Box and Comcare (Compensation) - [2019] AATA 5522

Box and Comcare (Compensation) [2019] AATA 5522 (26 November 2019)
Division:GENERAL
File Number: 2018/1553

Re:Anthony Box
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member R West
Date:26 November 2019
Place:Melbourne

The decision under review is affirmed.
..................[sgd]......................................................
Member
Catchwords
WORKERS COMPENSATION– depression – reasonable administrative action – wilful and false representations - for purposes connected with employment - s.7(7) and s.5A(1) – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Anderson and Australian Postal Corporation [2016] AATA 228
Dalton and Comcare [2018] AATA 2923
Finnian and Comcare (Compensation) [2019] AATA 10
Griffiths and Australian Postal Corporation [2017] AATA 1025
Griffiths v Australian Postal Corporation [2018] FCA 520
Hennessey-Milne and Comcare [2018] AATA 4453
K & S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518
Kennedy and Comcare [2015] AATA 334
National Australia Bank Ltd v Georgoulas [2013] FCA 1412
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
REASONS FOR DECISION
Member R West
26 November 2019

The matter for review by the Tribunal pursuant to s.64 of the Safety, Rehabilitation and Compensation Act 1988 (Act) is the decision of the Senior Case Manager of the Respondent dated 22 February 2018 to affirm the determination of the delegate dated
3 January 2018, to deny liability under s.14 of the Act for the Applicant’s claim for major depressive disorder of recurrent type, moderate severity.
Background
The Applicant commenced employment with the Department of Human Services (DHS) in January 2006 in the Centrelink Debt Recovery Unit. He was promoted to an APS 5 position as an Analyst in April 2010.
He was seconded to the Australian Crimes Commission in 2014 and returned to DHS in 2015 in his position as an APS 5 Analyst.
In July 2015 the Applicant lodged an application for promotion to an APS 6 Senior Intelligence Analyst position within DHS. In December 2015 the Applicant was advised that his application was unsuccessful. The Applicant lodged an appeal to the

Merit Protection Committee (MPC) on 19 February 2016. On 10 March 2016 the Applicant was notified that the MPC had affirmed all promotion decisions and his appeal was unsuccessful.
On 6 June 2016 the Applicant received a letter from the MPC[1] in which the Merit Protection Commissioner stated:
It has come to my attention that the Committee made an error in that your review applications were not in fact considered. I sincerely apologise for the failure of the Committee to deal with your application appropriately…..regrettably I have no capacity to correct the mistake…..You may seek to apply to a court for judicial review, having regard to the error that has been acknowledged.
[1] T3.5 at p.115.
The Applicant did not seek judicial review. He was appointed to an acting position as an APS 6 team leader in the Tactical Intelligence section on 20 June 2016. On 30 June 2017 the Applicant was advised that his temporary appointment to the APS 6 team leader position would cease. Thereafter he continued in his position as an APS 5 Analyst.
On 4 July 2017 the Applicant was advised by his superior, Assistant Director Annemarie Johnson, that she had received two formal complaints about his conduct as team leader from members of staff. The matter was investigated by the Assistant Director and escalated to the National Manager and was reviewed by the Ethics and Conduct Standards unit.
On 2 August 2017 the Applicant was informed that he was to receive a formal warning regarding his conduct.
The Applicant took personal leave from 2 October 2017, citing anxiety and depression as the reason for his absence.
The Applicant lodged a claim for compensation on 31 October 2017.
Evidence
In conducting the review the Tribunal has had regard to:
(a)each of the documents produced to the Tribunal by the Respondent pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (the T-Documents);
(b)the oral evidence of:
(i)the Applicant;
(ii)Dr Scott Chambers; and
(iii)Annemarie Johnson.
(c)the following documents tendered by the Applicant:
(i)a bundle of emails – Exhibit A1;
(ii)a medical report of Dr Gail Reid dated 17 June 2019 – Exhibit A2
(iii)a report of Lucy Rogers, Clinical Registrar, Psychology dated 20 June 2019 – Exhibit A3; and
(iv)telephone records for the period 7 November to 19 November – Exhibit A4
(d)the following documents tendered by the Respondent:
(i)record of a Skype conversation between Robyn Scott and Fiona Singleton of 5 April 2017 – Exhibit R1;
(ii)medical report of Dr Chambers dated 28 November 2018 – Exhibit R2;
(iii)transcript of telephone message dated 16 September 2019 – Exhibit R3;
(iv)medical report of Dr Chowdary dated 6 February 2015 – Exhibit R4; and
(v)admission records for Austin Health dated 25 June 2015 – Exhibit R5.
Contentions
The Applicant claims to have suffered an injury, namely stress, anxiety and depression, which was sustained in the course of his employment as an analyst officer with the DHS. The Applicant reported that he first noted the condition on 15 March 2016 and first sought medical treatment on 10 June 2017.[2]
[2] T3 at p.29 – 30.
The Applicant claims that his condition was caused by:
a.the failure of the DHS and the Australian Public Service Commission (APSC) to properly review his application for promotion in the period July 2015 to March 2016; and
b.the manner in which the DHS dealt with two complaints made about the Applicant by work colleagues in July 2017.
The Respondent has conceded in its written submissions that the Applicant suffers from an ailment, as defined in s.4 of the Act, being a major depressive disorder of recurrent type, and that but for the Applicant’s failure to obtain a promotion, and complaints made by other staff and resultant disciplinary action, the Applicant’s ailment would not have been aggravated and would not have caused him to be incapacitated for work, impaired or to have required medical treatment.
The Respondent asserts, nevertheless, that it is not liable to compensate the Applicant under Part II of the Act because:
a.the Applicant represented to the DHS that he had not previously suffered from the ailment and this representation was wilful and false and for purposes connected with his employment, and by virtue of s.7(7) the ailment is excluded from the definition of ‘injury’ in s.5A of the Act; and/or
b.the Applicant’s ailment resulted from reasonable administrative action taken by the DHS in a reasonable manner, and by virtue of s.5A(1) is excluded from the definition of ‘injury’ in s.5A of the Act.
Wilful and false representation
Sub-section 7(7) of the Act provides that:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
There are several elements of the exclusion in s 7(7)[3]:
there must be a representation(s);
(b)that the Applicant did not suffer from the disease that is the subject of the claim;
(c)the representation must be both wilful and false; and
(d)the representation must be made for purposes connected with the Applicant’s employment.
[3] Anderson and Australian Postal Corporation [2016] AATA 228 at [96].
As has been noted by the Tribunal and the courts, the exclusion of an applicant from access to compensation is a serious denial of what would otherwise be an entitlement associated with their employment, and the provision should not be interpreted liberally.[4]
[4] Dalton and Comcare [2018] AATA 2923 at [32] Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52 at [54].
It is not appropriate to apply an onus of proof to any party in proceedings before the Tribunal, but it is incumbent on the Tribunal to be satisfied that the factual basis necessary for a finding that the exclusion in s.7(7) applies is present. If such a factual basis is not established on the evidence then the Respondent’s reliance on s.7(7) must fail.
Was there a representation?
The representation to which the Respondent points is a statement made in the Applicant’s claim form[5] in answer to the question: Have you ever experienced a similar symptom, injury or illness, work-related or otherwise?
[5] T3 at p.30
The Applicant’s response was: No, I have not experienced a similar symptom, injury or illness.
The Applicant admitted in his oral evidence that he had prepared the claim form and that the response to the question was his response and was entered on the form by him.
It is not necessary to show a pattern or repetition of false statements. A single deliberate misrepresentation is enough to disqualify the employee from compensation.[6]
[6] Griffiths and Australian Postal Corporation [2017] AATA 1025 at [10].
The Tribunal is satisfied that the Applicant’s response to that question is a representation by the Applicant for the purpose of s.7(7).
Was the representation made for purposes connected with the Applicant’s employment?
It is now well established that statements in a claim for compensation under the Act are made for purposes connected with the Applicant’s employment.[7]
[7] K & S Freighters Pty Ltd v McQueen-Thomas[2018] FCA 1518 at [61]; Kennedy and Comcare [2015] AATA 334.
Did the Applicant represent that he had not suffered from the disease the subject of the claim?
It is not sufficient that the Applicant previously suffered from symptoms of the disease for which a claim is made. In National Australia Bank Ltd v Georgoulas[8] Perry J made the following observations concerning the interpretation of s.7(7):
The suggestion that the question is whether a previous condition could properly be described as "a disease", as the NAB submits, is contradicted by the plain words of the provision. The text of the section lends no support, in my view, to the proposition that it is sufficient to establish that the representation was false because the employee had suffered from similar symptoms in the context of a different disease ...
[8] [2013] FCA 1412 at [74]; Griffiths v Australian Postal Corporation[2018] FCA 520 at [19]- [20].
The court also observed in Georgoulas that:
the use of the phrase "that disease" in s 7(7) of the Act refers back to the disease, or to the aggravation of the disease, mentioned at the start of the provision, being the disease or aggravation of the disease which is the subject of the claim for compensation and complies with the test in [Comcare v Mooi (1996) 69 FCR 439].
The disease which is the subject of the Applicant’s claim, at least in so far as it is stated in the claim form, is psychological – stress, anxiety and depression. The Applicant’s response to the question whether he had ever experienced a similar symptom, injury or illness, work-related or otherwise was: No, I have not experienced a similar symptom, injury or illness.
This response goes beyond a denial that the Applicant had previously suffered the symptoms of the disease and plainly states that he had not experienced a similar injury or illness to the one the subject of the claim.
On this basis the Tribunal is satisfied that, by his response to the relevant question on the claim form, the Applicant represented that he had not previously suffered from the disease the subject of the claim.
Was the representation false?
The Applicant lodged his claim form on 31 October 2017. The claim was for stress, anxiety and depression. The supporting medical evidence from Dr Reid referred to a diagnosis of depression/anxiety.[9] The claim form stated that the Applicant had first noticed the symptoms/injury on 15 March 2016.
[9] T5 at p.126
His treating doctor, Dr Gail Reid, reported in June 2019[10] that she had treated the Applicant since 22 December 2012 when she diagnosed him with major depression after the ending of a long term relationship with his partner and a ‘falling out’ with a close friend. Dr Reid referred him to a psychiatrist, Dr Zarrar Chowdary. Dr Reid reported that the Applicant did not consult with her regarding his mood disorder after 20 September 2015.
[10] Exhibit A2
Dr Chowdary reported on 6 February 2015[11] that he examined the Applicant on
[11] Exhibit R4
[12] Dr Reid reported in Exhibit A2 that she referred the Applicant to a psychologist but he did not see her because she had moved.
28 January 2015 and noted that his stated mood was low and he appeared depressed with reactive affect. He noted that the Applicant said he had felt depressed in himself for over six months or so for most days of the week and had periods of low mood and depressed feelings for periods of two to three weeks where he felt apathetic, withdrawn, lacking motivation and was easily tired. He also noted that the Applicant had been suffering from sleep apnoea. While noting that there were no suicidal thoughts, delusions or perceptual abnormalities, he diagnosed that the Applicant had symptoms of moderate to severe episodes of depression. Dr Chowdary prescribed Sertraline 50 mg/day to be increased to 100 to 150 mg/day, unless the Applicant was unable to tolerate the medication, in which case Dr Chowdary prescribed Duloxetine starting at 30 mg/day to be increased to 60 to 90 mg/day. He also recommended that the Applicant be referred to a psychologist.[12]
This medical evidence makes it clear that the Applicant had suffered from a depressive condition resulting from events in his personal life prior to making his claim for compensation, and that it was false to say, as he did in the claim form, that he had not experienced a similar symptom, injury or illness. The Applicant freely admitted that the statement on the form was not true and that the Tribunal was entitled to regard the statement as a false statement.[13] He stated that when he realised that the statement was false he contacted his case manager at Allianz, who was managing the claim, and left a telephone voicemail message correcting the mistake. He tendered a copy of his telephone account as evidence of the call.[14]
[13] Transcript page 74.32-74.45.
[14] Exhibit A4.
On the basis of this evidence, the Tribunal is satisfied that, by representing that he had not experienced a similar injury or illness on the claim form, the Applicant falsely represented that he had not previously suffered from depression, the subject of his claim.
Was the representation wilful?
The Applicant gave the following explanation[15] for having made the false representation on the claim form:
I wish to address the issue of the initial claim submitted on 31 October 2017; the initial Comcare claim that I submitted. With regards to that claim, as I have explained yesterday, it took approximately four weeks from the 3rd of October when I left work on personal leave, to actually get to finishing the Comcare claim. Unfortunately, I clicked the box saying that I had not suffered from a previous similar injury. I believed at the time that I had ticked that, that that was correct, and as I said when I was cross-examined yesterday, Dr Reid advised within about four or five days after that – she reminded me of a previous situation where I had come back from Canberra a few years earlier and had been diagnosed with a depressive illness. There was certainly no intent in me trying to defraud the Commonwealth in regard to putting the claim in. I’ve tried to rectify it.
Unfortunately, in hindsight, I should have withdrawn that Comcare claim and started a new one but given it had taken four weeks to do, by the time I became aware of the error, I tried to rectify it directly with the Allianz case manager. Yesterday, I produced some evidence to show that I contacted the desk number of the Allianz case manager. Unfortunately, I obviously don’t have a copy of the – I’ve requested a recording of the call and the message that I left, and Allianz did not respond to me with regard to my requests on my admission over the phone that I had made an error, and I wanted the error to be rectified.
[15] Transcript pages 92.45 – 93.20.
There are a number of elements to the Applicant’s explanation which warrant consideration.
The Applicant claimed it took approximately four weeks to complete the Comcare claim.
The Applicant expanded on this aspect of his explanation in his final submissions where he stated:[16]
Just finally, I just wanted to go back over the issue of the error on my Comcare claim being wilful. It’s very hard to explain my symptoms and how I was feeling in that period, when it was still reasonably fresh – the full extent of the Department’s failures. So, I guess I’ll refer you back to the report by Dr Chambers, on the 27th of December, in regards to the current symptoms, in which he describes a few of them, low mood, low energy, increase in weight, largely staying at home, easily irritable, disrupted sleep, along with secondary insomnia, low appetite, ruminating about workplace issues, reduced enjoyment from activities, feelings of hopelessness in regards to career, anxious travelling to the city, et cetera.
Basically, I was just managing to exist in October 2017. I was largely housebound. I was very isolated, I felt abandoned by the Department. All those things were going on for me during October 2017 and as I’ve explained a few times now, it took four weeks to actually go through the whole process of putting a claim together and most of that process was with regards to the attachments that came to claim, as I found it terribly distressing to have to deal with any of those circumstances.
[16] Transcript page 115.09.
While the medical evidence does indicate that the Applicant’s condition may have made the preparation of the claim form more difficult, it does not indicate that his cognitive functions were impaired such that he would fail to recall his past depressive condition. A close examination of the claim form and its attachments suggests that the Applicant was able to give thorough and detailed consideration to the circumstances giving rise to his claim.
Having regard to these matters, the Tribunal is not satisfied that the Applicant’s false statement was due to the effects of his medical condition at the time.
He claims that he clicked the box saying that he had not suffered from a previous similar injury
Were it the case that the response to the relevant question was to be answered by ticking a simple box, it might be plausible that the Applicant had simply made a mistake by ticking the wrong box. However, the Applicant’s response was in full, stating: No, I have not experienced a similar symptom, injury or illness. It was not clear from the Applicant’s evidence whether he actually typed in the words of his response on the form or selected those words from options on a drop box. Either way the response required the Applicant to make a conscious choice. From this, the Tribunal concludes that the response was intentional.
He claims that he believed at the time he completed the form that his response was correct.
The Applicant’s evidence was that he did not recall having suffered from the condition until four or five days after completing the form when Dr Reid reminded him of a previous situation where I had come back from Canberra a few years earlier and had been diagnosed with a depressive illness.
The Applicant was questioned about this evidence by the Tribunal at the hearing.[17] The Transcript of that questioning is as follows:
[17] Transcript pages 75.01 – 76.29.
MEMBER: ….You say that, as I understand your evidence, that that was in advertent in the sense that you had forgotten that you had suffered from similar symptoms injury or illness in 2014 and ‘15, is that right?
MR BOX: That’s correct, yes.
MEMBER: According to the report of Dr Reid she had diagnosed you with major depression and referred you to a psychiatrist Dr Chowdary and she said that the episode of depression at that time was after ending of a long term relationship with your partner and a falling out with a close friend. Had you forgotten about the falling out of the relationship with your friend and the ending of your long term relationship, had you forgotten those things?
MR BOX: I hadn’t correlated that everything falls into the same - the same category. I mean, they were different circumstances and I don’t even know that I was advised by Dr Reid of her diagnosis or whether she can even make that diagnosis. Dr Chowdary who she referred me to within Seymour Clinic can certainly make that - that diagnosis but, yes.
MEMBER: I just want to get what you remember and what you don’t remember. You remember the ending of the long term relationship with your partner, do you remember that at the time?
MR BOX: That was in January of 2013.
MEMBER: And you remembered that?
MR BOX: Yes.
MEMBER: And you remembered having a falling out with your close friend?
MR BOX: In September 2014, yes.
MEMBER: Yes. You remembered being treated by Dr Reid following those incidents?
MR BOX: On my return to Melbourne, yes.
MEMBER: Yes. And her diagnosing you with major depression?
MR BOX: I do not, no.
MEMBER: Do you remember her sending you to a psychiatrist Dr Chowdary?
MR BOX: I do.
MEMBER: Do you remember Dr Chowdary prescribing Sertraline?
MR BOX: I believe he did his report and sent it back to Dr Reid and then I was - - -
MEMBER: So you remember that part?
MR BOX: Yes. I only saw his - his diagnosis, I was never provided with a copy of - of his report after referral from Dr Reid but I was aware that she - she - she prescribed me the Sertraline.
MEMBER: So you remembered taking medication including Sertraline?
MR BOX: In early - - -
MEMBER: So if I’ve got it right you remember the incidents that gave rise to your depression, you remember visiting Dr Reid, you remember going to Dr Chowdary, you remember being prescribed and taking medication but you say you had forgotten that you’d suffered similar symptoms, injury or illness to what you’re then claiming in your claim form, is that the effect of your evidence?
MR BOX: No. In the four weeks that I spent filling out my claim form I did not correlate the previous circumstances with these circumstances so inadvertently and I accept that and I accept my responsibility for that; however, I did try to rectify it. As I said to Mr Wallace, I should’ve just cancelled that claim and put a new claim in.

The Applicant’s insistence that he was unaware of his prior depressive condition when he completed the claim form is implausible. As the exchange between the Applicant and the Tribunal set out above shows, the Applicant’s recollection was highly selective. He admitted that he recalled all of the surrounding circumstances, including seeking specialist medical advice, but could not correlate his past depressive illness with the condition he was then claiming.
Moreover, the Applicant’s explanation is ambiguous. On one hand he suggests that he was never told of the diagnosis by Dr Reid or Dr Chowdary. This explanation not only contradicts the report of Dr Chowdary in which he states that, I discussed my impression with the patient and started him on Sertraline,[18] but it also stretches credulity to infer that Dr Reid would refer the Applicant to Dr Chowdary without explaining the reason for doing so. On the other hand, the Applicant states that he was reminded by Dr Reid of her diagnosis when he saw her in November 2017.
[18] Exhibit R4.
The Respondent has pointed out that there is nothing in Dr Reid’s clinical notes[19] to indicate that she raised the Applicant’s claim form or his past depression when she consulted with him in November 2017. The Tribunal gives little weight to these notes as
[19] T5.1.
[20] In assessing the weight to be given to Dr Reid’s notes the Tribunal did not have regard to the written record of a telephone message purportedly left with the Respondent’s solicitors by Dr Reid and exhibited as Exhibit R3. The record was not tendered through a witness and there was no opportunity for Dr Reid to be questioned about the message.
Dr Reid was not called to give evidence,[20] but to the extent that they have some weight it is against the Applicant.
On balance the Tribunal is not reasonably satisfied that the Applicant’s failure to acknowledge his previous depressive illness on the claim form was because he was unaware of it at the time he completed the form.
The Applicant claims that he tried to rectify the error on the form directly with the Allianz case manager once he became aware of it.
The only evidence produced by the Applicant to corroborate this assertion was an extract from his mobile phone records[21] which shows that a call was made to a Sydney number (conceded by the Respondent to be that of the Allianz Claims Manager) at 10.33 am on 13 November (the year does not appear on the extract). The duration of the call was one minute.
[21] Exhibit A4.
The Applicant did not provide a proper record of the content of the message beyond a general statement that he called to try to rectify the situation.[22] He conceded that he never received a response to the telephone message. He admitted that he did not follow up the message, nor did he attempt to correct the false statement on the form in any other way.
[22] Transcript at page 18.08.
The issue of the false statement was only addressed by the Applicant after it was raised by the Respondent in its Statement of Facts Issues and Contentions. He did not do so when the matter was subject to internal review in February 2018. In addition, he produced the phone record at the hearing without prior notice to the Respondent, denying it the opportunity to investigate the matter properly with Allianz before responding.
The Tribunal is not satisfied that the Applicant’s attempt to rectify the situation regarding his false statement is evidence that he had made a genuine mistake on the form. Rather, the Tribunal is satisfied that the Applicant made no genuine attempt to correct the false statement and he raised the issue of the telephone message in an attempt to excuse his falsity in the face of the Respondent’s submissions under s.7(7) of the Act. The Tribunal is satisfied that the Applicant’s assertions regarding the telephone message add weight to the conclusion that his false statement was made intentionally.
In Finnian and Comcare (Compensation)[23], the Tribunal emphasised that s.7(7) of the Act requires clear and cogent evidence that the representation was wilfully false. A representation will be wilfully false only if there is evidence that the representation was made without any belief that it was true. There is a high factual hurdle to the establishment if a finding is to be made that an applicant has made a wilful and false representation.[24] Deputy President Sosso observed in Hennessey-Milne and Comcare[25]:
There is a significant difference between incorrect statements, omissions or even a failure to be proactively helpful, and the making of a deliberately false statement with the knowledge of its falsity and with the intention to gain from that falsehood.
[23] [2019] AATA 10 at [108] citing the unreported decision in FWZW and Comcare.
[24] Hennessey-Milne and Comcare [2018] AATA 4453 at [260].
[25] Supra at [261].
In this case the Applicant’s explanation for making what he has admitted was a false statement on his claim form lacks credibility. His claim that his medical condition contributed to the making of the false statement is not born out by the evidence. His assertion that the statement was just a case of ticking the wrong box is factually incorrect since the representation involved him making a positive statement and not merely ticking a box. His claim that he was unaware of his previous depressive illness when he completed the claim form is implausible and subject to inherent contradictions. His purported effort to rectify the information on the claim form is disingenuous and adds weight to the conclusion that his false representation was made intentionally and not as he says, as an innocent mistake.
Accordingly, having regard to the evidence as a whole, the Tribunal is satisfied that the Applicant made a wilful and false representation on his claim form and as a consequence s.7(7) of the Act operates to deem his ailment not to be an injury for the purposes of the Act. For this reason the decision under review is affirmed.
Having determined the matter on this basis it is not necessary for the Tribunal to determine the application of the exclusion in s.5A(1).

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Member R West

.............[sgd]...........................................................
Associate
Dated: 26 November 2019

Date(s) of hearing: 19 - 20 September 2019

Applicant: In person

Counsel for the Respondent: Mr John Wallace

Solicitors for the Respondent: Ms Lucinda Hope, Comcare

Date(s) of hearing:	19 - 20 September 2019
Applicant:	In person
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Ms Lucinda Hope, Comcare