December 7, 2017

Employer Liability & Workers Compensation | QLD

AAT allows application for reconsideration lodged 432 days after due date

barton and k & s freighters pty ltd (compensation) [2017] aata 2170 (14 november 2017)

AAT sets aside decision of Employer to deny application for reconsideration

The AAT has confirmed that applicants seeking to apply for a reconsideration of a determination are able to do so outside of the due date, provided the circumstances of the delay and the merits of the case are properly considered. 

In this matter the Applicant had suffered two lower back injuries during his employment:

  • 10 September 2011 – Fracture of the T11 vertebra; and
  • 22 July 2013 – Fracture of the T 10 vertebra.

Liability had been accepted by K&S for both injuries.

Dr Terry Hillier (spinal surgeon) provided a report related to the second injury which was received by K&S on 15 December 2014.  Dr Hillier concluded that the Applicant had several underlying conditions and that the cause of the Applicant’s pain may relate to bone inflammation at T8 and T9 which he attributed to his non work related myeloma. 

In reliance of Dr Hillier’s report, K&S made a determination on 17 December 2014 that the Applicant was no longer entitled to compensation in respect of the 22 July 2013 injury.  K&S requested the Applicant provide further information within 28 days prior to a final decision being made.

The Applicant requested two extensions to provide this information, the last expiring on 16 March 2015, however ultimately no further information was forthcoming and K&S consequently ceased compensation payments. 

K&S advised the Applicant by letter dated 28 April 2015 that he had 30 days to seek a reconsideration and failing to do so may result in him losing his rights in that regard.

The Applicant did eventually lodge an application for reconsideration, however it was well outside of the statutory timeframe.  The application was made via his solicitor’s letter of 28 July 2016, some 432 days after the period allowing for same had lapsed and K&S declined to accept the application. 

Of note, Associate Professor Steadman had more recently examined the Applicant on 25 January 2016.  Associate Professor Steadman in his report considered the Applicant suffered from a constitutional spinal condition known as ankylosing spondylitis.  This condition resulted in a very stiff spine and significant osteoporosis.  Associate Professor Steadman noted that the Applicant had no spinal problems prior to sustaining the first fracture of the lower thoracic spine however because of the nature of his spinal condition the fracture gradually worsened with increasing pain due to the ling stiff spine and below the fracture.  Associate Professor Steadman was of the opinion that the second injury began a process of further problems which resulted in the Applicant not being able to return to work. 

In considering whether it was appropriate to maintain a denial of the reconsideration application, the AAT applied a similar determinant as that identified in Willems[1]:

“In coming to its decision Comcare, properly, should have regard (1) to the cause of, and the explanation for, the delay in submitting the request; (ii) to [the respondent’s] conduct in this; and (iii) the consequences to Comcare of the delay and [the respondent’s] conduct.”[2]

The AAT also deemed that in addition to the above, the merits of the substantive claim should also be considered.

In this instance, the reasons submitted by the Applicant for the delay included his undergoing back surgery and subsequent inpatient admission to hospital until November 2015.  Additionally, the Tribunal noted that the Applicant and his solicitors had been taking steps in relation to securing his compensation rights during that period of time.  The Tribunal was satisfied that there was sufficient material to accept the Applicant had not abandoned the initial determination and that he had sought legal advice in regards to the employer’s decision to cease liability for that claim.

The Tribunal more significantly identified that the Applicant’s claim had merit.  The AAT held that Associate Professor Steadman’s report was compelling evidence which cast a different light on the Applicant’s condition and in his reports he had identified that the second fracture began a process which had not allowed the vertebra to heal and it was a gradual progression of his underlying spinal problem and therefore, the effects of the injury had not ceased.

Lastly, the Tribunal held that there was no prejudice suffered as a result of the delay by K&S. 

The Tribunal concluded therefore that the preferable decision was to grant the Applicant an extension of time within which to make a request for the reconsideration and the initial determination of K&S dated 28 April 2015 was set aside.  The Applicant’s request for reconsideration received on 2 August 2016 be granted.

 


[1] Comcare v Willems (1996) 70 FCR

[2] Ibid at 250