Sheather-Smith and Australian Postal Corporation - [2005] AATA 1001

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1001
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No   A2004/104 GENERAL ADMINISTRATIVE DIVISION  )                & A2004/127
  )                & A2005/301

Re LORRAINE SHEATHER-SMITH

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal J.W. Constance, Senior Member
Date 11 October 2005
Place Canberra

Decision
In matters A2004/104, A2005/127 and A2005/301 the decision of Australian Postal Corporation made 27 September 2005 is affirmed.

..............................................

8. In accordance with the definition in section 60 of the Act this reconsideration is now the decision subject to review by the Tribunal.
ISSUES
9. The issues which arise for determination are:
A.did Ms Sheather make a wilful and false representation that she had not previously suffered from the disease that she now claims is an injury for which she is entitled to compensation?
B.is Ms Sheather entitled to compensation for her incapacity for work from 1 November 2003 until 8 February 2004?
C.is the proposed surgery reasonable treatment for Ms Sheather to obtain in respect of the injury?

10. For the reasons set out I have decided that Ms Sheather did make a wilful and false representation and that as a result she is not entitled to compensation for that injury. Even if I am wrong in that conclusion I have decided that Ms Sheather’s right epicondylitis was not contributed to in a material degree by her employment with Australia Post and on that basis she is not entitled to compensation for incapacity for work as a result of that condition.
11. I am satisfied as to the findings of fact which follow on the balance of probabilities.
A. DID MS SHEATHER MAKE A WILFUL AND FALSE REPRESENTATION THAT SHE HAD NOT PREVIOUSLY SUFFERED FROM THE DISEASE THAT SHE NOW CLAIMS IS AN INJURY FOR WHICH SHE IS ENTITLED TO COMPENSATION?
Statutory Framework
12. Sub-section 7(7) of the Act provides that:
“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.”

Findings of fact
13.     Ms Sheather is not entirely certain of the details of her employment history but on the basis of her evidence it appears to be as follows:
1982-1983    Arnott’s Biscuits                   Sales Representative
1982-1985    Coates Patterns                   Sales Representative
1985              Yates Seeds  Sales Representative
1958-1989    Innoxa  Sales Representative
1990            Baxter Health Care              Accounts Manager
1990-1991    Security Express                  Sales Representative
1991-1992[1]   Haymes Paints  Sales Representative
1994              Style Centre International Sales Representative
1994             NIB Health Fund
1994-1995    Pictura Graphica                  Sales Representative
1995-1996     Avon Products  Sales Manager
1996-1997    Exhibition Centre                 Sales Representative
1998 to date Australia Post  Mail Sorter / Clerk
[1] Ex. R5.

14. Whilst she was employed at Haymes Paints, Ms Sheather was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] AATA 1001
Decision Date: 11 October 2005

CaseChat Overview and Summary

The applicant, Sheather-Smith, sought a review of a decision by the Australian Postal Corporation (APC) which affirmed a previous decision denying her entitlement to incapacity payments. The applicant had previously received compensation for an injury she claimed was sustained during her employment with the APC. The dispute centred on whether the applicant had made a "wilful and false representation" that she had never suffered from the injury in question, and whether this affected her entitlement to compensation. The case was heard in the Administrative Appeals Tribunal (AAT).

The primary legal issue was whether the applicant's prior representations, which were deemed to be wilful and false, disqualified her from receiving incapacity payments. The court also needed to determine whether the injury was materially contributed to by her employment, as required under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The applicant argued that her previous misrepresentations were not wilful but were due to confusion and memory lapses. The APC maintained that the misrepresentations were deliberate and therefore disqualified her from receiving the payments.

The AAT found that the applicant had indeed made wilful and false representations about her medical history and past injuries. These misrepresentations were deemed material because they affected the assessment of her current claim. The tribunal also found that the injury in question was not materially contributed to by her employment. As a result, the AAT affirmed the decision of the APC to deny the applicant's entitlement to incapacity payments. The tribunal relied on the precedent set in Comcare Australia v Porter, which held that wilful misrepresentations by an applicant can disqualify them from receiving compensation.

The AAT's decision was affirmed, and the applicant's review application was dismissed in all three matters. This means that the original decision by the APC, denying Sheather-Smith's entitlement to incapacity payments, stands. The applicant is not entitled to the payments she sought, given the findings of wilful misrepresentation and the lack of a material contribution from her employment to the injury in question.

Orders

Orders of the court

In matters A2004/104, A2005/127 and A2005/301 the decision of Australian Postal Corporation made 27 September 2005 is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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