Bruest and Comcare [1999] AATA 91 (17 February 1999)

Last Updated: 18 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 91

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/619

GENERAL ADMINISTRATIVE DIVISION )

Re Charles Peter BRUEST

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J D Campbell, Member

Date 17 February 1999

Place Sydney

Decision The Tribunal affirms the decision under review.

..........Sgnd M T Lewis...........

Mrs M T Lewis

Presiding Member

CATCHWORDS

COMPENSATION cessation of liability for alcoholism resulting from work stress and severe neurodermatitis - whether the Applicant suffers from alcoholism, cognitive deficit and psoriasis - whether on-going work-related conditions - enhanced susceptibility - non-work related stress

Compensation (Commonwealth Government Employees) Act 1971 - ss 5, 27, 29

Safety Rehabilitation and Compensation Act 1988 - ss 4, 20, 124(1A)

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385

Behan v Australian Telecommunications Corporation (1990) 99 ALR 79

Comcare v Mooi (1996) 23 AAR 160

Health Insurance Commission v Van Reesch (1996) 24 AAR 81

Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 99 ALD 665

Zickar v MGH Plastic Industries Pty Ltd (1996) 71 ALJR 32

REASONS FOR DECISION

17 February 1999 Mrs M T Lewis, Senior Member Dr J D Campbell, Member

1. An application for review was lodged with the Tribunal by Charles Peter Breust ("the Applicant") to review a reconsideration decision of a delegate of Comcare ("the Respondent") dated 30 March 1998 (T60, exhibit T1) which affirmed a primary determination dated 7 October 1997 (T57) ceasing liability to pay compensation in respect of "alcoholism resulting from work stress and severe neurodermatitis" which allegedly arose out of his former employment with the Australian Taxation Office.

2. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (exhibit T1). The following documents were tendered as evidence on behalf of the Applicant:-

* Report of Dr James Quinn dated 25 November 1997 (exhibit A);

* Report of Mr W Somerville dated 12 June 1998 (exhibit B);

* Two photographs of Applicant's hands dated June 1992 and received 7 May 1993 (exhibit C).

3. The Applicant gave oral evidence at the hearing. Dr Quinn gave oral evidence on behalf of the Applicant Dr Byth gave oral evidence and Dr Coroneos gave oral evidence by video, both on behalf of the Respondent.

4. In November 1988 the Applicant lodged a claim for compensation in respect of "psoriasis and brain damage possibly due to alcohol" (T3). In February 1989 the Respondent accepted liability for "cognitive deficit related to job stress and severe neurodermatitis" (T36). On 5 January 1990 the determination was varied to accept liability for "alcoholism resulting from work stress" (T41). The Respondent determined that liability ceased on 7 October 1997 (T57). During 1997 the Applicant accepted a voluntary redundancy package.

evidence

5. The Applicant was born on 3 May 1942 and is aged 56 years. He commenced employment with the Australian Taxation Office ("the ATO") in 1961 in the debt recovery section and then moved to assessing in 1963. He joined the Citizen Military Forces (later the Army Reserve) in the Lancers Division about 1961, and after a break for a period he then re-joined through the Officer Training Corps in about 1964. He graduated from an 18 month course in 1966.

6. The Applicant's evidence was that until 1964/65 he was a teetotaller but whilst at the officer training school he first started to drink alcohol. Thereafter he consumed alcohol when he was on a weekend activity, as well as on Thursday parade nights where he was the supervising officer of the mess. He said that on about one in five nights he would have a "big night" where he drank from about 10 pm until 2 or 3 am.

7. From 1961 to 1973 the Applicant was based with the ATO in Sydney. For a period of 12 to 18 months he consumed three schooners at lunch time almost every day with a group of work associates and then returned to work. This ceased when he moved to another section. The Applicant said that during his employment with the ATO he had never taken time off work because of the effects of drinking too much, he never suffered from hangovers, and until 1973 he was still performing his workload. He did not consider that he had a drinking problem up until the time he went to Lismore.

8. From 1963 to 1968 the Applicant attended several technical courses relevant to his employment with the ATO including an accountancy certificate course three nights a week for three hours. This was in addition to his normal work and his commitment to the Army Reserve. His evidence was that this was "intense, but it was manageable".

9. In 1973 the Applicant underwent an investigation course and was given the opportunity to go to Lismore as an Indoor Examiner. Initially when he commenced duty at the Lismore office he understood that there would be a rotation between the examining/investigation work and the office supervisor's job. However from about October/November 1973 until he ceased work at Lismore he was the office supervisor. This involved the day to day running of the office and the supervision and training of 25 staff initially, which was eventually reduced to 11 staff.

10. The Applicant said that when he went to Lismore his drinking habits changed. He was more readily identifiable locally as a tax officer and consequently he tended to drink at the Army because the Army provided "an outlet for a social life", or at home. He said that it was difficult to say whether his intake changed but it took a different emphasis and pattern. He took wine with meals and alcoholic drinks before and after dinner. He agreed that there was a drinking culture in the Army Reserve. Until 1985 he said he was relatively happy with his work performance and he enjoyed his work, although it was intense and demanding and there were some activities he was required to do in which he had no training, eg. appearing in the District Court.

11. From 1985 through early 1988 the Applicant said that the inquiry work increased dramatically in size and complexity because of legislative changes such that it occupied almost all his time and took him away from his duties as a supervisor. He said in a statement in connection with his compensation claim:: "The job was stressful both in its intensity, diversity and the lack of formal training or preparation time" (T34).

12. In about 1985 the Applicant said that he began to notice that he was not keeping up to date with the changes in his work or the legislation, nor was he absorbing information. He thought at the time that he was getting "old and complacent" and said:

.......that was when I started to drive myself harder and involving myself more and more in a lot of studying at home so that by '86/'87 my normal operation was to come home of a night and probably have a beer or two to relax, unwind, have a meal and then adjourn to my study where it was pretty common for me to put in three or four hours personal study per night either into the army side of things or to the tax side of things.

He clarified that the ratio of tax related study to Army Reserve study was approximately two thirds to one third. While studying it was normal for him to have a glass of cask wine so that he could sleep later.

13. The Applicant noticed that he was starting to make mistakes at work and felt that he "had to do something". He was having memory problems and was "leaving stoves on or nearly burning my kitchen out". He discovered he was writing letters back to front and had made errors in mathematical calculations at work. Thereafter he took care to ensure that someone else checked his work.

14. In cross examination the Applicant explained that his involvement with the Army Reserve included training and manipulation of very realistic exercises in demolition. He said that he thought he was "dangerous" because he was making mistakes which could be lethal. As the chief safety officer, the safety of others was in his hands. During this period in the Army Reserve he was constantly studying and developing new skills. His role was demanding and he became "highly strung" while on the job.

15. The Applicant has suffered from a skin condition since 1976 but felt "it was just something that I thought I had to put up with". In 1975 he first consulted a dermatologist, Dr James Walter, regarding a rash in his scalp and sun spots. His hands became worse over time, he began to shed skin, he had small lesions and cuts where the skin cracked and peeled away and on some occasions bleeding occurred. He estimated that exacerbations occurred at three monthly intervals. He was prescribed cortisone which alleviated the problem but only in the short term. Because it caused thinning of the skin he used cortisone only to get him through Army medicals.

16. From about 1985 to 1987 he noticed that the psoriasis on his hands had deteriorated to the point where he had difficulty opening his hands without causing bleeding and effectively this stopped him from fully extending his hands. He also developed a rash in the groin area which caused him to scratch and he had dead skin on his feet which caused his feet to become smelly during the day. He thought that part of the problem might lie in stress management so he consulted Dr Quinn who conducted stress management courses. He said at that stage he was aware of people making uncharitable comments about his skin.

17. The Applicant said he did not feel that there was a connection between his psoriasis from 1975 to 1985 and his Army Reserve activities because although he treated his military training as important it was "a fun activity". However he said that during a period in 1983 or 1984 he had to attend the Army Reserve on 17 consecutive weekends, and he agreed that the stress involved may have exacerbated his condition.

18. The Applicant worked in the Lismore office until about 17 February 1988. He said that when he left the ATO he had problems with his hands and he was concerned about the errors which he made which he attributed to his alcohol intake.

19. The Applicant left the Army Reserve in December 1988. Although he was at the normal retiring age he said he had been asked to seek an extension which he refused to do because of his conditions. He said that around 1988 he used to drink one or two stubbies or the equivalent when he came home from work each day, a glass of wine with his meal and a few glasses of wine while he was studying. He and his wife drank about one and a half four litre casks a week, with himself consuming the majority. He estimated that in the early 1980's his consumption was around half that amount.

20. In his compensation claim the Applicant said that he realised he had a drinking problem in 1987 after falling through a window during a social occasion at the Officer's Mess (T34). In cross-examination he agreed that his drinking problem increased when he was doing more work with the Army Reserve. After leaving the ATO he ceased drinking for approximately twelve months. He said he now drinks in moderation and considers himself a social drinker. He said that his alcohol consumption is no longer a problem for him; it is confined to a beer and one or two ports at a Tuesday night pool game, and wine if he attends a dinner party. He said he has not consumed alcohol to excess since 1988 because he is conscious of the effect it has on him.

21. After leaving the ATO the Applicant noticed that his hands settled down after about 12 to 18 months but he still occasionally has "flare-ups" which he associated with stressful events in his life. In cross-examination he acknowledged that he continued to have problems from psoriasis between the period when he ceased work at the ATO and while he continued with the Army Reserve and agreed that the condition of his hands did not abate until he left the Army Reserve. He recalled that he also had a problem with itchy ears but since 1988 any inflammation of those has been irregular.

22. The Applicant said that he did not feel that he would ever be able to return to his former employment at the ATO as he has difficulty learning and absorbing information and still makes mistakes. He gave examples of his forgetfulness, such as, when he made arrangements to meet someone and forgot the whole arrangement, he forgot to pick his wife up one day after work, he has forgotten how to use programs on his computer, and has forgotten where he parked his car on occasions.

23. The Applicant said he tried to find employment after 1988 and he registered at the Commonwealth Employment Service as it then was, but in two years he did not receive any referrals. He said he attempted to do work in outdoor furniture construction but this was unsuccessful. He also tried to secure other employment but there was no suitable employment which took account of his limitations. In cross-examination he agreed that he was capable of undertaking clerical/filing or retail work and said that he had not tried to obtain this kind of employment. Earlier in his evidence he said that he felt that his memory problem would make him "dangerous" in an office situation and that he felt if he was in a work environment and was required to concentrate his skin problems would return.

24. In cross-examination the Applicant agreed that he told Dr Coroneos that he could complete a crossword puzzle in 20 to 30 minutes and that he had no difficulty remembering family and activity names and dates. He also agreed that he wrote letters on behalf of veterans on a voluntary basis 1 to 2 days per week and he performed repairs on his car. However he said that he did not believe he could succeed in the study required to obtain a light truck licence.

25. Dr James Quinn, psychiatrist, first treated the Applicant in 1987. Throughout his consultations he conducted various tests and provided a number of reports to the Respondent. He concluded in his report dated 25 November 1997 (exhibit A) that the Applicant has -

.......a cognitive deficit which was demonstrated by neuropsychological testing at that time and has also been confirmed subsequently by other testing. He still complains of subjective memory problems. This cognitive deficit is much more likely to been [sic] due to his alcoholism than anything else. His neurodermatitis, (while dermatology is not my speciality) is a stress related condition and it is appropriate for psychiatrists to comment on such conditions. From my own observation and the history it is undoubtably [sic] related to stress. Mr Bruest's [sic] condition has changed little over the last five years and he has an increased chronic stress sensitivity which arose from his original stress situations.

In his oral evidence Dr Quinn explained that the results of the tests he conducted between 1987, 1988 and 1990 revealed that the Applicant had "cognitive impairment of a patchy nature, which is quite consistent with substance abuse or alcohol abuse" and that he was a man of superior ability.

26. In his 1997 report Dr Quinn confirmed his earlier opinion of April 1989 (T18) that the Applicant's condition was static and permanent and he was unfit for work. On 13 February 1989 Dr Quinn advised against redeploying the Applicant outside his geographical area because that would cause him additional stress and was likely to re-establish the vicious circle of stress, alcohol and psoriasis (T16). In a report dated 16 April 1991 (T25) he noted that rehabilitation would not be successful and the Applicant should be retired on the grounds of total and permanent incapacity for any type of clerical or non-sedentary work.

27. In oral evidence Dr Quinn agreed that there was a degree of reversibility of the Applicant's cognitive impairments and that recent tests revealed only a residual cognitive defect. However he said cognitive impairment was not the reason why the Applicant could not go back to work; rather it was the stress element.

28. In his report dated 25 November 1997 Dr Quinn added that stress from the Applicant's Army service compounded the stress from his civilian occupation. He stated that it was difficult to determine the percentage contribution of each but the stress at the ATO was much more important and he gave a notional figure of 80/20.

29. The Tribunal notes that in an earlier report to the Respondent dated 13 February 1989 (T16) Dr Quinn opined that increased work load and stress were responsible for the Applicant's alcohol overuse. He conceded that other equivalent stresses might possibly have led to alcohol abuse but he was not aware of any major domestic or financial difficulties and made no reference to the Applicant's involvement in the Army Reserve. However in cross-examination Dr Quinn said that he was aware of the details of the Applicant's Army Reserve involvement and behaviour when he wrote his report of 25 November 1997 even though he did not record a history of the significance of the Applicant's alcohol intake or his Army Reserve behaviour until his report dated 25 November 1997.

30. In a report dated 15 February 1990 (T22) Dr Quinn rejected Dr Bell's conclusion in his report dated 19 July 1989 (T20) that the Applicant must have been drinking for a very long time - over 20 years - in order to sustain the cognitive deficit identified. In his oral evidence Dr Quinn said that recent literature provides further support for the view he expressed in 1989, that it is the quantity of alcohol drunk in the last six months that is important. He said that knowledge of the Applicant's reduced alcohol intake did not change his opinion that he has a cognitive impairment due to alcohol. He also noted that people usually underestimate the amount they are drinking.

31. Dr Quinn also rejected Dr Bell's opinion that alcohol abuse is not related to stress. He said that there is clear evidence that "anxiety disorders and the influence of environmental stress are important in understanding abuse patterns, the initiation of relapse and the durability of treatment maintenance". He also rejected, on the basis of extensive clinical examinations, that there was any evidence of a personality disorder. In his oral evidence he said that a personality disorder is lifelong and evidence of it is needed before the age of 16 years in order to make any valid assessment. He did not exclude completely the possibility of the Applicant having a biological predisposition to alcohol, due to a family history of alcoholism, but he considered that even if that is accepted, that does not reduce the importance of environmental factors.

32. Dr Quinn referred to the literature which demonstrates that there is a strong if complex relationship between psoriasis and stress, a connection rejected by Dr Bell. He said that the history he obtained from the Applicant over time suggested that his psoriasis was worse when he was stressed.

33. Dr Quinn agreed with Dr Coroneos's conclusion (T30) that there was no neurological disturbance recognisable by clinical neurological examination, but pointed out that there are very few neurological disturbances to which a neurological examination is sensitive. He considered that a neurological investigation would not reveal the problems present in the Applicant.

34. In his report dated 24 September 1997 (T29) Dr Quinn considered that the Applicant suffered from an "alcohol dependence disorder (DSMIV 303.90) in sustained full remission" and "that even minor stress produces quite incapacitating skin disease (neurodermatitis) in his hands". In oral evidence he said that the Applicant's remission is vulnerable.

35. Dr Quinn said that he established a diagnosis of "alcoholism" from a history of amnesia, the amount the Applicant was drinking, frequent intoxications and cognitive impairment. After being told of the Applicant's evidence of his alcohol intake he said he would not have made the diagnosis on a history of drinking six litres of wine a week. He said it must have been worse or he would not have made the diagnosis. He suggested that retrospective reports of alcohol intake, particularly long removed from the events, are "pretty inaccurate".

36. Dr Quinn acknowledged that there was certainly psoriasis and probably an alcoholic tendency existing from 1970 onwards. However he did not agree that the later stress triggered a pre-existing set of diseases. He said that in the case of psoriasis the stress came on top of a pre-existing disease, and noted that psoriasis is a genetic condition. He did not agree with the proposition that the Applicant had a pre-morbid personality upon which stress interacted with a tendency towards using alcohol as a stress relaxer. He agreed that the Applicant was drinking prior to 1985 and said that at the time he saw the Applicant in 1987 he thought he had a "severe alcohol abuse syndrome". He opined that stress was the aggravator in both conditions.

37. Dr Quinn agreed that the Applicant still suffers psoriasis when he is stressed. In respect of alcoholism, he considered that the Applicant is currently in a period of "controlled drinking" which he was not confident would continue if he returned to a situation like at the ATO. He did not believe that cognitive impairment would now be a barrier to rehabilitation or employability. He later clarified that if the Applicant returned to employment and became stressed that stress would interact with his residual minor cognitive impairment and make it functionally worse.

38. Dr Quinn agreed that the Applicant could work as a shop assistant but warned against that on the basis that putting someone of the Applicant's ability in a demeaning job could again set off the vicious circle of stress, alcohol and psoriasis. He stood by this opinion despite the Applicant's preparedness to perform that kind of work. He said his opinion was based on his knowledge of the Applicant's personality, his vulnerability to stress and to alcohol abuse, and his vast clinical experience. He said that as the Applicant was a type A personality it would be very easy to reactivate the earlier vicious circle. He agreed that he had not assessed the Applicant for cognitive functioning since 1990 and had not seen him since 1993.

39. Mr Wayne Somerville, clinical psychologist, examined the Applicant, performed psychometric testing and provided a report dated 12 June 1998 (exhibit 2). On the basis of the Applicant's account of his current difficulties and his poor performance on a psychometric test which examined higher mental functioning involving planning and foresight, Mr Sommerville opined that the Applicant suffered from a degree of deficit involving higher order cognitive processes. He also opined that evidence of the Applicant's continuing regular alcohol consumption and occasional episodes of heavier drinking suggested the possibility of continuing alcohol abuse. He considered that the Applicant's cognitive difficulties in 1988 "were most likely due to his long term regular use of alcohol". He also considered that the Applicant's cognitive deficits affected his performance at the ATO and the Army Reserve which caused him distress and led to further alcohol consumption. He considered that the Applicant's alcohol consumption arose out of his use of alcohol as a relaxant and hypnotic while studying, and in an attempt to improve his work and Army performance.

40. Mr Somerville agreed with Dr Byth that the Applicant is potentially capable of performing carefully chosen duties that allow for his cognitive difficulties, but he considered it unlikely that such a position could be found.

41. Mr Somerville recorded a history that the Applicant was not aware that he had a serious problem with drinking until Dr Quinn advised him in 1988 that he had cognitive deficits due to alcohol abuse. He noted that the Applicant considered that Dr Reid and Dr Bryant used the phrase "heavy drinker" inappropriately, because while he had been a drinker for over twenty years he only drank heavily occasionally. In addition Mr Somerville noted that the Applicant rejected Dr Byth's conclusion that he was not stressed by his work at the ATO. He said that the Applicant explained that although he enjoyed working at the ATO, he was stressed by the awareness that he was not able to perform properly, and he worried that his errors could have substantial negative consequences for people with whom he advised and worked. The Applicant also told Mr Somerville that Dr Coroneos misunderstood his reference to being able to do crossword puzzles. He said that he does them as a form of self-rehabilitation and not because he finds them easy.

42. Dr Alison Reid, neurologist, examined the Applicant and reported on 29 April 1989 (T10). She noted that the Applicant appears intelligent, eloquent and he coped easily with simple short term memory tests in the clinical examination. However, three electroencephalographs (T7, T24) showed temporal disturbances, and a Bexley-Maudsley test performed on 30 March 1988, when the Applicant had been off work and rested since 16 February 1988, still showed significant cognitive disability. She considered that these results point to an organic brain disturbance affecting the Applicant's memory which contributed to his recent problems. She was uncertain about the role alcohol played in his condition although she noted a twenty year history of heavy drinking.

43. Dr James Walter, dermatologist, has been the Applicant's treating dermatologist since 1975 and reported on 29 August 1988 (T15) and 16 June 1993 (T26). He opined that the Applicant's psoriasis has a genetic basis but outbreaks are often related to stress (T15). In August 1988 he noted that since the Applicant left the ATO his psoriasis "settled down to a more chronic form which is consistent with a genetic form". He opined that it was likely that the Applicant would suffer a recurrence of severe psoriasis if he returned to a job with the same level of stress.

44. Dr Michael Coroneos, neurosurgeon, examined the Applicant, provided a report dated 5 February 1998 (T30), and gave oral evidence by video called by the Respondent. On neurological examination he found no evidence of cognitive impairment either historically or physically and found nothing in his examination to indicate that the Applicant was unfit for his previous employment. He noted that the Applicant was able to drive long journeys alone in a manual vehicle, was able to perform car repairs, he voluntarily assisted veteran's one to two days per week, used a computer and completed crossword puzzles.

45. In oral evidence Dr Coroneos noted that the Applicant gave a very detailed history and his recall was very spontaneous and not laboured. Dr Coroneos stated that a history of forgetting to collect his wife, putting a bracket on back to front and forgetting appointments is "not sufficient, particularly if it's self-reported, to base a neurological diagnosis". In cross-examination he denied that the tests he performed were inappropriate to identify the Applicant's cognitive impairment.

46. Dr Coroneos was referred to the tests performed by Dr Quinn in 1987, 1988 and 1990. He rejected Dr Quinn's opinion that the variations in findings indicate patchiness reflecting cognitive impairment. Rather, he considered that patchy variations are more consistent with the normal population. If there is patchiness within tests this suggests non-cooperation by the patient or no disease. If there was alcoholic dementia present then he would expect global deterioration in neurological function rather than a poor ability to perform one group of skills while demonstrating good results in other skills. He considered that psychometric tests were valid only when the results were confirmed by clinical examination and in the Applicant's case that has not occurred.

47. Dr Coroneos considered the history obtained by Dr Reid (T10) that the Applicant had been drinking quite heavily for more than twenty years and the somewhat different drinking history which the Applicant provided to the Tribunal, and opined that neither history was consistent with the Applicant's lack of gastric symptoms and liver disease.. He noted the absence of alcohol withdrawal, and doubted that the Applicant was drinking beer and one litre of wine per day for at least a year prior to drinking very little alcohol over the last eight years.

48. Dr Coroneos said in commenting on the report of Dr Reid (T10) in relation to her clinical impression that three EEG tests showed temporal disturbances:

...Temporal disturbances are commonly seen in the normal population and are often not indicative of any neurological disease. If you do an EEG on a hundred normal patients you will find some temporal instability in a large percentage of such patients. It's a normal clinical finding.

49. In his report Dr Coroneos noted that he did not find any evidence of severe or complicated psoriasis and he diagnosed "mild uncomplicated psoriasis". When giving oral evidence by video he was shown photographs dated June 1992 and 7 May 1993 of the Applicant's hands (exhibit C). He had difficulty seeing them because of the limitations of the video, but he said that the hands appeared normal, apart from some "mild redness in the region of the thumb......, extending down to the base of the thumb in the region of the palm". He said that if the Applicant had a significant problem with the palms of his hands causing them to bleed when opened there would be scarring, but there was no significant scarring and the Applicant's skin was merely pink and scaly which was consistent with mild chronic, inactive psoriasis. He acknowledged that stress can aggravate psoriasis but later in his evidence he said:

There's no medical conclusion that can be reached that psoriasis is caused by stress or that there's any evidence of any significant recurrences caused by stress. That's simply not evidence for that and even if there was that wouldn't stop him working, that's ridiculous.

50. Dr Coroneos agreed that it was possible that if the Applicant went back to the workforce and was placed under stress his psoriasis would return, his alcohol intake would increase and his performance would diminish. However he stressed that this could happen to anyone in the population and there was no medical reason why that would be any more likely with the Applicant.

51. Dr Andrew Byth, consultant psychiatrist, examined the Applicant, prepared a report dated 11 February 1998 (T31) and gave oral evidence on behalf of the Respondent. He noted a long history of heavy alcohol intake from the age of 25 years. He noted that the Applicant's drinking was "moderate" for some twenty years and then increased "dramatically" at the age of 45 years because he became more involved in the Army Reserve when he moved to Lismore. Dr Byth also noted that the Applicant had significant marriage problems at that time due to poor communication with his wife, although the relationship had improved considerably in recent years.

52. Dr Byth said that the Applicant told him that he enjoyed his work despite its intensity. He denied feeling overworked or resentful. He reported that he was studying hard for his Army Reserve academic pursuits at the time and tended to drink more alcohol to help him sleep during that period.

53. Dr Byth noted that the Applicant had good memory organisation and recall of events, and he was able to calculate moderately complex mathematical equations both on paper and in his head. Dr Byth could find no fault with the Applicant's cognitive functioning, including intellectual and memory functions. His simple tests revealed that any residual cognitive impairments are very subtle and restricted.

54. Dr Byth examined the reports and tests conducted by Dr Reid and Dr Quinn and noted that significant cognitive disability was found in 1988 and 1989. He compared these with the later testing performed by Dr Bryant in 1994 and concluded that the Applicant had made considerable improvements in many features, particularly his memory. He said:

I could not agree with Dr Quinn's recommendation in 1997 that Charles Breust's disability was chronic and that he does not have any capacity to undertake approved rehabilitation or return to work plans, as it appears clear that he had improved dramatically by 1994 and the majority of his cognitive deficits had improved significantly with partial abstinence from alcohol.

55. Dr Byth reported that the psoriasis in the Applicant's hands was in remission at the time of their interview, although he noted an undated photograph that showed the Applicant's hands to be inflamed.

56. Dr Byth opined that the Applicant had suffered from chronic alcoholism, probably through much of his adult life, until he ceased heavy alcohol intake in 1988. He was confident in his diagnosis of 'alcoholism'. He referred to the quantity of alcohol which the Applicant consumed in the 12 months prior to leaving the ATO being 20 standard drinks per day, the evidence that it was negatively impacting on his work and the evidence that it caused some temporary cerebral dysfunction. After being told of the Applicant's evidence in these proceedings that he had less alcohol intake than understood by Dr Byth, he commented that persons with alcohol dependency usually markedly under estimate the amount they consume.

57. Dr Byth considered that diagnosis of chronic alcoholism within the DSMIV was applicable to the Applicant. There is a component of addiction to the diagnosis and he believed it was the Applicant's drinking at night because of insomnia that could be seen as an alcohol withdrawal symptom, and this is evidence of addiction. He admitted that he did not question the Applicant about alcohol withdrawal nor did he have evidence to indicate that there have been symptoms of withdrawal at any time.

58. Dr Byth opined that there was no substantial evidence that the Applicant's alcoholism or associated reversible cognitive impairment from alcohol abuse were ever work related. He pointed to a number of non-work-related contributing factors, including his heavy drinking in the Army Reserve, his academic study within the Army, his chronic psoriasis and marital problems. He doubted whether the Applicant's employment contributed because the Applicant did not perceive his extra duties as adverse or stressful. The major pre-existing factor contributing to his cognitive impairment is his long history of heavy alcohol use dating back 20 years before he left work in 1988.

59. Dr Byth said that the Applicant's current habit of light social drinking would indicate that any aggravation of an underlying tendency towards alcohol caused by his employment with the ATO would have ceased shortly after he left the ATO in 1988.

60. In oral evidence Dr Byth admitted that whilst it was not his area of expertise, he understood that in some individuals psoriasis can be exacerbated by stressful circumstances or emotional upsets. He agreed that the Applicant's activities in the Army Reserve could have the potential to lead to stress which might aggravate a psoriatic condition, but he said that he did not question the Applicant about this. He also agreed that it was consistent that if the Applicant's psoriasis has abated since 1988/89 when he left the ATO and the Army, that the removal of stressor factors has caused the condition to revert to its normal constitutional state. Dr Byth doubted whether the Applicant's employment contributed to his psoriasis because the Applicant did not seem to have an adverse emotional response to his work.

61. Although Dr Byth acknowledged that there appeared to be some cognitive impairment around 1987 he could not detect any significant impairment in cognitive function on examination in February 1998 and felt that there was no reason why the Applicant would not be able to return to some full-time clerical employment, although maybe he should not return to the major role he had supervising a large office. He concurred with Dr Bryant that the work would need to be carefully chosen to allow for the Applicant's difficulty in coping with multiple stimuli and pressures. He suggested bookkeeping or accounting work. In cross-examination he said he did not know whether the placement of the Applicant in a position below his previous status would affect him psychologically, although he agreed that it would adversely affect some people. He acknowledged that there was a risk that the Applicant may relapse into heavy drinking again if placed under the same level of stress as that which he had between 1985 and 1988. This is always a significant risk and is probably greater amongst those who continue with light social drinking. He also conceded that it was possible that the Applicant's psoriasis might again become chronic under stress. Ultimately it depends on the Applicant's attitude and whether he was positively disposed to new employment.

62. When asked to comment on Dr Coroneos' evidence that cognitive defects that show up in psychometric tests can be seen as a normal variance in the population, Dr Byth disagreed stating that the tests are effective in determining cognitive defects.

63. Dr Richard Bryant, clinical psychologist, examined the Applicant on behalf of the Respondent. He administered a number of cognitive tests and prepared a report dated 22 August 1994 (T28). He concluded that the Applicant had made some significant gains since previous testing of cognitive function. The Applicant demonstrated that his cognitive functions were generally intact, and even above average, with some exceptions, such as his poor capacity to manage competing stimuli simultaneously, his impaired speed of information processing and his poor retention of semantic material over time. He opined that the Applicant suffered residual cognitive deficits following alcohol abuse.

64. Dr Bryant considered that the test results suggest that the Applicant was capable of many work duties, although with limitations. He could function in a job that involved structure, written cues, reasonable time to complete tasks, and limited responsibility.

65. Mr Bruce Dufficy, occupational psychologist with the Department of Employment, Education and Training, assessed the Applicant's employment and training options, and provided a report dated 5 July 1993 (T27). He noted that the Applicant presented at both interviews with badly inflamed and reddened hands which appeared to have been bleeding. He noted a history of work stress that affected the Applicant's psoriasis and impairment of memory. He noted the results of psychometric tests performed by Dr Quinn and concluded that the Applicant was not ready to work, nor to undergo training or employment programs. He also said -

Redeployment to a less demanding position such as an ASO1 would not appear to be feasible as this may also bring about poor job satisfaction, embarrassment and difficulty in maintaining focus on work, all of which may complicate his skin condition.

66. Dr Robert Needham, dermatologist, examined the Applicant on behalf of the Respondent and provided a report dated 18 February 1998 (T32). He diagnosed psoriasis of the palms of both hands, the right being worse than the left. He said that psoriasis is a genetic disease which can be aggravated by stress. However he opined that the aggravation of the Applicant's psoriasis due to stress at work would have ceased within two months of his ceasing work. He emphasised that psoriasis is aggravated not only by work stress, but also by any domestic, financial or other stressors. He said that the effect of stress on psoriasis was temporary and caused no permanent damage.

67. Dr Needham reported that at the time of examination the Applicant was not incapacitated for work and could be redeployed successfully in a less stressful position.

68. Dr G Douglas, Commonwealth Medical Officer, examined the Applicant and provided two assessments dated 25 March 1988 (T8) and 14 June 1988 (T12). He opined that the Applicant was unfit for work due to his organic brain disorder and psoriasis and should be retired. He considered that if the Applicant continued to perform his previous work duties his condition would be exacerbated.

69. Dr Gregory Murphy, consultant psychiatrist, assessed the Applicant and prepared a report dated 4 August 1988 (T13). Having obtained a history of psoriasis and impairment of memory which led to anxiety and stress Dr Murphy opined that the Applicant would not manage with his job at the ATO. He considered that the Applicant might manage a routine job without much stress or responsibility.

70. On the basis of Dr Murphy's report the Applicant was considered to be unfit for his current position with the ATO and redeployment to a non-demanding routine job was suggested (T14).

71. Dr David Bell, psychiatrist, examined the Applicant and provided a report dated 19 July 1989 (T20) for the Respondent. He diagnosed alcoholism and thought it was likely that the Applicant had a personality disorder, as that was "the usual setting" in which alcoholism developed. He reported that at least twenty years of excessive drinking was required to bring about impairment of intellectual functions demonstrated by the Applicant. He opined that as the Applicant had ceased drinking it was likely that he would show some improvement and therefore redeployment was worth trying.

72. Dr Bell commented on Dr Walters' report, agreeing that outbreaks of psoriasis can often be related to stress but challenged Dr Walter's opinion that this occurred in this case. He noted that it was erroneous to attribute a causal connection between a certain event and a complaint simply because of their concurrence in time, and concluded that in the case of a chronic condition such as psoriasis, while a seeming concurrence is readily produced, controlled studies do not confirm the "speculations".

73. Dr Bell also rebutted the opinion expressed by Dr Quinn in his February 1989 report (T16). While he accepted that the Applicant had cognitive difficulties and an alcohol abuse problem, he considered that Dr Quinn's conclusion that the relatively recent increase in workload and stress was responsible for his alcohol overuse was not supportable.

74. Dr V Boyce, Senior Commonwealth Medical Officer, examined the reports of Dr Douglas, Dr Murphy and Dr Bell and prepared a report dated 28 November 1989 (T21). He concluded that the Applicant was fit to remain in employment but should be redeployed into work where there was less responsibility and more routine in nature. He opined that the Applicant could not be retired on grounds of invalidity, especially in view of his reduced alcohol intake and his improvement. He concurred with Dr Bell's opinion and assessment.

75. Mr Campbell, Regional Manager for the Lismore ATO, prepared two reports for the ATO dated 21 March 1985 (T35, p251) and 18 October 1988 (T35, p255). In the first report he outlined the burden being placed on the resources of the office both in the volume and complexity of work. In the second he outlined the increased work duties which the Applicant performed in the office and at home. In commenting on the Applicant's performance he said it was difficult to say whether his performance had deteriorated. Although he did not notice any change in the quality of the Applicant's work he said he seemed to be having some degree of difficulty in completing his work.

76. On 28 February 1990 Pam Connor, Occupational Health and Safety Advisor for the ATO, advised the Respondent that the Applicant was unable to be redeployed due to the lack of vacancies in suitable positions (T42).

submissions

77. It was submitted for the Applicant that pursuant to the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act) the Commonwealth is liable if personal injury arises out or in the course of the employment of the employee by the Commonwealth (s 27). Counsel referred to the Federal Court decision of Drummond J in Comcare v Mooi (1996) 23 AAR 160 where he discussed the concepts of injury and ailment in respect of mental affliction pursuant to s 14 of the 1988 Act. He said that, for the purposes of proving an impairment of psychological consequence only,

...it is essential for such worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.

78. Counsel submitted that in respect of the Applicant's cognitive impairment he suffers from a mental disease by virtue of the definition in the 1971 Act. It was further submitted that he also suffers a disease in relation to his skin impairment. In both cases the affliction/condition can be described as an "ailment, disorder, defect, or morbid condition" (s 5 of the 1971 Act), words which bear the meaning they have in ordinary language and which do not appear to be used in any technical sense: see discussion by Drummond J at 163, 164. It was submitted that each condition was first recognised while the Applicant was employed at the ATO. It was submitted that the precipitating factors in each condition relate to factors at work, including stress, study, pressure, anxiety and worry. Notwithstanding the fact the Army may have also been part of the reason for the Applicant's psoriasis or cognitive impairment and associated alcohol consumption, s 29 of the 1971 Act only requires proof that the employment was a "contributing factor". It was submitted that this has been clearly shown.

79. It was submitted for the Applicant that if the Tribunal does not accept that either or both conditions are diseases under the 1971 Act, they are injuries pursuant to s 27. It is clear that one can have an autogenous disease giving rise to an injury, as defined. For example, a disc prolapse could be an injury notwithstanding the background asymptomatic autogenous disease [see Health Insurance Commission v Van Reesch (1996) 24 AAR 81] or a cerebral aneurism (brain) which ruptured: [see Zickar v MGH Plastic Industries Pty Ltd (1996) 71 ALJR 32]. In the event that either condition is an injury, the Applicant will be entitled to compensation if it was caused arising out of or in the course of his employment.

80. It was submitted for the Respondent that if the Applicant suffered from alcoholism and psoriasis by virtue of exposure to stress, these conditions arose due to an aggravation of pre-existing underlying conditions and any aggravation causally related to his employment has ceased by the early 1990s. Counsel for the Applicant submitted that whilst the Applicant's psoriasis was a genetic pre-existing disease, there was no evidence that he suffered from any underlying condition which contributed to his alcohol intake. It was not conceded that the Applicant was an "alcoholic". Moreover, any aggravation causally related to the Applicant's employment remains dormant until further stress aggravates it. Such stress will be inevitable whether he returns to a job of the same level or to a job of a lesser standard. The onset of further stress from work will again activate the cycle of psoriasis and alcohol intake.

81. Counsel for the Respondent submitted that from the evidence, prior to 1985 the Applicant had a well-established drinking habit which appeared to be associated with his Army Reserve employment. It was also submitted that his responsibility to orchestrate Army exercises with the use of demolition and mortar rounds was dangerous and stressful. Counsel for the Applicant rejected the idea that the Applicant's drinking habit was specifically associated with his involvement in the Army Reserve. It was submitted that his alcohol habit was an integral part of his ATO life, and the first onset of his psoriasis was while he was working at the ATO.

82. Counsel for the Respondent submitted that well prior to 1985 the Applicant had an established skin condition. He had to consult a doctor about his psoriasis as early as 1975/76 and from that time onwards he had flare-ups of the problem every three months which on occasions were associated with stressful activities. In addition his involvement with the Army Reserve required periods of long study which he conceded were stressful, when taken in conjunction with his work activities at the ATO.

83. Despite the termination of his employment at the ATO in February 1988 the Applicant continued to suffer from psoriasis until early 1989, at which time the condition abated to some degree. The Applicant continued with his involvement with the Army Reserve until December 1988. Counsel for the Respondent submitted that this suggests that the Applicant's involvement with the Army Reserve was a significant stressor which affected his psoriasis and his excessive intake of alcohol prior to his total abstinence. Counsel for the Applicant rejected this assertion and noted Dr Needham's evidence that the psoriasis should have ceased within 2 months of his ceasing work, but if the Army was the cause the condition should have ceased within 2 months of his resignation, that is, by January 1989. The Applicant's evidence was that his condition continued for 12 to 18 months after leaving the ATO, putting the cessation of his psoriasis as late as August 1989. Counsel for the Applicant acknowledged that the Army may have been a stressor which caused his condition to continue, but that does not exclude the ATO as being a significant causal factor.

84. Counsel for the Respondent submitted that the Applicant's evidence that he abstained from alcohol for 12 months and then returned to moderate social drinking indicates that at least from the early 1990's his alcoholism was in remission, and on the basis of Dr Quinn's evidence it was in full remission. Additionally, from the early 1990's the Applicant's psoriasis had abated to the point where it only troubled him every 6 or 7 months, rather than every three months between 1976 and 1985. Therefore it was submitted for the Respondent that well before the Applicant's payments of compensation ceased, his alcoholism was in remission and his psoriasis was better than it had been since 1975. In was submitted on behalf of the Applicant that Dr Quinn's use of the term "remission" was not to suggest it was cured; rather, he used the term in reply to the Respondent's question that he describe his condition in DSMIV terminology. In oral evidence Dr Quinn elaborated that the more correct description is "controlled drinking". It was submitted that the Applicant's psoriasis was less chronic 12 to 18 months after he left the ATO because he had less stress.

85. Counsel for the Respondent submitted that the events of 1985 to 1988 did not cause either of the Applicant's conditions but, at worst, may have temporarily aggravated the condition in conjunction with the significantly aggravating features of the Applicant's activities in the Army Reserve. Counsel for the Applicant submitted that the period from 1985 to 1988 was when the Applicant drank significant amounts of alcohol on a continuing, nightly basis. It was also the period when his psoriasis became so chronic that his hands bled and oozed plasma, and his skin was itchy and red. He also became concerned about his ability to carry out his work, noting errors in his performance. It was submitted for the Applicant that while the cognitive impairment may not have been due to his alcohol intake during this period, clearly the effects of it and the psoriasis were such that he was unable to continue to work.

86. Reference was made by Counsel for the Respondent to the evidence of the Applicant's principal witness, Dr Quinn, who opined that the Applicant's alcoholism was in full remission. However, in oral evidence he stated that if the Applicant was exposed to stress in an employment situation there could be a resurgence of his alcoholism and probably his psoriasis. Counsel noted that it was apparent that Dr Quinn had not examined the Applicant for several years, since the early 1990's, and his evidence was contrary to the Applicant's own evidence that he would like to return to employment. Dr Byth's view was that the Applicant's attitude was most important in achieving his return to work. Counsel for the Applicant submitted that the fact that the Applicant wished to go back to the work force does not invalidate Dr Quinn's opinion - what the Applicant wishes to do is not an indicator of what he can do.

87. It was submitted that it is likely that future employment is likely to cause the Applicant to suffer a recurrence of the psoriasis and alcohol abuse. Therefore the psoriasis and cognitive impairments, now being heightened with an enhanced susceptibility, constitute an aggravation which was still incapacitating: Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385.

88. Counsel for the Respondent submitted that no evidence was produced to demonstrate that the Applicant's alcoholism or psoriasis has been "sensitised" by virtue of his employment between 1985 and 1988. Counsel for the Applicant relied on the evidence of Dr Quinn that connects the Applicant's state of mind and his psoriasis to his former employment. The psychiatric prognosis is that, if the Applicant returns to work and is placed under stress, he is likely to aggravate the psoriasis and alcoholic cycle. Psoriasis was at its worst while the Applicant was drinking to excess, trying inter alia to learn tax law in 1985-88. It was submitted for the Applicant that this was clearly a worsening event, the effects of which are still present and open to exacerbation. It was also submitted that the cognitive impairment is still present. Taken together, these conditions preclude the Applicant from ever working in a stressful environment. It was submitted that both conditions were contributed to by the Applicant's work at the ATO.

the legislation

89. As the Applicant's conditions occurred and the claim for compensation was lodged prior to the commencement of the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act"), by virtue of s 124(1A) of the 1988 Act, whether the Applicant continues to be entitled to payment of compensation falls for determination pursuant to the 1971 Act: Re Wills and Australian Telecommunications Commission and Commonwealth of Australia (1989) 99 ALD 665, approved by Lockhart J in Behan v Australian Telecommunications Corporation (1990) 99 ALR 79.

90. The following subsections of the 1971 Act are relevant in this matter. "Injury" is defined in s 5 to mean -

any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury, but, subject to section 29, does not include a disease, or the aggravation, acceleration or recurrence of a disease.

In s 5 "disease" -

includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.

Section 27(1) provides -

If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.

Section 29(1) provides -

Where

(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect.

91. The Tribunal must decide whether, on the balance of probabilities, the Applicant continues to suffer from an "injury", pursuant to ss 5 and 27(1) of the 1971 Act, including an aggravation of an injury or alternatively a "disease", pursuant to ss 5 and 29(1), including an aggravation of a disease, as a result of work stress on and from 7 October 1997. The preliminary task of the Tribunal is to make a finding on whether or not the Applicant ever suffered from an injury or disease as a result of work stress.

consideration of evidence and findings of fact

92. The original claim lodged by the Applicant dated 16 August 1988 was in respect of "psoriasis and brain damage possibly due to alcohol", the main cause of which the Applicant said was "stress". The primary decision dated 28 February 1989 accepted liability in respect of "cognitive deficit related to job stress and severe neurodermatitis". That decision was varied on 5 January 1990, following a request for reconsideration by the ATO, and the phrase "cognitive deficit related to job stress" was substituted by "alcoholism resulting from work stress". The Respondent continued to accept liability for the Applicant's conditions until 7 October 1997 when, having obtained a report from Dr Quinn about the Applicant's condition, liability was ceased. The reconsideration decision dated 30 March 1998 affirmed that decision (T60).

93. The Tribunal accepts the Applicant's evidence that he was under a lot stress at the ATO from 1985 through to early 1988. His evidence that the inquiry work dramatically increased during this period as changes to the taxation laws were implemented, and that he had to undertake study at night to keep on top of these changes, was supported by that of his regional manager Mr Campbell. Clearly the Applicant worked hard and put in many unpaid hours for his employer. The Tribunal finds that the Applicant was also highly involved in Army Reserve activities and related study, that his Army Reserve role was very demanding and that he became anxious when on Army exercises. However, whilst not doubting the Applicant's evidence about the stress he was under the Tribunal can place little weight on his belief that work stress caused his alcoholism/cognitive deficit and aggravated his psoriasis.

* Alcoholism/Cognitive deficit

94. The first issue for consideration is whether the Applicant actually suffered from alcoholism. Dr Quinn opined a DSMIV diagnosis of "alcohol dependence disorder", Mr Sommerville "alcohol abuse", Dr Byth "chronic alcoholism" and Dr Bell "alcoholism as a result of a personality disorder". It is apparent that a number of the medical witnesses relied upon Dr Reid's report of a 20 year period of "heavy drinking" to reach their diagnosis. However the Applicant reported to Mr Sommerville and in oral evidence to the Tribunal that he had been a drinker for 20 years but only drank heavily on occasions. The Tribunal accepts the Applicant's evidence about his drinking and that he increased his alcohol intake around 1985. That history contradicts the assertion that he suffers from "alcoholism". There is no evidence of uncontrolled addictive drinking, nor does the Tribunal accept that there is evidence of withdrawal symptoms, despite the evidence of Dr Byth which did not stand the test of cross-examination on this issue.

95. The Applicant's evidence was, and the Tribunal so finds, that he began drinking in 1964/65 while he was in the officer training school of the Army Reserve, he drank whilst at the ATO in Sydney to celebrate promotions and other staff occasions and there was a period of 12 to 18 months where he drank three schooners of beer a day with workmates at lunch time. He also drank one night a week at an Army Reserve activity. After he went to Lismore he described an intake between 1975 and 1985, of drinking moderate amounts in the Army one night a week and then once every five weeks having a prolonged session where he drank heavily. Then in 1985 he increased his alcohol intake which he described as one to two beers after work each day and six litres of wine per week with his wife, most of which was consumed by him. After being advised that he had a cognitive deficit he stopped drinking for 12 months. He then resumed social drinking in 1989 of one beer and two ports per week at a regular snooker night.

96. The Tribunal notes that Dr Quinn said he would not have made his diagnosis on the history the Applicant gave to the Tribunal and Dr Byth agreed that the Applicant's evidence to the Tribunal suggested far less alcohol intake than the history on which he based his diagnosis. The Tribunal is unable to give much weight to the evidence of Dr Bell. He merely asserted, without providing evidence or reasons, that it is likely that the Applicant's alcoholism was as a result of a personality disorder rather than work stress.

97. The Tribunal finds that the commencement of the Applicant's drinking habit had nothing to do with his employment at the ATO. In the Army he was involved in a culture which supported his drinking. There was no evidence to indicate that there was any causal relationship between his drinking at lunch time with workmates for 12 to 18 months and his work at the ATO. While there is no evidence to suggest that the Applicant's drinking in the period up to 1985 constituted alcohol abuse as a pathological state, the Tribunal finds that he had a firmly established pattern of moderate and occasionally heavy drinking by 1985, not causally related to his work at the ATO.

98. The next issue is whether the Applicant's increased drinking between 1985 and 1988 was related to his work at the ATO. The Tribunal accepts the Applicant's evidence that he was stressed at work during that time and that he was regularly studying at home, both in relation to his work and the Army Reserve. However, there is no evidence that he was addicted to alcohol at that time, nor that his drinking was interfering with his work attendance. The evidence is that he developed a cognitive deficit during that period, and it was knowledge of that and its connection with his heavy drinking that then caused him to abstain from alcohol. There is no indication that he needed assistance in changing his drinking habit. There is some evidence that during this period he had some marital disharmony, but it is not at all clear whether this was causing his heavier drinking or was the result of it. The Applicant gave no evidence on this issue and the Tribunal makes no findings in that regard. Within the context of this evidence the Tribunal does not accept the evidence of Dr Bell and Dr Byth that the Applicant suffered from "alcoholism". The Applicant resumed light social drinking in 1989 and apparently has maintained this level without any difficulty. This pattern does not sit comfortably with the predictions of Dr Quinn and Dr Coroneos that if he returned to work involving a level of stress he would recommence heavy drinking. On the evidence before the Tribunal the Applicant has not suffered from alcoholism, and his heavy drinking does not constitute an injury or disease under the 1971 Act.

99. The Tribunal notes that the Respondent has already accepted liability in respect of "alcoholism" until 7 October 1997. However, the Tribunal finds that the Applicant has suffered from a reversible cognitive deficit, probably related to the totality of his drinking habit since its commencement until 1988, including the three years from 1985 to 1988 when his work at the ATO was particularly stressful. While the Applicant's work at the ATO was but one of many factors involved in his drinking over a period of twenty years, and while the Applicant's Army Reserve was also implicated in the stress he experienced between 1985 and 1988, nonetheless the Tribunal finds that the Applicant's work at the ATO was implicated to a material degree. The Tribunal also finds that the effects of the Applicant's cognitive deficit have reversed, and that by October 1997 he no longer suffered from a cognitive deficit arising from a heavy intake of alcohol during the period 1985 to 1988 related to his work at the ATO. Any memory impairment now suffered by the Applicant is consistent with ageing. While there is opinion evidence before the Tribunal that further heavy drinking may cause the re-emergence of a cognitive deficit, the Tribunal does not accept that there is a latent condition remaining which makes him more vulnerable. On the evidence of Dr Quinn the Applicant has a personality which makes him more vulnerable to stress. If indeed he resumes heavy drinking as a response to stress it would be because of his personality vulnerability. Having said this, the Tribunal does not accept the evidence of Dr Bell that the Applicant has a personality disorder.

100. The medical evidence before the Tribunal supports the contention that the Applicant suffered from cognitive impairment associated with alcohol use from about 1987. Dr Quinn conducted tests over three years and found the Applicant had cognitive impairment of a patchy nature consistent with alcohol abuse. Dr Reid considered that three EEG's and Dr Quinn's Bexley-Maudsley test pointed to an 'organic brain disturbance' affecting the Applicant's memory. Mr Sommerville diagnosed cognitive deficit involving higher order processes in 1998. However in 1994 Dr Bryant's tests suggest the Applicant's cognitive functioning had improved with his cognitive functions generally intact, even above average, but with some exceptions. In 1998 Dr Byth's evidence is that there is little evidence of cognitive impairment present, although he conceded that the testing which had been undertaken from 1987 did indicate some minor impairment. He opined that the Applicant suffered from reversible cognitive impairment. Even Dr Quinn, who stated in his reports that the Applicant's cognitive deficit was static and permanent, agreed in oral evidence that there would be a degree of reversibility of the cognitive impairments and that recent tests reveal only a residuum of impairment remaining. The Tribunal is unable to give much weight to the evidence of Dr Coroneos on this point. He opined that there had never been any evidence of cognitive deficit and he appeared to treat the Applicant with derision.

101. Having evaluated the conflicting expert evidence the Tribunal finds that the Applicant has suffered from a reversible cognitive deficit which as at 7 October 1997 had been resolved. From that time he has not suffered any condition of cognitive deficit which, in the words of the 1971 Act, can be described as a physical or mental ailment, disorder, defect of morbid condition, nor has he suffered an injury. The Tribunal also finds that at no time has the Applicant suffered from alcoholism within the meaning of the 1971 Act. The most the Tribunal is able to say is that the Applicant's long-term heavy drinking contributed to his reversible cognitive deficit. The decision of the Respondent in respect of the Applicant's cognitive deficit/alcoholism will be affirmed.

* Psoriasis

102. The Applicant suffers from psoriasis which first occurred in 1976 and gradually worsened with flare ups every 3 months. The Tribunal accepts the Applicant's evidence that his condition deteriorated further during the period when he was under a lot of stress at the ATO. It is also noted that at that time the Applicant was undertaking high intensity work with his involvement in the Army Reserve. The medical evidence before the Tribunal from Dr Walters, Dr Quinn, Dr Needham and Dr Coroneos confirms that psoriasis is a genetic disease which may be aggravated by stress. However the Tribunal finds that the effect of stress on psoriasis is temporary and causes no permanent damage. The Applicant's psoriasis continued up to 12 to 18 months after he left the ATO, that being some 2 to 8 months after he left the Army Reserve. This would suggest that both the ATO and the Army Reserve were stressors contributing to the aggravation of his condition. It is noted that the Applicant still has flare ups of his condition which he associates with stressful events in his life, not related to his employment. This supports Dr Needham's evidence that all stressors, generally, can affect a psoriatic condition. The Tribunal accepts Dr Needham's evidence that the affect of stress at work on the Applicant's psoriasis would have ceased within 2 months of him ceasing work. The Tribunal finds that the Applicant has psoriasis, a pre-existing genetic disease, which was temporarily aggravated because of work-related stress during his employment at the ATO between 1985 to 1988.

103. Counsel for the Applicant submitted that any future employment is likely to cause a recurrence of psoriasis and alcohol abuse. Therefore as a result of work stress at the ATO the Applicant's psoriasis and cognitive impairments, now being heightened with an enhanced susceptibility, constitute an aggravation which was still incapacitating: Asioty v Canberra Abbattori Pty Ltd (1989) 87 ALR 385. The Tribunal finds the decision of Asioty can be distinguished on the facts from this matter. Unlike in Asioty, it was not the Applicant's employment which caused for the first time an aggravation of his psoriatic condition. The Applicant's evidence is that he has had regular flare ups of his psoriasis every 3 months since 1976. Additionally there is insufficient medical evidence for the Tribunal to be reasonably satisfied that a conclusion of 'enhanced sensitivity' is warranted. Dr Quinn stated that the Applicant has "chronic stress sensitivity" which arose from the original stress situations at work and the Army Reserve. However he does not provide any evidence to show that the aggravation of the psoriasis from 1985 to 1988 has intensified the psoriasis and made it more liable to flare up. There is no evidence before the Tribunal that former work stressors continue, after 10 years, to contribute to the Applicant's psoriatic condition. The Tribunal finds there is no basis for a finding of enhanced sensitivity. The Tribunal therefore will affirm that part of the decision under review in respect of the Applicant's skin condition.

conclusion

104. The Tribunal finds that the Applicant does not continue to suffer from a disease or aggravation of a disease pursuant to sections 5 and 29(1) of the 1971 Act, and any liability to pay compensation to the Applicant ceased at least by 7 October 1997. On the basis of these findings the decision under review which ceased liability for "alcoholism and severe neurodermatitis" will be affirmed.

105. Having made these decisions, the Tribunal does not need to proceed to consider whether the Applicant is fit for any work, and if so what employment is suitable for him.

I certify that this and the 30 preceding pages are a true copy of the decision and reasons for decision herein of

Mrs M T Lewis, Senior Member

Dr J D Campbell, Member

Signed: .........Sgnd J Finlay.........................................

Associate

Date/s of Hearing 20 July 1998 and 27 July 1998

Date of Decision 17 February 1999

Counsel for the Applicant Mr G I Foster

Solicitor for Applicant Mrs M J Moss, Harris Fiford Crane

Counsel for the Respondent Mr G Hickey

Solicitor for the Respondent Mr P J Crethary, Barker Gosling