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.
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
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).
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.
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
This is a desperately sad case.
“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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
RVQZ and Comcare (Compensation) [2017] AATA 1904
Case
[2017] AATA 1904
Decision Date
CaseChat Overview and Summary
This matter concerned a claim for compensation by RVQZ, the ex-husband of the deceased employee FSXP, on behalf of their two children. The dispute centred on whether FSXP's death from chronic liver disease, related to alcohol abuse, constituted an "injury" under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) for which Comcare was liable to pay compensation to dependants and for funeral expenses. The claim was heard by Dr James Popple, Senior Member, of the Administrative Appeals Tribunal.
The primary legal issues before the Tribunal were whether FSXP suffered a "disease" for the purposes of the SRC Act, and if so, whether this disease was contributed to, to a significant degree, by her employment. Specifically, the Tribunal had to determine if FSXP's pre-existing ailments of alcoholism and liver disease were aggravated, and if any such aggravation was significantly contributed to by her employment. The Tribunal also considered whether, if an aggravation constituted a disease, FSXP's death resulted from that disease within the meaning of section 7(5) of the SRC Act.
The Tribunal reasoned that while Comcare accepted FSXP suffered from alcoholism and liver disease, and that these ailments resulted in her death, the applicant did not establish that her employment significantly contributed to the initial ailments. The applicant's case relied on the argument that FSXP's employment significantly contributed to an *aggravation* of these ailments. However, the Tribunal found that neither the employer's alleged failure to take certain steps nor the alleged bullying and harassment by a supervisor significantly contributed to any aggravation of FSXP's liver disease. Consequently, the aggravation was not a "disease" as defined by section 5B(1) of the SRC Act, and therefore not an "injury" for which compensation was payable.
As the Tribunal determined that FSXP did not suffer an "injury" as defined by the SRC Act, Comcare was not liable to pay compensation to the dependants under section 17 or for funeral expenses under section 18. The decision under review, which affirmed Comcare's determination of non-liability, was therefore affirmed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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 This is a desperately sad case. “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. On 7 November 2014, FSXP died. She was 43. 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”. 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. 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. 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. 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. On 17 October 2017, the estate of FSXP was made a party to these proceedings.Decision under review The decision under review is Comcare’s decision on 29 April 2016 affirming its determination that Comcare is not liable to pay compensation.Issue 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. 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.
Evidence
Evidence Before The Court
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 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 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. 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.
Decision
Reasons for decision
On 17 October 2017, the estate of FSXP was made a party to these proceedings.Decision under review The decision under review is Comcare’s decision on 29 April 2016 affirming its determination that Comcare is not liable to pay compensation.Issue 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. 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. 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. 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