The Tribunal’s Decision

Ms Wuth had appealed a decision of the Administrative Appeals Tribunal (the Tribunal), which had affirmed decisions made by Comcare regarding Ms Wuth’s entitlements to compensation under the SRC Act for incapacity payments, permanent impairment and non-economic loss, in respect of a chronic headache condition.

The Tribunal had found that Ms Wuth continued to suffer chronic daily headaches and that her former Commonwealth employment continued to make a material contribution to her condition. However, the Tribunal also accepted that Ms Wuth’s condition could be described as a collection of subjectively reported symptoms without an accompanying identifiable physiological change or disturbance, and that this placed her condition squarely within a category that the plurality of the High Court determined in May could not amount to an ‘injury’ as defined in the SRC Act. Indeed, the Tribunal stated that it was difficult to characterise the following words of their Honours in May in any other way than as precluding such conditions from compensability (citations omitted):

50. First, does the evidence amount, relevantly, to something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition? [The first question.] Second, if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth? [The second question.]

51. If the answer to both those questions is “Yes”, there is a “disease” within par (a) of the definition of “injury”. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is “No”.

52. If there is not a “disease” within par (a) of the definition of “injury”, the tribunal of fact next inquires whether there is an “injury (other than a disease)” within par (b).  The third question is – does the evidence demonstrate the existence of a physical or mental “injury” (in the primary sense of that word)? [The third question.] Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an “injury (other than a disease)”. The language of judgments should not “be applied literally to facts without further consideration of what is conveyed by the reasoning” in the cases from which it is derived, or without regard to the text and scheme of the Act. 

[…]

Not sufficient for an employee merely to feel unwell

57. The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind” (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.

The Court’s Judgment

Ms Wuth’s appeal was heard by a Full Court of the Federal Court constituted by Griffiths, Wheelahan and Snaden JJ. Justice Wheelahan provided detailed reasons for judgment, with which Griffiths and Snaden JJ expressed agreement.

Notwithstanding the High Court’s rejection in May of the conclusion that subjectively experienced symptoms, without an accompanying physiological change, could amount to an ‘ailment’ for the purposes of the SRC Act, Wheelahan J found at [104] that it was reasonably clear from May that the requirement that there be a physiological change only applies to an ‘injury (other than a disease)’ and not an ‘ailment’. Four main indications were provided at [104] to [109] in support of this finding:

• First, Mr May was said to have advanced his claim on the ground that he had suffered an ‘injury (other than a disease)’ and not an ‘ailment’. (However, earlier in his Honour’s reasons at [94], Wheelahan J noted the Tribunal had nonetheless considered and rejected Mr May’s claim on both fronts.)
• Second, in posing the first or second questions, the plurality in May did not refer to any requirement that there be a physiological change in order for there to be an ‘ailment’. Rather, the second question was whether the employee’s ‘state’ was contributed to in a material degree by the employee’s employment by the Commonwealth. (While this observation seems to acknowledge that a person can, for example, be born with an ailment, disorder, defect or morbid condition, it does not appear to encompass the full statutory definition of ‘ailment’, which implies the need for a change in state by including the words ‘(whether of sudden onset or gradual development)’.)
• Third, the main focus of the judgment in May was to identify the characteristics of an injury in the primary sense, and their Honours expressly refrained from laying down an exhaustive judicial formulation.
• Fourth, when the context is considered, all the plurality in May was relevantly saying at [57] of their Honour’s reasons was that Mr May’s condition of feeling unwell, where there had been no diagnosis, would not have resulted in an affirmative answer to the first question. Justice Wheelahan considered at [109] that there was no discussion of the ambit of the defined term ‘ailment’, or of any necessary characteristics of its components, as Mr May had made no such claim.

Justice Wheelahan observed at [110] that, to require that there be an ‘identifiable physiological change’ as an element of an ‘ailment’ would distort the defined term ‘ailment’ by importing a characteristic that is the hallmark of an injury in the primary sense, thereby narrowing the distinction between them. In deciding that Ms Wuth had not suffered an ailment on the ground that no physiological change could be identified, Wheelahan J found at [111] the Tribunal had misdirected itself.

Without resiling from that conclusion, Wheelahan J went on to observe at [111] that the Tribunal appeared to equate the identification of physiological change as requiring evidence in the form of objective pathology or test results, and that in the case of migraines there was no such test. Justice Wheelahan further observed that, unlike in Mr May’s case, there had been a medical diagnosis of Ms Wuth’s condition.

There will be many cases, Wheelahan J said at [112], where a physical or mental ailment can be diagnosed by a medical practitioner based upon the employee’s history, and upon studied instances of cause and effect without recourse to pathology or other diagnostic aids.

In relation to Ms Wuth’s claim for incapacity payments, Wheelahan J noted the Tribunal had not engaged with the parties’ submissions, including in relation to the application of s 8(5) of the SRC Act. Instead, the Tribunal sought by a process of impermissible speculation to extrapolate the reasons of the Federal Court in earlier proceedings. This was said to be in error.

Based on the above reasons, the Full Court allowed Ms Wuth’s appeal, set aside the Tribunal’s decision, and remitted the matter to the Tribunal for redetermination in accordance with law.

Conclusion

Whether this is the last word on the application of the reasoning in May to ailment claims under the SRC Act remains to be seen. However, in the meantime, in cases where an employee suffers a diagnosed medical condition, and the decision-maker accepts on the evidence that the condition is an ‘ailment’, or the ‘aggravation’ of an ‘ailment’, as those terms are defined in the SRC Act, the condition may constitute an ‘injury’ for the purposes of the SRC Act even if there is no objective pathology or test to confirm the nature or extent of a physiological change or disturbance. Whether there is an ‘ailment’, or the ‘aggravation’ of an ‘ailment’, may require medical evidence to understand the nature of the claimed condition as well as its connection or otherwise to the employee’s employment.

Further information / assistance regarding the issues raised in this article is available from the authors, Ben Mason, Partner, Brendan O’Brien, Partner, Joseph Everdell, Lawyer or your usual contact at Moray & Agnew.