Failure to Disclose Prior Injuries/Conditions

Griffiths and Australia Postal Corporation (Compensation) [2017] AATA 1025 (4 July 2017)

Question before the Tribunal

In the matter of Griffiths and Australian Postal Corporation (Griffiths), the Tribunal considered whether Ms Griffiths was entitled to compensation in respect of her psychological condition and whether she had made a wilful and false misrepresentation in respect of her psychological condition under section 7 (7) of the Safety, Rehabilitation and Compensation Act (the Act).

The Law

 Section 7 (7) of the Act is clear; an employee who is otherwise entitled to compensation for a disease under the Act loses that entitlement if he or she wilfully makes a false representation about not having previously suffered from the disease. A single deliberate misrepresentation in this respect is enough to exclude the employee from compensation.

Had Ms Griffiths ever had a similar injury/illness?

The evidence before the Tribunal indicated that Ms Griffiths had suffered a number of psychiatric occurrences (depression and anxiety) prior to her claims for workers’ compensation.

Nevertheless, when making her first claim for compensation in respect of Anxiety in 2014, she ticked “No” when asked if she had ever had a similar injury/illness. In 2015, when making her second claim for compensation in respect of  Anxiety and Depression, Ms Griffiths once again ticked “no” when asked if she had previously suffered from a similar injury/illness. The Tribunal stated that the history of  Ms Griffiths’ previous episodes of anxiety and depression were “so pronounced” that it would be difficult to avoid the conclusion that her claim of not having previously suffered from them were “deliberately untrue”. 

Was the representation made in relation to the worker’s employment?

When considering such a claim, the Tribunal must contemplate whether a representation made in a claim for workers compensation is one made for the purposes connected with her employment. In the case of Kennedy and Comcare, when Mr. Kennedy answered “no” to the question “Have you ever had a similar symptom, injury or illness...” it was said Mr. Kennedy’s answer of “no”  was in a claim for compensation for a condition said to have arisen from events at Mr. Kennedy’s workplace, therefore demonstrating an obvious connection to his employment. This view was subsequently adopted by the Tribunal in Griffiths’ case.

Tribunal Findings

 The Tribunal found that Ms Griffiths had been wilfully dishonest in relation to her medical history, and, as such, compensation was not payable in respect of the injury claimed the SRC Act. 

A lesson for employees

There have been a number of cases regarding willful non-disclosure and misrepresentation, which have posed questions of ambiguity, where it was not entirely clear whether a claimant’s act or representation had been wilful or misleading. However, in the case of Griffiths, the Tribunal found that there was no room for ambiguity, instead, it stated that it was “harder to imagine a clearer case where the exemption would apply”.  The case of Griffiths provides a valuable warning to employees, demonstrating the importance of full ongoing disclosure regarding a worker’s medical history throughout their employment, and when making a claim for workers’ compensation; otherwise risking that a claim will fall under the s7 (7) of the SRC Act, and subsequently releasing the employer of liability.