COMPENSATION — Applicant made representation in compensation claim form that he had never previously suffered similar symptoms in the context of diseasefor which he claimed compensation — whether Applicant’s representation was made for purposes connected with his employment — whether Applicant’s representation was wilfully false — whether s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 applied to Applicant’s representation, so that his disease was not an injury for the purposes of that Act — decision under review affirmed — decision under review set aside and substituted.
National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382
REASONS FOR DECISION
Dr James Popple, Senior Member
10 February 2017
Summary
The applicant had a history of problems with his neck from June 2008 and with his left shoulder from August 2010. From March 2009, he drove buses for the Australian Capital Territory Internal Omnibus Network (ACTION). On 10 August 2011, he made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). His claim was about his neck and left shoulder ailment, or an aggravation of that ailment—effectively, a claim about a cervical spine disease. In the claim form, he said that he had first become aware of his condition on 4 August 2011. He also said that he had never had a similar symptom, injury or illness, work-related or otherwise—that is, that he had never previously suffered from cervical spine disease.
The applicant’s representation that he had never previously suffered from cervical spine disease was made for purposes connected with his employment, and was wilfully false. So, because of s 7(7) of the SRC Act, that disease is not an injury for the purposes of that Act. Comcare is not liable to pay the applicant compensation.
Background
Mr Bryan Lockwood started working for ACTION as a bus driver on 23 March 2009.
Applications 2015/5689 and 2015/5692
On 10 August 2011, Mr Lockwood made a claim for compensation for an injury to his neck and left shoulder. On 30 September 2011, Comcare accepted liability to pay Mr Lockwood compensation for “aggravation of spinal stenosis in cervical region (left)”. On 27 March 2013, Comcare accepted liability for a secondary depressive disorder.
On 8 October 2015, Comcare made an own-motion reconsideration of those decisions. Comcare decided that Mr Lockwood had made wilful…
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.
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AGLC
Lockwood and Comcare (Compensation) [2017] AATA 159
Case
[2017] AATA 159
Decision Date
CaseChat Overview and Summary
This matter concerned an application by Mr Bryan Lockwood for review of decisions made by Comcare. Comcare had initially accepted liability for Mr Lockwood's aggravation of spinal stenosis in the cervical region and a secondary depressive disorder. However, Comcare later reconsidered these decisions, determining that Mr Lockwood had made wilful and false representations regarding his prior symptoms, and therefore, pursuant to section 7(7) of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), these conditions were not to be taken as injuries for the purposes of the Act. Mr Lockwood also sought review of a decision relating to compensation for permanent impairment and non-economic loss for a psychological condition.
The primary legal issues before the Tribunal were whether Mr Lockwood had suffered a disease contributed to by his employment, or an injury arising out of or in the course of his employment, and if so, whether he still suffered from its effects and was entitled to compensation. Crucially, the Tribunal was required to determine whether Mr Lockwood had made wilful and false representations to which section 7(7) of the SRC Act applied, thereby precluding his conditions from being considered injuries under the Act.
The Tribunal found that Mr Lockwood's representation that he had never previously suffered from cervical spine disease was made for purposes connected with his employment and was wilfully false. Applying section 7(7) of the SRC Act, the Tribunal concluded that this disease was not an injury for the purposes of the Act. Consequently, Comcare was not liable to pay Mr Lockwood compensation for this condition.
The Tribunal set aside Comcare's earlier decisions to accept liability for the aggravation of spinal stenosis and the secondary depressive disorder, and substituted a decision that Comcare was not liable to pay compensation for these conditions. The Tribunal also found that Mr Lockwood did not sustain a compensable psychological condition and, if he did, he no longer suffered from its effects.
Orders
Orders of the court
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Background
Background to the litigation
The applicant’s representation that he had never previously suffered from cervical spine disease was made for purposes connected with his employment, and was wilfully false. So, because of s 7(7) of the SRC Act, that disease is not an injury for the purposes of that Act. Comcare is not liable to pay the applicant compensation.Background Mr Bryan Lockwood started working for ACTION as a bus driver on 23 March 2009.Applications 2015/5689 and 2015/5692 On 10 August 2011, Mr Lockwood made a claim for compensation for an injury to his neck and left shoulder. On 30 September 2011, Comcare accepted liability to pay Mr Lockwood compensation for “aggravation of spinal stenosis in cervical region (left)”. On 27 March 2013, Comcare accepted liability for a secondary depressive disorder. On 8 October 2015, Comcare made an own-motion reconsideration of those decisions. Comcare decided that Mr Lockwood had made wilful and false representations to ACTION and to Comcare and so, because of s 7(7) of the SRC Act, it was not liable to pay compensation for either condition. On 31 October 2015, Mr Lockwood applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Application 2014/3445 On 21 March 2014, Mr Lockwood made a claim for compensation for permanent impairment for a psychological condition. On 10 April 2014, Comcare decided that Mr Lockwood’s impairment was permanent, and that the degree of his permanent impairment was 10%. Comcare also decided that he was entitled to a specified amount of compensation for permanent impairment (under s 24 of the SRC Act) and another specified amount of compensation for non-economic loss (under s 27). On 29 April 2014, Mr Lockwood requested a reconsideration of that part of Comcare’s determination relating to non-economic loss. On 26 June 2014, Comcare varied its determination. On 7 July 2014, Mr Lockwood applied to the Tribunal, under s 64 of the SRC Act, for review of that decision. In this Tribunal, Comcare now contends that Mr Lockwood did not sustain a compensable psychological condition and that, if he did, he no longer suffers from its effects.Decisions under review The decisions under review are Comcare’s decisions:·on 26 June 2014, varying its determination relating to non-economic loss; and·on 8 October 2015, rejecting liability for “aggravation of spinal stenosis in cervical region (left)” and a secondary depressive disorder.Issues The issues in this review are:·Did Mr Lockwood suffer:oa disease that was contributed to, to a significant degree, by his employment; and/oroan injury (a physical injury and/or a secondary psychological injury) arising out of, or in the course of, his employment?·If he did, does he still suffer from its effects?·If he does, is he entitled to compensation for permanent impairment and non-economic loss?·Did he make wilful and false representations to which s 7(7) of the SRC Act applies?Legislative framework Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Sections 5A and 5B of the SRC Act relevantly provide:5A Definition of injury(1)In this Act:injury means:(a) a disease suffered by an employee; or(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;…5B Definition of disease(1)In this Act:disease means:(a) an ailment suffered by an employee; or(b) an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.…(3)In this Act:significant degree means a degree that is substantially more than material.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In this Tribunal, Comcare now contends that Mr Lockwood did not sustain a compensable psychological condition and that, if he did, he no longer suffers from its effects.Decisions under review The decisions under review are Comcare’s decisions:·on 26 June 2014, varying its determination relating to non-economic loss; and·on 8 October 2015, rejecting liability for “aggravation of spinal stenosis in cervical region (left)” and a secondary depressive disorder.Issues The issues in this review are:·Did Mr Lockwood suffer:oa disease that was contributed to, to a significant degree, by his employment; and/oroan injury (a physical injury and/or a secondary psychological injury) arising out of, or in the course of, his employment?·If he did, does he still suffer from its effects?·If he does, is he entitled to compensation for permanent impairment and non-economic loss?·Did he make wilful and false representations to which s 7(7) of the SRC Act applies?Legislative framework Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Sections 5A and 5B of the SRC Act relevantly provide:5A Definition of injury(1)In this Act:injury means:(a) a disease suffered by an employee; or(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;…5B Definition of disease(1)In this Act:disease means:(a) an ailment suffered by an employee; or(b) an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.…(3)In this Act:significant degree means a degree that is substantially more than material. Section 24(1) provides that, where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of that injury. Section 27(1) provides that, where compensation is payable under s 24, Comcare is liable to pay additional compensation for any non-economic loss suffered by the employee as a result of that injury or impairment. Section 7(7) provides:7 Provisions relating to diseases…(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.ACTION is part of the Australian Capital Territory, which has been declared to be a Commonwealth authority for the purposes of the SRC Act, under s 4A(1) of that Act.[1] Section 5(7) of the SRC Act provides:5 Employees…(7)For the purposes of the application of this Act in relation to a person employed by a Commonwealth authority, references in this Act to the Commonwealth shall be read as references to that authority.So, the reference in s 7(7) to an employee making a wilful and false representation “for purposes connected with his or her employment … by the Commonwealth” includes such a representation made for purposes connected with an employee’s employment by ACTION.[1] Commonwealth, Special Gazette, No S 252, 1 July 1994.Did Mr Lockwood make wilful and false representations to which s 7(7) of the SRC Act applies?