McQueen-Thomson and K&S Freighters Pty Ltd  AATA
Although Mr McQueen-Thomson did make an incorrect
representation in his claim form, the Tribunal did not consider his
representation to be wilful and false.
On 17 December 2012, Mr McQueen-Thomson suffered an injury to
his right shoulder while delivering dry ice in Tullamarine. He was
standing on the side of his truck when he lost his footing, due to
the wet and slippery conditions, falling on the concrete. As a
result of the incident, Mr McQueen-Thomson lodged a claim for
workers' compensation, which K&S accepted.
Mr McQueen-Thomson subsequently returned to work performing his
full time driving duties. However, whenever performing lifting
tasks, he suffered pain in his right shoulder and would therefore
rely on his left shoulder to bear the brunt of the weight.
In May 2014, Mr McQueen-Thomson developed left shoulder pain
whilst pulling himself into the cabin of his truck. He reported the
pain to be a "sharp tooth-ache like pain" and said that
he would get the pain whenever he would do left shoulder lifting or
get into the cabin of his truck.
On 5 June 2014, Mr McQueen-Thomson lodged a second claim for
workers' compensation in respect of his left shoulder
condition. At question 13, when asked "have you ever had a
similar symptom, injury or illness before, work related or
otherwise", Mr McQueen-Thomson answered no. Question 13
then directed Mr McQueen-Thomson to go to question 16, but he
instead completed questions 14 and 15. Mr McQueen-Thomson's
claim was denied by determination dated 30 July 2014, and affirmed
by reviewable decision thereafter. He sought further review at the
If an employee makes a claim for compensation under the SRC Act,
but has made a wilful and false representation that he or she did
not suffer, or had not previously suffered, from a condition that
is the same as the claimed condition, then the condition will not
be taken to be an injury pursuant to section 7(7) of the SRC
K&S submitted to the Tribunal that the reviewable decision
of 9 September 2014 should be affirmed on the basis that Mr
McQueen-Thomson made a wilful and false representation on his claim
form and was therefore precluded from receiving compensation
pursuant to section 7(7) of the SRC Act.
Mr McQueen-Thomson conceded that answering no to question 13 on
his claim for workers' compensation was incorrect, stating that
it was as a result of confusion. Dr Damien Cremean, Senior Member,
accepted Mr McQueen-Thomson's explanation, rejecting
K&S's submission that the incorrect answer to question 13
was wilfully false.
The Tribunal revoked the reviewable decision of 9 September
2014, and found instead that liability should be accepted for the
left shoulder injury.
The expression of section 7(7) of the SRC Act clearly states
that a representation must be both wilful and false. The burden is
on the employer to show that an employee's representation
satisfies the criteria and is not merely incorrect, as was the case
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