrs Muirden’s solicitors lodged with Comcare a new Claim for Compensation for a Work-related death that was completed by Mrs Muirden on 30 July 2018, with the cause stated as being ‘Sudden Unexpected Death in Epilepsy’.[63] The covering letter from Mrs Muirden’s solicitors did not seek an extension of time to request review of the Determination, but stated that:
Ms Muirden has previously lodged a claim with respect to this matter in 2013 (Claim Number 1182569/1), however, that claim was refused because there was insufficient medical evidence that his death was significantly contributed to by his employment at the Australian National University.
Subsequent to that decision, we have sought the expert opinion of Dr Craig McColl, the deceased’s treating neurologist and enclose a copy of his report in support of this claim.
Would you please make a fresh decision regarding our client’s claim as soon as possible.
[63] Exhibit A2: Letter from Capital Lawyers to Comcare dated 3 August 2018.
On 14 August 2018, Mrs Muirden’s solicitors emailed ANU regarding her new compensation claim.[64] The email appears to follow a telephone discussion between Mrs Muirden’s solicitors and ANU regarding, amongst other things, ANU now being the relevant insurer rather than Comcare, with whom the 2018 claim was initially lodged earlier that month. The email from Mrs Muirden’s solicitors to ANU did not seek an extension of time to request review of the Determination, but said that:
the claim has been re-made at this time because we only received the report of Mr Muirden’s treating neurologist and eminent expert on epilepsy on 15 February, 2018. That report was requested by us on 14 August, 2017, however, there was a delay in preparing it.
The original determination was issued by Comcare without seeking a report from Mr Muirden’s treating neurologist.
That report provides new evidence that was not previously considered by Comcare when Mrs Muirden’s original claim for compensation was determined and in the absence of any prejudice to the ANU, it is in the interests of justice that her claim be determined again freshly.
[64] T40, page 382, Email from Mr Daniel Steiner of Capital Lawyers to Ms Volz of ANU (care of ‘[email protected]’) dated 14 August 2018.
On 15 August 2018, ANU responded to Mrs Muirden’s solicitors as follows:[65]
The ANU will need to consider whether an extension of time can be allowed to reconsider this matter. The claim made by Mrs Muirden was declined by Comcare in 2013. The 30 day period within which to request a reconsideration has well and truly expired.
If Mrs Muirden wishes to seek an extension of time, please provide reasons for the delay in requesting a reconsideration.
In addition, please provide the additional evidence you have obtained as this has not been provided to ANU by Comcare.
[65] T40, page 381, Email from Ms Lisa McLoughlin of ANU to Mr Steiner dated 15 August 2018.
On 16 August 2018, Mrs Muirden’s solicitors replied to ANU as follows:[66]
I am aware that the period for reconsidering Comcare’s initial determination has long expired.
However, there is nothing in the Safety, Rehabilitation and Compensation Act 1988 (Cth) which precludes Mrs Muirden from lodging a further claim for compensation in accordance with section 54 of the Act (as she has done) now that new medical evidence has come to light.
We expect that this claim would be considered and determined (on an initial basis) in light of the new medical evidence in accordance with section 61 of the Act and if the determination to be issued is adverse to Mrs Muirden’s interests, then she may seek reconsideration of that determination pursuant to section 62(1) of the Act in due course, if appropriate.
Having said that, if the ANU would prefer to simply reconsider the initial determination, then you may treat my e-mail dated 14 August, 2018 as Mrs Muirden’s request for an extension of time pursuant to section 62(3)(b) of the Act.
[66] T40, pages 380-381, Email from Mr Steiner to Ms McLoughlin dated 16 August 2018.
On 17 August 2018, ANU provided its decision (being the Reviewable Decision the subject of this proceeding) to Mrs Muirden’s solicitors denying an extension of time for her to lodge a request for reconsideration of the Determination.[67] The letter relevantly stated as follows:
[67] T40, page 380, Email from Ms McLoughlin to Mr Steiner dated 17 August 2018 attaching letter of same date (at T41, pages 384-385).
Thank you for your email of 16 August 2018. The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides a 3-tier decision-making process. Following the primary determination, which was made on 31 May 2013, it is not appropriate that a fresh claim be made but rather a request for reconsideration should be made.
A request for reconsideration must be made within 30 days of the determination, or within such further period (if any) that the determining authority allows.
You have confirmed that you are happy for your email of 14 August 2018 to be treated as a request for an extension of time pursuant to section 62(3)(b) of the Act.
…
I have declined your request for an extension of time to lodge a reconsideration. In making this decision I have considered the following:
- no explanation has been provided for the substantial delay in submitting the request (the determination was made in May 2013, in August 2016 you requested a copy of the claim file from Comcare, in February 2018 you received the additional evidence on which you base your request for reconsideration, but you do not make the request until August 2018.
- I consider the merits of the substantive claim are not strong. With regard to the additional evidence provided, Dr McColl confirms in his report that he was not directly involved in the care of Mr Muirden since 2007 and does not know the precise circumstances of his death.
- The ANU is entitled to carry out its business on the assumption that claims not pursued within the set time limits can be regarded as finalised (Hewson and Australian Postal Corporation (1998)).
Decision
Therefore I have denied your request for an extension of time to request a reconsideration of the determination dated 31 May 2013.
On 17 September 2018, Mrs Muirden’s solicitors responded to ANU, relevantly as follows:[68]
We refer to your reconsideration dated 17 August 2018 and advise that we are instructed to request reconsideration of your determination, pursuant to section 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) on the following grounds:
1. The claimant submitted a fresh claim for compensation after receipt of the fresh medical evidence from Dr McColl. The claimant was entitled to lodge a fresh claim and her lodgement of a fresh claim was not an abuse of process or vexatious because she had received fresh medical evidence since her initial claim was considered.
2. At Comcare’s request, the fresh claim was converted to a request for an extension of time to reconsider the determination made in relation to the previous claim. The claimant was induced to do this by Comcare and was endeavouring to co-operate with Comcare to facilitate the most expeditious means for having her claim re-determined.
…
[68] T42, page 387, Email from Mr Steiner to Ms McLoughlin dated 17 September 2018.
On 17 September 2018, ANU replied to Mrs Muirden’s solicitors stating that ANU’s August 2018 decision denying an extension of time was a reviewable decision that could be reviewed by the Tribunal.[69] In this way, ANU effectively denied Mrs Muirden’s request in her solicitors’ above-mentioned correspondence for ANU to conduct an ‘own motion’ reconsideration of the 2013 Determination under section 62(1) of the SRC Act, following its denial of an extension of time in relation to the Determination.
[69] T42, page 387, Email from Ms McLoughlin to Mr Steiner dated 17 September 2018.
On 15 October 2018, Mrs Muirden lodged with the Tribunal an application for review of ANU’s decision refusing an extension of time to request reconsideration of the Determination.[70]
[70] T2, pages 3-4, Application for Review of Decision (Individual).
On 17 October 2018, Mrs Muirden’s solicitors corresponded with ANU as follows:[71]
our file shows that by letter of 3 August 2018, our client lodged a fresh claim in relation to the death of her husband…Given your refusal to extend the time for reconsideration, we have instructions to proceed with the claim lodged on 3 August 2018 and ask that you make a determination on the new claim on an urgent basis.
[71] Exhibit A3: Letter from Capital Lawyers to ANU dated 17 October 2018 (attached to email of same date), which enclosed the letter from Capital Lawyers to Comcare dated 3 August 2018 with the new Claim for Compensation for a work-related death dated 30 July 2018 (A2) and Dr McColl’s report of 12 February 2018 (T39).
On 18 October 2018, ANU emailed Mrs Muirden’s solicitors requesting a copy of her new claim because it was lodged with Comcare in August 2018 and ANU had not received a copy of the new claim.[72]
[72] Exhibit A4: Email from Ms McLoughlin to Ms Baneen Fatima of Capital Lawyers dated 18 October 2018.
On 17 December 2018, ANU’s solicitors emailed the Tribunal and Mrs Muirden’s solicitors noting that:[73]
We are instructed that as the Applicant’s claim for a work-related death was previously determined, it was appropriate for the Respondent to treat the letter of 3 August 2018 as a request for reconsideration of the determination dated 31 May 2013, and not as a new claim for compensation. Whilst there is no statutory prohibition on the Applicant lodging a further claim, the review framework established by the Safety, Rehabilitation and Compensation Act 1988 expects reconsideration followed by review in the Tribunal.
Approaching the letter of 3 August 2018 in this way does not mean that there has been a ‘refusal’ to determine the new claim that would potentially be subject to reconsideration and review by the Tribunal. Instead, the Respondent respectfully submits that the appropriate course is for the Tribunal to determine whether an extension of time in which to request a reconsideration should be granted, and if so, remit the matter to the Respondent for reconsideration.
[73] Exhibit A5: Email from Stuart Marris of Sparke Helmore Lawyers to the Canberra Registry of the Tribunal and to Mr David Chen of Capital Lawyers dated 17 December 2018.
On the same day, Mrs Muirden’s solicitors responded as follows:[74]
We find it difficult to comprehend how our letter of 3 August 2018 could be construed as a request for reconsideration. With the letter, Comcare received a newly completed claim for compensation and its supporting evidence. The letter also explained why the claim was lodged belatedly. More importantly, in the letter, we specifically requested a ‘fresh decision’ to be made regarding the claim.
We are of the view that in the circumstances, Comcare/ANU’s position is untenable.
[74] Exhibit A6: Email from Mr Chen to Mr Marris dated 17 December 2018.
ANU’s solicitors replied almost immediately to Mrs Muirden’s solicitors stating that they would ‘elaborate on our client’s position in submissions, in due course’.[75]
[75] Exhibit A7: Email from Mr Marris to Mr Chen dated 17 December 2018.
On 13 March 2019, Mrs Muirden’s solicitors emailed the Tribunal (and copied in ANU’s solicitors) and stated that:[76]
Our client maintains that a fresh claim was lodged under cover of our letter dated 3 August 2018 and the respondent has an obligation to consider the new claim lodged. The respondent should not have treated the new claim as a request for reconsideration of an earlier determination made on 31 May 2013. Had the respondent proceeded to consider the new claim as lodged, the current proceedings in the Tribunal would have been unnecessary. We are in this position because of the way the respondent has handled our client’s claim.
Our client’s claim was lodged in August 2018, and the respondent ought to make a determination as a matter of urgency. If it were a negative decision, our client would then seek reconsideration and would eventually file for review at the tribunal.
[76] Exhibit A8: Email from Mr Chen to the Tribunal dated 13 March 2019.
Later that day, Mrs Muirden’s solicitors sent a further email to the Tribunal (and copied to ANU’s solicitors) stating that ‘if the tribunal is minded to determine the existing proceedings on the paper [sic] and order to remit the matter to the respondent, we will have no issue with that approach’.[77]
[77] Exhibit A9: Email from Mr Chen to the Tribunal dated 13 March 2019.
On 13 March 2019, ANU’s solicitors responded to this correspondence as follows:[78]
We refer to the email from your firm to the ANU dated 16 August 2018 (T40, page 380), in which it was foreshadowed that ANU would treat the earlier email of 14 August 2018 as a request for extension of time to request a reconsideration.
Nevertheless, we would be happy to wait for your client’s further evidence before considering whether the matter should be listed for hearing.
[78] Exhibit A10: Email from Mr Marris to Mr Chen dated 13 March 2019.
The proceeding was subsequently listed by the Tribunal for hearing, which was held on 14 October 2019.
LEGISLATION
Definition of ‘injury’
Under subsection 5A(1)(b) of the SRC Act, an ‘injury’ is defined as ‘an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment’. Subsection 5A(1)(c) of the SRC Act also provides that an ‘injury’ means ‘an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment’.
Compensation for injuries, including death
Subsection 14(1) of the SRC Act relevantly provides that compensation is liable to be paid in accordance with the SRC Act ‘in respect of an injury suffered by an employee if the injury results in death’.
Section 17 of the SRC Act sets out the manner in which compensation is payable for an injury resulting in an employee’s death, relevantly as follows:
(3) Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee’s death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $400,000[79] and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.
[79] This amount is indexed by reference to the Wage Price Index as set out in section 13AA of the SRC Act. At or around the time of Mr Muirden’s death in August 2011, this compensation amount was approximately $458,980.51.
…
(5) If:
(a) a prescribed child was, at the date of the injury or at the date of the employee’s death, wholly or mainly dependent on the employee;
…
Comcare is liable to pay compensation at the rate of $110[80] a week and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of that child from the date of the employee’s death or the date of the birth of the child, whichever is the later.
…
(8) Where an amount of compensation is payable under this section for the benefit of 2 or more dependants of the deceased employee, Comcare shall determine the shares of those dependants in that amount as Comcare thinks fit, having regard to any losses suffered by those dependants as a result of the cessation of the employee’s earnings.
(9) A reference in this section to a dependant of a deceased employee shall be read as a reference to a dependant by or on behalf of whom a claim is made for compensation under this section.
[80] This amount is indexed by reference to the Wage Price Index in section 13AA of the SRC Act. At or around the time of Mr Muirden’s death in August 2011, this amount was approximately $126.22.
Making a claim for compensation
Section 54 of the SRC Act relevantly provides that:
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph;…
Determination and notice about requesting reconsideration
Subsection 61(1) of the SRC Act provides that as soon as practicable after a determining authority makes a determination, ‘it shall cause to be served on the claimant a notice in writing’ setting out the terms of, and reasons for, the determination and a statement that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2) of the SRC Act.
Section 72 of the SRC Act notes that Comcare ‘shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities’ when making determinations accurately and quickly in relation to claims made under the SRC Act.
Reconsideration of determination
The requirements for reconsideration of a determination are set out in section 62 of the SRC Act, which provides that:
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it…
…
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant…
…
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(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.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
Applications to the Administrative Appeals Tribunal
Section 64 of the SRC Act provides that application to the Administrative Appeals Tribunal for review of a ‘reviewable decision’ may be made by, amongst others, a ‘claimant’.
Section 60 of the SRC Act relevantly states that ‘reviewable decision’ means a decision made under section 62 of the SRC Act and that ‘claimant’ means a person in respect of whom a determination is made. In this proceeding, the Reviewable Decision is that made by ANU on 17 August 2018 denying Mrs Muirden an extension of time to request reconsideration of Comcare’s 2013 Determination.
CONTENTIONS
Mrs Muirden’s contentions on Extension of Time
Mrs Muirden contended that although the delay involved is ‘considerable’[81], it is not uniquely long. The cause of the delay was said to be: ANU’s alleged advice to Mrs Muirden that there was no time limit to bring an appeal; the trauma and her state of grief associated with Mr Muirden’s death; her duties as a single mother to four children; the difficulties engaging a solicitor on a ‘no-win/no-fee’ basis; the length of time to gather evidence for a new claim, including the related letters of administration process to bring a claim regarding Mr Muirden’s death and a delay in the provision of Dr McColl’s report, which was not received until 2018, despite being requested in 2017. It was also submitted that once Mrs Muirden had engaged her current solicitors, there were delays caused by the departure of the solicitor with carriage of the matter that should appropriately not be visited upon Mrs Muirden.
[81] Applicant’s Statement of Facts, Issues and Contentions dated 15 July 2019, page 4.
Mrs Muirden contended in her written submissions that there was no prejudice to ANU because it has ‘always known of the claim and has not altered its position’.[82] At hearing, Counsel for Mrs Muirden said that the difference between the parties was, on the one hand, ANU arguing it will suffer financial prejudice because it had not accounted for Mrs Muirden’s claim being re-agitated after five years, and following ANU became self-insured under the SRC Act from 1 July 2018 and, on the other hand, Mrs Muirden with four children who had been ‘buggered around’ by both ANU and her solicitors and had never renounced her argument that Mr Muirden’s employment killed her husband. Accordingly, it was submitted, the justice of the case weighs heavily in favour of Mrs Muirden rather than ANU’s ‘accounting problem’. In this regard, the Tribunal was referred to section 72 of the SRC Act exhorting decision-making to be ‘guided by equity, good conscience and the substantial merits of the case, without regard to technicalities’. The Tribunal must make an ‘evaluative judgment’ about ‘where the fairness lies’ in this matter and, it was submitted, it would be hard to weigh the ‘accounting issues’ of ANU against those of Mrs Muirden and her children in light of the beneficial nature of the SRC Act ‘specifically aimed…for the families of deceased workers’, meaning that the Tribunal would need to be ‘greatly persuaded’ by ANU before finding in its favour.
[82] ibid, page 5.
Mrs Muirden argued that the merits of her claim are ‘readily apparent’.[83] In written submissions, it was argued that Mr Muirden’s death was said to be caused by an ‘injury’ pursuant to section 5A of the SRC Act or, in the alternative, by a ‘disease’ pursuant to section 5B of the SRC Act. However, at hearing, Counsel for Mrs Muirden submitted that the epileptic fit or seizure suffered by Mr Muirden was an ‘injury’, rather than a ‘disease’, but that this distinction was likely of little significance given the interpretation of those terms by the High Court of Australia in Military Rehabilitation and Compensation Commission v May [2016] HCA 19. It was contended that for an ‘injury’, the contribution made by work to the death ‘need only be real, but of no particular quantitative dimension i.e. more than de minimis’.[84] In this regard, it would not matter if the contribution was five or ten per cent and Dr McColl’s evidence was said to satisfy that test. Furthermore, it was argued that the work contribution ‘does not need to be the proximate cause i.e. the last link in the chain. It is sufficient that it was an actual cause in the chain leading to the husband’s death’.[85] In addition, it was contended that the fact Mr Muirden’s epilepsy was caused by other factors does not disqualify the claim; ‘the issue is whether the sleep deprivation from night shifts at his work interacted with the epilepsy to cause the grand mal seizure that caused the death’.[86] In this way, ‘it does not matter whether the sleep deprivation from night shifts ceased sometime before the death. It is sufficient that the sleep deprivation caused an aggravation of the epilepsy, or its propensity to become symptomatic or the severity of the seizures that in turn caused the death’.[87]
[83] ibid.
[84] ibid.
[85] ibid.
[86] ibid, pages 5-6.
[87] ibid, page 6.
At hearing, Counsel for Mrs Muirden noted that the workers’ compensation scheme under the SRC Act is a ‘no fault’ scheme and it was therefore unnecessary for Mrs Muirden to establish negligence or wrongdoing on behalf of ANU in relation to Mr Muirden’s death. Accordingly, Mrs Muirden has only to establish that her husband’s shift work at ANU caused his sleep deprivation which was a ‘contributing cause’ to the fatal epileptic attack suffered by Mr Muirden. It was contended that this amounted to a very narrow medical issue, where the degree of sleep deprivation suffered due to Mr Muirden’s shift work at ANU could have contributed in the requisite way to his death to give rise to the payment of compensation pursuant to the SRC Act.
Counsel for Mrs Muirden submitted that, being an ‘injury’, the test for causation was whether it ‘arose out of, or in the course of, the employee’s employment’ as defined in section 5A(1) of the SRC Act. In this regard, ‘arose out of’ connotes a causal test with the employment, whereas ‘in the course of’ connotes a temporal test. It was submitted that the relevant incident plainly ‘arose out of’ Mr Muirden’s employment, not ‘in the course of’ that employment. To this end, there was said to be a causal connection to employment because of Mr Muirden’s shift work at ANU and the resultant sleep deprivation which aggravated his epilepsy. It was contended that the 2013 Determination was ‘fatally flawed’ due to its conclusion that because the incident leading to Mr Muirden’s death occurred at his home and not ‘in the course of’ his employment, and implicitly that it could not have arisen ‘out of’ that employment, was ‘a complete straw man argument’ that should be considered in weighing up the merits of the substantive claim.
In relation to the Tribunal’s jurisdiction, Counsel for Mrs Muirden said, if the requested extension of time was refused, as a matter of practicality the Tribunal should then remit the new claim to ANU for review. In this regard, it was argued that if the Tribunal denied the extension of time, but also confirmed that it had no jurisdiction in relation to the new claim, it would be to the detriment of the public, its resources and Mrs Muirden because the new claim would go back to ANU for determination, followed by a possible reconsideration and then, potentially, application to the Tribunal for review. The jurisdictional issue before the Tribunal was said to be a ‘sterile’ argument, with the intent of ensuring the Tribunal does not hear the substantial merits of the case.
ANU’s contentions on Extension of Time
On the issue of jurisdiction, ANU contended that the Tribunal was bound to follow the SRC Act as legislated by the Parliament and, at this point in time, the Tribunal can only determine whether or not an extension of time to seek reconsideration of the Determination should be granted to Mrs Muirden. It was submitted that if the Tribunal decides that an extension of time should be granted, ANU would reconsider the Determination and, subject to the outcome of that reconsideration, an application for review could then be brought before the Tribunal. However, it was further submitted that, if the Tribunal forms the view that there was a new claim in 2018, the Tribunal has no jurisdiction in relation to that new claim because it has not been the subject of either a determination or reconsideration by ANU. That is, there is no reviewable decision before the Tribunal in relation to the new claim. ANU contended that, as a matter of fact, it has not refused to determine or reconsider the new claim. On questioning from the Tribunal, Counsel for ANU acknowledged that, if the Tribunal affirmed the reviewable decision not to allow an extension of time to request review of the Determination, but concluded that the new claim should be determined by ANU, including because the Tribunal’s jurisdiction has not been enlivened in the absence of a reviewable decision in relation to the new claim, ANU would proceed to make such a determination, although it noted that its decision may not be different to the 2013 Determination.
In relation to the arguments against an extension of time, ANU contended that: Mrs Muirden had not provided a reasonable explanation for the delay; there were prejudicial consequences for ANU; and the available evidence is not sufficient to establish that Mr Muirden’s death was temporally or causally related to his employment with ANU, on the balance of probabilities.[88]
[88] Respondent’s Statement of Issues, Facts and Contentions dated 12 June 2019, pages 15-17.
In relation to an explanation for the delay, ANU asserted that, apart from Mrs Muirden’s request in August 2016 for Mr Muirden’s compensation file, there was no contact from her from the time of the Determination in 2013 until the new claim was made in 2018. On this issue, ANU said there was no evidence or notice of anything being done in relation to Mrs Muirden’s claim during this period until the new claim was filed by Mrs Muirden. ANU referred to Mrs Muirden’s reasons, such as an inability to obtain legal representation, difficulties relating to letters of administration and a delay in obtaining Dr McColl’s 2018 report. In relation to these reasons, ANU contended that Mrs Muirden first sought legal assistance from Maurice Blackburn Lawyers in or about 2013 and also contacted her now solicitors, although nothing was done in relation to the claim from that time until 2016. While acknowledging the accepted position that delay by legal representatives should not be visited upon their clients, ANU contended that Mrs Muirden should have put on evidence to explain their delay, especially given the significant amount of time elapsed in this matter.
ANU stated that it is unclear whether the difficulties regarding letters of administration arose prior to lodgement of the initial 2013 claim, but, if so, they would not be relevant to the extension of time to request reconsideration. Additionally, ANU stated that Dr McColl’s 2018 report was requested on behalf of Mrs Muirden in 2017, over four years after the Determination was made and was not provided in support of the new claim until six months after it was prepared.[89]
[89] ibid, page 15.
ANU accepted that any prejudice to its ability to investigate and determine the claim is ‘somewhat limited’ because of Mr Muirden’s death.[90] By way of example, and unlike a non-death related compensation claim, ANU could not have arranged for an independent medical assessment of Mr Muirden’s condition at any earlier time and is necessarily reliant on contemporaneous medical information that was already available when the Determination was made in 2013. However, ANU did raise a number of factual matters that are in dispute, such as Mr Muirden’s ability to take leave from ANU as required during his employment. In its written submissions filed earlier this year, ANU submitted that: ‘It is now over seven years since the Deceased died and over ten years since he suffered his first seizure. This places the Respondent (and in turn, the Tribunal) in a difficult position in obtaining and assessing relevant evidence. If the reconsideration had been requested in 2013, these difficulties are likely to have been reduced’.[91]
[90] ibid.
[91] ibid, page 16.
In addition, ANU asserted that it was entitled to assume that a claim determined in 2013, with no subsequent request for reconsideration in the requisite timeframe, would not be re-agitated over five years later. It cited the case of Hewson and Australian Postal Corporation [1998] AATA 71 (Hewson), in which the Tribunal concluded that:[92]
The Respondent is a body which is charged with providing a public service and dependent at least in part upon the revenue it raises itself. It is important that it should be able to conduct its financial affairs with a degree of certainty and not have to make provision for liabilities at a time long after it could reasonably have expected any such liability to have ceased.
…
In my opinion the major factor in this matter is that prima facie proceedings commenced outside the limitation period ought not to be entertained. The Respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the materials adduced by either party to have a good case of succeeding in the action and there is little prejudice to the Respondent. In this matter I regard the Applicant’s case as not strong and, given the lapse of time involved, consider that there would be prejudice occasioned to the Respondent in attempting to meet the Applicant’s case.
[92] Hewson and Australian Postal Corporation [1998] AATA 71 at [9] and [23].
At hearing, Counsel for ANU contended that it would suffer real financial prejudice if the Tribunal granted Mrs Muirden an extension of time to request reconsideration of the 2013 claim, because the quantum of ANU’s potential liability for compensation due to the death of Mr Muirden would be in the hundreds of thousands of dollars, being a significant amount not accounted for when ANU became a self-insured licensee under the SRC Act on 1 July 2018. In this regard, it was submitted that Comcare did not transfer any funds to ANU in respect of Mrs Muirden’s claim when it transitioned to a licence under the SRC Act. If the claim had proceeded in the usual timeframes from 2013, and been accepted, ANU would have had insurance protection through Comcare. Additionally, if adequate notice had been given on behalf of Mrs Muirden that she wished to press her claim from 2013, it would have been factored into the transfer of liabilities from Comcare to ANU in July 2018.
To further explain ANU’s potential financial prejudice it provided a statement from Mr Mark Mulligan, the Associate Director of its Work Environment Group (Exhibit R1), that:[93]
[93] Exhibit R1, Statement of Mr Mark Mulligan dated 1 October 2019.
The ANU was a premium payer under the Comcare workers’ compensation scheme until 30 June 2018.
The ANU became a self-insured licensee under the Comcare scheme from 1 July 2018.
As the ANU had paid an annual premium to Comcare to cover the liability of pre-1 July 2018 claims, Comcare was responsible for valuing ANU’s outstanding claims liability for those pre-1 July 2018 claims, for the purpose of making a payment to ANU to assume that liability.
The amount of the exit payments is a fixed amount. There is no possibility for future adjustments or revisions.
The valuation undertaken by Comcare was based on claims data as at 31 March 2018.
As at 31 March 2018, the claim made by Mrs Muirden in respect of her husband’s death, was considered finalised. Liability for that claim had been rejected by Comcare in 2013 and no appeal had been made by Mrs Muirden.
Comcare’s statistical case estimates (SCE) were used to determine the outstanding claims liability for accepted claims. Therefore, as Mrs Muirden’s claim was rejected, this claim was not explicitly accounted for in the exit valuation.
The exit valuation included an amount for each financial injury year for unreported and undetermined claims, known as IBNR (Incurred But Not Reported).
For the financial injury year in which Mr Muirden’s death occurred, the amount included in the valuation for IBNR claims was $28,000 total.
It was reasonable for the ANU to consider Mrs Muirden’s claims as finalised, given over 5 years had elapsed since Comcare rejected liability, and no appeal had been made.
If liability for this claim is accepted, there is no reinsurance protection for the ANU as the reinsurance policy does not cover claims prior to 1 July 2018.
Regarding the merits of the substantive claim, ANU contended it would need to be demonstrated that Mr Muirden suffered an ‘injury’ that resulted in his death. In this regard, ANU stated that, contrary to Mrs Muirden’s contention, the claimed injury and whether it arose out of or in the course of Mr Muirden’s employment was considered and dealt with in the Determination. Despite finding in the Determination that Mr Muirden suffered an injury, ANU did not concede at hearing that Mr Muirden suffered an injury giving rise to liability. It said the question is: what caused the death of Mr Muirden and what is its relationship to his employment. ANU argued that while there is evidence suggesting a possible relationship between the employment and the death of Mr Muirden, there are significant gaps in that evidence such that the Tribunal could not be satisfied that an extension of time should be granted because the claim is not strong or even arguable. To this end, ANU said the merits of Mrs Muirden’s claim ‘do not weigh either way’.
In this regard, ANU stated that the evidence indicates Mr Muirden had a long history of undiagnosed epilepsy before commencing employment with ANU; he suffered sleep deprivation due to both his irregular work hours and his four children, making it difficult for him to sleep during the day; other factors may have contributed, such as stress, marijuana intake and poorly controlled epilepsy; he had not worked the 12.00am to 8.00am shift at ANU for five months before his death and had not worked at all for a week before his death at home in August 2011. ANU also pointed to Dr McColl’s 2018 report which noted that he ‘did not know the precise circumstances’ of Mr Muirden’s death and therefore did not know ‘whether sleep deprivation played a specific role in his case’. As a result, ANU contended, the available evidence does not establish that Mr Muirden’s death was temporally or causally related to his employment with ANU, on the balance of probabilities.[94]
[94] Respondent’s Statement of Issues, Facts and Contentions dated 12 June 2019, pages 16-17.
ANU’s contentions on New Claim
In relation to the question of whether the claim lodged in 2018 by Mrs Muirden constituted a fresh claim or a request for reconsideration, ANU cited the case of Novosel v Comcare [2017] FCA 722 (Novosel), where Perry J stated at [14] to [17] and [109] to [110] that:[95]
[95] ibid, pages 11 and 12.
a central object of the SRC Act [is] to allow progressively for ongoing relief in circumstances which accommodate changing circumstances. As, for example, Conti J (with whose reasons Heerey and Dowsett JJ agreed) explained in Telstra Corporation v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 at 273 [57]:
The stautory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) “[s]ubject to this Part” are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
(See also John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 at 571 [19] (Dowsett J); Bortolazzo v Comcare (1997) 75 FCR 385 at 388 (Heerey J); and Comcare v Simmons [2014] FCAFC 4 at [91]-[92] (Perry J).)
The making of claims for compensation is dealt with in Part V of the SRC Act. Mention has already been made of s 53 and 54 requiring appropriate notice of an injury and the making of a claim for compensation. Under s 54(2), a claim is made by giving the relevant authority a written claim in accordance with form approved by Comcare. In this regard, the Full Court observed in Lees [v Comcare [1999] FCA 753] that:
30. It is clear that Pt V of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s 54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s 54(2)(a) reflects the generic nature of a claim under the section. It is headed “Claim for Rehabilitation and Compensation”. It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.
Their Honours further explained that:
31. The claim, and the claim form, envisaged by s 54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s 54 of the Act, will ordinarily be a determination under s 14 of the Act
Part VI of the SRC Act in turn creates three tiers of decision-making for s 14 liability and with respect to the award of compensation.
(1)First, Comcare (relevantly) as the determining authority makes an initial decision under s 61.
(2)Secondly, Comcare may reconsider the s 61 determination of its own motion under s 62(1) or pursuant to a request under s 62(2) by a claimant to reconsider the s 61 determination. The reconsideration must be undertaken by a person who is independent of the initial determination under s 61 (s 62(4)). Under s 62(5), the decision-maker on the reconsideration has power to make a decision affirming, revoking or varying the initial determination. The decision under s 62 must be notified in writing with reasons (s 63).
(3)Thirdly, under s 64 of the SRC Act an application may be made, relevantly, by the claimant to the Tribunal for review of the determining authority’s decision under s 62, that decision being a “reviewable decision” as defined in s 60(1). In this regard, the Full Court held in Lee at [39] that “the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act.”
…
The applicant, however, relied upon the fact that a claimant may lodge further claims even after an adverse decision of the Tribunal in line with the object of the SRC Act to allow progressively for ongoing relief where circumstances change (see above at [14]). In other words, the Tribunal and original decision-makers did not have power to make a decision that extended beyond the date of the decision: Plumb v Comcare (1992) 39 FCR 236 (Plumb) at 240 (Lockhart J (with whose reason Black CJ and Gummow J agreed)). Thus, as Cooper J held in Australian Postal Corporation v Oudyn [2003] FCA 318 (Oudyn), a determination under a section of the SRC Act:
33. …operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
34. [The determining authority] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240.
(See also e.g. Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 134 FCR 179 at [28] (Stone J)
The short answer to the applicant’s submission, however, is that the fact that an applicant may be able to bring a further claim does not mean that if a further claim is made, it cannot constitute an abuse of process in the circumstances of the particular case: see by analogy Batistatos at [63]-[65]. Thus authorities such as Plumb and Oudyn do not assist where, as here, the Tribunal found that there was no new evidence warranting a further decision contrary to the applicant’s submission.
Having regard to the above statements in Novosel, ANU accepted that there is no statutory prohibition on Mrs Muirden lodging a further claim for ‘the same work-related death as was previously claimed and determined in 2013’.[96] However, it contended that the new claim ‘does not contain any new information or evidence that was not already before the decision-maker’ at the time of the original Determination. In this regard, ANU asserted that while the 2018 report from Dr McColl is more recent than his 2007 report, ‘the opinion expressed is the same as before’. As a result, ‘where the claim relates to the “same symptoms, disability and timeframe”, it is strongly arguable that it not be considered a “new claim” regardless of how it is framed by the employee’.[97]
[96] ibid, page 13.
[97] ibid.
ANU further contended that, having regard to the three-tier decision making process set out in the SRC Act, and ‘in the absence of any material change in circumstances’, it was the appropriate course for Mrs Muirden to pursue liability with a request for reconsideration of the Determination under section 62 of the SRC Act, rather than another primary determination under section 60.[98] ANU asserted that this position was consistent with the principles outlined in Commonwealth of Australia v Snell [2019] FCAFC 57 (Snell), where the Full Federal Court noted at [71] that:
In the ordinary course, absent some conferred statutory ability to re-exercise a power to determine a matter, once a power is exercised to determine the rights of a subject, the exercise is final and conclusive: Re 56 Denton Road, Twickenham [1953] Ch 51; Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, 289. Importantly, in respect of the power so exercised, the donee of the power is functus officio: Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, [52]. However, the schemes of the SRC Act and the Seafarers Act do not operate in that way. They are somewhat unique in that they provide for “progressive and evolving decision-making” in relation to claims for compensation. In the Seafarers Act, s 78 is an important integer of the scheme. It is an express conferral of a power to reconsider a previously made decision, granted in general discretionary terms and which is exercisable on the employer’s own initiative. It is exercisable even though a seafarer has commenced (or concluded) review proceedings before the Tribunal in respect of the original decision and the employer is not limited as to the manner in which the earlier determination might be altered. Necessarily, this removes any suggestion that the power to determine a claim is exhausted once a decision is validly made. It may, on its own initiative or on request from the employee, reconsider any previous decision.
[98] ibid.
ANU said that, while acknowledging that the SRC Act provides for ‘progressive and evolving decision-making’ pursuant to Hannaford, an essential element is ‘the power to reconsider a previously made decision’.[99] As a result, ANU contended, it was appropriate to treat Mrs Muirden’s correspondence in August 2018 as a request for an extension of time to seek reconsideration of the 2013 Determination.[100] Consequently, ANU asserted that the Tribunal should limit its review to the question of whether to grant Mrs Muirden an extension of time to request reconsideration of the Determination, pursuant to section 62(3)(b) of the SRC Act.
[99] ibid, page 14.
[100] ibid.
Relatedly, Counsel for ANU said that, on a generous interpretation of Mrs Muirden’s position regarding there being a reviewable decision before the Tribunal in relation to the new claim, ANU’s decision to not allow an extension of time in August 2018 could be classed as a primary determination refusing that new claim; ANU said it was not determining that claim, but was proceeding on the basis of it being an extension of time request in relation to the 2013 Determination. However, if the 17 August 2018 refusal letter from ANU was found to be a determination of the new claim, the next procedural step taken by Mrs Muirden was to apply for review by the Tribunal in the absence of a reviewable decision made by ANU regarding that new claim. Accordingly, the Tribunal was without jurisdiction to consider the new claim.
Mrs Muirden’s contentions on New Claim
In relation to the new claim lodged with ANU in 2018, Mrs Muirden asserted that ANU’s position, that Dr McColl’s 2018 report expresses the same opinion as his 2007 report, ‘lacks any coherence’ because:[101]
The reports of Dr McColl of 14 November 2007 predated the death by 6 years. It cannot possibly be taken into evidence on the cause of the later death. The content of Dr McColl’s later report of 2018 is not a mere duplication of the 2007 report. The report of 2018 is new and relevant evidence that was not available in 2013-2017.
[101] ibid, page 8.
Counsel for Mrs Muirden stated at hearing that Dr McColl in his 2018 report has ‘the benefit of everything that transpired’ and is ‘commenting specifically on the cause of death’. Accordingly, Mrs Muirden says, there is no abuse of process in bringing the new claim where there is new evidence and apparent merit in that claim.
CONSIDERATION
Extension of time
Under subsection 62(3) of the SRC Act, Mrs Muirden had 30 days to request reconsideration of the 2013 Determination after the day on which it first came to her attention. Mrs Muirden failed to request such reconsideration in the legislated timeframe. In August 2018, more than five years after the 2013 Determination, Mrs Muirden lodged a new claim seeking compensation for her husband’s death; she did not initially seek an extension of time to request reconsideration of the Determination.
In Beecher and Telstra Corporation Limited [1994] AATA 6 at [1], the Tribunal confirmed that a decision by a determining authority to refuse to extend time for lodgement of a request for reconsideration is reviewable by the Tribunal ‘because it is one made under s62 and thus falls squarely within the terms of the definition of “reviewable decision” in s60’.[102] The reviewable decision before the Tribunal was ANU’s refusal to grant an extension of time to Mrs Muirden to request reconsideration of the 2013 Determination.
[102] See also Sutherland, P., and Ballard, J.O, with Anforth, A., Annotated Safety, Rehabilitation and Compensation Act 1988, The Federation Press, 11th Edition, 2018, at [62.03], page 499.
In Comcare v Willems (1996) 43 ALD 253 at 258, the Federal Court of Australia held that, in relation to the question of whether to grant an extension of time to lodge a request for reconsideration of a determination, regard should be had to: the cause of, and the explanation for, the delay in the relevant party submitting the request; the relevant party’s conduct in this delay; and the consequences to the other party of the delay. The merits of the substantive request are also a relevant consideration when a determination is being made on the extension question. It has also been stated that a person seeking an extension of time ‘must place material before the Tribunal to justify the exercise of the discretion in his or her favour’.[103]
[103] Hewson and Australian Postal Corporation [1998] AATA 71 at [7].
The often quoted case of Hunter Valley Developments Pty Ltd & Ors v Minister of Home Affairs and Environment (1984) 3 FCR 344 set out principles to be considered in an application for an extension of time (albeit in relation to the Administrative Decisions (Judicial Review) Act 1977).[104] The principles underwent ‘some modification’ in Comcare v A’Hearn [1993] FCA 498 and these were subsequently set out by the then Federal Magistrates Court in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 (Phillips), as follows:[105]
[104] Per Wilcox J at 348-349.
[105] Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 at [10].
In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).
3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124: (1982) 42 ALR 283 at 287).
4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287)
5.The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) [1983] FCA 94; 47 ALR 528).
The principles regarding extension of time applications enunciated in Phillips were endorsed in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 and have been applied in numerous Tribunal decisions.
Explanation of the delay
An acceptable explanation for the delay is not a precondition to the exercise of discretion in favour of the applicant party. However, the Tribunal will not grant an extension of time unless positively satisfied that it is proper to do so.
In this regard, the prescribed period for a party to press their claim is not to be ignored. The Parliament plainly intended for there be finality in the decision making process when it legislated in the SRC Act for particular timeframes in which a party could request both reconsideration of an initial determination by a determining authority (being 30 days, under section 62(3) of the SRC Act) and, subsequently, request review by the Tribunal of a reviewable decision by that authority (being 60 days, under section 65(4) of the SRC Act, which varies the equivalent twenty eight days allowed under subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act)).
Relatedly, McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553-554 said:
Even where the cause of action relates to personal injuries…, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible...
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." (35)[106] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
[106] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635.
Upon request by the Tribunal, Mrs Muirden’s solicitors provided the following non-exhaustive sample of Tribunal decisions granting extensions of time of comparable length to that sought by their client: Lower and Comcare [2005] AATA 551 (Lower), which involved an almost twelve year extension; Batey and Minister of Immigration, Local Government and Ethnic Affairs [1991] AATA 295 (Batey), where there was an extension of over five years; and Saffioti and Comcare [2018] AATA 43 (Saffioti), which extended the relevant period by around three years. Although the provision of these authorities was to indicate that extensions of time have been granted for significant periods of time, and Mrs Muirden did not seek to rely on these cases as authority for her position, the Tribunal summarises each for completeness and by way of contrast with the current proceeding.
In Lower, the respondent refused the applicant’s claim for compensation in 1991. The applicant applied to the Tribunal for review of that decision, but withdrew the application in 1992. Over ten years later, in 2003, the applicant sought an extension of time to lodge a further application for review with the Tribunal, which found that:[107]
Objectively viewed, Mr Lower had decided not to proceed with his application and the matter was at an end. He had not done so happily or even willingly…two factors motivated him: lack of money and Mr Lower’s inability to conduct the matter himself.
In essence, Mr Lower’s position is that he thought that he was putting the matter on hold and that he could return to it when he had more information. That was not the case in so far as the Tribunal was concerned but it was open to him to go back to Comcare to make a further claim and start the proceeding again.
[107] Lower and Comcare [2005] AATA 551 at [104]-[105].
In Lower, the applicant misunderstood his appeal rights and considered that he could suspend his action and re-agitate it when armed with further evidence. Unlike in Lower, the evidence in the current proceeding did not disclose a level of ignorance on Mrs Muirden’s behalf as to her rights in relation to the Determination. Rather, the main contributing factors to the delay were her understandable grief and resulting duties as a sole parent to four children following Mr Muirden’s death. Combined with difficulties in identifying appropriate legal representation and subsequent delays on the part of her solicitors, which should not be visited upon Mrs Muirden, it was evident that she was made adequately aware of her appeal rights, but these were not acted on for a considerable period of time.
In Batey, the applicant applied in 1991 for review of a decision made in 1986 to deport him from Australia. Although the Tribunal noted that ‘there can be no question that the length of time of five years and one month between the service of the deportation order in 1986 and the lodgement of the application is considerable’,[108] it found that the applicant was not clearly alerted to his review rights at the time of the decision and, upon realisation of those rights, and although imprisoned, he had moved quickly to seek review of the deportation order. Unlike in Batey, the evidence demonstrates that Mrs Muirden was made aware of her review rights in relation to the Determination.
[108] Batey and Minister of Immigration, Local Government and Ethnic Affairs [1991] AATA 295 at [42].
In Saffioti, the Tribunal was satisfied that the applicant at all times wished to proceed with an application to review the respondent’s decision and had done everything required of her by her solicitors to enable such an application to be made. Accordingly, the applicant ‘was not responsible for the delays which have occurred’.[109] While some of the reasons for Mrs Muirden’s delay between receiving the Determination in 2013 and making a new claim in 2018 are understandable given the difficult circumstances she was placed in following her husband’s death, it cannot be said that no responsibility can be apportioned to her for this more than five year delay.
[109] Saffioti and Comcare [2018] AATA 43 at [20].
As already noted, it is not an essential pre-condition for success that an acceptable explanation for the delay be given. Mrs Muirden has provided an explanation, although the Tribunal was left uncertain as to how she could make the initial claim in March 2013 without any legal representation, but then fail to request reconsideration of the May 2013 Determination upon receiving notice of that decision, within the prescribed timeframe or at least within the months that followed (which would have required an extension of time, but also would likely have been explicable in the circumstances). The Tribunal accepts that Mrs Muirden was dealing with the aftermath of her husband’s tragic death, some eighteen months earlier, when she made her 2013 claim, including raising her children without Mr Muirden. However, there was no notification to Comcare or ANU that Mrs Muirden maintained any intention to further press her claim after the 2013 Determination, until her solicitors requested the compensation file in 2016, followed by the new claim made in 2018.
Prejudice to ANU
The Tribunal accepts that an extension of time after such a considerable delay would substantially prejudice ANU such as to weigh against the Tribunal’s exercise of its discretion to grant an extension of time to Mrs Muirden.
In Comcare v Smith [1997] FCA 140, the Federal Court held that an affidavit from a Comcare officer was evidence of prejudice to Comcare that should have been considered. In relation to the weighing of prejudice, the Court said that:[110]
The consideration of prejudice on an application to extend time is not a one-sided consideration. It is necessary to balance the prejudice which may be caused to the applicant for an extension of time if the extension is refused against the prejudice which may be caused to the other party if it is required to deal belatedly with the claim if time is extended. It is in this context that the Tribunal was required to take into account in making its decision any prejudice to Comcare arising by reason of the lateness of the application to extend time.
[110] Comcare v Smith [1997] FCA 140 (transcript at page 9), referred to in Sutherland, P., and Ballard, J.O, with Anforth, A., Annotated Safety, Rehabilitation and Compensation Act 1988, The Federation Press, 11th Edition, 2018, at [62.03], page 499.
In Berkelaar and Comcare (1997) AATA 12015, the Tribunal said that Comcare had not suffered prejudice from a five year delay because other ongoing matters involving the applicant ensured that Comcare was aware of the claim and had the relevant files and medical evidence.[111]
[111] See also Sutherland, P., and Ballard, J.O, with Anforth, A., Annotated Safety, Rehabilitation and Compensation Act 1988, The Federation Press, 11th Edition, 2018, at [62.03], page 500.
As referred to above, the Tribunal in Hewson said that the prima facie rule that proceedings commenced outside the statutorily prescribed limitation period should not be entertained ‘must give way’ if the applicant party is shown to have a good case of succeeding in its substantive claim and there is ‘little prejudice’ to the other party. In that case, the applicant’s case was found to be not strong and there was prejudice to the other party given the length of time that had elapsed.[112] In Mrs Muirden’s case, although she may have an arguable case, the Tribunal is satisfied that there would be substantial prejudice to ANU if her 2013 claim was to be reconsidered and ultimately successful. ANU outlined in detail the reasons for this prejudice as a result of it becoming self-insured under the SRC Act from 1 July 2018 and not at that stage being aware of, or accounting for, the fact that Mrs Muirden may seek to re-agitate her claim more than five years after it was determined by Comcare. ANU does not have reinsurance protection for the 2013 claim because its reinsurance policy does not cover claims prior to 1 July 2018 and Mrs Muirden’s claim was considered finalised when ANU’s workers’ compensation claims were transferred from Comcare in 2018, together with the associated claims liability funding. In this regard, from the time of the Determination in May 2013 until August 2016, when Mrs Muirden’s solicitors requested Mr Muirden’s file from Comcare, ANU was not aware that Mrs Muirden may seek to have the Determination reconsidered or her claim re-made. Moreover, nothing was communicated to ANU (or Comcare) on behalf of Mrs Muirden after August 2016 until two years later in August 2018, when the new claim was initially made to Comcare and, subsequently, ANU.
[112] Hewson and Australian Postal Corporation [1998] AATA 71 at [23].
Following the 2013 Determination of Mrs Muirden’s claim and her not requesting reconsideration of that Determination within the prescribed time, or for over five years following the end of that period, ANU was entitled to assume that no further action would be taken in relation to that claim, thus providing certainty of administration for ANU and public finances. As a result, ANU would be unreasonably prejudiced if Mrs Muirden was granted an extension of time to request reconsideration of the 2013 Determination in circumstances where there has been lengthy delay in pressing her claim and there are significant potential financial consequences for ANU.
While the Tribunal is satisfied that ANU would suffer prejudice in relation to a reconsideration of the Determination, the specific potential financial prejudice that may arise in this proceeding would presumably not arise in relation to a future determination by ANU of Mrs Muirden’s new claim lodged in August 2018, because, on the evidence of Mr Mulligan of ANU, unlike pre-1 July 2018 claims such as Mrs Muirden’s 2013 claim, ANU has reinsurance coverage for workers’ compensation claims made from 1 July 2018, such as Mrs Muirden’s new claim.
Merits of Mrs Muirden’s substantive claim
As the Tribunal stated in Lower, in considering the merits of a case, it does not need to ‘weigh contradictory evidence and make findings of fact’ when deciding whether to grant an extension of time to a party.[113] In this case, given the length of time that has elapsed and the state of the evidence, the Tribunal is in a difficult position in determining the merits of Mrs Muirden’s substantive claim. Despite the obvious difficulties with a claim regarding a death that occurred over eight years ago, the Tribunal is satisfied, on the current medical and other evidence, that Mrs Muirden has an arguable case that is not without some prospect of success, although it cannot reasonably put its view any higher at this stage.
[113] Lower and Comcare [2005] AATA 551 at [114].
Mr Muirden suffered significant seizures in 2007 and 2010, which occurred directly after he had worked three and two consecutive midnight to 8.00am shifts at ANU, respectively. Dr McColl reported that sleep deprivation was likely to have played a significant role in lowering Mr Muirden’s seizure threshold. However, there is no other expert evidence before the Tribunal and Dr McColl confirms that he has no direct knowledge of the circumstances that led to Mr Muirden’s death, including whether sleep deprivation played a specific role. Mr Muirden was also reportedly non-compliant with prescribed medication for his epilepsy and there were other known risk factors that may have heightened his likely death by seizure following an epileptic episode. Additionally, Mr Muirden had not worked the 12.00am to 8.00am shift at ANU for approximately five months before his death and he had not worked at all for eight days until that untimely death.
Notwithstanding that Mrs Muirden has what the Tribunal considers, on the available evidence, to be an arguable case, it is not satisfied that an extension of time should be granted for her to request reconsideration of the Determination in circumstances where, at over five years between the Determination and Mrs Muirden’s next substantive step in this matter (being the lodging of the 2018 claim), the length of time that has passed since the Determination is significant, including having regard to the potential financial prejudice to ANU.
The Tribunal is satisfied that the prima facie rule that claims made outside the prescribed period should not be entertained outweighs other factors in favour of granting an extension of time to Mrs Muirden to request reconsideration of the Determination. In this regard, the Tribunal is not satisfied that the presumption against deviating from the legislated timeframe should be displaced because of the significant delay between the Determination and the re-agitation of the claim by Mrs Muirden in 2018. As a result, the Tribunal will affirm the decision under review, such that the discretion to grant an extension of time for Mrs Muirden to request reconsideration of the 2013 Determination is not exercised in this proceeding.
The death of Mr Muirden was tragic and had a deep impact on Mrs Muirden and their family. The Tribunal is sympathetic to their situation and the delay that has occurred in this matter, but the proper course to now pursue its resolution is for ANU to consider the new claim and make a determination under section 61 of the SRC Act.
New claim made in 2018
As the Federal Court said in Novosel at [90], the Tribunal is limited in its jurisdiction:
the Tribunal is vested by s 43(1) with the powers and discretions of the decision-maker whose decision is the subject of the application for review. On the other hand, as the Full Court held in Lees at [39], “[t]he AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage” (emphasis added). Furthermore, those powers may be exercised under s 43(1) only “[f]or the purpose of reviewing” the reviewable decision. Thus as the Full Court also held in Lee at [37], the powers vested in the Tribunal by s 43 of the AAT Act are not powers exerciseable at large. In short, therefore, the Tribunal was required to make the correct and preferable decision at the time that it made its decision (Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286), standing in the shoes of the decision-maker from whom the application for review is brought.
In addition, Snell at [69] said, in relation to the Seafarers Rehabilitation and Compensation Act 1992, that:
When a claimant seeks review of a decision to the Tribunal under s 88 of the Seafarers Act, the review is of a “reviewable decision”, being a decision under s 78 which has reconsidered an initial decision. The employer’s initial decision made in response to a claim by an employee is not reviewable by the Tribunal. A necessary first step before the Tribunal might undertake a review is that the initial decision is reviewed by the employer under s 78. It is the latter decision which is the “reviewable decision”. When the Tribunal reviews that decision it exercises the power in s 78. Whether the decision under review was a reconsideration by the employer on its own initiative (s 78(1)) or on the request of the employee (s 78(2)) does not matter: the Tribunal stands in the stead of the employer and is invested with power to reconsider any prior decision which it had made in relation to the employee.
Applying these principles, the reviewable decision before the Tribunal was not ANU’s purported refusal to consider the new claim made by Mrs Muirden in 2018; it was ANU’s decision in August 2018 to refuse to grant an extension of time for Mrs Muirden to request reconsideration of the 2013 Determination.
The Tribunal is accordingly bound by the SRC Act to review ANU’s decision in 2018 refusing an extension of time to request reconsideration of the Determination. While the Tribunal will affirm ANU’s Reviewable Decision such that the claim originally made in 2013 by Mrs Muirden cannot progress any further beyond the Determination made by Comcare in May 2013, the Tribunal considers that, following the Tribunal’s decision, the proper course in relation to the new claim from 2018 is for ANU to proceed to make a determination, including because of the new evidence in Dr McColl’s 2018 report regarding Mr Muirden’s death and the unique nature of the SRC Act allowing for progressive and evolving decision-making on the same claimed injury.
During the more than five years since the Determination, Mrs Muirden retained solicitors (which she did not have when she made the initial 2013 claim) and sought and received a new report from Dr McColl that considered Mr Muirden’s death and its potential causes. The 2007 report from Dr McColl plainly could not consider Mr Muirden’s 2011 death. In this regard, the Tribunal accepts Mrs Muirden’s contention, based on a fair reading of Dr McColl’s 2018 report, that it contained new information or evidence regarding Mr Muirden’s death that should be considered by ANU in light of the distinct nature of the SRC Act. Additionally, as Counsel for Mrs Muirden submitted, she has suffered a great loss in her life, both emotionally and financially and it would not be in the interests of justice to deny her the ability to fully pursue her case now that she has the benefit of legal representation and medical evidence regarding her late husband’s death.
Following the Tribunal’s decision in this proceeding, the proper course for the 2018 claim is for ANU to consider it and make a determination under the SRC Act. If ANU does not accept liability for Mr Muirden’s death, then Mrs Muirden may request reconsideration of that determination within the statutorily prescribed 30 days. Although this may prove to be a circuitous path if the new claim is brought before the Tribunal at a later stage, it is the proper legislative course in circumstances where the Tribunal’s jurisdiction is limited to considering the Reviewable Decision and not the new 2018 claim that has not yet, in the first instance, been considered and determined by ANU.
Importantly, and for completeness, the Tribunal notes that Counsel for ANU confirmed that Mrs Muirden’s new claim would be considered afresh by ANU if her application before the Tribunal for an extension of time was unsuccessful. This undertaking should result in ANU considering and determining Mrs Muirden’s new claim in the normal timeframes so that some finality in this matter can be reached for Mrs Muirden, her family and ANU.
CONCLUSION
This is a difficult decision. However, the Tribunal is bound to adjudicate on the reviewable decision before it and, in relation to that matter, it is not satisfied in all of the circumstances that an extension of time should be granted to Mrs Muirden for her to request reconsideration by ANU of the 2013 Determination. However, for the reasons set out above, the Tribunal considers that ANU should make a determination on the new 2018 claim so that Mrs Muirden can have her claim for compensation for the death of her husband fully and finally resolved.
Although an exception to the normal course of events has not been made in relation to the requested extension of time for reconsideration of the Determination, the consideration by ANU of Mrs Muirden’s new claim is the preferable outcome for all concerned, weighing the interests of both parties and taking into account the applicable legislative regime. In this way, Mrs Muirden’s claim will be considered by ANU with fresh evidence regarding Mr Muirden’s death and with ANU now appropriately insured in the event that it is liable to pay compensation under the SRC Act.
DECISION
The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 2 December 2019
Date(s) of hearing: 14 October 2019 Date final submissions received: 15 July 2019 Counsel for Applicant: Mr Allan Anforth Solicitors for Applicant: Mr David Chen, Capital Lawyers Counsel for Respondent: Mr Ben Dube Solicitors for Respondent: Mr Stuart Marris, Sparke Helmore
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