Turner and Comcare (Compensation) - [2021] AATA 2844

Turner and Comcare (Compensation) [2021] AATA 2844 (13 August 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2708
Re:Carol Turner
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:13 August 2021
Place:Canberra

The decision under review is affirmed pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
.................................[sgd] ...........................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – where the Respondent refused a request for an extension of time – application for extension of time two years after determination – explanation for the delay - whether the Respondent is prejudiced by delay – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 29, 34D, 34J, 43
Administrative Decisions (Judicial Review) Act 1977
Safety, Rehabilitation and Compensation Act 1988 ss 5B, 14, 16, 19, 54, 60-62, 64-65
Cases
Beecher and Telstra Corporation Limited [1994] AATA 6
Bernobich and Novion Property Group (formerly Colonial First State Property Management Pty Ltd [2016] AATA 92
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Carvalho and Comcare [2019] AATA 1130
Comcare v A’Hearn [1993] FCA 498
Comcare v Smith [1997] FCA 140
Comcare v Willems (1996) 43 ALD 253
Dix v Client Compensation Tribunal [1993] VicRp 21
Doyle v Chief of Staff [1982] FCA 124
Hewson and Australian Postal Corporation [1998] AATA 71
Hunter Valley Developments Pty Ltd & Ors v Minister of Home Affairs and Environment (1984) 3 FCR 344
Lower and Comcare [2005] AATA 551
Lucic v Nolan (1982) 45 ALR 411
Muirden and Australian National University [2019] AATA 5163
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Ralkon v Aboriginal Development Commission [1982] FCA 153
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628
Thompson and Comcare [2019] AATA 714
Wedesweiller v Cole (1983) [1983] FCA 94
Secondary Materials
Sutherland, P., and Ballard, J.O, with Anforth, A., Annotated Safety, Rehabilitation and Compensation Act 1988, The Federation Press, 11^th Edition, 2018
REASONS FOR DECISION
Member W Frost
13 August 2021
INTRODUCTION

This proceeding concerns the review of a decision made by Comcare refusing to grant Ms Carol Turner an extension of time for her to request reconsideration of a determination it made in 2017. That determination refused Ms Turner’s claims for time off work between September 2016 and June 2017. Ms Turner failed to request a reconsideration of this determination by Comcare within the 30 day timeframe required by section 62 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
More than two years later, Ms Turner requested an extension of time to seek reconsideration of Comcare’s determination. Comcare declined to grant such an extension. Ms Turner subsequently applied to the Administrative Appeals Tribunal (Tribunal) for merits review of that decision. Following the consent of the parties, and pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal reviewed Comcare’s decision by considering all submissions and evidence and without holding a hearing.
The Tribunal is satisfied the parties have been given a reasonable opportunity to present their respective cases in this proceeding in accordance with section 39 of the AAT Act. In this regard, each party provided the Tribunal with at least three separate written submissions for its consideration. A recent set of submissions from Comcare included its response to the Tribunal’s questions regarding various matters arising from the Tribunal’s review of the documentary evidence. Understandably, Comcare’s submissions resulted in a request from Ms Turner to be granted time to provide further submissions. As result, the Tribunal made a direction for the parties to provide final submissions on which they intended to rely in this proceeding by 4 August 2021, before the Tribunal completed its review pursuant to section 34J of the AAT Act. Both parties provided their final submissions by this date, following which the Tribunal concluded its review.
ISSUE
The issue before the Tribunal is whether to grant Ms Turner an extension of time to request reconsideration of the determination by Comcare pursuant to section 62 of the SRC Act.
BACKGROUND
In 1999, Ms Turner commenced employment with the Australian Bureau of Statistics (ABS).[1]
[1] Exhibit R1, T6, page 24.
In February 2008, Ms Turner submitted a workers’ compensation claim to Comcare in relation to ‘pain in right shoulder to deltoid and wrist related to recent workload pressures and consistent with overuse syndrome’. She said the injury mostly affected her right shoulder, arm, wrist and neck.[2]
[2] Exhibit R1, T6, page 18.
In May 2008, Comcare accepted liability to pay compensation to Ms Turner for her workplace injury pursuant to section 14 of the SRC Act.[3] Comcare described Ms Turner’s injury as being ‘specified sites of sprains & strains (right) (neck / shoulder and arm)’. Comcare determined that, pursuant to section 5B of the SRC Act, Ms Turner had suffered a ‘disease’ that was contributed to, to a significant degree, by her employment. Comcare stated that it would accept medical treatment claims resulting from the injury up to and including 14 April 2008 under section 16 of the SRC Act and would accept time off work claims between 18 and 25 February 2008 and also from 13 to 14 March 2008 under section 19 of the SRC Act. Comcare’s determination noted that any further claim for medical treatment or time off work after these periods of time would require additional medical evidence.
[3] Exhibit R1, T15, pages 52-62.
For approximately eight years, between 2008 and May 2016, Ms Turner received compensation from Comcare for discrete periods of incapacity for work pursuant to section 19 of the SRC Act.[4]
[4] Exhibit R2, T44, pages 218-224.
In July 2016, Ms Turner fell at home and sustained a fracture of her right elbow resulting in right radial head replacement surgery on 22 July 2016.[5]
[5] Exhibit R1, T22, page 96; and page 5 of Appendix E to ‘Applicant’s Response to Respondent’s Amended Submissions dated 26 March 2021’, dated 5 July 2021.
On 30 September 2016, Ms Turner began a graduated return to her normal work hours, which continued until June 2017.
Between 17 January and 7 June 2017, Ms Turner lodged ‘Claim for Time off Work’ forms with Comcare for the following periods between September 2016 and June 2017: 30 September 2016 to 11 November 2016; 28 November 2016 to 22 February 2017; 14 March 2017 to 30 April 2017; and 3 May 2017 to 3 June 2017.[6] The accompanying medical certificates diagnosed Ms Turner with ‘regional pain overuse syndrome’, described as ‘regional pain shoulder syndrome right shoulder neck C5/6 distribution’.
[6] Exhibit R1, T42, pages 162-208.
On 26 June 2017, Comcare determined that from that date it had no present liability to pay compensation to Ms Turner for medical expenses, incapacity payments or household and attendant care services under the SRC Act in relation to her condition (First Determination).[7] The First Determination was titled ‘Determination of no present liability’ and noted that, following a discussion with Ms Turner on 30 May 2017, it had not received any further medical evidence in support of her compensation claim. The First Determination is not the subject of this proceeding, but is further referred to below in these reasons.
[7] Exhibit R1, T24, pages 109-111.
Relevantly for this proceeding, in a second determination also dated 26 June 2017, Comcare declined liability to pay incapacity payments pursuant to section 19 of the SRC Act in relation to Ms Turner’s claims for time off work from 30 September 2016 to 3 June 2017 (Second Determination).[8] The Second Determination is the subject of this proceeding. It was titled ‘Claim for time off work declined’. Both the First Determination and the Second Determination were conveyed by email to Ms Turner in one attachment on 26 June 2017. The letter comprising the Second Determination relevantly stated that: ‘If you/your employer disagree with this determination you have the right for it to be reviewed. Please refer to the attached Notice of Rights or see ‘Assistance and Further Information Options’ at the end of this letter’ [emphasis in original].[9] At the end of the letter, under the heading ‘Assistance and Further Information Options’, it stated that: ‘If you disagree with a determination made by Comcare you may request a reconsideration within 30 days of receiving it’.[10] There was no ‘Notice of Rights’ document attached to the email sent from Comcare to Ms Turner.[11]
[8] Exhibit R1, T25, pages 112-113.
[9] ibid., page 113.
[10] ibid.
[11] Annexure 1 to the Respondent’s Submissions in Reply dated 26 July 2021.
On 27 June 2017, the day after the two determinations were sent to Ms Turner, Comcare reported that she discussed both the First Determination and the Second Determination with her claims manager at Comcare. The claims manager recorded in their ‘Claims Comments Report’ that Ms Turner ‘requested for clarification regarding CTOW [claim for time off work] and NPL [no present liability] determinations dated 26.06.2017’.[12] Comcare’s records also note that the reconsideration process was discussed ‘in detail’ with Ms Turner; she was advised she had 30 days to provide a written request.[13]
[12] Exhibit R2, T43, page 214.
[13] ibid.
On 6 July 2017, Ms Turner’s then legal representative wrote to Comcare as follows regarding the First Determination: ‘We refer to your delegate’s determination of No Present Liability dated 26 June. We seek reconsideration’.[14] The correspondence from Ms Turner’s representative to Comcare did not refer to, or request reconsideration of, the Second Determination regarding Ms Turner’s claims for time off work between September 2016 and June 2017. Comcare was asked to not make a reconsideration decision until it had considered a medical report Ms Turner’s representative had requested that day from Dr Garth Eaton, Occupational Physician. The briefing letter to Dr Eaton dated 6 July 2017 was attached, together with both determinations, and Ms Turner’s email address was copied into both the letter to Dr Eaton and to Comcare.[15]
[14] Exhibit R1, T26, page 114.
[15] ibid., pages 114-119.
On 10 July 2017, Comcare agreed to an extension of time for Ms Turner to request a reconsideration of the First Determination to allow her to provide the foreshadowed report from Dr Eaton by 26 August 2017.[16]
[16] Exhibit R1, T27, page 120.
By late July 2017, Ms Turner had not requested a reconsideration of the Second Determination within the requisite 30 days after the day she received it, pursuant to subsection 62(3) of the SRC Act.
On 14 August 2017, Ms Turner’s representative formalised her request for reconsideration of the First Determination and enclosed a copy of Dr Eaton’s report dated 26 July 2017.[17]
[17] Exhibit R1, T28, page 122.
On 15 August 2017, Comcare acknowledged receipt of the ‘request for reconsideration of the determination dated 26 June 2017, which declined Ms Turner’s present entitlements for medical expenses and incapacity payments’, being the First Determination.[18]
[18] Exhibit R1, T29, pages 133-134.
On 1 September 2017, the ABS, as Ms Turner’s employer, provided a requested response to Comcare and submitted that the First Determination was correct pursuant to the SRC Act.[19]
[19] Exhibit R1, T30, pages 135-136.
On 11 September 2017, Comcare affirmed the First Determination.[20]
[20] Exhibit R1, T31, pages 137-140.
On 9 November 2017, Ms Turner applied to the Tribunal for review of Comcare’s reconsideration decision in relation to the First Determination, which became Tribunal application number 2017/6629 (2017 Proceeding).[21]
[21] Exhibit R1, T32, pages 141-142.
In February 2018, Ms Turner submitted a separate workers’ compensation claim to Comcare for ‘right trapezius injury and aggravation to right elbow injury’ due to an incident at work. Following both a determination and reconsideration by Comcare rejecting this claim, Ms Turner applied to the Tribunal for review, which became Tribunal application number 2018/2295 (2018 Proceeding). The 2018 Proceeding was joined to the 2017 Proceeding.
On 29 January 2019, Ms Turner enquired with Comcare about her eligibility for incapacity payments prior to their cessation in 2017.[22] Comcare suggested Ms Turner email her enquiry for it to provide a considered response.
[22] Exhibit R2, T43, page 210.
On 11 February 2019, Ms Turner emailed Comcare seeking ‘clarification regarding my incapacity payments prior to 26 June 2017 when I received no current liability advice from Comcare’, including clarification of ‘what incapacity claims were submitted prior to 26 June 2017, what action has taken place and what decision was made and why’.[23] Ms Turner also sought confirmation of the last incapacity payment she received from Comcare.
[23] Exhibit R1, T33, page 143.
On 1 March 2019, Comcare responded to Ms Turner’s request regarding her incapacity payments, relevantly as follows:[24]
Comcare has paid incapacity to the Australian Bureau of Statistics (ABS) from 14 February 2008 to 9 May 2016. We have received Claim for Time of [sic] Work (CTOW) Forms for the following periods around this date of:
1. 30 September 2016 [to] 11 November 2016
2. 28 November 2016 [to] 22 February 2017
3. 08 March 2017 [to] 14 June 2017
Comcare has not paid these periods.
There were two determinations of 27 [sic] June 2017. One was a denial of incapacity and medical entitlements for the period of 30 September 2016 to 13 March 2017 and the No Present Liability determination from 26 June 2017. You requested a reconsideration of the determination of No Present Liability which was affirmed at reviews [sic] and is now at the Administrative Appeals Tribunal (AAT) to decide.
[24] Exhibit R1, T34, page 144.
On 13 August 2019, Ms Turner attended a conciliation conference held by the Tribunal in relation to the 2017 Proceeding and the 2018 Proceeding.
On 17 August 2019, Ms Turner requested an extension of time from Comcare in order for her to seek reconsideration of the Second Determination from 26 June 2017, which denied her claim for time off work between September 2016 and March 2017, being the subject of this proceeding.[25] Ms Turner indicated by email that she had ‘incorrectly thought’ the Second Determination was before the Tribunal and ‘included in the AAT conciliation conference’ for the 2017 Proceeding and the 2018 Proceeding. Ms Turner stated that at the Tribunal’s conciliation conference she was ‘surprised to find that incapacity payments for time off work prior to 26 June 2017 were not included’ after reviewing the documentation from that time, which was ‘contained within the one pdf’, she ‘realised for the first time that I have previously misunderstood the fact that this contained 2 determinations which should have both been included for review and reconsideration’. To support her request, Ms Turner set out the ‘extenuating family circumstances’ she was experiencing that impacted her capacity to ‘fully comprehend the determination and its contents’ and said that:[26]
I would appreciate leniency regarding this request for extension under the circumstances and would like this determination reviewed and reconsidered using the same reasons submitted to Comcare and the Tribunal for the first determination and, moreover, noting that I had a legitimate expectation that the retrospective denial would be revisited as a matter of procedural fairness and natural justice.
[25] Exhibit R1, T35, page 145.
[26] ibid.
On 18 August 2019, Ms Turner provided a formal, signed statement seeking an extension of time from Comcare for her to request reconsideration of the Second Determination.[27]
[27] Exhibit R1, T36, pages 146-147.
On 30 August 2019, the Tribunal made a decision in the 2017 Proceeding and the 2018 Proceeding in accordance with an agreement pursuant to section 34D of the AAT Act as to the terms of a decision of the Tribunal reached between Ms Turner and Comcare in the course of the aforementioned conciliation conference.[28] The terms of agreement were lodged with the Tribunal on 22 August 2019. Ms Turner agreed to a decision in the 2017 Proceeding, affirming the decision under review, that Comcare had no present liability from 26 June 2017 to pay her compensation for medical expenses or incapacity payments under the SRC Act in relation to her previously accepted condition. The parties also consented to a decision in the 2018 Proceeding that Comcare was liable to pay her compensation under the SRC Act for the separate 2018 workplace injury.
[28] Exhibit R1, T37, pages 148-149.
On 7 February 2020, Comcare granted Ms Turner an extension of time to lodge a request for reconsideration of the Second Determination dated 26 June 2017, which declined incapacity payments for Ms Turner’s time off work between September 2016 and June 2017 and is the subject of this proceeding. The letter from Comcare relevantly stated that:[29]
[29] Exhibit R1, T39, pages 155-156.
Extension of time to submit a request for reconsideration
You have requested that Comcare extend the date of lodgement for a reconsideration of the determination dated 26 June 2017, which declined incapacity payments between the period of 30 September 2016 and 3 June 2017 under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
You have told us the reason for this is due to the fact that you originally were of the understanding that this decision was included in the reconsideration decision dated 11 September 2017, however the AAT have recently informed you that this decision was not included and therefore unable to be disputed as part of your current AAT Case.
This letter is to confirm that your request for extension has been granted. The new date the reconsideration request must be submitted is: 9 March 2020.
If you are unable to meet this timeframe, please call Disputed Claims on 1300 366 979 to discuss. Comcare will only undertake a reconsideration once your request is received.
On 7 February 2020, being the same day as the abovementioned letter from Comcare granting an extension of time for Ms Turner to request reconsideration of the Second Determination, Comcare emailed her relevantly as follows:[30]
I have spoken to my senior manager today about our discussion this morning.
I was not aware at the time of the timeframe of the decision being 2017 and the process of your AAT case. Taking these factors into consideration I am not actually able to grant an extension of time for your to submit a reconsideration of this decision.
I have however provided advice to my senior manager Sarah Mohr, who is currently reviewing your case and will inform you promptly if an extension of time can be granted.
If you have any questions or wish to discuss the reasons you require an extension of time please contact Sarah.
Again I apologise for the confusion on this matter. Please disregard my previous email.
[30] Exhibit R1, T40, pages 157-158.
On 9 February 2020, Ms Turner replied to Comcare’s email retracting the extension of time, relevantly as follows: ‘Thanks for letting me know’.[31]
[31] Annexure 2 to the Respondent’s Submissions in Reply dated 26 July 2021.
On 8 March 2020, being the day before the previously provided deadline for Ms Turner to make her request for reconsideration of the Second Determination, she emailed Comcare seeking advice in relation to ‘whether there has been a decision made for my request for an extension of time to submit a reconsideration of this decision’.[32]
[32] Exhibit R1, T40, page 157.
On 9 March 2020, Ms Turner again emailed Comcare as follows:[33]
I have contacted your call centre this morning to confirm my understanding, that my request for an extension of time for a reconsideration is still being reviewed and the original document, sent on 7 February advising me that an extension had been granted to the 9^th March was not correct.
Natasha and then Kelly, team leader, informed me that they could not confirm my understanding as correct.
As I have not heard anything, I am concerned that the original extension date may be valid and I am not able to submit the relevant documentation today.
Please advise of the current status of my application for a reconsideration, extension of time.
[33] ibid.

On 11 March 2020, Comcare declined to grant Ms Turner an extension of time to request reconsideration of the Second Determination from 2017, relevantly explaining as follows:[34]
On 17 and 18 August 2019, you requested a reconsideration of this determination. This is 782 days after the determination was issued. You stated the delay in requesting the reconsideration was that you considered this determination was part of the Administrative Appeals Tribunal (AAT) proceedings in respect of the separate determination of 26 June 2017 and you had extenuating family circumstances which impacted on your ability to fully comprehend the determination.
…
The reasons you provided for the delay in lodging this request are not sufficient. You were represented by a solicitor at the time of the determination and they requested a reconsideration on the other determination of 26 June 2017 as well as your second compensation claim in the period between 26 June 2017 and 17 August 2019.
The request for reconsideration and reviewable decision on this claim only referred to the one determination. I also note you were advised of this in March 2019 and took no action until August 2019, 170 days later.
[34] Exhibition R1, T41, pages 159-161.
On 7 May 2020, Ms Turner lodged an application for review of Comcare’s decision with the Tribunal and stated that:[35]
(a)she ‘had thought this decision was included in an AAT review that was heard on 13 August 2019’;
(b)she was ‘represented by a solicitor who, in addition to myself, also failed to notice that there was in fact 2 determinations made on 26 June 2017’;
(c)‘I was surprised on attending the AAT proceedings that this period of time, 30 September 2016 to 3 June 2017 was not being considered and was actually a separate determination. On going back through my records I noticed that the original determinations came in one PDF attached to an email. On scrolling down and past a blank page, I found the second determination which had been overlooked initially’;
(d)‘Regarding advice received in March 2019, I was recovering from complicated elbow surgery, taking pain relief whilst attempting to increase my hours at work. This was also a time when I was supporting my daughter’;
(e)‘Whilst I do recall receiving the mentioned email, I did not register that the 2 determinations were separate as I had only seen the first determination in the PDF; and
(f)‘I had 2 cases coming before the AAT but I did not realise that I should have had 3’.
[35] Exhibit R1, T1, pages 1-2.
The Tribunal listed a hearing of this proceeding for 14 September 2020, however Ms Turner requested the hearing be vacated due to her personal circumstances. At a directions hearing in August 2020, the Tribunal vacated the hearing date and directed that Ms Turner give the Tribunal and Comcare further written submissions by November 2020. In that month, the Tribunal relisted the hearing for 26 March 2021. The parties subsequently consented to the Tribunal determining the application without holding a hearing pursuant to section 34J of the AAT Act. The Tribunal, at the parties’ request, made directions for the provision of further written submissions. The last submissions were received by the Tribunal on 4 August 2021.
LEGISLATION
Compensation for injuries
Subsection 14(1) of the SRC Act relevantly provides that Comcare is liable to pay compensation in accordance with the SRC Act ‘in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment’. Section 19 of the SRC Act sets out the applicable formulas for determining the payment of compensation to an employee for injuries resulting in incapacity.
Making a claim for compensation
Section 54 of the SRC Act relevantly provides that:
(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph;…
Determination and notice about requesting reconsideration
Subsection 61(1) of the SRC Act provides that as soon as practicable after a determining authority makes a determination regarding a claim for compensation, ‘it shall cause to be served on the claimant a notice in writing’ setting out the terms of, and reasons for, the determination and a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2) of the SRC Act.
Reconsideration of determination
The requirements for reconsideration of a determination are set out in section 62 of the SRC Act, which relevantly provides that:
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant…
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
Applications to the Tribunal
Section 64 of the SRC Act provides that an application to the Administrative Appeals Tribunal for review of a ‘reviewable decision’ may be made by, amongst others, a ‘claimant’. Section 60 of the SRC Act relevantly states that ‘reviewable decision’ means a decision made under section 62 of the SRC Act and that ‘claimant’ means a person in respect of whom a determination is made. In this proceeding, the reviewable decision is that made by Comcare on 11 March 2020, denying Ms Turner an extension of time to request reconsideration of Comcare’s Second Determination from 2017.
CONTENTIONS
For ease of reference when considering Ms Turner’s below submissions in these reasons, the Tribunal first sets out Comcare’s contentions in this proceeding.
Comcare
Comcare contended that there had been a significant delay between the date of the Second Determination (being 26 June 2017) and the date Ms Turner sought an extension of time to request reconsideration of that determination (being 17 August 2019). This delay was 782 days or 2 years, 1 month and 22 days. In this regard, Comcare further submitted that it discussed both determinations with Ms Turner the day after they were issued in June 2017 and provided additional clarification regarding her claim for incapacity payments on 1 March 2019 in which it was noted that Comcare had issued two separate determinations in 2017. However, it was not until August 2019 that Ms Turner requested an extension of time in relation to the Second Determination. In this way, Comcare contended that Ms Turner rested on her rights and left it entitled to regard the claim in relation to time off work from September 2016 to June 2017 as finalised.
Comcare further submitted that, as an insurer and a public institution, it has a significant interest in knowing that it has no liabilities beyond a definite period, and is inherently prejudiced if it is unable to arrange its affairs and utilise its resources on the basis that claims can no longer be made against it. Because the Second Determination was not agitated for a very lengthy period after it was made, Comcare believed that the matter was at an end, and contended that it should not now be required to direct its resources to a matter which lay undisturbed for this period of time.
Finally, in relation to the merits of Ms Turner’s substantive case, Comcare submitted that significant weight should be given to the report of Dr Tony Kostos, Consultant Rheumatologist, dated 8 May 2017, which indicates that during the period in question any symptoms or incapacity suffered by Ms Turner related to pre-existing constitutional cervical spine degeneration and not the accepted condition of ‘sprains and strains (right) (neck, shoulder and arm)’. Given the available medical evidence, Comcare contended that Ms Turner’s claim has insufficient merits and that the likelihood of her persuading a decision maker that she continued to suffer from the effects of her accepted claim during the period in question is low. In this regard, Comcare submitted that Ms Turner had not claimed any relevant periods of incapacity for some time before injuring her elbow in July 2016.
Ms Turner
The Tribunal has set out above in these reasons Ms Turner’s reasons for seeking review of Comcare’s decision not to grant her an extension of time to request reconsideration of the Second Determination from 2017. Essentially, Ms Turner contended that: she thought this determination was included in the 2017 Proceeding she commenced in the Tribunal; she and her then legal representative failed to notice there was two determinations, not one, made by Comcare on 26 June 2017; she was surprised to learn at a Tribunal conciliation in August 2019 that the 2017 Proceeding was not considering her claimed time off work from September 2016 to June 2017 the subject of the Second Determination; on reviewing her records, Ms Turner identified that this determination had been overlooked; and upon receiving an email from Comcare in March 2019 she did not register that there were two determinations, she was at this time recovering from complicated elbow surgery, taking pain medication while attempting to increase her work hours and also supporting her daughter.
Ms Turner in her written submissions in this proceeding expanded on the above reasons and submitted that she had ‘difficult life circumstances which affected me on a deep emotional level and impacted on my ability to focus at the times correspondence was received from Comcare. My solicitor at the time was progressing my 2 cases with the AAT which, unbeknown at the time, should have been three’.[36]
[36] ‘Applicant’s Statement of Facts, Issues and Contentions and response to Respondent’s Submission dated 5 August 2020’, dated 22 November 2020 and revised 14 July 2021, page 1.
Ms Turner contended that that when she received the First Determination dated 26 June 2017, she considered this ‘included my past claims for time off work due to ambiguous wording used by Comcare’, such as the following:[37] ‘This determination supersedes any previous determinations issued in relation to medical treatment and incapacity payments past 26 June 2017’.[38] Ms Turner also stated that the Second Determination ‘was tacked onto the end of the first determination separated by a blank page in a pdf not seen by myself or my solicitor’.[39] In 2019, Ms Turner told her then legal representative that ‘I wouldn’t have scrolled past the blank page after the first one to see the second’.[40] Ms Turner also said that she did not have a printer at the time to enable a paper copy to be printed for her review and identification of the Second Determination behind the First Determination in the attachment sent by Comcare.[41]
[37] ibid., page 2.
[38] Exhibit R1, T24, page 110.
[39] ibid., page 4.
[40] Annexure to ‘Applicant’s Reply to Respondent’s Submissions dated 26 July 2021’, submitted on 30 July 2021.
[41] ‘Applicant’s Response to Respondent’s Amended Submissions dated 26 March 2021’, dated 5 July 2021, page 4.
Ms Turner acknowledged she was telephoned by Comcare the day after the Second Determination was issued, but submitted that during this call there was ‘no reference to the dates included in the second determination’, she had just returned to work from carer’s leave, and her ‘understanding was that two decisions had been made’; one regarding incapacity and another regarding medical treatments. She said that Comcare ‘did not explain about the separate determination for the period prior to the 26 June 2017’. Ms Turner further stated that there was no reference to the Second Determination during this discussion.[42]
[42] ibid., page 5.
Ms Turner submitted that her correspondence with her then legal representative in November 2017 ‘regarding the determination of 26 June 2017 confirms an understanding that this determination was for incapacity from 30 September 2016’.[43]
[43] ibid., page 8.
In relation to the email from Comcare to Ms Turner on 1 March 2019 regarding her claims for time off work and the status of the Second Determination, she stated that it ‘contained inconsistent dates, incorrect and confusing sentence structure and terminology and was received at a tumultuous time with competing work and family priorities’. As a result, Ms Turner stated that ‘I put it aside to be dealt with at the AAT hearing’ and it ‘was not clear to me there were 2 distinctly separate determinations that needed to be reconsidered and put forward separately’.[44] Ms Turner also contended that Comcare had not provided ‘clear and correct information’ regarding the Second Determination and ‘as an insurer and a public institution, has a responsibility to provide clear and accurate advice’.[45] Furthermore, the documentation ‘was not delivered in a clear format identifying 2 different determinations, with the second one being identified as a decision and incorrect dates confusing matters further’.[46]
[44] ‘Applicant’s Statement of Facts, Issues and Contentions and response to Respondent’s Submission dated 5 August 2020’, dated 22 November 2020 and revised 14 July 2021, page 3.
[45] ibid., pages 6-7.
[46] ibid., page 7.
Ms Turner also outlined her caring responsibilities in relation to multiple family members from the age of 8 and during the relevant time from her receipt of the Second Determination in June 2017.[47] She also submitted that: ‘I was under the false reassurance that my matter was being handled adequately by my solicitor at the time. I had made sure he was aware of my family issues and responsibilities and was grateful I could attend to my family concerns placing my full attention on them and full trust in my solicitor’.[48] Ms Turner further contended that her then representative was aware of her circumstances and ‘had assured me that he would be acting on my behalf and taking care of these matters’.[49] In this regard, Ms Turner submitted that she ‘reluctantly agreed’ to the terms of the Tribunal’s consent decision from 2019 in relation to the 2017 Proceeding and the 2018 Proceeding, ‘given the period that I presumed was included did not make it through for conciliation and I was worried about the expense of proceeding further’. Ms Turner later submitted that she understood the periods of claimed incapacity between September 2016 and June 2017 would be conciliated at the conference held by the Tribunal in relation to the two proceedings.[50] She also stated that her former representative ‘pressured me to focus on the matters at hand and not the missed determination for the incapacity period I am now seeking an extension of time’.[51]
[47] ibid., pages 5 and 8.
[48] ibid.
[49] ibid., page 8.
[50] ‘Applicant’s Reply to Respondent’s Submissions dated 26 July 2021’, submitted 30 July 2021.
[51] ibid., page 6.
Ms Turner contended that she requested reconsideration of the Second Determination four days after it first came to her notice at the conciliation conference held by the Tribunal in August 2019. Therefore, Ms Turner submitted, she was within the 30 day timeframe in which to do so set out in subsection 62(3) of the SRC Act.[52]
CONSIDERATION
[52] ‘Applicant’s Response to Respondent’s Amended Submissions dated 26 March 2021’, dated 5 July 2021, page 10.
What is the decision under review?
On 26 June 2017, Comcare made two determinations in relation to separate workers’ compensation claims made by Ms Turner. An email on this day from Comcare to Ms Turner attached one document containing both the First Determination and the Second Determination. The First Determination was that Comcare had no present liability from 26 June 2017 to pay for Ms Turner’s medical expenses, incapacity payments and household and attendant care services under the SRC Act. The Second Determination declined Ms Turner’s claims for time off work from September 2016 to June 2017 under the SRC Act. Relevantly, the Second Determination included a statement to the effect that Ms Turner could request reconsideration by Comcare within 30 days. In this regard, despite not attaching a ‘Notice of Rights’ document, the Second Determination was, pursuant to subsection 61(1) of the SRC Act, a notice in writing setting out its terms, reasons and the process for requesting its reconsideration. It therefore met the legislative requirements of the SRC Act for a determination.
Pursuant to subsection 62(2)(a) of the SRC Act, a request to a determining authority, such as Comcare, for reconsideration of a determination may be made by the claimant. Under subsection 62(3)(b) of the SRC Act, Ms Turner had 30 days to request reconsideration of both the First Determination and the Second Determination after the day on which they first came to her attention. While Ms Turner, through her then legal representative did request reconsideration of the First Determination in the legislated timeframe, she failed to request such reconsideration of the Second Determination. In August 2019, more than two years after the Second Determination, Ms Turner sought an extension of time from Comcare to request reconsideration of the Second Determination. In March 2020, Comcare refused to grant Ms Turner an extension of time to submit a request for reconsideration of the Second Determination.
In Beecher and Telstra Corporation Limited [1994] AATA 6 at [1], the Tribunal confirmed that a decision by a determining authority to refuse to extend time for lodgement of a request for reconsideration is reviewable by the Tribunal ‘because it is one made under s62 and thus falls squarely within the terms of the definition of “reviewable decision” in s60’.[53] This position is now well established in the Tribunal.[54] The Tribunal is satisfied that the reviewable decision before it is Comcare’s refusal to grant an extension of time to Ms Turner to request reconsideration of the Second Determination of 2017.
[53] See also Sutherland, P., and Ballard, J.O, with Anforth, A., Annotated Safety, Rehabilitation and Compensation Act 1988, The Federation Press, 11^th Edition, 2018, at [62.03], page 499.
[54] See, for example, Thompson and Comcare [2019] AATA 714; Carvalho and Comcare [2019] AATA 1130; and Muirden and Australian National University [2019] AATA 5163.
For the avoidance of doubt, while neither party made such submissions, the Tribunal finds that Comcare’s letter to Ms Turner of 7 February 2020, granting her an extension of time to request reconsideration of the Second Determination, was neither a determination nor a reviewable decision under the provisions of the SRC Act. That correspondence was also revoked by Comcare on the same day it was issued, and Ms Turner acknowledged this position by email two days later. Comcare then issued its reviewable decision in March 2020 refusing Ms Turner’s request for an extension of time to seek reconsideration. That refusal decision is the decision under review by the Tribunal.
What should the Tribunal consider in its review?
Ms Turner failed to make her request within the statutorily prescribed timeframe of 30 days for Comcare to reconsider the Second Determination. She received that determination in June 2017 and did not seek a reconsideration until more than two years later in August 2019.

In Comcare v Willems (1996) 43 ALD 253 at [258], the Federal Court of Australia held that, in relation to the question of whether to grant an extension of time to lodge a request for reconsideration of a determination, regard should be had to: the cause of, and the explanation for, the delay in the relevant party submitting the request; the relevant party’s conduct in this delay; and the consequences to the other party of the delay. The merits of the substantive request are also a relevant consideration when a determination is being made on the extension question. It has also been stated that a person seeking an extension of time ‘must place material before the Tribunal to justify the exercise of the discretion in his or her favour’.[55]
[55] Hewson and Australian Postal Corporation [1998] AATA 71 at [7].
The often quoted case of Hunter Valley Developments Pty Ltd & Ors v Minister of Home Affairs and Environment (1984) 3 FCR 344 set out principles to be considered in an application for an extension of time (albeit in relation to the Administrative Decisions (Judicial Review) Act 1977).[56] The principles underwent ‘some modification’ in Comcare v A’Hearn [1993] FCA 498 and these were subsequently set out by the then Federal Magistrates Court in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 (Phillips), as follows:[57]
[56] Per Wilcox J at 348-349.
[57] Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 at [10].
In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).
3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124: (1982) 42 ALR 283 at 287).
4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287)
5.The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) [1983] FCA 94; 47 ALR 528).
The principles regarding extension of time applications enunciated in Phillips were endorsed in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 and have been referred to and endorsed in numerous Tribunal decisions.[58]
[58] For example, Bernobich and Novion Property Group (formerly Colonial First State Property Management Pty Ltd [2016] AATA 92 at [14].
Explanation of the delay
As the abovementioned authorities set out, an acceptable explanation for the delay is not a precondition to the exercise of discretion in favour of the applicant party. However, the Tribunal will not grant an extension of time unless positively satisfied that it is proper to do so. In this regard, the prescribed period for a party to press their claim is not to be ignored. The Parliament intended for there be finality in the decision making process when it legislated in the SRC Act for particular timeframes in which a party could request both reconsideration of an initial determination by a determining authority (being 30 days, under subsection 62(3) of the SRC Act) and, subsequently, request review by the Tribunal of a reviewable decision by that authority (being 60 days, under subsection 65(4) of the SRC Act, which varies the equivalent twenty eight days allowed under subsection 29(2) of the AAT Act).
McHugh J in the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Taylor) at [553]-[554] said:
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period…
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." [Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
There were approximately 782 days, or more than 2 years, between the issuing of the Second Determination on 26 June 2017 and Ms Turner’s request for its reconsideration on 17 August 2019. The Tribunal finds that this is a significant delay in the context of the prescribed timeframe of 30 days set out in the SRC Act.
As previously noted, it is not an essential pre-condition for success that an acceptable explanation for the delay be given. Ms Turner has provided an explanation, although her submission that neither she nor her then legal representative were aware of the Second Determination until at least early 2019 is not supported by the evidence before the Tribunal.
Comcare’s contemporaneous notes from the day after it issued the First Determination and the Second Determination record a conversation between it and Ms Turner regarding both determinations.[59] It stated that Ms Turner requested ‘clarification regarding CTOW [claims for time off work, being the subject of the Second Determination] and NPL [no present liability, being the subject of the First Determination] determinations dated 26.06.2017’. in this proceeding, Ms Turner disputes that the Second Determination was raised or discussed during this telephone call and contended that she was unaware of its existence because it was contained in the same document as the First Determination, but separated by a blank page.
[59] Exhibit R2, T43, page 214.
Nevertheless, in an email from Ms Turner’s then legal representative to Comcare on 6 July 2017, reconsideration was requested of the First Determination. Most relevantly, this correspondence also attached a briefing letter to Dr Eaton for an assessment of Ms Turner in support of the reconsideration. The briefing letter specifically referred to both the First Determination and the Second Determination, as follows: ‘We further enclose the determination of No Present Liability dated 26 June 2017 and a letter of the same date dealing with Claims for Time Off Work [that is, the Second Determination]’.[60] On the documentary evidence before the Tribunal, Ms Turner’s email address was copied into both the correspondence to Dr Eaton, referring to and seemingly attaching the Second Determination[61] and the correspondence to Comcare, which, at the least, attached the letter to Dr Eaton referring to the Second Determination and, potentially, also enclosed that document.[62] Both sets of correspondence were dated 6 July 2017, being within the statutorily prescribed 30 days to request reconsideration. Accordingly, even if Ms Turner was unaware of the Second Determination on the day it was issued to her on 26 June 2017, or the following day in her discussion with Comcare, she was copied into email correspondence on 6 July 2017 with both Comcare and Dr Eaton which, at the least, contained specific reference to the Second Determination. The Tribunal is therefore satisfied that Ms Turner was aware of the Second Determination from at least 6 July 2017.
[60] Exhibit R1, T26.2, page 118.
[61] ibid., page 119.
[62] ibid., pages 114-115.
In addition, on 6 November 2017, Ms Turner emailed her legal representative regarding her ‘incapacity over the last year, which has been declined by Comcare’, which she claimed equated to $13,454.[63] This information was provided in anticipation of a discussion between them regarding applying to the Tribunal for review of the reconsideration declining liability in relation to the First Determination which, Ms Turner contended, she considered also included the time off work claims, which were in fact the subject of the Second Determination. In that correspondence, Ms Turner also relevantly set out in table form the claims for time off work she had made between September 2016 and June 2017, which were the subject of the Second Determination, and an additional claim between July and November 2017. On the evidence before the Tribunal, the only information available to Ms Turner which could have informed her statement in November 2017 that these claims for time off work had been declined by Comcare was the Second Determination. The First Determination did not consider the multiple claims for time off work between September 2016 and June 2017. In an email to her then legal representative following the conciliation conference in August 2019, Ms Turner stated that she was unaware the Second Determination was neither the subject of the conciliation nor a reconsideration, but that these claims for time off work were ‘discussed…with you in November 2017’.[64] However, for the reasons set out in the preceding paragraph, the Tribunal is satisfied that Ms Turner was aware of the Second Determination from before November 2017, and from at least 6 July 2017.
[63] Annexure Q to the ‘Applicant’s Response to Respondent’s Amended Submissions dated 26 March 2021’, dated 5 July 2021.
[64] Annexure to ‘Applicant’s Reply to Respondent’s Submissions dated 26 July 2021’, submitted on 30 July 2021.
Moreover, Ms Turner sought clarification in February 2019 regarding her ‘incapacity payments prior to 26 June 2017’ and was informed by email on 1 March 2019 that there were two determinations made by Comcare almost two years earlier in June 2017.[65] That is, Ms Turner was again made aware of the Second Determination. This 2019 correspondence from Comcare also set out Ms Turner’s claims for time off work that had not been paid by Comcare. Ms Turner did not seek an extension of time to request reconsideration after receiving this correspondence until five months later in August 2019. She told the Tribunal in written submissions that she set aside this correspondence and decided to take no further action in relation to it until the conciliation conference at the Tribunal in August 2019, regarding the 2017 Proceeding and 2018 Proceeding. Although the correspondence from Comcare may have been confusing, as contended by Ms Turner, it expressly confirmed there were two determinations from June 2017, with only one having been reconsidered. From this time, Ms Turner took no action to deal with the Second Determination for five months. In this way, the Tribunal finds that Ms Turner rested on her rights and left Comcare entitled to consider the claim the subject of the Second Determination finalised.
[65] Exhibit R1, T34, page 144.
Based on the contemporaneous documentary evidence, by the time of the conciliation conference in August 2019, Ms Turner had spoken to her claims manager at Comcare on 27 June 2017 about the two determinations made and sent to her the day before, she was aware of the Second Determination by way of two pieces of correspondence copied to her by her legal representative in July 2017, they discussed the declined claims for time off work in November 2017 and she had specifically been informed of the content of the two determinations by Comcare in March 2019 at which time she put the correspondence aside and took no action for five months, ‘to be dealt with at the AAT hearing’, and ‘it was still not clear to me that there were 2 distinctly separate determinations that needed to be reconsidered and put forward separately’.[66]
[66] ‘Applicant’s Statement of Facts, Issues and Contentions and response to Respondent’s Submission dated 5 August 2020’, dated 14 July 2021.
The Tribunal accepts that, at various times during the relevant period between June 2017 and March 2019, Ms Turner was dealing with a number of personal family issues. These have been carefully considered by the Tribunal in the context of this decision, but not all matters have been set out in these reasons to respect Ms Turner’s, and her family’s, privacy and the confidentiality of third parties. While Ms Turner submitted that she engaged a legal representative to act for her in relation to her claims with Comcare, it is evident that she maintained a close engagement with the status of these claims throughout the process, including by receiving correspondence to and from Comcare and her representative, responding to and initiating such correspondence and liaising with her representative regarding her claims, including those claims for time off work the subject of the Second Determination after it was issued. Despite Ms Turner’s caring commitments and family issues during this time, there was no evidence before the Tribunal that Ms Turner was incapable of managing her own affairs.
In this regard, and for completeness, the Tribunal notes that a lawyer acting for a client has an obligation to act with due care and diligence on their behalf. This was evident in Ms Turner’s then legal representative seeking reconsideration of the First Determination and attaching a briefing letter to Dr Eaton, which referred to and attached the Second Determination. Both sets of correspondence were also copied to Ms Turner. As set out above in these reasons and on the evidence before the Tribunal, the submission cannot be maintained that Ms Turner or her then legal representative were unaware of the Second Determination by at least 6 July 2017. Plainly, in accordance with the authorities, an inexcusable delay on the part of a solicitor should not be visited upon their client. However, there was no submission in this proceeding that Ms Turner’s former legal representative had inexcusably delayed requesting reconsideration of the Second Determination. The Tribunal also did not have any evidence from or on behalf of Ms Turner’s former representative regarding this matter. However, for the avoidance of doubt, on the available evidence, the Tribunal is satisfied that there is no such issue in this proceeding. Both Ms Turner and her legal representative were aware of the Second Determination in the legislatively prescribed timeframe for requesting reconsideration and did not do so.
Accordingly, the Tribunal finds that Ms Turner’s explanation for the delay in seeking a reconsideration of the Second Determination is unpersuasive and weighs against the Tribunal granting her an extension of time to request such reconsideration from Comcare.
Prejudice to Comcare
The Tribunal accepts that granting an extension of time to Ms Turner to seek reconsideration of the Second Determination from June 2017 would prejudice Comcare such as to weigh against the granting of such an extension.
In Comcare v Smith [1997] FCA 140, the Federal Court held, in relation to the weighing of prejudice, that:[67]
The consideration of prejudice on an application to extend time is not a one-sided consideration. It is necessary to balance the prejudice which may be caused to the applicant for an extension of time if the extension is refused against the prejudice which may be caused to the other party if it is required to deal belatedly with the claim if time is extended. It is in this context that the Tribunal was required to take into account in making its decision any prejudice to Comcare arising by reason of the lateness of the application to extend time.
[67] Comcare v Smith [1997] FCA 140 (transcript at page 9), referred to in Sutherland, P., and Ballard, J.O, with Anforth, A., Annotated Safety, Rehabilitation and Compensation Act 1988, The Federation Press, 11^th Edition, 2018, at [62.03], page 499.

As McHugh J said in Taylor, the public interest requires disputes be settled as expeditiously as possible. In this way, an entity such as Comcare is entitled to pursue its business on the assumption that claims not pursued within the legislatively prescribed time limits can be regarded as finalised. Accordingly, as a general proposition, Comcare should be able to arrange its affairs and utilise its resources on the basis that claims can no longer be made against it. Despite this, the Tribunal in Hewson and Australian Postal Corporation [1998] AATA 71 said that the prima facie rule that proceedings commenced outside the statutorily prescribed limitation period should not be entertained ‘must give way’ if the applicant party is shown to have a good case of succeeding in its substantive claim and there is ‘little prejudice’ to the other party. In that proceeding, however, the applicant’s case was found to not be strong and there was prejudice to the other party given the length of time that had elapsed.[68]
[68] Hewson and Australian Postal Corporation [1998] AATA 71 at [23].
In relation to Ms Turner’s claim, although she may have an arguable case, discussed further below in these reasons, the Tribunal is satisfied that there would be prejudice to Comcare if an extension of time were granted and it was required to reconsider the Second Determination from 2017. In this regard, the Tribunal accepts that there would be a not insignificant cost involved in Comcare considering an out-of-time reconsideration request and potentially engaging in another Tribunal proceeding to defend the substantive claim.
Following the issuing of the Second Determination in June 2017 in relation to Ms Turner’s claims for time of work and her then not requesting reconsideration of that determination within the prescribed time, or for over two years following the end of that period, Comcare was entitled to assume that no further action was being, or would be, taken in relation to that claim, thus providing certainty of administration for Comcare, public finances and the public interest in the finality of decision making. As a result, Comcare would be unreasonably prejudiced if Ms Turner was granted an extension of time to request reconsideration of the Second Determination in circumstances where there has been such a lengthy delay in pressing her claim.
Merits of Ms Turner’s substantive claim
As the Tribunal stated in Lower and Comcare [2005] AATA 551, in considering the merits of a case, there is no requirement to ‘weigh contradictory evidence and make findings of fact’ when deciding whether to grant an extension of time to a party.[69]
[69] Lower and Comcare [2005] AATA 551 at [114].
In this proceeding, given the length of time that has elapsed since Ms Turner made her claims for time off work between September 2016 and June 2017, it is difficult for the Tribunal to definitively determine the merits of Ms Turner’s substantive claim. Only a substantive hearing of the claim, with all the medical opinions and evidence being tested, would provide the opportunity to fully weigh the merits of Ms Turner’s case and make a decision. Despite these difficulties, the Tribunal is satisfied, on the current medical and other evidence, that Ms Turner has an arguable case that is not without some prospect of success, although the Tribunal cannot reasonably put its view any higher. The merits therefore weigh in favour of the Tribunal granting an extension of time to Ms Turner to request reconsideration of the Second Determination. However, this does not outweigh the aforementioned reasons against granting an extension to Ms Turner.
In 2008, Comcare accepted Ms Turner’s compensation claim for ‘sprains & strains (right) (neck / shoulder and arm)’ under the SRC Act. It proceeded to pay compensation to Ms Turner for certain periods of time between February 2008 and May 2016, pursuant to section 19 of the SRC Act. On 21 July 2016, it was reported that Ms Turner fell at home on her outstretched right hand and sustained a fracture of the right radial head. She subsequently had reduced range of right elbow motion and, as a result of this restriction, her shoulder condition was reported to have ‘flared up due to a deterioration of her posture’.[70]
[70] Exhibit R1, T22, pages 95-99.
In 2017, Ms Turner made claims to Comcare for incapacity payments due to time off work between September 2016 and June 2017 in relation to her previously accepted condition. Comcare declined to make these payments; this is the Second Determination.
There is numerous medical evidence before the Tribunal arising from the eight years Ms Turner received incapacity payments from Comcare as a result of her accepted condition. The Tribunal has considered that evidence and sets out below the medical evidence relevant to determining the merits of Ms Turner’s substantive claim.
In 2011, Dr Loretta Reiter, Consultant Rheumatologist, opined that Ms Turner suffers from ‘Cervical Spondylosis and Facet Joint Osteoarthritis, with exacerbations of pain due to the nature of her work’.[71] She further noted that Ms Turner had a good prognosis because she was working full time with no restrictions. The injury in 2008 was not a ‘specific injury but rather the first time that Ms Turner’s underlying condition of cervical spondylosis was exacerbated by the nature of her work’.[72] In relation to the connection with employment, Dr Reiter said that ‘Ms Turner’s condition is due to the natural ageing process of degenerative disc and joint disease of her cervical spine, with it being exacerbated by her employment as a general clerk, with the nature of her work, which at times involves repetitive keying and use of the mouse, exacerbating her pain’.[73]
[71] Exhibit R1, T17, pages 65-71.
[72] ibid., page 69.
[73] ibid., page 69.
In 2013, Dr Suman Kevat, Consultant Rheumatologist, reported that Ms Turner suffers from an ‘occupational overuse syndrome with a possible contribution from C5/6 spondylosis’ due to ‘intensive computer-related work tasks’.[74] The condition was contributed to by Ms Turner’s employment and had not ceased or been superseded.
[74] Exhibit R1, T18, pages 72-80.
In June 2016, Dr George Chan, General Practitioner, stated that Ms Turner suffers from ‘regional pain syndrome C5/6 distribution’, which is long term and likely to be permanent.[75] Ms Turner had demonstrated ‘better movement of her right scapula’ and in the ‘right quadrant of her chest, ribs and shoulder’. Medical treatments had reduced her pain and her time off work ‘has been very minimal’.[76] Dr Chan opined that Ms Turner needs ‘continual management for improvement of posture, muscle strength and pain relief in order for her to cope with her work’. Any decreased treatment is ‘likely to increase her pain and muscle stiffness and decrease her muscle strength’, and it is ‘highly probable’ changes in Ms Turner’s treatment plan would decrease her work hours.[77]
[75] Exhibit R1, T19, pages 81-84.
[76] ibid., page 82.
[77] ibid., page 83.
In December 2016, Dr Chan provided another report to Comcare in which he stated that Ms Turner had a fall at home in July 2016 and sustained a fracture of the right radial head of her elbow requiring surgery.[78] As a result of the fall, Ms Turner’s elbow range of motion is restricted and this led to her shoulder condition being ‘further flared up due to a deterioration of her posture’.[79] Dr Chan reported that there was ‘no suggestion from my review of the notes by her orthopaedic surgeon to suggest that there was an impact to her shoulder injury as a result of her non-compensable elbow injury’.[80] After returning to work in August 2016, Ms Turner’s compensable shoulder injury ‘flared up as a result of intensive typing at work’ and her total incapacity ‘was the result of an aggravation of her neck and shoulder injury’.[81] However, Dr Chan opined that Ms Turner’s non-compensable right elbow injury ‘impacted on her work capacity initially’ following surgery.[82] He further stated that there is ‘no underlying degeneration as part of the natural ageing process’ and Ms Turner’s cervical spondylosis and facet joint osteoarthritis with exacerbation of pain is the result of her work related injury.[83] In March 2017, Dr Chan reported that due to ‘the decompensated shoulder problem prior to her elbow injury and the subsequent restriction as a result of her right elbow operation, her shoulder had flared substantially’.[84]
[78] Exhibit R1, T20, pages 85-91.
[79] ibid. page 86.
[80] ibid., page 87.
[81] ibid.
[82] ibid., page 88.
[83] ibid.
[84] Exhibit R1, T22, page 97.
In May 2017, Dr Tony Kostos, Consultant Rheumatologist, diagnosed Ms Turner with a ‘stiff neck with referred pain across her right shoulder’ and at times has symptoms suggestive of a radicular component with right arm pain, paraesthesia and numbness’.[85] Based on the history provided by Ms Turner, Dr Kostos opined that she first suffered this condition in 2004.[86] Dr Kostos stated that Ms Turner ‘does not have sprains or strains of her neck, right shoulder or right arm’.[87] She did not have an incident in 2008 and her symptoms ‘had been present for years prior to this’.[88] Dr Kostos further stated that Dr Kevat’s diagnosis of ‘occupational overuse syndrome’ is a condition which, in his opinion, does not exist.[89] He also stated that he was unclear what Dr Chan believes is the cause of Ms Turner’s current problem, unlike Dr Chan he cannot establish the cause of the pain from an x-ray, the majority of the treatment had not been directed to Ms Turner’s cervical spine which is why her condition had not improved and he was unsure why the prognosis was said to be ‘good’ when the condition had persisted for more than ten years.[90] Dr Kostos opined that Ms Turner’s prognosis was ‘poor’ because the true nature of her condition had not been identified and no specific treatment had been directed to her neck.[91] Dr Kostos reported that Ms Turner may have to remain on her current restricted hours and duties because her condition had not been properly treated.[92] He stated that Ms Turner’s underlying condition in her cervical spine is ‘constitutional and therefore noncompensable’ [sic], however both her activities at work and home ‘do lead to a temporary exacerbation of her symptoms’.[93] Dr Kostos also reported that Ms Turner told him that she had ‘noted some improvement in her other symptoms’ while off work for a month following surgery to her right elbow because ‘she was not using her right arm a great deal’.[94]
[85] Exhibit R1, T23, pages 100-108.
[86] ibid., page 104.
[87] ibid.
[88] ibid.
[89] ibid., page 105.
[90] ibid.
[91] ibid.
[92] ibid., page 106.
[93] ibid.
[94] ibid., page 105.
In July 2017, Dr Garth Eaton, Consultant Occupational Physician, provided a report to Ms Turner’s representative for the purpose of supporting her requested reconsideration of the First Determination that there was no present liability for her condition from June 2017. Dr Eaton reported that following Ms Turner’s fall at home in July 2016, she returned to work in mid-August and ‘was able to work from home and was keen to be involved as much as possible’ and was ‘using a laptop and worked four hours a day’.[95] In September 2016, Ms Turner had to type a document for work and this ‘flared up her neck and shoulder symptoms’.[96] She returned to work in December 2016 and worked 26 hours a week. In January, Ms Turner developed right shoulder pain and numbness which persisted however these symptoms subsequently improved’.[97] Dr Eaton noted that Ms Turner reported being ‘off work for the past week’ and prior to this ‘experienced increased soreness by Tuesday each week’ of a four day week.[98]
[95] Exhibit R1, T28.1, pages 124-131.
[96] ibid., page 128.
[97] ibid.
[98] ibid., page 128.
Dr Eaton diagnosed Ms Turner with ‘occupational overuse injury/work related cervicobrachial pain’ and possible ‘aggravation of degenerative cervical spinal disease/cervical spondylosis’, among other conditions.[99] Dr Eaton identified ‘some minor degenerative changes demonstrated in the cervical spine X-ray’ and ‘tenosynovitis demonstrated in the right wrist on ultrasound’, consistent with an overuse injury.[100] He opined that Ms Turner ‘continues to suffer cervicobrachial pain on the right side which is likely to be permanent’ and ‘has been significantly contributed to by her employment due to ergonomic and postural factors, work load and deadlines’.[101] He said Ms Turner’s prognosis was ‘guarded’ and it was likely she would ‘continue to experience ongoing right sided cervicobrachial pain indefinitely’.[102] However, because Ms Turner ‘has endured her condition for such a long period of time it is unlikely that any treatment will completely eradicate her symptoms at this stage’.[103]
[99] ibid., page 129.
[100] ibid., page 130.
[101] ibid.
[102] ibid., page 129.
[103] Ibid., page 130.
Dr Eaton reviewed Dr Kostos’ report and said he did not agree that ‘all of Ms Turner’s symptoms are related to underlying cervical spondylosis and degenerative change alone’ and that workplace factors ‘are likely to have significantly contributed to the development of her symptoms’.[104] Dr Eaton states that Dr Kostos’ view that occupational overuse injuries do not exist is currently in the ‘minority’ in the medical profession.[105] Dr Eaton said that he concurs ‘more with the reports prepared by Dr Kevat and Dr Reiter than Dr Kostos’ report’.[106]
[104] ibid., page 129
[105] ibid.
[106] ibid.
In summary, the relevant medical evidence is as follows. Dr Reiter and Dr Kevat, both rheumatologists, in 2011 and 2013 respectively, opined that Ms Turner’s then compensable condition was contributed to by her employment. These opinions were provided before Ms Turner’s claims for time off work from late 2016. Ms Turner’s general practitioner, Dr Chan in 2016 referred to her condition flaring up due to intensive typing at work and incapacity due to an aggravation of her neck and shoulder injury. However, Dr Chan also said that Ms Turner’s non-compensable elbow injury in July 2016 initially impacted on her work and also contributed to the flare up of her compensable shoulder condition. In 2017, the rheumatologist Dr Kostos, at the request of Comcare, provided a report which opined that Ms Turner does not have the previously accepted condition, her symptoms existed before the 2008 compensation claim and her underlying condition is constitutional, therefore not compensable, but acknowledged that work can temporarily exacerbate Ms Turner’s symptoms. In July 2017, after the Second Determination, the occupational physician Dr Eaton reported that Ms Turner’s work activities led to a flare up of her symptoms in late 2016 and early 2017, being the period of time she claimed off work, which was the subject of the Second Determination. Dr Eaton agreed with the opinions of Dr Reiter and Dr Kevat regarding there being a work contribution to her condition, rather than Dr Kostos’ opinion that there was none.
In August 2019, Ms Turner and Comcare agreed to a consent decision of the Tribunal in the 2017 Proceeding affirming a reviewable decision from September 2017 that, as found in the related First Determination, Comcare had no present liability from 26 June 2017 for Ms Turner’s previously accepted compensable condition of ‘sprains & strains (right) (neck / shoulder and arm)’. The Second Determination the subject of this proceeding declined Ms Turner’s claims for periods of time off work due to this previously compensable condition between September 2016 and June 2017. Additionally, before Ms Turner’s non-compensable elbow injury in July 2016 and her subsequent claim for time off work from September 2016, Ms Turner had not made a claim for incapacity due to her accepted condition since May 2016 (which was for one hour and twenty-five minutes), January 2016 (for one and a half hours) and before that, in November 2015 (for almost fifteen hours).[107]
[107] Exhibit R2, T44, page 218.
Having regard to the medical evidence, the nature and cause of Ms Turner’s condition is contested. It ranges from there being a significant contribution from Ms Turner’s employment, to there being none at all. The Tribunal is not presently in a position to conclusively determine these matters without being able to properly test these competing opinions and the history of Ms Turner’s symptoms in and around the time she made her claims for time off work in late 2016 and early 2017. However, based on this medical evidence, the Tribunal is satisfied that Ms Turner has an arguable case in relation to her substantive claim for incapacity payments for that time off work under section 19 of the SRC Act. That is, there is some likelihood of Ms Turner persuading a decision maker that she continued to suffer from the effects of ‘sprains and strains (right) (neck, shoulder and arm)’ during the period in question up until the time of the no present liability decision effective from June 2017.
CONCLUSION
Notwithstanding the Tribunal’s finding that Ms Turner has, on the available evidence, what appears to be an arguable case, for the reasons set out above it is not satisfied that an extension of time should be granted for her to request reconsideration of the Second Determination of 2017 in circumstances where there was a significant length of time, at over two years, between that determination and Ms Turner’s next substantive step in relation to that claim, together with the potential prejudice to Comcare.
The Tribunal has also had regard to the fairness as between Ms Turner seeking to recommence her claim after such a long period of time and other people in a like position who press their claims within the relevant legislatively prescribed time periods. It finds, on all the available evidence, that the circumstances of Ms Turner’s application for review do not warrant it being treated any differently so as to allow her an extension of time to request reconsideration.
The Tribunal is satisfied that the prima facie rule that claims made outside the prescribed period should not be entertained must be followed in this proceeding. In this regard, the Tribunal is not satisfied that the presumption against deviating from the legislated timeframe should be displaced because of the significant delay between the Second Determination in June 2017 and the request for an extension of time in August 2019. Accordingly, for all of the foregoing reasons, the Tribunal is not satisfied that an extension of time should be granted to Ms Turner for her to request reconsideration by Comcare of the Second Determination from June 2017.
DECISION
The decision under review is affirmed pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Member W Frost

...................................[sgd].....................................
Associate
Dated: 13 August 2021

Date final submissions received:
4 August 2021

Solicitor for Respondent: Ms Victoria Ginnane, Moray & Agnew Lawyers

Date final submissions received:	4 August 2021
Solicitor for Respondent:	Ms Victoria Ginnane, Moray & Agnew Lawyers