Whilst 'failure to diagnose' is, in isolation, not compensable there are situations where liability can be found against the Commonwealth. However in considering any claims that are based on a failure to diagnose Delegates should bear the following points in mind and establish:
The first date of incapacity for work, is in respect of the disease claimed (not an original injury), and can usually be established from evidence on file, e.g. sick leave records, a claim for compensation.
Note that 'incapacity for work' is defined in S4(9) as being:
a) an incapacity to engage in any work, or
b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
See also: ADF Firefighters Scheme.
The Safety, Rehabilitation and Compensation Amendment (Fair Protection for Fire-fighters) Bill 2011 was developed in recognition of the high level of exposure to toxins which is experienced by firefighters in the course of their employment and the subsequent medical conditions that may result from that exposure.
The most common category of injury claimed with RCG falls within the coverage of S6(1)(b)(i) of the SRCA, i.e.:
b) '...while the employee:
(i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment...'
Section 4(1) of the SRCA includes the following definition of 'place of work':
The investigation of the factual circumstances allegedly giving rise to an injury or disease is perhaps the most critical phase of the determination of liability.
Of course, many cases are very simple and straightforward and involve simple injuries clearly documented in accident reports and on the employee's ADF medical file. These raise few issues with regard to causation.
Liability to pay compensation does not exist simply because of an allegation of an injury and lodgement of a claim for compensation. All matters arising under the SRCA require the Delegate to be satisfied that it is reasonable and appropriate to find the Commonwealth liable to pay compensation in a particular case before actually determining liability in the claimant's favour.
Therefore, the Act negates any assertion that merely being required to reside in an area where the disease is endemic, represents a nexus with employment. Compensation is not payable on the basis of place of residence at the time of infection. The 'off duty' hours of a member residing full time (i.e. posted, for the time being) in a particular area do not attract compensation cover.
The SRCA was amended by the Safety Rehabilitation Compensation and Other Legislation Amendment Act 2007 (SRCOLA) in particular removing the definitions of injury and disease in S4 and replacing them with:
The definition of injury remains the same but extends the definition of exclusionary provisions – reasonable administrative action – discussed at 25.1.12.
Note that the requirement for the examination to be by 'one legally qualified medical practitioner' merely prevents the use of medical panels, i.e. examinations conducted by more than one doctor. However, the 'one doctor' provision does not relate to the number of examinations, i.e. it does not prevent the Delegate from ordering another appointment with another doctor if the first does not elicit the necessary information.
Although travel during an 'ordinary recess' is apparently excluded by S6(1)(b)(ii), that provision contradicts the accepted interpretation of S6(1)(b)(i).
It is RCG policy to follow the requirements of S6(1)(b)(i) in preference to (b)(ii) in cases where they conflict, i.e. where a member is injured on the journey home for lunch.
