Carpenter and Comcare
[2004] AATA 528
•25 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 528
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/195
GENERAL ADMINISTRATIVE DIVISION ) Re GEOFFREY WALTER CARPENTER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Dr E Ericksen (Part-time Member)Date25 May 2004
PlaceAdelaide
Decision The decision under review is affirmed.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Compensation – Eligibility – Temporary aggravation of underlying condition – Return to work – Retirement from employment – Whether incapacitated when retired – Decision to refuse compensation affirmed.
Safety, Rehabilitation and Compensation Act 1988 – ss14, 19
REASONS FOR DECISION
25 May 2004 Mr S P Estcourt QC., (Deputy President)
Dr E Ericksen (Part-time Member)1. The decision of the Tribunal is against the applicant Mr Geoffrey Carpenter and in favour of Comcare.
2. The applicant by letter dated 5 April 2004 claimed weekly compensation and medical and related expenses since leaving the employment of the Commonwealth in July 1992.
3. This claim for compensation relates to a determination of Comcare of 11 March 1991 to accept liability for a temporary aggravation of a chronic underlying anxiety condition which manifested itself on 29 November 1990.
4. By letter dated 6 April 2004 Comcare rejected the applicant’s claim in the following terms:
“On the basis of the above noted matters and after applying the relevant sections of the Act, Comcare has determined to reject your claim pursuant to sections 14, 16 and 19 of the Act as during the period subsequent to your claim:
1. You have not continued to suffer from the effects of the compensable injury.
2.Alternatively, you have not been incapacitated for your employment with the DAS either at all or as a result of the compensable injury or have not required medical treatment therefore.
3.Alternatively, you failed to continue in suitable employment with the DAS and chose to resign and take a voluntary redundancy package in July 1992.
4.Alternatively, you retain the capacity for suitable employment on the open labour market for which you could earn the equivalent of your normal weekly earnings.
5.Please note that nothing in this Determination is intended to revoke or disturb any previous determinations.
A notice regarding your rights is attached should you be dissatisfied with this determination.”
5. The applicant requested a review of this decision by letter dated 6th April 2004 and on 7th April 2004 Comcare affirmed the original decision. It is from that decision that this appeal has been brought.
6. The simplicity of the issue before the Tribunal in this case has been obscured by the need to consider over 1,000 pages of documents and five days of evidence and submissions, much of which has failed to remain focused on the fact that the question for determination is the applicant’s entitlement under the Safety Rehabilitation & Compensation Act 1988 (“the Act”) in respect of the temporary aggravation of an “ailment” and not the “ailment” itself.
7. It is common ground that the applicant was suffering, prior to November 1990, from a Generalised Anxiety Disorder which on any view of the evidence was “contributed to in a material degree” by the applicant’s employment with the Bureau of Meteorology between 1975 and 1983.
8. It is also common ground that whilst he was employed by Australian Construction Services, he suffered an acute aggravation of his underlying Generalised Anxiety Disorder on 29 November 1990.
9. The respondent determined to accept liability for the applicant’s claim for compensation under the Act in respect only of the “temporary aggravation of an underlying chronic anxiety condition”, and the applicant was so advised by letter dated 11 March 1991. That determination was never challenged by the applicant, and no claim for compensation arising from the underlying chronic anxiety condition was ever pursued by the applicant.
10. For the purposes of s4 of the Act, the underling chronic anxiety condition is the “ailment” and the acute episode on 29 November 1990 is the “aggravation” of that “ailment”.
11. This is so because the definition of “injury” in s4 of the Act includes a “disease” and “disease” is defined in that section to mean “any ailment suffered by an employee” or “the aggravation of any such ailment”.
12. Upon the happening of the acute aggravation of the applicant’s underlying ailment he was certified unfit for work by Prof. Murrell of the Family Practice Unit of the University of Adelaide between 29 November 1990 and 14 January 1991. Thereafter the applicant returned to work with the assistance of a rehabilitation program which concluded on 10 July 1991, and subsequently he transferred to employment as an AS03 Regional Safety Officer with Asset Services and continued to work until he accepted a redundancy package and resigned his employment 12 months later in July 1992.
13. The simple question for the Tribunal which derives from s4, s14 and s19 of the Act is therefore, whether at any time subsequent to the cessation of employment with the Commonwealth the applicant suffered incapacity for work arising out of an injury suffered by him arising out of or in the course of his former employment.
14. However, because the “injury” is an “aggravation” of an “ailment”, ie, the aggravation of the underlying chronic anxiety condition, and not the ailment itself, the question becomes, whether at any time after ceasing employment the applicant suffered incapacity for work arising out of the acute aggravation suffered by him of his non‑compensated underlying chronic anxiety condition.
15. It is difficult to imagine how incapacity as a result of the temporary aggravation of the applicant’s underlying condition could arise out of or in the course of his former employment after cessation of that employment. It is possible perhaps that there could be a pure recurrence of the aggravation, pure in the sense that it recurred not as a result of any identifiable extraneous cause and must therefore be attributed to the acute aggravation spontaneously re‑emerging. There is however no evidence of that.
16. Another possibility is, as the applicant contends, that his post‑employment incapacity arises in the sense that he was in fact still incapacitated for work whilst he continued to work for the Commonwealth during the year after the conclusion of his rehabilitation program, and remained so incapacitated at the date of his cessation of employment and beyond.
17. However, in describing the practices he adopted in the carrying out of his duties for over a year after his return to work, the applicant did not describe any incapacity for work in the sense of a reduced ability to perform work. Rather he described coping strategies he adopted to allow him to continue to fully perform his work (see Exhibit 5, Document 1 pp.37-40).
18. Moreover, and fatal to the applicant’s contention in this respect, the unchallenged and uncontradicted psychiatric evidence of Dr M. Ewer, called by the respondent, was that the applicant was coping with full-time work in 1992 and that whilst he has continued to suffer from an anxiety disorder since he left work in 1992, the temporary aggravation caused at Australian Construction Services was “time limited” and his capacity to perform work similar to that which he was doing in 1992 has not been limited.
19. The applicant faces a further insurmountable difficulty in this case arising from his cessation of employment with the Commonwealth, and that is, that as he left full- time employment which he was able to perform he would be subject to a determination under s19(4)(d) of the Act that he is able to earn the amount per week he was earning in that employment and thus would not be entitled to compensation pursuant to s19.
20. The decision of the Tribunal is therefore that the decision under review is affirmed. In so doing the Tribunal notes that the questions raised by the applicant as to the impact upon him of his underlying chronic anxiety disorder, (as opposed to the acute aggravation of it), the causal relationship between his underlying condition and his employment with the Bureau of Meteorology, his contention that he was placed under pressure to resign from his employment with the Commonwealth and any questions of compensation arising out of those matters are inquiries which are beyond the jurisdiction of the Tribunal.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Dr E Ericksen (Part-time Member)Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 13, 14, 15, 16 April 2004
Date of Decision 25 May 2004
Counsel for the Applicant Mr Carpenter appeared on his own behalf
Solicitor for the Applicant
Counsel for the Respondent Mr Terry McRae, Ms Jodie Bradbrooke
Solicitor for the Respondent Thomson Playford
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