Crossman and Comcare [2009] AATA 469 (26 June 2009)

Last Updated: 26 June 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 469

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0697

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GRAHAM CROSSMAN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Dr K S Levy RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Date 26 June 2009

Place Brisbane

Decision

The Tribunal: affirms the decision in relation to diverticular disease; affirms the decision with respect to reflux oesophagitis; affirms the decision with respect to obesity; sets aside the decision with respect to hypertension and substitutes a decision that hypertension is a contributing factor to Mr Crossman’s alcohol dependence; sets aside the decision with respect to alcoholic liver disease and substitutes a decision that alcoholic liver disease is also related to Mr Crossman’s alcohol dependence; sets aside the decision with respect to alcohol dependence and substitutes a decision that workplace factors made a substantial and material contribution to Mr Crossman’s condition of alcohol dependence; and 7. remits the matter to the Respondent for the assessment of compensation.

.................[Sgd]...................
Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Meaning of “disease” and “injury” – Definitions of “disease” and “injury” are mutually exclusive – Hypertension, alcoholic liver disease and alcohol dependence contributed to in a material degree by employment – Those conditions satisfy the definition of “disease” – Reviewable decision set aside and substituted in respect of those conditions.

Administrative Appeals Tribunal Act 1975 (Cth), ss 33(1)(c), 43

Air Services Act 1995 (Cth)

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5A, 5B, 7(4), 14, 24, 53(1), 53(3), 64

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), Schedule 1, items 11, 41, 42

Buttigieg and Military Rehabilitation and Compensation Commission (2009) 108 ALD 222

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Comcare v Canute [2005] FCAFC 262; (2005) 89 ALD 258

Comcare v Mooi (1996) 69 FCR 439

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

Commonwealth of Australia v Lyon (1979) 24 ALR 300

Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Kavanagh v The Commonwealth [1960] HCA 25; (1959) 103 CLR 547

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139

Repatriation Commission v Bendy [1989] FCA 170; (1989) 10 AAR 323

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52

Whittingham v The Commissioner of Railways (W.A.) [1931] HCA 49; (1931) 46 CLR 22

REASONS FOR DECISION

26 June 2009

Dr K S Levy RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

INTRODUCTION

1. Graham Crossman, the Applicant, sought compensation for a medical condition that had resulted in the cessation of his employment with the Commonwealth. His application for compensation, dated 15 December 2006, was rejected by Comcare in a determination (“the determination”) dated 31 July 2007.
2. Mr Crossman sought review of that determination and following internal review, it was affirmed by Comcare in a decision (“the reviewable decision”) dated 9 January 2008. On 21 February 2008, he made application to the Administrative Appeals Tribunal (“the Tribunal”) for review of the reviewable decision pursuant to s 64 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The Applicant was represented by Mr John Merrell of Counsel. The Respondent was represented by Mr Charles Clark of Counsel.

ISSUES

3. The reviewable decision rejected the Applicant’s claim for compensation, in part, because the Respondent was found to suffer prejudice in litigating the claim; such prejudice arose because the Applicant had lodged the claim approximately 10 years after ceasing work. The basis for that rejection lies in ss 53(1) and 53(3) of the Act. At the outset of the hearing at the Tribunal, Mr Clark stated he was instructed that the above issue was not being pursued further by the Respondent.
4. The issues which remain for determination are:

(1) Were the conditions claimed by the Applicant materially contributed to by his employment with the Commonwealth?

(2) Was the Applicant’s excessive drinking a habit which arose out of or developed in the course of his employment?

(3) Did the effects of the Applicant’s employment continue to affect his conditions beyond the date his employment ceased in 1997?

(4) Were the Applicant’s conditions a result of his failure to obtain a promotion, transfer or benefit in connection with his employment in terms of the exclusion provision in the definition of “injury” in s 4(1) of the Act?

(5) Was the Applicant’s alcohol dependence “self-inflicted” within the meaning of that term in s 14(2) of the Act?

BACKGROUND TO THE APPLICATION

5. The Applicant completed his Senior Certificate in 1963. He then worked in the clerical stream, between 1964 and 1970, by gaining employment in the insurance industry and then in various Commonwealth government departments. He sought leave from the Commonwealth to train as a pilot and then decided on a career as an air traffic controller. He explained to the Tribunal that the endorsements on his licence, which reflect levels of specific training, formed the basis for his employment. He had to undertake a written examination every year to determine competence and also undertook a medical examination every two years.
6. The Applicant’s duties involved maintaining flight data and giving landing and take off clearances to aircraft. These duties were undertaken in the control tower of various airports. Some control towers (particularly the one in Brisbane) were large and had technological support in the form of radar equipment. In smaller centres, there was no technological support in all the years he worked as an air traffic controller. In those smaller centres, he was required to perform a visual separation of aircraft rather than rely on any electronic aids.
7. Mr Crossman’s employment as an air traffic controller commenced in 1970 and ceased after 27 years service, in April 1997. He was originally employed by the then Department of Civil Aviation. That department of government was replaced by a statutory body corporate, Airservices Australia, created by the Air Services Act 1995. Mr Crossman’s service was initially in Brisbane. Over the following four years, he served in airports at Coolangatta, Archerfield and then Brisbane again. During those four years, he lived with his parents at their home. In 1974, when he was 29 years of age, he was posted to Mackay for two years. He returned to Brisbane from November 1976 to July 1980 but had seven periods of temporary service at various regional airports during that time. He then served for two years, from 1980 to 1982, in Mt Isa and was then transferred back to Brisbane from 1982 to 1983. During the latter posting, he again had seven periods of temporary transfer to regional airports. He was then transferred to the Archerfield Airport in May 1983 and remained there until April 1997, when he ceased employment.
8. In summary, Mr Crossman spent 27 years as an air traffic controller. Approximately 6½ of those years were spent at Brisbane Airport and the remaining 20½ years at smaller and regional airports.
9. Mr Crossman stated in evidence that his role at most airports, because of the absence of radar, was to direct aircraft once they were in sight of the control tower. When aircraft were outside the control tower’s general line of sight, he relied on them sighting each other and then telling him of each other’s location. He said there was no-one to assist in the majority of cases and when weather conditions were poor, his task was more difficult. He regarded his role in separating air traffic based on the reports of pilots as stressful. Working in Brisbane, however, was a different situation as the control tower was manned by multiple staff 24 hours a day and there was always at least one controller and others to assist.
10. Mr Crossman’s employment was described at the hearing as follows. He was required to do shiftwork, with some shifts starting at 6.00 am. All shifts were of seven hours duration. Additional shifts or double shifts were not uncommon, as other controllers sometimes did not turn up for their shifts because of illness. In small regional centres, there was no-one else to call on and the air traffic controller on duty would then have to do a further shift. He referred to his time in Mt Isa as particularly stressful. There were often additional shifts in the holiday period so that aircraft could leave late in the evening to arrive in Brisbane or other capital cities just after the curfew lifted.
11. The lifestyle Mr Crossman experienced, particularly in the small and regional centres, was such that his recreational interests (mainly swimming, tennis, cards, violin, tenpin bowling and cricket) were all abandoned. He lived with his parents up to the time of his first transfer away from Brisbane in 1974. He occasionally drank alcohol but never to excess as he was the son of an Anglican Minister and alcohol was not a regular feature in his parents’ home. Despite all the airports he was posted to having a club where staff would often drink after their shift, Mr Crossman said he rarely drank in Brisbane because of the enforcement of drink driving laws. In the regional centres, however, that did not seem to be an issue. He stated he was drinking 10 or 12 stubbies a day from 1974 to 1976. Towards the end of his posting to Mackay, he was probably drinking 10 to 15 stubbies a day. He also drank sherry at home. When transferred back to Brisbane in 1976, his consumption of alcohol dropped because he was living with his ageing parents for whom he used to cook dinner in the evening. While he sometimes drank at the pub before he went home, he was never incapable of looking after his parents. He often drank wine after dinner. His drinking then increased again in Mt Isa from 1980 to 1982 and during his posting to Brisbane in 1982 to 1983. Excessive drinking continued when on temporary transfer to centres such as Cairns, Mt Isa and Mackay. While on those postings, he often lived in a hotel for months at a time and spent a good deal of time drinking. He served at Archerfield from 1983 to 1997, with temporary transfers to Mt Isa and Mackay at which time his drinking would increase again. His drinking also increased while at Archerfield, partly because of changes in the length of shifts to 10 hours, but also because of uncertainty about his future employment and the increasing number of people undergoing flight training from the Archerfield Airport.

EVIDENCE

Mr Crossman’s evidence

12. Mr Crossman gave oral evidence in addition to written statements he had provided. He was referred to his claim for compensation, dated 15 December 2006, in which he claimed compensation for chronic alcoholism, alcoholic liver damage, hypertension, obesity, chronic diverticular disease and diverticular reflux oesophagitis: question 8 at T40, folio 79. The Applicant states these conditions were caused by: environmental stressors; uncertainty about his future employment; poor career prospects; a requirement to work in isolated areas with inadequate resources; a requirement to work overtime and extra work at short notice; and a requirement to work alone with no assistance and inadequate support: question 21 at T40, folio 81. The Applicant claimed his conditions developed due to his need to work in isolated areas by himself, often with no chance for proper meals and sometimes no chance even for a toilet break. He said the working conditions in the control towers were cramped, sometimes without enough room for the efficient maintaining of active progress strips, which he had to complete. He said that, at times, he had six local and eight international flights to control. Although he responded to requests from international flights for direct routing to other airports, he told the Tribunal there were no maps to assist him and so he often had to arrange direct routing by contacting other control towers by telephone landline. He said these conditions were stressful and ultimately led him to drink more. He also suffered from the loneliness of working in isolated areas and living in a hotel room, sometimes for nine months at a time. The Applicant said that, by 1995, there had been a reduction of staff and an increase in the length of time remaining staff had to spend on each shift. He spoke of poor career prospects, namely that he would be regarded as not “fitting in” at a large control tower such as in Brisbane because he had been away from working in such a centre for a very long time. There was also the stress of uncertainty about his future employment. This increased his level of stress and so, he said, he drank even more. When asked why he might not drink less if his future employment was under threat, he indicated that his response in such a situation was to drink more, not less.
13. Mr Crossman said his career involved 30 or 40 more transfers than any other person and he attributed this to the fact that he was single, had no long-term relationships and no children. He was therefore administratively easier to transfer.
14. Other incidents were also dealt with in evidence. The Applicant did not secure a promotion to the Mt Isa airport, despite having worked there for 12 months. He also had the role of “drop master”, which required him to sit on the edge of an aircraft and drop supplies to those in distress during an emergency over water. There were only two drop masters in Mackay and so he was on call 24 hours a day, every day of the week. The training and operational work of a drop master involved being fastened into a harness on the side of the aircraft and dropping supplies from 300 feet. He said such work was particularly stressful during bad weather.
15. Shortly after he ceased work with Airservices Australia, the Applicant drank heavily but also cared for both his mother and father. His father died in 1998 at 86 years of age and his mother died in 2005 aged 92 years. He looked after each parent up to approximately two months before their respective deaths.

Medical Evidence

16. In relation to diverticular disease, the Applicant said this commenced about five years after he came back from Mackay. However, he also had a colon problem in 1980 before going to Mackay. Evidence was received from Professor Michael O’Rourke, General Surgeon. He had provided a report dated 23 July 2008 and gave further oral evidence. He said the origin of diverticular disease was unknown but generally it occurred when there was a decrease in high fibre diets. He said it occurred in 30% of all men who were 50 years or older and lack of soluble fibre was the only proven cause. He said there was no real link between alcohol and diverticular disease. It was more common in obese people, although medical science did not know why. Under cross-examination by Mr Merrell, Professor O’Rourke said there could be a relationship between alcohol and diverticular disease but it was only a possibility, and therefore he regarded such an association as tenuous. He said there was no empirical evidence to link diverticular disease with an excess consumption of alcohol.
17. In relation to the condition of reflux oesophagitis, Professor O’Rourke noted Mr Crossman’s weight was higher in previous years. He said alcohol may be a dietary factor but that from a logical point of view there was no link between alcohol and the disease of reflux oesophagitis. Again, he said he reached this conclusion because there was no empirical evidence, rather than the fact that it might not be possible.
18. In relation to obesity, Professor O’Rourke said this is due to a large number of calories not being burned off. While this could also be contributed to by alcohol, not having nutritional meals can also be the cause of some weight gain. He was not supportive of a link between obesity and excessive alcohol intake. Dr Edward Ringrose, who had been in practice for 41 years as a General Physician, said obesity had nothing to do with hypertension, although he agreed in cross-examination that excessive alcohol could aggravate obesity and also ischaemic heart disease. Dr Jeffrey Brock, an Occupational Physician with a speciality in aviation medicine, said there was a relationship between obesity and alcohol but it was not necessarily a causal one. His evidence was similar to that of Professor O’Rourke.
19. In relation to hypertension, there was evidence that this condition may have started shortly after the Applicant left Mackay. He sought treatment for this condition about 10 years ago (in approximately 1998). Dr Ringrose provided a statement dated 22 July 2008, in which he said there was no link between Mr Crossman’s employment and hypertension. However, at the outset of the hearing, he said he had reflected on that aspect of his opinion and that incidents of employment could accelerate or aggravate a person’s condition. He said that most probably hypertension related to alcoholism: the work related effect would cause about 20% and non-work related issues about 80% of hypertension. He distinguished hypertension from essential hypertension (which can occur because of genetic factors and is unrelated to alcohol consumption) and agreed in cross-examination that excessive alcohol use could aggravate blood pressure and potentially lead to hypertension. However, he thought such an elevation in blood pressure would not be permanent and that after a stressor was removed, the increase in blood pressure should dissipate. Dr Ringrose’s opinion was in part based on a report of Dr Fredericks, Psychiatrist, which was in turn based on evidence provided by the Applicant. Dr Ringrose said in cross-examination that if the facts given to Dr Fredericks were wrong, in particular that Mr Crossman’s job was indeed a stressful one, he would agree that a drinking pattern could be related to work stress.
20. In relation to uncertainty about future employment, Mr Crossman referred to changed working conditions: see question 21 at T40, folio 81. He had regular contact with Dr Brock, who was the main authority determining whether an air traffic controller should be issued with a certificate to continue work. Dr Brock was originally sent to Airservices Australia to examine an alarming rate of sick leave for employees. For 18 months, he collected data and saw a number of staff, including Mr Crossman. He visited Mr Crossman while the latter was at home and on leave. Mr Crossman thought at the time that he did not have a drinking problem because he was performing his job satisfactorily. However, Dr Brock had a closer review of Mr Crossman’s position when he came up for re-examination. Dr Brock thought in January 1996 that there was no evidence from Mr Crossman that any medical problems were work related. He also noted there was no claim for compensation by Mr Crossman based on stress or other workplace factors: T15, folio 35. After visiting Mr Crossman at home on one occasion, Dr Brock sent Mr Crossman in February 1996 to the Damascus Unit, a program at the Holy Spirit Hospital for those with alcohol problems. That was a two week program and Mr Crossman had a period of leave to try to rehabilitate from excessive use of alcohol.
21. Despite a brief period of abstinence from alcohol, returning to work resulted in Mr Crossman resuming drinking within a relatively short time. At one stage, Dr Brock reissued a medical certificate for Mr Crossman to recommence his duties but after a short period of time he again cancelled the certificate and thought Mr Crossman was not capable of continuing to work. Mr Crossman was then retired.
22. In relation to alcohol dependence, Mr Crossman admitted in evidence that he attended the Damascus Unit because of some coercion from his employer. While on that two week program, he saw Dr Fredericks, Psychiatrist, who had 20 years of experience in dealing with alcohol cases. Dr Fredericks said alcohol dependence was a multifactoral problem, caused by some hereditary factors but also by environmental factors such as stressors at work. He examined liver tests of Mr Crossman and said these revealed a mild to moderate alcohol dependence. Dr Fredericks was satisfied that Mr Crossman met the criteria for alcohol dependence in 1996 when he saw him, and said Mr Crossman had probably been suffering this condition for a long time: greater than two years and perhaps up to 10 years. He described Mr Crossman’s condition as one where a person cannot stop drinking or, in other words, cannot control the urge to drink. Mr Crossman told Dr Fredericks he was not drinking because of stress at work. Evidence was given that, if this statement were shown not to be true, it would demonstrate denial or a lack of insight. Mr Crossman was seen 10 years later by Dr Velimir Kovacevich, Psychiatrist. While the facts provided by Mr Crossman to Dr Kovacevich were somewhat different to those he gave to Dr Fredericks, Dr Kovacevich said there was some consistency between his own report and Dr Frederick’s: both diagnosed alcohol dependence and both explained the Applicant’s differing versions of events as showing a lack of insight, denial or minimisation of his condition. Such lack of insight, denial or minimisation is, Dr Kovacevich said, common with addictive disorders.

CONSIDERATION

23. The Applicant’s claims can be compensated only in terms of s 14 of the Act. Section 14(1) of the Act provides that Comcare is liable to pay compensation where there has been an injury suffered by an employee which results in, inter alia, incapacity for work. Section 14(2) of the Act negates any entitlement to compensation where an injury has been intentionally self-inflicted.
24. We regard the Applicant as a witness of truth. This is so despite some inconsistencies in evidence given by him to both psychiatrists and to Dr Brock over a period of time. He also seemed confused, contradictory or forgetful about some previous evidence when giving oral evidence at the Tribunal. We accept that these discrepancies were due to his embarrassment or anxiety about making admissions to doctors in earlier times concerning his coping with work, or were perhaps due to the effects of alcoholism on his memory.
25. The expert evidence received was of a high order. The Tribunal had the benefit of the opinions of a very experienced General Surgeon (Professor O’Rourke), an experienced Consultant Physician (Dr Ringrose), two Psychiatrists (Dr Fredericks, an expert in alcohol cases, and Dr Kovacevich), as well as a highly qualified expert in the field of aviation medicine (Dr Brock, who is also an Occupational Physician).

Onus of Proof and Standard of Proof

26. The onus of proof before the Tribunal is not the same as the legal burden of proof in litigation before the Courts. The Tribunal is bound by s 43 and, as far as practicable, s 33(1)(c) of the Administrative Appeals Tribunal Act 1975. However, there is an onus or, at least as the Respondent puts it, a practical onus on the Applicant. The standard of proof is the civil standard, ie on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at 155-156 .

Issue One: Were the conditions claimed by the Applicant materially contributed to by his employment with the Commonwealth?

27. Attributing causality to any of the conditions claimed requires, first, a determination of whether each condition satisfies the definitions of “disease” or “injury” under s 4(1) of the Act. These definitions are of importance, not only to a determination under s 14 of the Act but also, where relevant, to s 24 of the Act. That section requires Comcare to pay compensation where an injury results in “permanent impairment”. “Permanent impairment” is defined in s 24(2) of the Act.
28. The definitions of “disease” and “injury” have been the subject of extensive judicial comment over a long period of time. Both definitions have recently been amended and inserted as separate sections (ss 5A and 5B) of the Act: see item 11 of Schedule 1 of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (“the amending Act”). In the second reading speech for the Bill of the amending Act, the then Minister for Employment and Workplace Relations said, in relation to the definition of “disease”, that the material contribution test had previously not been applied the way Parliament had originally intended[1]. However, while the new provisions (ss 5A and 5B of the Act) are not applicable in the present case[2], a position similar to them has been reached in cases determined under the Act by the Federal Court and the High Court of Australia. There are also other enhancements to the definitions of “disease” and “injury” under the amending Act which are not relevant for present purposes.
29. In this case, the definitions of “disease” and “injury” in s 4(1) of the Act are to be applied as they were prior to the commencement of the amending Act:

“disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”.

“injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment”.

30. A “disease” is said to be an “ailment”, which term is also defined in s 4(1) of the Act, as follows:

“ ... any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

31. Section 7(4) of the Act provides that an employee is taken to have sustained a “disease”:

“ ... on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation ... first resulted in the incapacity for work, or impairment of the employee;
whichever happens first”.

32. The definitions of “‘disease’ and ‘injury’ are mutually exclusive”: Buttigieg and Military Rehabilitation and Compensation Commission (2009) 108 ALD 222 at 227 [18]. Differentiating both definitions is not without its difficulties. The term “disease” might usefully be examined first as an “injury”.
33. As submitted by the Applicant’s Counsel, the Federal Court has pointed out that the definition of “disease” is intended to be of wide application even though the process of identifying and even labelling particular mental illnesses is difficult. This is particularly so for those mental illnesses which are “clinically significant” or “abnormal”: Comcare v Mooi (1996) 69 FCR 439 at 443-444 per Drummond J. The High Court, referring to earlier legislation, described the contributing factor of a disease as being directly related to a condition: it must be shown that a condition would not have developed but for the person’s employment: Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626. More recently, the Full Court of the Federal Court said that a “‘but for’ test remains inappropriate” and that the contribution must be “more than a mere contributing factor”. It emphasised that the word “material” requires “an evaluative threshold” to be applied and that any contribution below that threshold could be regarded as not demonstrating a causal connection: Comcare v Canute [2005] FCAFC 262; (2005) 89 ALD 258 at 275 [68].
34. The High Court in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at 540 [9]- [10] noted that the Full Court of the Federal Court accepted the submission that for a condition to be a “disease”, it must be “an ‘injury’ within the ‘disease’ category”. It referred to the concept of an “injury” and made three observations:

(1) Compensation is not made for an impairment; it is the “injury” which is compensable.

(2) “Injury” is not regarded as a “workplace accident” but a “resultant effect of an incident or ailment upon the employee’s body”.

(3) “Injury” is not used in a global sense but “the Act refers disjunctively to “disease” or “physical or mental” injuries and, to that extent, it assumed that an employee may sustain more than one injury ...”

35. The High Court in Canute v Comcare at 540 [8] also noted that an “injury” which is not a “disease” must be one arising out of or in the course of the employee’s employment. An injury “arising out of” employment requires a causal connection between the injury and the employment: Kavanagh v The Commonwealth [1960] HCA 25; (1959) 103 CLR 547 at 556, 558; Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 at 125 [23]. For an injury to have occurred “in the course of” employment would involve “a temporal concept and it is unnecessary that there be any causal connection”: Commonwealth of Australia v Lyon (1979) 24 ALR 300 at 303; see also Kavanagh v The Commonwealth at 555, 570. What is within this concept is “ ... a matter of degree, in which time, place and circumstances, as well as practice, must be considered together with the conditions of the employment”: Whittingham v The Commissioner of Railways (W.A.) [1931] HCA 49; (1931) 46 CLR 22 at 29 per Dixon J, cited in Commonwealth of Australia v Lyon at 304.
36. In relation to a “disease”, the High Court in Canute v Comcare at 540 [9] said the primary concept in this definition is that of an “ailment”, separately defined in s 4(1) of the Act. The Full Court of the Federal Court in Comcare v Canute at 273 [64] said that a disease must have a causal connection which is “contributed to in a material degree by the employee’s employment”. The Federal Court then traversed the legislative history of the relevant provisions and said at 258 [68] that the causal connection is not a simplistic connection and must be “not left in the area of possibility of conjecture” [sic – or conjecture] and was intended to be “more than a mere contributing factor”.
37. Further elaboration of the word “material” in the definition of “disease” in s 4(1) of the Act was made more recently by Finn J in Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 at 542 [15]. There, His Honour preferred the following interpretation, extracted from the Shorter Oxford English Dictionary: “In a material degree; substantially; considerably”. He then noted this was consistent with the definition used in the Macquarie Dictionary and referred to by Davies J in Repatriation Commission v Bendy [1989] FCA 170; (1989) 10 AAR 323 at 325: “of substantial import or much consequence [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’”. Finn J held at 543 [16] that the Act, by requiring “an evaluation of all relevant contributing factors”, imposed a higher test than the antecedent legislation, the Compensation (Commonwealth Government Employees) Act 1971 (something which the amending Act has endeavoured to address). Counsel for the Applicant pointed out that this approach was adopted with approval by Madgwick J in Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52.

Does the Applicant suffer from a “disease” or “injury”?

Diverticular disease

38. In relation to diverticular disease, Professor O’Rourke provided a detailed written opinion, dated 23 July 2008, and oral evidence. His evidence demonstrated that, apart from known associations between a lack of dietary soluble fibre and the greater propensity of obese people to suffer diverticular disease, there was no (or little) empirical evidence about the cause of diverticular disease. Under cross-examination by Mr Merrell, Professor O’Rourke said it is possible that increased alcohol use could be linked to diverticular disease but the probability was small. On the basis of that evidence before the Tribunal, we cannot be satisfied on the balance of probabilities that Mr Crossman’s diverticular disease contributed to the alcohol consumption. Nor can we be so satisfied that his employment contributed in a material or substantive way or that the time, place and circumstances account for this condition. The claim for this condition is therefore unsuccessful either as an “injury” or as a “disease”.

Reflux oesophagitis

39. With respect to this condition, Dr Brock opined that alcohol, like caffeine, was an irritant and therefore likely to be associated with poor diet. On that basis, he concluded that there is a correlation between alcohol and reflux oesophagitis. On the other hand, Professor O’Rourke thought that reflux oesophagitis is a disease in a medical sense, like diverticular disease, and although a link between it and alcohol is possible, medical science has no empirical evidence to support such a correlation.
40. On the basis of the evidence available, we accept the opinion of Professor O’Rourke and are not satisfied that the required standard of proof has been met that would show reflux oesophagitis to have made a material contribution to Mr Crossman’s incapacity for work. We are also not satisfied that the time, place and circumstances can account for this condition. It is therefore not an “injury” or a “disease” under the Act.

Obesity

41. Professor O’Rourke provided no support for a link between alcohol and weight gain, but said that obesity could also be due to a lack of nutritional meals. Dr Ringrose said that obesity has nothing to do with hypertension but that excess alcohol could aggravate obesity and, as a result, also increase the risk of ischaemic heart disease. Dr Brock acknowledged the relationship between obesity and alcohol but said it was not a causal relationship.
42. While there is some evidence that increased alcohol consumption results in an increased calorie intake and therefore enhances the propensity for weight gain, we regard the medical evidence available as insufficient to establish a link between obesity and the Applicant’s work related conditions. We find that the standard of proof with respect to establishing a material contribution between obesity and alcohol dependence is not met. We find that the time, place and circumstances also cannot establish the required link between the condition of obesity and alcohol dependence. Mr Crossman’s obesity is therefore not a “disease” or “injury” under the Act.

Hypertension

43. Dr Ringrose gave oral evidence in relation to this condition and at the outset amended his written report by stating a contrary opinion: that the incidence of employment could accelerate or aggravate Mr Crossman’s condition of hypertension. He said Mr Crossman’s hypertension could be considered as approximately 20% work related and 80% related to “essential hypertension” (unrelated to alcohol consumption). As stated above, Dr Ringrose’s opinion was in part based upon the report of Dr Fredericks. Dr Ringrose stated during cross-examination that, if the information given by the Applicant to Dr Fredericks was wrong, he would need to modify his answer to question 7 in his written report (Exhibit 5). He acknowledged that such a modification would then strengthen his opinion regarding the relationship between alcohol consumption and its material contribution towards the Applicant’s employment.
44. Given what we accept as the facts in relation to alcohol dependence and alcoholic liver disease (see paragraph 45, below), we accept that there is a relationship between excessive alcohol consumption, hypertension and the Applicant’s employment. We find that hypertension is an “injury” (based on a sufficient relationship and contemporaneity) and that it is also a “disease” within the meaning of those terms.

Alcoholic liver disease

45. In relation to this condition, pathology tests show that the Applicant’s alcohol consumption was high and had been for a long time. We cannot find any factor in the Applicant’s life which can account for his high degree of alcohol intake apart from his work and the environmental conditions in his workplace, which existed (and were exacerbated) over 27 years. We think these factors override any impulse of the Applicant to drink so heavily. We find that alcoholic liver disease is a “disease” as defined in the Act.

Alcohol dependence

46. The Applicant has a diagnosis of alcohol dependence. He had that diagnosis when he was employed by Airservices Australia. Alcohol dependence resulted in an incapacity for work while he was still employed by Airservices Australia. He was also diagnosed with that condition when examined by Dr Kovacevich in 2007. We find that the Applicant has an “ailment”, which is a disorder or morbid condition (the onset of which was gradual) and that he has an “injury” which is in the “disease” category of that broad definition of injury.
47. The connection between the Applicant’s alcohol dependence and his employment is based on the evidence, which shows that on the balance of probabilities he would not have had this “disease” except for his employment as an air traffic controller. The evidence shows that the causal link between the Applicant’s alcohol dependence and his employment is not a simplistic connection. It is highly probable, and not a case where the connection could be regarded as being in the realm of possibility or conjecture. His employment is therefore a connection with alcohol dependence which is “more than a mere contributing factor”: Comcare v Canute at 258 [68]. The Applicant’s background was that of a man of good education and respectable employment for six years upon leaving school, after which he trained as an air traffic controller. He spent 27 years in that occupation and was a single man for all that time. While posted to Brisbane, he lived at home and cared for both parents until weeks before their respective deaths at the ages of 88 and 92. He is the son of an Anglican Minister and was clearly dutiful to his parents. He was also dutiful to his work but as a consequence suffers from alcoholism.
48. Serving over 20 of his 27 years as an air traffic controller in regional towns, often in isolated areas, contributed to Mr Crossman’s alcohol dependence. He felt pressure caused by the lack of colleagues and other support in small airports; such lack often made working overtime unavoidable. Most of the airports to which he was posted had no radar equipment (this was only available in Brisbane during his employment). In the latter years of his service, he was consequently seen to be uncompetitive with others who had more experience in Brisbane, where more contemporary and advanced technology was employed. There were other pressures (or perceived pressures) about uncertainty of employment for the future.
49. In any event, Mr Crossman’s evidence was of someone who had experienced 30 or 40 more transfers than other persons of the same age and experience. He stated this was because he was single and had no wife, no long-term relationship and no children. Shiftwork was an integral part of his work for 27 years and his former recreational interests were not able to be pursued, at least not during the 20 or so years of regional postings.
50. All of this must be considered in the context of a man of conservative background, probably not someone to argue a case on his own behalf. We find Mr Crossman’s background, his demeanour as a witness and the nature of his employment were those of an insular person who had worked in an insular work environment. However, we regarded him as a witness of truth.
51. Those findings are also based on the expert evidence of Psychiatrists (Dr Fredericks and Dr Kovacevich) and an Occupational Physician (Dr Brock). The Psychiatrists saw Mr Crossman 10 years apart and we are satisfied that Mr Crossman, at least at the time of his admission to the Damascus Unit for alcohol dependence, was either in denial or not willing to be frank with Dr Fredericks. Dr Fredericks reached that conclusion in the first week of Mr Crossman’s admission to the Damascus Unit but said he was more cooperative in the second week. As was pointed out by Dr Kovacevich, there is no medical evidence of genetic predisposition for alcoholism. That condition can better be explained by his employment and the related consequential factors of lifestyle (too much alcohol and improper meals), work pressure and social circumstances (including lack of other social outlets). Dr Kovacevich said Mr Crossman was able, 10 years after seeing Dr Fredericks, to admit the role of work related factors because of a greater awareness of the work factors underpinning his condition and a greater insight gained over those intervening years.
52. We are also satisfied that Dr Brock’s evidence is of great weight. While he can be seen as being overly sympathetic to Mr Crossman at times, we note he did not avoid hard decisions such as refusing to issue a medical certificate for Mr Crossman’s excessive workplace absence when he showed abnormality in liver tests and was suffering from alcohol dependence. We therefore accept the objectivity of his expert opinion.
53. Dr Brock’s evidence is important not only because of his specialist qualifications but also because his professional life has been mostly spent in the aviation industry, in particular aviation medicine in both the military and civilian domains. He has studied occupational groups such as air traffic controllers and stated, “Air Traffic Controllers as an occupational group have a very high incidence of alcohol related disorders which in turn is very much related to the nature of their occupation. Mr Crossman is no exception in this regard”: T35, folio 67.
54. Dr Brock also referred to Mr Crossman’s period of detoxification in 1996 that was then followed by abstinence from alcohol for some months. Dr Brock noted that Mr Crossman resumed heavy drinking upon returning to work, which he related to Mr Crossman’s work as an air traffic controller. He described that, in his experience, air traffic controllers often “burn out” with concomitant alcohol and psychiatric mood disorders. This, he said, characteristically occurs in air traffic controllers’ fifth decade of life and many of them leave the industry prior to normal retirement age: T35, folio 67.
55. We are therefore satisfied that Mr Crossman has a “disease” within the meaning of that term used in the Act. He also has other conditions; we have considered those in the same context and they are dealt with later. But taking account of the whole of the evidence, it is apparent that the impact of Mr Crossman’s employment on his life was very substantial and contributed to his alcohol dependence in a material way: as per Comcare v Sahu-Khan.
56. Mr Crossman therefore satisfies the requirement of s 4(1) of the Act, in that the disease of alcohol dependence was materially contributed to by his employment. The interrelated conditions of hypertension and alcoholic liver disease satisfy the definition of “disease” similarly.

Issue Two: Was the Applicant’s excessive drinking a habit which arose out of or developed in the course of his employment?

57. As we have found the conditions claimed were upheld, it is not necessary to deal with this question further as it relates to the definition of “injury” (which is not a “disease”).

Issue Three: Did the effects of the Applicant’s employment continue to affect his conditions beyond the date his employment ceased in 1997?

58. We find that the effects of Mr Crossman’s employment continued beyond the date he ceased work in 1997. Dr Ringrose, having regard to the fact that the version of events given to Dr Fredericks by Mr Crossman was wrong, accepts this would occur. Dr Ringrose says Mr Crossman’s conditions would continue to have a workplace link even after the cessation of work, although he expected this influence to diminish over time. He said the conditions would not disappear entirely.
59. Dr Kovacevich also says Mr Crossman’s employment would be likely “to have contributed to his condition in a significant and lasting manner”: T46, folio 116. He also said in his report of 7 June 2007, that “[b]y the time his condition was recognised and treated, it was already in its chronic stage and, despite the attempt at rehabilitation, it was probably too late to successfully intervene”: T46, folio 114.
60. The only reasonable conclusion is that some residual effect (less than 20%) of Mr Crossman’s employment would remain extant beyond the date he ceased to be employed.

Issue Four: Were the Applicant’s conditions a result of his failure to obtain a promotion, transfer or benefit in connection with his employment in terms of the exclusion provision in the definition of “injury” in s 4(1) of the Act?

61. The argument put by the Respondent is that this question should be answered “yes”. Mr Merrell, for the Applicant, says the definition of “injury” in s 4(1) of the Act particularises a barrier to Mr Crossman recovering under s 14(1) of the Act, ie that alcohol dependence arose because of failure to get a promotion or transfer in 1982. Mr Merrell says that argument is not sustainable, as Mr Crossman was already suffering from alcohol dependence by 1982. Mr Merrell bases that statement on the Applicant’s evidence that alcohol dependence had started in 1974 when he was transferred to Mackay.
62. While that evidence was not challenged, we note Dr Fredericks’ oral evidence that, based on the medical test of liver function, Mr Crossman had obviously been suffering for a long period of time with alcohol dependence: a period of at least two years and probably 10 years. As Dr Fredericks saw him in 1996, onset of alcohol dependence as a “disease” was more likely to have been in the mid to late 1980s. We regard that as more accurate and we find accordingly.
63. But does that onset date assist in determining whether Mr Crossman’s drinking was the result of his failure to obtain a promotion or transfer? We think not.
    That evidence is only one aspect of 27 years of factors in the life and work of Mr Crossman. The failure to get a promotion in 1982 resulted in Mr Crossman not taking up the position, yet he remained and relieved in that position for the remainder of that year. We note he secured promotion to that same position 12 months later, in the next round of promotions. While he was clearly disgruntled by his failure to obtain the position on the first occasion, he remained in that position for a further 14 to 15 years. We note this was the most senior position available. We think the regional postings, lack of support, his personal ability to cope, the availability of alcohol as one of the only social outlets, and workplace stress, were much more significant in increasing his alcohol problems. We therefore find that Mr Crossman’s failure to obtain a promotion is not a disqualifying factor.

Issue Five: Was the Applicant’s alcohol dependence “self-inflicted” within the meaning of that term in s 14(2) of the Act?

64. The Respondent argues that the Applicant had a choice and that he chose to drink excessively. The Applicant’s Counsel points to evidence of Dr Kovacevich, that while a person with alcohol dependence does not initially lose their total power of volition, characteristics of someone with alcohol dependence are an inability to control alcohol use and drinking larger amounts than initially intended.
65. This is consistent with the evidence that lifestyle factors were likely to lead to gradual onset. The evidence of Dr Brock is complimentary, in that he cites evidence in a more epidemiological sense.
66. Therefore, we do not find any merit in the Respondent’s argument of this issue.

CONCLUSION

67. On the basis of the whole of the evidence available, the Tribunal:

1. affirms the decision in relation to diverticular disease;

2. affirms the decision with respect to reflux oesophagitis;

3. affirms the decision with respect to obesity;

4. sets aside the decision with respect to hypertension and substitutes a decision that hypertension is a contributing factor to Mr Crossman’s alcohol dependence;
   
5. sets aside the decision with respect to alcoholic liver disease and substitutes a decision that alcoholic liver disease is also related to Mr Crossman’s alcohol dependence;
   
6. sets aside the decision with respect to alcohol dependence and substitutes a decision that workplace factors made a substantial and material contribution to Mr Crossman’s condition of alcohol dependence; and
   

7. remits the matter to the Respondent for the assessment of compensation.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member.

Signed: ..........................[Sgd].............................................

Mátyás Kochárdy, Research Associate

Dates of Hearing 28 & 29 April 2009

Date of Decision 26 June 2009

Counsel for the Applicant Mr J Merrell

Solicitor for the Applicant Quinlan Miller & Treston

Counsel for the Respondent Mr C Clark

Solicitor for the Respondent Sparke Helmore

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[1] House of Representatives Weekly Hansard (No 18, 2006), 7 December, 2006, at page 52.
[2] See items 41 and 42 of Schedule 1 of the amending Act: ss 5A and 5B of the Act only apply to a condition suffered or sustained on or after 12 April 2007.