Smith and Comcare

[2007] AATA 1796

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1796

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2005/295

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BARBARA SMITH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date25 September 2007

PlaceCanberra

Decision The decision under review is set aside and in place thereof the Tribunal decides that there is no bar to Ms Smith’s claim for compensation entitlements pursuant to subs 7(7) of the Act, in relation to depression.

...............signed...............................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - disease - employment contribution - pre-employment health declaration - meaning of 'disease' and 'wilful and false representation' - declaration false - no intention to mislead - decision set aside

Safety, Rehabilitation and Compensation Act 1988 ss 4, 7

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007

Compensation (Commonwealth Employees) Act 1971 s104

Comcare v Porter (1996) 70 FCR 139

Re Schofield and Comcare (1995) 38 ALD 124

Re Guerrero and Comcare [1999] AATA 343

Commonwealth Banking Corporation v Percival (1988) 82 ALR 54

Johnston v The Commonwealth (1982) 150 CLR 331

Comcare v Mooi (1996) 69 FCR 439

Ianella v French (1968) 119 CLR 84

REASONS FOR DECISION

25 September 2007 Mr S. Webb, Member         

1.      Barbara Smith suffered a disease in the course of her employment.  She claimed compensation.  Her claim was denied by primary and secondary decision makers.  In these proceedings, Comcare conceded that Ms Smith’s employment materially contributed to cause her disease.  However, Comcare asserts that her disease is not an injury because she made wilful and false representations that she had not previously suffered from the disease.

2. The parties agreed that the only issue for determination is whether Ms Smith is excluded from compensation by operation of subs 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Comcare accepted that if the matter is resolved in Ms Smith’s favour, her disease is “a psychological injury… being depression”.[1]  Before addressing the issue, there are matters concerning the applicable legislation that must be addressed.

[1] Respondent’s Statement of Facts and Contentions, 7 June 2007, point 25.

3.      The definitions of ‘injury’ and ‘disease’ under the Act presently in force (that were introduced by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007) have effect only in relation to injuries or diseases after 12 April 2007 (the date of Royal Assent), and do not, therefore, have effect for the purpose of these proceedings. 

4.      Thus, relevantly, ‘injury’ and ‘disease’ are defined at subs 4(1) of the Act, to mean:

4(1) In this Act, unless the contrary intention appears:

injury means:

(a)a disease suffered by an employee; or

…

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

the facts

5.      The following uncontroversial facts are established on the…