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3.4.3 Establishing a diagnosis

To investigate a claim a preliminary or confirmed diagnosis is required.


The Full Federal Court in Fogarty v Repatriation Commission [2003] FCAFC 136 highlighted the need to establish the 'kind of disease' [or 'injury' or 'death'] experienced by the person in order to consider a claim for liability.  Section 5 of the MRCA contains the relevant definitions (see 3.1 above).


In Repatriation Commission v Hancock [2003] FCA 711, the Federal Court, citing Fogarty, explained that it is only after the kind of injury or disease or death is decided that the question of a service relationship arises.  Hence a relationship to service can only be considered after an accurate diagnosis has been made.


The diagnosis – kind of injury, disease or death – must be established to the level of reasonable satisfaction by applying the BOP standard of proof.  The type of service has no effect on this requirement.


Therefore, the first step in the investigation is to identify the condition claimed and obtain an accurate diagnosis.  Where this cannot be done, the claim must be rejected on its own terms.  For example:


You have made a claim for' burning sensation'.

I have been unable to identify any 'disease'

or 'injury' that meets the requirements of the

legislation.  Your claim is therefore refused.


Sometimes there may be more than one diagnosis made in consequence of investigating a claim.  For example, a claim for 'indigestion' may require an endoscopy with diagnoses of gastric ulcer, hiatus hernia, gastrooesophageal reflux disease and gastritis subsequently made.  In such a scenario, all of the diagnosed conditions must be determined to answer the claim.  This accords with the principles set down in Benjamin and Budworth:  a claim should not be limited by the words articulated by the applicant.