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Grundy and Comcare [2006] AATA 1019 (23 November 2006)

Last Updated: 5 December 2006

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1019

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2006/195 & 197

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MAURENE GRUNDY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

J.W. Constance, Senior Member

Date 23 November 2006
Place Canberra

Decision

The decision of Comcare made August 2006 is set aside and in substitution it is decided that the time by which Ms Grundy can seek a reconsideration of the determination of Comcare dated 14th October 2004 issued in relation to her claims for compensation (reference 31771/02 & 01) is extended to and including 7 December 2006.

..............................................
J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – Application for extension of time – Whether acceptable explanation for delay – Reliance on advocate – Prejudice.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Duong v Australian Postal Corporation [2005] FCA 991

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

Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244

REASONS FOR DECISION


23 November 2006	J.W. Constance, Senior Member

INTRODUCTION

1. This is an application by Ms Grundy for review of a decision by Comcare to refuse her request for an extension of time in which to seek a reconsideration of a determination made in October 2004. The determination was that at that time she was no longer entitled to payments of compensation for injuries she had suffered as an employee of the Commonwealth.
2. For reasons which follow, I have decided that the decision of Comcare should be set aside and that Ms Grundy be granted the extension of time which she seeks.

FACTS

3. Unless otherwise stated, I make the following findings of fact based on the evidence of Ms Grundy. I am satisfied of these facts on the balance of probabilities.
4. In 1986 the Commissioner for Employees Compensation determined that Ms Grundy was entitled to compensation for a repetitive strain injury suffered in February 1985. In 1995 Comcare accepted liability for an aggravation of her condition of fibromyalgia and secondary reactive depression. She received compensation for loss of income and medical expenses in respect of both injuries.
5. In 2004 Comcare arranged for Dr Brown, a psychiatrist, and Dr Youssef, a rheumatologist, to examine Ms Grundy for the purpose of assessing her ongoing entitlement to compensation payments. Both these medical practitioners provided comprehensive reports to Comcare.^[1] Having received these reports, together with a report from Dr Veness, Ms Grundy's treating psychiatrist, Comcare wrote to Ms Grundy on 4 July 2004 advising her that it appeared that at the time she was not entitled to continue to receive compensation benefits for incapacity and medical expenses. Comcare gave Ms Grundy the opportunity to present further evidence by 18 August 2004 before making a final decision.
6. Having received the letter from Comcare, Ms Grundy engaged a Mr Fenwick to assist her in her compensation matters. Ms Grundy had previously sought assistance from Mr Fenwick in relation to her compensation claims. Following the engagement of Mr Fenwick both he and Ms Grundy contacted Comcare to arrange extensions of time to lodge a response to Comcare’s letter. A detailed submission was prepared and forwarded to Comcare.
7. On 14 October 2004 Comcare denied liability for medical expenses and incapacity payments arising from the injuries. Pursuant to the requirements of the Safety, Rehabilitation and Compensation Act 1988, Comcare advised Ms Grundy that she could request a review by a Review Officer within 30 days of receiving this decision. Although it appears that the letter was received by Ms Grundy sometime earlier, she only became aware of it about four days prior to the expiration of the 30 day period. She immediately contacted Mr Fenwick who agreed to lodge an objection to the decision.
8. Ms Grundy gave evidence that she also sent an e-mail to Comcare requesting an extension of time for the lodging of an objection. A copy of the e-mail was not produced. I accept Ms Grundy as a witness of truth but I am not satisfied that in fact this e-mail was sent. Ms Grundy may be confusing it with the e-mail she sent requesting an extension of time for the submission made prior to the determination.
9. From November 2004 until March 2006 Ms Grundy believed that Mr Fenwick had taken the necessary action to request a review of the decision to cease her compensation payments. In this period she contacted Mr Fenwick on a number of occasions (at times on several occasions per month) and he informed her that everything that needed to be done had been done. After some time she became concerned as to the delay in the process and raised these concerns with her psychiatrist, Dr Veness. It was her understanding that Dr Veness and Mr Fenwick worked together as a team representing people with claims against Comcare. Ms Grundy was present when Dr Veness left telephone messages for Mr Fenwick concerning this issue. Ms Grundy continued to believe that her interests were being protected. At the time, she was of the view that reviews by Comcare often took a long time to finalise.
10. As she was no longer in receipt of compensation payments, in November 2004 Ms Grundy applied to Centrelink for a disability pension. In April 2005 this pension was granted, backdated to November 2004.
11. In March 2006 Ms Grundy instructed Mr David Lander, Solicitor, to act for her. Mr Lander immediately notified Comcare that Ms Grundy was seeking a review of all adverse determinations and that Mr Fenwick was no longer acting for her.^[2] This was the first notification that Comcare had received that a reconsideration of the determination was being requested.

REASONING

12. Subsection 62(3) of the Act provides that a request for a reconsideration of a determination is to be made within 30 days of a person receiving notice of the determination "or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows."
13. The principles relevant to an application of this kind were set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344. These principles were applied by the Federal Court in Duong v Australian Postal Corporation [2005] FCA 991 and summarized as follows:

(1) Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;
(2) Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’) and a case where the decision-maker was allowed to believe that the matter was finally concluded.
(3) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
(4) However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
(5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(6) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion." ^[3]

14. By the time Mr Lander notified Comcare of Ms Grundy's wish to have the decision reconsidered, the request was substantially out of time. However, I am satisfied that Ms Grundy has established an acceptable explanation for the delay in that she acted reasonably (albeit surprisingly patiently) in relying on Mr Fenwick to take the action necessary to protect her right to seek a reconsideration. The Full Court of the Federal Court has held that delay on the part of solicitors can amount to an acceptable explanation for delay in making a review application: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441. Mr Fenwick is not a solicitor, but he held himself out as an advocate in compensation matters and there is no reason why the same principle should not apply.
15. Comcare has argued that on the evidence I should be satisfied that in November 2004 Ms Grundy made a positive decision not to seek a review of Comcare's determination. Rather she sought a disability pension as an alternative income to that the income she had previously received by way of compensation payments. Counsel also referred me to the fact that in February 2005 Ms Grundy received correspondence from Comcare refusing payment of further accounts.^[4] Further, as counsel reminded me, Ms Grundy had no hesitation in contacting Comcare herself to ensure that Mr Fenwick had sought an extension of time for her initial submission, even after she had instructed Mr Fenwick to act on her behalf. Counsel argued that there was no reason why she should not have done so again. I accept this argument.
16. Having observed Ms Grundy in the witness box, however, and taking into account the submission put on her behalf prior to the determination being made, and her evidence that she was financially worse off in receipt of the disability pension in comparison to the compensation payments, I am satisfied that it has always been her intention to challenge Comcare's decision. Having said this, I am no satisfied that Comcare "must have known" this was her intention.
17. Being satisfied that there is an acceptable explanation for the delay, it is necessary to consider whether Comcare would be prejudiced should the time for requesting a reconsideration be extended. Comcare did not call evidence to show such prejudice but this does not exclude me from finding that Comcare would be prejudiced in appropriate circumstances: Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244; Duong Australian Postal Corporation [2005] FCA 991.
18. In Maric v Comcare, O’Loughlin J said:

"The Tribunal is a specialist tribunal; it regularly deals with matters (such as these) involving public authorities and Government departments. The Tribunal and its members are entitled to make use of the knowledge that is thereby acquired and in appropriate circumstances that knowledge will entitle the Tribunal more readily to infer prejudice." ^[5]

19. Comcare has the benefit of the reports of Dr Brown and Dr Youssef which it obtained before it made its determination to cease payments. Comcare properly conceded that it was not prejudiced by the delay save that new information had been raised in a report by Dr Tym, a psychiatrist who examined Ms Grundy in June of this year. Although the report does refer to events which occurred many years ago, the opinions expressed by Dr Tym are based on his very recent examination of Ms Grundy. Comcare can now arrange for a psychiatric examination of Ms Grundy to obtain an alternative opinion as to her present condition if it so wishes. It is Ms Grundy’s present condition on which Dr Tym has reported.
20. This is a case in which the decision maker has a discretion and thus it is necessary to weigh up all the relevant factors and then make the preferable decision. One such consideration is that Comcare was entitled to have reached the view that Ms Grundy had accepted its determination although it is always open to her to seek a resumption of payments should circumstances change. There is a public interest in achieving finality in the processes of public administration.
21. Comcare has also properly conceded that it could not be argued that Ms Grundy's claim for ongoing payments is vexatious, which I take to mean that it is accepted that her case is not without merit. Having considered the medical reports and taking into account the substantial period for which compensation has been paid, I am satisfied there is sufficient merit in her case to justify an extension of time in which to request a reconsideration. I am also satisfied that in all the circumstances it would not generally be regarded as unfair to others that an extension of time be granted in this case.

DECISION

22. The decision of Comcare made August 2006 is set aside and in substitution it is decided that the time by which Ms Grundy can seek a reconsideration of the determination of Comcare dated 14th October 2004 issued in relation to her claims for compensation (reference 31771/02 & 01) is extended to and including 7 December 2006.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed: .....................................................................................
Joe Meagher, Associate

Date/s of Hearing 1 November 2006
Date of Decision 23 November 2006
Representative for the Applicant Mr D. Lander
Counsel for the Respondent Mr S. Whybrow
Solicitor for the Respondent Sparke Helmore

^[1] Section 37 documents T68 and T69.
^[2] Document T81.
^[3] At paragraph 17.
^[4] Document T80.
^[5] At 250.

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1.	This is an application by Ms Grundy for review of a decision by Comcare to refuse her request for an extension of time in which to seek a reconsideration of a determination made in October 2004. The determination was that at that time she was no longer entitled to payments of compensation for injuries she had suffered as an employee of the Commonwealth.
2.	For reasons which follow, I have decided that the decision of Comcare should be set aside and that Ms Grundy be granted the extension of time which she seeks.

3.	Unless otherwise stated, I make the following findings of fact based on the evidence of Ms Grundy. I am satisfied of these facts on the balance of probabilities.
4.	In 1986 the Commissioner for Employees Compensation determined that Ms Grundy was entitled to compensation for a repetitive strain injury suffered in February 1985. In 1995 Comcare accepted liability for an aggravation of her condition of fibromyalgia and secondary reactive depression. She received compensation for loss of income and medical expenses in respect of both injuries.
5.	In 2004 Comcare arranged for Dr Brown, a psychiatrist, and Dr Youssef, a rheumatologist, to examine Ms Grundy for the purpose of assessing her ongoing entitlement to compensation payments. Both these medical practitioners provided comprehensive reports to Comcare.^[1] Having received these reports, together with a report from Dr Veness, Ms Grundy's treating psychiatrist, Comcare wrote to Ms Grundy on 4 July 2004 advising her that it appeared that at the time she was not entitled to continue to receive compensation benefits for incapacity and medical expenses. Comcare gave Ms Grundy the opportunity to present further evidence by 18 August 2004 before making a final decision.
6.	Having received the letter from Comcare, Ms Grundy engaged a Mr Fenwick to assist her in her compensation matters. Ms Grundy had previously sought assistance from Mr Fenwick in relation to her compensation claims. Following the engagement of Mr Fenwick both he and Ms Grundy contacted Comcare to arrange extensions of time to lodge a response to Comcare’s letter. A detailed submission was prepared and forwarded to Comcare.
7.	On 14 October 2004 Comcare denied liability for medical expenses and incapacity payments arising from the injuries. Pursuant to the requirements of the Safety, Rehabilitation and Compensation Act 1988, Comcare advised Ms Grundy that she could request a review by a Review Officer within 30 days of receiving this decision. Although it appears that the letter was received by Ms Grundy sometime earlier, she only became aware of it about four days prior to the expiration of the 30 day period. She immediately contacted Mr Fenwick who agreed to lodge an objection to the decision.
8.	Ms Grundy gave evidence that she also sent an e-mail to Comcare requesting an extension of time for the lodging of an objection. A copy of the e-mail was not produced. I accept Ms Grundy as a witness of truth but I am not satisfied that in fact this e-mail was sent. Ms Grundy may be confusing it with the e-mail she sent requesting an extension of time for the submission made prior to the determination.
9.	From November 2004 until March 2006 Ms Grundy believed that Mr Fenwick had taken the necessary action to request a review of the decision to cease her compensation payments. In this period she contacted Mr Fenwick on a number of occasions (at times on several occasions per month) and he informed her that everything that needed to be done had been done. After some time she became concerned as to the delay in the process and raised these concerns with her psychiatrist, Dr Veness. It was her understanding that Dr Veness and Mr Fenwick worked together as a team representing people with claims against Comcare. Ms Grundy was present when Dr Veness left telephone messages for Mr Fenwick concerning this issue. Ms Grundy continued to believe that her interests were being protected. At the time, she was of the view that reviews by Comcare often took a long time to finalise.
10.	As she was no longer in receipt of compensation payments, in November 2004 Ms Grundy applied to Centrelink for a disability pension. In April 2005 this pension was granted, backdated to November 2004.
11.	In March 2006 Ms Grundy instructed Mr David Lander, Solicitor, to act for her. Mr Lander immediately notified Comcare that Ms Grundy was seeking a review of all adverse determinations and that Mr Fenwick was no longer acting for her.^[2] This was the first notification that Comcare had received that a reconsideration of the determination was being requested.

12.	Subsection 62(3) of the Act provides that a request for a reconsideration of a determination is to be made within 30 days of a person receiving notice of the determination "or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows."
13.	The principles relevant to an application of this kind were set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344. These principles were applied by the Federal Court in Duong v Australian Postal Corporation [2005] FCA 991 and summarized as follows:

14.	By the time Mr Lander notified Comcare of Ms Grundy's wish to have the decision reconsidered, the request was substantially out of time. However, I am satisfied that Ms Grundy has established an acceptable explanation for the delay in that she acted reasonably (albeit surprisingly patiently) in relying on Mr Fenwick to take the action necessary to protect her right to seek a reconsideration. The Full Court of the Federal Court has held that delay on the part of solicitors can amount to an acceptable explanation for delay in making a review application: Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441. Mr Fenwick is not a solicitor, but he held himself out as an advocate in compensation matters and there is no reason why the same principle should not apply.
15.	Comcare has argued that on the evidence I should be satisfied that in November 2004 Ms Grundy made a positive decision not to seek a review of Comcare's determination. Rather she sought a disability pension as an alternative income to that the income she had previously received by way of compensation payments. Counsel also referred me to the fact that in February 2005 Ms Grundy received correspondence from Comcare refusing payment of further accounts.^[4] Further, as counsel reminded me, Ms Grundy had no hesitation in contacting Comcare herself to ensure that Mr Fenwick had sought an extension of time for her initial submission, even after she had instructed Mr Fenwick to act on her behalf. Counsel argued that there was no reason why she should not have done so again. I accept this argument.
16.	Having observed Ms Grundy in the witness box, however, and taking into account the submission put on her behalf prior to the determination being made, and her evidence that she was financially worse off in receipt of the disability pension in comparison to the compensation payments, I am satisfied that it has always been her intention to challenge Comcare's decision. Having said this, I am no satisfied that Comcare "must have known" this was her intention.
17.	Being satisfied that there is an acceptable explanation for the delay, it is necessary to consider whether Comcare would be prejudiced should the time for requesting a reconsideration be extended. Comcare did not call evidence to show such prejudice but this does not exclude me from finding that Comcare would be prejudiced in appropriate circumstances: Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244; Duong Australian Postal Corporation [2005] FCA 991.
18.	In Maric v Comcare, O’Loughlin J said:

19.	Comcare has the benefit of the reports of Dr Brown and Dr Youssef which it obtained before it made its determination to cease payments. Comcare properly conceded that it was not prejudiced by the delay save that new information had been raised in a report by Dr Tym, a psychiatrist who examined Ms Grundy in June of this year. Although the report does refer to events which occurred many years ago, the opinions expressed by Dr Tym are based on his very recent examination of Ms Grundy. Comcare can now arrange for a psychiatric examination of Ms Grundy to obtain an alternative opinion as to her present condition if it so wishes. It is Ms Grundy’s present condition on which Dr Tym has reported.
20.	This is a case in which the decision maker has a discretion and thus it is necessary to weigh up all the relevant factors and then make the preferable decision. One such consideration is that Comcare was entitled to have reached the view that Ms Grundy had accepted its determination although it is always open to her to seek a resumption of payments should circumstances change. There is a public interest in achieving finality in the processes of public administration.
21.	Comcare has also properly conceded that it could not be argued that Ms Grundy's claim for ongoing payments is vexatious, which I take to mean that it is accepted that her case is not without merit. Having considered the medical reports and taking into account the substantial period for which compensation has been paid, I am satisfied there is sufficient merit in her case to justify an extension of time in which to request a reconsideration. I am also satisfied that in all the circumstances it would not generally be regarded as unfair to others that an extension of time be granted in this case.