Owens and Comcare
[2006] AATA 1109
•21 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/122; 291
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN HOWAN OWENS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe
Dr G Maynard, Member
Date21 December 2006
PlaceBrisbane
Decision The decisions under review are affirmed. ...................[Sgd]...........................
SENIOR MEMBER
CATCHWORDS
COMPENSATION – whether applicant is entitled to receive compensation after 65 years of age – date of retirement – applicant not entitled to compensation – continuing entitlement to medical benefits – accepted conditions – applicant not entitled to certain medication
Safety Rehabilitation and Compensation Act 1988 s 16, 23
REASONS FOR DECISION
21 December 2006 Senior Member Bernard J McCabe
Dr G Maynard, Member
introduction
1. Dr John Owens retired from his employment with the Australian Quarantine and Inspection Service (AQIS) because of a work-related medical condition. Comcare has refused to continue making compensation payments in respect of the condition beyond the applicant’s 65th birthday. Dr Owens says that decision was wrong because he was told he would receive compensation for the rest of his life. He says he has made his retirement plans on that assumption. Dr Owens also says Comcare should continue paying for medication for his hypertension condition. Comcare has refused to do so because it says it only ever accepted liability in respect of an anxiety condition. Dr Owens has asked the Tribunal to reconsider both matters.
2. Dr Owens appeared on his own behalf at the hearing in Rockhampton. Mr Clark of counsel appeared for the respondent.
background
3. Dr Owens was born in 1938 and he is now aged 68. He joined the Department of Primary Industries in 1959. He worked for the department and subsequently for AQIS as a veterinarian. Between 1965 and 1988, he worked at Central Queensland Meatworks in Rockhampton. His work involved managerial responsibilities. His doctor warned him about his rising levels of stress and his blood pressure. He went on sick leave on 19 October 1988 and subsequently submitted a claim for compensation. He never returned to the workplace. He formally retired on the grounds of invalidity on 2 October 1989.
4. The decision to retire was made following an assessment by various medical experts. A report from the Commonwealth Medical Officer (the CMO) dated 16 December 1988 is included in the T documents (exhibit one at p 17). The report referred to a chronic anxiety state accounting for 95% of the applicant’s incapacity. The report also referred to hypertension, which accounted for 5% of the incapacity. The CMO concluded the applicant was unfit for employment. A psychologist also provided a report in relation to the applicant’s anxiety condition (exhibit one at p 21) as did the applicant’s treating doctor (exhibit one at p 24). Both of those reports focus on the applicant’s anxiety condition. A rehabilitation assessment was completed in 1989. That assessment refers to the anxiety condition and hypertension, although it appears to assume the hypertension condition was ancillary to the anxiety.
5. Comcare no longer has a copy of the original determination in which it accepted liability for the applicant’s condition or conditions. Comcare now says it only accepted liability for the applicant’s acute anxiety condition. It says there is no record it ever accepted liability for hypertension which means it is not obliged to pay for the applicant’s medication for that condition.
6. It is clear from the records that the anxiety condition was Comcare’s primary concern. Many of the documents generated after the applicant’s retirement refer to his retirement on the grounds of anxiety (eg, exhibit one at pp 117, 122, 124 and125). They do not refer to liability for hypertension. Yet Comcare continued to pay for blood pressure medication throughout the years that followed.
7. Dr Owens subsequently developed diabetes and suffered a stroke. He says there has been confusion within Comcare over what he is claiming. He says he understands Comcare is not expected to compensate him in respect of his stroke or his diabetes.
8. Comcare wrote to Dr Owens on 4 February 2003 to advise it would cease making payments for incapacity on his 65th birthday. This came as a surprise to Dr Owens. He says he had spoken by telephone to many Comcare offices on many occasions and he had been told he would receive compensation for the rest of his life.
is the applicant entitled to compensation after he turns 65?
9. The first issue can be resolved easily. Section 23(1) of the Safety Rehabilitation and Compensation Act 1988 (the SRCA) provides:
Compensation is not payable under section 19, 20, 21, 21A or 22 to an employee who has reached 65.
10. The position may well have been different under previous legislation but it is clear Dr Owens was an employee in the relevant sense when the SRCA came into force on 1 December 1988. He may have ceased work before that point but he did not cease to be an employee until he retired on 2 October 1989.
11. It follows Comcare is not permitted to pay compensation under the relevant provisions to Dr Owens now that he has passed his 65th birthday. I accept Dr Owens may have been given inaccurate information about his entitlements at the time he retired and soon thereafter as Comcare officers were coming to grips with the new regime established by the SRCA. That is regrettable, but the SRCA is clear. The determination that Comcare is no longer liable to pay incapacity benefits must be affirmed.
is the applicant entitled to receive medical benefits in respect of his hyptertension condition?
12. Section 23 does not relieve Comcare of its liability to pay medical benefits under s 16 of the SRCA. Dr Owens says Comcare should pay for the cost of treating his hypertension. The reviewable decision dated 8 February 2006 (exhibit three at p 161) affirms Comcare’s refusal to pay for Lipitor (a drug used to lower cholesterol) and Coversyl (a drug used to treat high blood pressure). The determination was made on the basis that those drugs are not used to treat the anxiety disorder that Comcare says is the accepted condition.
13. The medical evidence now establishes there is no connection between anxiety and hypertension. Dr Maynard, the medical member of the Tribunal, pointed out that this is a comparatively recent discovery. Dr Maynard said that when the diagnoses of anxiety and hypertension were made in the late 1980s, the prevailing medical opinion was that the two conditions were linked. It is therefore entirely possible that Comcare regarded the applicant’s hyptertension as a feature of the anxiety condition. That explains why Comcare continued to pay for the blood pressure medication for many years.
14. Even so, we are satisfied Comcare never formally accepted liability for hypertension as a separate condition. We note the formal determination has been lost but we have already referred to the numerous items of correspondence mentioning the accepted anxiety condition. There is no mention of liability for hypertension. Perhaps Comcare would have determined it was liable for hypertension in 1988 given the state of medical knowledge at the time if it had been asked to address the question squarely; regrettably, we are satisfied that did not occur. It follows the decision in Q2006/122 must also be affirmed.
conclusion
15. The reviewable decisions are affirmed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr G Maynard, Member.
Signed: .....................................................................................
Associate Adam RyanDate of Hearing 11 October 2006
Date of Decision 21 December 2006
The applicant represented himself at the hearing.
The respondent was represented by Mr Clark, of Counsel.
0
0
0