Smith and Comcare

[2003] AATA 452

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 452

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   T2002/60

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GEOFFREY WILLIAM SMITH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date20 May 2003

PlaceHobart

Decision The Tribunal dismisses the application.

[Sgd S P Estcourt]

Deputy President

CATCHWORDS

Workers' compensation - Veterans - injury to toe in 1987 - reviewable decision May 2001 - application for extension of time 12 months later - explanation for delay.

REASONS FOR DECISION

20 May 2003 Mr S P Estcourt QC., (Deputy President)          

1. This is an application by Geoffrey William Smith for an extension of time pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 (“the Act”), filed on 22 May 2002. 

2.      The decision which is sought to be reviewed was a decision dated 27 May 2001 affirming a determination made by the respondent on 18 September 1995 refusing a claim dated 3 May 1995 in respect of an injury to the applicant’s left big toe which had occurred on 31 May 1987. 

3.      The applicant served in the Australian Army from 27 April 1987 until 27 December 2000. 

4.      On 3 May 1995 the applicant made a claim for compensation in respect of an injury to his left big toe, which he originally said he sustained during the afternoon of 1 June 1987 while playing sport with the Army.  He was running for a soccer ball in a game at 1RTB Kapooka. 

5.      It is now apparent that the injury occurred on 31 May 1987 and that the applicant sought treatment on the following day of 1 June 1987.  Nothing turns on this. 

6.      Liability to pay compensation for the applicant’s injury was denied by determination dated 18 September 1995 on the grounds that medical records indicated that the injury occurred on a Sunday, and that the applicant had failed to provide requested material relating to his approval to participate in a soccer game on a Sunday, and that he had not provided witness statements as requested. 

7.      The determination was accompanied by a “notice of rights” which informed the applicant of his right to request a re‑consideration of that determination.

8.      On 4 April 2001, the respondent treated a letter it received from the applicant as a request for a re‑consideration of the determination dated 18 September 1995.  The ensuing reviewable decision in this case, dated 20 May 2001 affirmed the earlier determination on the grounds that there was insufficient evidence to establish that the injury arose out of or in the course of military service. 

9.      That reviewable decision was sent to the applicant and enclosed with it was information about the applicant’s rights to apply to this Tribunal for a review of the decision. 

10.     No application for review was made until 22 May 2002.  The application for an extension of time was made on the same day.

11.     The delay, which is incumbent upon the applicant to explain, therefore is one of almost a year. 

12.     The applicant in my view has a reasonable prima facie case.  He explained to the Tribunal in correspondence that the incident in which his left big toe was injured did occur on a Sunday, but that was normal for persons involved in recruit training which was carried out on a 7 day a week, 24 hour a day schedule.  The sport he was engaged in was organised sport, which required no approval and in fact he was required and directed to participate.

13.     On the question of prejudice, it is plain that the respondent could experience difficulty in locating witnesses and records relating to an injury which occurred some 16 years ago.  In my view however, any prejudice must be demonstrated to have arisen as a result of the applicant’s delay in failing to apply to this Tribunal for a review of the reviewable decision of 27 May 2001.  I am not prepared to find that the respondent has suffered any significant prejudice as a result of the delay in that 12 months period. 

14.     The applicant in his correspondence to the Tribunal explained his delay on the basis that he was under severe stress from other claims in respect of compensable injuries for which he had sought medical help, and he had been advised by his medical officer, Dr Cooke, not to proceed.  He also noted that his advocate was away on holidays “at that time” and couldn’t be contacted.  He also stated that it was his mistaken belief that this matter was not urgent. 

15.     The applicant’s advocate, Mr Fitz, was present at the hearing of this application and confirmed that he had certainly not been on holiday for a period of 12 months.  I therefore confine my consideration of the applicant’s explanation for his delay to his claims of stress and mistake. 

16.     During the 12 months of the applicant’s delay, he was demonstrated by the respondent on the hearing of this application to have pursued other claims for compensation in relation to his teeth and gums in June 2001, in relation to permanent impairment resulting from body rash and low back injury in June 2001, and in respect of injury to his nose, scapular, shoulder and back in June 2001.  The applicant’s advocate confirmed that those claims would have been made by Mr Smith and not by him. 

17.     I am not prepared to accept as a reasonable explanation for the delay of 12 months that Mr Smith was under a mistaken belief that the matter was not urgent.  He had never indicated any difficulty previously in pursuing re‑considerations of adverse decisions including the present decision, and the reviewable decision sent to him was accompanied by information relating to the time open to him in which to make an application to this Tribunal. 

18.     Neither am I prepared to accept as a reasonable explanation for his delay the fact that he was suffering from stress as a result of his various compensation claims.  He was plainly able to pursue claims for permanent impairment in respect of other injuries and signed various forms associated with them.  In my view, he was capable of understanding the information provided to him in relation to the review of the decision in relation to his big toe, and to have lodged an appeal to this Tribunal had he wished. 

19.     In addition to Mr Smith’s Repatriation Commission pension under the Veterans Entitlements Act 1986 and his superannuation pension from Comsuper, he is also in receipt of incapacity payments from the respondent in respect of other claims calculated on the basis that he is totally incapacitated. 

20.     Although the applicant’s advocate said that he thought that there was some benefit to be gained in pursuing Mr Smith’s claim in respect of his left big toe because there was “a different range of medical treatments” if that claim were accepted, I have great difficulty in seeing how Mr Smith would be significantly advantaged by succeeding in respect of this claim.  That he pursued other claims and not this one, leads me to infer that he had also arrived at that view and had been content until recently not to pursue the matter.

21.     In all the circumstances, I decline to exercise my discretion to extend the applicant’s time for a review of the reviewable decision dated 27 May 2001.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  1 May 2003
Date of Decision  20 May 2003
Representative for the Applicant    Mr R Fitz
  Launceston RSLA Branch
Counsel for the Respondent     Ms A McMahon
Solicitor for the Respondent     Australian Government Solicitors