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

1. The proceedings before the Tribunal are brought by Mr Thurling (the Applicant) in respect of two determinations by Comcare (the Respondent).

2. 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.

3. Persons came to his assistance and a chair was fetched for him to sit on.

   BACKGROUND

4. 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.

5. After the accident on 28 August 2007, the Applicant attended a general practitioner and a left knee sprain was diagnosed.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. However, when the Respondent determined on 26 April 2017 that it had no present liability for the right knee injury, it also determined that it would have no liability for the right shoulder condition.

15. Following these determinations the Respondent raised a debt said to be owing by the Applicant of $628,745.81 presumably because it took the view that it should not have paid anything to the Applicant for the right knee and right shoulder injuries, and that the original accepted condition of the left knee had resolved.

16. The Applicant made no representation to the Respondent in relation to the liability issues as he had no new medical evidence to present.  He did, however, seek a waiver in respect of the said overpayment bill without success.

17. On 6 February 2018, a friend alerted the Applicant to an article in the Canberra Times headed ‘Comcare using bullying tactics to recoup overpayments …’

18. On seeing the article, the Applicant went to his current solicitors for advice.

19. On 2 March 2018, an application for an extension of time to make a substantive application to the Tribunal was lodged on behalf of the Applicant.

20. On 11 September 2018 an application for an extension of time was lodged in respect of the shoulder injury.

    ISSUES

21. The issue for determination is whether either or both the Applicant’s applications for extension of time should be allowed.

    DISCUSSION

22. The Tribunal has jurisdiction to grant an extension of time pursuant to s 29(7) of the AdministrativeAppeals Tribunal Act 1975 (Cth). An Applicant must show an ‘acceptable explanation of the delay and that it is “fair and equitable in the circumstances” to extend time’ (see O’Gorman and Comcare [2017] AATA 2192 and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCA 344).

23. Matters to be taken into consideration include any prejudice to the respondent caused by the delay, the merits of the substantive applications, considerations of fairness and whether it is reasonable in all the circumstances to grant an extension of time.

24. An Applicant will be expected to give an explanation for the delay.

25. Here, the Applicant’s explanation for the delay is that he did not feel that there was anything further he could put forward before the Respondent by way of additional medical or other evidence which would change the Respondent’s determinations, or that there was any real basis upon which he could approach a lawyer. However, in less than twelve months of the determinations, and in consequence of the article in the Canberra Times, the Applicant having taken advice from lawyers, made the current applications to the Tribunal. It might be that had the Respondent not raised a debt, the Applicant may well have left matters there.

26. Once the debt was raised, the Applicant sought to have the debt waived, subsequently sought legal advice, and was appraised of his rights.

27. In considering the “delay”, one is cognizant of there being a very long history to the Applicant’s claim for compensation, with changes in relation to the Respondent’s determination of the Applicant’s “accepted” conditions and liability. In 2017 there was the raising of the debt by the Respondent, and representations to waive the debt were made by the Applicant. The debt is still alive. Accordingly, the delay must be viewed in the context of the entire history. What might be an unacceptable delay in one matter might be acceptable in another, even though the length of the delay is the same.

28. Given that the matters collectively have extended over such a long period of time and have been revisited by the Respondent on a number of occasions, and are ongoing in relation to the debt, the time frame is not as sharply delineated as might otherwise be the case.

29. Given the long history of the matter, prejudice to the Respondent is difficult to see. Any delay is a prejudice, but in practical terms, the Respondent has continued to be involved in the Applicant’s claims. It took the Respondent many years to reconsider and revoke its acceptance of liability for the right knee.

30. In hearing the Applicant’s submissions, the vigorous cross-examination of the Applicant, and exploration of the merits of the Applicant’s substantive cases, it appears to me that the Applicant’s substantive cases are certainly arguable and have some prospects of success. These considerations are relevant to the Applicant’s applications for extension of time. Matters put to the Applicant by the Respondent in cross-examination make it clear that there are real issues to be determined at a substantive hearing.

31. These include an exploration of the Applicant’s delay in reporting problems to the doctors with regard to problems in the right knee. A plausible explanation given by the Applicant was that he did not have any pain sensation in his right knee because of his incomplete paraplegia, an explanation supported by Associate Professor Fearnside.  There was exploration of the Applicant’s prior knee problems from the 1980’s, but there was an argument that those problems had resolved prior to the 2007 workplace injury.

32. It is arguable that the Applicant injured both knees in the incident on 28 August 2007.

33. The possibility that there may have been alternate reasons for the development of right knee problems was also exposed by the Respondent in that the Applicant helped a friend to paint a house following the alleged incident.  The Applicant said he had to stop the painting because of instability in his right knee.

34. There is also a statement by Janita Whish-Wilson where she says that the Applicant had been her employment supervisor and that she had never noticed the Applicant to have instability with his knees prior to 28 August 2007.

35. Matters of this sort can be argued in a substantive hearing without a determination now, but it could not presently be concluded that the Applicant has no viable case, but rather a case which has some merit.

36. There is also a statement of Gabriella Giunta, Solicitor, about the Applicant coming for legal advice and the Applicant having his rights explained to him. There appears to be no real delay in the Applicant being advised of his rights and acting on that advice.

37. At the hearing of the application it was suggested to the Applicant that he would have been aware of his rights once the Respondent had made the determination.  Whilst there is some force to this argument, the Applicant’s evidence was that he thought he didn’t have any new information to put forward about the matter.  It was the article in the Canberra Times which prompted him to seek legal advice.  He got that advice and acted promptly knowing that he could challenge the determinations and had a case to put forward on its merits.

38. 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

39. That the Applicant’s applications for an extension of time, lodged 2 March 2018 and 11 September 2018, be granted.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

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

Associate

Dated: 01 April 2021

Date(s) of hearing:	22 June 2020 and 23 July 2020
Counsel for the Applicant:	Mr J Mrsic
Solicitors for the Applicant:	Ms G Giunta and Mr J Tucker, Slater & Gordon Lawyers
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Ms S Harte