May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93

In a recent decision, the Full Court of the Federal Court of Australia has clarified that a person making a claim for a work-related injury is not required to establish a "sudden or identifiable" physiological change in order to meet the definition of injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

This decision represents a significant shift in the approach to determining when an injured worker has sustained an injury in the course of their employment. The Full Court's approach suggests that determining whether a person has suffered an "injury" under workers' compensation legislation need not be a matter for medical evidence; it may be established by an injured employee's account of physiological changes, if those changes occurred at work.

Background

The Appellant enlisted in the Royal Australian Air Force (RAAF) on 6 November 1998 and was discharged on 30 July 2004. Between 10 November 1998 and 30 March 2000, the Appellant received various vaccinations in the course of his employment. On 29 November 2002, the Appellant lodged a claim based on "low immunity, fatigue, illnesses and dizziness", which he claimed was caused by vaccinations received in during his employment with the RAAF.

The Appellant's claim was denied by a MRCC delegate on 11 March 2003, with the delegate noting that specialists who had examined him were unable to diagnose any specific condition or determine a cause for his symptoms. The delegate was therefore unable to connect the claimed condition with his RAAF service.

At first instance the Administrative Appeals Tribunal accepted that the Appellant had suffered some sort of condition, but noted that no doctor had diagnosed the true nature of the condition or identified an event (external or internal) that caused or explained the physiological changes, and noted also that his physiological changes could not be identified as a symptom of a specific disease. As a result, the Tribunal decided the condition was not an "injury" for the purposes of s 14 of the SRC Act.

An appeal from the Tribunal's decision was initially dismissed by the Federal Court, with Buchanan J concluding that the appeal concerned factual and not legal issues.

The central question in the appeal before the Full Court was whether the primary judge erred in failing to identify a relevant error of law made by the Tribunal when it considered whether the Appellant suffered an employment-related injury. The Court determined that the meaning of the word "injury" in the SRC Act was a legal question. Issues of jurisdiction and whether the Full Court could hear arguments on errors of law not raised in the primary appeal were discussed at length, but ultimately rejected.

Full Federal Court of Australia's findings

The Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) reviewed the historical development of the definitions of injury and disease, discussing the evolution of workers' compensation legislation and relevant case law leading to the authoritative decisions in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, Australian Postal Corporation v Burch (1998) 85 FCR 264 and, most notably, Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning).

In doing so, the Full Court suggested the expression "sudden or identifiable physiological change" applied inKennedy Cleaning had frequently been misapplied in determining whether an injury had been sustained. The Full Court clarified that the expression did not mean that a "sudden or identifiable physiological change" was required to establish that an "injury"  had been suffered, stating [at 110]:

"We do not, however, see in the statutory concept of injury in the SRC Act any necessity for the attribute of "suddenness".... It is antithetical to the use of a word like "injury" in this legal context to load it up with qualifications having the effect of narrowing or constraining the circumstances to which it might be applied, unless those qualifications or constraints are drawn from the text or structure of the statute."

Accordingly, the Full Court concluded the Tribunal had erred in requiring the Applicant establish that he had suffered a "sudden or identifiable physiological change" to meet the definition of injury.

Applying this principle, the Court found that the Tribunal had made three errors:

  1. There is no legal basis to draw a distinction between evidence of "symptoms" and the need for a "diagnosis". That is, there is no requirement to establish a diagnosis or medically ascertained cause of an injury. The question is simply whether a person has experienced a physiological change or disturbance of the physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.
  2. Even if there was a need for "physiological evidence, pathology or a known diagnosis", a finding had been made by the Tribunal when an Appellant suffered from vertigo. It was noted the requirement for objective medical evidence and diagnosis misdirected the enquiry and tended to raise a requirement for an identifiable event, incident or cause that had connection with employment.
  3. The establishment of an injury is not precluded on the basis of an account by a claimant of the disturbances to their body and mind. Whether or not the evidence of a claimant will be sufficient if it is not supported by medical evidence will be a matter for the Tribunal on the evidence of each particular case.

Implications

The Full Court has stated there is no requirement to establish a "sudden or identifiable" physiological change to meet the definition of "injury". In doing so, it is arguable the Court has significantly broadened the types of conditions that may constitute an "injury (other than a disease)" or "injury simpliciter".

This decision represents a significant shift in determining when a worker has sustained an injury in the course of their employment. Arguably, all that must be established is that:

  • the worker suffered a physiological change or disturbance of their normal physiological state (physical or mental), and
  • that the change occurred "in the course" of their employment.

The worker can meet the onus of proof by providing lay evidence of symptoms suffered.

One significant implication resulting from the Court's analysis is that conditions that were once thought of as "diseases" and required a causal connection to employment may now be considered an injury simpliciter. If symptoms occur at work, a condition may become compensable simply because there is a temporal connection to employment.

The most obvious example is psychological conditions. It is foreseeable that some conditions (perhaps not even formally diagnosed) may become compensable because they occurred and produced symptoms, which manifest in the course of an employee's employment.

However, classifying a condition as an injury simpliciter does not mean the exclusionary provisions in s 5A(2) of the SRC Act cannot be applied. While the exclusionary provisions have traditionally been applied to diseases, particularly psychological conditions, it may still be the case that a condition sustained during employment also arose as a result of reasonable administrative action taken by an employer. Given the reasonable administrative action provision already requires a causal connection to be established, it is arguable that the Full Court's decision should not restrict the application of this exclusion.