Vasilopoulos and Australian Postal Corporation
[2004] AATA 737
•13 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 737
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/975
GENERAL ADMINISTRATIVE DIVISION ) Re Steven VASILOPOULOS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P.J. Lindsay, Senior Member Date13 July 2004
PlaceSydney
Decision The tribunal affirms the decision under review.
(sgd) P.J. Lindsay, Senior Member
CATCHWORDS
COMPENSATION – determination denying liability – reconsideration of determination requested seven years later - application for extension of time – request refused - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 s.62
Comcare v Willems (1996) 43 ALD 253
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Zizza v Commissioner of Taxation 99 ATC 4711
Comcare v A’Hearn (1993) 119 ALR 85
Re Finch and Telstra Corporation [1998] AATA 557
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Agar v Australian Postal Corporation (1998) 56 ALD 361
Commissioner of Taxation v Brown (1999) 42 ATR 672
Comcare v Smith [1997] 140 FCA
REASONS FOR DECISION
1. On 1 June 2001 Steven Vasilopoulous claimed compensation from Australia Post for an injury he sustained on 26 April 2001. Australia Post made a determination on 21 June 2001 denying liability for compensation. Under s.62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), Mr Vasilopoulos was entitled to request a reconsideration of the determination. Although he was required to make the request within 30 days of being notified of the determination, he did not do so for approximately 23 months. Australia Post has the power to extend the 30 day period but the delegate refused to allow the extension of time. On 5 June 2003 Mr Vasilopoulos applied to the Administrative Appeals Tribunal for a review of the decision not to grant the extension.
2. Section 62 of the Act relevantly provides:
(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.
By letter dated 15 May 2003 Australia Post informed the applicant’s solicitors that his request for an extension to the 30 day period referred to in s.62(3) had been refused. The respondent’s decision on the request is reviewable by the tribunal (Comcare v Willems (1996) 43 ALD 253).
background
3. Mr Vasilopoulos’ employment with Australia Post began in July 1999. He was injured at work on 26 April 2001. He worked the next day and then went on annual leave. While on leave he injured his neck and was referred to hospital and diagnosed as having a lower cervical disc prolapse. Dr D McDowell, neurosurgeon, recommended anterior C5/6 discectomy and fusion. He was given a medical certificate for two months off work.
4. The documents (T-documents) lodged with the Tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 include the claim for compensation dated 1 June 2001 wherein the affected parts of his body were described as “damaged disc in neck affecting neck, back, arms”. (T7). The delegate noted that Dr Rockman, GP, saw the applicant on 25 May 2001 and diagnosed a C5/C6 disc protrusion. There was some controversy, therefore, regarding the injury at work on 26 April 2001 since his complaint at that time, as noted in statements by his work colleagues, was of leg and lower back pain. The delegate considered it was difficult to accept that the claimed condition was related to the injury on 26 April 2001. The delegate noted that the delay between that incident and the onset of neck symptoms from around mid May 2001 was not explained. Thus the delegate made a determination on 21 June 2001 to refuse liability for the injury sustained on 26 April 2001.
5. Mr Vasilopoulos eventually returned to work in November 2001. He suffered a bump at work causing his symptoms to deteriorate. He went on sick leave from 14 January 2002. Over the following months Australia Post wrote a number of letters to him because he was on continuous sick leave. At Australia Post’s request he was examined on 27 March 2002 by Dr M Gliksman, occupational physician, who recommended he remain off work until new investigations could be carried out to determine whether there had been an extension to the underlying disc pathology (T29). Australia Post sought Mr Vasilopoulos’ authority to release Dr Gliksman’s report to his GP to allow Australia Post to assist in the management of his well being and his eventual return to normal duties. Mr Vasilopoulos did not respond to these letters and from 3 April 2002 he was absent from work without proper authority. Mr Vasilopoulos consulted Dr J Macarounas, GP, on 14 October 2002 about his neck and arm condition and the doctor provided a report to the respondent on 15 January 2003. Australia Post wrote to him on 20 January 2003 to inform him that if he intended to pursue a compensation claim based on Dr Macarounas’ report he should make contact with the reconsideration section to find out what he must do for a reconsideration to take place.
6. Australia Post wrote further letters to the applicant in April and May 2003 to inform him that he could be retired on medical grounds because the 78 week maximum period of sick leave was soon to expire and he was asked to provide medical evidence if he thought he should not be retired. On 9 May 2003 his solicitors requested a reconsideration of the determination made on 21 June 2001.
consideration and findings
7. In undertaking a review of the respondent’s decision not to extend time for requesting reconsideration, I will have regard to the broad principles guiding the tribunal in its exercise of a discretion to grant an extension of time that are contained in Wilcox J’s judgment in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those principles are:
· Prima facie, proceedings should be commenced within the prescribed period and an applicant must advance an acceptable explanation for the delay.
· Any action that the applicant has taken, apart from applying for the extension, is relevant in considering whether there is an acceptable explanation for the delay.
· Prejudice to the respondent, if any, is a relevant factor although its absence is not enough to justify granting an extension.
· Public considerations, including the unsettling of established practices or of other people, may be taken into account.
· It is relevant to have regard to the merits of the application for review.
· Considerations of fairness as between the applicant and others in a similar position are relevant.
I am mindful of the Full Federal Court’s caution that I would fall into error if I regarded the principles in Hunter Valley Developments as complete or treated each principle as necessarily applicable in every application for an extension of time (Zizza v Commissioner of Taxation 99 ATC 4711).
8. What is the applicant’s explanation for the delay in requesting the reconsideration? Mr Vasilopoulos made a statement dated 5 June 2003 (exhibit A1) specifically to address the issue of delay. In par 4 thereof he stated that shortly after receiving the determination he rang Australia Post to find out why his claim for compensation had been denied. The explanation given by Mr Edwards of Australia Post was that the respondent had obtained a number of statements from the colleagues who were at work with the applicant at the time of his injury and their accounts did not support the claim. Further, Mr Vasilopoulos stated that he was told by Mr Edwards that the determination would not be changed regardless of any additional material he might provide. A statement by Graham Edwards signed 2 December 2003 (exhibit R1) noted that while he had no recall of a conversation with the applicant, it would be inappropriate for him to express a view as to what might transpire should a reconsideration be requested. It is apparent, however, from Australia Post’s letter to the applicant dated 7 June 2001 that Mr Edwards had the discussion with the applicant after he submitted the compensation claim but before a decision about the determination had been made and I so find. The letter of 7 June 2001 (T9), which enclosed a copy of the draft determination denying liability, was written at the applicant’s request to give him advance notice if his claim was going to be refused so that he would have the opportunity of withdrawing the claim. The letter advised that if the applicant did not respond in writing, the draft determination would become final.
9. Mr Vasilopoulos gave two reasons why he did not respond to Australia Post’s letter of 7 June 2001 or the determination made on 21 June 2001 by requesting a reconsideration. He said he had been told he would need evidence to support his claim because the witness statements suggested he did not injure his neck at work. He thought it would be a waste of time to take any action and also he could not afford a medical report from Dr McDowell. Surprisingly, Mr Vasilopoulos maintained that, despite Dr McDowell’s giving him a medical certificate for two months off work, the initial period of absence, and being advised he needed spinal surgery, he thought his injury would improve.
10. The applicant’s recollection about the sequence of events regarding his contact with Australia Post following the lodgment of his claim and the letter of 7 June 2001 is unreliable. It is contradicted by that letter, a contemporaneous record. I do not accept that he was given advice by Australia Post that the determination would not be changed. Importantly, he agreed in cross-examination that both the draft determination that he received and the determination that issued on 21 June 2001 contained information about his right to request a reconsideration and he was aware of that right including the relevant timeframe.
11. Mr Vasilopoulos’ statement referred to seeking advice from his trade union. He stated that the official said he was too busy to help. Despite leaving numerous messages for the official to call when time permitted, he never heard from the official. During the period he was off work from May to November 2001 he thought that the Australia Post doctors had given encouraging advice about his prospects for returning to work. It was only in later times that he came to realise the full extent of his disability and restrictions.
12. His statement also referred to consulting a solicitor approximately three months after the determination of 21 June 2001, at a time when he was not working. Without having seen the statements made by the applicant’s work colleagues regarding the accident on 26 April 2001 but relying on the applicant’s summary of them, the solicitor advised that his case was weakened by the content of the statements. Mr Vasilopoulos said the solicitor told him that since the claim involved only a period of five months incapacity, it was not worth pursuing and legal fees would probably exceed the amount recovered. Mr Vasilopoulos stated that he was not advised about the crucial effect of not having lodged a written application for reconsideration or the fact that he would have to explain the delay that had already occurred. He said he accepted the solicitor’s advice and did not take the case further. When cross-examined Mr Vasilopoulos changed his version of this episode and said that the consultation actually took place in around December 2001 and he referred to a receipt from the solicitor dated 13 December 2001(exhibit A8). But by that stage he had resumed work following a five month absence and his evidence was that he felt he had by then fully recovered. It is surprising, therefore, that he would have consulted the solicitor at that time.
13. The respondent submitted that I should not accept the evidence that the applicant consulted a solicitor as claimed. I agree that it is unlikely that a solicitor would have advised an applicant who was off work and had been told he needed spinal surgery, that he should not pursue the claim. The comment attributed to the solicitor that the costs would exceed any compensation received is also difficult to accept, given costs are awarded under the Act to successful applicants. The applicant’s oral evidence contradicted his statement regarding the timing of the consultation. The receipt does not help clarify the issue since it refers only to a fee for a court appearance relating to a dispute with a neighbour about an apprehended violence order. The solicitor responded to a summons to produce documents issued in this application by noting that they held no documents relating to the matter (exhibit A7). On the whole the applicant’s evidence regarding this point is unreliable and I am not satisfied that he sought legal advice at all prior to engaging his current solicitors in May 2003.
14. Mr Vasilopoulos gave other reasons for not pursuing the reconsideration. He stated his injury rendered him incapable of writing a request for reconsideration, but in cross-examination conceded there was no physical impediment to his writing to Australia Post. He stated that following the injury on 26 April 2001 he continued to be under quite substantial pain killing medication which he believed affected his ability to give appropriate consideration to his own affairs. There was no medical evidence before the tribunal concerning the effect of medication on him and in cross-examination he agreed that medication had not affected his capacity to instruct the solicitor to appear in court for him in relation to the apprehended violence order. Pressed on this point, he agreed with counsel for the respondent that he was not sure why his statement said he was not able to write to Australia Post due to the medication.
15. Mr Vasilopoulos consulted Dr Tayar early in January 2002 following the injury at work that led to a flare up in his symptoms. He had the impression that Dr Tayar was not interested in being involved in workers compensation matters and was not supportive of his position. From 14 February 2002, Mr Vasilopoulos continued to have discomfort and restriction of use of movement in his back, which prevented him from resuming work. Australia Post advised him that Dr Gliksman had suggested he engage another GP.
16. Australia Post wrote him letters in January, March, July, August and September 2002 to remind him that he should submit medical certificates to support his continued absence from work on sick leave. Australia Post requested his authority for them to exchange medical information with his treating doctor so that they could manage his return to work in due course. The respondent’s letter of 28 August 2002 (T31) reminded him that “Considerable time has elapsed since you attended Dr Gliksman and to date you have not advised if you have secured the services of a treating practitioner or provided any medical evidence to support your continued absence from work. … Regardless of whether you have obtained the services of a treating practitioner or not you are still required to advise your work area of your absences and provide medical certificates to support your continued leave.” Mr Vasilopoulos said his financial position deteriorated once he had exhausted his sick leave. He had no income and had to rely on his wife and son for support. This placed a great strain on the marriage and they separated, Mr Vasilopoulos moving in with his mother. He saw a Dr Lim, GP, who had a surgery near his mother’s house on a few occasions during 2002 but he did not have any confidence in Dr Lim. It was submitted that he was in a state of confusion due to his marital and financial stress which explained why he did not respond to Australia Post’s requests and did not take action to request a reconsideration.
17. Australia Post wrote to him on 27 September 2002 (T33) to advise that they had not received a response to their correspondence and thus he was deemed to be on unauthorised leave. He was required to explain his absence or return to duty by 2 October 2002. This information prompted him to provide Australia Post with authorities to exchange information with Dr McDowell, Dr Tayar and Dr Macarounas.
18. On receipt of the report from Dr Macarounas dated 16 January 2003, Ms Boreham from the respondent’s human resources department wrote to Mr Vasilopoulos on 20 January 2003 as follows “If you intend to pursue your compensation claim based on Dr Macarounas’s report you should contact Catherine Crompton-Smith from the Reconsideration area on [telephone number] to find out what you would need to provide for a reconsideration to take place.” (T36) In Mr Vasilopoulos’ statement he said that “in light of this correspondence from Australia Post I was under the assumption that there would now be a review of the previous decision denying my injury was work related and that I was not incapacitated for employment as a consequence of a work injury.”
19. His evidence as to what he thought Australia Post was going to do was confused. He said that the assumption that there would be a review followed on from his telephone discussion with Ms Crompton-Smith. But he said that he was told that the determination was made a long time ago so he should retain a solicitor to request the reconsideration. At any rate, he did not see a solicitor at the time, and his statement refers to another consultation with his union. I find that he did not approach the union until around May 2003, this being the date noted by Gil Enzon, the official from the Communications Electrical Plumbing Union whom the applicant consulted (exhibit R5). I infer the action was prompted by Ms Boreham’s letter of 1 May 2003 informing him that his maximum period of leave allowed under the award would expire on 11 July 2003 and his medical retirement would proceed if he did not resume duties. So there was again a period of months where the respondent was unaware of whether Mr Vasilopoulos was going to take action to pursue his claim, beginning with a reconsideration request.
20. His current solicitors requested the reconsideration by letter dated 9 May 2003 advising that the delay was because Mr Vasilopoulos “ … was not conversant with the need and manner in which a reconsideration was to be sought” (T39). I do not accept their explanation. I find that, from the time of receiving the draft determination of 7 June 2001, Mr Vasilopoulos was aware that he had thirty days in which to make a written request for a reconsideration. Early on, he may well have thought that his symptoms would settle despite the aggravation caused by the motor vehicle accident in July 2001 as noted by Dr Lim (exhibit R2). They did not and this was apparent at least from January 2002. He largely ignored correspondence from Australia Post throughout most of 2002. I do not accept that he was unable to request reconsideration as a consequence of the medication he was taking, or due to confusion, demoralisation or marital stress. I do not agree with Mr Curran, counsel for the applicant, that Mr Vasilopoulos was communicating his dissatisfaction with the determination. He did not do so in 2001. Even when Dr Macarounas corresponded with Australia Post on his behalf, he neglected to pursue the matter for a further four months until his solicitors’ letter of 9 May 2003. I am not satisfied that his reasons provide an acceptable explanation for the 23 month delay. However, the lack of a satisfactory explanation alone is not fatal to his application (Comcare v A’Hearn (1993) 119 ALR 85).
21. In relation to prejudice to the respondent, Mr Kelly, counsel for Australia Post, submitted that the decision to retire the applicant because he was absent from work without authorisation has caused prejudice since Australia Post will not be in a position to rehabilitate Mr Vasilopolous so that he could return to his former employment. I acknowledge that the assessment process and provision of rehabilitation programs that are established in Part III of the Act give injured employees the opportunity to continue working to their full potential (Re Finch and Telstra Corporation [1998] AATA 557). I agree that rehabilitation is an important function of an employer to whom the Act applies and that the applicant’s inaction in pursuing a reconsideration has left Australia Post unable to discharge one of the functions of a responsible employer. Equally, the applicant will suffer by missing this opportunity.
22. It was also submitted by the respondent that it has suffered prejudice in not being able to have the applicant assessed by medical specialists since 27 March 2002, when he was last examined by Dr Gliksman. That is not an overly long period. I will not place too much weight in this submission. If the application for an extension of time were granted, Australia Post could request an updated report from Dr Gliksman. They could also consider approaching Dr McDowell to update his report or obtain a report from another neurosurgeon. Also, I accept the applicant’s submission that Australia Post has not demonstrated that it would be unable to locate the witnesses to the accident on 26 April 2001. I am mindful, however, that absence of prejudice is not enough to warrant granting the extension (Hunter Valley Developments). In any event I place more weight here in the submission of presumptive prejudice (Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 per McHugh J) and accept that when the applicant did not act by requesting a reconsideration after receiving the letter of 20 January 2003, the respondent would have been led to presume that the matter had been concluded and thus it could adjust its affairs accordingly.
23. As for the merits of the applicant’s compensation claim, Mr Curran submitted that the accident on 26 April 2001 was the probable, initiating cause of his client’s serious neck injury and consequent neurological developments affecting the use of his arms. There is no suggestion that in the two years of employment prior to the accident, while he performed quite physically arduous work, he had any symptoms of the condition from which he now suffers. It was submitted that the injury rendered Mr Vasilopoulos vulnerable to a more serious complication and this occurred when he was lifting cement while at home on annual leave in May 2001. His condition was aggravated again in a motor vehicle accident in July 2001 in which the car was written off.
24. The respondent candidly admitted that Mr Vasilopoulos suffers from a serious condition and his case was not entirely devoid of merit, but the contribution of his employment at Australia Post to that condition was a very live issue. Mr Kelly emphasised that there was no mention of injury or complaint involving the neck on 26 April 2001 in the witness statements given by Mr Vasilopoulos’ work colleagues. No treatment was sought and he did not attend hospital, which should be contrasted with what happened following the injury in May 2001 while at home gardening and the car accident in July that year. The contribution of that injury must be assessed in context. There is evidence of a whiplash injury to the neck about twelve years earlier. The history taken by Dr McDowell was that Mr Vasilopoulos experienced neck pain during the two years prior to the injury in May 2001 but not previously, a history which Mr Vasilopoulos disputed telling the doctor. Mr Kelly pointed out a number of gaps in the histories given by Mr Vasilopoulos. Dr Rockman, for instance, was not told about the neck pain suffered after lifting the cement. Dr Gliksman did not know about the whiplash injury twelve years ago; two work injuries suffered while Mr Vasilopoulos worked for Kelloggs; a period of twelve months sick leave taken around 1992-93 for back pain brought on by gardening; or neck pain radiating into the left shoulder causing numbness in the left arm and shoulder and as a consequence Dr Carroll’s referring him for an x-ray of the cervical spine in January 1994 (exhibit R4).
25. It would be wrong for the tribunal in an extension of time application, to embark upon a trial of the merits. Taken at its highest, I am satisfied on the material before me that it could be open to find that the injury to the applicant’s neck, being a disc protrusion at C5/6 and ongoing left upper limb radiculopathy, or an aggravation of that condition, arose out of his employment at Australia Post and the injuries sustained on 26 April 2001 (see the Full Federal Court’s judgment in Commissioner of Taxation v Brown (1999) 42 ATR 672 at [20]).
26. Mr Kelly submitted that public considerations such as the unsettling of established practices and considerations of fairness as between the applicant and others in a similar position, can be relevant in this case but only in a general sense. In his submission those principles from the Hunter Valley Developments case do not have specific application here.
27. I understand that my task in deciding an application of this kind is as follows:
… [it] is essentially a balancing exercise the focus of which is the period of time that has elapsed since the cause of action arose and, in particular, since the expiry of the time limit. What must be balanced is the consequences of the time having elapsed and why it has elapsed. The balancing exercise would ordinarily involve a consideration of the impact on the interests of the affected parties of a decision to extend, or to refuse to extend, time. The explanation given by an applicant for an extension of time as to why an application was not brought earlier might be a particularly compelling one. In that circumstance the decision maker might conclude that the balance favoured the extension of time even though the adverse effect on the other party was a material one. If, on the other hand, the explanation was not a compelling one then the decision maker might conclude that even some minor adverse effect on the other party justified the extension of time being refused. (Agar v Australian Postal Corporation (1998) 56 ALD 361 at 370, Moore J)
28. In carrying out the balancing exercise I acknowledge the submission regarding the severity of the applicant’s condition and the possibility that he has a substantial claim. I have found that at its highest, Mr Vasilopoulos has an arguable case on the merits. But I also recognise that such a consideration will not automatically determine the success of an application for an extension of time (Comcare v Smith [1997] 140 FCA). Moreover the Full Federal Court in Brown said having an arguable case is but one consideration:
We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer's case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration. In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer's evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer's claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate. (at [28])
Here the case’s apparent weakness lies in the prior history of neck injury, symptoms and investigations; the accounts of the injury and pain given by the witnesses from work; and the injuries to the neck that happened subsequent to 26 April 2001.
29. On the whole I am satisfied that the presumptive prejudice, the thin explanation for the delay and the apparent weakness in the applicant’s case favour the respondent in this application. That prejudice mainly arises from Mr Vasilopoulos’ failure to pursue a reconsideration despite the numerous reminders from Australia Post over a long period that he get in touch to discuss his absence and possible medical retirement. In such a situation Australia Post ought be able to proceed on the reasonable presumption that the matter had been concluded. I find that Mr Vasilopoulos’ explanation for the delay is not compelling. He has ignored requests to follow up on correspondence from Australia Post despite being fully aware of the time frame in which a reconsideration should be requested. I do not accept Mr Vasilopoulos’ evidence that he or his wife communicated with Ms Crompton-Smith by telephone in such way that would indicate that he was pursuing a reconsideration. It is not consistent with the additional three months that ensued before he consulted his present solicitors. The 23 months that elapsed between the making determination and the reconsideration request is a not inconsiderable period of delay.
30. Accordingly, it is my decision that in all the circumstances it is not fair and equitable to exercise the discretion to extend time for reconsideration of the determination. The decision under review should be affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:
Signed: .....................................................................................
AssociateHearing 22 April 2004
Decision 13 July 2004
Counsel for applicant Mr CurranCounsel for respondent Mr Kelly
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