SHARMA and COMCARE

[2010] AATA 730

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 730

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3997

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VISHNU SHARMA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date24 September 2010

PlaceCanberra

Decision The decision under review is affirmed.

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

Mr S. Webb, Member

CATCHWORDS

WORKERS COMPENSATION - claim for injury to the lower back - previous history of low back pain not disclosed - scope of claim narrowed at hearing – coccydynia – insufficient evidence to establish significant contribution by employment - meaning of 'wilful and false misrepresentation' - requirement for particularity - issues of credit – claim for lower back pain excluded - decision under review affirmed

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

Comcare Australia v Porter (1996) 138 ALR 469

Commonwealth v Beattie (1981) 35 ALR 369

Tippett v Australian Postal Corporation (1998) 27 AAR 40

REASONS FOR DECISION

24 September 2010 Mr S. Webb, Member         

1.      Vishnu Sharma claims that he was injured while undertaking computer training in the course of his employment by the Commonwealth. Comcare rejected his claim by primary determination and on review. Mr Sharma is not happy with this result and has applied for a review.

2.      At the outset of the hearing I was informed by Comcare that it is common ground that:

(a)in May 2007, in the course of his employment, Mr Sharma attended a 5-day computer training course in Sydney that required him to sit at a workstation; and

(b)Mr Sharma suffers from a lower back condition.

3.      There are two things to note at this point. Mr Sharma’s claim concerning the onset of symptoms during the training course lies at the heart of this case. The truth of his claim and the reliability of his evidence are in question.

credit

4.      At this point, it is desirable to address issues concerning Mr Sharma’s credit.

5.      During the hearing Mr Sharma informed me that his claim was solely directed to new symptoms in the coccyx area of his lower back that he had not experienced prior to attending the training course in May 2007. He explained, in a very careful and deliberate manner, that he was not seeking compensation for any previously existing lower back condition and the claim form he completed, despite the words used, should be understood to refer only to pain in the coccyx area and not to lower back pain, more generally. On this basis Mr Sharma denied any intention to mislead or to misrepresent the fact that he had suffered from symptoms in his lower back, including pains radiating into his hips and thighs (especially on the left), intermittently since 2001. He says that if the words used in the claim form convey a different intention, this was a mistake on his part that may be explained by his limited knowledge of the English language at the time, especially in relation to medical terminology.

6.      Nevertheless, it is abundantly…