Under cross examination, the Applicant claimed he had drafted his Statement with his wife, in the absence of his solicitor and without the solicitor's input. It was obvious from his answers that this was not the case because he could not explain the meaning of the word "antecedents" which was used as a heading in his statement, could not explain what he meant by "primary injury" and could not answer any specific questions about his claim, the basis for his claim, or instructions to his solicitor. He did, however, claim to know that there was a timeframe for requesting a reconsideration, stating:

I said do you want me to do it and he said no, send it to me and I will. > > ... > > I knew the 30 day thing because they stopped my money and I knew I had to get it in. > > I called Nasser. I was nearly losing my house. > > ... > > We rang him heaps of times...That many times, but he didn't return the calls... Phone calls, emails... should have stayed with RMB.

When asked by the Respondent why no application for reconsideration of the Suspension Decision had been made until April 2024, the Applicant stated:

My memory is blank on this. All I know - I can tell you about my shoulder. Dates mean nothing to me.

When asked why he didn't undertake rehabilitation (the subject of the suspension), he said:

If that was from Karla - she wanted me driving a forklift. I'm not moving kegs of beer. She said 'you will do as you are told'.

When asked if he remembered being provided with the rehabilitation plan, he said:

I think I signed a few of them. I wanted to get back to work.

The Applicant claimed under cross examination that he had made a TPD (total and permanent disability) claim and received payment around 2.5 years ago. When asked who the solicitor was for that claim (as it was not GM), he could not recall. He also could not recall the insurer involved in that claim. 12. Due to the vagueness of the Applicant's assertions in his statement, the fact that he clearly did not write his statement but insisted under cross examination that he had, and the lack of any corroborative documentary evidence, I give minimal weight to the Applicant's evidence except where it is supported by the documents otherwise provided to the Tribunal. 13. Mr Bechara's statement set out a history of the Applicant's workers compensation claim and his firm's involvement. GM was first instructed by the Applicant on 22 March 2021. GM requested the Applicant's file from his former solicitors on 7 May 2021 and received it on 14 May 2021. 14. In relation to the Suspension Decision, Mr Bechara stated:

11. On 25 June 2021, the Respondent determined to suspend the Applicant's entitlements pursuant to s 37(7) for his refusal or failure to comply with a rehabilitation plan. At that time, the Applicant instructed GMP that he had not refused to participate in the return to work plan and he had tried to participate, however, he was unable to do so because of his secondary psychological injury. > > 12. Unfortunately, due to administrative oversight on the part of GMP and due to no fault on the part of the Applicant, no action was taken with respect to this determination by GMP until 5 April 2024.

15. In relation to the Injury Decision, Mr Bechara stated:

14. On 17 September 2021, GMP requested reconsideration of the Respondent's > > determination dated 18 August 2021. However, that request for reconsideration failed to set out any grounds upon which the request was based. > > 15. On 23 December 2021 again GMP clarified that the request for reconsideration was sought on the grounds that: > > (a) There is an error of law; and > > (b) The decision is contrary to the available evidence.

16. Mr Bechara took carriage of the matter from 25 January 2023. His evidence prior to that date was provided on his 'information and belief', after reviewing the file.
17. Under cross examination, Mr Bechara stated that he 'inherited' the file which 'went through a number of lawyers'. He 'tried to assist as best [he] could'. He knew of the time constraints, knew the previous solicitors were 'delinquent', and admitted the file was not being looked at. He said that in 2023 he was managing "a couple hundred [files] easy" in the context of a "significant turnover of staff" at GM. He could not recall ever advising the Applicant to get further legal representation. He blamed administrative oversight "and work just not being done" for the delay. He admitted that there was nothing on the file to explain the delays. He generally accepted all the propositions put to him by the Respondent about the firm's failures and their impact on the reviewable decisions. He was in regular contact with the Applicant, knew what needed to be done in relation to his claim for compensation, and accepted that the delay meant the Respondent lost the opportunity to have the Applicant medically assessed at the time, but justified this because he "thought he attended a number of appointments at the time".
18. Mr Skazlic's Statement provided evidence about the Respondent's management of the Applicant's claims. He stated that following the Applicant's shoulder injury in 2018, an assessment was conducted and it was determined that he was capable of undertaking rehabilitation. A rehabilitation program was developed by:

...assessing the nature and content of suitable duties and dealing with the Return to Work [RTW] coordinators who managed liaison with Mr Thomson in re RTW and rehabilitation, including addressing objections and concerns expressed by Mr Thomson as to his suitability for various types of duties.

19. The rehabilitation program was based in Enfield (in Sydney) in circumstances where the Applicant was resident between Port Kembla (where he had previously been working) and Enfield, but was situated slightly closer to Enfield.
20. Mr Skazlic also said:

22. I am of the belief that K&S will not now be able to adequately prepare and instruct its solicitors appropriately in relation to matters concerning Mr Thomson's refusal or failure to undertake the rehabilitation plan determined for him by K&S' National Injury Management team, nor in regard to efforts to return Mr Thomson to suitable duties as well as his eventual termination from employment, by reason of the departure of Ms Stewart and Ms Evans from the K&S business since the events in 2021 that are described in the two claims before the ART in respect of which he seeks an extension of time. > > 23. I also consider that his delay in proceeding with these claims has hampered the capacity of K&S to mitigate its compensation liability though progressing the s 37 (1) rehabilitation plan and gradually increasing Mr Thomson's exposure to suitable duties over time.

21. Mr Skazlic was not required for cross examination and I therefore accept the evidence in his Statement.

1. Whilst I will consider and address each of the Reviewable Decisions separately, there is some overlap of the relevant factual circumstances and implications of one decision on another.
2. The Applicant's solicitor's evidence was:

The Applicant instructed GMP that he had not refused to participate in the return to work plan and he had tried to participate, however, he was unable to do so because of his secondary psychological injury.

3. The Applicant signed off on each of his rehabilitation programs and suitable duties plans, but on 10 May 2021, failed to attend work. His wife wrote to his employer on his behalf and explained that the Applicant "has been awake all-night stressing about the Driving, to Enfield" because he had "never been able to drive in traffic", and that "This travelling is just not acceptable for his health, he is 60 years of age and is not stable in his ability to be driving in traffic".
4. It is clear from the contemporaneous evidence provided by the Applicant's wife, his own Statement and his evidence under cross examination, that the Applicant's psychological symptoms were causally connected to the requirement that he undertake work at Enfield, which meant that he would have to drive towards Sydney in circumstances where there was traffic. The requirement that he was to work at Enfield was part of the rehabilitation program and was made, according to the Respondent's evidence (which I accept) with consideration of the Applicant's physical restrictions. The documentary evidence contained in the T-Docs demonstrates that the Applicant amended a "suitable duties" plan for the period 9 April 2021 to 8 October 2021 (which 'underpins rehabilitation program dated 25 March 2021') to specify that he did not want to operate a forklift and requested re-evaluation of his capacity to do so because 'I drove a forklift at Wattle St, 5 minutes here and there and my shoulder began to hurt'. A further suitable duties plan for the period 9 April 2021 to 8 October 2021 was introduced, signed by the Applicant on 6 May 2021, in which the 'forklift operations' were removed from the 'duties available', demonstrating that the Applicant's concerns were taken into consideration in the development and implementation of his rehabilitation program by the Respondent.
5. The Respondent submitted:

There may be a question of fact as to whether the psychiatric claim was a secondary consequence of the accepted shoulder injury (the subject primary injury in respect of which the suspension is taken to operate) and if it is, extending time to request a reconsideration of it would arguably be futile in light of the operation of the suspension precluding same. > > Likewise, the Tribunal may conclude there is insufficient evidence to persuade it that an arguable claim exists in regard to psychiatric injury (whether because it was solely due to the rehabilitation/compensation process itself, and therefore not a result of 'employment', or because there is no sufficient medical proof as to the existence of a Mooi level of dysfunction so as to constitute "an ailment") -such that to extend time to reconsider it would be futile. Any such conclusions may have implications for whether the psychiatric reasons asserted are capable of furnishing a reasonable excuse for the refusal or failure to engage in rehabilitation.

6. I agree with the Respondent's submissions that those issues are relevant to the Tribunal's consideration. The two claims are interrelated factually and the reasons for the Applicant's failure to comply with the time requirements for reconsiderations, and the delay are intertwined.
7. As referred to in the Respondent's evidence and submissions, one of the major issues consequential to such a significant delay in an employment context is that:

...the elapse of time since the relevant events and the difficulties occasioned when there has, since those events, been a fundamental alteration in the legal relationship between the parties, are each submitted to be strongly relevant to the exercise of the Tribunal's statutory discretion upon review.

8. The Applicant stopped working on 10 May 2021 (see paragraph 2(e) above) and was terminated from his employment with the Respondent in December 2022. The requirement to request reconsideration of a decision under the SRC Act is time constrained for reasons which include ensuring that the employees' situation and circumstances in the workplace do not materially change during the time between when the decision is made and the reconsideration is sought. Similarly, the timeframe in which a reviewable decision must be provided (once a reconsideration request is made) is also constrained by statute. This also provides certainty to the parties as to what the next steps are in the context of an individual's injury treatment, rehabilitation and employment.
9. Relevant to my consideration of both proceedings is the Applicant's ability to recall details of events and circumstances at the time of his employment with the Respondent. It is clear from his cross examination at the hearing that he was unable to provide any specific details or dates on which relevant events or alleged discussions occurred. The only specific dates provided in his Statement of his 20-year (and 15 pages) history with the Respondent were his dates of injury and surgery dates, both of which I infer (due to his poor memory in oral evidence and my conclusions at ‎32 above) were drawn from the documentary evidence by his solicitors. This inability of the Applicant to recall details, in addition to the passage of time and the departure of key personnel, will drastically limit the Respondent in being able to now investigate the Applicant's vague assertions and the circumstances of his claims.

1. In relation to the Suspension Reviewable Decision, the Applicant submitted:

20. In circumstances in which the Applicant was experiencing psychological problems and was confused and impaired, his decision to leave his legal claim matters in the hands of experienced solicitors was reasonable. > > 21. Unfortunately, due to an oversight on the part of those solicitors, due in part to the focus being on having the Applicant's claimed psychological injury accepted by the Respondent, those solicitors failed to request reconsideration of the decision to suspend the Applicant's payments in a timely manner. > > 22. Again, any delay in requesting the reconsideration was not due to any fault on the Applicant's part who always acted reasonably and responsibly.

2. Addressing each of the relevant considerations:

(a) An acceptable explanation of the delay: I accept that the delay in seeking reconsideration of the Suspension Decision was entirely the fault of the Applicant's solicitor. This is because the Applicant was represented by GM at the time that the rehabilitation determination under s 37(1) of the SRC Act was made on 25 June 2021, and GM were actively managing his work-related injury complaints as they had made the Psychiatric Injury Claim on his behalf on 14 May 2021. > > I accept the Applicant's solicitor's evidence that his firm's failure to comply with the time limit for requesting a reconsideration, and the delay prior to actually making the request, was an "oversight". However, this is not a reasonable or acceptable explanation for such a critical oversight and such a significant delay of 847 days between the date of the Suspension Decision and the reconsideration request. > > (b) The Applicant's role: whilst I accept that the Applicant had instructed GM and believed they were actively pursuing his claim, I do not accept the Applicant's assertion that he was continually calling and chasing up his solicitors for action. According to Mr Bechara, the Applicant informed them in December 2022 when his employment was terminated, and attended a medical assessment in around March 2023. There is no documented evidence before the Tribunal that the Applicant took another other action related to the Suspension Decision or Injury Decision between instructing his solicitors in early 2021 and providing the statement in these proceedings in 2024. > > The Applicant gave evidence that although he was aware of the relevant time periods for requesting reconsideration "because they stopped his money" and that he was "calling and calling", he did not change solicitors, despite having done so previously when he wasn't satisfied with his representation. Whilst this would seem to be inexplicable in circumstances where the Applicant's claims involved liability for weekly incapacity payments and rehabilitation, the evidence demonstrates that the Applicant was in receipt of other income - a lump sum payment through his TPD, and/or income protection for a 2-2.5 year period, and was terminated from his employment in 2022. > > I find therefore that the Applicant did, essentially, "rest on his rights" by failing to pursue his solicitors for action in relation to the Suspension Decision and the Injury Decision. However in my view the weight to give this consideration is significantly less in these circumstances, where he had instructed solicitors acting for him, and they have admitted failing to pursue his claim for him in that time. > > (c) Prejudice to the Respondent: The evidence of Mr Skazlic provides strong evidence of the prejudice to the Respondent caused by the delay in seeking reconsideration of the Suspension Decision. Not only have the witnesses who would have been relevant to the s 37(1) Determination moved on from their employment with the Respondent, but the whole utility of a decision under s 37(7) is to facilitate the rehabilitation of an injured worker back into the workplace. It is not realistic, after such a passage of time and in circumstances where the Applicant's employment was terminated nearly 3 years ago, to revisit the potential for workplace rehabilitation under the SRC Act. > > (d) Public considerations: If the application for an extension of time were successful, this could set a precedent where injured workers like the Applicant - who failed to participate in formalised rehabilitation programs and remained absent from the workplace for years, and who were actually terminated in the interim, severing the employment relationship - could return to their employment and rehabilitation. The prejudice to the Respondent is demonstrated by the absurdity of the outcome in a broader context. > > (e) The merits: For the same reasons discussed in relation to the prejudice to the Respondent and the public considerations, the merits of the substantive application are extremely low. The likely outcome is that a dismissal application brought by the Respondent in those circumstances would be successful. > > (f) Fairness between Applicant and others in same position: for the same reason discussed in relation to the public considerations, granting the application would be unfair to persons other than the Applicant. > > (g) Prejudice to the Applicant: it is difficult to understand what prejudice could be experienced by the Applicant in pursuing reconsideration of the Suspension Decision in relation to actual rehabilitation. Although he asserts in his Statement that he was willing to return to work, his evidence at hearing was that he was unable to drive in traffic. In that respect, his position on rehabilitation seems not to have improved since May 2021. The only prejudice would be that as a result of the s 37(7) Determination, his entitlements to compensation were cut off - but the evidence before the Tribunal is that these were cut off anyway, because his Psychiatric Injury Claim was denied.

3. The correct or preferable decision is to therefore exercise the Tribunal's discretion to refuse the Applicant's request for an extension of time, and affirm the Respondent's Suspension Reviewable Decision.

1. The Injury Decision was the subject of a request for reconsideration by the Applicant within the statutory timeframe. However, the request itself did not comply with s 62 of the SRC Act as it did not include the reasons for the request.
2. The Respondent was entitled to require compliance with s 62 before accepting the request for reconsideration. In Willems, the Full Federal Court, in considering an appeal by Comcare in relation to the discretion in s 62 (3) (b), relevantly held as follows:-

"Thirdly, the purport of par 62(3)(b) is that the issue of allowance of a further period is to be determined in the context in which it arises - namely the reasons supporting the request for reconsideration. Subsection (3) specifies the content of the request - it must set out reasons - and must be made within 30 days of notice of the determination "or within such further period (if any) as the determining authority... allows". If the request for reconsideration fails to set out reasons - understanding that requirement in the beneficial and non-technical manner explained above, it may not comply with the requirements of the paragraph. However, there is no reason why, in appropriate circumstances, the defect could not be cured by amendment which gave the required reasons. Further reasons could be added. It would be unwise for the determining authority to ignore what may be a defective request. > > ... > > Any further delay from conduct of that kind could be relevant in the consideration of whether a further period of the making of the request for reconsideration should be allowed. Likewise, a request for reconsideration given after the 30 day period remains a request but the delay requires the determining authority to consider whether to allow the further period. That will be a matter for the determining authority to decide, having regard to all relevant circumstances up to the date of the making of the request for reconsideration.

3. According to the T-Docs, on 18 August 2021 the Respondent emailed the Applicant a copy of the Psychological Injury Decision (including a Notice of Rights regarding reconsideration) and a copy of Dr Vickers' IME report. The Applicant forwarded this email to his solicitor at GM on the same day. His solicitor wrote back to him that day, stating:

We will need to request a reconsideration of the determination within 30 days. Can you please let me know when you are available for a telephone conference in this matter early next week?

4. On 17 September 2021 the Applicant's solicitor emailed the Respondent at 3.29pm requesting:

Can you please email me the Secondary Adjustment Disorder Determination and Dr Vicker's report, by return,

5. Three minutes later, the Applicant's solicitor forwarded the 18 August 2021 email from the Applicant, to the Respondent, relevantly stating:

Good afternoon again > > Please see below. Our client sent us your email but the attachments were not included.

6. I infer from the next email between GM and the Respondent, at 4.40pm on Friday 17 September 2021, that the Respondent did forward the requested documents. At 4.40pm GM emailed the Respondent, attaching a letter which stated:

We refer to the abovenamed and determination made on 18 August 2021. > > We request a reconsideration of the decision made pursuant to Section 62 of the SRC Act.

Good Morning > > Thank you for your email and we acknowledge receipt of your request for reconsideration. > > We note that you have not provided any grounds or evidence to support for request for reconsideration and as it stands, we are unable to undertake a review until you have provided further information on what grounds you believe the determination is incorrect.

8. The Applicant's representative did not reply until 23 December 2021:

Pursuant to the relevant notice provisions, I am, instructed to request that the Decision be reconsidered on the following grounds: > > -that there is an error of law; > > -that the decision is contrary to all available evidence.

9. On 4 January 2022 the Respondent declined to reconsider the Psychiatric Injury Decision:

Your request for reconsideration is 97 days out of time and as such we are not obligated to deal with your clients request for reconsideration.

10. In relation to the Injury Reviewable Decision, the Applicant submitted:

...the Respondent utterly failed to consider at all whether or not it should extend the time for the Applicant to seek reconsideration. This failure is clear from the face of the letter at T9:32 which completely dismissed the Applicant's claim without due consideration. > > 15. In the circumstances, the Respondent committed an error of law by failing to consider the request for reconsideration upon receipt of the grounds on 23 December 2021 and by refusing to extend the time in which the Applicant is entitled to seek reconsideration of the determination made on 18 August 2021 without duly considering whether it should extend the time. > > 16. The delay between the due date for the request for reconsideration (19 September 2021) and the date upon which the reasons were provided (23 December 2021) is a relatively short period of approximately 3 months. > > 17. The Respondent has not adduced any evidence of any actual or apprehended prejudice caused by this relatively short delay. > > 18. Finally, the Applicant who was experiencing psychological issues at that time instructed competent solicitors to handle his compensation claim on his behalf and any delay in providing reasons in support of the request for reconsideration was not due to any fault on the Applicant's part who always acted reasonably and responsibly. > > 19. If, contrary to these submissions, the Applicant is not granted an extension of time to make this application for review, the Applicant will suffer incurable prejudice because he will be precluded from claiming compensation to which he is, it is submitted, entitled.

11. It is apparent from the correspondence that there was no consideration by the Respondent of an extension of time back in 2021, but nor was there a request by the Applicant or reasons provided for the delay in responding to the email of 17 September 2021.
12. Addressing each of the relevant considerations:

(a) An acceptable explanation of the delay: The delay in seeking reconsideration of the Injury Decision was entirely the Applicant's solicitor's fault. There was no explanation provided for the delay in giving reasons for the reconsideration between 17 September 2021 and 23 December 2021. > > I accept Mr Bechara's evidence that this was an "oversight" and I infer from his evidence that the volume of work being managed by the Applicant's solicitor at the time was a general contributing factor to the delay. However, this is not an acceptable explanation for the delay or the failure to provide any specific explanation for it. > > (b) The Applicant's role: I repeat paragraph 52(b) above. I also note that the Applicant's representatives have also, effectively "rested on [the Applicant's] rights". On the evidence before the Tribunal, following the Respondent's refusal on 4 January 2022 to reconsider the Injury Decision, there was no further correspondence from the Applicant's solicitor in relation to his claim until October 2023, which was 10 months after the Applicant's employment had been terminated. This counts against the granting of the extension of time. > > (c) Prejudice to the Respondent: The evidence of Mr Skazlic provides strong evidence of the prejudice to the Respondent caused by the delay in seeking reconsideration of the Injury Decision. The passage of time causes significant difficulties in investigating and obtaining relevant evidence for an injury alleged to have been suffered in early 2021. The Respondent was also entitled to work on the assumption, following the Applicant's failure to seek a reconsideration within the statutory timeframe, that this was no longer a "live" issue. I find that there would therefore be real prejudice to the Respondent if the extension of time were granted. > > (d) Public considerations: The failure of an instructed solicitor to act for their client, without any specific hardship or special circumstances identified, is not sufficient reason for extending statutory timeframes. This is a relevant public consideration as granting an extension of time in those circumstances may indicate some flexibility in statutory timeframes, if a solicitor takes the blame for any non-compliance. This would be contrary to accepted legal principles and practice. > > (e) The merits: The contemporaneous evidence from the Applicant's wife, and the medical evidence of Dr Vickery, supports a finding that the Applicant's psychological symptoms in 2021 which founded his Psychiatric Injury Claim were actually caused by his preference not to drive in traffic, to attend his rehabilitation program. Dr Vickery's report included: > > Mr Thomson reported "my shoulders are not 100% and I have been on restricted duties and I was transferred from Wollongong to Enfield on 10 May 2021 and I was told I had to drive fork lifts when I told them I had tried to do that before but I couldn't because of the pain." > > Mr Thomson reported "it was for a 12½ hour shift and the driving time could take up to three hours making it a sixteen hour day and I was too anxious driving in the traffic in Sydney and I have been put on no capacity to work." > > There is no restriction he reported with driving his motor vehicle apart from in heavy Sydney city traffic which has been present for a least the past ten years and "my wife drives when we go into the city." He reported "it's different driving in a truck in the city because you are up higher and you can see what is happened a lot more." > > There is increased tension and stress in relation to "the income going down to half what it was and all the phone calls and the paperwork with the claim and my head is going two million miles an hour with everything to do with the claim." > > That these were the Applicant's concerns at the time was confirmed by the Applicant's evidence at hearing. I note that the Applicant's concerns regarding forklifts were addressed by the Respondent at the time, resulting in an amended Suitable Duties plan which removed that requirement. > > Dr Vickery opined on 3 August 2021 that the typical duration for the Applicant's incapacity was several weeks up to six months. > > Neither the Applicant's concerns with driving in traffic nor his stress or tension in relation to his income being reduced as a result of his compensation claim would fall within the definition of "injury" under the SRC Act. I agree with the Respondent's submissions: > > 79.That is because such evidence as exists in relation to the claimed condition cannot establish the probability that the complaints made by the Applicant and reported to his G.P. (who apparently simply accepted his narrative, uncritically, when issuing certificates) disclose "an ailment" as opposed to a condition or state of affairs falling short of the Mooi threshold. > > 80. Further, such causal reasons as are relied upon which fall outside the category of those which might properly be regarded of being 'secondary to a primary condition', relate to factors that are not properly "employment" in the specific legal sense [which is] required to establish that any such ailment exhibits sufficient significant employment contribution to its cause or aggravation, so as to satisfy the requirements on s 5B (2) and (3) (and thus to constitute "a disease" under s 5B of the SRC Act). > > Taking into consideration the contemporaneous evidence and the passage of time, it would be highly improbable that the Applicant could succeed in the Psychiatric Injury Claim if an extension of time were granted. The merits of the substantive application are extremely low, and this counts again granting the extension of time. > > (f) Fairness between Applicant and others in same position: for the same reason discussed in relation to the public considerations, granting the application would be unfair to persons other than the Applicant. > > (g) Prejudice to the Applicant: There is clear prejudice to the Applicant if the extension of time for this Injury Decision is not granted. I accept that this will mean that he is precluded from claiming compensation for psychiatric injury in connection with his employment with the Respondent.

13. The prejudice to the Applicant is outweighed by the other relevant considerations. The correct or preferable decision is to therefore exercise the Tribunal's discretion to refuse the Applicant's request for an extension of time, and affirm the Respondent's Injury Reviewable Decision.

1. The Tribunal affirms the Respondent's reviewable decision in 2024/0319.
2. The Tribunal affirms the Respondent's reviewable decision in 2024/2808.

Mr Bechara for and on behalf of Gerard Malouf & Partners

Michael Snell for and behalf of McInnes Wilson Lawyers