Makin and Comcare

[2010] AATA 432

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 432

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1626

GENERAL ADMINISTRATIVE DIVISION		)
Re		Rosa Makin

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member A K Britton
Dr M E C Thorpe, Member

Date9 June 2010

PlaceSydney

Decision The decision under review is affirmed.

....................[SGD]....................

Senior Member

CATCHWORDS

WORKERS COMPENSATION – entitlements – psychological condition – preliminary question – wilful and false representation made in connection with employment that the employee did not suffer from the claimed condition – injury not an “injury” for the purposes of the Act.

Safety, Rehabilitation and Compensation Act 1988 (Cth) — s 7(7)

Comcare Australia v Porter (1996) 138 ALR 469

Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52

Smith and Comcare [2007] AATA 1796

REASONS FOR DECISION

9 June 2010 Senior Member A K Britton
Dr M E C Thorpe, Member            

1. These reasons address a preliminary issue raised by the Respondent, namely whether by the operation of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), the injury the subject of Mrs Rosa Makin’s claim for compensation is not to be taken as “an injury for the purpose of the Act”.

2. It is common ground that the subject injury is properly characterised as an injury in the nature of a disease for the purposes of s 5A(1)(a) of the SRC Act.

Background

3.      The background facts are not in issue.

4.      Mrs Makin was hospitalised for six weeks in 1992.  This followed an acute episode where she felt under great stress and experienced delusional and paranoid thoughts. 

5. In April 2008, Mrs Makin commenced employment with the Office of the Employment Advocate (OEA). Shortly after her commencement and at the request of her employer, she completed a Health Status Assessment which took the form of a questionnaire. At about the same time she also completed a pro forma statement at the request of the Public Sector Superannuation Scheme. The respondent contends that some of the answers given in both documents are captured by s 7(7). We will return to that issue.

6.      Seven months after starting at the OEA, Mrs Makin was again admitted to hospital suffering from acute psychological symptoms. She was absent from work for a period and returned to part-time employment in January the following year.

7. In April 2008, Mrs Makin was certified unfit for work on account of anxiety and depression. The following month, she lodged a claim for compensation in respect of “anxiety and depression”. On review, the decision to refuse liability under s 14 of the SRC Act was affirmed. That decision is the subject of Mrs Makin’s application to the AAT.

8.      The weight of evidence is that Mrs Makin now suffers from a Schizoaffective Disorder and had probably been suffering from that disorder, or a form of it, since the early 1990’s. Mrs Makin testified that she only came to learn of that diagnosis after reading the report of psychiatrist, Dr J Parmegani in 2009.  On her account, during one of her periods of hospitalisation she had asked a psychiatrist if she suffered from schizophrenia — which at the time she understood to involve having a “dual personality” — and was told she did not.  She testified that she was told that to qualify for the diagnosis the person had to be “out of it” for six months.  

The offending representations

9.      In the Health Status Assessment questionnaire (the questionnaire), Mrs Makin was asked “Do you have or have you ever had” 32 named conditions.  She answered “yes” to: “anxiety or stress reaction or depression” (Question 25) and “no” to “nervous or mental condition” (Question 24).

10.     In the Confidential Medical and Personal Statement completed at about the same time for membership of the Public Sector Superannuation Scheme, she answered no to the following questions:

In the LAST 5 YEARS have you had any medical advice or treatment for any of the following? If yes provide full details including nature and duration of illness…

16. Mental or nervous condition, anxiety state or any depression?

…

36. Do you have any health problems which are NOT mentioned in any other questions on this statement or which relate to your health MORE THAN FIVE YEARS AGO.?...

11.     In these proceedings, Mrs Makin admitted that she had knowingly made false declarations in both the Health Status assessment questionnaire and superannuation statement.

Section 7(7) of the SRC Act

12. Section 7(7) of the SRC Act provides:

(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.

13. Section 7(7) operates to disentitle a worker who might otherwise have an entitlement to compensation under the Act. It goes without saying that given what Jenkinson J described in Comcare Australia v Porter (1996) 138 ALR 469 as the “dire consequence of exclusion of eligibility for benefits otherwise available under the Act”, the provision must be strictly construed.

14.     The provision will apply to Mrs Makin if the following three elements are satisfied: 

1. She made a representation for purposes connected with her employment by the OEA;

2. She made a representation that she did not suffer, or had not suffered from “that disease”; and

3. The representation made was false and wilful.

(i) Health status assessment Questionnaire

15.     It is not in issue that the representations made by Mrs Makin in this assessment were given for purposes connected with her employment with the OEA.

16.     Nor is it in issue that Mrs Makin understood that by answering “no” to the question — “Do you have or have you ever had … a nervous or mental condition” — she gave what she believed to be an untruthful answer.  She testified that she had “mulled over” that question for some time, but believed that had she ticked “yes” she might not have qualified for employment. She said that a truthful answer would have been — “yes in certain circumstances”

17. The parties dispute whether the second element of s 7(7) is satisfied — that is, whether Mrs Makin made a representation that she did not suffer, or had not suffered from, “that disease”.

18. Before considering that question, it is necessary to consider the meaning of the term “disease” within s 7(7). The provision refers to “a disease suffered by an employee or an aggravation of such a disease” and “that disease”. From a reading of the provision it is plain that the latter is a reference to the former — “a disease suffered by an employee or an aggravation of such a disease”.

19.     Read in context, it is plain that the reference to “a disease suffered by an employee or an aggravation of such a disease” is not a reference to any disease but the disease the subject of the claim for compensation. Equally in our view, the word “disease” in the context of s 7(7) should not to be read down to be a reference to a disease as defined by the Act — i.e. “an ailment suffered by an employee or an aggravation of such an ailment ... that was contributed to, to a significant degree by the employee’s employment by the Commonwealth” (see Smith and Comcare [2007] AATA 1796 at [15]). If would be an absurd result if the disclosure obligation implicit in s 7(7) only applied to diseases which had been contributed to by the employee’s employment by the Commonwealth.

20.     It is contended for Mrs Makin that the representation must relate to the actual disease suffered by the employee and not a “class or category of disease”. She submits that support for that proposition can be found in the obiter comments of Madgwick J in Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52 at [55]:

The Tribunal dealt with the issue legally unexceptionably, in my opinion, as the factual issue it was. On such a view it is not necessary to deal with the question, not argued, whether in s 7(7) the concluding words "that disease" should be confined in their meaning to a reference to the actual disease suffered or aggravated – so that, here, the applicant might have had to show an actual representation that the employee had not previously suffered from "an adjustment disorder with depressed mood", the disease the Tribunal found her to have, rather than, as asserted by the applicant, that she had represented herself as not having had such generally described conditions as "a mental illness", "depression", "psychiatric history" or "psychiatric disturbance".

21.     Mrs Makin, it will be recalled, admitted in the questionnaire to having suffered from anxiety and depression.  While a formal diagnosis of a Schizoaffective Disorder was not made until five years later, she knew when she completed the questionnaire that anxiety and depression were not her only complaints. She was aware that she had experienced delusional and paranoid thoughts. Moreover, she was under the care of a psychiatrist at that time.

22. To be caught by s 7(7), it is necessary that the offending representation be that the person did not or had not suffered from “that disease”. It does not extend to all representations made by the employee about their health or indeed “that disease”. It does not, for example, extend to a representation about the severity of symptoms suffered or to the type of treatment received.

23.     Mrs Makin was truthful in revealing that she had suffered from “anxiety or stress reaction or depression”  The questionnaire is ambiguous in referring to a “nervous or mental condition” followed immediately by the reference to anxiety, stress and depression, implying that they are not, for the purposes of the form, “nervous or mental conditions” (whatever those terms might mean). 

24. The SRC Act is beneficial legislation and, according to the usual canons of statutory construction, ought be interpreted beneficially. In our view, the term “that disease” means, in s 7(7), the disease in respect of which compensation is claimed. Mrs Makin’s claim was in respect of anxiety, stress and depression. She had told the truth about that. Because of this, it is not clear whether her answer to the question about “nervous or mental condition” was wilfully false. That she did not disclose that she suffered from symptoms of what at that stage was an undiagnosed condition does not in our view constitute a relevant misrepresentation for the purpose of s 7(7).

25. It follows that her claim is not excluded by s 7(7) on account of the representation made in the Health Status Assessment Questionnaire. In the circumstances of this case, however, that is not determinative of the issue.

(ii) The superannuation statement 

26. The respondent contends that the offending representation made in the superannuation statement was made for purposes “connected with her employment” by the OEA. Mrs Makin disagrees. She asserts that the form was too remote from her employment to have any bearing on the operation of s 7(7) in her case. She relies on obiter dicta of Madgwick J in Secretary, Department of Employment and Workplace Relations v Comcare at [54] that “read literally, s 7(7) could operate so harshly against a claimant that it should not be applied liberally in favour of those resisting the claim.”

27.     It is unnecessary to engage with this comment because it is so broad as to be unhelpful in these circumstances.  In our view, Mrs Makin’s contention is incorrect. 

28.     There can be no doubt that the superannuation form related to and was connected with Mrs Makin’s employment.  Superannuation contributions are, by definition, savings made by persons in employment.  By the operation of the Superannuation Act 1994 (Cth), as an officer of the public service, Mrs Makin became a member of the Public Sector Superannuation Scheme. That Mrs Makin was requested to complete the statement by a body that was not her employer does not in our view bring it outside the scope of s 7(7). Nor is it relevant in our view that there is no evidence that the OEA had knowledge of, or acted on, the representations made in the statement. The representation was made “for purposes connected with her employment” and that connection in our view is neither remote nor tenuous.

29. It therefore follows that the provisions of s 7(7) are triggered by the representation made by Mrs Makin in the superannuation statement.

30. Mrs Makin’s answer to question 16 — that she had not received medical advice or treatment” for [a] “mental or nervous condition, anxiety or depression” — is arguably not a relevant representation for the purpose of s 7(7), as it relates only to treatment or associated medical advice. However, her failure to answer the second part of the question which required her to provide “full details including nature and duration of illness [mental or nervous condition, anxiety or depression] …” in our view constitutes a representation that “she did not, or had not previously suffered, from that disease”. Accordingly, the second element of s 7(7) is satisfied.

31.      The only issue that remains to be determined is whether the answer given was both false and wilful.

32.     In evidence, Mrs Makin admitted that the answer given to question 16 was false. In submissions it was argued that this answer was probably a mistake given that she had admitted to having suffered from anxiety and depression in the Health Status Assessment questionnaire which was completed at about the same time.

33.     While possible that Mrs Makin’s answer to question 16 was a mistake this seems, however, to be unlikely.  She signed an acknowledgment that all her answers were true and correct to the best of her knowledge and belief, and that she had not failed to supply required information and had not provided false information.  An examination of the document shows that her answers were considered.  For example, she gave details of her alcohol usage and her smoking habit.  She appears to have revised the document by altering ticks to crosses in several boxes. The document suggests deliberation on her part.  In any event, absent cogent evidence to the contrary, she must be taken to have been so by virtue of her own declaration. 

34.     That she knowingly gave a false answer to question 16 is also consistent with the answer given to question 36 which she admitted in these proceedings to have been false.

35. For these reasons, we are satisfied that the answer given to question 16 constitutes a wilful and false representation made by Mrs Makin that did not suffer, or had not previously suffered, from “that disease”. Accordingly, by the operation of s 7(7), the subject disease is not to be taken as “an injury” for the purposes of the SRC Act.

36. We have considerable sympathy for the position Mrs Makin found herself in when required to disclose details of her medical history. It is a matter of common knowledge that people suffering from psychological conditions commonly face discrimination in employment. In that context, her concern that she might be discriminated against if she were to truthfully disclose her medical history is understandable. However, this is not a factor we can take into account in deciding whether s 7(7) applies.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr Thorpe, Member.

Signed: ......................................[SGD]......................................
  Associate to Senior Member Britton

Dates of Hearing:  8, 9 June 2010
Date of Decision:  9 June 2010
Representative for the Applicant:              Mr L T Grey
  (instructed by Carroll & O’Dea)
Representative for the Respondent:       Mr B Dubè
  (instructed by Sparke Helmore)