Ross Kennedy and Comcare

[2015] AATA 334

[2015] AATA 334  

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2012/5878; 2013/0026
Re	Ross Kennedy
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	18 May 2015
Place	Canberra

In each application the decision under review is affirmed.

...................[Sgd]....................................................

Deputy President PE Hack SC

CATCHWORDS

COMPENSATION – definition of “injury” – “connected with his or her employment” – terms of representations – whether wilful and false – adjustment disorder with depression and anxiety – failure to disclose previous psychiatric history – representations knowingly false – decisions under review affirmed.

LEGISLATION

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

CASES

Inco Ships Pty Ltd v Hardman (2007) 167 FCR 294; [2007] FCA 1138

Comcare v Porter (1996) 70 FCR 139

National Australia Bank v Georgoulas (2013) 217 FCR 382; [2013] FCA 1412

REASONS FOR DECISION

Deputy President PE Hack SC
18 May 2015

Introduction

1. Mr Ross Kennedy was, at all material times, employed by the Commonwealth Department of Industry, Innovation, Science, Research and Tertiary Education. In March 2012 he lodged claims with Comcare for compensation pursuant to the Safety, Compensation and Rehabilitation Act 1988 (Cth) for a condition he described as adjustment disorder with depression and anxiety,[1] first experienced in March/April 2011 and experienced again in November 2011.

   [1]Section 37 documents, pages 46 and 60.

2. The claims were refused by Comcare in July 2012 and those decisions were affirmed on reconsideration by reviewable decisions made on 21 November 2012. Mr Kennedy has sought a review by the Tribunal of those decisions.

3. Comcare refused the claims, and contends its decisions ought be affirmed, on the basis that Mr Kennedy’s condition does not satisfy the definition of “injury” in the Act. It also contends that the claims are defeated by operation of s 7(7) of the Act because, it alleges, Mr Kennedy made wilful and false representations that he did not suffer from, or had not previously suffered from, the disease which Mr Kennedy claims constitutes his injury.

4. On 3 February 2015 the Tribunal, constituted by Senior Member McCabe, directed that the application of s 7(7) of the Act be determined at a preliminary hearing. For the reasons that follow I have concluded that Comcare’s contention is correct and that the reviewable decisions ought be affirmed.

   The legislative setting

5. By virtue of s 14 of the Act Comcare is liable to pay compensation in accordance with the Act in respect of an “injury” suffered by an employee if the injury results in death, incapacity for work or impairment. The term “injury” is defined by s 5A(1) of the Act to encompass (a) a disease suffered by an employee and (b) an injury (other than a disease) suffered by an employee arising out of, or in the course of, the employee’s employment. There is an exception, however its terms are not relevant to the present application. The term “disease” is defined by s 5B(1) of the Act to mean an ailment suffered by an employee,…