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VRB Case Note No. 3: Connection to service under the provision of the Military Rehabilitation and Compensation Act 2004 (the MRCA)

The issue

The substantive issue for determination was the connection of the injury to defence service.

The Applicant’s position

The Applicant contended the injury occurred during his annual physical fitness test he was required to undertake as part of service requirements. The Applicant contended that but for the requirements of the physical fitness test, he would not do sit ups or push ups, he trained during working hours, but on many occasions out of normal working hours as the pressure of work did not allow sufficient time to maintain the required level of fitness. He stated the RAAF was vigilant in ensuring all personnel undertook the required fitness tests.

The relevant legislation

Standard of proof

The Board noted the applicable standard of proof for peacetime service as set out in section 335(3) of the MRCA means that the Board must be reasonably satisfied there is a connection between the applicant’s peacetime service and the claimed condition.

Connection to service

The Board noted that for liability to be accepted the injury or disease must be a ‘service injury’ or ‘service disease’.

Section 27 of the MRCA provides that a persons claimed condition is a service injury or a service disease if it:

(a) resulted from an occurrence that happened while the person was a member rendering defence service;
(b) arose out of or was attributable to any defence service rendered by the person while a member;
(c) was due to an accident that would not have occurred, or a disease that would not have been contracted, but for the person having rendered defence service while a member, or changes to the person’s environment consequent upon the person having rendered defence service while a member;
(d) was contributed to in a material degree or was aggravated by any defence service rendered by the person while a member after the person sustained the injury or contracted the disease; or
(e) resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty, or away from a place of duty upon having ceased to perform duty.

Section 30 of the MRCA provides that an injury sustained or a disease contacted is a service injury if;

(a) the injury or disease:

(i) was sustained or contacted while the member was rendering defence service, but did not arise out of that service; or
(ii) was sustained or a disease contracted before the commencement of defence esrvice, but not while the person was rendering defence service; and

(b) in the opinion of the Commission, a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.

The Board noted sections 339 and 341 of the MRCA require the Board to determine matters to its reasonable satisfaction in accordance with the current Statements of Principles (SoPs) relevant to the claim.

The Board’s consideration

The Board noted the delegate determined that the applicant was serving as a Reservist, was "off duty" at the time of the injury and not rendering defence service or performing a defence related activity. The delegate relied upon Defence Instruction (General) Personnel 14-2 to support the view that the injury was not covered for compensation under the MRCA.

The Board considered the applicability of this Defence Instruction (General) Personnel 14-2. The instruction is headed "Australian Defence Force Policy on Sport" and noted the definition of sport being "an activity that involves physical exertion and skill that is governed by a set of rules or customs in a structured, competitive environment, where participants are provided with a team and or personal challenge."

The Board noted it had difficulty finding that individual personal fitness training for the purposes of passing a fitness test could fall under the definition of sport as quoted.

The Board was of the view that the use of the instruction by the delegate to deny liability for an injury sustained in individual fitness training conducted in order to pass a mandatory fitness test is to misconstrue the purpose and effect of the wording of the policy.

Further the Board considered that the use of policy to deny a liability created under the MRCA, an Act of Parliament was not a proper exercise of administrative power. The Board’s view was that any decision to deny liability under the MRCA should be based on the provisions of the legislation, not policy such as Defence instructions.

The Board also considered the test set out in Roncevich and Repatriation Commission [2005] 222CLR 115. In Roncevich the High Court held that the relevant question is whether the injury arose out of, or was attributable to any defence service. The court went on to state at 22 that for activity to be related to defence service:

Depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely a temporal one.

The Board looked at two factual scenarios. The first being that the injury was sustained during an annual physical fitness test.

In these circumstances the Board was reasonably satisfied that the claimant was “on duty” and was therefore covered for any injury sustained by the MRCA.

The second scenario was that the injury was sustained while undertaking individual fitness training for the PFT at home.

Using the test in Roncevich the Board was of the view that the conduct of personnel fitness training with a view to passing a required physical fitness test must constitute a sufficient connection with defence service to create a liability under the MRCA.

Having found a connection with defence service, the Board turned to consider the relevant SoP. The Board was reasonably satisfied there was medical evidence to support a diagnosis of the claimed condition and the Board was of the view that based on the evidence that the relevant SoP upheld the claimant’s contention that his condition was connected with his defence service.

Because the Board was reasonably satisfied that the material before it raised a connection between the claimant’s condition and his peacetime service, liability was accepted as a condition being related to the claimant’s peacetime service.

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