Recruitment of ADF employees has the potential to employ persons with undetected medical conditions, weaknesses or propensities. This remains so, regardless of the strict medical standards which apply to recruits and the thorough medical examination to which they are subjected at application for employment. Given the nature of many medical conditions, this may be inevitable. Furthermore the legal doctrine applied to all Australian compensation law, is that the employer accepts an employee 'as he finds him' and the latent or pre-existing nature of a disease can not diminish liability for any subsequent aggravation or acceleration by employment of an emerging illness.
This doctrine certainly applies where the client was in no position to know of their own (latent) medical condition or propensity to develop that medical condition and was thus not able to fully inform the examining doctor at enlistment.
The 'take him as you find him' doctrine naturally also applies where a pre-existing illness or an unfortunate medical history or a former injury was made known to the ADF medical examiner at recruitment, and the decision was taken to employ that person anyhow.
However, where the client has deliberately concealed a medical condition or a relevant medical history, that fraudulent concealment cancels any liability for an aggravation of, or sequelae to, that condition.
Where a person is aware of an existing illness or injury and wilfully withholds this or any other aspect of their medical history (including treatment, investigations etc.) at enlistment, S7(7) applies:
7(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 his 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.
Note that a failure to disclose the injury, illness, medical history etc. must be wilful, i.e. there must be no doubt that it was reasonable for the client to recall and reveal the information, and that the suppression of that information was a deliberate act.
If a Delegate is satisfied that misrepresentation or concealment of information is involved, S7(7) cancels any liability to pay compensation for that condition or any aggravation of that condition or any sequelae.
Furthermore, Delegates should note that such an act of wilful concealment represents fraud, which may also lead to dismissal from the ADF if that employee is still serving.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20218%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20367%23comment-form