Britton and Australia Post [2003] AATA 1128 (11 November 2003)

Last Updated: 11 November 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1128

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/633

GENERAL ADMINISTRATIVE DIVISION	)
	Re	DOUGLAS BRITTON

Applicant

And

AUSTRALIA POST

Respondent

DECISION

Tribunal

Ms J Cowdroy, Member

Date 11 November 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...................(Sgd)......................

J Cowdroy

Member

CATCHWORDS

WORKERS' COMPENSATION - benefits and entitlements - compensation - back injury - decision to cease liability - whether application for review of that decision made within the prescribed time limits - whether there are grounds to warrant an extension of time being granted

Safety, Compensation and Rehabilitation Act 1988

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 390

Re Hewson and Australian Postal Corporation (AAT No 12608, 11 February 1998)

Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1

Re Tilley and Comcare [2000] AATA 953

REASONS FOR DECISION

11 November 2003

Ms J Cowdroy, Member

1. This matter relates to the review of a decision of the delegate of Australia Postal Corporation (the respondent), dated 18 March 1999 (the first decision). In a decision dated 30 May 2002, (the second decision), the respondent refused a request for reconsideration of the first decision. The second decision was made on the basis that the request for reconsideration was lodged by the applicant outside the 30-day time period and there were no grounds to warrant an extension of time.

2. The matter was heard on 9 April 2003. Mr Ward, solicitor, appeared for the applicant and Mr Clark of counsel appeared for the respondent. The T-documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, were admitted into evidence as exhibit 1, as well as the following documents:

Exhibit 2 Statement of William Telford Barclay dated 18 March 2003

Exhibit 3 Statement of Dr Edwin Castrisos dated 27 February 2003

Exhibit 4 Statement of Douglas Britton dated 24 September 2002

Exhibit 5 Statement of Douglas Britton dated 8 April 2003

Exhibit 6 Letter dated 15 April 1999 to State Manager, Mail Network

Exhibit 7 Queensland Police Credit Union Statements from December 1998 to June 1999

Exhibit 8 Letter from Mr G E McDonald, chiropractor, received by facsimile on 19 May 2003

Exhibit 9 Letter seeking approval for voluntary retirement package dated 14 April 1999

Exhibit 10 Letter to applicant regarding acceptance of voluntary retirement package dated 14 April 1999

Exhibit 11 Letter to the applicant offering voluntary retirement package dated 14 April 1999

3. The matter was decided on the basis of the information contained in the exhibits, the oral evidence of the witnesses and the submissions of the parties.

BACKGROUND

4. The following matters are not in dispute. Mr Britton, the applicant, now aged 42 years, was employed as a postal delivery officer class 2 at the Coorparoo Distribution Centre of Australia Post. On 9 September 1997 he was involved in an accident (the accident), when the motor bike he was riding whilst delivering mail struck the rear of the vehicle in front. He sustained injuries to his back and the respondent accepted liability on 30 September 1997 in respect of contusions and sprains to lower back, which was later changed to temporary aggravation of L5/S1 spondylolisthesis. Liability for weekly compensation payments was ceased in a determination dated 18 March 1999.

5. On 23 April 1999 the applicant ceased employment with Australia Post.

THE ISSUES IN DISPUTE

6. The issue before the Tribunal is whether the decision not to reconsider the determination of 18 March 1999 should be set aside or affirmed.

THE EVIDENCE

7. Douglas Arthur Britton contended that after the accident he continued to suffer lower back pain and stiffness. He attempted various forms of rehabilitation, including physiotherapy and an attendance at Gregory Terrace Rehabilitation Service commencing in December 1998, none of which were successful in entirely alleviating his back symptoms.

8. He jarred his back whilst four wheel driving on Fraser Island whilst on holiday some time in late 1998, but denied it was a significant set back. He had a graduated return to work and, by October 1998, he was managing to work three hours per day of indoor duties. Eventually, he returned to full postal delivery officer duties, but only managed to work for a few days before he had to cease work due to pain.

9. Although he was keen to return to work in his former capacity as a postal delivery officer, he considered it was unlikely that he would be able to return to full time duties in that capacity. The consensus of medical opinion was that a return to postal deliveries on a bike was not a realistic option.

10. He was offered a redundancy package in March 1999. He discussed the issue of a "payout" many times with Dr E Castrisos, Medical Services Adviser employed by the respondent, who advised him that if he could not perform full time duties, he should consider leaving Australia Post. He was unsure whether the reference to a "payout" in the conversations with Dr Castrisos referred to workers' compensation or a redundancy. He regarded Dr Castrisos as a friend, as he believed he had always acted in his best interests. He was informed of a "special arrangement" by Dr Castrisos if he accepted a "payout".

11. Before his employment with Australia Post ceased, the respondent met the costs of attendance at a crowd controllers' course and Dr Castrisos facilitated two payments each of $1500 from the respondent, to be used towards the cost of purchasing an industrial sewing machine.

12. He signed a number of documents in connection with his termination of employment in Dr Castrisos' office, which he presumed related to a "payout", however he did not understand them. He did not read the documents in their entirety and he emphasised he put his trust in Dr Castrisos. His written English is poor. He recalled receiving the letter dated 18 March 1999 (T98), however he did not recall reading it, or if he did read it, he did not understand its consequences. His wife and friend, Brenda Gordon had prepared the documents at T105, 110, 112 as well as other correspondence to the respondent.

13. He did not recall seeing a copy of the document setting out his appeal rights which was said to have accompanied that letter and his first memory of seeing such a document was about six months ago. Nor did he recall having a conversation with Chrisdell McLaren, Rehabilitation Officer, a file note of which appears at T99, in which it is recorded that he acknowledged seeing the letter saying that his claim had ceased.

14. If he had understood the importance of that letter, he would have taken some action, as he was still undergoing rehabilitation 18 months after the accident. When he realised that his rights to compensation had ceased, he spoke to a person at his union and various solicitors, none of whom were interested in representing him when he advised he wished to take action against Australia Post. He was told, however, that he had no rights to any further compensation payments unless he had 10 per cent impairment. He also rang Dr Castrisos who gave him similar advice.

15. He did not write or sign the letter at T104 to Maurice Blackburn and Co. advising that his compensation claim had been closed by Australia Post and that he was in agreement with the determination regarding cessation of liability.

16. After ceasing with Australia Post, he had rung Dr Castrisos a couple of times - on one occasion, he was having difficulty finding work and he asked the doctor "to pull a few strings". Subsequently, he was the successful tenderer for mail delivery services at Crestmead in September 1999.

17. In October 2001, whilst delivering mail on his bike, he hit a stump and jarred his back. Consequently, he was not able to deliver mail for the next five months, and his mother in law and other relatives carried out the mail run for him. He then returned to work. He agreed that he had told Dr Castrisos about this incident but denied that he told him that he "severely jarred his lower back". He recalled telling Dr Castrisos that he hurt his back again and that it felt about the same as when he injured it earlier.

18. Since the accident in 1997, his back pain has never fully resolved. There have been some occasions when it has been "not too bad", however this has been offset by occasions when his back has been very painful and sore. He denied ever being pain free since the accident, and that there were times he simply put on a brave face to keep his job.

19. In relation to the chiropractic record which reveals consultations for treatment for lumbo-sacral problems, (T94-157/158 and exhibit 8), the applicant`s evidence was that such treatment was for the neck area, shoulder or ankle. He did not relate a history of back pain to either Drs Ryan or Blue, both of whom are orthopaedic surgeons, as he had never suffered from back pain prior to the July 1997 injury.

20. He decided to institute a review of the determination to cease compensation payments when his back problems did not abate. He considered he could not cope with bike work, as he believed the jarring caused by riding on footpaths, nature strips, on a variety of surfaces in wet and slippery conditions was compounding his problems and causing irreversible damage.

21. Dr Edwin Castrisos, MB, BS, produced a statement which was entered into evidence as exhibit 3. He first met the applicant in late 1998. Mr Britton had been initially referred to Dr S Goode, a specialist in occupational medicine who saw him on a regular basis. He received all of Dr Goode's reports advising of the applicant's progress. His primary focus was on the applicant's rehabilitation.

22. He believed he had good rapport with the applicant and that the applicant had confidence in his assessment and management of his condition. He agreed that on a number of occasions the applicant sought advice about the options which might be available to him.

23. He had discussed with the applicant the prospect of attending a two-week rehabilitation program at the Gregory Terrace Rehabilitation Centre. The summary and recommendations arising from that program reported no real change in the applicant's pain level and that psychological testing revealed he had high levels of anxiety and severe depression, with dysfunctional aspects. He was not convinced that a return to motor cycle duties was a realistic employment option. The applicant expressed concern to him about returning to alternative vocational options as he was an outdoor type.

24. He did not consider in February 1999 that the applicant's ongoing difficulties were related to the accident. He referred the applicant for an MRI scan on 2 February 1999 which confirmed previous findings of a grade 2 spondylolisthesis and multi-level lumbar degenerative disc disease. He considered that the applicant had a high pain threshold.

25. He agreed that Mr Britton had asked him about the possibility of obtaining a redundancy package when considering his future employment options, although he never suggested he would be "paid out" if he could not perform his duties. At no time did he give the applicant advice about accepting the redundancy package, as he did not get involved in management matters.

26. The applicant had shown him a copy of a letter he had sent to Mr Koutsoukis of Maurice Blackburn and Co dated 19 March 1999, on the day after the determination had been made closing his claim. Later in evidence he said that he could recall whether it was received directly from the applicant.

27. A review of the documentation he had received in relation to this matter revealed that Mr Britton had not divulged to either him, Drs Blue or Ryan, that he had a history of back pain. This contradicts the report of Dr Steven Goode, occupational specialist, and that of Mr McDonald, chiropractor, to the effect that the applicant suffered from back pain, in respect of which he received treatment prior to the accident. He pointed out that the letters from the chiropractor contradict each other to some extent, in that his first letter acknowledges spinal complaints for a number of years and confirms the presence of lumbar spondylosis, whilst the second does not acknowledge the presence of lumbar spondylosis and states there is no referred sciatic pain.

28. It is possible that Mr Britton attended the Medical Services Unit where he works to sign the voluntary redundancy package documents. This would have been arranged by the human resource manager. He was not present whilst Mr Britton signed the documents, although later in his evidence he stated he may well have been present when they were signed.

29. He also recalled providing a medical certificate to Mr Britton for Centrelink dated 28 May 1999 in connection with a claim for sickness benefits. He said such a request was not unusual, given that Mr Britton did not have a regular general practitioner.

30. The applicant contacted him around August 1999 to see whether he could assist him in relation to his tender for the Crestmead Delivery centre position. He could not. He was surprised that Mr Britton was applying for delivery work, however he informed him that his back had not been troubling him and he was confident that he could handle such work. Mr Britton rang him again in September/October 1999 and advised that he had obtained another contract at Crestmead and that his back had been "okay riding the bike".

31. On 2 August 2001 the applicant rang him and advised that he had worked without a break for two years and the contract was no longer cost effective. He sought his help in ascertaining if there was anything he could do in regard to a review of the contract conditions, including increased pay. He referred the matter to area manager, Mr Robert Finlay.

32. On 24 October 2001, Mr Britton advised him by telephone that he had hit a stump whilst riding his motor cycle and severely jarred his lower back. He expressed the view that this injury was worse than the injuries sustained in the accident and that he could not perform his contractor duties.

33. The applicant rang again on 16 January 2002 to advise that his back was no better and that others had been helping out with his contract, as he was unable to work. When Dr Castrisos was informed that Mr Britton was seeking to have his claim reviewed, he expressed the view that it was likely that Mr Britton had suffered a new injury or aggravation of his underlying back condition.

34. The reports about the frequency and severity of the applicant's back pain conveyed to him by the applicant is inconsistent with his claim that back pain has been constant and that, in particular, on at least two occasions since March 1999 the applicant had informed him that he had no problems with his back.

35. His impression of the applicant was that he was a resourceful man, who had turned his hand to a variety of jobs before his employment with Australia Post. He was not interested in receiving unemployment benefit. He considered that from the time he first met the applicant, he was struggling financially. He saw his role as supporting the applicant in whatever manner the applicant chose. He agreed that he could not see the applicant being able to continue indefinitely with mail deliveries.

36. William Telford Barclay, Manager of Human Resources and Quality Unit in the employ of the respondent provided a statement which was received and marked as exhibit 2. He refers to the prejudice suffered by the respondent should an extension of time be granted.

37. In particular, had the applicant sought review of the determination within the time period prescribed under the Act, the respondent would have had the opportunity of having the applicant examined from time to time by a medical specialist to identify any ongoing medical problems, including identifying the activities the applicant was performing that may aggravate his condition. Of particular significance would be an opinion as to whether the current problems relate to the accident.

38. Mr Barclay pointed to the fact that five years has elapsed since the motor vehicle accident, the account of which is entirely reliant on the evidence of the applicant, who has provided different accounts of the accident. The difficulties in not being able to fully investigate the circumstances of the original accident and the fact that the applicant has sustained another injury since the accident are such that the respondent would suffer prejudice in its efforts to gather the necessary evidence in relation to those matters.

CONSIDERATION:

39. It is not in dispute that the applicant's request for reconsideration of the determination dated 18 March 1999 was made on 15 May 2002, although the applicant pointed to the fact that he first put the respondent on notice that he was seeking to have his compensation claim re-opened in a letter dated 22 February 2002 (T101-173). Be that as it may, on any view, the request for consideration was lodged approximately three years after the determination was made.

40. Section 62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) reads:

"(2) A request to a determining authority to reconsider a determination made by it may be made by:

(a) the claimant; or

(b) if the determination affects the Commonwealth--the Commonwealth; or

(c) if the determination affects a Commonwealth authority--that Commonwealth authority.

...

(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."

41. Counsel for the respondent referred me to the principles outlined by AAT President, Justice O'Connor in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 390 in relation to the factors to be considered in exercising a discretionary power to extend the time for the making of an application for review.

42. Mr Ward submitted that the applicant endeavoured to obtain appropriate advice from various sources without success. He had been extremely reliant on Dr Castrisos to provide advice and guidance, in whom he had placed his trust. The evidence from Dr Castrisos that he may have been present when the redundancy documents were signed and the fact that the applicant had contact with him after his employment ceased, corroborates the applicant's evidence that he relied on Dr Castrisos for assistance and advice.

43. It was further contended that the applicant was not aware of the 30-day limit and did not receive the notice attached to the determination setting out his rights to seek reconsideration. In relation to any prejudice to the respondent, the applicant's position is that the applicant has undergone continual medical examination from 1997 until his workers compensation was finalised in 1999, with further evidence in 2002.

44. In regard to the wider prejudice that that may occur if an extension of time was granted, it was submitted that there is unlikely to be many cases with similar factual circumstances coming before this Tribunal.

45. The respondent contends that the applicant's denial of any history of back complaints, his disavowal of any knowledge of the letter at T104, his claimed inability to have understood the document at T98, and his reporting to Dr Castrisos at times that his back problems had resolved, casts serious doubts on the applicant's credibility. It submitted that the applicant was unlikely to succeed on the substantive issue.

46. In regard to prejudice, it would be particularly difficult to identify the types of activities in which the applicant had been engaged, some of which no doubt were of the non-compensatable type. The additional injury in October 2001 could well have been of significance and it would be difficult to assess its impact, given the time frame that has elapsed.

47. As to the merits of the application, general medical opinion is that the symptoms arising from the accident in 1997 have resolved. Dr Reece, the applicant's local medical officer, at T92, is of the view that any symptomatology arising from the accident had ceased. That the applicant had previous back problems is evident from the reports of Mr McDonald, and it is significant that the applicant did not reveal to Dr Blue or Dr Castrisos a history of back problems.

DECISION

48. Applying the relevant principles espoused in Mulheron, the starting point is that, prima facie, proceedings commenced outside the prescribed time will not be entertained. However, an extension of time will be granted if it is proper to do so.

49. I also considered the decision of Senior Member Allen in Re Hewson and Australian Postal Corporation (AAT No 12608, 11 February 1998), which refers to Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; and to Re Tilley and Comcare [2000] AATA 953 in which it was determined that a delay of nearly five years outweighed the merit of the applicant's case. However, I am mindful that each case turns on its particular findings of fact.

50. In considering whether an extension of time is proper in this case, I have had regard to a number of issues. Firstly, did the applicant rest on his rights or did he take action to advise the decision-maker that the decision was being contested? Although the applicant's evidence was that he did not recall receiving his statement of rights, he approached a representative of his union and solicitors.

51. Although he may have been dissatisfied with the decision, he took no steps to advise the respondent that this was the case. I note that although there was a letter from Maurice Blackburn and Co dated 15 January 1999, which refers to a claim for lump sum compensation, this advice was sought well before the weekly payments of compensation ceased.

52. I note the applicant's denial that he either authored or signed the letter dated 19 March 1999, which advises that he does not wish to proceed further "with this matter". The letter refers to the claim being closed and that he was in agreement with the final determination regarding further liability. However, there is also a file note from the Rehabilitation Officer to similar affect. Given the combination of that evidence, I find that the applicant did not lack the capacity to understand the implications of the information contained in the letter of 18 March 1999 but that for whatever reason, he chose not to follow it up.

53. Consequently, I find that he did not take any effective action to notify the respondent of his dissatisfaction with the original determination for close on three years. This also correlates with Dr Castrisos' evidence that the applicant notified him on at least two occasions that his back was not causing him problems.

54. I accept that the applicant was keen to re-enter the work force after his injury and was highly motivated to do so. I also accept that he probably made light of his pain level at times. However, I accept Dr Castrisos' evidence that the applicant told him on at least two occasions he was pain free and this would explain the long gap between cessation of liability and his attempts to have the matter reconsidered.

55. I find that any reliance which Mr Britton placed on discussions with Dr Castrisos was in relation to the redundancy package and not to whether or not weekly compensation payments should continue.

56. In relation to the aspect of prejudice, I find that the respondent will incur prejudice in its attempts to obtain opinions about the present cause of the applicant's back pain. Given that the incident for which liability was accepted occurred in 1997, that he was declared fit to resume work in 1999, that he resumed work and has suffered further trauma to his back, it will be almost impossible for medical practitioners to provide opinions as to what has transpired since March 1999. In particular, any opinion as to the current symptomatology and its link with injuries sustained in the accident would be an almost insurmountable task.

57. As to the principles regarding wider prejudice to the general public and that relating to fairness of granting an extension of time to the applicant as against other persons in a like position, I do not consider that they are relevant in this matter. It goes without saying that the public interest is served in requiring a person who is aggrieved by a decision to adhere to prescribed time limits, unless there is a cogent explanation as to why it has not been done. To do otherwise, would mean that the decision-maker would not be able to conduct its affairs with certainty as to any future liability.

58. Finally, I had regard to the merits of the substantial application. At the time the decision to cease compensation payments was made, there were reports from Dr Blue and Dr Reece. Both were of the view that any disability as a result of the incident of September 1997 had ceased. Dr Blue went on to state that there was potential for continual disability on the basis that the applicant would continue to suffer stress induced relapses in his back problem. He considered that such lapses were due to pre-existing spondylolisthesis.

59. There is evidence that the applicant had some treatment for his lower back prior to the accident and evidence from Dr Castrisos that the applicant told him on at least two occasions that he had no trouble with his back. There is also evidence of further injury when the applicant hit a stump while riding a bike.

60. If this evidence is accepted, then the applicant's assertion that he continues to suffer back pain which is attributable to the accident is unlikely to be successful on the basis that he already suffered from pre-existing disease in his lower back and the injury under discussion caused only a temporary aggravation. The most favourable medical report is that of Associate Professor McPhee dated 4 September 2002 who on the basis of a consultation at around that time considered that the applicant's current incapacity arising from the September 1997 incident was 2 per cent as a whole.

61. The combination of that evidence, and in particular the contemporaneous reports which were not favourable to the applicant, lead me to the conclusion that the applicant does not have a strong case.

62. In summary, I find that the principle that prima facie, proceedings commenced outside the time limits should not be entertained, ought to override the other principles in this matter. The applicant has not demonstrated that there is good reason for not pursuing his rights for some three years. Additionally, there would be considerable prejudice to the respondent in attempting to meet the applicant's case, given the time that has elapsed since the incident and the fact that he has suffered another injury since that time. Of further significance is the strength of the applicant's case.

63. Consequently, I consider that the general principle has not been displaced. For the reasons given above, I affirm the decision under review.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed: Denise Burton

Administrative Assistant

Dates of Hearing 9 April 2003 and 19 May 2003

Date of Decision 11 November 2003

Solicitor for the Applicant Mr Ward, Aylwood Game

Counsel for the Respondent Mr Clark

Solicitor for the Respondent Sparke Helmore