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 clear to me that there are difficulties with aspects of Mr Sharma’s evidence and with information he provided at various times about his medical history. Mr Sharma omitted to inform Comcare[1], Dr Bornstein[2] and Dr Searle[3] that he had experienced intermittent symptoms of and had obtained treatment for low back pain and pains radiating into his hips and thighs since 2001. Questions 14 and 15 of the claim form are in the following terms – ‘Have you ever had a previous similar symptom, injury or illness, work-related or otherwise?’ and ‘Have you ever received medical treatment for a similar injury or illness?’. Mr Sharma answered these questions in the negative. It is to be noted that question 14 is cast in broad terms and refers to a similar symptom, injury or illness. Mr Sharma’s point concerning particularity and medical terminology must be considered in that context.

[1] See T17, T19 and T21.

[2] See T22 folio 46 and Exhibit R2, p1.

[3] See Exhibit R1, p2.

7.      Mr Sharma’s history of low back symptoms prior to May 2007 is clear enough on the present evidence. The clinical notes from the Enhance Chiropractic and Massage Sports Injury Centre reveal that in January and February 2007 Mr Sharma complained of soreness in the lower back, particularly in the sacral area, and he obtained massage treatments at that time.[4] It is not necessary for present purposes to refer to all of the documents in evidence concerning earlier complaints of low back pain and related treatments that can be traced to 2001. On that evidence it is clear enough that Mr Sharma previously experienced symptoms that were similar to those to which he referred in the claim form.

[4] Exhibit R15, clinical notes.

8.      There are also difficulties with Mr Sharma’s evidence concerning the precise nature of symptoms in May 2007 and the circumstances in which it is alleged they arose. In his claim form, in response to question 8, he described the ‘diagnosed condition’ to be “Pain over mid sacral area. Minor curve concave to the left. Minimal anterior endplate sclerosis is seen at L4 in keeping with early spondylosis”.[5] It appears that these words were copied from an X-ray report dated 20 June 2007.[6] Nevertheless, Mr Sharma wrote “Lower back/sacrum” when asked in question 9 to identify the parts of his body that were injured and he referred to “lower back pain” when answering questions 21 and 22 in the claim form. On 19 June 2007 Dr Grundelova noted “lower back pain started in 2001 on and off since, mid May 2007 had 1 week course in Sydney, after prolonged sitting again developed lower back, l buttock pain, marked, unable to sit longer periods of time”. The Doctor gave oral evidence that if Mr Sharma had indicated pain in his coccyx area, by pointing for example, she would have noted it. Nevertheless, her evidence is that the pain about which Mr Sharma complained on 19 June 2007 was “low low back pain” and was, in part at least, different than pains about which he had previously complained in his lower back. On this evidence there is doubt about whether Mr Sharma experienced coccyx pain when he was examined by Dr Grundelova, as he presently asserts. It is also unclear whether the left buttock pain, to which the doctor referred, was something new or whether this was something similar to Mr Sharma’s history of low back pain radiating into his left hip for example. On this point there is a lack of precision in the medical evidence – on the evidence of Dr Bornstein left buttock pain may occur in different places in the buttock, and these may relate to different levels within the lumbrosacral spine or the sacrococcygeal joint or the coccyx. The particular location of Mr Sharma’s alleged left buttock pain cannot accurately be determined on the present evidence.

[5] T17 folio 22.

[6] Exhibit R15, X-ray report, 20 June 2007.

9.      On 9 July 2007 Mr Sharma obtained chiropractic treatment from Mr Garbutt – Mr Garbutt noted “LBP [lower back pain] – central-L sacrum. Worse after sitting >15-30 min”.[7] Mr Garbutt gave oral evidence that he would have made a note if Mr Sharma complained of coccyx pain or pains radiating into his hips and thighs. On this evidence it appears that Mr Sharma did not complain of coccyx pain when he consulted Mr Garbutt on 9 July 2007, 17 July 2007, 26 July 2007, 6 August 2007, 20 August 2007 or 6 September 2007. On 13 September 2007, however, Mr Garbutt noted that “Patient identified coccyx as centre of [pain]”.[8] This is the first evidence of Mr Sharma complaining of coccyx pain. On Mr Garbutt’s notes it appears that he subsequently improved and did not complain of pain in his coccyx again until 2 November 2007.

[7] Exhibit R15, clinical note 9 July 2007.

[8] Exhibit R15, clinical note 13 September 2007.

10.     It appears to me that the subject location of Mr Sharma’s complaints of pain changed one day after he provided a statement to Comcare defending his earlier denial of previous symptoms. On 12 September 2007, Mr Sharma provided a statement to Comcare in support of his claim, in which he stated that

“Neck/Shoulder pain started back in November 2001. However lower back pain/strain was never an issue…

Question 14: Apparently according to my GP there is no direct relation between my lower back pain/strain (occurred 16^th May 2007 and diagnosed on 20^th June 2007) and neck/shoulder pain (gradually developed after November 2001), I did not mention any symptoms of my neck/shoulder or back pain because of this reason. I had been doing recommended exercises for my neck and shoulder pain and taking treatments.

My lower back pain/strain has never been a big problem despite of some discomforts from time to time due to prolong sittings at work till it was first discovered in June 2007. Because of non reporting of neck/shoulder pain to my previous employer I have to bear all the costs associated with it myself and having treatments for my lower back puts me in more financial pressure that’s why I decided to report it to my employer officially.”[9]

[9] T21 folio 41.

In his statement, Mr Sharma set out details of his treating doctors and specialists from December 2001.[10] When examined about his statement that the lower back pain was ‘first discovered’ in June 2007, Mr Sharma explained that he meant that it was first diagnosed in June 2007. Even if I accept Mr Sharma’s explanation about what he meant to say in his statement, it does not accord with the clinical history of his previously existing lower back condition - it is abundantly clear that a number of investigations into Mr Sharma’s lower back condition were undertaken prior to May 2007.[11] These investigations cannot simply be ignored or passed over on the basis of Mr Sharma’s assertion that he obtained a fresh diagnosis in June 2007. As it appears to me, the only ‘fresh’ diagnosis he obtained was from Dr Bornstein on 20 September 2007 – eight days after he wrote the statement. On 20 September 2007 Dr Bornstein diagnosed “coccydynia which may well be related to discomfort at the sacrococcygeal joint”.[12]

[10] T21 folio 42.

[11] Exhibits R7, R8, R10, R12, R14 and T20 folio 37 refer.

[12] T22 folio 47.

11.     In his oral evidence, when closely examined about these matters, Mr Sharma said that he deliberately intended to exclude references to his previously existing low back condition because he did not want Comcare to relate his claim to his allegation of a previous injury that he had omitted to report to his previous employer, the Department of Agriculture, Fisheries and Forestry (DAFF). There are two things to say about this. Firstly, this explanation is supported by evidence in the form of an email Mr Sharma sent to the Tribunal on 25 August 2009[13], in which he stated “my GP at the time of lodging the application told me that my lower back problem was not related to any other symptom I had experienced before. That’s why I didn’t tell Comcare about this symptom because I was afraid it could have been misunderstood by Comcare as a related injury”. On that evidence it is clear enough that Mr Sharma decided, quite deliberately, to withhold information about his earlier lower back symptoms in order to improve his prospects of succeeding in his claim for compensation.

[13] Exhibit R13.

12.     Secondly, there are some difficulties with Mr Sharma’s explanation. It appears that on 15 January 2007 Mr Sharma discussed his intention to lodge a compensation claim in relation to the alleged earlier injury with Ms van Leeuwin, an Injury Prevention and Management Advisor employed by Mr Sharma’s employing Department, the Department of Industry, Tourism and Resources.[14] Furthermore, it appears that Mr Sharma’s former employer, DAFF, was aware of his back complaint and had arranged a medical examination and processed a related claim for sick leave.[15] The resulting report by Dr Lark is in evidence.[16]

[14] T19 folio 35.

[15] T19 folio 35.

[16] Exhibit R3.

13.     Mr Sharma’s explanation of these discrepancies is not satisfactory. Mr Sharma emphatically denied any “bad intention” or intention to mislead anyone about his prior lower back condition. He explained that the pain in his coccyx was different than previous lower back pain he had experienced and he was able to distinguish pain in his coccyx from pain in his lower sacrum. He told me that the words he used in the claim form, referring to ‘sacrum’ and ‘lower back pain’ were intended to refer to the new pain he experienced. In his submission the words he used may have been wrong, but he is not a doctor and he did not understand the medical terminology; he is a Hindi speaker with English as his second language, and he made a mistake. He gave similar answers to questions put to him in relation to omitting to inform Dr Searle and Dr Bornstein of his full medical history.

14.     As it appears to me, Mr Sharma’s evidence is not reliable. I accept that he is not a doctor and English is not his first language, and he may not have clearly understood some of the medical terminology he used in the claim form, or that if he had greater knowledge of medical terms such as ‘coccyx’ he could have provided a clearer and more precise description of his claimed injury. These considerations, however, do not explain his denial of a history of similar lower back complaints over a number of years. Nor do they explain the apparent inconsistencies in information he has provided over time, including in the course of his oral evidence in these proceedings. It is tolerably clear to me that Mr Sharma deliberately decided to withhold information about his previous lower back condition. Thus, not only is his denial of having suffered from a similar injury or illness, and having obtained treatment for that previous condition, objectively false, it is a deliberate misrepresentation.

15.     Thus, insofar as Mr Sharma’s evidence is concerned, it must be treated with abundant caution. I do not intend to reject his evidence outright, but will carefully consider the weight to be given to his uncorroborated evidence on controversial points.

injury

16.     That said, considering the reduced scope of the claim pressed by Mr Sharma and the concessions he made in the course of the hearing, the issues to be determined are:

(a)whether Mr Sharma suffered low back pain in the circumstances he has described; and if so

(b)what is the correct diagnosis of the low back pain; and

(c)whether the pain is properly characterised as a frank injury or an ailment; and if it is an ailment

(d)whether the ailment is a disease to which Mr Sharma’s employment contributed in a significant degree to the ailment; and if so

(e)whether the disease is excluded under the terms of subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) on the basis that Mr Sharma made a wilful and false misrepresentation about it.

17.     Comcare asserts that Mr Sharma did not suffer an injury in the manner claimed. In Comcare’s submission, if Mr Sharma experienced any lower back symptoms during the training course in May 2007, those symptoms were similar to previous symptoms he had complained of over a number of years. Comcare says that there is simply no reliable evidence that Mr Sharma experienced coccyx pain as a result of sitting for prolonged periods, without breaks, during the training course. Mr Sharma’s own account reveals that he was not required to sit at the training work station for periods of more than 1.5 hours without a break and that he could get up and go to the toilet when he chose. These circumstances, in Comcare’s submission, are simply not consistent with the medical evidence concerning the possible aetiology of coccydynia. In any event, Comcare urged me to reject Mr Sharma’s evidence as unreliable and incredible and to give little weight to aspects of the evidence provided by Dr Grundelova that relied on Mr Sharma’s uncorroborated account.

18.     In a case such as this, which has been on foot for a very long period, it is surprising to find only very scant evidence about the particular circumstances that are said to have caused the injury as claimed. There is no objective evidence about the physical arrangement or particular components of the workstation at which Mr Sharma was required to sit during the training program. Most particularly, there is no evidence about the kind of chair he used. Mr Sharma identified by name a work colleague who attended the course and to whom he allegedly complained, but this person and Mr Sharma’s supervisor, to whom he also suggests he complained, were not called to give evidence.

19.     For a time during these proceedings Mr Sharma was legally represented, but that arrangement came to an end well before the matter was listed for hearing, and Mr Sharma then proceeded without representation. I understand that Comcare agreed to arrange for all medical witnesses to be called, but apparently no arrangement was made by either party to call any lay witnesses. For this reason, and in the light of Mr Sharma’s concessions, I gave each party the opportunity to do so, albeit belatedly, during the hearing, but this was declined. So be it.

20.     In his 12 September 2007 statement[17], Mr Sharma provided the details of a work colleague, Chris Sinkora, who attended the training course and to whom, allegedly, Mr Sharma mentioned the symptoms he was experiencing. Mr Sharma also stated that he informed his supervisor, Samata Kaza, about his alleged lower back injury. But there is no evidence that Comcare contacted or obtained evidence from either of these potential witnesses; neither person was called to give evidence. Furthermore, Mr Sharma’s evidence on this point was not seriously challenged or attacked. In a case such as this, which turns to a very substantial degree on issues of credit, it is surprising indeed that this aspect of Mr Sharma’s case was not squarely tackled at an early stage or, in the light of Mr Sharma’s concessions, during the hearing. Mr Sharma indicated during the hearing that the witnesses could be called to corroborate his account. I gave Comcare the opportunity to instruct its representatives about this, and I was informed that no further investigation was required and no further witnesses would be called. That being so, I am prepared to accept that Mr Sharma’s evidence on this point and find that he did experience pain symptoms in his lower back during the training course.

[17] T41.

21.     The question of diagnosis is difficult to resolve with any certainty on the present evidence. There are two difficulties – the absence of any clear or definitive diagnosis of Mr Sharma’s previous lower back pain symptoms, and the delay between the onset of symptoms during the training course and Mr Sharma’s subsequent attendance on Dr Grundelova, four weeks later. Mr Sharma says that the pain he experienced during the training course was different and localised in a lower area of his lower back than pain he had experienced previously. Dr Grundelova gave oral evidence that in part is consistent with Mr Sharma’s account. Comcare says that Dr Grundelova’s evidence on this point should not be given any weight because she relied on Mr Sharma’s account, which is not reliable. I do not agree. Dr Grundelova’s evidence is not solely based on Mr Sharma’s account, it is also based on her clinical examination of Mr Sharma, as a result of which she referred him for an X-ray. It is true that Dr Grundelova did not diagnose coccydynia and she did not note complaint of coccyx pain, but her evidence suggests that Mr Sharma was experiencing symptoms in the lower part of his lower back, crucially, at a level below the level of any prior symptoms. Whether Dr Grundelova’s evidence can be taken to mean the sacrococcygeal joint area or the coccyx is not clear. It is clear, nevertheless, that the Doctor was of the opinion that Mr Sharma was also experiencing pain at the mid-sacral level, well above his coccyx. I accept Dr Grundelova’s evidence on these points, and so find.

22.     Mr Garbutt’s evidence of his examination of Mr Sharma on 9 July 2007 supports the finding that Mr Sharma was not suffering coccyx pain, but was then complaining of symptoms in his lower back. As does the evidence of Dr Bornstein. Mr Garbutt examined and treated Mr Sharma on 9 July 2007, but did not note any complaint of coccyx pain; the complaint at that time was of lumbrosacral pain. It was not until 13 September 2007, after a number of consultations, that Mr Garbutt noted Mr Sharma complaining of pain in the coccyx. Dr Bornstein examined Mr Sharma on 17 September 2007, four days later and diagnosed coccydynia. There is no pathological or radiological evidence to support this diagnosis. Dr Bornstein gave oral evidence that coccydynia is simply a description of pain in the coccyx region that may be related to the sacrococcygeal joint. His evidence is that the specific locus of lower back pain is difficult to establish and it is more likely that a patient would describe pain in a region of the body than in relation to a specific vertebra. Furthermore, coccydynia may wax and wane following onset before resolving. In Dr Bornstein’s opinion coccydynia is not likely to be related to a lower back condition or to previous symptoms at a higher level in Mr Sharma’s lumbar spine – the coccyx is not part of the lumbar spine. Dr Searle agreed with this assessment. I accept this evidence.

23.     In Comcare’s submission, however, the mechanism described by Mr Sharma that is said to have given rise to the sudden onset of low back pain is not consistent with the evidence of Dr Bornstein and Dr Searle in relation to the aetiology of coccydynia. Dr Bornstein and Dr Searle were broadly in agreement that the most common or usual cause of coccydynia is trauma – landing heavily on the coccyx in a fall for example. Nevertheless, when examined on this point, both doctors agreed that sitting for long periods, especially if sitting on a hard surface, may be sufficient to cause the onset of symptoms in some cases, but such cases are very unusual and may be associated with the presence of predisposing factors, such as arthritis for example.

24.     As it appears to me, even though some aspects of this evidence may be consistent with Mr Sharma’s circumstances, other aspects are not, and there are important gaps in the evidence. The characteristics of the chair on which he sat during the training course, and whether it was padded or not, for example, are simply not known.

25.     Mr Sharma attributes the onset of pain to sitting for long periods at a workstation that was not ergonomically adjusted to suit his particular requirements. There are three things to say about this. Firstly, there is no evidence that a poorly adjusted workstation could give rise to the onset of coccydynia. Secondly, the evidence clearly establishes that Mr Sharma was not required to sit for periods of more than 1.5 hours and, by his own account, after the onset of pain he was able to take shorts breaks, as necessary, under the guise of going to the toilet. Thirdly, in a man with a significant history of lower back pain, one cannot simply ignore the possibility that a poorly adjusted workstation may exacerbate symptoms in the lower back in some way.

26.     Simply put, there is insufficient evidence to establish that Mr Sharma experienced the onset of coccyx pain or coccydynia on the second or third day of the training course. There is no evidence that he sat on a hard seat for long periods. There is no contemporaneous evidence that he experienced pain in the region of his coccyx, although it can be accepted that he experienced lower back pains. The evidence establishes that he first complained of coccyx pain on 13 September 2007 – four months after attending the training course and one day after providing a statement to Comcare explaining why he denied a previous history of lower back symptoms.

27.     Applying the reasonable satisfaction standard of proof, on the balance of probabilities, Mr Sharma’s submission that he experienced symptoms in the region of his coccyx on the training course that were new and different than his previous lower back symptoms is not established by probative evidence. Alone, Mr Sharma’s evidence on this point cannot be accepted as it is not consistent with other evidence before me. The evidence of Dr Grundelova concerning her examination of Mr Sharma four weeks after the alleged injury suggests that his symptoms, at that time, were in the lower part of his lower back. Dr Grundelova did not refer to coccyx pain in her clinical notes of that examination or in her written report. Her oral evidence is that if Mr Sharma had complained of such pain, she would have done so. There is no evidence of Mr Sharma complaining about coccyx pain until 13 September 2007. The evidence of Dr Bornstein and Dr Searle is not sufficient to establish that the coccydynia Dr Bornstein diagnosed in September 2007 was caused by anything that occurred on the training course Mr Sharma attended four months earlier, in May of that year. All that can be said is that the possibility exists, but that is not sufficient for present purposes. I am not persuaded that Mr Sharma experienced the onset of coccyx pain or coccydynia on the second or third day of the training course he attended in May 2007 and I am not persuaded that his employment significantly contributed to the condition Dr Bornstein diagnosed on 20 September 2007.

28.      For this reason, Mr Sharma’s case, as narrowed during the hearing, is not made out.

29.     But, if one considers the ambit of his claim as written, that is not the end of the matter. It appears likely enough that Mr Sharma experienced low back pain during the training course in the low part of his lower back. That is consistent with Dr Grundelova’s evidence. If Mr Sharma’s evidence concerning the un-ergonomic workstation is accepted, and it was not seriously challenged, it is possible that the increase in lower back pain he experienced may be attributed to that cause. Even if that were so, it does not assist his case.

30.     On the one hand, an increase in pain may simply be the result of an already existing lower back condition that is not compensable.[18] On the other hand, if the increase in pain is something that is caused by an incident or occurrence in employment, it may be a compensable aggravation, following Commonwealth v Beattie[19] for example. Nevertheless, even in those circumstances, the aggravation injury claimed will only be within the meaning of ‘injury’ at section 5A of the Act if it is established that the employment contributed in a significant degree to the claimed injury and if the exclusion imposed by subsection 7(7) does not apply.[20]

[18] Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44.

[19] (1981) 35 ALR 369.

[20] (1981) 35 ALR 369 at 378.

31.     I am satisfied that the lower back pain Mr Sharma experienced during the training course in May 2007 is properly characterised as an ailment for the purposes of the Act. There is insufficient evidence to establish that the lower back pain related to a frank injury. Thus, Mr Sharma’s claim must be dealt with under the disease provisions of the Act.

32.     With regard to the issue of employment contribution, in Mr Sharma’s case this exists as a possibility. The evidence on which the possibility is raised is Mr Sharma’s uncorroborated account concerning the un-ergonomic workstation and his assertions about sitting for long periods. The fact that he did not lodge an incident report at the time and he did not consult a doctor until four weeks later do not assist his case. The absence of corroborating evidence from co-workers and his supervisor is a further difficulty. As I have said, however, mere possibility is not sufficient to satisfy the statutory test.

33.     On the present evidence I am not able to determine whether the symptoms Mr Sharma experienced during the training program were simply an exacerbation of his previously existing lower back condition or something fresh, in the form of an aggravation of that condition.

34. With regard to the exclusionary effect of subsection 7(7), as I have said, I am satisfied that Mr Sharma deliberately made false misrepresentations about previously suffering from a lower back condition to Comcare in his claim form and to Dr Bornstein. It is clear enough that the lower back symptoms Mr Sharma suffered and for which he obtained treatment were sufficiently similar to those he claimed as an injury to be considered to be the same ailment or disease. It is true that Dr Bornstein diagnosed a new and different condition – coccydynia – in September 2007, but the medical evidence does not support the proposition that this condition commenced on the training course in May 2007 as alleged or that it was employment-related. Mr Sharma says that the condition for which he claimed compensation is coccydynia, although at the time he did not know what the correct terminology was. But that assertion is not consistent with the plain language that he used in the claim form and it is not consistent with the evidence of Dr Grundelova and Mr Garbutt. By Mr Sharma’s own account he deliberately denied any previous similar symptoms or treatment because he was “afraid it could have been misunderstood by Comcare as a related injury”.

35.     Whatever his reasons, it is tolerably clear that Mr Sharma did not believe that the representation he made in the claim form, especially in relation to question 14, was true; he knew that it was not and he deliberately intended to deny his history of low back pain in order to improve his chances of succeeding in his compensation claim. If, as Mr Sharma maintains, he meant to refer to a pain in a part of his body that was new and different than pains he had experienced previously, it would have been a simple matter to state that. As it appears to me Mr Sharma’s grasp of the English language at the time was sufficient for him to understand the requirements of the claim form and to communicate effectively in writing. Instead of providing accurate information in relation to questions 14 and 15 in the claim form, Mr Sharma denied any similar previous symptoms, and he did so deliberately and in the knowledge that this was not true. Following Comcare Australia v Porter[21], and noting that this aspect of the case is not one that can lightly be decided, I am reasonably satisfied that Mr Sharma made a wilful and false misrepresentation about his previous lower back condition. For this reason, I am satisfied that, to the extent that the injury claimed is a lower back injury, the exclusionary effect of subsection 7(7) applies to that condition.

[21] (1996) 138 ALR 469 at 479.

36.     In sum therefore, if one accepts the scope of Mr Sharma’s claim form to be as narrow as he indicated during the hearing, concerning coccyx pain or coccydynia, the claim does not succeed because there is insufficient evidence to establish that the condition commenced in the manner alleged, or that it was contributed to in any degree by the particular employment activity. Mr Sharma’s claim as written, concerning “lower back/sacrum”,[22] also does not succeed because the evidence is not sufficient to establish that a lower back injury occurred and, even if an injury did occur, in the form of an aggravation of lumbrosacral pain for example, it is excluded because Mr Sharma made a wilful and false misrepresentation about his previously existing lower back condition, having denied previously experiencing and obtaining treatment for symptoms for lumbrosacral pain symptoms that radiated into his left hip and thigh.

[22] T17 folios 22 and 24.

37.     For these reasons the decision under review is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         ............................[sgd]....................................................
           T. Amos (Associate)

Date/s of Hearing  13 & 14 September 2010
Date of Decision  24 September 2010
Solicitor for the Applicant           Self Represented
Counsel for the Respondent     Sophie Callan
Solicitor for the Respondent     Sparke Helmore