George Stacey and Comcare
[2015] AATA 386
•2 June 2015
[2015] AATA 386
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1600
Re
George Stacey
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Date 2 June 2015 Place Canberra The decision under review is affirmed.
........................[sgd]................................................
Gary HumphriesCatchwords
COMPENSATION – Commonwealth employee – applicant suffered stroke at work – whether costs of medical treatment in relation to injury suffered at work – medical treatment prescribed for purposes other than treatment of stroke – decision under review affirmed.
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Abrahams v Comcare (2006) 93 ALD 147
Dunkerley and Comcare [2014] AATA 381
Dunkerley v Comcare [2015] FCA 392
Pratt and Comcare [2004] AATA 1281Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Secondary Materials
Commonwealth, Parliamentary Debates, House of Representatives, 27 April 1988, 2191 (Brian Howe)
REASONS FOR DECISION
Decision under review
This decision under review is a decision of Comcare dated 12 March 2014 (affirming a determination dated 2 January 2014) that Comcare was not liable to pay compensation to Mr Stacey under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the costs of two pharmaceuticals (Anagrelide and Asasantin) and of medical reviews by his treating haematologist.
At the outset of the hearing Mr Stacey indicated that a related application (2014/1599) need not be considered by the Tribunal because it related to superficial wound dressings for an ulcer on his right ankle. This ulcer had cleared up and he no longer required these dressings. The Tribunal dismissed this application by consent.
The hearing proceeded on the basis that Mr Stacey sought compensation for a third pharmaceutical, Pravachol. On later examination, it became evident that neither of the two reviewable decisions by the respondent in relation to Mr Stacey's claims had dealt with this drug, and as a result the Tribunal probably had no jurisdiction to make a fresh decision in relation to it. However, for the sake of completeness I will include reference to it in these reasons, in that I found that the fate of a claim for this drug would have been the same as for the other two drugs.
Background
On 15 September 2003, Mr Stacey had the misfortune to suffer a stroke while at work at the Australian Taxation Office. He spent some time in hospital after this incident, and needed extensive rehabilitation to restore some measure of normalcy to his life. Even so, the effects of the stroke remain with him today. He walks with a limp. He has pins and needles down his left side, and his left leg and arm are always cold. He sometimes suffers severe sciatic pain, and muscles on the right side of his body also experience pain as they compensate for the weakness of other muscles.
Unsurprisingly in these circumstances, Mr Stacey gave up work in 2004. Comcare accepted liability for "unspecified cerebrovascular disease" (in effect, a stroke), and for 10 or so years following the incident was meeting a range of Mr Stacey's medical and pharmaceutical costs.
However, in early 2014, Comcare discontinued payments in respect of Anagrelide, Asasantin and Pravachol, for the wound dressings, and for visits to the haematologist, on the basis that these treatments were not related to Mr Stacey's compensable condition. Determinations were made to that effect in January 2014. He sought reconsideration of both determinations but they were affirmed on 12 March 2014. Other costs, such as those related to his visits to Dr Shroot, his GP, have continued to be met by Comcare.
The medical history
Mr Stacey was diagnosed in 1999 as suffering from a form of myeloproliferative disorder, more specifically essential thrombocythaemia. An effect of this condition is to elevate the platelet count in the bloodstream. With this condition the platelets also become more “adhesive”, adding to the chance that they will contribute to a stroke. He was being treated for the thrombocythaemia from no later than 2002 by taking Hydroxyurea, which provided some relief of his condition but had the unfortunate side-effect of causing a painful ulcer on his right ankle.
Both doctors giving evidence at the hearing speculated that the thrombocythaemia was a probable contributor to the stroke he suffered in 2003. Certainly soon after the stroke Mr Stacey began to be prescribed drugs which it appears were intended to alleviate the symptoms of thrombocythaemia: Asasantin from November 2003 and Pravachol from January 2004. He could not recall when he began to take Anagrelide but Dr Shroot’s records suggest he was prescribed this by the middle of 2009 at the latest.
The three drugs are important in securing Mr Stacey’s health and wellbeing. He submitted that These items are essential for the maintenance of my health and to prevent me having a further stroke, propositions to which both doctors giving evidence agreed. Comcare did not dispute that the treatment regime, including the drugs, was reasonable given the state of Mr Stacey’s health.
The issues
As will be discussed below, the evidence before the Tribunal suggested that the drugs Mr Stacey was taking following his stroke may have been prescribed in relation to one or more of the following:
·his essential thrombocythaemia
·his stroke of September 2003
·the prevention of future strokes, to which his thrombocythaemia makes him susceptible.
It was Comcare’s contention that only the second of these, Mr Stacey's stroke of September 2003, was a compensable injury under s 16 of the Act, and that he is not entitled to recover the cost of treatments affecting conditions other than his stroke. Mr Stacey contended that, because the thrombocythaemia had been a substantial cause of his stroke, it too attracted compensation under s 16, as did treatment to prevent future strokes.
It therefore fell to the Tribunal to determine two issues in this proceeding:
1.Are costs of treatments for Mr Stacey’s essential thrombocythaemia, or to prevent future strokes, costs of medical treatment in relation to a compensable injury under s 16 of the Act?
2.If not, are costs of any of the treatments claimed by Mr Stacey costs in relation to his compensable injury, namely the stroke of September 2003?
Are costs of thrombocythaemia treatment, or to prevent future strokes, costs of medical treatment in relation to a compensable injury?
The relevant provisions of the Act are as follows:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) …
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or…
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
6 Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) …
(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or…
Comcare’s liability to pay compensation arises from an injury to an employee resulting in death, incapacity for work, or impairment (s 14(1)). It is apparent that Mr Stacey’s stroke could fall under either of the first two arms of the definition of injury in s 5A, that is, a disease suffered by an employee or alternatively an injury (other than a disease)… arising out of, or in the course of, the employee’s employment. Counsel for Comcare submitted, and I accept, that the stroke is best considered an injury (other than a disease). To consider it a disease presents the difficulty, in this case, that evidence of the stroke being caused by Mr Stacey’s employment is scant (s 5B). The medical evidence strongly suggested that the stroke was wholly the product of his essential thrombocythaemia, though Mr Stacey himself, in giving evidence, suggested that stress at work had been a cause.
The combined effect of s 16 and the definition of injury in s 5A is that Comcare is liable to meet the costs of the reasonable treatment Mr Stacey incurs in relation to the injury he suffered in the course of [his] employment. The phrase in the course of … employment is further defined in s 6 to include an injury sustained while the employee was at the employee’s place of work. Comcare accepted that Mr Stacey suffered the stroke of September 2003 while at work, and that the costs of his subsequent treatment were reasonable costs, but that some of those costs were not costs in relation to the stroke.
It is not necessary that the injury on which liability is based should be determined precisely prior to the consideration of the matter by this Tribunal. As Madgwick J noted in Abrahams v Comcare (2006) 93 ALD 147 at 153:
Nothing is more common than that medical diagnoses change and evolve, or are or become various.
His Honour’s judgment is authority for the proposition that the Tribunal, on reviewing a decision under the Act, may give the claimed condition a different designation to that originally used, provided the two designations share the same symptoms, disability and timeframe.
Despite the invitation the authorities provide for the Tribunal to characterise the condition claimed for in a broad way, I do not believe I am at liberty to conflate Mr Stacey's stroke with either the underlying cause of it or treatment to prevent a recurrence of it. Treatments for these things are not treatments in relation to his stroke, except in the very broadest sense. Mr Stacey could not have claimed for, say, thrombocythaemia at the time of his stroke because it was clearly not an injury arising out of, or in the course of, his employment. The conditions are clearly related, but not to the degree contemplated by the Act.
The legislature has evinced a clear intention that the connection between an illness/condition and a claimant's employment must be more than a nominal one. In his second reading speech, the Minister responsible for what became the Safety, Rehabilitation and Compensation Act 1988 clearly indicated that the then legal threshold for the connection between a disease and employment was too low:
Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of a disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease.
Certainly, since the 1988 legislation was enacted, the Parliament has further tightened the evaluative threshold requiring that, to be compensable, employment must have contributed to a significant degree (rather than to a material degree, as originally enacted) to the onset of a disease (see s 5B).
Commonwealth liability for Mr Stacey's stroke is established by virtue of it having struck while he was at work, by force of the definition of injury in s 5A. The work-related connection becomes much weaker when the underlying condition is considered. There is little to suggest that his work has contributed to the onset of that condition, and I can see no intention that the legislation should encompass that condition merely because it encompasses what was a consequence of it. Mr Stacey highlighted the following passage from Comcare’s letter of 5 May 2004 accepting liability for his stroke:
If the employee is "in the course of [his or her] employment" and suffers an "injury" as defined in the Act and as interpreted by both the Federal Court and the High Court, then liability to pay compensation in respect of that "injury" has been established, irrespective of the underlying cause of that "injury".
He characterised this as acceptance of liability by Comcare for both his “injury” and its “underlying cause”. Putting aside the question of whether the author of the letter had the capacity to conclusively determine Comcare’s liability, the interpretation advanced is, with respect, a non sequitur.
The connection with employment is even more attenuated with respect to treatments to prevent a future recurrence of the stroke. Again, there is a link by virtue of the subject matter, but the scheme of the legislation does not appear to embrace preventative steps by the Commonwealth to guard against future injury, whatever the merits of such an approach in a public policy sense. For the purposes of the Act, treatment to reduce the likelihood of future strokes cannot be said to be treatment in relation to a previous stroke, though treatment of the latter might incidentally be efficacious of the former.
In Dunkerley and Comcare [2014] AATA 381 Member Webb articulated the test under s 16 as follows:
Unless otherwise indicated by express terms or the context in which it is used, the phrase “in relation to” has a broad meaning, requiring “no more than a relationship whether direct or indirect, between two subject matters”. Nonetheless, if the relationship between an injury and particular medical treatment is so distant or remote that the injury, directly or indirectly, is not an operative factor in the need for treatment, the evaluative threshold necessary to enliven an entitlement to compensation under s 16 of the Act will not be met (at [21]).
Counsel for Comcare helpfully drew the Tribunal’s attention to Pratt and Comcare [2004] AATA 1281, and Mr Stacey pressed its relevance in this case. In Pratt the Tribunal considered an applicant’s claim for compensation under s 16 for the cost of a double stenting procedure following a myocardial infarction. The Tribunal found in the applicant’s favour, stating;
… the section should be interpreted broadly so as to include Mr Pratt’s treatment in this case. Dr Coles stated that the stenting was to prevent a recurrence of the injury and that it became necessary because of the injury Mr Pratt had already suffered. This is sufficient connection for the purposes of section 16 of the Act (at [26]).
With respect, even if the approach in Pratt is consistent with the legislative intent exhibited in the 1988 amendments to the Act, it is not consistent with the intent behind the 2007 amendments. In his Second Reading speech for the 1988 bill, the Minister said
… It will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged (Hansard at pp 2192-3).
The necessary connection between employment and disease/injury was further elevated by the 2007 amendments. In the present instance, the connection between the employee’s employment and the need for these medications is very slight.
Mr Stacey pointed out that “liability” was accepted for the claimed treatments for up to 10 years, and that the sudden decision to reverse this position had been unexplained on Comcare’s part. Be that as it may, it is hard to see how early generosity can preclude later parsimony. In Telstra Corporation LtdvHannaford (2006) 151 FCR 253 Conti J said:
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances (at 273).
Citing Hannaford, the Federal Court in Dunkerley v Comcare [2015] FCA 392 observed,
There is no doubt Comcare is entitled to take the course of reassessing a claim if fresh evidence suggests the injury is no longer extant…(at [23]).
Whether the long interval between accepting Mr Stacey’s medical costs and repudiating them was the product of changing evidence or simply benign neglect, it would be contrary to both the authorities and good practice if Comcare were now to be denied the right to reassess its position.
Accordingly, I find that Comcare is liable under s 16 for the treatment costs relating to Mr Stacey's stroke of September 2003, but not for costs relating to his essential thrombocythaemia nor for costs relating to the prevention of future strokes.
Are costs of any of the treatments claimed costs in relation to the compensable injury, namely the stroke of September 2003?
Mr Stacey was not prescribed any of the three drugs in question until after his stroke of September 2003, leading to the submission that the drugs were prescribed to treat the stroke. Although the evidence before the Tribunal was initially divergent on this question, as the medical evidence unfolded it became clear that the drugs were not prescribed for that purpose.
Dr Shroot, in a letter dated 4 April 2014, stated that The pharmaceuticals Anagrelide, Asasantin and Pravachol are reasonably required in relation to the stroke Mr Stacey suffered in September 2003. However, before the Tribunal he clarified this position. He told the Tribunal that Anagrelide served the purpose only of treating essential thrombocythaemia, and that Asasantin and Pravachol may be needed to treat his stroke. He gave evidence that, even if Mr Stacey had not suffered a stroke, he would most likely still have been prescribed the three drugs, or close equivalents, to treat the thrombocythaemia. In later cross-examination he agreed that the drugs had a prophylactic effect, preventing recurrence of the “ischaemic event” (i.e. the stroke) that occurred in 2003.
Dr Gorman's evidence was more straightforward. In his tendered report of 8 September 2014 he said:
Firstly, the stroke did not increase his need for [Anagrelide, Asasantin and haematologist appointments]. In fact, the essential thrombocythaemia caused the stroke. The anagrelide, Asasantin and haematologist appointments are required for treatment of his essential thrombocythaemia (which caused the stroke). The treatment needs to continue as if his platelet count again increases it would substantially increase his chance for further vascular events.
He agreed that Mr Stacey would definitely be on Anagrelide and Asasantin, and probably on Pravachol, even if he had not suffered a stroke. He gave evidence that the Pravachol was not needed for treatment of the stroke “directly”; he clarified this to say that, at its highest, all the Pravachol was doing was reducing the chance of a further stroke, but was not itself treatment for the stroke previously suffered. As to why Mr Stacey had not been prescribed any of these three drugs before his stroke, Dr Gorman agreed that the event of September 2003 had the effect of alerting his doctors to the need for more apposite treatment for the underlying condition.
I note that Mr Stacey himself emphasised the prophylactic value of the drugs in question. For example, he cited the consumer information sheet accompanying the Asasantin capsules, which reads in part ASASANTIN SR helps to prevent recurrence of stroke in people who have had a previous stroke …
Despite some inconsistencies in the evidence, I am satisfied that each of the drugs in question was prescribed for purposes other than the treatment of Mr Stacey's stroke. It follows that the costs of those drugs are not costs in relation to the injury of the stroke in the terms of s 16 of the Act. Similarly, the costs of Mr Stacey’s treating haematologist must also be disallowed, in that Dr Pidcock is treating Mr Stacey “for a chronic myeloproliferative disorder, namely essential thrombocythaemia” (as per Dr Pidcock’s tendered letter of 11 April 2014).
Regrettably, therefore, Mr Stacey's application for review of Comcare’s decision on his condition must fail.
I note that the cost of the drugs Mr Stacey claimed for was a modest $216 per year. Mr Stacey is 76 years of age and quite unwell. Even if he lives for another 15 years, it is doubtful that Comcare will recover the cost of this litigation with its victory today. One wonders whether a better outcome might not have been found.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of .........................[sgd]...............................................
Associate
Dated 2 June 2015
Date(s) of hearing 30 April 2015 Applicant In person Counsel for the Respondent Peter Woulfe Advocate for the Respondent Liam Meagher Solicitors for the Respondent Australian Government Solicitor
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