Thurling and Comcare (Compensation) - [2021] AATA 752

Thurling and Comcare (Compensation) [2021] AATA 752 (1 April 2021)
Division:GENERAL DIVISION
File Number(s): 2018/1010 and 2018/5198
Re:Bryan Thurling
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member M J McGrowdie
Date:01 April 2021
Place:Sydney

That the Applicant’s applications for an extension of time, lodged 2 March 2018 and 11 September 2018, be granted.
.......................[sgd].................................................
Senior Member M J McGrowdie
CATCHWORDS
WORKERS COMPENSATION – extension of time application – workplace injury claim – where changes to accepted conditions – where debt raised – principles to be applied – Applicant’s explanation for delay – where waiver of debt refused – where Applicant sought legal advice – where delay viewed in context of entire history – prejudice to the respondent considered – where merits of substantive application considered – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCA 344.
O’Gorman and Comcare [2017] AATA 2192
REASONS FOR DECISION
Senior Member M J McGrowdie
01 April 2021
INTRODUCTION

The proceedings before the Tribunal are brought by Mr Thurling (the Applicant) in respect of two determinations by Comcare (the Respondent).
Mr Thurling suffered injury on 28 August 2007 when he was on his way to a work conference for his employer, the Department of Families, Housing, Community Services and Indigenous Affairs, when the toe of his left foot caught on a door stop at the entrance of a hotel where the conference was being held, resulting in him lurching forward. He felt pain in the left knee.
Persons came to his assistance and a chair was fetched for him to sit on.
BACKGROUND
The Applicant had been a partial quadriplegic since age 16 as a result of a traffic accident, but normally could ambulate without assistance as at the date of the workplace accident.
After the accident on 28 August 2007, the Applicant attended a general practitioner and a left knee sprain was diagnosed.
In early December 2007 he noticed swelling of the right knee. He had no pain in the right knee, consistent with him not experiencing any pain in the right leg due to his partial quadriplegia affecting the right side.
A Magnetic Resonance Imaging scan of the right knee on 31 January 2008 showed a meniscal tear which was later arthroscopically repaired. The Applicant went on to have a right knee replacement in November 2009.
It is the Applicant’s contention that he injured both knees in the workplace accident and, whilst the left knee condition resolved, the right knee problem, which did not immediately manifest itself, developed into a significant problem.
Support is given to the Applicant in respect of him not immediately noticing the right knee problem, from Associate Professor Fearnside in his report of 27 September 2019 where he states:
For the right knee, Mr Thurling had no pain perception and the right knee injury came to attention some months later when he developed what was probably a progressive effusion with a feeling of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thurling and Comcare (Compensation)

Details

AGLC: Thurling and Comcare (Compensation) [2021] AATA 752
Case: [2021] AATA 752
Decision Date: 1 April 2021

CaseChat Overview and Summary

This matter concerned an application for an extension of time to commence proceedings before the Administrative Appeals Tribunal. The applicant, Mr Thurling, had sustained a workplace injury on 28 August 2007, initially diagnosed as a left knee sprain. Comcare accepted liability for the left knee injury, later amending this to the right knee. The applicant contended that he injured both knees in the workplace accident, with the right knee injury not manifesting immediately due to his pre-existing partial quadriplegia. This condition led to a meniscal tear and subsequent right knee replacement. Comcare later determined it had no present liability to the applicant, despite having previously accepted a consequential injury claim for the applicant's right shoulder.

The primary legal issues before the Tribunal were whether to grant the applicant extensions of time to commence proceedings, and in doing so, to consider the principles governing such applications. Specifically, the Tribunal was required to assess the applicant's explanation for the delay, the merits of the substantive application, and any prejudice to the respondent, Comcare. The applicant sought to challenge Comcare's refusal to waive a debt and to have the liability for his right knee condition clarified.

The Tribunal, presided over by M J McGrowdie SM, considered the applicant's delay in seeking extensions of time to be excusable. This was in light of the long and complex history of the claim, which involved the delayed manifestation of the right knee injury and a significant debt being claimed by Comcare. The Tribunal noted that the substantive proceedings would clarify the extent of Comcare's liability. The Tribunal applied the principles that govern applications for extensions of time, weighing the applicant's reasons for delay against the potential prejudice to the respondent and the merits of the underlying claim.

The Tribunal granted the applicant's applications for an extension of time, which were lodged on 2 March 2018 and 11 September 2018.

Orders

Orders of the court

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Background

Background to the litigation

Persons came to his assistance and a chair was fetched for him to sit on.BACKGROUND The Applicant had been a partial quadriplegic since age 16 as a result of a traffic accident, but normally could ambulate without assistance as at the date of the workplace accident. After the accident on 28 August 2007, the Applicant attended a general practitioner and a left knee sprain was diagnosed. In early December 2007 he noticed swelling of the right knee. He had no pain in the right knee, consistent with him not experiencing any pain in the right leg due to his partial quadriplegia affecting the right side. A Magnetic Resonance Imaging scan of the right knee on 31 January 2008 showed a meniscal tear which was later arthroscopically repaired. The Applicant went on to have a right knee replacement in November 2009. It is the Applicant’s contention that he injured both knees in the workplace accident and, whilst the left knee condition resolved, the right knee problem, which did not immediately manifest itself, developed into a significant problem. Support is given to the Applicant in respect of him not immediately noticing the right knee problem, from Associate Professor Fearnside in his report of 27 September 2019 where he states:For the right knee, Mr Thurling had no pain perception and the right knee injury came to attention some months later when he developed what was probably a progressive effusion with a feeling of tightness (pressure sensation) and the instability which caused him to stumble. The lack of sensation in the right leg generally does explain the lack of symptoms early, particularly pain during the initial period following the workplace injury on 28/8/07. There are therefore no inconsistencies in his presentation. On 27 September 2007 the Respondent accepted liability for sprain of the left knee, and then on 14 February 2008 amended the accepted condition from being for the left knee to the right knee. It appears from the clinical records of Dr Richard Bate that the Applicant complained on 28 August 2007 that he had suffered an injury at work that day and twisted his left knee. By 18 December 2007 the Applicant was complaining of a swollen and unstable right knee over the previous months. The notes comment that symptoms had been fluctuating. There was also a reference to previous knee arthroscopies more than 10 years prior with a Dr Stubbs. The Applicant has given evidence that his knee condition settled following seeing Dr Stubbs at that earlier time. On 26 April 2017 the Respondent wrote to the Applicant with its determination effective from 25 April 2017, that it had no present liability to the Applicant. The Applicant had also made a claim for a consequential injury condition with respect to the right shoulder which had been accepted by the Respondent. The Applicant injured his right shoulder on 17 April 2010 when he was attempting to put a wheelchair into the boot of his vehicle. This was accepted by the Respondent upon the basis of receiving ‘treatment’ for the right knee.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Overall, I consider that the Applicant’s delay in seeking extensions of time to commence proceedings is excusable given the long and complicated nature of the claim, and there is a substantial and significant debt currently being claimed by the Respondent, the liability for which will be clarified by determinations in the substantive proceedings.DECISION That the Applicant’s applications for an extension of time, lodged 2 March 2018 and 11 September 2018, be granted.

Ratio Decidendi

Legal Principle Established

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