In Gallas and Comcare [2008] AATA 198, the Administrative Appeals Tribunal considered a case where an employee was arguing that a recurrence of an injury should be considered a new injury under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) as opposed to a continuation of a previous claim under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act).

THE CASE

Mr Gallas, a meat inspector with the Australian Quarantine Inspection Service (AQIS) since 1977, had previously contracted acute Q fever which resulted in episodic periods of incapacity since 5 October 1980. This claim was accepted under the 1971 Act.

Subsequently in 2001 and in 2002, Mr Gallas suffered from post-Q fever fatigue syndrome, a secondary condition arising from his primary infection in October 1980. On both occasions Mr Gallas claimed compensation under the SRC Act. Comcare accepted liability for the 2001 claim, however, for the 2002 claim, Comcare determined that it was not a new claim, but a continuation of his previous claim under the 1971 Act for which liability had been accepted.

The determination in relation to liability for the 2002 claim was affirmed on reconsideration. By review of own motion of the determination in relation to liability for the 2001 claim, pursuant to section 62(1) of the SRC Act, it was found that the secondary condition should be included as part of the injury for which liability had been accepted by Comcare with a deemed date of injury of 5 October 1980.

The practical effect on Mr Gallas was that compensation for the 2001 and 2002 claims fell to be determined not under the SRC Act but instead under the 1971 Act, which was less beneficial in certain respects.

THE DECISION

The Tribunal considered whether the episodes of acute symptoms suffered by Mr Gallas in 2001 and 2002 constituted injuries as well as whether the ailment or aggravation had been contributed to in a material degree by the applicant's employment.

The Tribunal considered whether the claim for an injury was in fact an injury under the SRC Act. Section 4(1) of the SRC Act defines 'injury' to include 'a disease suffered by an employee'. 'Disease' means any ailment suffered by an employee or 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.

The Tribunal then proceeded to consider the definitions of 'ailment' and 'aggravation' under the SRC Act. The Tribunal gave the word 'ailment' its ordinary English meaning, which was noted to include 'a morbid affection of the body or mind; indisposition'. The dictionary definition of 'morbid' was stated to include 'affected by, proceeding from, or characteristic of disease'. The dictionary definition of 'indisposition' was stated to include 'the state of being indisposed; a slight illness'.

Due to the width of the definition of 'ailment' the Tribunal found that the 2001 and 2002 episodes each constituted an indisposition and as such were both an 'ailment' for the purposes of the definition of 'disease' in section 4(1) of the SRC Act.

The Tribunal determined that:

  • Each of the 2001 and 2002 episodes of severe symptoms constituted an aggravation of an ailment, namely the pre-existing post-Q fever fatigue syndrome, for the purposes of paragraph (b) of the definition of 'disease' in section 4(1) of the SRC Act.
  • The 2001 and 2002 episodes were contributed to in a material degree by the employee's employment for the purposes of the SRC Act.

The Tribunal set aside the decisions under review and concluded that Mr Gallas was entitled to compensation under the SRC Act for the injuries which he sustained in 2001 and 2002.

IMPLICATIONS

This decision demonstrates the broad nature of what can constitute an 'injury' under the SRC Act in particular due to the inclusion of the word 'ailment' in the definition of 'disease'.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.