DETERMINATION NUMBER : D04-05\065
FILE NUMBER : 03-0278
REVIEW DETERMINATION AND REASONS*
PARTIES
The Trustee
The Fund
The Employer
Conducted under the provisions of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act) and held on 19 August 2004 before:
§ Katy Adams, Presiding Member
§ E Anne Shanahan, Member
DECISION UNDER REVIEW
By letter dated 13 May 2003, the Trustee informed the Complainant of its delegate's decision that the Complainant was not entitled to the payment of income protection benefits.
On review, the Trustee affirmed the previous decision of its delegate.
*Copied with names deleted for public distribution.
PROCEDURAL MATTERS
The Tribunal conducted the Review on the papers. Pursuant to s.32 of the Complaints Act, it requested submissions from the Parties. A submission was received from the Trustee and exchanged and responses invited.
All documents are retained on the Tribunal file for record purposes and had been copied and distributed to the Parties before the Review meeting.
THE COMPLAINT
On 26 February 2004 the Complainant lodged a complaint with the Tribunal that the decision of the Trustee to deny his income protection benefits claim was unfair or unreasonable for the reasons summarised in this determination. The amount of benefit in dispute is 75% of the Complainant's fortnightly salary from around 18 March 2003 until the date the Complainant returns to full employment.
BACKGROUND
The Tribunal is satisfied as to the following facts in respect of the Complainant:
§
12 February 1946: the Complainant's date of birth;
§
23 July 1990: the date
the Complainant joined the Fund;
§
23 October1997: the Complainant's preserved moneys
were released to him on the basis of his total and permanent disablement;
§
19 June 2000: the Complainant recommenced
membership of the Fund, in the Accumulation Division;
§
7 February 2003: the date
the Complainant is diagnosed as having non-Hodgkin's Lymphoma; and
§
26 February 2003: date of claim for income protection benefit.
The version of the Trust Deed that applied on the date when the Complainant ceased active employment provided that the Trustee must provide income protection insurance to each member in the Complainant's category of membership on terms decided by the Trustee.
The Fund's Insurance Terms provide that no insurance benefit will be paid for a claim unless:
(a) and (b) [Not relevant].
(c) (i) the member has been an insured member for fewer than 10 continuous years; and
(ii) the
member did not lodge a personal medical statement at or about the date on which
the member became an insured member; and
(iii) it is established to the satisfaction of the board that the total and permanent disablement or death or temporary disablement was not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the date on which the member became an insured member.
The fund is self-insured.
The Complainant, now aged 58, was diagnosed with chronic lymphatic leukaemia ('CLL') in May 1996 and underwent long-term treatment of this condition. On 26 February 2003 the Complainant lodged an Income Protection claim with the Fund having been diagnosed as suffering from Non-Hodgkin's lymphoma. The Trustee denied the claim on the basis that the newly diagnosed condition was related to the CLL and that the CLL should have been disclosed had a Personal Medical Statement been completed. The Complainant argued the two conditions were separate and unrelated.
The Tribunal had before it the reports of a general practitioner, one general physician and two specialist haematologists.
Dr
TL-M, General Practitioner (Report dated 3 July 1997 to the Principal Medical
Advisor of the Trustee)
Dr TL-M advised that the Complainant had been diagnosed as suffering from CLL in September 1996. His disease had progressed over the years with incidents of exacerbation. The Complainant had been referred to a physician for treatment and was advised to cease work. Dr TL-M described CLL as a disease where the malignancy is long-term with possible acute exacerbations.
Dr
GW, Physician (Report dated 13 October 1997 and addressed 'to whom it may
concern', and completed Initial Disability Assessment dated 20 March 2003 for
the Trustee)
In the report of 13 October 1997 Dr GW confirmed the diagnosis of CLL with markedly elevated white blood cell counts. He anticipated that the Complainant would require chemotherapy within the next 6 to 12 months. Physical examination revealed markedly enlarged cervical lymph nodes. An ultrasound of the neck on 1 July 1997 confirmed the lymphadenopathy. The Complainant also suffered from obesity, excessive alcohol intake and stress. His prognosis was considered to be "guarded".
The Initial Disability Assessment form recorded that the diagnosis of non-Hodgkin's lymphoma had been made on 7 March 2003. In addition, the Complainant had mild chronic renal disease and controlled hypertension. Dr GW opined that it was unknown as to whether this was the same or similar syndrome or disease to the previously diagnosed CLL.
Dr
TF, Clinical Haematologist (Two reports, to the Trustee dated 13 April 2003 and
to the Complainant's solicitor dated 8 July 2003)
Dr TF advised the Trustee that he had first seen the Complainant on 7 February 2003 on referral from Dr GW with a diagnosis of CLL that was of low-grade malignancy. This had been treated from 1998 to 2001 with Chlorambucil at a rate of 3 to 4 courses per year depending on the level of the white cell count and the Complainant's level of lethargy. In late 2002 two courses of Chlorambucil and Prednisone had been administered. While the Complainant's white cell count had fallen with this treatment, the lymphadenopathy had increased and he had lost 20kg in weight.
On examination, Dr TF found massive lymph node enlargement (lymphadenopathy) and splenomegaly.
Dr TF obtained a complex past history from the Complainant that included a left nephrectomy in 1997 for carcinoma of the kidney, resection of a squamous cell carcinoma from his neck in 2002 and the biopsy of enlarged para-colic lymph nodes in September 2002. The histopathology of these lymph nodes was suspicious for lymphoma.
A series of tests including bone marrow biopsy, immuno-phenotyping and extensive blood tests yielded a diagnosis of a B-cell proliferative disorder of the CLL/small lymphocyte lymphoma type with possible early transformation.
Dr TF opined that the Complainant's CLL had transformed to non-Hodgkin's lymphoma in the previous 12 months. Chemotherapy followed by stem cell autografting was recommended and chemotherapy was commenced.
Dr TF provided a report to the Complainant's solicitor on 8 July 2003 wherein he summarised the Complainant's history and expressed the opinion that "it is reasonably often seen that CLL can progress into a very aggressive high grade non-Hodgkin's malignant lymphoma - known as Richter's transformation". In his opinion the Complainant had progressed from CLL to a low or intermediate grade lymphoma. He further stated that "all of these disorders are related to each other". While Dr TF expressed some concern in answering the question as to whether the lymphoma was related to the pre-existing CLL, he concluded that "in this particular case, it (the lymphoma) arose from the CLL", despite the fact that they are two distinct disorders.
Dr
TO, Clinical Haematologist (Report to the Trustee dated 5 November 2003)
Dr TO has not seen the Complainant. His opinion was based on documentation forwarded to him by the Trustee. He opined that the Complainant's initial CLL had with time undergone transformation to a B cell lymphoma.
SUBMISSIONS
The Trustee
The Trustee reviewed
the facts surrounding the claim and stated that the issue to be resolved was:
Whether the condition of
causing [the Complainant's] disablement is related to a previous condition,
which ought reasonably to have been disclosed had a personal medical statement
been submitted at or about the date on which income protection coverage
commenced on 19 June 2000.
The Trustee then reviewed the
medical evidence and stated that:
Having regard to al the
evidence, the Board was satisfied that [the Complainant's] current condition of
non-Hodgkin's lymphoma is related to a condition of chronic lymphatic leukaemia
which pre-existed 19 June 2000, the date on which [the Complainant] became an
insured member of the [Fund] Accumulation Account.
The Trustee concluded that its
decision was therefore fair and reasonable.
TRIBUNAL'S DELIBERATIONS
The Tribunal's role is to determine whether the decision of the Trustee
was fair and reasonable in its operation in relation to the Complainant in the
circumstances. In reaching its
determination, the Tribunal took the whole of the evidence and submissions into
account.
The Tribunal is bound by the operation of the law under which it
operates, which requires it to review the Trustee's decision and not to
interfere with the decision unless the decision is not fair and reasonable in
its operation in relation to the Complainant in the circumstances.
The Trustee's decision was that "the medical evidence available at this point in time is not sufficient to establish that the condition rendering [the Complainant] incapacitated is not related to a condition that ought reasonably to have been disclosed had a personal medical statement been submitted at or about the date on which the member became an insured member".
The Tribunal is of the view that the Trustee had to consider:
§ What was the Complainant's incapacity ("the incapacity"), which led to him claiming the Income Protection Benefit?
§ What condition(s) ought reasonably to have been disclosed had the Complainant completed a personal medical statement when he joined the Fund?
§ Has it been established to the satisfaction of the Trustee that the incapacity was not related to a condition that ought to have been disclosed?
It is clear to the Tribunal that the Trustee has considered each of these questions.
The disagreement between the Trustee and the Complainant is whether the incapacity and the condition that would have been disclosed are "related" as that term is used in the Fund's Insurance Terms. The Complainant, in correspondence with the Trustee, queried whether the medical evidence was sufficient to show that the current condition of non-Hodgkin's Lymphoma and the previous condition of CLL were related.
In particular, the Complainant submitted that the medical evidence did not "conclusively" find that the two conditions were related. However, this is not the test required by the Trust Deed. It requires that the Trustee be satisfied that the two conditions were "not related".
The expert haematological opinion is in agreement that the Complainant's original condition of CLL has undergone transformation to a B cell lymphoma – a well-recognised phenomenon. Further, the medical evidence overwhelmingly supports the conclusion that the two conditions are inter-related, the lymphoma development being a known progression of CLL. The Tribunal therefore finds that the Trustee's decision that it has not been established that the CLL and the non-Hodgkin's lymphoma are not related is fair and reasonable in its operation in relation to the Complainant in all the circumstances.
DETERMINATION OF THE TRIBUNAL
Pursuant to s.37 of the Complaints Act, the Tribunal has all the powers, obligations and discretions of the Trustee. By virtue of s.37(3) the Tribunal may make a determination:
§ affirming a decision;
§ remitting the matter for consideration in accordance with the Tribunal's directions;
§ varying the decision; or
§ setting aside the decision and substituting its own decision.
Section 37(6) of the Complaints Act provides that the Tribunal must affirm the decision under review if it is satisfied that its operation, in relation to the Complainant was fair and reasonable in the circumstances. The Tribunal is so satisfied.
In accordance with the requirements of ss.37(3), (4) and (5) of the Complaints Act, the Tribunal determines that the decision under review was fair and reasonable in all the circumstances. It therefore affirms the decision.