JXTZ and Comcare (Compensation) - [2017] AATA 880

JXTZ and Comcare (Compensation) [2017] AATA 880 (16 June 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2643
Re:JXTZ
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:16 June 2017
Place:Canberra

The decision under review is set aside. The Applicant’s claim is not excluded by operation of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988.
The matter is remitted to Comcare.
.............................[sgd]...........................................
Mr S. Webb, Member
COMPENSATION – psychological injury claim – acceptance of liability overturned on reconsideration – claim excluded if ‘wilful and false misrepresentation’ about not having previously suffered the ‘disease’ under claim – issues of credit – pre-employment health assessment by medical practitioner – divergent accounts of what occurred - meaning of ‘wilful and false misrepresentation’ - evidence not sufficient to positively establish that a wilful and false misrepresentation was made – decision set aside
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 7, 14, 67
Bater v Bater [1950] 2 All ER 458
Briginshaw v Briginshaw (1938) 60 CLR 336
Comcare Australia v Porter (1996) 70 FCR 139
Jones v Dunkel (1959) 101 CLR 298
National Australia Bank v Georgoulas (2013) 217 FCR 382
Seltsam Pty Ltd v McGuiness and Anor (2000) 49 NSWLR 262
REASONS FOR DECISION
Mr S. Webb, Member
16 June 2017

JXTZ claimed compensation for a psychological injury in the context of her employment as a Registered Nurse by ACT Health. Comcare determined to accept the claim. On reconsideration, however, Comcare overturned its primary determination and rejected the claim. JXTZ applied for review.
Much is agreed by the parties. There is no dispute that JXTZ suffered an ‘ailment’ in the form of a major depressive episode to which her employment contributed to a significant degree. This, it is agreed, is a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the Act). It is also agreed that the ‘disease’ is not excluded from the meaning of ‘injury’ for the purposes of s 5A on reasonable administrative action grounds.
These matters of agreement are consistent with the present materials, and they can be accepted as correct.
The central issue remaining in dispute, on which the success of JXTZ’s compensation claim turns, is whether the exclusion in s 7(7) is made out. That section is in the following terms –
(7) 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.
Even though the parties are in agreement that the ‘disease’ under claim is the same as the disease JXTZ suffered previously in or about 1994, I note that the evidence is capable of supporting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JXTZ and Comcare (Compensation)

Details

AGLC: JXTZ and Comcare (Compensation) [2017] AATA 880
Case: [2017] AATA 880
Decision Date: 16 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by JXTZ against a decision by Comcare. The dispute revolved around whether JXTZ's claim for compensation was excluded by operation of section 7(7) of the relevant Act. The decision was made by Mr S. Webb, a Member of the tribunal.

The primary legal issue before the Member was to determine whether the exclusion stipulated in section 7(7) of the Act was engaged in relation to JXTZ's claim. This required an interpretation of the scope and application of that specific legislative provision.

The Member reasoned that the section 7(7) exclusion was not engaged. While the specific reasoning is not detailed in the provided text, the conclusion indicates that the Member found JXTZ's claim did not fall within the circumstances contemplated by that exclusion. Consequently, the decision under review was set aside, and JXTZ's claim was found not to be excluded. The matter was remitted to Comcare for further consideration. The Member also indicated a proposal to order Comcare to pay JXTZ's reasonable costs, subject to submissions from the parties within 14 days.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, I am compelled to conclude that the s 7(7) exclusion is not engaged.Decision The decision under review must be set aside. JXTZ’s claim is not excluded by operation of s 7(7) of the Act. The matter is remitted to Comcare. The parties have not been heard on the issue of costs. The parties have 14 days in which to file submissions addressing this issue. If no submissions are filed within that time, I propose to order Comcare to pay JXTZ’s reasonable costs of these proceedings as agreed or taxed.

Ratio Decidendi

Legal Principle Established

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