Abd El Salam v RTWSA – the merits of out of time disputes
Mr Rani Abd El Salam (the worker), lodged a claim for compensation in February 2016 for an injury he claims to have sustained in a fall at a workplace on 27 August 2015 (the fall). The claim was rejected on 15 July 2016 by RTWSA.
The worker filed an Application for Review in September 2020, 4 years and 1 month beyond the 1-month limitation period. The worker asserts that he did not receive the rejection letter and argues that an extension of time is required.
The worker asserts that after arriving in Adelaide, he spent lots of time at Nik’s BBQ on the Lake, his wife’s family business. The worker deposed that he was offered paid work by his wife’s parents just before the fall occurred and accepted the offer. The worker informed that his wife and in laws attended to all the employment details, he did not keep a record of house worked or a pay-book. The worker estimates that he was working around 35 hours per week and was paid $628.50.
In August 2015, the worker stated that he was carrying a yiros spit onto which he had threaded raw marinated chicken and lamb meat, it weighs about 30 kilos. As he walked out of the kitchen and turned left towards the rotisserie, his right foot slipped from under him, and he fell backwards onto his backside. He deposed that he felt an immediate sharp stabbing pain in his lower back and numbness in his middle back and that he could not get up because of the pain for about 20-30min.
The worker lodged a claim for compensation in February 2016. He deposed that apart from his signature and the signature of his former father-in-law as the employer, the handwriting on the Claim form was made by his former wife.
The worker was offered interim payments of $628.50 per week in keeping with a payslip attached to his first affidavit. He accepted the offer and received $13,445.60 in interim payments and $2,308.86 in medical expenses from the Corporation prior to his claim being rejected. The claim was rejected by no later than 25 October 2016 by the compensation authority.
Issues for the Tribunal
The issues in this matter were whether an extension of time is required, and if it is, should it be granted, and what, if any, compensation should be awarded.
Decision by the tribunal:
Is there a good reason to allow an extension of time?
The RTW Act provides that there must be a good reason to allow for an extension of time and that another party will not be unreasonably disadvantaged. The Tribunal held that in this case, there were no good reason to allow for extension of time.
The worker’s interim payments had ceased as soon as the claim was rejected and sometime in 2016 and 2017, he was made aware by his wife that recovery of those payments was sought by the corporation. In addition, in August 2020 he was contacted by a debt collector that repayments were outstanding.
The worker had received no indication that the claim would be accepted, and a letter was sent to him in July 2016 rejecting the claim. There were no clear and cogent reasons for the delay in lodging an Application for Review.
Will another party be disadvantaged if the extension is allowed?
The worker did not consult his GP about his back injury straight away, but he made complaints to his GP in September 2015 that he was training for mixed martial arts body building. The worker mention the fall to his GP on 13 October 2015, if there is another reason for the delay, the passage of time will make it hard to discover.
There may be unreasonable disadvantage to the corporation in relation to delay in undertaking medical investigations following the fall. Such investigations may have provided greater clarity in relation to the changes observed in the thoracic spine and the sacrococcygeal region.
His Honour Calligeros DPJ held that;
“In my view, the Corporation will be unreasonably disadvantaged in relying upon evidence that is more than six years old in relation to Mr Abd El Salam’s incapacity for work and the basis of him performing work in his parents-in-law’s business at the time of the fall. The opportunity to follow potential avenues of enquiry is now greatly limited by the passage of time.”
Merits of the Claim
The tribunal held that based on the evidence at the hearing, that the worker was employed under a contract of service. His Honour also held that based on the medical evidence provided, the worker sustained an injury to sacrococcygeal region and not to the back as previously described by the worker. His Honour also found that the worker’s AWE should be set at $628.50 based on the financial evidence provided to the Corporation and at the hearing.
His Honour dismissed the application for review and that the rejection of the claim dated 27 January 2016 was to be confirmed.
It is important that challenges to determinations are timely brought and that where out of time challenges are made that consideration is given to any valid reason for not pursuing a challenge earlier in time.
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