RVQZ and Comcare (Compensation)

[2017] AATA 1904

RVQZ and Comcare (Compensation) [2017] AATA 1904 (24 October 2017)

Division:GENERAL DIVISION

File number:           2016/2309

RVQZ on behalf of SJNM and YZFB

APPLICANT

AndComcare

RESPONDENT

AndEstate of FSXP

OTHER PARTY

DECISION

Tribunal:Dr James Popple, Senior Member

Date:24 October 2017

Place:Canberra

Comcare’s decision on 29 April 2016 is affirmed.

........................................................................

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — Applicant’s ex-wife died from chronic liver disease related to alcohol abuse — Applicant claimed compensation on behalf of children — whether alcoholism and liver disease were aggravated by relapse and continued drinking after period of abstinence — whether aggravation was significantly contributed to by employment — relapse and continued drinking was an aggravation and acceleration of liver disease — employer’s failure to take certain steps does not mean that the aggravation was significantly contributed to by employment — alleged bullying and harassment by supervisor did not significantly contribute to aggravation — aggravation not a “disease” and, therefore, not an “injury” — Respondent not liable to pay compensation to dependents or for funeral expenses — decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A(1)(a), 5B(1), 7(5), 14, 17, 18, 55(2)

Work Health and Safety Act 2011, ss 17, 19

CASES

Casarotto v Australian Postal Commission (1989) 17 ALD 321

Comcare v Lofts (2013) 217 FCR 220

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

Johnston v Commonwealth (1982) 150 CLR 331

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

REASONS FOR DECISION

Dr James Popple, Senior Member

24 October 2017

Summary

1. The applicant’s ex-wife worked for the Department of Defence (the Department).  She died from chronic liver disease related to alcohol abuse.  The applicant made a claim, on behalf of their children, for workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

2. The applicant said that his ex-wife’s alcoholism and liver disease were aggravated by her relapse after a period of abstinence from alcohol, and by her continuing to drink after that.  He said that that aggravation was significantly contributed to by his ex-wife’s employment by the Department: specifically, by the Department’s failure to take certain steps, and by alleged bullying and harassment.

3. There was an aggravation. But neither the Department’s failure to take certain steps, nor the bullying and harassment (if they occurred), significantly contributed to that aggravation. So, the aggravation was not contributed to, to a significant degree, by the applicant’s ex-wife’s employment. Her death did not result from the aggravation of a disease for the purposes of the SRC Act. Comcare is not liable to pay compensation.

   Background

4. This is a desperately sad case.

5. “FSXP” was employed by the Department.  On 16 October 2014, she made a claim for workers’ compensation.  I will call this the first claim.  She said that her injury or illness was “[a]nxiety, stress, run down, constantly tired, difficulty in sleeping, weight gain, rashes and diarrhoea”.  She said that these conditions were caused by her being “harassed, bullied and demoralised in [her] work place”, which she said had started when she started a new role in the Department in October 2012.

6. On 7 November 2014, FSXP died.  She was 43.

7. A pathologist conducted an autopsy.  On 27 December 2014, the pathologist reported to the coroner that FSXP had died “due to massive blood loss in the abdominal cavity caused by coagulopathy related to severe chronic liver disease related to alcohol abuse”.

8. On 10 November 2015, FSXP’s ex-husband (“RVQZ”—the applicant) made a claim for workers’ compensation on behalf of their two children: “SJNM” and “YZFB”.  I will call this the second claim.  The second claim sought a lump sum payment for the children as dependants of FSXP.

9. On 23 February 2016, Comcare made a decision on the first and second claims. Comcare decided that it was not liable, under s 14 of the SRC Act, to pay compensation to FSXP’s estate or the children.

10. On 1 April 2016, the applicant (on behalf of the children) requested a reconsideration of that determination.  On 29 April 2016, Comcare affirmed its determination.

11. On 4 May 2016, the applicant (again, on behalf of the children) applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

12. On 17 October 2017, the estate of FSXP was made a party to these proceedings.

    Decision under review

13. The decision under review is Comcare’s decision on 29 April 2016 affirming its determination that Comcare is not liable to pay compensation.

    Issue

14. FSXP’s estate does not press the first claim: the claim that FSXP was suffering from an anxiety condition.[1]  The applicant presses the second claim: the claim that Comcare should pay compensation to the children as FSXP’s dependants.

    [1] It was open to FSXP’s estate to press the first claim. Section 55(2) of the SRC Act provides that “A claim is not affected by the death of the claimant after the claim was served”. I have decided that Comcare was not liable to pay compensation to FSXP in relation to the first claim: see [81] below.

15. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1)(a) provides that “injury” includes “a disease suffered by an employee”. Section 5B(1) provides:

    5B  Definition of disease

    (1)In this Act:

    disease means:

    (a)  an ailment suffered by an employee; or

    (b)  an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    Section 7(5) provides:

    (5)The death of an employee shall be taken, for the purposes of this Act, to have resulted from a disease or an aggravation of a disease, if, but for that disease or aggravation, as the case may be, the death of the employee would have occurred at a significantly later time.

16. Comcare accepts that FSXP suffered alcoholic abuse or dependence disorder (alcoholism) and liver disease.  I will call these the ailments.  Comcare accepts that the ailments resulted in FSXP’s death.  The applicant accepts that FSXP’s employment did not significantly contribute to either of the ailments.  But the applicant says that the ailments were aggravated, and that FSXP’s employment significantly contributed to that aggravation.

17. The main issue in this review is whether FSXP suffered a “disease” for the purposes of the SRC Act. That depends on whether her ailments were aggravated and, if they were, whether that aggravation was contributed to, to a significant degree, by her employment by the Department. If it was, the aggravation was a “disease” and (therefore) an “injury” for the purposes of the SRC Act. And if, but for that disease, FSXP would have died significantly later than she did, Comcare is liable:

    ·under s 17, to pay compensation in respect of that injury to the children (who were dependents of FSXP at the time of her death); and

    ·under s 18, to pay compensation in respect of the cost of FSXP’s funeral to the person who paid those costs.[2]

    If there was no aggravation—or no aggravation to which FSXP’s employment significantly contributed—then there was no “disease” and no “injury”, and Comcare is not liable to pay compensation.

    [2] The second claim sought a lump sum payment for the children, but did not expressly seek compensation for funeral expenses. Nonetheless, Comcare expressly denied liability to pay compensation under either s 17 or s 18 when it made its determination on 23 February 2016 and, by implication, when it made the reviewable decision (affirming that determination) on 29 April 2016. It is open to me, on review, to decide that Comcare is liable under s 17 or s 18, or both: see Comcare v Lofts (2013) 217 FCR 220 at 232 [57] per Mortimer J. There is no evidence before me about who paid for FSXP’s funeral; presumably it was paid for by her estate. In any event, I have decided that Comcare is not liable under s 17 or s 18: see [82] below.

    Evidence

18. The following three people provided statements, and gave evidence at the hearing:

    ·the applicant, FSXP’s ex-husband;

    ·FSXP’s mother; and

    ·a friend of FSXP.

    A further four people (friends and work colleagues of FSXP) and her neighbour provided statements, but did not give evidence at the hearing.  And another person who knew FSXP provided a report, and gave evidence at the hearing:

    ·Adjunct Associate Professor Paresh Dawda, FSXP’s general practitioner (GP) in 2012 and 2013.

    The following people, who had not met FSXP, provided reports, and gave evidence at the hearing:

    ·Dr Andrew Jakobovits, a gastroenterologist;

    ·Dr William Knox, a consultant psychiatrist; and

    ·Dr Yvonne Skinner, also a consultant psychiatrist.

    In addition, there is a large amount of evidence before me about FSXP’s condition at various times.

    Agreed facts

19. I make the findings set out in [20]–[44] below, on the balance of probabilities. These findings are based on the evidence before me, including records of what FSXP reported to various medical professionals at different times, and the evidence of the people listed at [18] above. These findings are generally agreed between the parties.

20. FSXP started drinking alcohol when she was 16.  She started drinking heavily when she was 18.  Apart from several periods of abstinence (including when she was pregnant), she drank—sometimes very heavily—for the rest of her life.

21. In 2002, FSXP started working for the Department.

22. In 2007 or 2008, FSXP spent three or four weeks in a rehabilitation facility.  She abstained from alcohol for about three months.

23. By 2010, FSXP had developed alcoholic cirrhosis.

24. In November 2010, FSXP broke down at work and told her supervisor about her drinking problem.

25. On 19 November 2010, FSXP went to another rehabilitation facility.  She had a blood alcohol reading of 0.212.  She had been drinking up to three bottles of wine, plus 700 millilitres of spirits, at home each day.  She had also been drinking spirits at work, secreted in three watertight “M&M” containers.[3]  In her responses to a questionnaire, she said that the prospect of missing a drink always, or nearly always, made her very anxious or worried; that her drinking was always, or nearly always, out of control; and that she found it “impossible” to stop drinking.  On 29 November 2010, she was admitted into the rehabilitation facility.

    [3]     At the hearing, Dr Knox wondered whether this level of alcohol consumption, as reported by FSXP, was credible.  He thought that it was “almost a toxic level … a huge amount, and likely to be killing somebody if it is consumed in a day”.  Nonetheless, I have made findings about FSXP’s alcohol intake based on what she reported at various times.  In this review, there is a dispute about when she started drinking again after a period of abstinence that started in November 2010.  There is no dispute about the fact that, when she drank, she would usually drink heavily.

26. While she was in the rehabilitation facility, the Department asked a consultant psychiatrist to prepare a psychological assessment of FSXP.  On 21 April 2011, the psychiatrist reported to the Department that FSXP had “a long history of alcohol issues”, which had “been more prominent over the last 5 or 6 years”.  He diagnosed her as suffering from “an alcohol dependence issue which is currently in remission”.  He reported that the rehabilitation program she was then undertaking was appropriate, because her “alcohol issues were clearly severe enough to warrant this form of therapeutic community approach”.  He supported her intention to stay a further three months in rehabilitation, after which, he said, she would be fit to return to duty.  He also said that a further review of FSXP’s fitness for duty “in 12 to 18 months” would be “entirely appropriate”.  The psychiatrist reported:

    It may also be appropriate for [FSXP] to be subjected to random breath alcohol tests on her return to the workplace.  It is very important that these be undertaken in a discreet manner so that she does not feel her confidential issues are being exposed to other persons in the workplace.  …  It would be appropriate for a test to be done 2 or 3 times over the course of a 6 month period at random.  The use of breath alcohol analysis was discussed with [FSXP] … and she had no particular concerns, indeed she felt that this may be something that encouraged her to remain abstinent.

27. Shortly before she left the rehabilitation facility, and (presumably) as part of her rehabilitation program, FSXP wrote a note about her alcohol dependence, her goals, and her life plans.  She identified the things that would trigger her drinking as “getting out of bed in the morning, feeling sad, angry, happy or indifferent”.  She said that her “whole being was consumed by the need to have a drink just to function”.  She said that she loved her work, though she didn’t find it challenging.

28. On 10 June 2011, FSXP left the rehabilitation facility.  She had been there for more than six months.  She had abstained from alcohol while she was there, and did so for a period afterwards (discussed below).[4]

    [4] See [45]–[56] and [59] below.

29. On 4 July 2011, FSXP returned to work at the Department.

30. In January 2012, FSXP and her husband (the applicant) separated, and FSXP moved interstate with the children.  She continued to work for the Department in her new location.

31. On 4 June and 23 August 2012, FSXP had liver function tests which were normal.

32. On 23 October 2012, the Department decided (with FSXP’s agreement) to transfer her to a different role within the Department.  Her then supervisor wrote in an e-mail (which was not copied to FSXP) that one of the reasons for the transfer was that FSXP “has recently displayed some performance issues in dealing with the complexity of some of the higher level … work”.

33. On 29 October 2012, FSXP was transferred to that new role, and came under a new supervisor.  She had been looking forward to the new role, but she soon complained that she was out of her depth.  She said that her new supervisor micromanaged her and “kept riding her”, and that “nothing [FSXP did] was ever good enough”.[5]  She complained to a number of people that her new supervisor was bullying her.

    [5]     These quoted words are from the evidence of the applicant.

34. On 29 November 2012, FSXP was admitted to a hospital detoxification unit.  She had been drinking three or four bottles of wine a day.  She had a blood alcohol reading of 0.211.  Her liver function tests were normal.  She said that she was drinking “all day, every day”, that she drank because she felt sick when she did not drink, and that she felt “normal” when she drank.  She was discharged on 1 December 2012.

35. On 7 January 2013, FSXP told a counsellor that she had been drinking four or five bottles of wine, plus beer and vodka, each day.  When she tried to stop drinking, she said, she would experience withdrawal symptoms including shaking, insomnia, being unable to eat, retching and feeling nauseated.

36. On 18 January 2013, FSXP told her acting supervisor that she was an alcoholic, and that she had been drinking that morning.

37. On 20 February 2013, FSXP had a liver function test, which was mildly abnormal.

38. On 16 March 2013, FSXP was admitted to hospital suffering an anxiety attack.  She had been drinking spirits plus up to three bottles of wine a day.  She was discharged the same day.

39. On 8 April 2013, she told her supervisor that she was an alcoholic.

40. On 6 May 2013, her supervisor considered engaging a rehabilitation provider to help FSXP.  On 24 May 2013, that rehabilitation provider conducted an initial needs assessment.  FSXP did not agree to the rehabilitation provider meeting with her GP, and the Department did not take the issue any further.

41. For about 12 months until October 2014, FSXP was drinking two or three bottles of wine a day.

42. On 16 October 2014, FSXP made a claim for workers’ compensation.[6]

    [6] The first claim: see [5] above.

43. On 30 October 2014, FSXP was admitted to hospital.  She was still an employee of the Department when she died on 7 November 2014.

44. FSXP had suffered from her ailments for some time: alcoholism for about 25 years; liver disease for at least five years.  The ailments resulted in her death.

    The relapse

45. FSXP abstained from alcohol for a period starting when she was admitted into a rehabilitation facility on 29 November 2010, and ending when she relapsed and started drinking again.  For the remainder of these reasons, I will call this the relapse.  The parties disagree about when she relapsed, and the reasons for the relapse.

46. Dr Knox said that, on the basis of the medical evidence he had seen, it was likely that FSXP had relapsed in August or September 2012.  Dr Jakobovits reported[7] that the fact that FSXP’s liver function tests (on 4 June, 23 August and 23 November 2012) were normal “would suggest that she was drinking little alcohol, at least until the end of November 2012.”  He explained that a normal liver function test did not mean that there was no liver disease.  He said that FSXP “had probably developed a well-compensated cirrhosis before 2012, which is what [he] would have expected of a woman with a greater than 10 year history of heavy alcohol intake”.  As Dr Jakobovits explained at the hearing, her having a “well-compensated cirrhosis” would have meant that “her liver was still performing all its duties as well as a normal liver would at that time”.  He said that, if FSXP had stopped drinking in February 2013 (when her liver function test was mildly abnormal),[8] “there’s a chance that it could’ve reverted back to a normal liver function test”.  And, if FSXP had remained abstinent, he thought that her liver function test would have remained normal for up to a decade.

    [7]     25 August 2016.

    [8] See [37] above.

47. Dr Jakobovits later reported,[9] having reviewed the material, that he “would conclude that heavy drinking would have recommended [sic: recommenced] in September/October 2012”.  But, at the hearing, he moved closer to his earlier position:

    … when she was admitted to hospital on 29 November [2012] she had a blood alcohol of .21, which is like four times the legal driving limit, so she was obviously drinking at that time.  And to have normal liver function tests with that would suggest to me that the drinking started not long before that.

    He was asked how long it might take for liver function to go beyond normal limits, if a person started drinking again after a period of abstinence.  He said:

    I can’t be precise on that.  I’ve had quite a lot of experience with these patients over many years and usually within a couple of months of heavy drinking you would expect to see abnormal liver function tests once again.

    Having particular regard to Dr Jakobovits’s evidence, I do not think that I can make a precise finding about when FSXP relapsed, on the basis of the medical evidence.

    [9]     4 June 2017.

48. However, there is some evidence that does allow a fairly precise finding.  On 7 September 2012, FSXP told Dr Dawda (her GP) that she had recently relapsed, but had not had a drink for five days.  It follows that she relapsed no later than 2 September 2012.  This is consistent with the applicant’s evidence that FSXP told him in November 2012 that she had been drinking for a number of months.  And it is not inconsistent with Dr Jakobovits’s evidence about liver function tests usually becoming abnormal “within a couple of months of heavy drinking”.

49. Dr Dawda said that, based on the conversations he had had with FSXP, there were several factors that caused her to relapse: a generalised anxiety disorder, her employment, her marital separation, her concern about the welfare of her children, and the stress of her interstate relocation.  The applicant accepts that FSXP’s relapse was due to a number of factors, but says that her employment significantly contributed.  Comcare says:

    … the only reasonable conclusion to draw is that what led [FSXP] to drink between 2012 and her death in 2014 is what led her to abuse alcohol for most, if not all, of her adult life.  The most likely explanation lies in genetic or deep-seated physical or psychological factors but whatever the cause her employment did not significantly contribute.

1. At the hearing, Dr Skinner explained that relapse is a common feature of alcohol disorders.  During cross-examination, she agreed with the proposition that some people “live for decades with periods of relapse, rehabilitation, abstinence, relapse”.  She cited research studies which “indicate that fewer than 10 per cent of people affected by alcohol dependence ever maintain prolonged periods of non-problematic drinking”.  Dr Jakobovits said that “only 10 to 20 per cent of patients remain off” drink.  And, Dr Skinner said, FSXP’s alcohol dependence was “on the very severe end of the spectrum”.  Dr Knox agreed that FSXP was “at the upper end of the continuum”.

2. At the hearing, Dr Skinner explained some of the things done in a rehabilitation facility to help someone to abstain from alcohol after a pattern of alcohol abuse.  She was then asked about FSXP’s chances of abstaining when she left the rehabilitation facility in June 2011.  She said:

   Her prognosis was poor because of her inability over many years to maintain periods of sobriety, and for her relapse after the first period in a rehabilitation centre, but particularly after being in that long-term rehabilitation where she had been given—I assume had been given all the instructions I’ve just mentioned …  So she had all those opportunities, and in view of her serious problem I think her prognosis is very poor.

3. On 18 February 2013, a counsellor recorded that FSXP had said that she started drinking after she had moved interstate in January 2012.  She had “been 18 mths being dry, 6 mths in [r]ehab then stayed dry until her friend came to visit after she had moved”.  Comcare says that “the precipitator or the trigger that [FSXP] has nominated on this occasion for the resumption of the drinking is a friend coming to visit”.  It is possible, as Comcare says, that FSXP started drinking again “because the friend had a drink and [FSXP] couldn’t resist”.  But that is speculative.  It is also possible that FSXP was recalling her friend’s visit as having happened when she relapsed, and not as a reason for the relapse.  I do not think that I can draw any conclusions from this record about the reasons why FSXP relapsed.[10]

   [10]    I also do not think that I can draw any conclusions from this record about the timing of her relapse.  If FSXP was telling the counsellor that she had abstained for a total of 18 months, then she relapsed in May 2012.  If she was saying that she had abstained for a further 18 months after she left the rehabilitation facility, then she relapsed in December 2012.  I think the first interpretation is more likely correct, but I do not put any weight on the evidence of this record.

4. The applicant says that, because of FSXP’s performance issues at work, she was placed on a performance plan which she signed on 1 September 2012.  That, he says, means that a relapse on 2 September could very well have been caused by stresses that FSXP was experiencing at work.  But the “performance plan” was a routine performance agreement, to cover the 12 months from 1 September.  The section of the agreement that FSXP signed on 1 September makes no reference to any performance issues.[11]  Performance issues are first mentioned in the agreement in a section headed “mid-cycle review”: FSXP’s “self-assessment” was that she had not met two of her “key expected results” and her supervisor commented that “it was apparent that [FSXP] was having difficulties with some aspects of her role”.  FSXP signed the mid-cycle review section of the agreement on 15 November 2012.[12]

   [11]    Her first- and second-level supervisors signed that section of the agreement on 7 November 2012.

   [12]    Her first- and second-level supervisors signed the “mid-cycle review” section of the agreement on 15 and 20 November 2012, respectively.

5. There is no evidence that FSXP had to “confront her inadequacies at work and her inability to cope at work on 1 September”, as the applicant argues.  Her then supervisor mentioned performance issues in an e-mail on 23 October, when the decision was made to transfer her to a different role within the Department, but that e-mail was not copied to FSXP.[13]  And FSXP did not complain about experiencing any significant problems at work until after she was transferred, and she came under a new supervisor, on 29 October.[14]  In fact, when she made her compensation claim,[15] FSXP herself identified October 2012 as the time when she first suffered anxiety caused by (alleged) bullying and harassment by that supervisor.

   [13] See [32] above.

   [14] See [33] above.

   [15] The first claim: see [5] above.

6. Significantly, FSXP appears never to have attributed her relapse to her employment herself.  On 20 May 2013, she told Dr Dawda that she was drinking two bottles of wine a day, but she “does not know why”.  And, on 11 September 2013, an occupational health consultant recorded that FSXP had said that she “was dry for 18 months not long ago, but cannot remember what triggered her return to drinking”.  Comcare says that:

   … if stressors in the workplace were such that they made her so anxious and forced her to drink and break the significant period of abstinence and lead her down the path that [FSXP] clearly feared she was heading down, she would have nominated that at the time, but she didn’t, and that is the clearest indicator, we submit, that employment did not significantly contribute to the resumption of drinking.

   The context in which FSXP appears not to have specified a reason for her relapse is important.  As Comcare points out, FSXP had, at different times, previously given a variety of reasons for her drinking: “boredom, feeling sorry for herself, her ex-husband and her children, ‘dependence’, the fact her family and friends were big drinkers and there was drinking around her and ‘feeling sad, angry, happy or indifferent’”.  And there is no evidence that any of her other periods of drinking were linked to her employment: for example, FSXP was drinking for two years or more before she entered the rehabilitation facility on 29 November 2010, even though she was happy at work.[16]

   [16] See [27] above.

7. At the hearing, Dr Jakobovits was asked about the capacity of FSXP’s liver to recover as late as October 2013:

   … she had alcoholic hepatitis …  We’ve seen lots of patients get over alcoholic hepatitis, even those with cirrhosis, so there’s a possibility even at that time that there was a fair degree of reversibility about her—her liver tests, about her liver function at that time.

   He was asked when the “tipping point” had been:

   I think the tipping point was at about there, October ’13; the fact that she kept drinking was the tipping point.

   …

   I can’t predict exactly, but I think that once we got to that point in time, if she kept drinking I think that—that the prognosis was bad.

   Further findings

8. I make the findings set out in [58]–[62] below, on the balance of probabilities. These findings are based on the evidence before me, especially the evidence set out in [46]–[56] above.

9. Because of the serious extent of FSXP’s alcohol abuse problem, and her history of having been unable to abstain from drinking for extended periods, it was always highly likely that she would start drinking again after she left the rehabilitation facility on 10 June 2011.

10. She started drinking again—she relapsed—on, or a few days before, 2 September 2012.

11. She did not suffer significant anxiety about her work until 29 October 2012.

12. Her relapse was caused by several factors, including a generalised anxiety disorder, her employment, her marital separation, her concern about the welfare of her children, and the stress of her interstate relocation.  Her employment was not a significant reason for the relapse.

13. If FSXP had remained abstinent, her liver function would have remained normal (a well-compensated cirrhosis) for up to a decade.  Her liver disease was irreversible when she continued drinking after October 2013.

14. The applicant says that I should distinguish between FSXP “drinking” and “drinking heavily”.  He says that, when she relapsed on or before 2 September 2012, this was not a return to heavy drinking.  The heavy drinking, he says, did not recommence until later.  I have not made this distinction in my findings, for two reasons:

    ·There is not sufficient evidence for me to make findings about the level of FSXP’s drinking towards the end of 2012.  The medical evidence is not specific enough.[17]  And the evidence of those who saw her during this period must be balanced against the fact that FSXP had demonstrated a capacity to conceal the fact and extent of her drinking from her family, friends and work colleagues over many years.

    ·Even if it were clear that she did not return to heavy drinking until sometime after her relapse, I do not think that that would be determinative.  There is no evidence that FSXP was ever capable of drinking only a small amount for any significant period of time.  Once she relapsed, and continued drinking after October 2013, her liver disease was irreversible—regardless of the level of that drinking.

    [17]    See also note 3 above.

    Was there an aggravation?

15. Section 5B(1) of the SRC Act provides that a “disease” is an ailment or an aggravation of an ailment.[18] Section 4(1) of the SRC Act provides that “aggravation includes acceleration or recurrence”.  As Windeyer J, of the High Court, explained in Ogden Industries Pty Ltd v Lucas:

    “Aggravation” means, I think, that an existing disease has been made worse, not that it has simply become worse.  “Acceleration” I have previously said and venture to repeat “probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached—its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli” …[19]

    In Casarotto v Australian Postal Commission, the Federal Court noted:

    … what appears … from the ordinary English meaning of the words “aggravation” and “acceleration”, namely that “aggravation” connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one.  However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.[20]

    [18] See [15] above. Section 5B(1) also requires that the employee’s employment significantly contributed to that ailment or aggravation: see [67]–[78] below.

    [19] (1967) 116 CLR 537 at 593, citing Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 639–640 per Windeyer J.

    [20] (1989) 17 ALD 321 at 327, per Hill J.

16. Comcare says that “neither alcoholism nor cirrhosis of the liver constitutes a progressive disease” and that they only continued because FSXP continued to drink.  It follows, Comcare says, that there was no acceleration.  I disagree.  I have found that, if FSXP had remained abstinent, her liver function would have been normal for up to a decade.[21]  The implication of Dr Jakobovits’s evidence (upon which that finding is based) is that, after that period, her liver function would have gotten worse: that her liver disease would have continued, even if she had not continued to drink.

    [21] See [62] above.

17. I find, on the balance of probabilities, that the combination of:

    ·FSXP having relapsed on, or a few days before, 2 September 2012; and

    ·her having continued to drink after that

    was both an acceleration and an aggravation of her liver disease: it hastened the development of that ailment, and it made the ailment worse.  For the remainder of these reasons, I will call it the aggravation.

    Did employment significantly contribute to the aggravation?

18. Section 5B(1) of the SRC Act provides that an aggravation of an ailment is a “disease” only if it “was contributed to, to a significant degree, by the employee’s employment”.[22]  The applicant says that:

    ·the Department’s failure to take certain steps; and

    ·the alleged bullying and harassment by her supervisor

    each (or both) meant that the aggravation was contributed to by FSXP’s employment by the Department.

    [22] See [15] above.

    The Department’s failure to take certain steps

19. In Johnston v Commonwealth,[23] the High Court held that a failure to diagnose a disease was an aggravation of that disease for the purposes of a predecessor of the SRC Act.[24] The appellant’s son had been an enlisted member of the navy. He died from bowel cancer in 1975, having been misdiagnosed in 1970 by a doctor, in a military hospital in Vietnam, as suffering from haemorrhoids. The High Court considered the question whether “‘aggravation’ signifies ‘making worse’ rather than ‘becoming worse’”,[25] and said:

    The evidence is that if the cancer had been detected in 1970, treatment could have been given which would have been effective in slowing down, if not entirely stopping, the “natural and fatal course” of the disease.  The proper projection of the disease, if detected in 1970, as on the finding of the tribunal it should have been, was no longer a disease “taking its natural and fatal course, unimpeded by timely treatment”, but a disease capable of effective medical management.  If that be chosen as the starting-point for the consideration of the question of aggravation, it becomes clear that the failure to diagnose and treat the cancer resulted in a worsening or aggravation of the condition when compared with the course which, given timely treatment, it should have taken.  …

    …

    Whatever might have been the course of events if [the appellant’s son] had remained a civilian, it seems plain to us, on the basis of the findings of the Tribunal, that the course taken by the disease between 1970 and 1974 was a direct consequence of the failure in 1970 to diagnose its presence and thereafter to provide appropriate treatment.  That failure occurred in the course of his employment and in our opinion was related directly to it.  No further conclusion is necessary to establish that the employment was a contributing factor to the aggravation of the disease.[26]

    [23] (1982) 150 CLR 331.

    [24]    The Compensation (Commonwealth Government Employees) Act 1971: see the definition of “the 1971 Act” in the SRC Act, s 4(1).

    [25] (1982) 150 CLR 331 at 338 per Gibbs CJ, Mason and Wilson JJ, with whom Murphy J generally agreed at 343.

    [26] (1982) 150 CLR 331 at 339, 341 per Gibbs CJ, Mason and Wilson JJ.

20. The applicant accepts that, in Johnston, the appellant’s son was a serving member of the defence force; FSXP was not.  But the applicant points to the Department’s policies about dealing with those of its employees with substance abuse issues.  He says that the Department could have—and, consistent with its policies, should have—done more than it did to help FSXP to deal with her alcoholism.  He says that the Department’s failure to do more was analogous to the misdiagnosis in Johnson.  It was, he says, a failure in the course of FSXP’s employment, and a factor contributing to the aggravation.

21. Section 19 of the Work Health and Safety Act 2011 provides that a “person conducting a business or undertaking” (like the Department) “must ensure, so far as is reasonably practicable, the health and safety of” its workers “while the workers are at work”.  Section 17 provides that that duty requires that person “to eliminate risks to health and safety, so far as is reasonably practicable”.  The Department’s Work Health and Safety Manual includes the following:

    Defence is committed to the management of the use of prohibited substances and the misuse of drugs or alcohol in Defence workplaces as well as management of drug and alcohol misuse in the context of work health and safety.

    …

    Defence has a responsibility to initiate remedial action where an employee’s consumption or use of alcohol or other substances results in poor work performance, a security risk, or behaviour which is potentially dangerous and/or has a negative impact on other employees, other agencies or the public.  …  Early intervention can help in a number of ways, and may prevent both deterioration of health, the development of behavioural problems by the employee and/or the need to consider disciplinary action against the employee.

22. The applicant points to the psychological assessment of FSXP that was prepared, at the Department’s request, in April 2011.[27]  The psychiatrist said that “a further review” in 12 to 18 months would be appropriate.  There was no further psychological review.  The applicant says that, if a further review had been conducted during the period suggested (that is, between April and October 2012), “there is a real likelihood that the performance issues that arose up to 29 October” would have been dealt with differently by the Department.  Instead of transferring FSXP to a different role (in October 2012), and arranging for a rehabilitation provider to conduct an initial needs assessment (in May 2013), the Department would (the applicant says) have taken different steps, informed by the recommendations of another psychological review.  Specifically, the applicant says that the Department should have—and would have—required FSXP to undertake a rehabilitation program.

    [27] See [26] above.

23. It is possible that, if the Department had arranged a further psychological review between April and October 2012, that review might have recommended that FSXP undertake a rehabilitation program.  And, if the Department had allowed her to undertake that program (or required her to do so), or conducted random breath tests,[28] or required her to undergo a medical examination,[29] FSXP might not have relapsed in September 2012.  And, if she had continued to abstain from drinking, her liver function might have remained normal for up to a decade.[30]  But, even assuming that this series of counterfactuals would have been likely—not merely possible—had the Department taken one or all of these steps (and assuming that the Department had the power to require FSXP to participate in a rehabilitation program),[31] it does not follow that FSXP’s employment contributed to the aggravation.

    [28] See [26] above.

    [29]    Regulation 3.2 of the Public Service Regulations 1999 provides that an agency head may direct an APS employee to undergo a medical examination, for an assessment of the employee’s fitness for duty, if the employee’s state of health “may be affecting the employee’s work performance” or “may be a danger to the employee”: reg 3.2(1)(a)(i) and (iii).

    [30] See [62] above.

    [31]    See note 29 above.  I do not think that the power in regulation 3.2 is a power to direct an employee to undertake a rehabilitation program.

24. FSXP’s situation is not analogous to that of the appellant’s son in Johnston.  He saw a military doctor in Vietnam because he was serving in Vietnamese waters.[32]  As the High Court pointed out:

    … he was subject to regulations which imposed a duty upon him to keep himself fit, medical facilities were provided within the armed services to keep servicemen fit and healthy, and in the ordinary course of events servicemen were expected to use those facilities rather than to seek medical attention outside the service.[33]

    That was the context in which the High Court decided that the failure to diagnose the appellant’s son’s cancer “occurred in the course of his employment” and that his “employment was a contributing factor to the aggravation of the disease”.[34]  The Department’s obligations to ensure FSXP’s work health and safety[35] were not as extensive as the navy’s obligations in Johnson.  I do not think that the Department’s obligations extended to arranging a further psychological review, or to providing (or mandating) a rehabilitation program, or to conducting random breath tests, or requiring FSXP to undergo a medical examination.  If the Department had taken those steps, they would have been steps taken in the course of FSXP’s employment.  But the Department’s “failure” to take those steps—steps it was not obliged to take—does not mean that FSXP’s employment contributed to the aggravation, even if those steps would have prevented the aggravation.

    [32]    Johnston v Commonwealth (1982) 150 CLR 331 at 334 per Gibbs CJ, Mason and Wilson JJ.

    [33] (1982) 150 CLR 331 at 340 per Gibbs CJ, Mason and Wilson JJ.

    [34] (1982) 150 CLR 331 at 341 per Gibbs CJ, Mason and Wilson JJ: see [68] above.

    [35] See [70] above.

1. In any event, even if the Department had taken any or all of those steps, it is unlikely that those steps would have affected FSXP’s drinking—her death would not have occurred at a significantly later time.[36]  I have found that it was always highly likely that she would start drinking again after she left the rehabilitation facility in June 2011.[37]  That finding was based on evidence that only 10–20 per cent of people affected by alcohol dependence can abstain from drinking for extended periods, and that FSXP had an especially heavy alcohol dependence and a history of being unable to abstain from drinking for extended periods.[38]

   [36] SRC Act, s 7(5): see [15] above and [79]–[80] below. By contrast, in Johnston, the Compensation Tribunal had found “that the employee’s resort to the medical services supplied by the employer led to a failure to detect and treat a cancerous condition at a time when it would have responded to treatment”: (1982) 150 CLR 331 at 341 per Gibbs CJ, Mason and Wilson JJ.

   [37] See [58] above.

   [38] See [50]–[51] above.

2. It follows that the Department’s failure to take certain steps did not mean that the aggravation was contributed to, to a significant degree, by FSXP’s employment.

   Alleged bullying and harassment

3. The applicant says that FSXP was bullied and harassed by her supervisor in the role to which she was transferred in October 2012.  The applicant says that that behaviour contributed to the aggravation.

4. I have not made any finding that FSXP was bullied or harassed.  It is possible that she was—or that she perceived her supervisor’s behaviour in that way.  However, even if FSXP had been bullied or harassed (or perceived that she had been), I do not think that her supervisor’s behaviour could be said to have contributed to the aggravation.  The behaviour started no earlier than 29 October 2012, which was about two months after the relapse.  No doubt the stresses of working in a new role, her supervisor’s behaviour (or her perception of that behaviour), and her reduced capacity—predominantly due to her drinking—could have contributed to FSXP’s drinking.  But, I think it is unlikely that any of these was a significant contributor to her ailments.  As noted above,[39] I have found that it was always highly likely that she would start drinking again after she left the rehabilitation facility in June 2011.  Once she relapsed, and continued drinking after October 2013, her liver disease was irreversible.  And the dominant cause of her drinking after September 2012 (and after October 2013) was that she suffered from alcoholism, and relapsed.

   [39] See [58] and [74] above.

5. It follows that bullying and harassment (if they occurred) did not significantly contribute to the aggravation.

   Death resulting from an aggravation: s 7(5)

6. Sections 17 and 18 of the SRC Act apply only where an injury to an employee results in death.[40] Section 7(5) provides that an employee’s death shall be taken to have resulted from a disease or an aggravation of a disease if, but for that disease or aggravation, the death would have occurred at a significantly later time.[41]

   [40]    Sections 17(1) and 18(1).

   [41] See [15] above.

7. I have found that FSXP would have lived for a significantly longer time (up to a decade longer)[42] than she did, if she had not relapsed and continued drinking—that is, if not for the aggravation. It follows that the aggravation was an aggravation of the ailment that killed her (liver disease). But the aggravation was neither a disease nor an aggravation of a disease, for the purposes of the SRC Act, because it was not contributed to, to a significant degree, by FSXP’s employment. So her death did not result from the aggravation for the purposes of s 7(5).

   [42] See [62] above.

   Conclusion

8. There is not sufficient evidence for me to find that FSXP was suffering from an anxiety condition for which Comcare was liable.  (This was the first claim, which FSXP’s estate does not press.)

9. FSXP’s ailments were aggravated by the combination of her relapsing and continuing to drink after that. But FSXP’s employment did not significantly contribute to that aggravation. So, the aggravation was not a “disease” and, therefore, not an “injury” for the purposes of the SRC Act. FSXP’s death did not result from the aggravation for the purposes of s 7(5). Comcare is not liable to pay compensation under s 17 to FSXP’s dependants (the second claim) or under s 18 for funeral expenses.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

........................................................................

Associate

Dated: 24 October 2017

Dates of hearing:	7–8 June and 16 August 2017
Date final submissions received:	17 October 2017
Counsel for the Applicant and the Other Party:	Mr Jamie Ronald
Solicitors for the Applicant and the Other Party:	Blumers, Personal Injury Lawyers
Counsel for the Respondent:	Mr Andrew Berger
Solicitors for the Respondent:	Sparke Helmore, Lawyers