GRAHAM CROSSMAN and COMCARE

[2009] AATA 469

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

Date26 June 2009

PlaceBrisbane

Decision

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.

.................[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) 226 CLR 535

Comcare v Canute (2005) 89 ALD 258

Comcare v Mooi (1996) 69 FCR 439

Comcare v Sahu-Khan (2007) 156 FCR 536

Commonwealth of Australia v Lyon (1979) 24 ALR 300

Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626

Kavanagh v The Commonwealth (1959) 103 CLR 547

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

Repatriation Commission v Bendy (1989) 10 AAR 323

Roncevich v Repatriation Commission (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) 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…