Turner and Comcare (Compensation)

Case [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, 11th Edition, 2018

REASONS FOR DECISION

Member W Frost

13 August 2021

INTRODUCTION

  1. 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).

  2. 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…

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AGLC
Turner and Comcare (Compensation) [2021] AATA 2844
Case
[2021] AATA 2844
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Turner for an extension of time to request reconsideration of a determination made by Comcare. Comcare had, on 26 June 2017, determined that it had no present liability to pay compensation to Ms Turner for medical expenses, incapacity payments, or household and attendant care services under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) in relation to her condition. Ms Turner sought to request reconsideration of this determination approximately two years after it was made. The Administrative Appeals Tribunal (AAT) was required to determine whether to grant this extension of time.

The central legal issue before the Tribunal was whether to grant Ms Turner an extension of time to lodge a request for reconsideration of Comcare's determination dated 26 June 2017. This determination had declined incapacity payments for Ms Turner's time off work between September 2016 and June 2017. The Tribunal had to consider the significant delay between the determination and the request for reconsideration, and whether there were sufficient grounds to displace the prima facie rule that claims made outside the prescribed period should not be entertained.

The Tribunal reasoned that the prima facie rule that claims made outside the prescribed period should not be entertained must be followed. It was not satisfied that the presumption against deviating from the legislated timeframe should be displaced due to the significant delay of approximately two years between Comcare's determination in June 2017 and Ms Turner's request for an extension of time in August 2019. Consequently, the Tribunal was not satisfied that an extension of time should be granted. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 reconsiderationYou 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 9th 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.