Stapleton and Optus Administration Pty Ltd (Compensation)

[2020] AATA 1713

Stapleton and Optus Administration Pty Ltd (Compensation) [2020] AATA 1713 (11 June 2020)

Division:GENERAL DIVISION

File Numbers:         2019/8463 & 2019/8464

Re:Michael Stapleton

APPLICANT

Optus Administration Pty LtdAnd  

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Member K. Parker

Date:11 June 2020

Place:Melbourne

The Tribunal grants an extension of time to lodge applications numbered 2019/8463 and 2019/8464 to 19 December 2019.

The Tribunal orders that those two applications be linked to application numbered 2019/2886 and that all three applications be heard and decided together.

....................[sgd]....................................................

Member K. Parker

Catchwords

EXTENSION OF TIME APPLICATION – whether reasonable in all the circumstances to grant an extension of time to lodge two related applications – periods of delay were 14 months and ten months respectively – explanation for delay – workers’ compensation case with complex medical history since 2006 and previous accepted claims – existing related application for review in respect of same injury from same incident – merit of substantive applications lodged out of time – extension of time granted to lodge both applications – orders made to link two new applications to existing related application for review

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Member K. Parker

11 June 2020

1. The Applicant, Mr Michael Stapleton, has requested an extension of time to lodge two applications for review numbered 2019/8463 and 2019/8464 both in respect of reviewable decisions made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Those decisions were made in respect of an aggravation injury he sustained to his left shoulder on 24 January 2018. For the reasons set out below, the Administrative Appeals Tribunal (Tribunal) has decided to grant Mr Stapleton’s request and extends the time for lodgement of these two applications until 19 December 2019, being the date they were lodged with the Tribunal. 

2. The Tribunal also orders that those two applications be linked to an existing application presently before the Tribunal numbered 2019/2886. This existing application seeks review of a decision made on 2 April 2019 which affirmed a determination by the Respondent, Optus Administration Pty Ltd (Optus), that it has no present liability under s 16 and s 19 of the Act in respect of Mr Stapleton’s “aggravation of rotator cuff tendinosis with impingement, left shoulder” sustained on 24 January 2018.

   BACKGROUND

3. On 24 January 2018 Mr Stapleton reportedly sustained a left shoulder injury while he was moving a ladder during his employment. On 2 February 2018 he lodged a claim for compensation under the Act in respect of this injury. On 26 March 2018 Optus accepted liability under s 14 of the Act to pay compensation to Mr Stapleton for this injury in accordance with the Act and he received physiotherapy treatment on a regular basis.

4. In June 2018, Mr Ronald Haig, a consultant orthopaedic surgeon, examined Mr Stapleton at the request of Optus. Mr Haig issued a medical report dated 25 June 2018 noting that Mr Stapleton did not have any current complaints of symptoms in his left shoulder, except that pain had reportedly caused some limitation in movement. Mr Haig observed that he did not find this upon examination. Mr Haig considered that “passive modalities” were not indicated. He considered that Mr Stapleton could self-manage by performing strengthening exercises as prescribed by his treating physiotherapist.

5. Primarily based on the opinion of Mr Haig, Optus determined on 13 July 2018 that there was no present liability to pay compensation to Mr Stapleton for physiotherapy treatment under s 16 of the Act (Original Determination #1). Mr Stapleton requested that the Original Determination #1 be reconsidered. The Original Determination #1 was reconsidered and affirmed on 23 August 2018 (Reviewable Decision #1).

6. Mr Stapleton was referred to an orthopaedic surgeon, Mr Matthew Evans, for further treatment of his left shoulder in September 2018. Mr Evans issued a medical report dated 21 September 2018 opining that Mr Stapleton’s overall range of motion and rotator cuff strength was well preserved, although he had discomfort at the extremes. Mr Evans noted that a magnetic resonance image (MRI) taken of Mr Stapleton’s left shoulder had indicated an intact cuff repair with minimal tender swelling. Mr Evans concluded that Mr Stapleton suffered from degenerative arthritis of the shoulder. Mr Evans considered that Mr Stapleton had experienced symptoms arising from early degenerative arthritis in his glenohumeral joint. As a result of this examination, Mr Evans recommended that Mr Stapleton undergo a hydrodilatation procedure[1] and approval was sought from Optus.

   [1] Hydrodilatation is a procedure where a fine needle is placed into the shoulder joint and an injection is performed to stretch the joint capsule. 

7. Based on Mr Evans’ opinion, Optus decided on 19 October 2018 to deny liability to pay for the recommended hydrodilatation procedure under s 16 of the Act (Original Determination #2). Optus considered that the recommended treatment was not related to the accepted condition but would treat Mr Stapleton’s non-compensable underlying osteoarthritis condition.

8. Mr Stapleton requested a reconsideration of the Original Determination #2. Optus reconsidered the Original Determination #2 and affirmed it on 13 December 2018 (Reviewable Decision #2).

9. Optus arranged for Mr Stapleton to be re-examined by Mr Haig.  Mr Haig issued a further medical report dated 18 December 2018.  In this report Mr Haig noted that Mr Stapleton had benefited from an injection received by him in May 2018 and had good abduction of the left shoulder.  Mr Stapleton complained of not being able to hold his left arm above shoulder height for long, due to pain he was experiencing.  Mr Haig noted that Mr Stapleton had relatively minor loss of internal rotation and extension of the left shoulder only, and he recommended that he continue with a self-managed “range of motion” exercises.

10. Mr Haig considered that the hydrodilatation procedure was not indicated for Mr Stapleton because it was used to improve the range of motion in a condition known as “frozen shoulder”, which he stated Mr Stapleton did not have.  Mr Haig opined that Mr Stapleton’s symptoms were due to degenerative change in his left shoulder.

11. Mr Stapleton went ahead with the hydrodilatation procedure performed by his treating specialist, despite Mr Haig’s contrary opinion and Optus’ refusal to approve payment for this procedure. The procedure took place on 7 January 2019 and Mr Stapleton paid for it.  Mr Stapleton continued with physiotherapy treatment which was also self-funded.

    LEGISLATIVE FRAMEWORK

12. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) prescribes a general 28-day time limit for making applications to the Tribunal for review of reviewable decisions. However, by the operation of this subsection in conjunction with subsection 65(4) of the Act, the applicable time limit for a person to seek review of reviewable decisions made under the Act is 60 days.

13. Under subsection 29(7) of the AAT Act, the Tribunal has a discretion to extend the prescribed time limit for making an application for review by the Tribunal, if satisfied that “it is reasonable in all the circumstances to do so”. As a guiding principle, the time limit cannot be ignored unless there is a good reason to do so.  Special circumstances need not be shown, but the decision-making body must not grant the extension unless it is positively satisfied it is proper to do so.  The application for the extension of time must show an acceptable explanation for the delay and show that it is fair and equitable in the circumstances to extend the time – see the Federal Court of Australia decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

    CONTENTIONS

    Mr Stapleton’s Contentions

14. In submissions prepared by Mr Mark Carey, counsel for Mr Stapleton, dated 6 March 2020, Mr Stapleton contended as follows:

    12.      As to the reasons for delay, the Applicant submits as follows:

    (a)       The substantive application has a prima facie merit in that:

    (i)The decision in respect of physiotherapy treatment on 13 July 2018 was made on the basis of a medico-legal opinion supplied by Mr Ronald Haig dated 25 June 2018 but really goes not(sic) further than to express that particular surgeon’s view of a mode of treatment.  At the time the decision was made, Mr Stapleton had not yet been referred to the specialist treating orthopaedic surgeon, Mr Matthew Evans, who had performed rotator cuff tear procedure 10 year(sic) earlier.  The state of medical opinion as to the course of treatment was evolving. Further, the subsequent decision concerning hydrodilatation was not based on any medical opinion at all that contradicted Mr Evans. However, the decision confusingly referred to treatment for an underlying condition.

    (ii)Those(sic) reasoning behind those decisions could not easily be challenged by a lay person. It was not until Mr Evans(sic-Mr Stapleton?) consulted his legal advisers once the decision, subject to the application in No.2019/2886 that he was in a position to receive informed advice concerning the treatment and medical reasoning capable of answering the matters raised by the Respondent’s decision makers.  In pursuit of that proper basis for advice, the Applicant’s legal advisers obtained the opinion of the treating medical specialist, Mr Matthew Evans, orthopaedic surgeon. Who performed surgery in August 2009, hydrodilatation in later in 2009 and only got to see him again on referral in September 2018, after the first decision was made.

    (iii)Of some significance is the opinion expressed in 29 November 2019 that there was a “gradual deterioration in his shoulder” in 2018 onwards. It is expressed by the Respondent that the shoulder treatment is due to age related degeneration and the decisions concerning liability were expressed to be in relation to the last date of injury in January 2018. However, the continuing effects of all prior employment injuries is relevant to the consideration of that question, a matter not disclosed in the decisions and one that the Applicant would rely on specialist legal advice to understand the context of complex considerations in compensation liability. The decision makers did not take into account the continuing effects of the long term injury sustained on or about 27 March 2009 for which the Respondent has a liability pursuant to section 14 SRC Act. The opinion obtained from Mr David Macintosh dated 4 February 2010 to the effect that the left shoulder condition had permanent effects (T13/34) were not averted to by the Respondent and this was not in the possession of the Applicant until his legal advisers commenced the later proceedings. Those opinions were relevant and not consistent with the subsequent Haig opinion.

    (iv)The Applicant was not aware of any of these matters because the Respondent did not refer to them. It was not until the treatment was clarified and he was able to obtain legal advice concerning these matters that he could appreciate the way in which the respondent erred in its consideration of his accrued compensation rights.

    (v)There is no plausible prejudice to the Respondent because of the delay. The Respondent will deal with all the same evidence in the current application.

    (vi)The Respondent’s notice dated 16 January 2020 states that “matters arguable already covered in existing application on foot” belie any true suggestion of prejudice. The role of hydrodilatation and physiotherapy will be in evidence in the ongoing treatment from beyond the termination date of 23 April 2019. There is no suggestion of lost evidence. The questions that arise concerning medical treatment will be significantly be(sic) dependant upon the opinion of the specialist orthopaedic treater, Mr Matthew Evans, whose familiarity with Applicant extends back 10 years. That opinion was only available to the Applicant once his legal advisers were engaged in the review and received Tribunal documents. None of those opinions were disclosed prior to the time by reference in the decision. Further, it is not apparent from reading the report of Mr Haig that such opinions were provided to him to consider. His report make no reference to them and yet, in accordance with section 37 of the AAT Act, the respondent now had provided the documents as relevant to the decision under review.

    (vii)It cannot be said that the Applicant “sat on his rights” or, as alleged by the Respondent on 12 January 2020, “gave no indication of intention to review” since he sought legal advice once his rights were termination by the respondent from 23 April 2019. Tribunal review in respect of complex medical causation and treatment issues cannot easily be reviewed by applicant’s enlisting their treating practitioners without legal advice.  It was only once he was advised of the substance of the issues and the manner in which they could be challenged that AAT review could adequately be considered.

    (viii)The Respondent’s allegation that “not a substantive or significant issue in the circumstances” is at best a subjective value judgement of the Respondent. The Applicant has substantive entitlements to compensation for medical treatment which are provided for by statute which does not carry a test for what the compensation payer might consider substantive or significant.

    (b)There is no reasonable argument available to the Respondent that the granting of an extension of time will disturb other people or established practices.

15. At the hearing, Mr Carey acknowledged that the time limit was exceeded. He said that the reason why specialist legal advice was required by Mr Stapleton, in many respects, went to the nature of decision-making within this scheme. He contended that it has been apparent for some time that entitlements to compensation seemed to be artificially divided up as to nominate particular injuries or incidents. He contended that the reportage that was relied upon (and elicited), ignored all the injuries to Mr Stapleton’s shoulder that were sustained in his employment. Mr Carey contended that this went to the merits and explained why an otherwise “untutored employee” might not understand the true nature of the issues exposed for consideration by the Tribunal when exercising its jurisdiction to review.

16. Mr Carey noted Optus had suggested in its notice under s 29(10) of the Act that matters raised here were, arguably, already covered in an existing application for review on foot. However, Mr Carey said that this would not be apparent from “a review of the decision making and the way in which the decision was conceived”. He said the reports relied upon by Optus were those issued by Mr Haig and that Mr Haig had limited his consideration of the need for treatment and other matters, to what was described by him as the aggravation injury of 2017/2018. Mr Carey contended that this was not the true background and that the documents disclosed an extensive background and history of multiple injuries to both shoulders.[2]  Mr Carey contended that Mr Stapleton had been suffering injury to his shoulder due to the course of his work for some time and that Mr David Macintosh, orthopaedic surgeon, had already seen him on three occasions in respect of his right shoulder.

    [2] Mr Carey referred to the Tribunal to T-Documents T7/23 in respect of the existing application on foot which summarised the history of injuries to both of Mr Stapleton’s shoulders, with symptoms of pain reported as early as 2006. 

17. At the interlocutory hearing, Mr Carey took the Tribunal through an extensive history of injury and symptoms in respect of Mr Stapleton’s shoulders since 2006 and that there had been no earlier findings of a pre-existing underlying condition. He highlighted that there was evidence that the effects of an earlier accepted injury sustained to Mr Stapleton’s shoulder while was lifting a heavy box in 2009, was described by a medical practitioner at the time to be permanent.  Mr Carey referred to a further injury sustained in the course of Mr Stapleton’s duties on 19 February 2014, for which liability was accepted.[3] 

    [3] Refer T-Documents T20/56.

18. The Tribunal notes that Mr Stapleton saw his legal representative in May 2019, and it was not until six months later that his two applications for review were lodged with the Tribunal (i.e. date of lodgement was 19 December 2019). Mr Carey explained that Mr Stapleton’s legal representative was unable to obtain a medical opinion from Mr Evans until 29 November 2019 and part of providing legal advice to Mr Stapleton required understanding his medical history.  The Tribunal inquired as to whether Mr Stapleton’s legal representatives had written to Optus (while waiting to obtain the report from Mr Evans), to give notice that Mr Stapleton was contemplating contesting Reviewable Decisions #1 and # 2. Mr Carey stated that the did not have access to his instructor’s correspondence file (i.e. while Mr Carey was in attendance at the interlocutory hearing, which took place by telephone).  Mr Clarke, solicitor-advocate for Optus, informed the Tribunal that no such notification was provided to Optus. Mr Carey said he had only been briefed in this matter when the submissions in this interlocutory process were called for.

19. Mr Carey highlighted that the issues involved in this matter were not easy for a lay person to understand. 

    Optus’ Contentions

20. Optus opposed Mr Stapleton’s request for an extension of time and made the following contentions in support of its position:[4]

    [4] Refer pages 3 to 5 of Optus’ Contentions dated 12 March 2020.

    3.1Under the Administrative Appeals Tribunal Act 1975, the Applicant is provided with 60 days within which to seek review from the date on which he received the reviewable decisions. Accordingly, the Applicant had:

    3.1.1 Until 22/12/18 in respect of the reviewable decision dated 23/08/18, and

    3.1.2     Until 11/02/19 in respect of the reviewable decision dated 13/12/18.

    3.2. The applications in respect of both reviewable decisions were not lodged until 19/12/19, effectively:

    3.2.1 Approximately 12 months out of time on the reviewable decision dated 23/08/18, and

    3.2.2 Approximately 10 months out of time on the reviewable decision dated 13/12/18.

    3.3. In the interim, the Applicant engaged legal representation and an application was lodged (being AAT No. 2019/2886) for a separate dispute (see paragraph 1.2 above) on 22/05/19.

    3.4. It is generally established practice that a Tribunal, in considering whether to grant an extension of time, may give consideration to the factors as set out in the decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984), which are in summary as follows:

    3.4.1 Whether the Applicant has offered an acceptable explanation for the delay and whether it would be fair and equitable in the circumstances to extend time,

    3.4.2 Any action by the Applicant, apart from making the application for review, which permits a decision maker to be aware that the decisions previously made are not to be regarded as final,

    3.4.3 Any prejudice the Respondent may suffer,

    3.4.4 Any unsettling of persons other than the Respondent or of established practices,

    3.4.5 The merits of the applications, and

    3.4.6 Considerations of fairness between the Applicant and other persons in similar positions and public interest.

    3.5.      The Respondent contends as follows:

    3.5.1    The Applicant has not offered an acceptable explanation for the delay.

    (a) The Applicant’s explanation for the delay seemingly relies on the premise that he required ‘specialist legal advice’ in order to understand the circumstances surrounding his claim,

    (b) Such advice was sought and no action was taken in respect of either reviewable decision for some further 6 months. The Applicant’s legal representative had access to the ‘T’ Documents for AAT No. 2019/2886, containing all relevant information, from June 2019.

    3.5.2 The Respondent was within its right to consider the matters finalised as the Applicant took no further action in respect of the reviewable decisions after engaging legal representation.

    3.5.3 Contrary to the Applicant’s submissions, there is an unsettling of established practices should an extension be granted. It is well established practice that time limits exist for lodging review applications and the Applicant has demonstrated an understanding and appreciation for time limits in the past.

    3.5.4 The prima facie merit of the substantive applications is questionable.

    (a) The injury for which the treatment is sought, is a discrete injury sustained on 28/01/18.

    (b) The Applicant had been in continuous receipt of physiotherapy treatment since in or about March 2018, averaging two consultations per week.

    (c) Mr Ronald Haig, Consultant Orthopaedic Surgeon, in his report dated 25/06/18 (T34) noted that the Applicant had no complaints apart from some limitation of adduction however this was not found on examination. The Applicant had reportedly improved considerably. Mr Haig formed the view that passive modalities were not indicated and the Applicant should self-manage by performing strengthening exercises prescribed by his treating physiotherapist. On the basis of Mr Haig’s report, the Respondent issued the determination dated 13/07/18.

    (d) The Applicant consulted Mr Matthew Evans on 21/09/18 (T51). Mr Evans made no recommendations for continued physiotherapy, rather suggesting a hydrodilatation procedure for pain management and possible further injections in future. It was said at this time that the Applicant had some symptoms from early degenerative arthritis in his glenohumeral joint. The Applicant’s MRI scans showed an intact cuff repair with minimal tender swelling. On the basis of the information provided by Mr Evans, the Respondent denied liability for the claimed hydrodilatation procedure on 19/10/18.

    (e) A report was again commissioned from Mr Ronald Haig on 18/12/18. Mr Haig formed the view that the condition generating the Applicant’s symptoms is the degenerative change. The doctor did not see an indication for the hydrodilatation procedure given it is used for improving range of motion in a frozen shoulder which the Applicant did not have. Further, Mr Haig noted that the Applicant had relatively minor loss of internal rotation and extension only. Mr Haig reiterated that the Applicant could self-manage range of motion exercises.

    (f) The medical evidence does not support passive physiotherapy treatment nor does it support the frequency with which the Applicant was having this treatment.

    (g) Further, the medical evidence supports the contention that the Applicant’s symptoms are generated by an underlying degenerative condition for which liability has not been accepted. The proposed hydrodilatation procedure has been said to treat this condition, albeit there is a difference in opinion between Mr Evans and Mr Haig as to the appropriateness of such treatment which is utilised for management of frozen shoulder with attendant restrictions on range of motion.

    CONSIDERATION

    Explanation for the delay and whether Mr Stapleton rested on his rights

1. The 60-day time limit for lodging an application for review with the Tribunal expired on 22 October 2018 in respect of Reviewable Decision #1; and 11 February 2019 in respect of Reviewable Decision #2.  The applications for review were lodged by Mr Stapleton on 19 December 2019.  This meant that the length of the delay by Mr Stapleton in lodging the application for review was about 14 months in respect of Reviewable Decision #1 and ten months in respect Reviewable Decision #2. 

2. Delays in the order of ten months and 14 months respectively, are considered by the Tribunal to be considerable delays. It was for this reason that the Tribunal spent a significant amount of time with the parties at the interlocutory hearing to gain a full understanding about what had caused such considerable delays, particularly in circumstances that during part of the period of delay Mr Stapleton was legally represented.

3. The Tribunal is satisfied from the explanation provided by Mr Carey at the interlocutory hearing as to the broader context of the challenging circumstances that Mr Stapleton found himself in during this period of delay.  In this case, there is an extensive and complex history of injuries involving both of Mr Stapleton’s shoulders and several earlier accepted claims for those injuries. There is also another application for review on foot in relation to a “no present liability” decision concerning the same injury arising from the same incident. Further, there is an element of inherent complexity associated with cases involving shoulder injuries due to the highly complex anatomical nature of the shoulder joint and its supporting ligaments, tissues and other structures. This usually requires there to be a solid base of medical evidence available upon which legal advice may be provided to enable a person to decide whether they should challenge a decision (and if so, which decision) made to deny either general or specific liability under the Act.

4. It is apparent that Mr Stapleton (and his legal representatives once they started acting for him) had been tardy in exercising his rights to review the decisions made to deny payment for certain medical and physiotherapy treatment undertaken by him.  However, the Tribunal accepts that some part of the delay might be explained by the delay of many months occasioned between the time Mr Stapleton engaged a legal representative and when he received advice about whether to review those decisions, while waiting to obtain a medical report which was intended inform that advice.  Mr Stapleton’s legal representatives should have at the very least, as soon as they were first instructed by Mr Stapleton, put Optus on notice that its previous decisions might be challenged. There is certainly a component here of Mr Stapleton resting on his rights, but it was not clear whether, at the time, Mr Stapleton himself understood he was doing so, as there was another application properly on foot before the Tribunal in respect of the same injury for the same incident. 

5. The Tribunal discourages the slow-paced approach taken by Mr Stapleton (and his legal representatives after they first started to act for him), in asserting his review rights. However, the Tribunal is satisfied given the complexity of the context that Mr Stapleton found himself in, that there was an acceptable explanation due to the unique circumstances of this case for his considerable delay in lodging these two applications for review. 

6. On balance, the Tribunal does not consider that the considerable delays occasioned in this case are a factor that should weigh against granting an extension of time to Mr Stapleton.

   Prejudice to Optus

7. The Tribunal notes Optus’ general contention that it was within its right to consider the matters finalised because Mr Stapleton took no further action in respect of the reviewable decisions after he engaged legal representation. 

8. Optus did not point to any specific circumstances in respect of Mr Stapleton’s case to show that it would suffer prejudice if an extension of time was granted to him. 

9. Mr Carey contended that these two applications, if allowed to proceed, would not add significantly to the evidence that the Tribunal would need to traverse in order to deal with the existing application on foot in respect of the “no present liability” decision. Given the complexity of the history of Mr Stapleton’s issues with his shoulders since 2006 and the fact that these three applications all deal with injuries to his left shoulder arising from the same incident, the Tribunal accepts Mr Carey’s contention in this regard and considers that it weighs in favour of granting an extension of time to Mr Stapleton.

   Wider prejudice to the general public in terms of disruption to established practices

10. The Tribunal considers that the general public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty, if an extension of time to lodge an application is granted where the justice of the case does not permit that this should occur. 

11. As mentioned above, the length of the delay in this case was considerable in respect of Reviewable Decision #1 and #2.  There have been many cases decided by this Tribunal where the delay has been shorter than the delay in Ms Stapleton’s case, where the Tribunal has refused to grant an extension of time to lodge an application for review.  However, there have also been cases involving decisions made in the workers’ compensation context, where extensions for such delays, or longer, have been granted.

12. There were no specific examples put before the Tribunal by Optus to show comparable cases where extensions were not granted by the Tribunal after delays in the order of ten or 14 months, as in this case.   For this reason, it is difficult to be satisfied that by granting an extension, others might be unsettled by perceptions of unfairness and uncertainty were the Tribunal to grant an extension of time to Mr Stapleton. 

13. On balance, the Tribunal does not consider that this factor weighs against granting an extension of time to Mr Stapleton.

    Merits of the substantive applications

14. Optus contends that the merits of Mr Stapleton’s substantive applications are “questionable” and points to medical evidence that it has commissioned in support of that proposition as set out above. Mr Stapleton disputes this and contends that it has good prospects of success.  Mr Carey highlighted that the decision-maker had failed to take into consideration the very significant history of previous accepted claims by Mr Stapleton for shoulder injuries.   Mr Carey also highlighted that there was medical evidence which was inconsistent with opinions expressed by Optus’ proposed medical witnesses in relation to whether the hydrodilatation procedure was indicated.  The Tribunal also notes that Mr Stapleton underwent this procedure and the physiotherapy treatment before and after it.

15. It would be dangerous for the Tribunal to stray too far in seeking to judge the prospects of complex workers’ compensation applications such as these.  The complexity of the substantive applications are highlighted by the fact that they will necessarily involve, in the opinion of the Tribunal, a detailed consideration of a significant history of previous claims for injuries sustained by Mr Stapleton to the same part of the body and which involve disputation between the parties and their respective medical witnesses as to key medical findings.  Any assessment made by this Tribunal about the merits of these two applications at an interlocutory stage would hold little value.  However, the Tribunal is satisfied from a cursory consideration of the evidence referred to by the parties at the interlocutory hearing, that Mr Stapleton prospects of success in the substantive applications could not be fairly described as hopeless or poor.

16. The Tribunal considers that this factor weighs in favour of granting an extension of time to Mr Stapleton given the beneficial nature of the workers’ compensation scheme.

    CONCLUSION

17. In conclusion, the Tribunal accepts Mr Stapleton’s explanation for the delays in lodging his applications.  The Tribunal is satisfied that the prospects of success of those applications could not fairly be described as hopeless or poor and that the other factors referred to above, do not weigh against granting an extension of time in this case.  The evidence to be considered in dealing with these substantive applications will overlap significantly with the evidence to be considered as part of dealing with the existing related application already before the Tribunal.

18. Accordingly, the Tribunal decides to grant an extension of time in relation to the lodgement of Mr Stapleton’s applications for review numbered 2019/8463 and 2019/8464 to 19 December 2019.  Further, the Tribunal orders that those two applications be linked to Mr Stapleton’s existing application for review numbered 2019/2886 and all three applications will be heard and decided together. 

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

...........[sgd].............................................

Associate

Dated: 11 June 2020

Date of hearing:

18 March 2020

Counsel for Applicant:

Mr Mark Carey

Solicitors for Applicant:

Advocate for Respondent:

Solicitors for Respondent:

Gordon Legal

Mr Damian Clarke

McInnes Wilson Lawyers