1. Mr Gangell is the Assistant Manager of the Lilydale International Hotel which employed Mr Wilson between 7 November 1992 and 30 June 1994 as a casual barman. Mr Gangell said the applicant worked between 12-15 hours per week in work which involved general bar duties but including carrying boxes. Mr Gangell was aware that Mr Wilson suffered a back injury and did not perform heavier aspects of the work. He was prepared to allow Mr Wilson to have time off when he was unable to work because of back pain but continued to employ him because he regarded Mr Wilson as a good barman with a "great personality (and) he got on well with the customers".
2. In cross-examination Mr Gangell said that Mr Wilson applied for the job "off the street". He disclosed that he was undertaking a course at the William Angliss College and was able only to undertake casual employment because he had study commitments. Whilst he was aware that Mr Wilson had a back injury, generally it did not prevent him from undertaking the work. Mr Gangell said he became aware of the applicant's back injury approximately 4 months after he started. He said Mr Wilson did not disclose the back injury when he applied for the job. He said Job applicants, upon commencement, complete an application form which he described as "its basically an employment form, address, next of kin, drivers licence, previous experience". Mr Gangell did not have a copy of the application when giving evidence. When asked whether he would have concerned himself with the applicant's medical history that might prevent completing the work, Mr Wilson said "yes, but nothing came up about it so I didn't even bother about that".

1. Mr Hadley is an orthopaedic surgeon who examined the applicant on a medico legal basis on 9 January 1995. Arising out of that consultation a report dated 12 January 1995 was prepared and received into evidence.
2. Mr Hadley commented upon x-rays which were viewed by him at the consultation. The x-rays were taken on 16 February 1990 upon referral from Dr James and on 9 February 1992 at a military hospital in Brisbane.
3. In his report Mr Hadley commented upon the x-rays of 16 February 1990 as follows-

"They showed at T-12 - L1/2/3 there was mild irregularity of the opposing vertebral body surfaces with narrowing of all these discs. There was slight anterior wedging of the bodies of L1 and L2. There was Schmorl node formation on the upper and lower surfaces of the body of L2 and in the upper surface of the body of L3. No spondylolisthesis was seen. A defect in the right pars interarticularis of L5 could be seen but no defect in the left pars interarticularis of L5 was seen. There was no spondylosis."

1. Mr Hadley's comments upon the x-rays of 9 February 1992 were as follows-

"X-rays of his lumbo sacral spine were taken and had a similar appearance to those taken on 16/2/90 in relation to his upper lumbar vertebrae but a defect in the right and left pars inter articularis of L5 could be seen and there was now very slight spondylolisthesis at L5/S1. Again there was no development of spondylosis".

1. With respect to the x-rays of 16 February 1990 Mr Hadley said that in layman's terms he observed a defect in the back of a vertebrae which showed it had slipped forward, a condition known as spondylolisthesis. He said when vertebral discs degenerate they are then predisposed to thickening on the margins of adjacent vertebrae and the thickening is known as spondylosis. When a defect is present but without a slippage forward (of the vertebrae) the condition is known as spondylolysis. Mr Hadley said the defect present in the applicant's spine was at the fifth lumbar vertebrae. He said the description of symptoms given to him by Wilson at or about the time that he suffered back pain following playing cricket would be consistent with the findings upon the x-rays of February 1990.
2. With respect to the x-rays of February 1992 Mr Hadley said that there were similar appearances to the x-rays of February 1990 with respect to the upper lumbar vertebrae but there appeared upon the latter x-rays to be a defect at L5 and a very slight spondylolisthesis at L5/S1 but without development of spondylosis. Mr Hadley said the non development of spondylosis meant that there was no significant degree of degeneration of the disc at L5/S1.
3. Mr Hadley said that once a spondylolisthesis has occurred it is not reversible other than by surgery which he would not recommend upon Mr Wilson. At the present time he said the defect at L5-S1 which he described as pars interarticularis - (being instability of the fifth lumbar vertebrae) - was at risk of moving backwards or forwards because of its defect thereby putting a strain on muscles and ligaments at that region. In his opinion the spondylolisthesis present at L5/S1 evidenced by the x-rays of 1992 arose by reason of the "extra strain that his back had because the fifth lumbar vertebrae sits on the sacrum at an angle". Mr Hadley described that condition as being "an aggravation to a developmental anomaly" and said that that defect can be "aggravated by strains to that region". When an aggravation occurs Mr Hadley said that if the aggravation is bad enough cells break down permitting the fifth lumbar vertebrae to slip forward onto the sacrum (or in medical terms, S1) a condition that he described as being an injury. Mr Hadley said that at January 1995 when he examined Mr Wilson it was his belief that the symptoms then upon presentation were related to the applicant's work in the army and that once the injury had been aggravated Mr Wilson's spine was more vulnerable to aggravations.
4. In cross-examination Mr Hadley said there were two apparent factors distinguishing both sets of x-rays. One factor was that the defect at L5 could be seen at either side of the spine and the second was that the degree of spondylolisthesis present on the second x-rays amounted to the L5 defect being more obvious. Whilst acknowledging that the applicant's condition was congenital in origin Mr Hadley queried whether the pain upon presentation to Dr James, (refer evidence earlier of Mr Wilson) was present then in his low lumbar region or whether it was present at a higher level which, if it was, would suggest the presence of Scheuermann's disease.
5. Mr Hadley said the sloping of the fifth lumbar vertebrae was significant and despite the condition being congenital in origin there needed to have been an aggravating factor to have precipitated the applicant's symptoms.
6. The results of the bone scan authorised by Dr James on 20 February 1990 (being 4 days after the x-rays of 16 February 1990 "showed a moderate to marked increase in activity in the right L5 pars and a mild increased activity in the left L5 pars" (refer page 2 report Dr James 22 December 1994), Mr Hadley agreed that the result upon that scan would indicate the defect being obvious bilaterally, thereby demonstrating the L5 defect more clearly Mr Hadley said that his opinion of the defect, as was evidenced by the x-rays of 16 February 1990, did not alter because the bilateral defect was then already present. Mr Hadley agreed that radiologically Mr Wilson, at February 1990 did suffer a disorder of the spine which has continued since and which has subsequently been aggravated, but that at February 1990 there was no spondylosis. According to Mr Hadley the employment of Mr Wilson in the Army was responsible for an aggravation of his pre-existing defect or disorder and any subsequent incapacity was a consequence at least in part of that disorder or defect.
7. When assessing the whole person impairment pursuant to the Guide Mr Hadley relied upon Table 9.6 and assessed the applicant as having a whole person impairment of 10% based on a loss of a quarter of range of movement. When asked to take account the incapacitating effects of injury "upon a pre-existing or underlying condition" Mr Hadley said that it was difficult to determine the extent that present loss of movement was attributable to the pre-existing underlying condition. He said the underlying condition being developmental in nature probably would have caused loss of movement without aggravation. Mr Hadley agreed that in 1990 the symptoms then complained of by Mr Wilson suggested a loss of spinal movement "of some percentage".
8. Mr Hadley agreed there appeared to be a degree of consistency between findings made by the applicant's doctor in 1990 and by Mr Speck an orthopaedic surgeon in 1993 and 1995 that the applicant had normal range of movement in his thoraco lumbar spine, except for slight pain upon extension. Nonetheless Mr Hadley said that he was only asked to asses the loss of range of movement upon examination on the occasion that he saw the applicant in January 1995. He said that on that date his findings were apparently different to the findings made by the doctors on other occasions. He said range of movement can vary from time to time in terms of the extent of restriction. Mr Hadley was however not prepared to "exclude entirely" a contribution to the loss of movement that he observed from the applicant's pre-existing condition.
9. When asked to comment upon a report provided at the request of the respondent by Dr Lefkovits who reported that the aggravating effects by the applicant's employment in the army would have only lasted for a few months, Mr Hadley said that the history he obtained from the applicant was that following injury Mr Wilson continued to participate in an obstacle training course and was carrying a pack. Mr Hadley was apparently unaware that the applicant had been engaged in light duties prior to discharge.
10. In re-examination Mr Hadley noted that the applicant apparently was able to play soccer prior to enlistment in the army and assumed in those circumstances that he had a good range of spinal movement. He noted also that the applicant had been awarded a trophy in the army for outstanding performance in physical training and appeared to be coping well for a period of time in his pack drills and marching.

1. Dr James examined the applicant on 15 February 1990 and 1 March 1990. He also provided report of 22 December 1994 which was taken into evidence.
2. Dr James said that he formed the opinion in February 1990 that Mr Wilson was suffering from a symptomatic spondylolisthesis at L5. He advised rest and wearing of a spinal brace for a period of 6 weeks. Surgery was then not considered. He anticipated that symptoms would settle. He did not attend the applicant after March 1990 but anticipated that the state of the applicant's spine in the future would be dependent upon the healing of the spondylolisthesis. Dr James qualified this answer by distinguishing between a bony union ultimately occurring, which he said would then "result in a normal spine" or a fibrous or cartilaginous union where the applicant would then be prone to further symptoms.
3. When told during evidence in chief that the applicant had played soccer for two seasons after the last consultation, completed his secondary education, joined the army and undertook extensive physical training involving carrying a pack, negotiating obstacle courses and long marches and was awarded a prize for his physical training pursuits but ultimately suffered back pain and pain referred into his legs following episodes of carrying heavy packs, lifting logs and car tyres, Doctor James said that he was not surprised to hear of such a scenario. He said that "anything could happen in the future" insofar as the state of the applicant's spine when he examined him in February and March 1990 because it was then undetermined whether there would have been any subsequent bony union of the spondylolisthesis or a fibrous or cartilaginous union.
4. When asked to comment upon the x-rays of February 1990 and further x-rays taken in June 1992 (as referred to in the evidence of Mr Hadley) Dr James said that it would appear that there has been a spondylosis present since 1990. Additionally Dr James said that he had no evidence of any spondylolisthesis at February 1990 and when asked to assume that a spondylolisthesis was present at June 1992, present at the L5/S1 level as was the opinion of Mr Hadley, Dr James said that it was possible that pain at that time could have been related to a spondylolisthesis.
5. In cross-examination Dr James confirmed that the history that he took from the applicant at first presentation of back pain for three prior days together with a previous background of low back pain for 9 months was recorded accurately by what he had been told by the applicant at examination. Likewise Dr James relied on his notes where a record was made of suffering injury after landing from taking a mark at football.
6. When asked to comment upon a finding of Dr Lefkovits that Mr Wilson had suffered a temporary musculo ligamentous injury when playing cricket prior to first consultation in 1990 Dr James disagreed and said that the opinion that he then had was of Mr Wilson having a symptomatic spondylosis. Whilst he recorded in his notes that the applicant did have a fracture it was not possible from his examination to determine whether the fracture was existing prior to the playing of cricket.
7. When asked to comment upon an opinion of Dr Lefkovits that the applicant again suffered musculo ligamentous injury when in the army, involving an aggravation lasting a matter of months only, Dr James said that it would have been more likely that reported symptoms of pain upon spinal extension amounted to symptoms then being due to spondylosis moreso that any muscular injury.
8. Nonetheless, Dr James agreed that the symptoms as described to him from army service were similar to the symptoms that he observed and recorded following consultations in February and March 1990.

1. Mr Speck is an orthopaedic surgeon who examined the applicant in February 1993 and May 1995. Two reports were provided by him dated 8 February 1993 and 29 May 1995 both of which were taken into evidence.
2. Mr Speck was of the opinion that the applicant suffered from spondylosis at L5 level which was aggravated by his army service. He described a spondylosis as being developmental in nature and essentially was an unhealed fracture. He said it was possible for symptoms of the spondylosis to settle but its tendency is to cause persisting symptoms. Any activity which involved extension of a persons spine who suffers from spondylosis is likely to produce an irritation or an aggravation and Mr Speck associated the applicant's army training involving heavy lifting as producing a spinal extension.
3. With respect to any impairment by reason of the condition Mr Speck said that he anticipated that the effects of the aggravation of the spondylosis by the applicant's employment in the army could now reasonably be regarded as being permanent because symptoms have persisted since the time of his employment in the army. In his opinion the unhealed fracture precipitating a "gap in the bone" would not heal and that the source of pain might be explained by that fracture.
4. With respect to the applicant's capacity for work Mr Speck was of the opinion that he would be fit to undertake work which did not involve repetitive bending, lifting or extension of the spine. This would involve, in his opinion, not working above shoulder height because to do so would involve extending the spine which would irritate the existing condition.
5. In cross-examination Mr Speck said that five or six percent of the general population suffered from spondylosis but those persons may not necessarily suffer from its symptoms. It was a condition he said which occurred during a persons growth, either immediately after birth or during adolescence.
6. Mr McInnis drew to the attention of Mr Speck the results of a bone scan conducted on 20 February 1990 which was arranged by Dr James. The scan reported-

"Clinical History - young man with 9 months lower back pain more in the right than the left.

Report - the SPECT study of the back shows moderate to severely increased activity in the right L5 facet region. However there is also mild to moderate increased activity in the corresponding left L5 pars.

Conclusion - probable active right L5 pars fracture possible old or less active left L5 pars lesions."

1. Mr Speck said that whilst he was not satisfied that the results of x-rays taken in 1990 demonstrated a bilateral spondylosis he said based on the report of the bone scan there was a possibility that there was bilateral spondylosis but did not regard it as being conclusive. He suggested that there would need to be a CT scan to offer a positive conclusion. With respect to x-rays taken in 1992 Mr Speck said that he did not observe any significant difference between those films and the films of 1990 although he acknowledged that the x-ray films of 1992 "appeared" to demonstrate a bilateral spondylosis. He acknowledged that it was a possibility that the bone scan did demonstrate a bilateral defect in 1990 and the same defect was to be observed from the films of the 1992 x-rays.
2. With respect to any permanent impairment of the applicant's spine Mr Speck assessed the applicant as having a 5% whole person impairment pursuant to the Guide following his consultation in May 1995. At that consultation he noted that the applicant had a normal range of movement in the thoraco lumbar spine in all directions except extension. Extension produced back pain. He agreed that his findings in 1995 as to spinal movement were similar to his findings of examination in February 1993.
3. Mr Speck reiterated his opinion that Mr Wilson suffered a permanent and persisting aggravation of the spondylosis by his army employment. He disagreed with an opinion of Dr Lefkovits who reported on behalf of the respondent that the spondylosis was a congenital disorder which was first rendered symptomatic by playing cricket and that the presence of pain then and during his service in the army was explained by musculo ligamentous injury only. He disagreed also with the conclusions of Dr Lefkovits that the musculo ligamentous injury was temporary in nature only. Mr Speck reaffirmed his opinion that the applicant suffered a persistent and permanent aggravation of his pre-existing spondylosis by his army employment. Similarly he dismissed the conclusions of Dr Lefkovits that spondylosis was a congenital condition.
4. With respect to the degree of contribution by army employment to the present level of the applicant's pain Mr Speck said that the whole of the applicant's restrictions and persisting pain are to be explained by his army employment. Mr Speck said that although the applicant did have a pre-existing injury which did produce pain in or about 1990 it would appear that the pain settled and that the applicant was able to undertake employment thereafter but subsequently the pre-existing injury became symptomatic by reason of the army employment.
5. In re-examination Mr Speck said that his opinion was re-enforced by a report admitted into evidence as Exhibit 9 being an assessment of the applicant with respect to his physical training shortly after his enlistment in the army. The report commented that the applicant "has consistently put in to achieve an outstanding result. He performed well in the field and proved to be both reliable and motivated. This recruit has been awarded the best at PT Trophy - an outstanding sportsman. Should fit well into a riffle sect. NCO potential." Mr Speck said that those comments would indicate that at least at that time the applicant was not restricted, but his subsequent army service did produce an aggravation of the spondylosis which in turn caused persisting symptoms and restrictions thereby giving rise to the permanent impairment.

1. Doctor Lefkovits is a consultant physician who has "an interest in rheumotology". He examined the applicant on 5 December 1994 at the request of the respondent and provided a report of the same date.
2. At the date of consultation he assessed the applicant as being fit to continue the employment then being undertaken in a full time capacity. He believed the applicant was capable of continuing to work as a croupier and noted that the applicant apparently had not undertaken medical treatment for many months.
3. With respect to the applicant's injury Dr Lefkovits noted that a spondylosis could either be developmental (a term that he described as referring to an abnormality resulting from an unknown phenomena during birth or conception - sometimes also known as constitutional or congenital) or it could be post traumatic in nature (where a person has had a significant back injury sufficient to cause fracture or dislocation of one or more vertebrae). He assumed that in the absence of "significant past trauma" that the applicant's spondylosis was developmental or congenital in nature.
4. Doctor Lefkovits in support of his opinion that the spondylosis was congenital said that the injury itself became symptomatic after the onset of pain associated with participation in cricket as a bowler.
5. The witness was of the opinion that the applicant's employment in the army did no more than produce a temporary aggravation of the pre-existing spondylosis. He said that there was no specific event during the army employment which would make "him (think) that he had a permanent worsening or permanent aggravation or indeed an acceleration of the degenerative process" which he believed was already evident upon the 1990 x-rays (transcript p. 162). He said that he might hold a different opinion if the employment with the army extended beyond 5 months into several years. The fact that the employment with the army was relatively short led him to the conclusion that an employment of that duration would be unlikely to produce any permanent change in his back and that it was more likely than not that there was an aggravation only of a temporary nature which would last somewhere between 6 weeks and 6 months and upon that temporary aggravation concluding the applicant's back would have returned to its pre-existing "underlying constitutional disorder".
6. In cross-examination Dr Lefkovits said his opinion that the pre-existing spondylosis was temporarily aggravated only, was obtained from "clinical impressions". He based that opinion upon his experience of persons who suffer a "flare up" of symptoms performed unusually or excessively in physical activity. If that activity ceases, in his experience, persons returned to their pre-activity state. It followed, he said, that he would have expected Mr Wilson to return to his pre-activity state somewhere between 6 weeks and 6 months after he ceased his army employment.
7. When asked to comment upon the report of the applicant's supervisor made following his physical training shortly after recruitment (Exhibit 9) Dr Lefkovits said that the report would indicate that Mr Wilson was a very fit person capable of "doing virtually anything without pain". He agreed that the applicant at least until the time of his examination in December 1994 would not have been fit to continue his work in the army, but said that in his opinion, the applicant suffered a "significant change in his coping levels" and explained this by reference to the applicant becoming aware that he had suffered either injury or aggravation causing discharge with which there would have been "all the emotional and psychological baggage". He said the applicant would have had to reappraise "his values and priorities and where he was going in life" thereby precipitating a degree of stress. He said the applicant would have suffered a self perception of permanent injury based upon a belief of a permanent worsening by the army employment. The fact remained, in his opinion, that the applicant had not required treatment and at the time of his examination the symptoms were of "nuisance value only".
8. Dr Lefkovits said as a result of examination of the applicant plus observation of x-rays that there was no evidence of any significant low back injury as a consequence of his army employment and in his opinion any injury by army employment would more properly be described as a soft tissue musculo ligamentous back strain. He said there was no permanent disc or boney injury or any evidence of pathological fracture. When asked to observe the 1990 x-rays during cross examination, he disagreed with the opinion previously given by Mr Hadley and said that he could observe no difference between the 1990 and 1992 x-rays. He was unable to observe any forward movement at L5-S1 between the 1990 and 1992 x-rays and drew attention to a comment made by the radiologist upon the 1992 x-rays of "no slip".
9. Although not asked in either examination in chief or cross examination of the extent of any impairment suffered by the applicant, I note for the purposes of these reasons that Dr Lefkovits in his report of 5 December 1994 assessed the applicant under Table 9.6 with respect to the thoraco lumbar spine and found a 5% whole person impairment.

1. Due to the effluxion of time in the days allocated for the hearing of this application, written submissions were lodged by counsel for both parties.

1. Mr McInnis on behalf of the respondent submitted, that the applicant suffered from a disease within the meaning of s.5 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and that the disease should "not be taken to be an injury" for the purposes of s.7(7) of the Act because the applicant made a wilful and false representation "at any time".
2. Mr McInnis referred to the failure on the part of the applicant to disclose the presence of back injury when completing a medical questionnaire prior to enlistment and said that the failure to disclose that injury was obviously false and was wilful to the extent that the failure to refer to it amounted to a representation which was significant, deliberate and intentional.
3. Mr McInnis submitted that the applicant's explanation of the failure to disclose the injury being based upon "simple mistake" or that he had run out of time or was rushed in completing the form should be dismissed when the applicant apparently had sufficient time to disclose the presence of a prior ankle injury and hernia.
4. It was also submitted that the presence of the words "at any time" do not permit any leniency being offered to the applicant in interpreting the words "wilful and false representation" by the applicant's subsequent disclosure of the back injury after enlistment. It was noted also (with respect to the applicant's credit in the making of the false and wilful representation (as alleged)) that he also failed to disclose the back injury upon his application to Crown Casino. The applicant's explanation of promoting himself upon an application for employment was targeted by Mr McInnis as clearly being the conduct of a person who in self promotion would also be prepared to make false and wilful declarations.
5. In the event that the argument with respect to wilful and false representations was not upheld, it was submitted that the applicant had not suffered incapacity. Mr McInnis submitted that it was significant that the applicant had not ever registered with the Commonwealth Employment Service, did not seek or apply for any other employment (other than York Hotel), enrolled in a course of education with William Angliss College in 1992 and upon the original claim being made to Comcare sought impairment only.
6. Further, or in the alternative, it was submitted that the Tribunal should find that the effects of any aggravation of pre-existing back injury by employment with the army were temporary and by the date of discharge (1 November 1992) the applicant's spine had returned to its pre army state.
7. With respect to the application for permanent impairment it was submitted that subject to not being defeated by s.7(7) of the Act, the applicant had been unable to demonstrate a whole person impairment of 10% as is required by the Act. Mr Speck assessed impairment of 5% as indeed did Dr Lefkovits. Mr Hadley who did find a 10% whole person impairment said that part of that assessment would relate to pre-existing or underlying disease process. Accordingly, it was submitted that the applicant on the medical evidence failed to achieve the 10% threshold as is required by the Act to achieve an impairment lump sum.
8. In the circumstances it was submitted that the reviewable decision under review should be affirmed and the determination of 14 January 1993 be revoked.

1. Mr Moulds submitted that the exclusion from entitlement to compensation imposed by s.7(7) only applies with respect to diseases or their aggravation. He submitted that whilst the definition of injury included a disease the definition of disease did not include injury. It was submitted that whether the applicant suffered an aggravation of a disease or a discrete injury will be a question of fact, refer Re Tonkovic & Comcare (V92/731 and V93/109, unreported decision Deputy President Forrest and Messrs Gillham and Woodard delivered 11 March 1994).
2. It was submitted that the Tribunal should accept the evidence of both Doctors Hadley and Speck. It was submitted that by Mr Hadley giving an opinion that there was a spondylolisthesis at L5/S1 as he observed upon the x-rays of 1992 that a discrete injury was obvious and referable to the employment in the army and could not in the circumstances be said to be the aggravation of the underlying congenital or developmental condition. Mr Speck on the other hand said that the 1992 x-rays demonstrated a shift at the L5 level but it was not significant. Mr Speck said that the spondylolisthesis at L5 appeared to have been aggravated by army training and that the symptoms persisted since the time of that training.
3. In the alternative it was submitted that it was open to the Tribunal to find as a fact that the applicant's employment with the army at Enoggera caused a discrete spinal injury rather than aggravation of a disease process because there was no reliable evidence that the applicant did suffer from a progressive disease. It was submitted that the applicant was predisposed to injury from trauma as he experienced with the army and the evidence of the applicant's duties in the army were of a kind sufficient to find as a fact that there was a frank injury and that that injury was responsible for the subsequent symptoms. Accordingly, it was submitted that s.7(7) did not apply because the Tribunal should find as a fact that the applicant suffered injury rather than disease.
4. As to the defence itself under s.7(7) it was submitted that the Tribunal should find that the applicant made no more than a mistake in the completion of his recruitment forms and that mistake might be explained by the haste in completion but in any event the applicants conduct in the completion of the form could not be regarded as being "wilful". Moreso it was submitted that the subsequent completion of a medical induction declaration where the previous back injury was disclosed was inconsistent with any attempt by the applicant to deceive. Mr Moulds submitted that the applicant was an honest witness who was not evasive and has simply made an error. That conduct and the applicant's demeanour were inconsistent with the respondents contention that he was deceitful and/or not being truthful.
5. With respect to the application for impairment it was submitted that the continuation of the applicant's symptoms from the time of his employment in the Army should be accepted and be referable to ongoing and permanent impairment. This proposition it was submitted is reinforced by the ability of the applicant only to engage in light employment consistent therefore with the ability of the applicant to continue with employment at Crown Casino. It was submitted that the injury suffered by the applicant "resulted in" a permanent impairment within the meaning of s.24(1) and that that whole person impairment was 10%. Section 24 it was submitted should be interpreted as dealing with the consequences of injury rather than injury itself. In so doing the Tribunal should enquire as to whether there was any permanent impairment prior to injury as sustained with the army and upon such enquiry it was submitted the Tribunal should find that either a prior impairment had not occurred or that any prior impairment was not permanent (s.24(2)). In advancing these propositions Mr Moulds reminded the Tribunal that prior to employment with the Army the applicant had otherwise been a fit and healthy young man without prior evidence of loss of range of movement and had previously engaged in high level soccer and cricket. Whilst it was true that the applicant did wear a spinal brace for six weeks previously he thereafter was symptom free prior to enlistment with the army. Accordingly the Tribunal should find that the impairment suffered by the applicant "resulted" from injury which occurred with the Army.
6. In the alternative, it was submitted that if the Tribunal were to find that impairment was the result of aggravation of pre-existing injury it should disregard what was believed to have been a concession on the part of Mr Hadley where he said that the applicant's impairment was "due to" or "related to the underlying condition". It was submitted that such an analysis was irrelevant. The Tribunal was directed to making a finding as to whether the injury "resulted in" an impairment whether by trauma or by aggravation. As to s.7(6) it was submitted that if impairment resulted from aggravation the Tribunal should find that the permanent impairment occurred because were it not for the aggravation the impairment would not have occurred or any impairment would have occurred "at a significantly later time" or the extent of the impairment would have been "significantly less". Additionally it was submitted that the provisions of s.7(6) must be construed and adopted both in favour of the applicant and in preference to the comments within the Guide at p.6 under the sub-heading of "aggravation". To do otherwise it was submitted, would be to ignore the beneficial nature of compensation legislation and where a choice was to be made as to the basis upon which compensation was to be paid an interpretation favouring the worker should be adopted - refer Re Ticsay and Comcare [1992] AATA 97; (1992) 15 AAR 316 and Thiele v Commonwealth [1990] FCA 123; (1990) 11 AAR 376.
7. In further support of the applicant suffering a permanent impairment and then at 10% of the whole person it was submitted that the injury did affect the "activities of daily living" (refer p.3 of Comcare guide) to the extent that the applicant was unable to play vigorous sport or pursue his career in the Army or undertake any work involving repetitive bending or lifting or requiring long term standing or sitting. It was submitted in the opinion of Mr Hadley that the applicant suffered a loss of a quarter range of movement which was consistent with an impairment of 10% whole person.
8. With respect to the applicant's claim for incapacity payments it was argued that the applicant did suffer an incapacity for work within the meaning of s.4(9) and s.19(1). It was submitted that the applicant was only fit for employment of a light nature and the applicant was incapable of engaging in work at the same level that he was engaged by the Commonwealth immediately prior to injury (s.4(9)). With respect to the applicants ability to earn, Mr Moulds drew attention to the fact that the army ultimately terminated the applicant's enlistment without offering any suitable employment, rehabilitation and retraining was not offered and the applicant, having been left to his own devices, in fact did obtain suitable employment, that is to say, he did not fail to seek suitable employment as s.19(e) discusses. Accordingly the "ability to earn" is influenced by the foregoing factors and the amount able to be earnt between cessation of employment in the army and commencement of employment with Crown Casino was that amount only which was earnt with the York Hotel in Lilydale. For ease of calculation it was submitted that the applicant would concede an ability to earn between 1 November 1991 and May 1994 at 4 hours per day over 5 days per week as a barman (refer s.19(a) and (g)).
9. Consistent with the above submissions and in response to the written submissions of the respondent, Mr Moulds argued that the comments and observations made by the respondent with respect to the s.7(7) defence should be dismissed. As to the evidence of Dr Lefkovits it was argued that his conclusions as to temporary aggravation were both inconsistent with the evidence of Drs Hadley and Speck and were inconsistent with his own conclusions to the extent that he accepted that the applicant continued to suffer ongoing symptoms that is a concession inconsistent with an earlier opinion of temporary aggravation. With respect to the attack upon the applicant's credibility Mr Moulds noted that the respondent chose to call no-one from the army to impugn the applicant's credibility or character and that there was nothing in the evidence of the applicant with respect to his written application to Crown Casino which would permit any conclusion of him being a person with a tarnished character.

1. Mr McInnis in his written reply to the written submissions of the applicant said that the comments by Mr Moulds as to the absence of any evidence of the plaintiff suffering a "progressive disease" were misconceived because the definition of disease does not encapsulate such a condition. The comments of Mr Moulds that the work with the army was "the kind of trauma that can cause a change in pathology" were submitted as being speculative and any finding by the Tribunal should be on the balance of probabilities. The interpretation made by Mr Moulds with respect to the applicant's demeanour and conduct at or about the time of completing his application for employment with the army was submitted by Mr McInnis as being inconsistent with the facts and inconsistent with the notion of wilful and false representation. Further it was submitted that any regard to the beneficial nature of compensation of legislation would be an irrelevance in the context of the exclusion from entitlement to compensation if a wilful and false representation was found as a fact to have occurred.
2. As to the existence or otherwise of injury presently it was submitted that if the Tribunal were to find that there was an aggravation of a disease the respondents case in effect would be strengthened because an allowance would need to be made with respect to the pre-existing or underlying condition which had been aggravated. It was further submitted that there was an absence of corroborative evidence that the applicant's back injury had recovered following the cricket episode. As to the application of the Guide it was submitted that s.24(5) requires the Guide to be applied as also does s.28(4). Accordingly the comments made at p. 6 under the sub-heading "aggravation" should be followed.
3. As to the extent of impairment it was submitted that on any practical consideration of the daily activities of the applicant and the anticipated bodily movements within those activities it could not be found as a fact that if the applicant has any permanent impairment that such impairment would be at a level of 10% whole person.
4. As to ability to earn it was submitted that at all times relevant the applicant has had a capacity for full-time employment but chose to be a student.
5. With respect to the comments made by the respondent in its initial submissions as to the wilful and false representation made by the applicant and the subsequent comments made by the applicant's counsel in written submissions, Mr McInnis in reply said that the wilful and false representation was made only at the time of application for joining the army and any comments made with respect to the applicant's character are confined to that point in time only. Additionally it was submitted that despite the applicants disclosure of back injury after enlistment the fact remained that a wilful and false representation was made immediately prior to enlistment which deceived the army.

DID THE APPLICANT MAKE A WILFUL AND FALSE REPRESENTATION?

1. Section 7(7) of the Safety Rehabilitation and Compensation Act 1988 says-

"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 the purposes connected with his or her employment or proposed employment by the Commonwealth made a wilful and false representation that he or she did not suffer or had not previously suffered from that disease".

1. For reasons which follow, I am satisfied that the applicant, when completing the medical history questionnaire (T-19) made a false representation but I am not satisfied that that representation was wilful.
2. The question asked in the form was "Have you ever had, or are you know suffering from any of the following?". The applicant had suffered a "back injury" as question 52c asked. The evidence of the applicant and Dr James demonstrate the existence of a "back injury" in 1990. It was therefore a false representation. But the falsity need not be deliberate or intentional (McAuliffe v Secretary, Department of Social Security [1991] FCA 268; (1991) 23 ALD 284 and 1992 28 ALD 609).
3. To be excluded however from an entitlement to compensation under s.7(7) of the Act the representation must be wilful and false (not wilful or false) and must be a representation made for purposes connected with his or her employment or proposed employment. In Comcare v Porter (1996) 138 ALR 469 Jenkinson J at p.478-479 said-

"Barwick CJ observed in Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at 94-5:

It is thus appropriate to consider the meaning and application of the word "wilful" in the specification of an offence. The Chief Justice of South Australia, having examined the case law, has repeated the view that the cases show that the word "wilful" is not a word fixed meaning. But of this I cannot myself feel absolutely certain. I am inclined to think that in the description of a criminal offence its connotation is fairly constant: but that its denotation varies with the verbal context and the subject matter of the statutory provision. In my opinion, "wilful" connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful.

That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s 7(7). The verbal context supplied by the phrase "false representation" exposes the legislature's attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word "false", and the representor's knowledge of the falsity, commonly signified in civil proceedings by the word "fraudulent": Halsbury's Laws of England, 4th ed, vol 31, paras 1044, 1059, 1063-1065; R v Aspinall (1876) 2 QBD 48 at 56-7. 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 subsection 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. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.

In Commonwealth v Christoffelsz (1988) 18 FCR 415; 79 ALR 611 and in Owens v Australian Postal Corp (Fed C of A, VG no 510 of 1992; 6 July 1994, unreported) the reasons for judgment of Neaves J and Keely J respectively assume the correctness of the construction I have given s 7(7), which was not called in question in either case".

1. As Barwick CJ said above "wilful" connotes intention and knowledge but also connotes an element of purpose. Jenkinson J said above, that the word "wilful" in the context of the phrase "wilful and false" requires that the representation be made without any belief that it is true.
2. In McPherson v Repatriation Commission (1989) 87 ALR 275 Morling J said modern speech defined "wilful" as referring to bad conduct and "wilful act" meant conduct which was deserving of a serious censure or blameworthy. The High Court in Australian Meat Industry Employees Union & Oths v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 66 ALR 577 said casual, accidental or unintentional conduct would not amount to "wilful disobedience" sufficient to breach an injunctive order of a Court.
3. I am satisfied that the applicant did make a mistake and/or was careless in his answer to question 52c. The answer given may be explained either by his rushing to complete the form (the question is placed near the end of the form) as he said in evidence, or that his carelessness with respect to that question may be explained by simple mistake as he also said in his evidence.
4. The answers given to the questionnaire amount to "representations" and the purpose of these representations is connected with "proposed employment" (s.7(7)). But it is the whole of the answers (the representations) to the questions which the employer would have had regard when assessing the potential of the applicant for employment. In the context of mistake or carelessness in his answer to question 52c I note the applicant also represented to the employer, in the same form, that he had "experimented with marijuana or with drugs (other than prescribed)" potentially therefore exposing himself to, or at least at risk of, criminal proceedings. Such a disclosure, in my opinion, is consistent with conduct of a person who is honest and credit worthy. It supports a conclusion that the falsity of his answer to question 52c was unintentional or casual or careless but not wilful. I am also moved by the applicant's disclosure of the back injury in January 1992 (T-25) being the month after enlistment where he then described the injury as a "fractured lower vertebrae 1990". Disclosure then, I am satisfied, reinforces the mistake or carelessness in the answer given on the form of November 1991. It would be farcical to suggest that having been enlisted he could regard his employment as then being secure by him subsequently admitting a prior back injury.
5. The preamble however to the January 1992 questionnaire leaves in my mind no reasonable doubt to these conclusions because it asks "Is there any medical condition or medical history that you failed to declare to the recruiting centre that you wish to declare now". The answer then given was "no". The applicant then went on to disclose the back injury that is, the injury that he did not declare in the earlier questionnaire. The carelessness or ignorance of the mistake made earlier is therefore evident because if he knew - wilfully or otherwise - that he had not disclosed the back injury he would not, in my opinion, have said there was nothing to declare then (January 1992) that he had not declared earlier and then proceed to admit the back injury and describe it.
6. In reaching this conclusion I am aware that compensation legislation is beneficial and socially remedial. It should be interpreted and applied according to such characteristics. It would be a dire and unforgiving consequence to disentitle compensation if a mistake was regarded as a wilful act.
7. For the above reasons, and having regard to the earlier authorities, I am not satisfied that the applicant has made a wilful and false representation.

IS THE APPLICANT ENTITLED TO WEEKLY COMPENSATION?

1. At the commencement of the hearing Mr Moulds submitted that in the event that any finding was made in favour of the applicant with respect to entitlement to weekly compensation that the application should then be remitted to the respondent for calculation of that entitlement. It was submitted at the commencement of the hearing that the applicant would seek an entitlement to compensation between 1 November 1992 when he was discharged from the Army until May 1994 when he commenced full-time employment with Crown Casino. The applicant did not seek any weekly compensation after the commencement of employment with Crown Casino. Between November 1992 and May 1994 the applicant was employed by York Hotel in Lilydale. His earnings from that employment were produced into evidence and any calculation as to entitlement to weekly compensation may have as the basis for entitlement a reference to those earnings. Similarly the applicant's earnings with Crown Casino were produced into evidence and may also prove useful in calculating the applicant's weekly entitlement.
2. During the hearing it was acknowledged that the applicant did have a back injury prior to enlistment with the Army. The issue then became whether the applicant suffered a fresh injury by his army employment or whether the army employment aggravated the pre-existing injury and then if so whether that application was of a permanent or temporary nature.
3. Dr Lefkovits said that in his opinion the applicant had suffered from a temporary aggravation of a pre-existing injury which was more likely than not to have resolved somewhere between 6 weeks and 6 months after the onset of injury. His observation of x-rays and a bone scan indicated to him that there was no difference in the state of the applicant's spine radiologically between 1990 and 1992 thereby reinforcing his opinion of temporary aggravation only and there not being any permanent or lasting effects by the temporary aggravation of the pre-existing injury by the army employment.
4. Mr Speck regarded the x-rays and bone scan as not being conclusive and said that there needed to have been a C/T scan performed to have offered a more definitive opinion of any alteration in the state of the applicant's spine subsequent to the applicant's employment in the army. In his opinion the applicant suffered a persistent and permanent aggravation of the pre-existing spondylosis by army employment, and dismissed the conclusions of Dr Lefkovits as to temporary aggravation, his comments as to the injury being musculo ligamentous in nature and that the spondylosis was a congenital condition. He was moved by the applicant's evidence of back pain settling following the 1990 episode and the applicant being able to undertake heavy and exertive manoeuvres within the army but which were subsequently responsible for the onset of pain. He noted also that the applicant had achieved an outstanding physical training rating shortly after enlistment which he said would be inconsistent with the applicant then having any spinal restriction.
5. With respect to Mr Hadley, although I found his evidence as to the existence or otherwise of permanent injury to be unreliable, he like Mr Speck found that the applicant's employment in the army did cause a permanent aggravation of the pre-existing state of the applicant's thoraco lumbar spine.
6. On balance I am satisfied that the applicant has suffered a permanent aggravation of his thoraco lumbar spine by his army employment. Whilst that aggravation has not been to a level sufficient to give him an entitlement to a permanent impairment under s.24 I am nonetheless satisfied that the ability of the applicant to earn income was affected between November 1992 and May 1994 as a result of that aggravation.
7. I note that whilst the applicant did wear a spinal brace for approximately 6 weeks following the episode of back pain in 1990 whilst playing cricket, on the applicant's evidence, the pain thereafter settled. Shortly after enlistment the applicant was able to engage in arduous physical training involving extensive marching, wearing a heavy pack, digging trenches, and lifting logs and jeep tyres. The applicant's back pain has persisted since the time of his employment in the army unlike the dissipation of the pain following its onset in 1990. The persistence of pain since the army cannot, I am satisfied as a probability be explained by co-incidence but is more likely than not to have its origin in the unusual and extreme exertion to which the applicant was exposed during his army employment.
8. I note that the applicant worked part time only between November 1992 and May 1994 and was also within that period of time a student at the William Angliss College. I am not satisfied that the applicant electing to return to studies imposed upon himself the inability to undertake employment but rather the extent of the applicants capacity for employment was confined only to the part time duties he did complete as a barman at the York Hotel being work which permitted him to sit and stand at will without heavy lifting and then working relatively short hours for 3 or 4 days per week only. I am not satisfied therefore that the applicant could have undertaken that work on a full-time basis. Likewise I am not satisfied that the ability of the applicant to undertake study and the consequent physical activity involved in attending school could be translated into physical activity necessary to undertake employment. The discipline of being a student and the physical activity involved in being a student is in my opinion altogether different from that which would be required of a salaried employee.
9. Accordingly, I am satisfied that the capacity of the applicant to earn full-time salary only commenced at the date of commencement of employment with Crown Casino but then only because of the unusual nature of the work which the applicant was then fortunate enough to obtain. It would indeed be rare for persons to obtain employment where although having to stand, they could after 1 hour be given 15 minutes of rest. It is only because of that regime, in my opinion, and having regard to the medical evidence heard in these proceedings, that the applicant has been able to both commence and thereafter continue with that employment.

HAS THE APPLICANT SUFFERED AN INJURY RESULTING IN PERMANENT IMPAIRMENT?

1. I am satisfied that the applicant has suffered a permanent impairment but that the degree of impairment is less than 10% of the whole person and, having regard to provisions of s.24(7) of the Act, the applicant is not entitled to compensation.
2. Dr Lefkovits who gave evidence on behalf of the respondent, assessed the applicant under Table 9.6 of the Guide with respect to the thoraco lumbar spine as having a 5% whole person impairment. Mr Speck who consulted with the applicant on two occasions at the request of the applicants solicitors, also found that the applicant had a 5% whole person impairment pursuant to the Guide. Mr Hadley assessed a 10% whole person impairment pursuant to Table 9.6, but in my opinion gave evidence which was equivocal (with respect to the extent of the impairment) and not reliable. Mr Hadley conceded that some of the symptoms complained of by Mr Wilson were related to the state of the applicant's spine prior to his enlistment in the army and when asked to account for the discrepancy in the range of movement of the applicant's spine as noted by the medical witnesses, Mr Hadley said that the range of movement as detected by him (thereby influencing his opinion as to permanency of impairment) arose out of his one consultation only in January 1995. Again he conceded that any loss of movement may have as a contributing factor the state of the applicant's spine prior to enlistment in the Army.
3. In all of the circumstances I cannot be satisfied as a probability that the applicant has a 10% whole person impairment. The applicant is therefore not entitled to compensation under s.24 and consequently is not entitled to compensation under s.27.

1. In all of the circumstances I am satisfied that the decision under review should be set aside and the respondent is liable to pay weekly compensation to the applicant between November 1992 and May 1994. The application is otherwise remitted to the respondent for calculation of that entitlement. It is further decided that the applicant is not entitled to a lump sum for permanent impairment pursuant to s.24.
2. The respondent is liable to pay the applicant's costs pursuant to the Tribunal's practice direction.

I certify that this and the 36 preceding pages are a true copy of the decision and reasons for decision herein of Mr J. Handley, Senior Member.

Signed: Carolyn Irons ................................................

Solicitor for the Respondent Australian Government Solicitor