VAW and Comcare

[2004] AATA 163

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 163

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/280

GENERAL ADMINISTRATIVE  DIVISION		)
Re		“VAW”

Applicant

And COMCARE 

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date19 February 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd)  J Handley

Senior Member

COMPENSATION – applicant made false representation on a pre-enlistment medical questionnaire – eventually enlisted – admission by applicant that answers were false and if truthful answers given he would not have been accepted for enlistment – whether his false answers were wilful – whether diseases suffered before enlistment were suffered subsequently – whether s 7(7) applies – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4 and s 7(7)

Administrative Appeals Tribunal Act 1975 (Cth) s 35

Comcare v Porter (1996) 138 ALR 469

REASONS FOR DECISION

19 February 2004 Mr J Handley, Senior Member     

1.      The history of the application may be briefly summarised as follows.

2.      On 20 December 1996 the applicant made an application for compensation where he recorded the injury suffered by him as post-traumatic stress disorder (“PTSD”).  The respondent eventually decided that the applicant had contracted a disease to which his military service had contributed, namely PTSD (T11 p40).  That decision was made on 16 May 2002.

3.      On 22 July 2002 the respondent decided to cease liability for PTSD effective at 9 July 2002.  It determined however that the applicant had contracted a disease to which his military service had contributed, namely personality and delusional disorder.  The date of this injury was deemed to be 23 April 1996.

4.      On 5 September 2002 the respondent decided by its own motion to revoke the determination accepting personality and delusional disorder.  In making that decision the respondent decided that the decisions initially made to accept PTSD and personality and delusional disorder were both made “ultra vires”.

5.      The applicant subsequently made another claim for compensation citing the service related injury as “delusional and personality disorder”. On 26 November 2002 the respondent denied liability and further decided that the applicant was not entitled to compensation by reason of the provisions of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

6.      The decision of 26 November 2002 was reviewed by the respondent on 3 March 2003 and affirmed.  The latter decision is therefore under review by these proceedings.

7.      The applicant is presently 30 years of age having been born on 22 February 1973.  He claimed compensation by reason of injury or disease that he alleged arose out of or to which his employment with the Australian Army (“the Army”) contributed.

8.      The hearing of the application was convened in Melbourne on 3 February 2004.  The applicant appeared without representation.  Mr Moulds of Counsel appeared on behalf of the respondent.

9.      This application was complex by virtue of the legal issues that emerged upon the review, the volume of T documents lodged by the respondent (575…