Lockwood and Comcare (Compensation)

[2017] AATA 159

Lockwood and Comcare (Compensation) [2017] AATA 159 (10 February 2017)

Division:GENERAL DIVISION

File Numbers:         2014/3445, 2015/5689 and 2015/5692

Bryan Lockwood

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr James Popple, Senior Member

Date:10 February 2017

Place:Canberra

1.Comcare’s decision on 26 June 2014 is set aside and, in substitution, the following decision is made:

The applicant is not entitled to compensation for permanent impairment or non-economic loss in respect of his psychological condition.

2.Comcare’s decision on 8 October 2015 is affirmed.

.....................[sgd]...................................................

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Applicant made representation in compensation claim form that he had never previously suffered similar symptoms in the context of disease for 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.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 4A(1), 5(7), 5A, 5B, 7(7), 14

CASES

Comcare Australia v Porter (1996) 70 FCR 139

National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382

REASONS FOR DECISION

Dr James Popple, Senior Member

10 February 2017

Summary

1. 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.

2. 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

3. Mr Bryan Lockwood started working for ACTION as a bus driver on 23 March 2009.

   Applications 2015/5689 and 2015/5692

4. 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.

5. 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.

6. 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

7. On 21 March 2014, Mr Lockwood made a claim for compensation for permanent impairment for a psychological condition.

8. 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).

9. 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.

10. On 7 July 2014, Mr Lockwood applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

11. 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

12. 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

13. The issues in this review are:

    ·Did Mr Lockwood suffer:

    oa disease that was contributed to, to a significant degree, by his employment; and/or

    oan 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

14. 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.

15. 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.

16. 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?

17. Comcare says that Mr Lockwood made wilful and false representations that he had not previously suffered from the disease for which he claims compensation. Comcare also says that Mr Lockwood made those representations in connection with his employment by ACTION. Accordingly, Comcare says, s 7(7) of the SRC Act applies and Mr Lockwood’s disease is not an injury for the purposes of the SRC Act.

    Mr Lockwood’s medical history

18. I make the findings set out in [19]–[33] and [35]–[39] below, on the balance of probabilities.  These findings are based on the medical records before me.  These findings are generally not contested.

19. On 5 July 2004, Mr Lockwood attended Canberra Hospital.  He complained of chest pain.  The hospital’s notes say that he reported having experienced 40 minutes of pain that morning, including “tingling in L [left] arm from shoulder to hand”.

20. On 25 August 2006, Dr Andrei Cheng, a general practitioner (GP), wrote a referral letter.  The letter describes Mr Lockwood as suffering from “L [left] ulnar nerve parasthesia [sic: paraesthesia], worsening over 4 months”.

21. On 24 June 2008, Mr Lockwood attended Calvary Hospital in Canberra.  He complained of having had several episodes of migraine over the preceding three weeks.  The hospital’s notes include the following: “During migraines, reports sharp, shooting pain up back of neck—L [left] side, deep, non-tender to touch”.

22. On 15 July 2008, Dr Silvio Demilio, a GP, wrote a referral letter.  The letter describes Mr Lockwood as having “a 2 month history of daily severe headaches, associated with severe neck pain”.

23. On or soon after 13 May 2010, Mr Lockwood applied to renew his public vehicle licence.  Holders of such licences, who are less than 70 years old, are required to undergo an annual examination by their doctor.  On 13 May 2010, Mr Lockwood completed a form which was included with his application.  Some of the questions on that form were prefaced with the question “[h]ave you ever had, or been told by a doctor that you had any of the following …”  Mr Lockwood ticked the box marked “no” in relation to “[h]ead injury, spinal injury” and “[n]eck, back or limb disorders”.  Mr Lockwood’s GP, Dr Andrew Hadjitofi, examined him on 13 May 2010.  Dr Hadjitofi ticked boxes on the form (also included with Mr Lockwood’s licence application) indicating that Mr Lockwood’s cervical spine rotation and back movement were normal, and that the appearance and joint movements of his limbs were normal.  He stated that Mr Lockwood met the relevant medical criteria for an unconditional licence.

24. Mr Lockwood suffered a myocardial infarction and, on 23 July 2010, he underwent surgery, which involved the insertion of three stents.

25. On 19 August 2010, Mr Lockwood saw Dr Hadjitofi.  He noted that test results indicated that Mr Lockwood had “mild spopnydlysis [sic: spondylosis] on thoraic [sic: thoracic] spine”.

26. On 28 August 2010, Mr Lockwood was admitted to Canberra Hospital.  The hospital’s notes for 29 August refer to his “other medical conditions” as including “osteoporosis of upper back”.  Those notes continue:

    He has … recent medical illnesses including a myocardial infarction, and debilitating musculoskeletal conditions causing chronic pain and disability.

27. On 20 September 2010, Mr Lockwood saw Dr Hadjitofi again.  Dr Hadjitofi noted that Mr Lockwood was experiencing tenderness in a few places, including “T [presumably thoracic] spine and c [presumably cervical] spine and L [left] shoulder”.

28. On 29 September 2010, Mr Lockwood saw Dr Hadjitofi again.  Dr Hadjitofi noted that Mr Lockwood was experiencing “some tibnlging [sic: tingling] in L [left] shoulder weakness”.

29. On 25 November 2010, Mr Lockwood saw Dr Syeda Tausif.  He presented with severe back pain.

30. On 10 December 2010, Mr Lockwood saw Dr Tausif again.  She noted “[b]ilateral shoulder, neck swollen. Tender. Deformity present. Movement restricted.”  She also wrote a referral letter to Associate Professor Kathiravelpillai Nadana Chandran, a neurosurgeon.  The letter described Mr Lockwood as having presented with “severe back pain and neck pain”.  She said that he suffered from (amongst other things) an “L4/5 posterior annulus tear” and “L5 nerve root compression”.

31. Dr Tausif also referred Mr Lockwood for a computed tomography (CT) scan of his cervical spine, which happened that day.  The CT scan report noted that Mr Lockwood was suffering severe pain in his neck, and that:

    At the C5/6 level there is slight anterior endplate spurring and there is a mild posterior annular disc bulge with slight left paracentral predominance.  This narrows the canal and perhaps minimally impinges upon the cord.  …

    At the C6/7 level there is a moderate posterior discovertebral bulge narrowing the canal and I suspect compressing the cord.

    The radiologist (whose name is not clear from the papers before me) also recommended that Mr Lockwood have a magnetic resonance imaging (MRI) scan.

32. On 13 December 2010, Mr Lockwood saw Dr Tausif again.  She noted that he was experiencing back and neck pain, and that his movement was restricted.

33. On 28 February 2011, Associate Professor Nadana Chandran wrote to Dr Tausif:

    [Mr Lockwood] claims he injured his back at work initially 10 years ago when he walked into a cool room and picked up a box.

    The pain was in the back and he had chiropractic treatment and was off work for 2 years.

    He then had back pain on and off requiring further treatment.

    Some time later he then developed neck pain radiating into the left shoulder and down to the interscapular region.

    He had physiotherapy 6 months ago.

    …

    My examination showed no deficits in the upper limbs and neck movements showed restriction of rotation and extension.  There was tenderness over the midline in the lower cervical region all the way down to about T7 area.

    …

    His cervical spine X-rays have shown bulging disc at 6/7 in particular and to a lesser extent at 5/6.

    His neck symptoms are likely to be coming from one or both discs.

    …

    I feel that at this stage we should try a CT guided injection at C6/7 level in the neck on the left and bilaterally at L4/5 and see what happens.

    The injection could be repeated through you if in a few weeks the symptoms have returned after first improving.

    Beyond this we are looking at surgery in the neck as a fusion as well as in the lumbar spine.

    He has not sorted out his workers compensation matter and not reported it to anyone so far and given the long duration there are bound to be problems with his claim.

34. By this stage, Mr Lockwood had been working for ACTION for less than two years.  Associate Professor Nadana Chandran’s reference to a possible workers’ compensation claim presumably related to Mr Lockwood’s earlier employment.

35. On 13 May 2011, Mr Lockwood saw Dr Tausif.  Her notes indicate that Mr Lockwood was experiencing “pain in the neck and back” which “gets better and comes back again”.  The notes also indicate that his neck was tender and swollen, and that his movement was restricted.

36. On 16 May 2011, Mr Lockwood saw Dr Tausif again.  Her notes indicate that Mr Lockwood presented with neck pain, and that (again) his neck was tender and swollen, and his movement was restricted.

37. On or soon after 24 May 2011, Mr Lockwood applied again to renew his public vehicle licence.  On 23 May 2011, Mr Lockwood completed the form which was included with his application.  As he did in May 2010,[2] he ticked the boxes marked “no” to indicate that he had never had, or been told by a doctor that he had, a “[h]ead injury, spinal injury” or “[n]eck, back or limb disorders”.  He also ticked the box indicating that he had had heart disease, but ticked the boxes indicating that he had never had chest pain or angina, and had never had “[a]ny condition requiring heart surgery”.  Dr Tausif examined Mr Lockwood on 24 May 2011.  She ticked boxes on the form indicating that Mr Lockwood’s cervical spine rotation and back movement were normal, and that the appearance and joint movements of his limbs were normal.  She stated that Mr Lockwood met the relevant medical criteria for an unconditional licence.

    [2] See [23] above.

38. On 5 August 2011, Mr Lockwood ceased working for ACTION.

39. On 10 August 2011, Mr Lockwood made a claim for compensation.  Questions on the claim form, and his handwritten answers, included the following:

    ·“For what injury or illness are you claiming workers’ compensation?”  “Neck – shoulder”.

    ·“What part(s) of your body has been most affected by your injury or illness?”  “Neck – shoulder (LHS) C7C8 cervical canal stenosis in neck to be confirmed”.

    ·“When and where did you first seek medical treatment for your injury or illness?”  5 August 2011, from Dr Tausif.

    ·“Have you ever had a similar symptom, injury or illness, work-related or otherwise?”  Ticked box marked “no”.

    ·“When were you injured or when did you first notice you were ill?”  4 August 2011 at 9:30 am.

    ·“What were you doing at the time you were injured or contracted your illness?”  “Driving bus”.

    ·“What action, exposure or event happened to cause your injury or illness?”  “Repetitive use whilst driving bus”.

    Mr Lockwood’s representations

40. Comcare points out that:

    ·On 23 May 2011, on the form that he included with his application to renew his public vehicle licence, Mr Lockwood denied ever having (or being told by a doctor that he had) a neck disorder (see [37] above). I will call this the first representation.

    ·On 10 August 2011, on his compensation claim form, Mr Lockwood claimed to have suffered an injury to his neck and shoulder on 4 August 2011, and denied having ever had a similar symptom, injury or illness, work-related or otherwise (see [39]). I will call this the second representation.

41. Mr Lockwood’s 10 August 2011 compensation claim was about his neck and left shoulder ailment, or an aggravation of that ailment.  It was (effectively) a claim about a cervical spine disease.  His first representation was that he had not previously suffered a neck disorder; the second representation was that he had not previously suffered similar symptoms to those the subject of his claim.  Both were effectively representations that he had not previously suffered from a cervical spine disease.

42. Comcare says that both the first and second representations were wilful and false:

    When [Mr Lockwood] claimed compensation for an injury to the cervical spine which he first noticed on 4 August 2011, he was actually claiming compensation for a cervical spine condition which had been symptomatic since before he commenced employment as a bus driver.

    The evidence … demonstrates that [Mr Lockwood] suffered pre-existing cervical spine disease, and that he was aware of cervical spine disease when he represented to ACTION that he did not suffer cervical spine disease, and when he represented to Comcare that he did not have cervical spine disease prior to 4 August 2011.  His representations were therefore false.

43. Both of Mr Lockwood’s representations are inconsistent with his medical history between June 2008 and May 2011.[3]  The first representation is false because Mr Lockwood had had—and had been told by doctors that he had—a neck disorder before 23 May 2011.  The second representation is false because there are numerous examples of Mr Lockwood having neck and shoulder symptoms, similar to those that he cited in his compensation claim, before 4 August 2011.

    [3] See [21]–[36] above.

44. These false representations were made for purposes connected with Mr Lockwood’s employment with ACTION.  Holding a public vehicle licence was a requirement of his job driving buses with ACTION, and his compensation claim asserted that he had been injured in the course of his employment with ACTION.

1. However, for s 7(7) of the SRC Act to apply to Mr Lockwood’s representations, they must have been more than just false and made for purposes connected with employment—they must also have been wilful. As the Federal Court explained in Comcare Australia v Porter, that means that “the representation [must] be made without any belief that it is true”.[4]  And there is no requirement that that belief be based on reasonable grounds.[5]

   [4]     Comcare Australia v Porter (1996) 70 FCR 139 at 150 per Jenkinson J.

   [5]     Comcare Australia v Porter (1996) 70 FCR 139 at 150 per Jenkinson J.

2. Comcare says:

   When he completed his medical questionnaire in 2011, for the purposes of renewing his commercial driver’s licence, [Mr Lockwood] denied suffering a condition requiring heart surgery, despite having undergone heart surgery less than a year earlier and despite undergoing treatment for a continuing heart condition.  He also denied the existence of a condition affecting the neck, despite having been diagnosed with significant cervical spinal disease less than six months earlier …

   It can be reasonably inferred that [Mr Lockwood] knowingly lied to his employer about the existence of his heart condition and his cervical spine disease because he suspected that, if his employer knew about those conditions, his employment as a bus driver might be jeopardised.

   It can be reasonably inferred that [Mr Lockwood] knowingly lied to Comcare about the existence of pre-existing cervical spine disease because he suspected that his claim for compensation would not be successful if the true extent of his condition were known by Comcare.

   [Mr Lockwood’s] representations were not the result of negligence or mistake.  Rather, he made a deliberate choice to conceal the existence of his pre-existing cervical spine disease.  [Mr Lockwood’s] intention was to mislead, so his representations were wilful.

3. Whether Mr Lockwood lied when he denied suffering a condition requiring heart surgery (at the same time that he made the first representation, which was about his neck) is not relevant to this review, except to the extent that that denial provides background to the first representation.  Mr Lockwood says that he did not lie about his heart condition because he thought that the insertion of stents did not amount to “heart surgery”.  I accept this: the stents were inserted through his groin, and Mr Lockwood may not have thought of the process as heart surgery.  And I note that (on the same form that he made his first representation) he indicated that he had had heart disease.[6]  However, I note that he also ticked the box indicating that he had never had chest pain, which was false.[7]

   [6] See [37] above.

   [7] See [37] and [19] above.

4. At the hearing, Mr Lockwood said that he did not think—and still does not think—that he suffered a neck “disorder” before May 2011.  He said that he understood—and understands—a disorder to mean an incapacity: “that you can’t function, that you can’t use that part of the body at all”.  When he applied to renew his public vehicle licence, he says, his neck condition did not affect his driving, so it did not amount to a disorder.  His first representation, he says, was truthful.

5. At the hearing, counsel for Mr Lockwood said that his client “both presented as and is a relatively simple individual”.  It follows, he said, that I should not find that “a tick in a document is both wilful and false”.  He also points out that Dr Tausif did not disagree with any of Mr Lockwood’s answers on the forms that accompanied his licence application.  Comcare says that Mr Lockwood is being disingenuous.

6. I think that it is possible that Mr Lockwood’s first representation was not wilful: that he honestly did not think that his neck condition was a disorder.  But I do not need to make a finding about the first representation because of my views about the second representation.

7. I think that Mr Lockwood’s second representation was wilfully false.  I have already explained that the second representation was inconsistent with his medical history.[8]  That history included quite significant neck and shoulder symptoms.  His neck pain was variously described as “sharp”, “shooting”, and “severe”;[9] he experienced “tenderness”, “weakness”, “swelling” and “pain” in his left shoulder;[10] both his neck and shoulder were swollen;[11] and he had restricted movement.[12]  Given the severity of these symptoms, and the extended period during which he experienced them, Mr Lockwood must have had them in mind when he made the second representation.

   [8] See [43] above.

   [9] See [21], [22], [30] and [31] above.

   [10] See [27], [28], [30] and [33] above. I do not think that a “tingling” in Mr Lockwood’s left shoulder (5 July 2004 and 29 September 2010: see [19] and [28]) or left ulnar nerve paraesthesia (25 August 2006: [20]) are symptoms similar to those he had on and after 4 August 2011. I also note that Mr Lockwood says that the reference to left ulnar nerve paraesthesia concerned his elbow and not his shoulder.

   [11] See [30] above.

   [12] See [30], [32], [33], [35] and [36] above.

8. Mr Lockwood maintains that his second representation was truthful.  At the hearing, he conceded that he had received treatment for his neck, but he says that he saw that neck condition as being “totally different” to the one that he made a claim about.  He says that the neck pain he experienced before August 2011 was “totally different” to the neck pain he experienced then: in a different location and of a different severity.

9. Comcare points out that Mr Lockwood had an operation on 20 October 2011: a “C5/6 and C6/7 anterior discectomy, bilateral C6 and C7 rhizolysis, C5/6 and C6/7 anterior interbody fusion and fixation”.[13]  Comcare says that that operation was the same operation that Associate Professor Nadana Chandran suggested that Mr Lockwood undergo (if CT-guided injections proved ineffective) in his letter of 28 February 2011.[14] Comcare says that this strongly suggests that the Mr Lockwood was suffering from the same neck symptoms when he had the operation as he had done when he saw Associate Professor Nadana Chandran. Mr Lockwood denies this, and says that Associate Professor Nadana Chandran’s advice related mostly to his lower back. That advice refers to Mr Lockwood presenting with “a number of problems in his spine”, including in his lower back. However, it also refers (especially in the parts that I have extracted at [33] above) to Mr Lockwood’s neck and left shoulder. And it seems clear to me that Associate Professor Nadana Chandran’s surgical suggestion was intended to address (amongst other things) Mr Lockwood’s neck and shoulder symptoms.

   [13]    Operation report by Dr Justin Pik, neurosurgeon, 25 October 2011.

   [14] See [33] above.

10. Mr Lockwood’s counsel says that his client would not have had a full understanding of his condition before and after 4 August.  That may be so.  But, he experienced the symptoms of his condition.  Mr Lockwood says that that the symptoms he experienced on and after 4 August 2011 were different to those that he had previously experienced.  There may have been some difference between those symptoms, but they were similar symptoms: pain, swelling and restricted movement in his neck and shoulder.  His second representation was that he had never had similar symptoms before.  I think it is likely that he knew that that representation was false.

11. As the Federal Court explained in National Australia Bank Ltd v Georgoulas, s 7(7) does not apply if “the representation was false because the employee had suffered from similar symptoms in the context of a different disease”: the employee must have “previously suffered from the same disease or a disease that was substantially similar”.[15] I find, on the balance of probabilities, that Mr Lockwood suffered from a cervical spine disease for at least several months before he made his claim for compensation, and that this was the same disease to which his claim related, or a substantially similar disease. In making that finding, I have had regard to Mr Lockwood’s medical history before he made his claim,[16] and to the following:

    ·Mr Lockwood had an MRI scan of his cervical spine on 11 August 2011 (the day after he made his claim), which showed (amongst other things) “posterior disc bulging at C2/3 to C7/T1”, “mild effacement of the cord, most prominent at C6/7” and “bony neuroforaminal narrowing potentially compromis[ing] … both C5 nerve roots, [the] right C6 nerve root and both C7 nerve roots”.[17]

    ·The operation that Mr Lockwood had on 20 October 2011 (more than two months after he made his claim), was surgery on his cervical spine and included decompression and fusion of his C5/6 and C6/7 discs.[18]  It was the same—or very similar—surgery to the surgery that Associate Professor Nadana Chandran suggested in 28 February 2011 (more than five months before he made his claim).[19]

    I note that this finding is not about whether Mr Lockwood’s cervical spine disease was an ailment, or an aggravation of an ailment, contributed to, to a significant degree, by his employment with ACTION.  This finding is only that he had similar symptoms before and after 4 August 2011, in the context of the same (or a substantially similar) disease.

    [15]    National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382 at 399 [74] per Perry J.

    [16] See [19]–[37] above.

    [17]    Report of Dr Malcolm Thomson, radiologist, 12 August 2011.

    [18] See [53] above.

    [19] See [33] above.

12. In summary:

    ·Mr Lockwood’s second representation was a representation that he had not previously suffered from similar symptoms in the context of the same disease for which he claims compensation: a cervical spine disease.

    ·It was false, because he had previously suffered from similar symptoms in the context of the same disease.

    ·It was made for purposes connected with his employment with ACTION, because his compensation claim asserted that he had been injured in the course of that employment.

    ·I find, on the balance of probabilities, that the second representation was wilfully false.

    It follows that, because of s 7(7) of the SRC Act, Mr Lockwood’s cervical spine disease is not an injury for the purposes of that Act.

    Other issues

13. This review arises from Mr Lockwood’s claims for compensation for an injury to his neck and left shoulder, and for a secondary psychological condition.[20] Mr Lockwood concedes that, if he did not suffer a physical injury for the purposes of the Act (because of s 7(7) of the SRC Act), he could not have suffered a secondary psychological injury. Accordingly, Mr Lockwood is not entitled to compensation for permanent impairment or non-economic loss in respect of his psychological condition.

    [20] See [4]–[11] above.

14. Because of my conclusion that Mr Lockwood made a wilful and false representation to which s 7(7) of the SRC Act applies, I do not need to consider the other issues that arise in this review: whether he suffered a disease that was contributed to, to a significant degree, by his employment; whether he suffered an injury arising out of, or in the course of, his employment; and whether he still suffers from the effects of that disease or injury.

    Conclusion

15. When he made his claim on 10 August 2011, Mr Lockwood represented that he had not previously suffered from the disease for which he claims compensation: a cervical spine disease. That representation (the second representation) was made for purposes connected with his employment with ACTION, and was wilfully false. So, Mr Lockwood’s cervical spine disease is not an injury for the purposes of the SRC Act (s 7(7)). Comcare is not liable to pay him compensation for his cervical spine disease or for any secondary psychological injury.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

....................[sgd]....................................................

Associate

Dated: 10 February 2017

Dates of hearing:	7–10 November 2016
Date final submissions received:	25 January 2017
Counsel for the Applicant:	Mr Ray Livingston
Solicitors for the Applicant:	Lander and Co, Solicitors
Counsel for the Respondent:	Mr Michael Snell
Solicitors for the Respondent:	Claims and Liability Management Division, Comcare