Woodward and Australian Postal Corporation (Compensation)

[2022] AATA 2467

Woodward and Australian Postal Corporation (Compensation) [2022] AATA 2467 (30 March 2022)

AppID:Woodward and Australian Postal Corporation

MatterType:  Compensation

Division:GENERAL DIVISION

File Number(s):      2021/8405; 2022/0335; 2022/0368

Re:Carl Woodward

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:30 March 2022

Place:Sydney

The extension of time applications in the following matters are refused:

(a)2021/8405;

(b)2022/0335; and

(c)2022/0368.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – applications for extension of time – substantive matter seeks review of comcare decisions – whether it is reasonable in all the circumstances to do so – delay – merits of substantive matter – prejudice to the respondent – extension of time applications refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B and 62

CASES

Comcare v A’Hearn (1993) FCA 498; 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member A Poljak

30 March 2022

1. Mr Carl Woodward, the applicant, is a Postal Delivery Officer who has been employed by Australia Post for over 3 years. The applicant has been away from his employment since 5 February 2021.

2. The applicant has sought review in this Tribunal of three reviewable decisions (substantive proceedings):

   (d)the decision dated 22 December 2020 which affirmed a determination on 30 September 2020 denying liability for “situation anxiety stress and depression” (proceedings 2021/8405);

   (e)the decision dated 11 January 2022 in which the respondent declined to undertake a reconsideration pursuant to subsection 62(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) of an initial determination dated 28 October 2020 that had the effect of determining there was no present liability to pay incapacity payments or medical treatment expenses for “right elbow sprain” (proceedings 2022/0335); and

   (f)the decision dated 1 December 2020 which affirmed a determination on 8 October 2020 denying liability for “compensatory left forearm RSI” (proceedings 2022/0368).

3. These interlocutory proceedings concern the applicant’s request for an extension of time within which to make the applications for review pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The respondent opposes the request.

   PRINCIPLES TO BE APPLIED

4. The Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to subsection 29(7) of the AAT Act.

5. The principles generally applied in determining an application for an extension of time are well-known. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, “although not in any exhaustive manner”:

   (a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

   (b)a distinction is to be made between an applicant who has “rested on his rights”, allowing the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;

   (d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;

   (e)the merits of the substantial application are properly to be taken into account; and

   (f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position are relevant.

6. These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) FCA 498; 45 FCR 441. All the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.

   CONSIDERATION

7. A comprehensive background is set out in the combination of written submissions from the parties, the applicant’s statement dated 19 February 2022 (the applicant’s statement) and the affidavit of Helen Goodyear dated 3 March 2022 (signed by Ms Goodyear but not yet affirmed) (the Goodyear affidavit). I do not think it is appropriate to set out the background in detail in these reasons but will highlight salient aspects as they arise.

   Application 2021/8405

8. In a reviewable decision dated 22 December 2020 the initial determination dated 30 September 2020 denying liability for “situation anxiety stress and depression” was affirmed. The letter advised the Applicant of his right to seek merits review of the decision by the Tribunal by filing an application for review within 60 days: by 20 February 2021.

9. The applicant filed an application with the Tribunal for review of the reviewable decision on 5 November 2021, approximately 260 days or 8 months and 18 days out of time.

10. The applicant’s statement attempts to provide some explanation for the delay in filing for review. In December 2020, following the reconsideration decision, the applicant’s evidence is that he “had every intention to lodge an appeal to the Administrative Appeals Tribunal to appeal the reconsiderations and noted that I had 60 days to do so”. The applicant claims that when he returned to work on 18 January 2021, the bullying behaviour continued. In the applicant’s statement, he says that in early February 2021, “[m]y doctor was very supportive, and we discussed whether it would be wise to try and go through the compensation process again given how stressful and anxious the current situation was, and how it had been taking its toll on me and we also discussed my income ceasing if I was unable to return to work and didn’t apply for workers’ compensation”.

11. I am not satisfied that the applicant has provided an acceptable explanation for the delay in filing for review in the Tribunal within the prescribed period. Despite the applicant’s contentions about his capacity, he was able to undertake several actions in the period after the expiration of the prescribed period to seek merits review, and the time when the application for review was lodged with the Tribunal, including: lodging a further claim for compensation on 12 March 2021 for an injury to his right Achilles heel; submitting a complaint to human resources about the alleged ongoing bullying; submitting a complaint to the Australia Post Whistleblower Hotline; lodging a complaint with the Fair Work Commission; attending a conciliation conference in the Fair Work Commission proceedings; and, participating in settlement negotiations in the Fair Work Commission proceedings until the matter concluded on 3 November 2021.

12. Given the applicant’s failure to lodge his application for review on time and following the significant passage of time, the prejudice to the respondent in this matter is particularly stark. The respondent has likely incurred ongoing costs associated with obtaining legal advice and responding to the variety of applications and processes taken by the applicant in relation to his harassment, bullying and discrimination (HBD) claims, a factor relevant to this application i.e., the applicant’s workers compensation claim for situation anxiety stress and depression. Should the extension of time be granted, the respondent will likely incur further costs and expend further resources in dealing with the substantive proceedings. Additionally, the impact to the employees involved in the ongoing processes has proved stressful. In the Goodyear affidavit, it says that the relevant employees “had been impacted by the stress of being involved in multiple applications and processes relating to the applicant’s HBD complaint”. They had been relieved that the Fair Work proceedings had resolved, and they were “looking forward to returning to work without having to worry about being required to deal with the applicant’s HBD complaints again”. 

13. In light of the applicant’s history of making various claims and complaints, including reviews, the failure by the applicant to seek merits review in the prescribed period without indicating to the respondent that he was intending to do so, would have indicated to the respondent that the decision was regarded as final. It is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure there is a predictable and orderly conclusion to proceedings. This factor weighs against the granting of an extension of time in the circumstances.

14. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a preliminary view as to the prospects of the application under review.

15. The substantive proceedings involve the consideration of the applicant’s claim for compensation for “situation anxiety stress and depression”. The review will likely involve consideration of sections 5A and 5B of the SRC Act, including consideration of whether the condition was contributed to, to a significant degree, by his employment, and whether any exclusionary provisions may apply, particularly whether reasonable administrative action was taken in a reasonable manner.

16. The HBD complaints raised by the applicant also appear to have been investigated and it was found that the applicant’s manager and supervisor did not engage in unacceptable behaviour towards the applicant and their actions did not meet the test for either bullying harassment or discrimination; and other allegations against the applicant’s manager were found to be reasonable management actions. I believe the applicant was unsatisfied with the investigation and sought internal review, although no such process was available to the applicant.

17. In a report dated 28 September 2020, Ms Jenny Cheung, psychologist, reported that the applicant was clinically assessed for an adjustment disorder with mixed anxiety and depressed mood on the basis of DSM-5 criteria.

18. The applicant was certified fit and did return to normal duties on 2 February 2021. However, he has not returned to his employment since 5 February 2021.

19. The respondent submits that the DSM-5 diagnostic criteria for an adjustment disorder includes, inter alia, that once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months. The applicant has now been absent from his employment for more than 12 months but claims to continue to suffer from ongoing psychological symptoms. This potentially demonstrates that the applicant’s present ongoing psychological symptoms do not relate to the adjustment disorder as does the evidence, which suggests that his ongoing anxiety relates to pursuing his workers compensation claims and various other application he has made in regard to his HBD complaints.

20. In a report dated 15 December 2021, Dr Price, occupational physician, reports that the applicant presented with on-going, low level anxiety. On this aspect, I prefer the evidence of Ms Cheung, a psychologist, who clinically assessed the applicant. 

21. While the applicant may very well obtain further evidence to address the relevant issues in the substantive hearing, on the available evidence, the applicant’s prospects do not appear to be particularly strong. 

    Applications 2022/0335 and 2022/0368

22. Application 2022/0335 was filed approximately 410 days or 13 months and 15 days out of time and application 2022/0368 was filed approximately 354 days or 11 months and 20 days out of time. These are both significant delays and weigh very heavily against the granting of the extension of time. As already stated, there should be finality to proceedings, particularly given the extensive passage of time since the prescribed period for applying for review, and in circumstances where there was no indication to the respondent that the applicant was intending to seek review. The respondent likely regarded the reviewable decisions as final. If the extension of time applications were to be granted, the respondent would suffer significant prejudice by the need to expend further resources and incur further ongoing costs associated with dealing with these matters on review that were considered to be finalised.

23. The applicant’s statement provides limited explanation as to why he did not request a reconsideration of the determinations within the prescribed period. It is suggested that bullying suffered by the applicant from around February 2021 onwards had a deleterious impact on the applicant’s mental health such that he was not able to sufficiently focus on pursuing his right of review in respect of the respondent’s decisions under the SRC Act. However, as already set out in these reasons, the applicant had capacity and did pursue and engage in a variety of applications and processes relating to a new workers compensation claim and his HBD complaints between March 2021 and November 2021.

24. Turning to the merits of the substantive applications, on the available evidence, I consider the applicant’s prospects to be poor. Given that both upper limb injuries are alleged to have occurred as a result of the repetitive nature of aspects of the applicant’s duties with the respondent, rather than due to frank incidents, it is likely that review of the decisions will engage the disease provision in section 5B of the SRC Act.

25. When Associate Professor McGill examined the applicant on 2 September 2020, he reported that his examination of the applicant’s left and right arms showed no abnormality in the left arm, and no objective abnormality in the right arm. His findings in relation to the right arm were consistent with the results of an ultrasound investigation dated 19 June 2020, which was reported as showing the right elbow, extensor and common flexor origins, ulnar nerve and distal biceps insertion as normal.

26. Associate Professor McGill concluded that any symptoms suffered by the applicant were not due to a physical disorder but could possibly be due to somatic symptoms arising from psychological factors.

27. On 15 December 2021, Dr Price, occupational physician, diagnosed the applicant’s upper limb injuries as “occupational overuse strain”. However, I note that the report of Dr Price was commissioned from the perspective of ascertaining the applicant’s fitness for duty, not from the perspective of commenting on liability to pay compensation under the SRC Act.

    DECISION

28. For the above reasons, I do not find it is reasonable in all the circumstances to grant the applicant’s extension of time applications pursuant to subsection 29(7) of the AAT Act.

29. The extension of time applications in the following matters are refused:

    (a)2021/8405;

    (b)2022/0335; and

    (c)2022/0368.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 30 March 2022

Date(s) of hearing:	10 March 2022
Counsel for the Applicant:	Mr A Coombes
Solicitors for the Applicant:	Ms C Vo, Endeavour Legal Solutions
Solicitors for the Respondent:	Mr S Moloney, Mills Oakley Lawyers