Wallace and Comcare - [2001] AATA 865

DECISION AND REASONS FOR DECISION [2001] AATA 865

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/302

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CHRISTOPHER RICHARD WALLACE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date17 October 2001
PlaceCanberra

Decision      The decision of the Respondent dated 4 August 2000 is set aside. In substitution for that decision the Tribunal decides that the date by which the Applicant is to be permitted to request a reconsideration of the Respondent's decision of 2 December 1996 is to be 7 July 2000.
  .....M Sassella....
  Senior Member
CATCHWORDS
Workers' Compensation – application for extension of time in which to lodge an application for review – prejudice to the respondent – whether reasonable explanation for delay in lodging application – agitation in other forums – merits of the applicant's case
Safety, Rehabilitation and Compensation Act 1988, ss 60 (definitions of "decision", "determination"), 62(1), (2)(a), (3), (4), (5).
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

REASONS FOR DECISION

M J Sassella, Senior Member

History of the application

On 4 June 1969 Christopher Richard Wallace ("the Applicant"), working at the Government Printing Office, completed an accident report in respect of a "back strain" (T4). The incident itself occurred some two weeks before the report was completed, on 20 May 1969. The Applicant was employed as a trainee apprentice at the time.
On 17 June 1969 the Applicant wrote to the Commissioner for Employees' Compensation ("the Commissioner"), the predecessor to Comcare ("the Respondent"), providing a report of the workplace accident (T5). He stated that when he was lifting stock on to the feedboard of the printer he felt a stab of pain in his back and in his stomach. The Applicant visited his doctor and was diagnosed with lumbosacral strain.
On 9 July 1969 the Commissioner provided the Applicant with a summary of his compensation benefits in respect of his back strain (T6).
On 9 July 1969 the Applicant lodged a claim for compensation with the Commissioner (T7).
On 24 July 1969 the Commissioner completed a summary of the Applicant's workplace accident (T8). Liability was accepted by the Commissioner pursuant to s 9 of the Commonwealth Employees Compensation Act 1930.
On 24 July 1969 the Commissioner wrote to the Applicant, informing him that his claim had been accepted and that he was entitled to compensation for the dates 22 May and 23 May 1969 (T9).
On 25 July 1969 the office of the Commissioner wrote to the Applicant attaching its determination in respect of the workplace accident of 20 May 1969 (T10).
On 19 December 1969 the Applicant completed another claim for compensation form (T11). He stated that he was claiming compensation in respect of lumbosacral strains incurred "approx 4 months after accident (Sept 20)". He further stated that he was incapacitated on the dates 3, 5, 8 and 12 December 1969.
On 16 January 1970 the Commissioner, in a determination of that date, accepted that the Applicant sustained an injury (recurrence of lumbosacral strain) on 2 December 1969 (T12). He was granted compensation payments for the periods he was absent from work and his medical expenses were approved for payment.
On 25 February 1971 the Applicant lodged another claim for compensation with the Commissioner (T14). The condition claimed as causing incapacity for work was "recurrence of lumbosacral strain" on 6 January 1971.
On 3 March 1971 the Commissioner determined that the Applicant did sustain an injury on 6 January 1971 and approved compensation payments for the period 6 January 1971 to 12 January 1971 inclusive (T15).
On 18 July 1977 the Applicant completed a compensation form in respect of his back injury (T19). This was a retrospective claim for 3 December 1969.
On 3 March 1981 the Applicant completed another claim for compensation in respect of "operation on spine (left leg)" (T24). At this time he was working for City Parks Administration. The Applicant was at home on 13 February 1981 when his left leg gave way due to a pinched nerve in the lumbar region. He was admitted to casualty and then underwent an operation on 16 February 1981 (T25). The Applicant was then off work.
On 26 February 1982 the Commissioner determined that the Applicant was entitled to compensation payments for the periods 14 July 1977 to 2 December 1977, 4 February 1981 to 31 August 1981 and 1 September 1981 to 12 February 1982 (T30). He was also given the sum of $12,038.07 for medical expenses related to his injury.
On 9 March 1982 the Commissioner wrote to the Applicant informing him that the Commonwealth accepted liability for his injury sustained on 14 July 1977 (T31).
On 7 January 1983 the Commissioner issued a determination revoking that of 22 July 1982 (T37). It noted that the Applicant had been partially incapacitated for work since 15 February 1982. He was paid compensation for the periods 15 February 1982 to 30 April 1982, 1 May 1982 to 31 October 1982 and from 1 November 1982 until further notice.
On 7 July 1996 the Applicant wrote to the Respondent asking whether, in the event that he accepted a Department of Defence redundancy package, the Respondent would continue to meet his medical expenses (T45). He stated that he would not accept any redundancy offer without confirmation of this.
On 30 July 1996 the Respondent informed the Applicant that if he accepted a redundancy package he would be entitled to medical expenses but not to incapacity payments (T46).
On 14 August 1996 the Respondent notified the Applicant that liability would be ceased in relation to the Applicant's condition without any further medical evidence to support the claim (T47). The Respondent relied on the report of Dr Roth of 15 March 1996 (T42). The Respondent also relied upon video footage of the Applicant undertaking various strenuous activities without any sign of discomfort.
On 2 December 1996 the Respondent wrote to the Applicant notifying him that it was ceasing liability for payment of expenses relating to the injury "aggravation of lumbo sacral spine" as of 2 December 1996 (T49). The Applicant had supplied a certificate from Dr Meyer (T48), but the Respondent was of the opinion that it did not outweigh the report of Dr Roth or the video evidence.
On 7 July 2000 the Applicant's representative wrote to the Respondent (T54) seeking a reconsideration of the decision of 2 December 1996 (T49). The Applicant submitted that he was not aware that the 1996 decision related to both incapacity and medical expense payments. Further it was contended that the report of Dr Roth did not support the Respondent's decision. The Applicant was on a social security disability support pension and was now totally incapacitated.
On 3 August 2000 the Applicant again wrote to the Respondent (T55). Included were the medical examiner's report and the CMO assessments in relation to the Applicant's disability support pension. The Applicant sought compensation coverage from 9 October 1998.
The decision under review
The decision under review is that of 4 August 2000 (T56). This decision rejected the Applicant's request for a reconsideration because the request was made out of time. The Applicant stated that he was caring for his sick mother and only became aware of the full implications of the Respondent's 1996 decision in the middle of 1998. He then sought legal advice in May 2000. The Respondent was aware of no evidence that the Applicant had ever expressed his dissatisfaction with the decision. As a result of the delay in lodging a request for reconsideration, the Respondent found that its case had been prejudiced. It would be costly to obtain medical evidence and to investigate the credibility of the Applicant. Further, without conducting a formal reconsideration of the evidence, the Respondent was of the opinion that the evidence supported the determination of 2 December 1996.
On 9 August 2000 the Applicant lodged an application for review of the above decision with the Administrative Appeals Tribunal ("the Tribunal") (T2).
Background
The Applicant was born on 20 July 1952. He was working for the Government Printing Office when he sustained the back injury described earlier in these reasons. He subsequently worked for the City Parks Administration and, from 15 February 1982, the Department of Defence as a clerical officer.
On 5 May 1969 the Applicant sustained an injury to his lower back while working as an apprentice for the Government Printing Office (T42). He was lifting 100 sheets of cardboard on to a printing machine when someone called to him. When he turned around he developed lower back pain. The Applicant has complained of lower back pain ever since this injury.
The Applicant sustained a further injury in the middle of 1977 when working for the City Parks Administration (T42). He was pushing a motor mower and his back gave out on him. He developed pain in the lower back and in the right leg and foot. The Applicant underwent a L4/5 discectomy in July 1977, which relieved the pain and numbness in the right leg.
In January 1981 the Applicant was at home when he got out of bed and developed lower back pain and pain in the left leg and foot (T42). He underwent a lumbar laminectomy at that time. The Applicant was of the opinion that this particular operation was really of no great help in relieving his pain.
On 16 November 1981 the Applicant underwent a lumbar rhizolysis and alar transverse fusion operation (T42). This operation relieved his back, leg and foot pain.
On 10 December 1993 the Applicant sustained a further injury while getting up from his desk (T42). Again he developed lower back pain and further pain in his left leg and foot.
Documentary medical and other evidence
On 22 August 1977 Dr Robson, neurosurgeon, reported on the Applicant (T20). A myelogram showed a disc protrusion with nerve root involvement at L4/5 on the right. On 25 August 1977 the Applicant underwent a "simple disc excision L4-5 right side" operation.
On 28 November 1977 Dr Robson wrote to Dr Andrews, the Applicant's doctor, stating that the Applicant was "in fact very well indeed, has been discharged from my care." Also on this date Dr Robson certified that the Applicant was "fit to resume his normal occupation as from 29.11.77" (T22).
On 26 February 1981 Dr Newcombe, neurosurgeon, reported to Dr Saw on the Applicant's condition (T23). He noted the Applicant's extreme pain and partial left foot drop and L5 sensory loss. The Applicant underwent an operation on 16 February 1981 and Dr Newcombe found "in addition to lumbar canal stenosis due to tilt of L5 vertebra following his laminectomy there was also a large pad of scar tissue in relationship to the L5 root."
On 3 April 1981 Dr Newcombe wrote to Dr Welch, the Commonwealth Medical Officer ("CMO") (T26). He noted that on 27 March 1981 the Applicant was still having some paraesthesiae in the left lower limb.
On 25 January 1982 a medical examination for continued employment or retirement on invalidity grounds was completed by a CMO, Dr Thompson (T28). The Applicant was 29 years old at the time and his occupation was classified as "gardener." It was noted that the Applicant was now "practically pain free" but he was advised to seek alternative employment that did not involve lifting or bending. His prognosis was described as "good" but he was declared unfit for his current employment and it was recommended that he be redeployed into a clerical position.
On 26 January 1982 Dr Newcombe wrote to Dr Saw, stating that the Applicant's "post-operative response was very gratifying…he has a little low back pain and left sciatica after rising in the morning for an hour or so…" (T29).
On 5 May 1982 Dr Newcombe wrote to the Department of Defence with information on the Applicant's condition (T34). He stated that the Applicant was "now doing well and is pain free". Further he stated that,
"he is known to have lumbar arachnoitiditis ie adhesions to of the nerve roots at the lower end of the spinal canal following his chronic back problem but future disability is not expected from this cause in view of the current excellent status…"

On 9 February 1994 the Applicant was examined by Dr Ashman, orthopaedic surgeon (T38). The Applicant complained of low back and left leg pain since December 1993. Dr Ashman noted "chronic episodic low back pain and left leg pain since an original work injury in 1969…" He further noted the x-ray taken in January 1994 which showed "narrowed L4-5 and L5-S1 disc spaces with a midline decompression extending from L4-S1 but not evidence of any bone grafting."
On 16 February 1994 Dr Ashman reviewed the Applicant with the benefit of a MRI scan (T39). The scan confirmed that the Applicant had degenerate discs at L4-5 and L5-S1 with epidural fibrosis from his previous surgery and narrowing of the left L5 and S1 nerve root canals.
On 9 January 1995 the Applicant underwent an examination to assess his fitness for continued duty (T40). The CMO noted variable back pain, mainly left lumbar and radiating to his left leg. The CMO diagnosed left sciatic nerve compression which would require an operation to fix the condition. It was further stated that the Applicant would be unfit for work until he had recovered from the operation and that he could not do any type of work until there was relief from the pain.
On 12 March 1996 in an internal minute that documented a telephone call with the Applicant (T41), the Applicant explained that he did no lifting but was able to supervise others. Further the Applicant was "fed up with" doctors and had decided to put up with his back pain.
On 15 March 1996 Dr Roth from Mardol Medical Services completed a lengthy report on the Applicant's condition (T42). He took a detailed history of the Applicant's workplace incidents and surgical intervention. This has been summarised in the background section of these reasons. Dr Roth, in addition to examining the Applicant, viewed three videotapes that showed the Applicant undertaking various activities. On the basis of clinical examination and the viewing of the videos, Dr Roth stated,
"Despite the fact that clinical examination showed restriction of movement in the lumbar spine, the information contained in the videos which I viewed, showed him to have unrestricted movement in his spine and he was seen to perform a wide variety of activities without obvious difficulty or discomfort, including bending, lifting and squatting and he was also seen to trowell concrete repeatedly without displaying any obvious discomfort or restriction. He was seen to be able to move quite freely and briskly without obvious difficulty or discomfort. Quite clearly his disability related to his back is not great and he is able to perform a wide range of activities that have been clearly demonstrated on the videos which I viewed…"

Dr Roth found that the prognosis was uncertain, but residual symptoms would continue indefinitely. Further treatment was unnecessary for the degenerative disease.

On 2 July 1996 Comcare's investigation unit reported on the Applicant, whom they had placed under surveillance (T44). The report noted observations that the Applicant seemed to have no restrictions of movement whatsoever. The Applicant was seen involved in concreting a driveway which involved bending, lifting and turning, without any apparent discomfort. He was observed pushing a wheelbarrow full of sand and lifting a cement mixer. It was concluded that the Applicant was living a normal lifestyle without any restriction or discomfort. It was also recommended that liability for the injury be re-examined by the claim manager.
In a medical report of 6 September 1996 Dr Meyer report that the Applicant was not fit for any employment, either full- or part-time, until he was properly treated for the left leg condition (T48).
On 23 October 1996 Dr Meyer provided a report on the Applicant after having viewed the video evidence (Exhibit A4). He was surprised at the Applicant's mobility but noted the intermittent nature of the pain. He considered that a reappraisal of the Applicant's fitness for work may be appropriate.
On 29 November 1996 Comcare's Scott Higgins wrote a file note that referred to a conversation with the Applicant (Exhibit R7). He stated that the Applicant had wanted to resign from his position at the Department of Defence. The last reference in the file note was, "Advise officer that he will not be covered by compensation should he resign."
On 3 December 1996 Mr Higgins made another file note in reference to a conversation with the Applicant (Exhibit R8). He advised the Applicant about compensation and liability if he were to resign, and noted that the Applicant had corrected him by saying that Comcare had advised him that they would accept responsibility for medical expenses. Mr Higgins further stated that the Applicant was well aware of the implications of resignation but he wanted to resign because he needed the money to pay outstanding debts.
On 29 August 1998 a treating doctor's report was provided to Centrelink by Dr Meyer in relation to the Applicant's application for a social security disability support pension (T50). His diagnosis was "L4-5, L5-5?, disc lesion (chronic)". He listed the clinical features of the Applicant's condition as "chronic and severe pain and incapacity, paraesthesiae both legs and feet intermittently."
On 9 October 1998 Health Services Australia examined the Applicant for the purposes of a whole person assessment (T52). This report contained a history of the Applicant's medical and employment history and his current pain levels. In conclusion it was stated, "he is unlikely to benefit from vocational rehabilitation or retraining."
On 7 August 2000 a social security medical officer report dated 9 October 1998 was lodged with Comcare (T53). It is largely illegible but it does note the Applicant's medical history and that he has only a 50% range of normal movement. It further noted that the Applicant has to use both hands to rise from a chair and that he needs a rail to climb stairs. The report also noted constant pain and the Applicant's inability to walk more than 250-500 meters.
On 5 September 2000 Dr Schellenberger provided a report on the Applicant (Exhibit A3). She stated that the "low back complaint creates a permanent impairment with a permanent partial incapacity…he will never rejoin the workforce…" She further stated that the Applicant was prone to future lumbar disc deterioration. Dr Schellenberger concluded:
"In answer to your specific query, Mr Wallace has never recovered from the original injury in 1969. Thereafter aggravations in the employ of the public service caused more significant incapacity and restriction in his activities and necessitated three major back operations. I estimate that the original injury contributes to approximately 50% of his current situation. The other aggravations in the employ of the public service account for the remaining 50%."

On 14 September 2000 Dr White, neurologist, reported on the Applicant (Exhibit A2). He took detailed notes of the Applicant's medical and employment history. It was his conclusion that the Applicant's condition is as a result of the original 1969 injury and that the Applicant was unfit for work or would be in the future. The Applicant's prognosis was for "minimal improvement at best and stabilisation possibly. There is a distinct possibility that he will have further deterioration in the future."
On 10 January 2001 the Applicant signed an affidavit (Exhibit R1). He detailed his medical and work history. He stated that it was not made clear to him that he would not be entitled to medical expenses payments from Comcare as a result of the decision of 2 December 1996. The Applicant was transferred from a social security carer pension to a disability support pension after his mother died on 10 February 1998. The Applicant further stated in this affidavit that he went to Comcare and spoke to a man about his claim and was given the advice that he had no grounds of appeal in relation to the refusal of ongoing liability. It was only on 26 May 2000 when he sought legal representation that he was made aware that he could in fact appeal the decision. He sought compensation from 9 October 1998, the date when he was granted disability support pension for his back condition.

On 15 February 2001 Ian Reid, an employee of Comcare, signed an affidavit to the effect that he had no recollection of any conversation with the Applicant in regard to liability (Exhibit R1). He denied giving him the advice that he could not appeal the determination denying liability and stated that if he had, he would have documented the conversation in a file note.
On 16 February 2001 Tanya Wheeler, a former employee of Comcare, signed a statement to the effect that a letter had been sent to the Applicant denying any liability in relation to his back condition (Exhibit R2).
Also on 16 February 2001 Comcare's Alex Brown signed a statement which essentially provided the same information as that in Exhibit R1, in that he denied any conversation with the Applicant or giving any advice in relation to his claim (Exhibit R3).
On 19 February 2001 Ms Madeleine Sutton, an Instructing Officer at Comcare, also signed a statement (Exhibit R4). She conducted a specific search in order to find out whether there was any record of any conversation with the Applicant in regard to his claim and advice that he was given. Ms Sutton found none and attached to her statement computer print outs which did contain records of the Applicant's case. There was no record of the Applicant having attended Comcare at any time after 2 December 1996.
On 19 February 2001 Dorothy Doherty, personnel officer at Comcare, provided a statement to the effect that the list of possible male employees with whom the Applicant may have had contact, was as exhaustive as possible (Exhibit R5).
On 26 March 2001 Leone Moyse, General Manager, Corporate Management Division at Comcare, signed a statement to the effect that Comcare moved from the Allara Street premises to Moore St on 29 June 1997 (Exhibit R11). No Comcare employees were accommodated at Allara St after that date.
Relevant legislation
The following provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") are relevant: sections 60 (definitions of "decision", "determination"), 62(1), (2)(a), (3), (4), (5):
"Section 60 Interpretation
60. (1) In this Part:
…
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975;
"determination" means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B (5) (a) or under Division 3 of Part X;
…"
"Section 62 Reconsideration of determinations
62. (1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
…
(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."

Hearing and appearances

The Tribunal convened a hearing which was held in Canberra on 26 February 2001 and 1 May 2001. Mr John Harris represented the Applicant. Mr Stuart Pilkinton represented the Respondent.
The following documents and videotape were taken into evidence at the hearing:

Exhibit TD1, Section 37 Statement and associated documents received on 7 September 2000.
Exhibit A1, affidavit of the Applicant dated 10 January 2001.
Exhibit A2, report of Dr White dated 14 September 2000.
Exhibit A3, report of Dr Schellenberger with attachments dated 5 September 2000.
Exhibit A4, letter from Dr Meyer to Comcare dated 23 October 1996.
Exhibit R1, statement of Ian Reid dated 15 February 2001.
Exhibit R2, statement of Tanya Wheeler dated 16 February 2001.
Exhibit R3, statement of Alex Brown dated 16 February 2001.
Exhibit R4, statement of Madeleine Sutton dated 19 February 2001.
Exhibit R5, statement of Dorothy Doherty dated 19 February 2001.
Exhibit R6, video of the Applicant by Executive Investigations.
Exhibit R7, record of conversation made by Scott Higgins on 29 November 1996.
Exhibit R8, record of conversation made by Scott Higgins on 3 December 1996.
Exhibit R9, reports on the Applicant by Executive Security and Investigations and covering letters.
Exhibit R10, Executive Investigations original run sheets.
Exhibit R11, statement of Leone Moyse dated 26 March 2001.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

The decision under review in this application is the decision of the Respondent (T56) not to engage in the reconsideration that the Applicant requested because it was requested almost four years after the last day on which it should have been requested in accordance with s 62(3) of the Act.
It is well established that, in considering issues relating to whether a claimant should be permitted an extension of the time allowed for the making of a claim, the principles set down by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 are applicable. In a case such as this, where a person is asserting his private rights, the elements from the Hunter Valley case (supra) that are crucial are:
Whether there is a reasonable explanation for the Applicant's delay in asserting his rights.

Whether the Applicant was agitating his claim in another forum at the relevant time.

Whether the Respondent would be prejudiced if an extension of time is granted.

The strength of the merits of the Applicant's case.

Is there a reasonable explanation for the Applicant's delay?

The Applicant's evidence on this point was as follows. In Exhibit A1 the Applicant deposed that he resigned from work in the Department of Defence on 29 November 1996 (paragraph 22). On 2 December 1996 the Applicant received a letter from the Respondent (T49) regarding his entitlements. He understood this letter to mean that the Respondent would continue to pay his medical expenses but not make incapacity payments. He deposed that the letter did not alert him to his right to seek a reconsideration.
The Tribunal notes that on its face T49 does not refer to reconsideration or appeal rights but it does refer to an enclosed letter that the Respondent told the Tribunal was a notice of such rights. The Tribunal notes also that T49 speaks in terms of a determination having been made "that Comcare is no longer liable to pay expenses relating to [the Applicant's] injury aggravation of lumbo sacral strain" as of close of business on 2 December 1996. This would appear on its face to refer to medical expenses, along with any other type of expense.
The Applicant's evidence was that he lodged no medical accounts with the Respondent between December 1996 and the middle of 1998. In mid-1998 he sought payment for a MRI scan and this was refused. The Applicant's evidence was that he discussed this with a Comcare officer in 1998 but that the officer did not suggest that the Applicant had any review rights at that time. The Applicant says that he then visited Comcare and spoke to the person he had dealt with on the telephone. He went to the office in Civic, where he had delivered medical reports in the past. He described that visit in detail. He went to the information counter. He asked to speak to someone about his problem. A man emerged. He is described in Exhibit A1 (paragraph 26) as a man about 50 years old, about 175cm tall, with a thin build and receding hairline. Paragraphs 26 to 28 of Exhibit A1 record the conversation:
"He told me that Comcare had ceased liability for everything.
"I said, 'How do I appeal this?'
"He said, 'There is no course for appeals because you have already appealed when you got your doctors report' or words to this effect."

The Applicant was present in the Comcare office for six or eight minutes. The Applicant identified Mr Reid as the officer to whom he had spoken when he saw Mr Reid in the Tribunal hearing room.
In paragraphs 29 to 32 of Exhibit A1 the Applicant explains that he saw a solicitor in May 2000 as a result of a discussion with a drinking friend. He was advised that he had a right of review of the December 1996 decision. The solicitor wrote on his behalf to the Respondent seeking a reconsideration. On 26 October 2000 the Applicant was injured when he fell off the steps to his caravan. He was unfit to travel from then until January 2001.
In an effort to put this explanation into context, Mr Pilkinton cross-examined Mr Wallace and elicited the following information.
The Applicant had lodged compensation claims since 1969. He had received notices of rights every time. He had queried the correctness of certain compensation determinations over the years, notably in March 1982 and January 1992 when he had successfully queried the rate of his incapacity payments. He had done this by speaking with someone in the Commissioner's or Comcare's office, or with someone in Defence or by telephone.
The Applicant agreed that he spoke with Comcare when he required information. In particular, he spoke occasionally with Mr Ian Reid in Comcare. It was in this spirit that he wrote the letter at T45 on 27 July 1996. That letter was to Comcare for the attention of Mr Reid. It recorded that the Applicant was considering voluntary redundancy but would not accept redundancy "without confirmation … that, should [he] accept the offer, COMCARE will continue to meet [his] ongoing medical expenses in relation to [his] recognised injury and that [he] will retain that eligibility for all future medical costs". Mr Reid responded in T46 (30 July 1996) stating that the cost of medical treatment would continue to be covered "where medical evidence substantiates the fact that treatment being claimed is directly related to the accepted compensable condition/s". The Applicant stated that he read the later letter (T49) as applying only to regular incapacity payments, not to medical expenses, as a result of Mr Reid's letter at T46. Mr Wallace insisted that he had not received a notice of rights with T49. He had filed that letter with all other relevant material and no notice of rights was on file. By the date of the hearing the file had been misplaced. The Applicant denied all knowledge of any right to a reconsideration if requested within 30 days. He said he was also unaware in 1996 of the Tribunal's jurisdiction.
Mr Pilkinton queried why the Applicant had not submitted medical claims to Comcare in 1997-1998 if he believed he was still covered. The Applicant explained that the accounts were bulk billed through Dr Joseph in Manuka. There was considerable discussion as regards the actual doctors seen by the Applicant. The Applicant had seen Dr Meyer for a considerable period and had submitted his accounts to Comcare for payment. He ceased submitting accounts after December 1996, suggesting that he understood that Comcare had ceased its liability for such payments. The Applicant tended to suggest this was because he had begun to see Dr Joseph who bulk billed for him. Mr Pilkinton however indicated that the Applicant was still seeing Dr Meyer as late 19 May 1998 for a twinge in his back. Mr Pilkinton pointed to a note in Dr Meyer's records where on 14 February 1997 Dr Meyer sent the Applicant for an ultrasound for cirrhosis of the liver. The Applicant explained that he had ceased seeing Dr Meyer not because of any cessation of coverage by Comcare but because Dr Joseph was situated in a more accessible location.
Mr Pilkinton raised issues surrounding the Applicant's redundancy. In paragraph 22 of Exhibit A1 the Applicant wrote, "In November 1996 I was told by officers of the Department that if I did not return to work my employment would be terminated on 2 December 1996. At that stage I knew I could not cope with clerical duties, my mother was not well and I had some financial difficulties so I resigned from the Department of Defence on 29 November 1996". Mr Pilkinton put to the Applicant that he was not given that ultimatum, that he phoned a Mr Higgins about late certificates and said that he wanted to "pull the plug" and resign in order to obtain separation funds because of a debt owed to AVCO. No redundancy package was on offer. Mr Higgins counselled the Applicant against this but the Applicant proceeded because of the cessation of his Comcare payments. Exhibits R7 and R8 were admitted. These are Mr Higgins's file notes on these matters dated 29 November and 3 December 1996. R8 does contain Mr Wallace's statement that he believed Comcare would still cover his medical expenses. The Applicant continued to insist that he had been threatened with dismissal if he did not resign.
Considerable attention was paid to Mr Wallace's alleged visit to Comcare in 1998. The Applicant told Mr Pilkinton he visited Comcare in the CAGA Building in Civic. Mr Pilkinton put to the Applicant that at that time Comcare was in the CFM Building in Civic, nowhere near the CAGA Building. He alleged that the Applicant made up the story that he had visited Comcare and engaged in the conversation reported in Exhibit A1. Mr Pilkinton referred the Applicant to the letter at T54 dated 7 July 2000 from his solicitor to Comcare in which there is no mention of the alleged conversation at Comcare in 1998. It was suggested that the Applicant had not told his solicitor of that conversation and that the conversation had not occurred. The Applicant could not recall when he told his solicitor about the conversation. He insisted that the conversation occurred.
Agitation of matter in other forums
It is not the Applicant's evidence that he did agitate this matter in other forums. He says that he believed that he was still covered by Comcare for relevant medical expenses and so there was no cause for ongoing complaint.
Prejudice to the Respondent
Mr Pilkinton argued that there is prejudice to Comcare. Comcare will have real difficulty obtaining medical evidence as to the Applicant's claim that his condition has worsened since 1996.
The merits of the Applicant's case
This issue occupied much of the Tribunal's time. The cornerstone of the Respondent's argument that the Applicant's case lacks merit is a videotape with observations recorded on many dates, 5 January 1996, 6 January 1996, 7 January 1996, 15 January 1996, 2 February 1996, 29 March 1996, 12 July 1996 and 15 July the1996. The video evidence is Exhibit R6. A report by surveillance investigators is in Exhibits R9 and R10. This evidence could assist the Respondent doubly in (i) throwing doubt on the Applicant's credibility generally, and (ii) suggesting that he has little chance of success in his attempt to have liability for payment for his medical expenses reinstated.
The Applicant conceded in evidence that the video evidence was prejudicial. He said that he was "caught out". Mr Pilkinton took him through his evidence as regards what he had told Comcare about his activities at this time.
The Applicant last worked in September 1993. He said that he had had no paid work from that time. He had assisted others with "a couple of little things" from time to time. He denied running a panel beating business from home. A friend used his backyard and the Applicant helped out a little. A few cars had been spray painted from the house. The Applicant received no money for any of this. The Applicant was referred to T41, a file note by Mr Reid detailing the Applicant's account of his activity as at 12 March 1996. T41 reads:
"... He proceeded to explain to me how he did odd jobs around the home for his mother. He made a point of telling me that he also helped out his mates by helping work on their cars and had supervised concreting a neighbour's drive. He explained that he did no lifting but because of his skills he was able to supervise others to carry out the jobs. He also went on at great length to tell me about his possible further back surgery and how he was getting a second opinion. He said that he was fed up with doctors and had decided for the moment, to just put up with his back problem...."

Mr Pilkinton put to the Applicant that he lied to Mr Reid. He had done more than supervise the concreting. He had wheeled barrows full of concrete. The Applicant denied this, saying he did what he could when he could. Mr Pilkinton relied on what the videotape demonstrated. The Applicant said that the video did not show when he had to lie down and could not get out of bed. It ran for only three hours and a half despite being taken over seven months. He denied that he had been fit for clerical duties back in the Department of Defence. He develops pain when sitting and has to walk around every 15 minutes. He was "abused" if he stood up. He cannot lift and move files.
Mr Pilkinton put to the Applicant that he had not told Dr Meyer about his spray painting and concreting. Dr Meyer had expressed surprise when he saw the video (Exhibit A4). The Applicant replied that he had told Dr Meyer that he does try and do things. Dr Meyer had expressed surprise that the Applicant could be seen in the video lifting a box trailer. The Applicant said that the trailer was balanced and could be moved with one or two fingers. The Applicant said he did some heavy labouring work in the video because he has a strong work ethic, his back was "stuffed" anyway and the work was not all that heavy in any event.
The Tribunal viewed the videotape. Amongst other things it showed:
The Applicant's ease of squatting. The Applicant could bend double and straighten without substantial problems.

The Applicant spray painting a car – work he said was easier than clerical. He described the heavy elements of clerical work as emptying wheelie bins of copy paper once or twice a week. He had to sit constantly at a computer. He had to lift and bend while processing pallets of files. He flexed and bent sideways doing spray painting.

The Applicant and another transferring a 20 kg bag of cement mix from a car boot into a wheelbarrow. On a later date he moved and emptied the wheelbarrow without assistance. The Applicant stressed that it was not completely full.

The Applicant pulled the box trailer freely.

The Applicant bent to a near 90 degree angle when leaning into the car boot.

The Applicant engaged in concreting. He trowelled and smoothed the surface. He rose and moved around in a lumbering fashion.

The Applicant shovelled wet cement into a wheelbarrow.

The Applicant's activities were inconsistent with his story to Mr Reid that he had merely supervised.

The Applicant lowered a heavy cement mixer alone.

Other evidence

The Respondent called two witnesses. These witnesses, and the gist of their evidence, were as follows:

Mr I G Reid, a retired claims manager from Comcare. He had written a statement (Exhibit R1). He does not recall a conversation with the Applicant in mid-1998. There is no file note of such a conversation. He would have completed a file note had he conversed with Mr Wallace. He would have canvassed Mr Wallace's receipt of a notice of rights and pursued with him the contents of such a notice. He would not have told the Applicant that he had no appeal rights, if asked. He would have told Mr Wallace how to appeal the decision. Mr Reid had written T46 stating that relevant medical expenses would be paid after the Applicant resigned. He had written T47 a few weeks later, after seeing the video evidence, to alert the Applicant that his rights to compensation might cease. In cross-examination Mr Reid agreed that, in view of T46, the Applicant may have read T47 as applying only to incapacity payments, although it was intended to relate to all heads of compensation. Me Reid conceded that T47 might be ambiguous. Mr Reid agreed also that a person can qualify for ongoing payment of medical expenses while not qualifying for incapacity payments. Mr Reid agreed that some inquirers said that they had not received a notice of rights with their notice of decision. He agreed that he would tell a person making an inquiry if he or she was out of time to seek a reconsideration, however he would go further and tell them they could seek an extension of time.

Ms T L Wheeler, a former claims manager at Comcare. She had prepared the statement in Exhibit R2 and signed the decision letter (T49). She was in a position to state that a notice of rights was attached to the letter of decision sent to Mr Wallace on 2 December 1996 and so said. One of her tasks was to check outgoing correspondence to ensure the attachment of these notices. In cross-examination, however, Ms Wheeler could not confirm that the notice had been attached in Mr Wallace's case.

Tribunal's consideration of evidence

At the heart of Mr Wallace's explanation for delay in seeking a reconsideration is his belief formed late in 1996 that he was still covered by Comcare for medical expenses. The Tribunal finds that Mr Wallace genuinely entertained this belief on the basis of correspondence (T46) he received from Comcare.
Mr Wallace's position is then that he read a letter from Comcare dated 2 December 1996 (T49) which referred to "Comcare [being] no longer liable to pay expenses relating to [the] injury aggravation of lumbo sacral strain" as referring only to the cessation of incapacity payments. Not without some trepidation the Tribunal finds that the Applicant understood this letter as leaving intact his entitlement to compensation for relevant medical expenses. The trepidation arises from the use of the word "expenses" in the letter. A reader with an elementary understanding of the Act and its terminology would clearly relate this to medical expenses and, possibly, to incapacity payments given the context. It is unusual to conceive of incapacity payments as "expenses" whereas this is the very way in which medical expenses are conceived. However, the Applicant is clearly not a professional practitioner of compensation law and had received what he saw as a definitive statement guaranteeing ongoing entitlement to medical expenses. In the Tribunal's view, it can find itself satisfied on the balance of probabilities that the Applicant read the letter as referring only to heads of compensation other than compensation for relevant medical expenses.
The Tribunal finds that the notice of rights was more probably than not attached to T49. The Tribunal notes the evidence that it is not unusual for an inquirer to claim not to have received such a notice. However, it notes also Ms Wheeler's evidence that Comcare had a quality control system in place to try and ensure that notices of rights were attached in all instances. The Tribunal finds that the Applicant more probably than not took little if any notice of the notice of rights because he believed that his coverage for medical expenses was safe, this being the matter of greatest interest to him.
The Tribunal finds that the Applicant most likely did not attend the Comcare office or query the situation as regards coverage for medical expenses in 1998. This is on the basis of the evidence of Mr Reid, a most impressive and balanced witness. The Tribunal considers that if the events described by Mr Wallace in paragraphs 25 to 29 had occurred he would have had information about seeking a reconsideration and would have done so. The Tribunal has accorded the Applicant considerable credit and credibility in these reasons despite the strength of submissions that it ought not to do so, but the Tribunal considers that the difficulties as to Mr Wallace's credibility assume some force in this particular issue. The Tribunal accepts that Comcare rejected payment of the cost of a MRI scan in 1998 but that the Applicant did not know what action to take, as suggested in the letter at T54. It has not been suggested that anyone provided the Applicant with a notice of rights at that stage.
The Tribunal finds that Mr Harris's explanation for the Applicant's failure to submit accounts to Comcare for some time after 1996 is more likely than not the correct explanation. The Applicant had in the main seen his general practitioner for medical certificates when he had been in receipt of incapacity payments. This was his main medical expense. He had no need to see his general practitioner when incapacity payments ceased in December 1996. He saw doctors far less frequently.
While it may be incumbent on a compensation recipient to read closely all the material sent to him or her by Comcare, if such a person does not read that material because it seems irrelevant at the time, and if as a result at a later date the person misses a deadline for the seeking of a review, then that deadline has been missed because of the person's ignorance. The Tribunal finds that excusable ignorance of the time limits can be a satisfactory explanation for the employee's failure to seek a reconsideration within the statutory time frame.
The Tribunal finds that the Applicant has a satisfactory explanation for his delay in this case.
The Tribunal finds that the Applicant did nothing to agitate his cause in any forum apart from Comcare and this Tribunal. The Tribunal finds that this is understandable because initially the Applicant did not understand that he had a matter of grievance and later he believed that he could not appeal.
The Tribunal finds that there is some potential prejudice to the Respondent if the Applicant is granted an extension of time. As Mr Pilkinton said or inferred, any claim by the Applicant for medical expenses is going to require an assessment of the trends in his medical condition since 1996. Had he appealed against the determination in 1996 there would not likely be any issue now arising suggesting any need to assess the Applicant's medical status from 1996 to 2001. Either he would have lost his appeal, or he would have won and medical assessments would have been placed on his Comcare file over the past five years. However, the Tribunal finds that this consideration should not preclude the Applicant from being granted an extension of time. It will in practical terms be a matter for the Applicant to satisfy the Respondent of his entitlement to any medical treatment. He is in the best position to know what relevant medical evidence exists and where it can be found. If there is a dearth of such evidence his claims are unlikely to be met.
The Tribunal has considered the wealth of evidence adduced by the Respondent suggesting that the applicant, at least in 1996, suffered very little from his compensable injury. The video evidence was highly persuasive. However, that evidence is dated. It may be that the Applicant's situation has worsened, and that may be because of compensable injury. The Tribunal notes also that the evidence shows that the Applicant has submitted more than once to operations for his condition that are serious, painful and often rejected by persons with disabilities. The Applicant has clearly had an organic basis for his problems. The Tribunal considers that the Applicant may have considerable difficulty pressing his claims to a successful conclusion at hearing because of his somewhat tarnished credibility, however the Tribunal at this stage has only to be satisfied that the Applicant appears to have an arguable case. The Tribunal so finds.
Conclusion
The Tribunal has found that the time within which the Applicant should be permitted to seek a reconsideration of the Respondent's decision of 2 December 1996 should be extended to 7 July 2000 in accordance with s 62(3)(b) of the Act.
Decision
The decision of the Respondent dated 4 August 2000 is set aside. In substitution for that decision the Tribunal decides that the date by which the Applicant is to be permitted to request a reconsideration of the Respondent's decision of 2 December 1996 is to be 7 July 2000.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         ..Diane Popple............
  For Associate
Date of Hearing  28 February 2001
Date of Decision  17 October 2001
Representative for the Applicant              Mr Harris
Representative for the Respondent        Mr Pilkinton