O'Heir and Comcare (Compensation)

[2019] AATA 743

O'Heir and Comcare (Compensation) [2019] AATA 743 (18 April 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7089

Re:Brad O'Heir

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:18 April 2019

Place:Canberra

Pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, an extension of time is granted to 4 December 2018 for lodgement of an application for review of the reconsideration determination of 13 January 2017.

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Mark Hyman, Member

Catchwords

PRACTICE AND PROCEDURE – compensation - extension of time – relevant principles – where delay substantial – whether the applicant laboured under a disability because of his mental health condition – confusion engendered by shifting basis for respondent’s decisions – prospects of success – potential exclusion of applicant from any ventilation of relevant matters - substantial justice of the case – extension granted

Legislation

Administrative Appeals Tribunal Act 1975, ss 29, 37
Administrative Decisions (Judicial Review) Act 1977, s 11
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16, 19, 65
Limitations Act 1985 (ACT), s 30

Limitations Act 1969 (NSW), s 50F

Cases

Abrahams v Comcare [2006] FCA 1829
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn [1993] FCA 498
Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305
Wu v University of Sydney [2011] FCA 1143

Zizza v Federal Commissioner of Taxation [1999] FCA 848

Secondary Materials

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, American Psychiatric Association, 2000

Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association, 2013

REASONS FOR DECISION

Mark Hyman, Member

18 April 2019

1. This decision is about whether the applicant, Mr Brad O’Heir, should be granted an extension of time in which to lodge an application for review of a decision by Comcare. On 16 May 2013 Mr O’Heir made a claim for compensation (the earlier claim) for a psychiatric disorder (“adjustment disorder and mixed mood response”) which he said he sustained as a result of his work at the National Health and Medical Research Council (NHMRC). Comcare accepted the claim on 16 July 2013, in respect of “depressive disorder”.

2. On 29 May 2015 Mr O’Heir’s father sought payment for medical expenses from Comcare in respect of a program called Supporting Trauma and Recovery (STAR) Post-Traumatic Stress Disorder (PTSD), delivered by a Melbourne clinic. On 19 June 2015 Comcare denied the request on the basis that similar programs were available in Canberra, where Mr O’Heir lived. On reconsideration, Comcare affirmed the rejection on 28 August 2015, on the basis that Comcare had made no determination in respect of PTSD (i.e. it was not part of Mr O’Heir’s accepted condition).

3. In a series of decisions, Comcare amended the accepted condition; on 22 July 2016 Comcare made a reconsideration of own motion, amending the accepted condition to “adjustment reaction with mixed emotional features”. The delegate decided that Mr O’Heir did not suffer from PTSD. On 18 November 2016, Comcare determined that Mr O’Heir had no present entitlement to compensation in respect of his accepted condition, and affirmed that decision in a reconsideration determination on 13 January 2017. That decision would be the reviewable decision in the present matter if an extension of time is granted.

4. Mr O’Heir lodged a new claim for compensation (the later claim) in respect of PTSD on 20 February 2018. Comcare denied that claim on 28 May 2018 and affirmed that denial in a reconsideration determination dated 10 August 2018. Mr O’Heir has applied to this tribunal for review of that decision (matter 2018/5404).

5. On 4 December 2018 Mr O’Heir lodged an application with the tribunal for an extension of time to seek review of the reconsideration determination of 13 January 2017 (i.e. for review of the decision in respect of the earlier claim), lodging an application for review of the decision at the same time. Subsection 65(4) of the Safety, Reconciliation and Compensation Act 1988 (the SRC Act) sets a deadline of 60 days after the date of the reviewable decision for making an application for review by this tribunal. That deadline was reached on 14 March 2017; the application is therefore 630 days out of time.

6. The tribunal held an interlocutory hearing on 1 March 2019. Mr O’Heir was represented by Mr Thomas Maling of Elringtons; Mr Andrew Allen of HWL Ebsworth Lawyers represented Comcare. The tribunal had before it the papers provided by Comcare in matter 2018/5404 (the “T-documents” and supplementary T-documents) under section 37 of the Administrative Appeals Tribunal Act 1975; and a number of documents provided by Mr O’Heir:

   ·reports by a number of psychiatrists and psychologists dated between July 2015 and December 2016, and various medical certificates dated between November 2016 and October 2018;

   ·a statutory declaration dated 23 February 2019 by Mr O’Heir, with attachments;

   ·a statutory declaration dated 25 February 2019 by Mr John O’Heir, Mr O’Heir’s father, with one attachment;

   ·a letter from Dr Arthur Velakoulis, a consultant psychiatrist, dated 28 May 2018;

   ·a patient health summary from Gungahlin Family Healthcare, the general practice attended by Mr O’Heir, covering the period from January 2016 to January 2019.

   Each of the parties provided an outline of submissions relating to the extension.

   ISSUES

7. The only issue before the tribunal is whether an extension of time should be granted for lodgement of an application for review by this tribunal in the present matter.

   LEGISLATIVE FRAMEWORK

8. The legislation governing the grant of compensation to Mr O’Heir is the SRC Act, which provides for compensation to be paid in respect of injuries occasioned by employment. Section 5A of the Act defines an injury for the purposes of the Act, relevantly in present circumstances, as follows:

   (1)  In this Act:

   injury means:

   (a)  a disease suffered by an employee; or

   (b)  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; or

   (c)  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;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   …

9. Section 5B then reads, relevantly, as follows:

   (1)  In this Act:

   disease means:

   (a)  an ailment suffered by an employee; or
      (b)  an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   …

   (3)  In this Act:

   significant degree means a degree that is substantially more than material.

1. Section 4 defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

2. Section 14 of the SRC Act is the gateway provision for compensation within the Act’s legislative framework. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Later parts of the Act then provide for compensation to be paid in particular circumstances where specified criteria are met; in particular, section 16 provides for compensation for medical expenses and section 19 provides for payment where an injury makes an employee incapacitated for work.

3. Section 29 of the AAT Act governs the process for making applications for review. Subsection 29(1) specifies (relevantly) that the application must be made within the prescribed time; subsection 29(2) provides that, subject to exceptions not presently relevant, the prescribed time is 28 days after the decision for which review is sought is given to the applicant. Subsection 29(7) provides that the tribunal may, on written application, extend the time for making an application for review if satisfied that “it is reasonable in all the circumstances to do so”. Subsection 29(9) allows the tribunal to ensure that a person affected by an application for an extension of time is notified of the application; and subsection 29(10) requires the tribunal to hold a hearing on an extension of time application if that application is opposed by whoever was notified under subsection 29(9).

4. Subsections 65(1) and (4) of the SRC Act modify subsection 29(2) of the AAT Act by providing that an application for review of a reviewable decision under the former Act may be made within 60 rather than 28 days.

   THE FACTUAL CONTEXT

5. In the following outline, the references to T-documents and supplementary T-documents are from matter 2018/5404.

6. Mr O’Heir first lodged a claim for compensation on 16 May 2013 (ST13). The condition that provided the basis for that claim, as specified on the claim form, was “adjustment disorder with mixed mood response”, identified as “DSM 309.28”, which I understand to be a reference to an entry in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) of the American Psychiatric Association. Mr O’Heir said that his condition had arisen from his work at the National Health and Medical Research Council. He attached a detailed statement to his claim outlining the events that he regarded as having caused the condition.

7. Comcare accepted liability on 16 July 2013 for “depressive disorder”; the delegate noted that the identification of the accepted condition reflected Comcare’s preference to align such identifications with “an internationally accepted medical standard for classifying injuries” (ST20).

8. Questions regarding the proper diagnosis of Mr O’Heir’s condition began to arise in late 2014 and early 2015, when two psychiatrists identified PTSD as a possible differential diagnosis, alongside a shift in the primary diagnosis to major depressive disorder (report of Dr Keith Chee, dated 14 December 2014 (T3) and report of Dr Ash Takyar, dated 5 February 2015 (ST30)). Mr O’Heir’s general practitioner, Dr Mike Seah, supported the diagnosis of PTSD (ST29). On 29 May 2015 Mr John O’Heir (the applicant’s father) requested payment of Mr O’Heir’s expenses at the STAR clinic for treatment of PTSD (I have no direct evidence that this is how the request was made, but I am relying on information provided in Comcare’s submission; nothing turns on this point). This kind of treatment had been strongly recommended by Dr Chee, who noted in a letter to Comcare of 10 July 2015 (T7) that the program available at a Sydney centre was not suitable, no properly structured program was available in Canberra, but that the STAR program in Melbourne had his strong support.

9. On 19 June 2015 Comcare denied liability for PTSD treatment at the STAR Clinic, and affirmed that decision in a reconsideration determination dated 28 August 2015 (annexure A to Mr O’Heir’s statutory declaration). In giving reasons for the rejection, Comcare noted the new diagnostic comments by Drs Takyar and Chee, but decided that the STAR Clinic treatment was not being delivered “in relation to” the accepted condition of adjustment reaction with mixed emotional features, as required under section 16 of the SRC Act (although I note that at the time the accepted condition was in fact characterised as “depressive disorder”), but rather for a different condition for which no claim had been made, namely PTSD.

10. Comcare sent Mr O’Heir to an independent psychiatrist, Dr Derek Lovell, who provided a report dated 26 November 2015. That report is not among the papers available to me, but it is quoted in the attachment to a letter from Comcare dated 22 April 2016 (ST35) providing notice of an intention to amend the accepted condition by own-motion reconsideration. According to that attachment, Dr Lovell concluded, on the basis of the history provided, that Mr O’Heir, did not have PTSD, as in his view there was no stressor of the threat or intensity required to establish that condition. Mr John O’Heir took issue with Comcare, but on 22 July 2016 Comcare decided to change the accepted condition to “aggravation of major depressive disorder” with associated secondary conditions of “generalised anxiety disorder” and “panic disorder” (ST36). Comcare was clearly strongly guided by Dr Lovell’s report; in the course of the reasons for decision the Comcare delegate notes her view that there was no stressor of the kind required to sustain a diagnosis of PTSD.

11. On 13 September 2016 Comcare wrote to Mr O’Heir (ST38) advising of a decision that Comcare had no present liability for medical expenses and incapacity payments under the SRC Act, in respect of the accepted condition. The basis for the decision was that the work contribution to Mr O’Heir’s psychiatric condition had ceased, and that any continuing psychiatric condition arose from a pre-existing condition. Mr O’Heir requested reconsideration (ST39), addressing relevant considerations in a lengthy submission and attaching a body of medical evidence. In a reconsideration determination dated 13 January 2017 (ST41) Comcare affirmed the decision of 13 September 2016.

12. On 20 February 2018 Mr O’Heir lodged a new claim for compensation for PTSD (T25), and he lodged a second claim along similar lines on 30 March 2018 (T26). In each case substantial documentation was attached in support. On 28 May 2018 Comcare denied the claim (T31) on the basis that Mr O’Heir had not suffered a new “ailment” as defined in the SRC Act. On 7 July 2018 Mr O’Heir requested reconsideration, again attaching substantial material in support. On 10 August 2018 Comcare affirmed the decision of 28 May 2018. The delegate accepted the diagnosis of PTSD but stated that if the issues identified as causal had been previously assessed, they could not be assessed a second time; further, it could not be established whether any new set of causal circumstances contributed to the onset of PTSD. The delegate therefore decided that there was insufficient evidence that the PTSD was contributed to, to a significant degree, by Mr O’Heir’s employment.

    EXTENSION OF TIME APPLICATIONS

13. The discretion to grant an extension of time established by subsection 29(7) of the AAT Act is given in the broadest terms. Similar discretion is typically available to the courts. A body of case law has developed that sets out, non-exhaustively, the considerations that influence how the discretion is exercised (the period of 28 days for lodging an application for review set under section 29 of the AAT Act is extended by section 65 of the SRC Act to 60 days, as noted above). Among the best known of the cases dealing with these matters is Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305 in which Wilcox J set out a number of principles (that case related to an extension of time to seek judicial review of a decision under section 11 of the Administrative Decisions (Judicial Review) Act 1977 but the principles apply equally in present circumstances). Similar issues have been advanced and elaborated in other cases: see for example Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Taylor); Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown); Comcare v A’Hearn [1993] FCA 498 (A’Hearn); Zizza v Federal Commissioner of Taxation  1999] FCA 848. The principles so established include:

    ·the starting position is that an application made outside time will not in general be entertained;

    ·a shorter rather than longer delay before the application is lodged is to the advantage of the applicant;

    ·there will usually be an acceptable explanation for the delay, although there is no rule that such an explanation is an essential pre-condition;

    ·the applicant should not have “rested on his rights”, and an attempt by the applicant to continue agitation of the matter will be to advantage; the respondent ought not to have been led to conclude that the matter had been finalised;

    ·any prejudice to the respondent will militate against the grant of an extension, but mere absence of prejudice is not enough of itself to warrant a grant of extension;

    ·the merits of the substantial application are to be taken into account, although the tribunal should avoid a substantive review of the merits and limit itself to establishing whether or not an applicant has an arguable case (Brown); and

    ·fairness between the applicant and others in a similar position is also relevant.

14. These considerations are not to be applied mechanically, but according to the particular circumstances of each case. The tribunal should be guided by what the justice of the case requires (Taylor at 551; Brown at [59]). In the present matter, some of the above considerations have a greater bearing than others, but I will take them in order (apart from the threshold issue set by the first).

    Length of delay

15. The applications for an extension of time and for review of the decision were made on 4 December 2018. The 60 day period for making an application for review of Comcare’s decision of 13 January 2017 expired on 14 March 2017. The application was made 630 days out of time (the applicant’s submission states that the period is 623 days; my calculation yields 630 days, which is the period nominated by the respondent; nothing turns on the difference). The delay is certainly on the longer side, but is not in itself disentitling.

    Explanation for the delay

16. The applicant states that there were two reasons for the delay. Most emphasis has been placed on Mr O’Heir’s disability. Substantial medical evidence has been provided to demonstrate that Mr O’Heir is severely affected by his psychiatric condition, and he argues that this amounted to an incapacity that prevented him from taking organised and coherent action in his own interests. Mr O’Heir points out that relevant provisions in civil statutes, such as section 30 of the Limitations Act 1985 (ACT) and section 50F of the Limitations Act 1969 (NSW), stop time from running when, because of a disability, a person is unable to reason normally about relevant matters, consider advice and give instructions. There is no equivalent provision in the AAT Act, but Mr O’Heir argues that similar considerations should be taken into account in deciding whether to exercise the discretion to extend the time for an application in subsection 29(7) of that Act. Mr O’Heir quoted Wu v University of Sydney [2011] FCA 1143 in support.

17. A second reason for the delay offered by Mr O’Heir is that the varied basis for successive decisions in the matter caused him confusion about how to pursue his interests. On 19 June 2015 Comcare said that he had made no claim for PTSD and rejected his claim for medical expenses for the STAR Clinic accordingly; on 10 August 2018 Comcare rejected his claim for PTSD on the basis that it was the same as his earlier condition or caused by the same factors. That left Mr O’Heir uncertain how to advance his claim.

18. The respondent pointed out that any explanation relating to incapacity was only capable of acceptance up to the time at which he lodged his claim for PTSD. If he was able to lodge a new claim, he must have been equally able to seek review of a previous claim. As for the confusion regarding how to pursue his interests, that should, in Comcare’s submission, have been dispelled once Mr O’Heir engaged legal representation, who would have been able with some rapidity to discern how Mr O’Heir’s interests should best be advanced. Mr O’Heir suggested that seeking the extension of time raised complex issues and required his new legal representatives to acquaint themselves with his matter and reach a decision on whether to seek the extension. That, in his submission, accounted for the delay of 49 days that he identified between retention of legal representation and lodging the application for an extension.

    Whether the applicant rested on his rights

1. Mr O’Heir submitted that he did not rest on his rights because he undertook an intensive treatment program for his PTSD so as to put himself in a fit state to pursue his interests. On 20 February 2018 he was fit to do so, and he lodged the later claim, believing, on Comcare’s advice, that that is what he should do. Comcare argued that the lengthy delay without Comcare having contact with Mr O’Heir implies that he rested on his rights and allowed Comcare to believe that the earlier claim was spent.

   Prejudice to the respondent

2. Mr O’Heir pointed out that as the PTSD case is proceeding and will consider much of the same evidence, there is no prejudice to Comcare in the grant of an extension. Comcare submits that the opportunity for Mr O’Heir to pursue a second parallel case on different factors puts them at a disadvantage and represents prejudice to Comcare’s interests.

   The merits of the application

3. Little has been argued on this question. There is, however, a wealth of medical evidence available. It appears that Comcare may accept, at this stage, that Mr O’Heir has PTSD: the controversy appears likely to be over whether the condition has the necessary nexus with employment. A scan of the medical evidence suggests that the case is an arguable one. At the hearing Comcare conceded that the case was arguable

   Fairness between Mr O’Heir and others in a like position

4. No submissions were made on this point, beyond an assertion by Comcare that Mr O’Heir is seeking special treatment by his application for an extension.

   CONSIDERATION

5. There is no doubt in my mind that Comcare’s argument that the delay is substantial and less than persuasively explained is well taken. Mr O’Heir did not lodge his application for review until almost two years had elapsed, and although I accept that he was labouring under a disability, that cannot explain the entirety of the delay.

6. On the other hand, no-one could blame Mr O’Heir for being confused, given the shifting basis in Comcare’s handling of the claim and the requests for reconsideration. Virtually every decision in the chain appears to have a different basis, and in some cases the basis for one decision appears to be contradicted by the next. What that suggests is that the diagnosis and the questions of causation that arise from the diagnosis, are complex and possibly evolving over time, not necessarily because the condition itself is changing, but because assessments successively throw more light upon relevant factors.

7. The possibility of a diagnosis of PTSD was squarely before Comcare from late 2014, when Dr Chee made a differential diagnosis of PTSD in Mr O’Heir. It is well recognised that the SRC Act establishes a compensation scheme that is designed to deal with evolving conditions in an injured employee, whether that evolution represents better medical understanding and knowledge, or a change in the medical state of the employee: see Abrahams v Comcare [2006] FCA 1829. In Mr O’Heir’s instance a Comcare delegate decided that PTSD was a separate condition and rejected the claim for medical expenses for the STAR Clinic accordingly. Later, another Comcare delegate, making an own-motion reconsideration of how Mr O’Heir’s condition should be identified, rejected the PTSD diagnosis on the basis (it appears) of Dr Lovell’s report. In response to Mr O’Heir’s lodgement of a claim for PTSD, Comcare appears to have recognised that he has that mental health condition, but denied that it has the necessary connexion with employment. On reconsideration Comcare rejected Mr O’Heir’s PTSD claim on the basis (in part at least) that the identified causal factors had been previously assessed; but at the hearing, Mr Allen suggested for Comcare that the PTSD claim was in fact completely different from the earlier claim because it was based on completely different causal factors.

8. I note that in DSM-IV-TR depressive disorder, adjustment disorder and PTSD all occur in separate chapters. Adjustment disorder is characterised by an expectation that it will resolve once the relevant stressors are absent; PTSD may be acute or chronic, with the chronic condition expected to involve symptoms lasting more than three months. In the later edition of the manual, DSM-5, depressive disorders have a chapter of their own, and PTSD and adjustment disorder both appear in a chapter on trauma and stressor-related disorders. In DSM-5 some of the diagnostic details for PTSD are different from those in the earlier edition. This may be relevant in the present matter because a different diagnosis may throw a different light on the chronicity of Mr O’Heir’s condition

9. At the hearing Mr Allen suggested that Mr O’Heir’s two claims are based on different causal factors and so his PTSD can legitimately be taken forward separately. My understanding of what Mr O’Heir believes are causal factors is governed by the supporting statements he put in with his two claims. The statement attached to his earlier claim (ST13.2) is brief and gives the cause as “bullying and harassment”. Although there is further information relating to the making of a complaint, its investigation, and the outcome, there is little detail about the content of the bullying and harassment. The statement attached to the later claim (T25.1), on the other hand, is very detailed, and recounts at considerable length and in considerable detail the behaviour that Mr O’Heir found upsetting. But so far as I can see, what Mr O’Heir is doing in the later statement is spelling out in greater detail the events from the same period as in the earlier statement. I have no basis for concluding that the causal events are different. Further, it is a matter for medical evidence whether the events identified by Mr O’Heir are of the kind that meets the tests in the SRC Act so as to establish the necessary nexus between employment and the mental health ailment from which he suffers. I cannot see that the supporting statements establish that the PTSD claim is so different from the earlier claim that no injustice would be done by allowing it to proceed separately. I note, too that although Comcare argued that the causal events are different in the two matters, the reviewable decision in matter 2018/5404 was based in least in part on the identity of the causal factors in the two matters.

10. There is plainly a jurisdictional question whether the claim as originally made should have been recognised as extending to the PTSD condition, if the medical evidence was sufficient at any stage to support acceptance of that diagnosis. That jurisdictional point has never been argued, and cannot be argued now unless the extension of time is granted. Mr O’Heir has pointed out that if this tribunal were to decide in matter 2018/5404 that, as a question of law, Mr O’Heir should not be able to agitate his PTSD matter because it has been previously decided, he would effectively be excluded from ever having his matter heard on the merits.

11. I cannot set much store by Comcare’s assertion regarding prejudice. Matter 2018/5404 is proceeding in any case; much of the evidence and a good deal of the issues will overlap, and little prejudice will be caused to Comcare if an extension were to be granted.

12. The parties are agreed that Mr O’Heir’s case is an arguable one. That is sufficient as a basis for considering an extension of time. And there is enough about the case that sets it apart and distinguishes it from others to persuade me that no unfairness with respect to other parties will be occasioned if an extension of time were to be granted.

13. My conclusion is that although the delay is substantial, in all the circumstances it should not be regarded as excluding the grant of an extension of time, in light of Mr O’Heir’s disability and the confusion engendered by the shifting basis for successive decisions. For similar reasons, I accept that in practice Mr O’Heir should not be regarded as having rested on his rights. The deciding factor, in my mind, is that the interests of justice favour allowing the two matters to proceed. The constantly shifting basis for Comcare’s rejection of Mr O’Heir’s claims appears to put at risk the opportunity that ought to be available to him to agitate his matter. It is reasonable in all the circumstances to exercise the discretion in section 29(7) of the AAT Act and grant the extension. I recommend to the Registry that the two matters should be heard together.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

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Associate

Dated: 18 April 2019

Date(s) of hearing:     1 March 2019

Applicant:   Mr Brad O’Heir

Solicitors for the Applicant:                Mr Thomas Maling, Erlingtons Lawyers

Solicitors for the Respondent:           Mr Andrew Allan, HWL Ebsworth