Ranger and Comcare - [2000] AATA 233

DECISION AND REASONS FOR DECISION [2000] AATA 233

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/272

GENERAL ADMINISTRATIVE DIVISION )

Re John Francis RANGER
Applicant

And COMCARE
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date24 March 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – claim in respect of incidents at ANSTO causing alleged anxiety/depressive illness - failure to disclose previous employment accident and damages payment - failure to disclose anxiety and depression prior to employment with ANSTO -- whether wilful and false representation

Safety, Rehabilitation and Compensation Act 1988 (Cth) - section 7(7)

Comcare Australia v Porter (1996) 70 FCR 139
Re Newham v Australian Telecommunications Corporation AAT No. 6721 (14 December 1990)
Hoskins v Repatriation Commission (1991) 32 FCR 443
Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 Browne v Dunn (1893) 6 R 67

REASONS FOR DECISION

24 March 2000 Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is an application brought pursuant to the Safety, Rehabilitation and Compensation Act 1988 ("the Act") to review a reconsideration determination of a delegate of Comcare ("the Respondent") dated 17 September 1997. That determination affirmed an earlier decision dated 1 May 1997 that the Respondent was not liable to pay compensation to John Francis Ranger ("the Applicant") for injuries in respect of an anxiety/depressive condition sustained or arising out of his employment with the Australian Nuclear Science and Technology Organisation ("ANSTO").
The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –

Reports from Mr G F Wenzel, clinical psychologist, dated 2 January 1997, 27 July 1998 and 10 June 1999, and curriculum vitae (exhibit A);
Report from Dr I S Macmillan, occupational physician, dated 7 August 1996, with letter dated 23 August 1998 (exhibit B), and two file notes dated 24 September 1996 (exhibit C);
Reports from Dr G R W Davies, psychiatrist, dated 14 March 1984, 19 September 1997 and 15 June 1998, and curriculum vitae (exhibit D);
Reports from Dr B Westmore, psychiatrist, dated 15 December 1998 and 15 February 1999, and curriculum vitae (exhibit E);
Copy of page from clinical notes from summonsed documents produced by Dr Lyon dated from 23 January 1989 to August 1996 (exhibit F).

The following documents were tendered as evidence on behalf of the Respondent –

Application for employment dated 15 June 1990 signed by John F Ranger (exhibit 1);
Claim for compensation in respect of Applicant's employment with Coalcliff Colliery dated 20 February 1984 (exhibit 2);
Document entitled "Description of Duties & Agreed Objectives" signed by John F Ranger and an assessor, dated 25 November 1994 (exhibit 3);
Sundry medical certificates signed by Dr D M Lyon for dates ranging from 2 March 1984 to 23 December 1986 (exhibit 4);
Statement of Claim on behalf of the Applicant to the Supreme Court of New South Wales No. W448 of 1985 (exhibit 5);
Statement of Particulars in respect of the Applicant's claim No. W448 pursuant to Supreme Court Rules Part 33, Rule 8A (exhibit 6);
Sundry receipts from pharmacies for period from 3 February 1984 to 3 October 1986 (exhibit 7);
Reports from Dr K H Dyball, psychiatrist, dated 11 April 1984 and 4 July 1984 (exhibit 8);
Report from Dr Emanuel Fischer, psychiatrist, (now deceased) dated 3 December 1985 (exhibit 9);
Report from Dr D Lyon, general medical practitioner, dated 29 March 1984 (exhibit 10) and 21 October 1996 (exhibit 23);
Reports from Mr P V Mangioni, clinical psychologist, dated 21 March 1985 and 28 March 1985 (exhibit 11);
Reports from Dr G R W Davies, psychiatrist, dated 9 May 1984 and 24 October 1985 (exhibit 12);
Report from Dr J B Maloney, orthopaedic surgeon, dated 30 September 1986 (exhibit 13);
Sundry serial reports by a medical officer reviewing the Applicant's compensation claim for the period 27 February 1984 to 1 April 1987 (exhibit 14);
Copy of page from clinical notes produced by Dr Lyon dated from 24 January 1980 to 22 July 1985 (exhibit 15);
Request for consultation from Dr Lyon to Mr Wenzel dated 12 August 1996 (exhibit 16);
Report from Dr G R W Davies, psychiatrist, dated 12 February 1997 (exhibit 17);
Medical History Questionnaire signed by Applicant dated 1 August 1990 (exhibit 18);
Copy of clinical notes and medical examination card of Dr Macmillan (exhibits 19 and 20);
General Health Questionnaire completed by the Applicant (exhibit 21);
Reports from Dr R D Lewin, psychiatrist, dated 12 November 1998, 8 February 1999 and 24 March 1999 (exhibit 22);
Reports from Dr R M Loane, Ear Nose and Throat Surgeon, dated 24 August 1984, 23 September 1985 and 22 April 1985 (exhibit 24).

The Applicant gave oral evidence at the hearing. Oral evidence was also given by Michael Frost, a former ANSTO employee, and Mr Wenzel and Dr Davies, called by the Applicant. The Respondent called Dr Macmillan, Dr Lewin and Dr Roberts to give oral evidence.
the relevant issues
The Applicant contends that he suffers from an anxiety and depressive condition arising from two specific incidents which occurred at his employment on 10 November 1991 and 23 April 1992 respectively.
The primary issue in these proceedings, however, is whether the Applicant made a wilful and false representation that he did not suffer or had not previously suffered from a psychiatric condition involving anxiety and depression prior to the commencement of his employment with ANSTO. The parties agreed that if the Tribunal does not find that the Applicant passes the hurdle contained in s 7(7) of the Act, then it would not consider the question of causation.
the legislation
Section 7(7) of the Act provides –
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.

applicant's evidence

The Applicant was born on 27 March 1948. He left school at the age of 14 years. His first job from 1965 to 1971 was as a labourer cutting timber and making pallets for Allied Constructions. He then worked at the Bulli Colliery and later at the Coalcliff Colliery from 1972 to 1984 driving an underground coal-cutting machine. He was involved in an accident there on 20 February 1984 while working underground when a coal cutting machine swung around and pinned his right arm into a piece of timber. After about three seconds the machine was reversed away from the Applicant's arm. He could not recall whether he went to hospital at the time of the injury, but later he had an operation on his injured elbow. The Applicant was then asked –
Q.Did you have any emotional problems arising out of that particular accident?
A.Yes. I was scared because I thought I was going to be pinned for a long time. It was very scary what happened.
Q        I think you had some psychiatric treatment, is that right?
A.        Yes, that's right.
Q        I think you saw Dr Davies?
A.        Dr Davies, yes
….
Q        You made a claim for workers compensation?
A.        Yes.
Q.       You ultimately resolved that case for a sum of $100,000?
A.        Yes.
Q.       That settlement occurred, I think, on 25 March 1987?
A.        Yes.
Q.       Now, thereafter, you were on Social Security benefits for a while?
A.        Yes.
………
QThen, I think, at some stage in July of 1990 you were offered a job as a cleaner?
A.        Yes.
Q.       With ANSTO, is that right?
A.        Yes
Q.       Can you tell us, firstly, how that came about?
A.There was a advertisement in the Illawarra Mercury and I filled it out as a cleaner and I think 8 or 9 months later I received a phone call saying was I still interested and I said, "Yes". So I went up to have an interview at Lucas Heights Nuclear Reactor.
….
Q.How were you physically and emotionally as at July of 1990?
A.I was very – in very good spirits, very happy that the interview came along and I could see – if the applicant was – if my applicant (sic) was successful it looked like a very good career.
Q.Then on 1 August 1990 I think you filled out a questionnaire, do you remember that?
A.Yes, there were – at that time there were a lot of documents that I filled out.

In cross-examination the Applicant said that he read the job advertisement in the Illawarra Mercury and wrote a letter of application to ANSTO.

In his job application form (exhibit 1) the Applicant claimed that he had been awarded the School Certificate. However in cross-examination he stated that he meant a certificate he had received for the years he was at school. He initially claimed in cross-examination that he did not know what the School Certificate was but later he resiled from that position, admitting that he had raised three children, one of whom had completed the School Certificate. He then said that his statement that he had been awarded the School Certificate was "unintentional", notwithstanding that it was in his handwriting.
In the same job application the Applicant wrote in respect of "Other Skills and Qualifications" –
Have had vast experience with machinery trucks. Cleaning skills (Allied Constructions). Heavy lifting in mining industry, .and removal business.

He listed his employment history as follows –

1965/1971      Allied Constructions   Crane Driver             Crane Driving, labouring, cleaning (industrial)
1971/1977      South Bulli Colliery     Miner Driver              Cutting coal face. Heavy machinery
1977/1987      Furniture Removalist Truck Driver              Self employed
(Ranger removalists)
1988/ till now   Dept. Social Security -----  Unemployed
  Voluntary Council Ranger
  Wollongong City Council

The Applicant also signed a declaration at the end of the application form stating –

I hereby declare that the information set out above is true and correct in every particular.

In cross-examination he admitted that he had not ever had a business known as 'Ranger Removalists', nor was it listed in the telephone directory. He said that he had a little truck (Toyota Landcruiser) and he "used to go around helping people". He refused to answer questions as to whether he had declared any income in relation to that business for taxation purposes.
The Applicant admitted in cross-examination that he had not been a crane driver when he worked at Allied Constructions. He also admitted that when he worked for South Bulli Colliery he was a bricklayer for two years, not a miner driver as stated in his application form. However he did cut coal from the face of the seam and work heavy machinery.
The Applicant admitted that he had worked at Coalcliff Colliery and that he did not include that employment in his application form. He agreed that he had taken legal proceedings against Coalcliff Colliery. He could not explain why this employment was omitted on his application form other than that he was very happy to be having a job interview and he must have forgotten about this employment. He said that he was not good at filling out forms, and that he could not understand the long words in the form. He denied any attempt to conceal from ANSTO that he had had employment at Coalcliff Colliery that had resulted in a substantial legal claim for damages.
The Applicant said in evidence-in-chief that he had completed the medical report questionnaire (T7), but he did not understand all the words on the questionnaire and no one read out or explained the questions to him. He said that Neil McLelland accompanied him at the time he completed the questionnaire and he recalled asking Mr McLelland "what do you do with this" and he replied "just put no to everything". He said that he thought he was doing the right thing in answering "no" to the questions and he said - "I couldn't understand the questions". In cross-examination the Applicant said that he had discussed his reading problems with Dr Davies and Mr Wensel. He agreed that at no time during his employment at ANSTO did he advise "management" that he had a comprehension problem.
In cross-examination he admitted that he knew that his answers in the medical report questionnaire should be correct and that he filled out the form to the best of his ability. He was referred to question 75(a) (T7, p11) which asked –
Do you drink or have you ever regularly drunk alcoholic beverages? If so, what kind, over what period and what average daily quantity?

The Applicant wrote "2 middies week". He agreed in cross-examination that he understood that question and that he provided an appropriate answer to it. He also said that he understood the word "beverage" and "average daily quantity". However, he then said that he did not understand the meaning of the word "anxiety". Although he admitted that he had brought a claim against Coalcliff Colliery, he said that was because he had an injury and operation to his right arm and he had hissing in his left ear, and "I was shook up about it" … "I was scared". He agreed that he had been paid weekly payments of compensation for years, but denied that it was because of a mental condition. He said that because of his right arm he could not work. When the Applicant was referred in cross-examination to question 41 "Any other disorder of limbs including broken bones" he said "I don't know what a disorder is". He was then referred to question 60: "Any complaint, injury, ache or pain not mentioned above" and he acknowledged that he could understand each of those words. Despite this he did not include on the form any information which indicated he had time off work for a "bad arm". Question 65 was then brought to his attention: "Have you ever had any operations or surgical treatment?", to which he had answered "No". He told the Tribunal that he had had an operation on his right elbow before 1990 when he completed the form and he agreed that his answer to this question was untrue. When asked why he did not answer "Yes" to that question he claimed a right to remain silent.

The medical history questionnaire also asked "Name and Address of doctors consulted, hospitals or clinics attended or admitted to: Date Reason for examination, advice or treatment including duration of illness" to which the Applicant wrote "Dr Kallipessi 8.4.88. Flu". When asked why he wrote that he said that he did not understand the question. He agreed that he had suffered very significantly with depression over the years 1984 to 1987. The Applicant was then taken back to question three on that form which asked whether he suffered from "depression or difficulty in sleeping", to which he had answered "No". The Applicant said that he has no problem understanding the meaning of the word 'depression' now, nor in 1990. However, later in the proceedings he told the Tribunal that he did not understand the meaning of the word 'anxiety' or 'depressed'.
The Applicant was shown exhibit 18, being a medical history form that he had completed and dated 1 August 1990. The preamble states –
This examination will assist the health service to see that you are placed in a position safe to yourself and others according to your physical ability. A medical condition need not disqualify you. The results of the examination are confidential and your cooperation is sought in answering these questions. (Significant failure to answer correctly could cause later problems.)

Again the Applicant claimed in his oral evidence that he could not understand the questions and so he answered "no" to everything. However, it is clear on its face that he answered "yes" to some questions including the question "do you sleep well". He answered "no" to the question "have you ever sought help from anyone about your nerves". He agreed that he understood that question and that his answer was wrong. Again he omitted to list his employment at Coalcliff Colliery in a list of his previous employment which he provided in chronological order, as the form requested. He denied in his oral evidence that he understood the word "chronological". He said that when he did not understand the question he would write "no". The Tribunal notes that he recorded that he was self-employed from 1976 to 1987 and Dr Macmillan added the words "truck driving, concreting" against the self-employed entry. He denied in evidence that he had completed this form with the intention of deceiving ANSTO about his medical history.

The Applicant denied that he gave false answers in the job application and medical history questionnaire knowing they were false and with the intention of deceiving. He also said that he told his supervisor and a few of the people with whom he worked at the reactor that he had worked at the mine and that he had had an accident involving his elbow. He said that he had told his supervisor that "it was a trauma".
The Applicant claimed that he was able to read the work manuals required of him, "with help" from Michael Frost.
The Applicant said that he was employed as a cleaner to clean inside the reactor containment building. He was asked "were you cleaning ordinary spillages or did it have something to do with radiation" and he replied - "Just cleaning up the top of the reactor plate with acetone when there was a contamination". He said he was instructed by his supervisor, Laurie Canon, how to clean areas of contamination. He said that four months after he started work as a cleaner he commenced "active handling duties". He said that the "active handling team" performed the fuel changes in the reactor and undertook tasks associated with the nuclear fuel, which was in the form of rods. He said that when he worked with the active handling team he did crane work, storage block fuel changes and worked on the top reactor plate. The crane involved a 20 tonne flask to lift nuclear fuel into a reactor and to perform a "power unload for the isotopes to come off to be processed". In respect of the storage block fuel changes, he brought in the radiated fuel element from the top of the reactor using a 20 tonne flask to extract the spent fuel element and placed it in a storage block at the bottom of the reactor. That process involved manoeuvring. He said that he did not have any formal training for this work. He said that by November 1991 he was working with the active handling crew at least 3 days out of 5 days per week. He said that by November 1991 he was worried. He said that sometimes he was not supervised in relation to the tasks that he was given, especially in the storage block.
On 19 November 1991 there was an incident in the reactor. At about 8.30 am he was cleaning and was coming through the two doors of the reactor containment building into the reactor. He said that he closed one door and opened the other door inside the reactor, and the alarms were sounding very loudly, which he understood signified radioactive danger. He went three metres from the door and up four steps, and looked down to the level below where there were two men. One had a camera and another had a pair of long scissors with which he was trying to pick up a radioactive isotope that was on the floor. He said that he was unsure what happened with the isotope after that, as he retreated to the door on the other side of the reactor containment building to an exit. He said that to his knowledge no one else went outside. He said that he returned to the area outside the reactor where his cleaning stores were kept and sat down for ten minutes thinking about what happened. He said that he continued to work that day and thereafter he felt he was more alert in the reactor, "watching everything that everybody had done". He said that he had a feeling of mistrust of the people who worked in the reactor. He said that after that incident he "changed" – he became "a bit cranky" and was thinking about the two people who were not shielded from the isotope in the incident and the damage that they could have sustained. He did not want that to happen to him.

The Applicant said that 14 months after he commenced work he became a technical officer Grade 1 working on the active handling crew. On 23 April 1992 there was a second incident. He was cleaning in the basement of the building. Having completed that task he was walking towards the steps that would bring him back to the middle section of the reactor. Before he reached the top of the stairs the alarm started sounding. He saw a fuel element exposed, coming out of the No.1 storage block. He estimated he was four to five metres away from the element. He said he then moved about three metres to the right where an "active handler" was working, and they both retreated to the control room. The Applicant said that he thought they were all going to die because "everybody in the reactor was running around". He said that he then retreated from the reactor to the change room via a different door from that through which the active handling crew exited. He said that there was an argument involving the active handling team. He said he went to his cleaning store where he sat down for a while and started trembling and crying. Later that day he returned to the reactor and resumed his cleaning duties. He said that he was "very scared", and from that time "it wasn't very happy times". He also became very critical of safety procedures and instructions.
When asked how the above incident affected him emotionally as opposed to the coal mining incident he said: "when I left the coal mining industry I was fit. At ANSTO when I went for my medical I felt really happy about the interview". However, he also agreed that he suffered from some emotional problems after the Coalcliff Colliery accident.
The Applicant said in cross-examination that since the first incident with the reactor he "started getting nervous". He said that he was upset by "bells ringing". He agreed that he became upset by sudden and unexpected noises, he was scared of the dark at night, and had lost confidence after the second incident. He agreed that he had fear of the dark previously, but it was not as bad before the incidents at ANSTO. He said that he had to cease work at ANSTO because he was worried about going back to work in that environment. He said that he has had problems sleeping since the incidents, which he did not have previously. He said he has become tearful since the incidents, which was not the case previously, and has become tense in the last three years.
When it was put to the Applicant that the abovementioned symptoms were ones about which he complained between 1984 and 1986 and they were recorded in a report from Dr Fischer (exhibit 9) he replied "I was shook up after the accident, I could have been killed". It was then put to the Applicant that he had given the same history to Dr Davies. He agreed with the history as recorded. However, he did not accept that he had given a similar history to Dr Dyvall in 1984 (exhibit 8).
In respect of the Applicant's mine injury he agreed that he had attended Dr Lyon regularly after the accident in the mine in order to obtain a certificate to send to the insurance company. He said; "I was shook up after the accident. I was very upset for a while because I thought I was going to die there". He agreed that he received weekly compensation payments upon a diagnosis of phobic depression. However, he then claimed that he was getting compensation because he could not work because of his right arm injury, although he agreed that the numerous medical certificates that he provided to the insurance company from Dr Lyon referred to phobic depression. He claimed that the main reason he could not go back to work was because of his elbow injury. He then said that he did not know what "phobic depression" or "anxiety depression" meant. He said that when he consulted Dr Lyon he complained that he felt "shook up" after the accident, and Dr Lyon wrote "anxiety and depression" on the medical certificates. The Applicant added –
A.I knew I was unable to go back, I wasn't able to go back.
R.Because you were so depressed with and suffering a psychiatric problem, isn't that right?
A.At that time I was.
R.Yes. It is not something that can slip your mind, is it?
A.No, it hasn't slipped my mind. It's been a long time ago and I just don't seem to clasp on to things after a few years.
The Applicant noted that the medication that he is now taking is the same medication that Dr Lyon prescribed for him after the mine accident. He said that he was in a nervous state when "I came out of the mines. It was something for my nerves". He said "I wouldn't say psychiatric .. (condition). I was shook up after the accident".
The Applicant said that he was taking Tryptanol after the mine accident because he "wasn't sleeping of a night". He admitted that: "I was a bit depressed … after the accident". He then agreed that he was depressed "a lot" and did not want to go back to the mine.
The Applicant agreed that exhibit 5 was the only claim for damages made on his behalf to the Supreme Court of New South Wales. The Tribunal notes from exhibit 5 that damages were sought in respect of "shock", "nervousness" and "phobic depressive illness. The Applicant claimed that he had not read that document.
The Applicant agreed that he had received a damages payment of $100,000 in respect of the mine accident, and that this was partly on the basis that he had told Dr Davies, Dr Dyvall and Dr Fischer that he had not had any psychiatric symptoms before the mine accident. However, clinical notes of Dr Lyons dated 21 January 1983 state (exhibit 15) –
Very nervous and irritable. Biting nails, crying and cranky. Aggressive with children.
The Applicant agreed that these were the same sort of symptoms about which he complains now and the same sort of symptoms he had after the mining accident. Counsel for the Respondent drew to the Applicant's attention that this entry of Dr Lyons occurred one year before the mining accident. The Applicant said that he could not recall having those symptoms before the mining accident. He denied that he had lied to the doctors about the onset of his symptoms to gain an advantage in relation to his damages claim. Furthermore, did not recall telling Dr Lyon on 21 February 1983 that he had suffered from insomnia for the past two days and that he was treated with Amitriptyline. The Applicant was referred to the report of Dr Westmore, psychiatrist, dated 15 December 1998 (exhibit E) in which Dr Westmore wrote under a heading 'Past Medical History' –
He first saw a psychiatrist, Dr Davis, two years ago.

The Applicant agreed that he saw Dr Davis in 1984. He denied that when he saw Dr Roberts on 26 November 1996 (T49) he tried to play down the significance of the mining accident.

Dr Westmore provided a supplementary report dated 15 February 1999 (exhibit E) after he was provided with medical reports from Dr Lewin, Dr Davies, Dr Fisher and Dr Dyball. He opined –
The history does suggest that this man's symptoms of anxiety and depression dates back at least into the early 1980s. It is probably a correct statement to suggest he has some vulnerability in this regard and no doubt the accidents currently under consideration either aggravated or precipitated further states of anxiety and distress in this man. This opinion is supported by the observation of the doctor who saw him at that time.
It becomes a little more complex then in determining what factors are relevant in any current or continuing disability this man may have. If he is predisposed to anxiety then theoretically other life events, perhaps even minor ones, might cause subjective distress for him. The matter is obviously further complicated by the issue of compensation and litigation which invariably cause patients to focus, often unhealthily, on their symptom complexes and obviously there are stresses associated with the legal processes themselves which cause anxiety and despondency.
The Applicant recalled taking leave on 11 September 1992 for depression. He said that he was getting very cranky and was "breaking down". He recalled that he attended Dr Macmillan, the company doctor, in 1993, because of emotional problems. He recalled complaining that the active handling crew were arguing and could not "get on" with management. He could not recall saying anything to Dr Macmillan about the incidents with the reactor. Eventually, in 1994, he could not stop crying and shaking. In 1996 the Applicant lodged a claim for compensation in respect of this condition, just after he had "walked out" from his job at the reactor. He said that at that stage he was unable to perform any of his work. He said that he felt ANSTO had let him down - he was not provided with training and there were a lot of tasks that were not done correctly. Although he thought he was getting better compared with when he first left work, he considered that it was a slow process.
The Applicant said that his condition now was such that he was unable to work. However when it was put to him in cross-examination that he was working, he agreed, and said that he went up to a restaurant in Bulli Tops with his daughter, and all he did was wash up. He agreed that he had been receiving a Disability Support Pension from the Department of Social Security during that time. However he then denied that he was working at the restaurant. He then said, "I clean rubbish up". He denied that he received payment from the restaurant. He then said, "there's quite a few things I do up there". He attends "sometimes Tuesdays, Thursdays, sometimes weekends". When asked, "are you saying you don't go ever on a Wednesday" he answered "sometimes I just go up there". He said that he stays for about four hours and that six hours is the longest time he has ever stayed there. Later in his evidence he said that "sometimes I might go up there in the morning, and sometimes I might stay up all night. I might go up in the afternoon and stay up there". He said that he was very friendly with the owner, that "I clean rubbish up", "I might collect a few dishes, that is it". He added "I'm actually trying to get into the workforce and just doing a little bit to try and get back into the work force". When asked directly, he agreed that sometimes he served at the tables by clearing dishes and taking meals and drinks to tables. He also agreed that he has prepared some vegetables at the restaurant, but at a later point he denied that. At a later point he agreed that he dresses the tables with a table cloth and cutlery. He indicated that the proprietor calls him when there is something to do, and in return he has a meal there. He said that he goes there mainly at weekends with his daughter, and he also goes up every Thursday. He agreed, however, that he had been allocated by the proprietor to work a day shift on the Friday after the hearing took place. The Applicant admitted he did repair work on the premises, painting, digging holes and cleaning the restaurant, kitchen and bathrooms.
Evidence of mr michael frost
Mr Frost said that he was a work friend of the Applicant and they had worked together at ANSTO in the reactor. He said he left the employ of ANSTO in 1994, although later he could not recall when he left. He said that the Applicant had told him while they were employed at ANSTO that he had had a mining accident "with his arm or leg or something". He expected that the rest of their team were also aware of this. He said that the Applicant did not like talking about it.
Mr Frost had considerable difficulty answering questions directly and appeared to have more difficulty with comprehension than the Applicant had. When asked whether the Applicant had difficulty reading and writing Mr Frost said "Yeah, a bit slow." He had not formed an opinion as to whether the Applicant could read.
medical evidence
Dr Macmillan
Dr Macmillan commenced employment as a medical officer with ANSTO in 1985 or 1986. He had a consulting room at ANSTO and from time to time he saw the Applicant there. His clinical notes dated 3 June 1991 stated –
Info received that he was promoted to TGI from OA but couldn't cope & asked to go back to OA. Further info today that he is off & there is a suggestion he has had a 'breakdown'. Known to have severe problem in personal life.

The next entry, dated 11 June 1991, reads –

RTW. Has been off last week with – "indigestion & insomnia" on cert.
From LMO Dr D M Lyon (042) 672133. Had also been a bit depressed. Said 6/12 ago, after 4/12 on staff, was promoted OA àTG1 on active handling crew, but 3/52 ago asked to be [put back down to] OA again. Felt didn't know enough about tags on silicon work in particular & feared making a mistake. Last 4/52, build up talk re major shut down. 2/52 ago worked long hours (to 8.20 pm) à home, ate late big meal as hungry à indigestion which kept him awake at night so only got 2 hrs sleep. Also working 8½ hrs on Sundays. A keen family man, concerned re 15 yr old daughter's phone calls from potential boy friend. A perfectionist, conscientious. Sons Glen 22 & Mark 18 are employed. Wife doesn't work.
Seems in control. Apparently he wasn't 10 days ago & was told to take a week's holiday. LMO cert ' indigestion & insomnia" & LMO gave Tryptanol 25 mg. 1 nocte à sleepy in am. so he is taking ½ tab. Nocte. Eats tomatoes ++, some fizzy drinks & cordial. [Advised to] drink milk, raise head of bed. Is getting reflux oesoph. Indigestion. Feels there is one member of A. handling crew who is 'sloppy' re safety. Everyone knows who he is & tries to avoid him. Was afraid he would make a mistake because of overwork & insomnia à fatigue. Denies any home stresses or problems. Hobby seems to be house maintenance & bushwalking. Admits is obsessive re keeping his place tidy & neat at home.

Dr Macmillan said in his oral evidence that the Applicant had told him he had been a bit depressed. He considered that the Applicant did not appear to have any difficulty in understanding the term "depressed" and he did not ask what it meant. He agreed that Dr Lyon had also considered him to be depressed and had put him on treatment, but by the time Dr Macmillan saw him he did not think the Applicant was "terribly depressed".

The next relevant entry in Dr Macmillan's clinical notes was 10 September 1992 when it was recorded –
Irritable, not sleeping, tense in head, reluctant to admit 'depression'. Boss, FN, has recommended he come. Is cleaner but gets involved in active handling crew help. Peter Ellis is the other cleaner; they get involved in active handling at shut down & are partly trained 2 yr. in this role. Doesn't like major radiation work. Was involved in two potential major accidents, one with flask raised with high rad. in it, other when rocket cam was dropped on floor by Harry Jenkinson & George Jamieson. Alarms go off loudly. Jumps angrily if someone touches him. Aggro. & touchy which isn't like him. 3/12 – waking2 am & then finding it hard to sleep. Looks depressed. Jumpy & scary if there is a noise. 2 yrs here. Doesn't believe in taking holidays.
Been getting sad & depressed & tearful seeing sad things on TV. Obsessive, likes everything right, worries if Peter Ellis doesn't order things in time. I phoned LMO Dr Lyons in his presence & got him appt. for this afternoon. John & I agree he has been depressed 3/12 (he had voluntarily stopped Tryptanol which made him well at Xmas & hadn't attended LMO for review. He would now like upgrading to TGI on active handling crew, for more pay. Unfit work 10 days.

Dr Macmillan noted that initially he had not put a date on that entry, but subsequently when he was required to produce his records he had carefully researched other appointment books and records and he was quite sure that the consultation occurred on 10 September 1992. Dr Macmillan said that this was the first complaint the Applicant had made to him about an incident where he might have been exposed to radiation. He said that he had asked the Applicant if he had ever been involved in an accident underground because he wondered if the Applicant had a history that he was concealing. He said that the Applicant had a particular phobia or hallucination when he was in an underground compartment in the reactor building.

Dr Macmillan said that at this time the Applicant did not appear to be happy working with "major radiation" and he wanted to get out. Dr Macmillan spoke with management and it was arranged that the Applicant would go to the waste management section. He stayed for only 90 minutes and then returned to his previous job in the reactor. Dr Macmillan said that he did not become aware of that for a few days. He said that he then faced the dilemma of deciding whether he should take more urgent action.
Dr Macmillan conducted a routine medical examination of the Applicant on 23 November 1994 and completed a report in relation thereto (exhibit 20). In it he noted, insofar as is relevant –
…………Baby disturbs sleep slightly only………Says not depressed now. Only takes Tryptanol no oftener than once a week, if can't sleep. Hasn't seen LMO for months. Says he would come & tell me if he got depressed. I'm not so certain. He dreaded coming to work at times in last 3/12 because of the arguments ? because of work overload. I know he physically threatened Michael Palmer twice & frightened him. Says he recently found object in the DTO plant room & gave it to APS to get rid of – Says I am only the 4th to know. Confirmed true by ……
Dr Macmillan said that the Applicant suffered from a recurrence of depression around 26 May 1995. On a scale of 1 to 10 in severity he considered from the Applicant's appearance that the severity of his depression was between 6 and 9.
Dr Macmillan said that at the time of the pre-employment medical examination it was his practice to have the candidate sign the form in his presence. He would go over the answers to the questions and ask, at least in respect of the "important questions" whether he understood them and agreed with his answers. He did not recall the Applicant indicating that he could not understand any question, or that he had failed to provide a written answer to any questions because he could not understand them. He said he would not have asked the Applicant anything about those questions to which he had answered "no" in the medical history sheets.
Dr Macmillan said that he relied on the accuracy of the information provided by the Applicant in respect of his medical history. If correct answers had been given about his medical history in respect of the 1984 mine accident and its psychological sequelae he would have considered the Applicant totally unfit for work either with radiation or in the nuclear reactor. He would not have said that the Applicant was unfit for some other jobs at ANSTO. Dr Macmillan also said that the Applicant did not tell him that he had suffered from a mining injury in 1984. Additionally, when he asked the Applicant some time later whether he had had an underground accident he denied it.
Dr Macmillan said that from his many discussions with the Applicant he did not manifest any diminished comprehension either of the spoken or written word. However he had noticed that at times the Applicant was slow to answer questions for reasons that were not apparent. He said that the Applicant always impressed him as being "lucid and intelligible" and he was not aware of any confusion regarding verbal communication. Dr Macmillan considered that the Applicant's comprehension orally was excellent, but he had not undertaken any tests in respect of his comprehension of the written word.
Dr Macmillan said that he was not aware that the Applicant had suffered from an injury to his elbow until he saw a report from Dr Roberts in 1997. Although he had undertaken a physical examination of the Applicant he did not observe the scar on the elbow.
Dr Davies

Dr Davies, psychiatrist, treated the Applicant between 1984 and 1987 following an accident in the mines when he had become anxious. At that time he considered the Applicant to be suffering from a reactive depressive illness with associated anxiety, and he was treated mainly with Tryptanol and Stelazine. He considered at that stage that the Applicant's condition would improve with rehabilitation. The Applicant discharged himself from Dr Davies' care in 1987.
In 1997 the Applicant consulted Dr Davies again when he was anxious and depressed. He said that the first incident and particularly the second incident in the reactor were frightening for the Applicant. The Applicant was a man predisposed to anxiety and the second incident, particularly, made it much worse.
Dr Davies administered the Minnesota Multiphasic Personality Inventory ("the MMPI") test to the Applicant in 1984 and readministered it in 1997, with more elevated scores on the second occasion. Dr Davies acknowledged that the MMPI test involved a large number of questions that would take between one and one and a half-hours to complete. The Applicant was required to read from a series of cards and sort them into bundles of 'true' and 'false' responses. He considered that the results he obtained from the tests were reliable and valid. He said that the pattern of responses indicated that the Applicant understood the questions asked. He said that there was no indication that the Applicant's comprehension was diminished and he did not complain that he could not understand the questions. He said there was no doubt that the Applicant has had a "nervous disposition" for many years. The incidents in the reactors caused an exacerbation.
Dr Davies said that in 1997 he had the Applicant complete a General Health Questionnaire, a research instrument he was using at the time. The Applicant completed it himself after reading the questions. He considered that the Applicant's responses were consistent with the MMPI results. The Applicant did not reflect any lack of comprehension and appeared to answer the questions accurately.
Dr Roberts
Dr Roberts, psychiatrist, saw the Applicant in November 1996 for the purposes of his compensation claim, referred by the Respondent. Dr Roberts obtained a history from the Applicant that he had consulted Dr Davies a few times following an accident he had with a continuous miner in 1984 because he was "shook up by this experience". He made no reference to being treated with Tryptanol and Neulactil for three years. He told Dr Roberts that his only claim for worker's compensation was for a right arm injury in 1984. Dr Roberts considered that the history provided to him by the Applicant was not consistent with the evidence provided to the Tribunal.
Dr Roberts did not consider that the Applicant had any problem with comprehension during the consultation. He believed that a person who was barely literate could not complete the MMPI test without assistance. He said that the Applicant commented to him that he was depressed.
Dr Lewin
Dr Lewin, psychiatrist, interviewed the Applicant in October 1998. His brief from the Respondent apparently contained information about the Applicant's mine accident in 1984 and subsequent psychiatric problems. Indeed, Dr Lewin wrote in his report of 12 November 1998 (exhibit 22) –
You suggested there may have been some attempt by Mr Ranger to cover up his previous claim…..

Dr Lewin reported that the Applicant told him –

I fraudulently filled in the wrong answers. I can't understand forms. I had poor education. I was so happy that I started there. I was watching me (sic) mate. He ticked all the boxes so I just did the same.

Dr Lewin's evidence was that he examined the Applicant's comprehension ability carefully. He considered in respect of verbal communication that the Applicant was limited in his understanding of more complex ideas. Without identifying the basis for his conclusion, Dr Lewin concluded that the Applicant was "likely to be functionally illiterate" and noted that the Applicant told him that he hides his reading disability. In his oral evidence he noted that he did not undertake any formal psychometric testing to underpin his opinion regarding functional illiteracy, nor was he trained in that area. He added - "I didn't think that it was such a serious issue".
Mr Wenzel
Dr Lyon referred the Applicant to Mr Wenzel, clinical psychologist, in August 1996. Mr Wenzel said that he was aware from Dr Lyon's referral that the Applicant had previously had a mine accident in 1984 and that subsequently a diagnosis of phobic depression had been made. Mr Wenzel considered that the MMPI test is "very dated" and has "poor face validity". He also said that it required a "reasonably sophisticated level of reading and comprehension". Mr Wenzel reported on 27 July 1998 to the Applicant's solicitor (exhibit A) in relation to this claim that –
During his psychological reassessment on 23.6.1998 Mr Ranger explained that he had only ever undertaken limited formal schooling with him in fact leaving high school at age 14. Owing to this the patient has limited literacy skills with him reporting that due to his difficulties in completing application forms he frequently has problems understanding forms he is completing. In view of this he required additional time during his reassessment when formal psychometric testing was carried out in order to assist Mr Ranger in completing a number of standardised psychological tests

Mr Wenzel said that he used a post traumatic stress disorder checklist to assess the Applicant. He agreed that the Applicant had no difficulty in asking for assistance with the test. Mr Wenzel did not have any record of the Applicant having difficulty in comprehending questions prior to the consultation in 1998. He said that he may have had to interpret some of the words to the Applicant but he was not aware of any major comprehension problem.

Mr Wenzel admitted that the Applicant had told him that he had been "a bit nervous" following the mine accident, but that he improved and ultimately he looked for work elsewhere. He also said that when he saw the Applicant in August 1996 "it would have been mentioned throughout treatment" that the Applicant had been certified unfit for work due to phobic depression, a right sided epicondylitis and an anxiety state, between 1984 and 1987. Mr Wenzel said that the Applicant "would have told him" about the condition, but he did not make notes of it. He was aware that the Applicant had previously been taking Tryptanol but he was not aware that the Applicant had also been taking Neulactil.
Mr Wenzel said that because the Applicant had already had a major life-threatening stressor in the mining accident and subsequently recovered from the consequent psychological problems, it is likely that with a further event of a lesser threat he would relapse and develop those symptoms again.
Dr Dyball
Dr Dyball, psychiatrist, examined the Applicant following his mining accident in 1984. In his report dated 11 April 1984 (exhibit 8), Dr Dyball considered the Applicant to be an anxiety prone person who developed reactive anxiety and depression in the face of that accident. Dr Dyball noted that the Applicant denied previous psychological problems, but added - "I wonder about this". Dr Dyball said –
Dr Lyons makes mention of the fact that the patient has been under treatment previously in terms of anxiety and depressive symptoms and it would certainly be my assessment that as a personality he is prone in the face of stress to such reactive episodes.

Mr Peter Mangioni

Mr Mangioni, clinical psychologist, assessed the Applicant after his mining accident, in 1985. In his report dated 28 March 1985 (exhibit 11) he discusses his administration of a Fear Survey Schedule which revealed multiple phobias, including thoughts of being mentally ill. He was assessed to have symptoms typical of a post-traumatic stress disorder with associated anxiety and depression.
submissions
Respondent
It was submitted this is a clear breach of s 7(7) of the Act. The interpretation of what is "wilful" and "false" must be made on the facts of the case, and in this case there have been serial breaches of that provision. It was also submitted that there is no onus on the Respondent, as submitted by the Applicant, to prove that the breach was "wilful" and "false". Wilful" means "a conscious act". That is a matter for the Tribunal to determine on the facts.
It was submitted that there is no doubt that the Applicant made a number of false statements in completing the medical report form questionnaire (T7). On the evidence of Dr Macmillan, if those questions had been answered accurately the Applicant would not have been employed. It was submitted that by writing "no" the Applicant accrued for himself an advantage, and if he had written anything else he would have lost that advantage. The Applicant claimed he wrote "no" to the answers at questions 1, 2, 3, 4 and 60 because he was illiterate. If the Applicant could not read the questions why did he write "no" when a whole range of alternative responses would have been just as feasible if he was illiterate? The Applicant also said he wrote "no" because Neil McLelland suggested that he did so. The Respondent submitted that what the Applicant wrote was deliberately untrue and that his evidence to the Tribunal was untrue. It was not tenable that he did not know the meaning of the word "depression" in 1990 when he completed the medical history form, when in June 1991 he volunteered to Dr Macmillan that he was depressed. On the 53 medical certificates supplied by the Applicant to Coalmines Insurance (exhibit 4) only one does not have the word "depression" written on it, and that one referred to "anxiety tension state". It is untenable that the Applicant could submit 52 such documents with "depression" written on it and not know what it meant.
It was submitted that neither Dr Macmillan nor Dr Davies considered that the Applicant had a comprehension problem, and both those doctors saw the Applicant on a large number of occasions. The Applicant has twice completed the MMPI test, which is a paper and pencil test. One of the many questions in that test is "Do you feel anxious?" The Applicant completed a 'General Health Questionnaire' for Dr Davies (exhibit 21), demonstrating that he could comprehend complex questions. Neither Dr Lyon, Dr Westmore, Dr Roberts, nor Mr Wenzel in his 1996 examination ascertained that the Applicant had a comprehension problem. It was only after the Applicant's literacy was an issue in these proceedings that Mr Wenzel was told by the Applicant "I'm functionally illiterate". Similarly, it was only in the context of the Applicant's compensation claim that he told Dr Lewin about his functional illiteracy. It was submitted that Dr Lewin was gulled by the Applicant about his functional illiteracy. In the Applicant's job application (exhibit 1) he demonstrated an ability to provide relevant answers to questions, and his spelling was correct. Many other illustrations were also provided from the s 37 documents of the Applicant's ability to write and comprehend quite adequately. It is not tenable that the Applicant has a comprehension problem. It was submitted that it was only after s 7(7) issues were raised that the Applicant alleged functional illiteracy.
It was submitted that the evidence before the Tribunal is that of a pattern of deceit and that the Applicant is a "wilful liar". On the Applicant's job application form he omitted to include in the list of his previous employers, the name of the employer where he had the accident in which he thought he was going to be killed and where subsequently he obtained a compensation payment of $100,000. The Applicant said he "forgot" to include this employer. It was submitted that this employer's name was not included because it would have damaged the Applicant's job application.
The Applicant noted on his job application form (exhibit 1) that he worked self-employed as a furniture removalist from 1977 to 1989 for "Ranger Removalists". It was submitted for the Respondent that as "Ranger Removalists" was not a registered business name and it never featured in the Yellow Pages, it was probably an "invention" and consistent with the Applicant's pattern of deceit. It was submitted that the purpose of it was to conceal that he had worked at Coalcliff Colliery.
It was submitted that it was untenable that the Applicant did not consider that he had suffered from a significant psychiatric condition involving anxiety and depression, particularly when at the same time over an extensive period he had submitted 52 medical certificates certifying that he was suffering from depression or anxiety and when he was taking medication for that condition on a daily basis. However, on the Applicant's evidence, he would have the Tribunal believe that he was merely a bit "shaken up".
It was submitted that the Applicant lied in his evidence about the fact that he was not working, and that indeed he has been employed in a casual capacity for some time.
It was submitted that the Applicant lied to Dr Macmillan about the incident underground in the mine. It was also submitted that there was no evidence that Dr Macmillan had been unfair or less than balanced in his evidence about the Applicant.
It was submitted for the Respondent that if the Tribunal found against the Applicant on the issue of s 7(7) then there was no need to proceed to consider the substantive issues.
Applicant
It was submitted for the Applicant that in accordance with s 7(7) of the Act, the Tribunal must be satisfied that on a particular date prior to 1 August 1990 the Applicant had suffered from a particular disease and the wilful and false representation must be in respect of that particular disease. It was also submitted that it was the Respondent's onus to prove that case, and in this matter the case had not been proved. The Tribunal was referred to the decision of Jenkinson J in Comcare Australia v Porter (1996) 70 FCR 139 in relation to the interpretation and application of s 7(7). Counsel for the Applicant also referred to a decision of the Tribunal Re Newham and Australian Telecommunications Corporation (AAT No. 6721, 14 December 1990). In that matter the Tribunal decided in favour of the Applicant because it was not satisfied that she had the necessary degree of knowledge, as opposed to suspicion, that her condition at the time she completed the form was RSI, even if RSI could be held to be a disease.
It was submitted for the Applicant that in cross-examination about the answers he gave in his application form he said that he did not think the answers were important. It was submitted that this was no more than an honest or mistaken belief. It did not demonstrate a wilful and false intention. Moreover, the Applicant's evidence was that he answered "no" to all the questions after having a discussion with Mr Neil McLelland.
It was submitted for the Applicant that if it was the Respondent's case that the Applicant was faking that he was functionally illiterate there are experts who could have undertaken an assessment to determine illiteracy, but the Respondent did not provide such evidence. Mr Frost's evidence was that he and his workmates used to tease the Applicant about his illiteracy, and that evidence negates the Respondent's case about the Applicant faking.
It was submitted that medical history form which was completed by the Applicant was in conjunction with a medical examination conducted by Dr Macmillan, who did not examine the Applicant sufficiently thoroughly in order to identify and record a scar on the Applicant's elbow. There was a reasonable inference that the Applicant had been given the General Health Questionnaire (exhibit 21) at the time of the medical examination. The Applicant's completion of it reflects an "unintelligent mentality" but it was not a "deliberately false, wilful mentality".
It was submitted for the Applicant that it would have been very easy for the employer to obtain an authority from the Applicant to obtain information as to whether he had had a prior compensation claim. This could have been followed up with his referees who would have known about his employment at the colliery and whether or not he had had prior problems.
It was submitted that the Applicant referred to his previous mental state as being "emotionally shook up" and this is the term in which he described his illness. In the period between 1989 and 1991 the Applicant was "generally normal" except for a few bouts of insomnia for which he was treated with Tryptanol.
the case law
In Comcare v Porter (supra) Jenkinson J said, at 150 -
The clause "if the employee has … made a … false representation" may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of "wilful" in that verbal context excites the expectation that what the whole clause in the section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s 7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease -– a subject notoriously liable to human misapprehension – the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.

consideration of evidence and findings of fact

The Tribunal's attention was drawn to the decisions of the Federal Court in Hoskins v Repatriation Commission (1991) 32 FCR 443 ("Hoskins case") and Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 ("Dolan's case") in relation to the rule in Browne v Dunn (1893) 6 R 67. The application of the rule in Browne v Dunn (supra) is an aspect of the principle of natural justice, and must be observed by the Tribunal. In Dolan's case it was noted that the affect of the rule in Browne v Dunn (supra) is that any matter on which it is proposed to contradict the evidence in chief given by a witness must normally be put to him so that he may have an opportunity to explain the contradiction. The Tribunal considers that Counsel for the Respondent was systematic and zealous in compliance with the Browne v Dunn rule. The Tribunal notes that on a few occasions the Applicant relied on privilege against self-incrimination. Applying Hoskins case, the Tribunal must not draw any adverse inference against the Applicant by reason only that he asserted a claim of privilege against self-incrimination. The Tribunal has taken this into account in considering the evidence. At times, however, the Applicant appeared not to fully comprehend the nature of that privilege, resorting to it inappropriately when he appeared to find the cross-examination too difficult.
On considering the oral evidence and taking into account the documentary evidence, the Tribunal finds that the Applicant grossly exaggerated his comprehension problem such that he could not understand the forms he had completed and that he could not understand many of the questions put to him in cross-examination. He appeared to have no difficulty in understanding questions put to him in examination-in-chief and in the early part of cross-examination until the point when his alleged comprehension problem was raised. Moreover, any specialist evidence about his comprehension limitations was obtained after the Applicant's attention was drawn to the legal hurdle that he faced in s 7(7) of the Act. In particular, the Tribunal agrees that Dr Lewin was gulled into a belief that the applicant was functionally illiterate, apparently with little objective evidence. At times in cross-examination the Applicant appeared genuinely not to comprehend a question, particularly when it was obscure or abstract. The Tribunal finds that this reflects some comprehension limitations at higher conceptual levels, and also reflects the Applicant's limited concentration at that time. However, the questions put to him in cross-examination were much more conceptually taxing than any to which he responded in the numerous forms which he completed which are before the Tribunal as documentary evidence.

The Tribunal does not accept the submission for the Applicant that Mr Frost's evidence was that the Applicant's workmates teased him about his illiteracy. The Tribunal finds that there was no more than a vague inference from Mr Frost's evidence (transcript p 149). His evidence was that the Applicant was "a bit slow". In any event, Mr Frost's evidence was that he had not formed an opinion about whether the Applicant could read.
The Tribunal is concerned about the Applicant's credibility, and in particular the evidence he gave about his reading limitations and his forgetfulness in completing relevant forms when he omitted to disclose his employment at the Coalcliff Colliery or his mining accident or his compensation claim. The Tribunal also does not accept the Applicant as credible in relation to his denial that he understood the words: "depression", "anxiety", and "psychiatric condition". Prior to the Applicant completing the job application form and medical history questionnaire he had had numerous consultations with many psychiatrists, psychologists, insurance doctors and his own local doctor, and for three years he had been providing medical certificates to his previous employer about his unfitness for work because of anxiety/depression. The evidence that supports the Applicant's lack of credibility abounds. The evidence regarding his activity at the restaurant is but an illustration of his inconsistent evidence. The Tribunal does not consider that the Applicant's evidence about his involvement at the restaurant was truthful, and in that regard it is difficult to know where the truth lies.
The Tribunal does not accept the submission for the Applicant that the onus was on the Respondent to prove that the Applicant was able to read. Nonetheless, the Respondent assisted the Tribunal by careful cross-examination on that point. Taking into account all the evidence the Tribunal finds that the Applicant was able to read and comprehend sufficiently to be able to understand the questions in the job application form and the medical history questionnaires.
The Tribunal finds that Dr Macmillan was a member of the management team of ANSTO. On the basis of the documentary evidence and in his oral evidence he demonstrated a bias towards ANSTO. The Tribunal finds that some aspects of his evidence were not neutral, particularly his actions following the lodgement of the compensation claim. However, taking that into account, the Tribunal finds that his evidence in respect of the Applicant's failure to disclose significant aspects of his medical history was reliable and consistent with contemporaneous documentary evidence. That evidence left the Tribunal reasonably satisfied that the Applicant had plenty of opportunity to disclose the history about his mine accident, but he failed to do so.
It is possible, of course, that if Dr Macmillan had observed the scar on the Applicant's elbow, which on examination was clearly visible to the Tribunal, this may have led the Applicant to disclose the circumstances of the accident and its sequelae. However, although that was an omission on Dr Macmillan's part, the Tribunal finds that primarily and essentially it was the responsibility of the Applicant to disclose this in the medical history questionnaires which he completed, and he did not do so. Moreover, given the Tribunal's findings in relation to the Applicant's wilful attempt to conceal the mining accident, it is unlikely that he would have disclosed the real facts to Dr Macmillan. The Tribunal notes that he did not disclose the full story to Dr Roberts or to Dr Westmore.
On the evidence the Tribunal finds that the Applicant suffered from anxiety and depression to a very significant degree prior to his application for employment with ANSTO. Moreover, the symptoms that the Applicant suffered following his 1984 accident are similar to the symptoms he has suffered after the incidents in the nuclear reactor. The Tribunal notes that the diagnosis of his psychiatric condition is at issue, but nonetheless the Tribunal is reasonably satisfied that the symptoms are consistent and the issue merely is the appropriate diagnosis to be given to that condition. Whether it be post-traumatic stress disorder or anxiety/depression does not alter the case. Anxiety and depression are symptoms of post-traumatic stress disorder.
The Tribunal finds that the Applicant made false representations on the application form and medical history questionnaires that he completed in relation to his employment. Not only did he deny that he had suffered from anxiety and depression previously, he also denied that he had ever suffered from specific symptoms that could be related to anxiety/depression. Moreover he failed to provide information about his employment at Coalcliff Colliery, out of which that condition arose, and in its place he fabricated self-employment for a number of years when in fact, at most, it was a sideline remunerative activity. His evidence was that he "just helped a few people" using his truck for removalist work. The Tribunal has taken into account the evidence about the Applicant's limited comprehension and reading difficulty. While it is likely that he has some limitations, there is sufficient evidence for the Tribunal to be reasonably satisfied that his ability to comprehend the written word was quite sufficient to enable him to properly comprehend the questions asked of him in the job application form and the medical history questionnaires. The Tribunal finds that his provision of false answers to questions about his previous anxiety/depression was quite deliberate and wilful, and was designed for the purpose of obtaining the employment.
Moreover, the Tribunal notes on the medical evidence that if the Applicant had disclosed his previous history truthfully, he would not have been employed in the reactor, but he would have been given some other work. Any injury that may have arisen as a result of his employment in the reactor, in the form of an anxiety or depressive condition (and the Tribunal makes no findings in that regard), must be seen as being related to his failure to disclose his condition.
Having considered the issues raised in s 7(7) of the Act and having found against the Applicant, the Tribunal does not propose to make findings on the evidence in relation to the incidents in which he alleged he was involved in the reactor and to the subsequent effect those incidents had on his health.

I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis,
Senior Member and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21, 22 and 23 July 1999
Date of Decision  24 March 2000
Counsel for the Applicant        Mr Baran
Solicitor for the Applicant         N. A. Roberts Solicitors
Counsel for the Respondent    Mr Watson
Solicitor for the Respondent    Sparke Helmore Solicitors