Beasley and Comcare [2002] AATA 67 (5 February 2002)

Last Updated: 5 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 67

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/981

GENERAL ADMINISTRATIVE DIVISION )

Re JASON KEITH BEASLEY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date 5 February 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Signed)

J Cowdroy

MEMBER

CATCHWORDS

COMPENSATION - extension of time to request for reconsideration of a determination

Safety, Rehabilitation and Compensation Act 1988 ss 25(4), 62(3)

Administrative Appeals Tribunal Act 1975 s 29

Comcare v Mihajlovic (2000) 170 ALR 420

Comcare v A'Hearn (1993) 119 ALR 85

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

5 February 2002 Ms J Cowdroy, Member

1. The matter was heard by the Tribunal on 7 December 2001. Mr A C Harding of Counsel, instructed by Messrs D'Arcys, Solicitors, appeared for the applicant and Ms E Ford of Counsel, instructed by the Australian Government Solicitor, appeared for the respondent. The matter was determined on the basis of the "T" Documents and the written and oral submissions of Counsel.

Background to the Application for Review

2. At issue is the decision of the delegate of the respondent dated 19 October 2001 in which the respondent denied the applicant's request to review the determination of 28 March 2000. The factual scenario leading to the applicant's request for review is as follows:

a) On 22 March 2000 an offer was made to the applicant by the respondent in respect of a lump sum compensation payment for a condition of the lower legs on the basis of permanent impairment of 10 per cent.

b) On 24 March 2000 the offer was accepted by the applicant and, on 28 March 2000, the respondent made a determination in accordance with the acceptance of that offer. The applicant subsequently received payment of $22,170.29.

c) On 8 July 2000 the applicant wrote to the respondent seeking compensation for a 20 per cent impairment and by reply dated 31 July 2000, the claim was refused. The decision of 31 July 2000 was a reviewable decision and following review on 9 January 2001 that reviewable decision was affirmed. That decision is the subject of an application for review to the Administrative Appeals Tribunal (Q2001/178).

d) On 9 October 2001 the applicant sought review of the determination dated 28 March 2000 and on 19 October 2001 the respondent refused to review that determination on the basis that there was no evidence that the degree of permanent incapacity was incorrectly assessed and that the request for review was outside the period of 30 days specified in Section 62(3) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

Applicant's Submissions

3. The applicant's case is succinctly outlined in its written submissions. It was pointed out that the decision to grant a lump sum payment on the basis of 10 per cent permanent impairment was based primarily on reports from Dr J Bartlett dated July 1998 and 22 October 1999 as well as a Vocational Assessment Report of CRS dated 19 January 2000. It was contended that Dr Bartlett erred in his assessment of the degree of permanent impairment. That error, it was said, was attributable to the respondent not seeking specific information from Dr Bartlett. The applicant contended that it was not appropriate for the respondent to base its determination on Dr Bartlett's report in view of the fact it was based on responses to misleading questions posed by the respondent.

4. It was pointed out that in accepting the offer, the applicant indicated that he was not entirely happy with it. It was contended that this was implicit from the applicant's response "Please be advised I am going to consult further medical advice on increasing my claim for compensation." (T29).

5. In the proceedings Q2001/178, a report from Dr Thomson dated 12 June 2001 will be produced. That opinion, it is contended, is to the effect that the applicant suffers a 10 per cent permanent impairment in respect of his lower left limb and a 10 per cent permanent impairment in respect of his right lower limb. If that is the finding of the Tribunal, then, applying the principles outlined in the decision of Comcare v Mihajlovic (2000) 179 ALR 420, the Tribunal may find that although the applicant suffers a permanent impairment of 19 per cent, he is not entitled to further compensation on the basis that it does not meet Section 25(4) of the Act.

6. However, if the Tribunal was to direct the respondent to reconsider its determination of 28 March 2000 and a review of that decision came before the Tribunal, a finding of a permanent impairment of 19 per cent would result in the applicant being entitled to further compensation, namely, the difference between a lump sum payment of 19 per cent and the lump sum payment of 10 per cent he has already received.

7. It was contended that only after receipt of Dr Thomson's report dated 12 June 2001 that the need arose to seek a reconsideration of the decision dated 28 March 2000. That is because, prior to that time, no medical practitioner had opined that the applicant suffered from 10 per cent impairment in respect of each leg under Table 9.5.

8. In addressing the applicant's explanation for the delay, it was pointed out that in exercising discretion to extend time under Section 29 of the Administrative Appeals Tribunal Act 1975, the Tribunal "is not limited to the question of delay but extends to aspects of fairness and equity". Further, if there was delay on the part of the applicant's solicitors in not seeking a review at an earlier date, in the case of Comcare v A'Hearn (1993) 119 ALR 85, the Full Federal Court stated that delay occasioned by the fault of solicitors is a consideration which may relevantly be taken into account in favour of an application and may constitute an explanation sufficient to warrant the granting of the extension of time.

9. The applicant also referred to the need to balance the merits of the applicant's substantive application and the consequence to the applicant in not allowing an extension of time against the consequences for the respondent of doing so. It was submitted that he respondent would not suffer prejudice. However, if the extension is refused the applicant will be denied compensation to which he is entitled and the respondent will obtain a windfall. This submission is made on the premise that in matter Q2001/178 the Tribunal finds that the applicant's degree of permanent impairment is 19 per cent.

Respondent's Submissions

10. The respondent acknowledged that there was a discretion conferred upon the decision-maker to grant a request for reconsideration of a determination beyond the 30 days stipulated by Section 62(3) of the Act on the basis that that subsection contains the phrase "or within such further period (if any) as the determining authority, .... allows."

11. In supporting its argument that time should not be extended so as to permit the applicant to have the determination of 28 March 2000 reconsidered, the respondent pointed to the necessity for certainty in the decision-making process.

12. The respondent pointed out that the applicant accepted the respondent's offer in March 2000 and he made the decision not to engage legal advice at that time. The applicant's ignorance of legal matters is not a reason for granting an extension of time and in any event the applicant has not provided an acceptable explanation of delay, nor would it be "fair and equitable in the circumstances" to extend the time limit, applying the principles set out in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305.

13. The respondent referred to the applicant's Statement of 6 December 2001 in which he stated that he engaged lawyers to handle his claim for compensation in or about March 2001 and it was at that point of time that he sought review of proceedings in the Administrative Appeals Tribunal of the decision dated 9 January 2001. It was pointed out that he first sought legal advice twelve months after he accepted the respondent's offer.

14. Additionally, applying the principles set out in Hunter Valley Developments (supra) in regard to the merits of the substantive matter, it was stated that the prospects of succeeding on a claim on the basis of a permanent impairment at more than 10 per cent as at March 2000 are poor, in that his treating orthopaedic surgeon had assessed his impairment at that level.

The Legislation and its application

15. Section 62(3) of the Safety, Rehabilitation and Compensation Act 1988 provides that:

"(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."

16. The evidence is that the applicant sought review of a decision dated 28 March 2000 on 9 October 2001 (T42). The Tribunal notes that the delegate made the decision to refuse to extend time for reconsideration of the determination on the basis that:

"There is no reason to believe that your degree of permanent impairment was correctly assessed, as Dr Thomson's report confirms you have 10%

Your request is well outside the period of 30 days specified in section 62(3) of the SRCA and submits no arguments of substance that would not have been available to you within that period had you chosen to raise them"

The delegate also stated that he was not prepared to re-open a determination that had already de facto been reconsidered through the decision dated 9 January 2001. Be that as it may, the sole issue before the Tribunal is whether it should exercise its discretion to grant an extension of time for a request for reconsideration of the determination dated 28 March 2000.

17. The Tribunal notes that the applicant accepted the offer of the respondent on 24 March 2000 (T29). The applicant indicated in the letter of acceptance that he was planning to obtain further medical advice on increasing his claim for compensation. The applicant suggested that these words were indicative of the fact that in accepting the respondent's offer it would not be the end of the matter. However, my understanding of Mr Beasley's advice is that he would be seeking an increase at some further time and this interpretation is supported by the letter written on behalf of the applicant by Mr M Raison dated 8 July 2000 in which he states relevantly:

"I am requesting an increase for Mr Jason Beasley in relation to his bilateral compartment syndrome. As you are aware he was paid 10% whole person impairment on a report supplied by Dr Jeremy Bartlett. We are not contesting this Medical report merely submitting further Medical testing by Mrs Jacel Bertoldi...."

Ms Bertoldi's report appears at T31 and is dated 31 May 2000.

18. The reasons put forward by the applicant as to why the Tribunal should grant an extension of time is on the basis that Comcare, in offering a 10 per cent lump sum compensation payment, relied on a report from Dr Bartlett and that the respondent misled Dr Bartlett in that the questions asked of him did not make it clear that it required an opinion in respect of impairment in respect of each leg under Table 9.5. In particular, the request of Dr Bartlett was "what percentage whole person impairment if any for a lower legs condition" whereas Table 9.5 refers to the singular "lower limb" not the plural.

19. The Tribunal notes that, in conveying the offer to Mr Beasley (T28), the delegate stated relevantly:

"If you are considering this option, Military Compensation and Rehabilitation Service recommends that you consult a solicitor before acting."

Mr Beasley did not engage lawyers to handle his claim for compensation for approximately twelve months after accepting the respondent's offer.

20. The point was made that if Dr Thomson's report of 12 June 2001 was determined by the Tribunal to mean a degree of permanent impairment of 19 per cent, and that opinion was accepted, then the applicant will not succeed on the basis of a subsequent increase in permanent impairment based on the principles of Comcare v Mihajlovic (supra). That may well be so. However, the fact remains that the applicant accepted the offer and although he indicated he was going to seek an increase, such an application did not occur until 8 July 2000.

21. While the report of Dr Thomson dated 12 June 2001 first alerted the solicitors acting for the applicant that the applicant's whole person impairment may be more than 10 per cent, that report is dated fifteen months after the offer had been accepted. The Tribunal cannot predict as to whether had the questions asked of Dr Bartlett been formulated in another way, that he would have assessed the applicant as suffering from a 10 per cent impairment of each lower limb under Table 9.5.

22. In considering whether it would be fair and equitable in the circumstances to extend the time limit, the Tribunal was mindful of the applicant's argument that the respondent had an obligation to properly consider the claim. It was said that the responses produced by Dr Bartlett should have been more properly considered and clarification sought. However, in the Tribunal's view it cannot speculate that such a course of action, if it had occurred, would have produced a different result. It seems to the Tribunal that what the applicant is seeking to do is to re-open a matter on the basis it has now obtained fresh evidence which is more favourable than the evidence which existed at the time the offer was made and accepted.

23. The Tribunal considers that to enable this applicant to seek a review of a decision some 17 months after the decision was made, would be re-visiting a matter which has already been thoroughly canvassed and a decision made on the evidence available at that time.

24. As to whether the applicant's substantive application has any merit, there was a difference of opinion between counsel for the parties as to the appropriate interpretation of Dr Thomson's report. Without forming a firm view of the matter, it seems that the respondent's argument that the applicant's prospects of succeeding on a claim for a higher percentage as at March 2000 are poor, is persuasive.

25. Having had regard to the relevant factors for consideration, the Tribunal affirms the decision of the delegate of Comcare dated 19 October 2001.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:

Associate

Date of Hearing 7 December 2001

Date of Decision 5 February 2002

Counsel for the Applicant Mr A C Harding

Solicitor for the Applicant Messrs D'Arcys

Counsel for the Respondent Ms E Ford

Solicitor for the Respondent Australian Government Solicitor