Contracted under contract: Suffering a disease from employment

Consistent with the now repealed Workers’ Compensation and Injury Management Act 1981 (WA), the current legislation[1] defines an injury as:

“…an injury from employment that is –

(a)?? A personal injury by accident; or

(b)?? A disease, or the recurrence, aggravation or acceleration of a pre-existing disease”[2].

Our last edition of The CompAct provided an overview of the definition of a personal injury by accident; in this edition we will delve into the case law concerning the definition of a disease, or the recurrence, aggravation or acceleration of a disease.

Statutory definition of disease

Unlike “personal injury by accident”, “disease” is expressly defined in the WCIMA.?Section 5 states that “disease”:

“includes any ailment, disorder, defect or morbid condition whether physical or mental and whether of sudden or gradual development”.

The scope of the above definition is clearly broad, and it is useful to consider the case law authorities which discuss the principles applied when determining whether a worker is suffering from a disease.

The decisions discussed here concern the interpretation and application of the definition of “disease” under the former Act.?The WCIMA provides a definition that, although slightly re-phased, is essentially consistent, such that the principles outlined in the case law remain relevant.

As a starting point, we again refer to the decision handed down in May v Military Rehabilitation and Compensation Commission[3] (May v Military Rehabilitation), which highlighted the importance of using common-sense to assess what type of injury has been sustained:

“The place of common-sense lay inference from a clear sequence of events is to be recognised, as long as any such inference is not denied by medical science. In any particular case there may be a consideration of whether there is a harmful effect on the body, a disturbance of the normal physiological state producing physical incapacity, a sudden or identifiable or distinct physiological change, whether there is an event or incident or clinical diagnosis to explain such change, and such considerations will be made against a background of a distinction in the common use of language between getting hurt and becoming sick”.

In Gallas v Comcare[4], the tribunal notes that:

(a)?? a disorder meant a “derangement of physical or mental health or function”;

(b)?? ailment was noted to include a “morbid affection of the body or mind; indisposition”; and

(c)?? morbid may mean “affected by, proceeding from, or characteristic of disease”.

In Burch v SA[5], it was stated that a particular injury may be accurately described as a "defect" or a "morbid condition"; however, the qualifying words "whether of sudden or gradual development" suggest the need for some progression of a condition, as opposed to one which remains static.

The discussion of the definition of “disease” in Favelle Mort Ltd v Murray[6] considered how such an injury can arise:

“Properly used, disease denotes a morbid condition of the body.? It may be initiated by some external cause or be idiopathic or autogenous.?Quite clearly, when such a condition is idiopathic or autogenous, it will not qualify as an injury in the normal use of language”.

We will be looking more closely into issues of causation, including the requirement for work to have caused or significantly contributed to the occurrence of a disease, in upcoming editions of The CompAct.??

Disease vs personal injury by accident

We again refer to the decision Cth v Ockenden[7], in which the difference between and personal injury by accident and disease was expressed as follows:

“The worker does not suffer personal injury by accident arising in the course of the employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering.

In Kennedy Cleaning Services Pty Ltd v Petkoska[8] it was held that:

“…a long line of decisions in Australia had recognised that an ‘injury’, being a sudden or identifiable physiological change, could nonetheless qualify within the ordinary application of that expression appearing in workers’ compensation legislation, although the change was internal to the body of the worker.? It did not have to be external or necessarily produced by external causes...

Secondly, the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case…”.

A review of previous decisions was undertaken in Szajna v Australian Postal Corporation[9], and those decisions were noted to establish that it is necessary to consider whether the alleged “injury” is separate to the underlying pathology that constitutes a “disease” that caused, whether directly or indirectly, the relevant physiological change which occurred.

The judgement in O'Neill v Lumbey[10] illustrates how the necessary consideration referred to above can be applied to the particular facts of a workers’ compensation claim. The judgement also suggests that identifying the potential treatment for an injury (and the anticipated outcome of such treatment) may assist in distinguishing between a “disease” and a “personal injury by accident”:

"In ordinary language a disease is understood as connoting an ongoing process which is to be distinguished from a structural defect which can be repaired or removed. ?In the case under discussion the weakness was effectively repaired after the rupture. ?Once that occurred the problem was eliminated. ?On the other hand the repair of a ruptured aneurism consequent upon arteriosclerosis would not normally be understood as removing the problem. The mechanical repair to the damaged tissue would not prevent the ravages of the ongoing underlying disease".

If you’re looking for examples of diseases, look no further than Schedule 1 of the Regulations [11]. Here you will find a list of prescribed diseases ranging from anthrax to poisoning or toxicity causing acute damage to the heart, lungs, liver, kidney , nervous system or blood.

A condition outside the boundaries of normal functioning and behaviour

In some instances, a worker will claim incapacity resulting from an injury to which a specific or recognised medical diagnosis cannot be given.?Comcare v Mooi[12] (Comcare v Mooi) is authority for the principle that a claim may succeed even where the “resultant condition cannot be identified with the label of a recognised medical condition”.

What, then, is required to establish that a disease has been sustained where there is no diagnosis attached to the reported symptoms experienced or the restrictions in functioning complained of?

In May v Military Rehabilitation it was held that even with an ailment, “there must be more than an assertion by an employee that he or she feels unwell”.?Further, frustration and emotional upset do not constitute injury: Thazine-Aye v Workcover Authority (NSW)[13] and Zinc Corporation v Scarce[14]. The effect of the injury must be more than transient: Re Bauduccio v Comcare[15].

In Fawkes v Swan Transit Services Pty Ltd[16] it was held that where a worker is claiming compensation for a disease from employment, that worker will need to give evidence of having stained a condition, regardless of its diagnostic label, that is “outside the boundaries of normal mental functioning and behaviour”.?By way of example, in Comcare v Mooi it was held that the descriptor of “stress” will, in most cases, be adequate to ground a claim so long as it can be demonstrated that the condition is outside the boundaries of normal mental or physical functioning and behaviour.?

Following the above principle, in Re Nelson and Comcare[17] and Re Chant and Comcare[18] it was held that the relevant condition suffered by a worker must be more than merely upset or distress, and must be more than an episodic increase in a pre-morbid condition.

By way of example of the application of the above principal, in Madden v Australian Postal Corporation[19], the worker was engaged in angry exchanges with his team leader after arguments relating to overtime and completion of work. ?It was held that the worker’s anger with his employer did not fall outside the normal range of behaviours when the Court took into account the evidence as to the worker’s general personality. As a consequence, it was held that his condition was not compensable.

The recurrence, aggravation of acceleration of a pre-existing disease

Windeyer J in Ogden Industries Pty Ltd v Lucas[20]; said:

“... ‘Aggravation’ means, I think, that disease has been made worse, not that it has simply become worse, an existing aggravation includes the failure to diagnose the disease where such failure to diagnose results in a worsening or aggravation of the condition”.

Some guidance as to the meaning of these words was given by the High Court decision in Federal Broom Co Pty Ltd v Semlitch[21]. It would appear that the word “acceleration” relates to a disease which is progressive in its nature and the acceleration occurs when the rate of progress is increased by some external stimulus. The worker is entitled to claim payments for the resulting incapacity where the acceleration produces some more severe or additional symptoms.? Aggravation occurs where external stimuli produces additional symptoms or an intensifying of the existing symptoms which are incapacitating albeit of a temporary nature.

The concept of aggravation of a pre-existing condition was also dealt with in Asioty v Canberra Abattoir Pty Ltd[22] which concerned a worker who suffered dermatitis:

“… the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. ?The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. ?This enhanced susceptibility constitutes an aggravation of the disease…”.

...

… [T]here is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions”.

Conclusion

We hope that this and the previous edition of The CompAct have assisted in clarifying when a particular injury, alleged to be an injury from employment, is a “personal injury by accident” and when it is more accurately classified as a “disease” (or the recurrence, aggravation or acceleration of same).

In our next edition, we will move onto a discussion of the different tests for causation to be applied for each of the two injury types.

This article was written by Ashleigh Glasson Senior Associate Insurance & Risk

[1] Workers Compensation and Injury Management Act 2023 (WA) (WCIMA).

[2] Section 6(a) and (b).

[3] (2015) 322 ALR 330; [2015] FCAFC 93.

[4] [2008] AATA 198.

[5] (1998) 71 SASR 12.

[6] (1976) 133 CLR 580.

[7] (1959) 99 CLR 215.

[8] [2000] HCA 45; 200 CLR 286.

[9] (2014) 143 ALD 192; [2014] FCA 1136.

[10] (1987) 11 NSWLR 640.

[11] Workers Compensation and Injury Management Regulations 2024 (Regulations).

[12] (1996) 69 FCR 439; 137 ALR 690.

[13] (1995) 12 NSWCCR 304.

[14] (1995) 12 NSWCCR 566.

[15] [2009] AATA 333.

[16] [2019] WADC 168.

[17] [2008] AATA 214.

[18] [2008] AATA 77.

[19] (2008) 102 ALD 406; [2008] AATA 411.

[20] (1967) 116 CLR 537 at 593; 41 ALJR 146.

[21] (1964) 110 CLR 626; [1964] ALR 1031.

[22] (1989) 167 CLR 533; 87 ALR 385.