VAW and Comcare
[2004] AATA 163
•19 February 2004
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 pages) and extensive medical files obtained by the respondent before the hearing. Therefore extensive consultations by the Tribunal with the applicant were made with this in mind in order to be satisfied that he understood the proceedings, that he had made all reasonable attempts to secure legal representation and that he be given the opportunity to obtain medical evidence of his own. It emerged that the applicant was unable to obtain legal representation and he relied on the medical information obtained by the respondent.
THE LEGISLATION
10. Section 7(7) of the Act is recited in the following terms:
(7)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.
11. “Disease” is defined at s 4 of the Act in the following terms:
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.
12. “Injury” is also defined at s 4 of the Act in the following terms:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
THE EVIDENCE
13. Having regard to the nature of the medical and other evidence in these proceedings and the unfortunate personal circumstances of the applicant, it was decided with the consent of the respondent that an Order be made pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) restricting the disclosure of the oral and documented evidence in these proceedings and the identity of the applicant.
14. In evidence the applicant said that he was applying for compensation because the Army had “treated” him badly. He said that he had been victimised, sexually harassed, assaulted and intimidated. He said he reported an attempted rape upon him but was told by a superior officer “to F off”.
15. The applicant said that by reason of his service in the Army he suffers from schizophrenia for which he is being medicated and from which he will suffer for the rest of his life.
16. He acknowledged that he did not truthfully complete a pre-enlistment medical questionnaire, however he said he held the Army responsible for payment of compensation to him because the schizophrenia he said that was diagnosed subsequent to his discharge from service did not exist nor had it been diagnosed prior to service. It followed, he said, that he had an entitlement to compensation.
17. In cross-examination the applicant admitted that he had attempted suicide in 1990 when he was then aged 17 years. In fact the applicant said that he had “succeeded” in this attempt because he had been pronounced dead for 10 minutes. He volunteered that he was thereafter on life support for approximately three weeks.
18. The applicant also acknowledged that he had been admitted as an inpatient to the Department of Psychiatry at the Dandenong Hospital on two occasions in February 1994. The first admission of five days duration was not the subject of medical documentation however the second admission on 27 February 1994 (Exhibit 4) indicated that he remained an inpatient until discharged on 11 March 1994. The discharge summary completed by Dr Lien on 21 March 1994 records:
[Applicant] self referred for readmission on 27.2.94 after he discharged himself 5 days previously. He was in great fear of the ASIO following him. He was distressed because of thought insertion into his mind about a sexual theme relating to a kid who was his neighbour 10 years ago.
19. The applicant said in evidence that he had forgotten about his admission to Dandenong Hospital but agreed with the content of the discharge summary when he read it on the day of hearing.
20. Mr Moulds then took the applicant to a questionnaire completed either by him or on his behalf on 19 January 1996. The applicant did agree that the signature that appears at the foot of that document is his. The questionnaire is found at T22 page 82. It asks a number of questions concerning medical history. An applicant for entry into the Army is required to tick a “Yes” or a “No” box in answer to each question asked.
21. Against question 12 the “No” box is ticked in answer to the question “Have you ever been a patient in any hospital?”.
22. Question 39 asks the applicant to admit or deny whether the applicant has ever attempted suicide, suffered depression or anxiety, suffered mental illness or suffered nervous trouble. The “No” box against all four of those conditions has been ticked.
23. Question 40 asks whether there had been a consultation and or treatment by a psychiatrist, a psychologist, a social worker or a counsellor. The “No” box is ticked against all four of those treatment providers.
24. The applicant said that he deliberately caused the “No” boxes to be ticked and agreed that he was wilfully false in making those representations. He said that he “knew what I was doing” and added “only a fool would disclose this information because I wouldn’t have been enlisted”. Additionally he said “I knew my mental state would not stand up to Army life”.
25. Additionally the applicant agreed with a suggestion put to him by Mr Moulds that he deliberately and falsely made the representations within the medical questionnaire in order to obtain a benefit, namely enlistment into the Army.
26. The applicant said that he could not recall experiencing any delusional thought processes prior to enlistment but acknowledged that they could have been present. When he read the discharge summary from the Dandenong Hospital he confirmed that he had held a sexual image, at the time of that admission, (in 1994) of a female neighbour. He also acknowledged that he had believed that he was being followed by ASIO. He agreed that the image that he retained of his female neighbour and his belief about ASIO operatives following him were delusional. He agreed that he had held those thoughts prior to enlistment.
27. In fairness, there is some ambiguity on whether the image regarding the female neighbour is delusional. The Dandenong hospital discharge summary described it as “thought insertion” yet during cross-examination Mr Moulds directly questioned the applicant on whether the event actually happened and the applicant replied that it had. The applicant expressed that the problem he had with the image was that he “couldn’t get it out of my head”.
28. The applicant also agreed with a suggestion put to him by Mr Moulds that if he had provided truthful answers to the questions on the enlistment medical examination he would not have been accepted into enlistment or, in the alternative, had the Army personnel decided to review his prior medical history it would have been revealed that he had been diagnosed with delusional thoughts and a probable diagnosis of schizophrenia.
29. The applicant was eventually accepted into the Army and completed recruit training. He was enlisted between 23 April 1996 and 15 August 1996 when he was discharged.
30. Subsequent to discharge the applicant has suffered a very unfortunate and tragic medical history. He has been diagnosed with schizophrenia and admits that he now suffers from it. There have been many admissions to hospitals and attendances upon medical practitioners for extreme emotional and psychotic behaviour and other manifestations. He was reviewed over a number of years by gender reassignment practitioners and admitted being untruthful to his doctors, when he gave a history of his prior mental illnesses. He has had admissions to hospitals by reason of self inflicted injuries, when he has been found to be in a drunken state and when relationships broke down.
31. It was also noted that two years after his discharge from the Army the applicant enlisted in the British Army but was eventually discharged (after three months) when he volunteered to relevant personnel that he “wanted to be a woman”.
32. Some evidence was heard of the applicant’s employment history subsequent to his discharge from the Army however that is not recited in this decision because I am satisfied for reasons which follow that the applicant is unable to overcome the hurdle found at s 7(7) of the Act.
REASONS FOR DECISION
33. I am satisfied and find as a fact that prior to enlistment the applicant did suffer from a disease namely delusional and personality disorder. This is the condition over which the respondent denied liability and a condition which the applicant admitted in evidence that he suffered. I am satisfied on the evidence heard and read that as a fact the applicant did suffer from delusional and personality disorder prior to enlistment. The images held by him of a young female neighbour together with his belief that he was being followed by ASIO operatives are consistent with this diagnosis. It is consistent also with the notes completed on admission to Dandenong Hospital on 27 February 1994 where the examining medical officer recorded that the applicant has asked for a paper and pen “to write what was in his mind because he had thought broadcasting. He asked me not to write in the file because he was in fear that the ASIO would read it and catch him. He was irritable and kept checking whether anyone knew about it”.
34. Additionally I am satisfied that the applicant did suffer from schizophrenia prior to enlistment.. I acknowledge that the applicant in his evidence denied this. Whilst I note that he admitted subsequent to discharge that he was diagnosed and has suffered from schizophrenia, the medical reports received into evidence clearly indicate that schizophrenia was present. This finding is made because the diagnosis at the Dandenong Hospital on 21 March 1994 included “probable first diagnosis of schizophrenia”. The examining medical officer also recorded that the applicant “has not heard voices for a few days”. It was also recorded that the applicant was a “21 year old unemployed man with a long history of hearing voices, but presented with florid psychotic symptoms with first rank symptoms for less than six weeks, . . .”.
35. In evidence the applicant had denied that he had “heard voices” prior to enlistment. He said that whilst acknowledging that he may have used these words to describe his symptoms to medical officers, he intended to mean that he was referring to his own voice in his head. He said that he now understands the expression “hearing voices” as hearing the voices of other persons. I do not accept this explanation. I am satisfied that clinicians would make enquiry and satisfy themselves as to diagnosis. On this basis, the manifestations of the applicant would be consistent with a diagnosis of schizophrenia.
36. I am also satisfied that the applicant subsequent to discharge suffers from delusional and personality disorders. In evidence the applicant said that whilst he no longer believed that he was being followed by ASIO, he did believe that his home was presently “bugged”. He said he knew this because he heard strange clicking noises during the night and had been informed by a friend that “bugs” will make noises when they are not functioning properly.
37. I note also from recent medical reports that the applicant has been depressed and suicidal which would be consistent with the description of a personality disorder. Despite the discharge summary of the Latrobe Regional Hospital of 24 July 2000 recording that the applicant had a “depressed anxious effect” and “suicidal ideations” he was found not to have any “formal thought disorder”.. Nonetheless in August 2000 (the month following discharge from the Latrobe Regional Hospital) the applicant was admitted by self referral to the St Vincent’s Hospital in Sydney, apparently intoxicated, describing feelings of self hate, fright and being suicidal. The history taken by an examining doctor was of “depression and suicidal all my life”. It is noted that a “serious OD” was attempted at aged 17 years and he was admitted to Hobson’s Park Hospital at aged 18 years for “depression and suicidal tendencies, a history of self mutilation and an attempted overdose six months earlier”.
38. On balance therefore I am satisfied that prior and subsequent to enlistment the applicant has suffered from delusional and personality disorder and from schizophrenia. I am satisfied that these conditions are diseases within the meaning of the Act. I note from the provisions of s 7(7) that those diseases “shall not be taken to be an injury” if the employee in connection either with employment or proposed employment has at any time made a wilful and false representation that he or she had not suffered from that disease.
39. For the purposes of this analysis I am satisfied that the applicant is an “employee” within the meaning of this section of the Act and as defined.
40. I am also satisfied that the applicant did make a wilful and false representation at the pre-enlistment medical examination. I am satisfied and reassured about this finding because the applicant admitted making false representations, he acknowledged that if he had been truthful he would not have been enlisted and he did so to derive a benefit namely his enlistment into the Army. I am satisfied therefore that the false representations that he made were wilful.
41. Jenkinson J in Comcare v Porter (1996) 138 ALR 469 discussed the meaning of s 7(7). He held:
The clause "if the employee has ...... made a ...... false representation" may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of "wilful" in that verbal context excites the expectation that what the whole clause in the sub- section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s.7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true.
I am satisfied there is no such innocent misrepresentation in this case. The applicant held no belief his representations were true, yet wilfully represented that they were.
42. If it is not already clear from the above I am also satisfied that the wilfully false statements made by the applicant were made by him in connection with proposed employment by the Commonwealth more specifically enlistment into the Army. He is disqualified from any entitlement to compensation because the disease(s) suffered by him shall not be taken to be an injury.
43. In all of the circumstances the decision under review should be affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior Member
Signed: Holly Weston
AssociateDates of Hearing 13 October 2003 and 3 February 2004
Date of Decision 19 February 2004
Solicitor for the Applicant Self represented
Counsel for the Respondent Mr A Moulds
Solicitor for the Respondent Australian Government Solicitor
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