McQueen-Thomson and K&S Freighters Pty Ltd (Compensation)

This matter concerned an application for compensation by Mr McQueen-Thomson against his former employer, K&S Freighters Pty Ltd, before Senior Member Dr Damien Cremean. The dispute arose from an injury Mr McQueen-Thomson sustained to his right shoulder on 17 December 2012, while employed by K&S Freighters, which he alleged resulted in his incapacity for work. The Respondent contended that Mr McQueen-Thomson was precluded from receiving compensation under section 7(7) of the relevant Act due to a wilful and false representation made in connection with his employment.

The primary legal issue before the Senior Member was whether Mr McQueen-Thomson was disqualified from receiving compensation under section 7(7) of the Act. This section precludes compensation for a disease or aggravation of a disease if the employee made a wilful and false representation that they did not suffer, or had not previously suffered, from that disease for purposes connected with their employment or proposed employment. The Senior Member was required to determine if Mr McQueen-Thomson's actions, specifically his response to a question concerning his health, constituted such a wilful and false representation made for the relevant purposes.

The Senior Member found that the Applicant had suffered an injury to his left shoulder which resulted in incapacity for work, and that this was not in dispute. The critical determination was the application of section 7(7). The Senior Member was not satisfied that, in answering "No" to a particular question (question 13), Mr McQueen-Thomson was making a representation for purposes connected with his employment. Instead, the Senior Member concluded that his purpose in answering the question was connected with his injury or illness, rather than his employment. Consequently, the Senior Member was satisfied that the Applicant's injury was compensable under the Act.

The Senior Member set aside the decision under review and substituted a decision that the Applicant did suffer incapacity as a result of an injury to his left shoulder arising out of or in the course of employment, or to which employment contributed to a significant degree. The matter was remitted to the Respondent to calculate the Applicant's entitlements for medical expenses and weekly payments, and the Respondent was ordered to pay the Applicant's costs.