As a commonwealth employee does a work injury have to occur during “work hours” in order to be covered? The short answer is no, writes TGB Partner Tim White.

In order for a Commonwealth employee to be covered by the relevant compensation scheme it is not absolutely necessary that the injury or disease you have suffered occur during work hours or at your usual workplace. There have been a significant number of court and tribunal decisions that have extended the parameters very broadly when considering what constitutes injuries and illness that have occurred beyond working hours and not in the workplace. Whether or not the injury/illness suffered is deemed to have arisen “out of or in the course of employment”, is the determination that must be made under section 5A of the Safety Rehabilitation and Compensation Act 1988 (SRCA).

What is the Relevant Legislation?

There are various different pieces of legislation that apply to Commonwealth employees depending on the nature of their work and the time period in which they worked for the Commonwealth.

The current legislation applying to civilian Commonwealth employees is the Safety, Rehabilitation and Compensation Act (SRCA) 1988.  Prior to that Act the relevant legislation was the Compensation (Commonwealth Government Employees) Act 1971.

In relation to defence force members, the current legislation for injuries that occur in Australia or overseas is the Military Rehabilitation and Compensation Act (MRCA) 2004. Prior to that it was the Veterans Entitlement Act (VEA) 1986. The MRCA now applies to all military injuries incurred, whether that happens in Australia or overseas.

 Varying criteria –

The criteria for determining whether or not an injury or disease is work related differs considerably under each of these pieces of legislation. So your individual circumstances become vital in determining which law applies to you and often this involves complex considerations.

These considerations would include, but may not be limited to:

– What year the injury occurred

– Where it happened

– How it occurred

– The type of diagnosed condition

– Resulting work capacity

– The time that the symptoms arising from the injury first appeared

What are the requirements under the SRCA 1988?

For civilian Commonwealth employees Section 14 of the SRCA is the starting point to consider when deciding whether to submit a claim. If an employee has suffered an injury that results in death, incapacity for work or impairment, and that injury is work related, you are able to make a claim for compensation under this Act.  Section 5A (addressed earlier) of the SRCA sets out in more detail the criteria to consider when determining if an  injury has been caused by your work. This is the section that requires that for an injury to be deemed to be work related it must be a “physical or mental injury arising out of or in the course of an employee’s employment”.

It is important to briefly note that under section 5B of the SRCA for a disease (as opposed to an injury), to be found to be caused by work, there is a very different threshold question to consider. Namely, the work must have contributed to the disease to a significant degree.  Accordingly, this is a higher threshold to satisfy.

Understanding what constitutes an injury as opposed to a disease is often complex and is dependent on a number of complex variables, which will not be addressed in this blog. However, understanding whether or not you have suffered a DISEASE or an illness is an important consideration when making a claim for compensation.

What are the considerations to determine if an “injury arises out of or in the course of an individual’s employment”?

The requirement for employment to have caused or contributed to an injury has been considered extensively by the Courts and tribunals.

One of the significant cases that considered this question was  Hatzimanolis v ANI Corp Ltd [1992] HCA 21. In this case a Commonwealth employee was driving to a work arranged function that occurred on a weekend. The function was clearly outside normal work hours and not at the employee’s usual place of work.  The employee was injured as a consequence of a significant motor vehicle accident whilst driving to this work arranged function. The major issue in this case involved considering whether or not the injuries that the employee had sustained had arisen out of or in the course of that individual’s employment.

In this case the High Court ruled that, “it should be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way”.

The effect of this important decision was that if an employer had induced or encouraged an employee to attend a function, even if it was outside work hours, and the individual was injured at that function, it is likely to still be an injury that has arisen in the course of employment. The following activities are all likely to be deemed as arising out of or in the course of your employment and therefore compensable:

– Conference attended for work purposes

– Workplace sporting events

– Off-site inspections

– Off-site work functions

– Work function outside of work hours

The pivotal phrase arising out of or in the course of your employment has more recently been considered by the High Court in the decision of Comcare v PVYW [2013] HCA 41.  In this case again the Commonwealth employee was injured whilst not at her usual place of employment, indeed she was staying overnight away from her usual place of work, undertaking a road trip and staying in a regional hotel.  She was injured whilst staying in that hotel, which the employer was paying for. In this case the High Court concluded that the injury was not sustained in the course of employment as it had occurred during an ‘interval period’.  In this case even if the employer induced or encouraged the individual to attend the particular hotel, as it did  in this case, as the injury occurred during an ‘interval period’, it was deemed not to have arisen in the course of employment.

This decision makes the parameters of when employment starts and finishes more difficult to clearly determine but it may be that its application is limited given the unique facts of this case. Time will tell how the lower courts and tribunals apply this decision to the facts of an injured worker before them.

Military Claims –

What are the requirements under the MRCA, in terms of the injury being linked to employment?

Section 23 of the MRCA deals with the liability of the Commonwealth for military service injuries and diseases.

A detailed definition of injury and disease is set out in Section 27 of the Act. Similar to the requirements of the SRCA, the injury or disease needs to have arisen from an occurrence whilst the person was rendering defence service or have arisen out of or be attributable to defence service.

The causation questions in relation to injury or disease are further complicated under the MRCA by the need to consider the relevant Statement of Principle (SOP). An SOP, as they are known, exists for almost every know military related injury or disease. They are    set out by the Repatriation Medical Authority (RMA).

A vital consideration for a service injury or disease, involves considering what are the mandatory factors contained in the SOP that must be present in order for the condition to be deemed service caused. If the relevant factor or factors in the SOP cannot be fulfilled, the condition will be found not to be service caused.  Accordingly it is important to give close consideration to what is set out in the relevant SOP and the specific diagnosis of the injury/disease you are claiming for.

There is a very large number of SOP’s that are listed here. It is important to closely consider your individual circumstances, including what has caused your specific injury to occur and what is the particular injury or disease that you have been diagnosed with. SOPs exclusively state what factors must exist to establish a causal connection between particular diseases, injuries or death and service, an assessment must be made as to which SOP applies appropriately to your injury or disease.

Expert medical evidence

In addition to the requirements of the various Acts it is vital when assessing the prospects of your claim to obtain expert medical evidence. This evidence will be used to assess the connection between your injury or disease and your work duties. This an integral step in the process of a claim.

Conclusion

Ascertaining whether an injury or a disease has been caused by your employment is not always a straightforward question. On many occasions the connection to work is not that obvious or clear.  There are a number of factors that need to be considered. The central question being whether the injury or disease is deemed to have “arisen out of or in the course of your employment”. Your personal and specific circumstances are vital in assessing your potential for a successful claim.

Seeking legal advice early in the process of constructing your claim and ensuring that you have all the proper background details in order will improve your chances of a successful claim. However, if your claim for compensation is initially denied, there are certainly avenues of appeal that can be pursued and your lawyer will be able to assist you through the appeal process.

For further information or assistance contact TGB Partner Tim White.