The question of what constitutes an ‘injury’ under statutory workers compensation schemes can be fraught with controversy. A common dispute is whether self-reported pain (or other unusual symptoms) constitutes a compensable injury when there is no objective evidence of pathology, or no particular diagnosis which connects the person’s claimed condition with their employment.
While these issues are often the subject of medical debate, the legal controversy as to what constitutes an ‘ailment’ under the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act)’ has recently come to a head, with two Tribunal cases on that question shortly to be heard by the Full Federal Court. Some guidance may be provided about whether objective evidence of some physical (or physiological) change is required.
Under the SRC Act, compensation is payable in respect of ‘an injury’ suffered by an employee. There are two ‘limbs’ of the definition of ‘injury’ in section 5A, being a ‘disease’ or ‘injury (other than a disease)’. A ‘disease’ is further defined as an ‘ailment’ suffered by an employee, or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment. ‘Ailment’ is, in turn, defined in section 4(1) as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’
The High Court decision in May
The seminal case on the definition of ‘injury’ is the High Court’s decision in the matter of Military Rehabilitation and Compensation Commission and May (2016) 257 CLR 468 (May).
Benjamin May was a pilot in the RAAF. He became ‘significantly disabled’ by dizziness, low immunity, and fatigue, which he claimed was a result of adverse reactions to vaccinations that he was obliged to undertake during his service. The Military Rehabilitation and Compensation Commission (MRCC) denied Mr May’s compensation claim on the basis that it had been unable to diagnose any specific condition suffered by Mr May, or find a cause for his symptoms. The Tribunal agreed on similar reasoning.
The question of the minimum requirement for an ‘injury in the primary sense’ (being an injury under paragraph section 5A(1)(b)) ultimately ended up to the High Court. The High Court reasoned that, for an injury in the primary sense, the ‘physiological change – the nature and incidents of that change – [are] central.’ That physiological change might be characterised in various ways, by ‘suddenness’, being ‘dramatic,’ or a ‘disturbance of the normal physiological state’.
Moreover, the High Court suggested that ‘subjectively experienced symptoms, without an accompanying physiological or psychiatric change’ could not establish that there had been either an ‘ailment’ or an injury in the primary sense.
The Court concluded, on the evidence accepted by the Tribunal, that Mr May had not suffered an ‘injury’: there was no medical explanation for his illness, which had been described as a subjective description of a collection of symptoms; and, there was no substantial pathology to explain his symptoms.
Subsequent Federal Court cases
Cases in the Federal Court delivered since May have also considered the status of claimed conditions which do not display objectively verifiable pathology. The approach has left some confusion as to the conditions that will be accepted under the SRC Act, as the following examples demonstrate.
Howard and Comcare  FCA 1031, involved a claimant who had sustained injuries to her neck, right arm, and left thigh in a motor vehicle accident on her way to work at the Department of Health and Ageing. The Tribunal accepted that she suffered soft tissue injuries in the motor vehicle accident, which had resolved, but which had left her with a ‘chronic pain syndrome’ secondary to (and caused by) those injuries. The Tribunal found that the chronic pain syndrome was not an ‘injury’ under the SRC Act.
The Federal Court reversed the decision. It concluded that the Tribunal was unduly focussed on finding a continuing organic pathology to provide a link between Ms Howard’s physical injuries from the 2006 accident and her chronic pain syndrome. Instead, ‘medical conditions like chronic pain syndrome, which evolve out of primary injuries, are just as much an injury for the purposes of the Act as the primary injury.’ Because the chronic pain syndrome was caused by the physical injuries, it was also a compensable injury.
This reasoning may be contrasted with the outcome in Comcare and Stefaniak  FCA 560, in which the Federal Court adopted consent orders to the effect the Tribunal had erred in finding that an aggravation of symptoms, in the absence of an alteration of underlying pathology, could amount to an injury for the purpose of the SRC Act.
Decisions of the Tribunal currently before the Full Federal Court relating to the definition of ‘ailment’
Two decisions of the AAT are on appeal to the Full Federal Court which squarely address the question of the minimum requirements for an ‘ailment’ under the SRC Act, and whether those requirements may be met in the absence of an identifiable pathology or ‘physiological change’.
In Wuth and Comcare  AATA 3625, the AAT accepted evidence that Ms Wuth had suffered a viral infection in 2005, which developed into debilitating headaches in early to mid 2007, but which were not associated with ‘physiological change’. The Tribunal determined that Ms Wuth’s headaches were not an ailment given that it was ‘difficult to characterise the words of [the leading judgment in May] in any other way and as precluding such conditions from compensability.’
In the case of Walters and Comcare  AATA 14, Ms Walters undertook a posting in New Delhi, India. She suffered chronic fatigue syndrome while on her posting, but this diagnosis was made on the basis of the symptoms of which Ms Walters complained, rather than by identifying any specific pathology. The Tribunal affirmed Comcare’s decision to decline on the basis that the applicant suffered no ‘physiological change or disturbance.’ It referred to evidence that there were no ‘physical signs’ or ‘diagnostic laboratory tests’ that could confirm the diagnosis of chronic fatigue syndrome.
Both cases have been set down for hearing in late September 2021. Of particular interest in the outcome of these cases will be whether or not the Full Federal Court offers any further guidance as to how ‘ailment’ is to be interpreted by decision-makers.
This article was written by Andrew Allan, Partner and Adrian Hearne, Associate.