Joachim Wiegand and Comcare
[2014] AATA 413
•25 June 2014
[2014] AATA 413
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/2895 and 2011/2896
Re
Joachim Wiegand
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal President D Kerr
Deputy President K BeanDate 25 June 2014 Place Adelaide The Tribunal:
(a) varies the decision under review so as to provide that Mr Wiegand is entitled to compensation pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of his absence from work on 8 August 1995; and
(b) otherwise affirms the decision.
................[Sgd]…..........................
President D Kerr
CATCHWORDS
COMPENSATION - Commonwealth employees - Entitlement to incapacity payments under Safety, Rehabilitation and Compensation Act 1988 - Findings made by differently constituted Tribunal regarding applicant's date of injury - Applicant sought to relitigate date of injury issue - Whether Tribunal should exercise its discretion to revisit date of injury in the context of these proceedings - Further “new” evidence considered - No basis to permit relitigation of issue already decided - Consideration of applicant's entitlement to incapacity payments – Decision under review varied.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 7(4), 14, 19, 54
CASES
Re Catoni and John Holland Group Pty Ltd [2013] AATA 509
Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9; (1995) AATA 14
Mooi v Comcare [1996] FCA 1587; (1996) 69 FCR 439
Telstra Corporation v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253
Re Vittiglia and John Holland Group Pty Ltd [2013] AATA 493
Wiegand v Comcare (No 2) [2007] FCA 237; (2007) 94 ALD 154
Re Wiegand and Comcare [2005] AATA 780
Re Wiegand and Comcare [2010] AATA 790
Re Wiegand and Comcare [2012] AATA 623REASONS FOR DECISION
President D Kerr
Deputy President K Bean25 June 2014
This matter has a lengthy and complex history which it is not necessary to recount here in full. However it is appropriate to outline the key facts which form the background to the applications currently before the Tribunal.
The applicant, Mr Wiegand, was employed by the Australian Taxation Office (ATO) from 28 May 1986 to 28 March 2003, although he was absent from duty for health reasons from 2 January 1998 to 28 March 2003 when he was medically retired. In May 1998, Mr Wiegand made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of “major depression”, which he claimed had been contributed to by various events connected to his employment. Comcare denied liability for that claim, and protracted litigation ensued.
The procedural history of the matter between when the claim was first denied, in 1998, through until 2010 involved two separate Tribunal decisions dealing with essentially the same subject matter, each of which was subsequently set aside by the Federal Court. The history of the matter was also complicated by the handing down of the Full Federal Court decision in Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29, which changed the basis upon which Mr Wiegand’s claim was required to be assessed.
Following the decision of the Federal Court in Wiegand v Comcare (No 2) [2007] FCA 237; (2007) 94 ALD 154 setting aside a Tribunal decision made on 12 August 2005[1] and remitting the matter to the Tribunal, another hearing took place in August 2010 before a Tribunal constituted by the then President, Justice Downes, Deputy President Hotop and Professor Reilly, Member. In its subsequent decision of 15 October 2010, that Tribunal decided that Comcare was liable, under s 14 of the SRC Act, to pay compensation to Mr Wiegand in respect of dysthymic disorder (sustained on 20 July 1994) and major depressive disorder (sustained on 30 January 1998).[2]
[1] Re Wiegand and Comcare [2005] AATA 780.
[2] Re Wiegand and Comcare [2010] AATA 790.
There was no appeal to the Federal Court from that decision of the Tribunal, and Comcare duly proceeded to assess Mr Wiegand’s entitlements to compensation flowing from that decision, including his entitlements to incapacity payments pursuant to the SRC Act. Comcare assessed those entitlements, as it was required to do, having regard to the dates on which the Tribunal had determined that each of the relevant injuries had been suffered by Mr Wiegand. As the Tribunal had determined that Mr Wiegand’s first injury of dysthymic disorder was sustained on 20 July 1994, this had the consequence that the amount of incapacity payments to which Mr Wiegand was entitled was less than it might have been if the Tribunal had determined an earlier date of injury. That is because from 2 February 1994, Mr Wiegand was employed on a permanent part-time basis, working 22 hours and three minutes, per week. Prior to that time he had been employed on a permanent full-time basis working 36.75 hours per week. Accordingly, if his injury had been sustained before 2 February 1994, his entitlement to incapacity payments would have been significantly greater as he would have been entitled to be compensated for the loss of full-time rather than part-time earnings. Based on his dysthymic disorder having been sustained on 20 July 1994, Comcare determined that Mr Wiegand was entitled to incapacity payments pursuant to the SRC Act in respect of both injuries totalling $101,921.16.[3]
[3] Letter from Comcare to Mr Wiegand dated 23 February 2012.
However, as he contended that the Tribunal which made the 2010 decision (“the 2010 Tribunal”) should have arrived at an earlier date of injury in respect of dysthymic disorder, on 21 July 2011 Mr Wiegand lodged a further application with the Tribunal seeking review of Comcare’s determinations as to his incapacity payments flowing from both the dysthymic disorder and major depressive disorder respectively, and giving rise to these proceedings. At a relatively early stage of the proceedings, Mr Wiegand sought to tender further evidence directed to the question of the date of injury for his dysthymic disorder, and sought to have the Tribunal reconsider that issue.
The issue of whether Mr Wiegand should be permitted to re-agitate the issue of the date of his first injury, or lead further evidence in respect of that question, was the subject of a preliminary hearing before the Tribunal which led to a decision dated 18 September 2012.[4] In that decision, the Tribunal, constituted by Deputy President Jarvis, refused Mr Wiegand’s request to tender further medical evidence. However, consistently with discussions which had apparently taken place at the hearing, the Tribunal also noted that a course of action which would be open to Mr Wiegand would be to “to make a fresh claim for compensation in respect of dysthymic disorder based on an asserted date of injury of a date preceding 10 February 2004, when he commenced permanent part-time employment”.[5]
[4] Re Wiegand and Comcare [2012] AATA 623.
[5] Re Wiegand and Comcare [2012] AATA 623 at [28].
Mr Wiegand decided to pursue that course of action, and as liability for that further claim was denied by Comcare, that further claim ultimately resulted in Mr Wiegand making a further application to the Tribunal, which became application 2013/0998.
Subsequent to the retirement of Deputy President Jarvis, the issue of whether and to what extent Mr Wiegand should be permitted to re-agitate the date of injury issue and tender further evidence in relation to it in the context of any of his applications before the Tribunal was the subject of a further preliminary hearing before us on 1 October 2013.
In the context of that hearing, Comcare accepted that, subject to it being persuaded that it was appropriate to do so, it was open to the Tribunal in the context of Mr Wiegand’s earlier applications (2011/2895 and 2011/2896) to reconsider the question of the date of injury and allow Mr Wiegand to tender fresh evidence in relation to that issue. As we were also persuaded as to the correctness of that position and Mr Wiegand consented to withdraw application 2013/0998 on that basis, on 1 October 2013 we made the following order:
Upon noting that:
A.The parties have agreed that the date of the injury the subject of the applicant’s 2008 claim for compensation, and the proper diagnosis of that injury, can be reconsidered by the Tribunal in the context of applications 2011/2895-2896;
B.The parties have also agreed that reconsideration of the date of that injury may raise issues relating to liability for that claim, which can also be considered by the Tribunal in the context of applications 2011/2895-2896;
C.Both parties have indicated an intention to produce and rely upon some fresh evidence directed to the above issues, particularly the question of the date of injury, in the context of applications 2011/2895-2896; and
D.The Tribunal has indicated that, contrary to an earlier ruling of former Deputy President Jarvis on 18 September 2012, having heard further argument, it will allow the parties to adduce further evidence directed to the above issues in the context of applications 2011/2895-2896, and will entertain submissions from the parties as to whether and to what extent, in determining those applications, it should depart from the findings and conclusions contained in the Tribunal’s decision in Re Wiegand and Comcare [2010] AATA 790; and
E.In these circumstances, the parties have advised the Tribunal that they consent to the dismissal of this application (2013/0998).
The Tribunal dismisses the application pursuant to section 42A(1) of the Administrative Appeals Tribunal Act 1975.
On that date, we also listed applications 2011/2895-2896 for hearing before us on 17 and 18 March 2014, and a hearing took place on those dates.
The first issue addressed at that hearing was the question of whether the Tribunal should revisit the decision of the 2010 Tribunal with respect to date of injury and/or diagnosis. Having heard from the parties in relation to this issue, we ultimately decided on the second day of the hearing that we should not revisit any aspect of the decision of the 2010 Tribunal. Our reasons for reaching that conclusion (which were delivered orally on 18 March 2014) were as follows.
REASONS FOR DECIDING NOT TO ALLOW ISSUES THE SUBJECT OF THE DECISION OF THE 2010 TRIBUNAL TO BE CANVASSED AGAIN
On 1 October 2013 the Tribunal, having noted that the parties had agreed that the date of the injury the subject of the applicant’s 2008 claim for compensation and the proper diagnosis of that injury could be reconsidered by the Tribunal in the context of applications 2011/2895-2896, indicated that it would allow the parties to adduce further evidence directed to those issues in applications 2011/2895-2896, and by consent dismissed Mr Wiegand’s application 2013/0998 in which he had sought to agitate the same issues.
Pursuant to his entitlement to put any relevant new evidence before the Tribunal in order to persuade the Tribunal that it should effectively re-open the decision of the Tribunal constituted by Justice Downes, President, Deputy President Hotop, and Professor Reilly, Member, of 15 October 2010,[6] when these proceedings resumed on the morning of 17 March 2014, Mr Wiegand sought to tender an additional three documents but otherwise did not call or adduce further evidence. Comcare indicated that it was content to rely on the documentary record as it stood.
[6] Re Wiegand and Comcare [2010] AATA 790.
The Tribunal indicated to the parties that in its opinion only the third of the documents, a report of Dr Mackay dated 27 July 2012, appeared to have potential as “new evidence” to add anything material (relevant and probative) to the evidence that had been before the 2010 Tribunal. The Tribunal indicated that the third document might not meet the test of “fresh evidence” applicable in a court, but that an administrative tribunal obliged to reach the correct and preferable decision standing in the shoes of a decision-maker and not bound by the rules of evidence should be willing to have regard to such new material to the degree its weight might, in combination with other factors, allow the relitigation of the conclusions reached by the 2010 Tribunal.
The document in question stated inter alia:
In retrospect, Mr Wiegand did present some features that may have been attributable to depression, such as somatic complaints, obsessive thinking, weight gain and some flattening of affect. These features were present quite early in his conflict with his employer but I was not in a position to diagnose depression. He described enough work related stress to explain his apparent dysthymia. However his personality (including obsessive traits) and his determined and non-emotional cognitive style would have masked depression to some extent. The standard consultation time did not leave time for me to have conducted a screening mental health assessment in addition to the consultation’s main item. Therefore, it is likely that I did not record a diagnosis of dysthymia or depression.
…
The reason that I supported a reduced number of working hours was that it was obvious that the problems at work were causing Mr Wiegand a great deal of psychological distress. Thus, I treated his work related mental distress in a manner that I thought appropriate at the time, without recording a formal diagnosis of mental illness.
The significance of Dr Mackay’s statement was that it appeared to give some support to Mr Wiegand’s contention that his psychiatric injury (which the 2010 Tribunal found to be work-related) had manifested itself at a time prior to that found to be the date of his injury by the 2010 Tribunal in Re Wiegand and Comcare [2010] AATA 790.
The Tribunal therefore indicated it wished to hear submissions as to whether (a) it had jurisdiction to permit relitigation of that conclusion and, (b) if so, what principles should govern whether or not to allow that course.
Counsel for the respondent, Mr Dubé, responded that there appeared to be no direct authority on the question as to whether, standing alone, the date of an injury could be relitigated but submitted that, in principle, on the authority of Telstra Corporation v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 the Tribunal must be accepted to have the necessary jurisdiction in the case of decisions made under the SRC Act. Nor did any formal estoppel prevent the Tribunal, in appropriate circumstances, from proceeding to do so. The Tribunal had discretion, to be exercised according to principle, as to whether or not such a course should be permitted. Mr Wiegand, unsurprisingly, agreed. While jurisdiction is a threshold issue, the Tribunal has no reason to doubt those conclusions and it has proceeded on that basis.
Mr Dubé accepted the proposition put to him by Deputy President Bean that the Tribunal’s decision in Re Matusko and Australian Postal Corporation [1995] AATA 14; (1995) 21 AAR 9 at 20 [35] usefully and correctly summarised the considerations appropriate to the exercise of that discretion. There the Tribunal had said:
From the authorities cited we conclude:
(a)No formal issue estoppel arises from the Tribunal's findings in Re Matusko 1991,
(b)The Tribunal should not generally allow relitigation of issues already decided,
(c)But the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
(i) where there is a different decision,
(ii) where there is a clear legislative intent,
(iii) where the reconsideration decision is not final,
(iv) where there has been a change in circumstances or fresh evidence, or
(v) where justice to the parties requires a departure from the general rule.
Mr Wiegand did not suggest anything to the contrary and the Tribunal proceeded to hear submissions on that basis. As to the relevant factors, Mr Dubé submitted as follows.
The Tribunal should not generally allow relitigation of issues already decided
Mr Dubé submitted that the exact issue (the date of injury) which Mr Wiegand now wished to relitigate had been before the previous Tribunal in Re Wiegand and Comcare [2010] AATA 790. The Tribunal had explicitly referred to the fact that it was common ground at that hearing that Mr Wiegand’s employment at the ATO cumulatively contributed to his psychiatric condition(s) however diagnosed: what was in issue was the date at which Mr Wiegand had begun to suffer that injury—such that his normal functioning had been impaired. It had not ignored the considerable body of evidence that could have suggested an earlier date for recognising as manifesting psychiatric injury some of the cluster of symptoms Mr Wiegand had earlier reported. Nor had it ignored or failed to give weight to the evidence of Dr Flynn that Mr Wiegand had begun to experience depressive symptoms in “about 1993”. Rather it had utilised the clinical notes as best evidence to conclude, as a factual matter, that it was not until the consultation of 20 July 1994 when Dr Mackay made an unequivocal reference to stress at work that it was satisfied that the manifestation of any psychiatric condition, however diagnosed, had been made out.
But the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
(i) where there is a different decision
Mr Dubé acknowledged that formally these applications sought review of different decisions from those under consideration by the 2010 Tribunal. However he submitted that the relevant decisions were simply decisions about Mr Wiegand’s entitlements consequent on the 2010 Tribunal’s decision as to liability, and did not themselves revisit that issue.
(ii) where there is a clear legislative intent; and (iii) where the reconsideration decision is not final
Mr Dubé accepted that Telstra Corporation v Hannaford required the conclusion that there was clear legislative intent that decisions as to compensation entitlements not be final. It was open at all times in matters determined under the SRC Act for Comcare to reconsider liability in light of later medical evidence. It must logically work both ways.
(iii) where there has been a change in circumstances or fresh evidence
However, such reconsideration should not be permitted on flimsy grounds. The “new” evidence Mr Wiegand sought to rely upon was incapable of raising any plausible doubt as to the correctness of the earlier Tribunal’s conclusions. Dr Mackay’s report of 27 July 2012 referred to his having supported Mr Wiegand’s reduced working hours (which occurred in late 1993) on the basis that it was obvious that his problems at work were causing him a great deal of psychological stress—but Mr Wiegand had not become Dr Mackay’s patient until after that time—the clinical notes suggested not before 5 January 1994.
Dr Mackay’s recall after the passage of some 20 years was worth little weight by contrast with the clinical notes he had made at the time which had been relied upon by the previous Tribunal.
(iv) where justice to the parties requires a departure from the general rule
Mr Dubé accepted that if Mr Wiegand had been misled by what had been said by a Deputy President of the Tribunal to abandon a potentially successful appeal to the Federal Court in favour of making a fresh application to the Tribunal, that would be a factor relevant to whether justice to the parties required a departure from the general rule.
Mr Dubé accepted that in Re Wiegand and Comcare [2012] AATA 623 in which Mr Wiegand had earlier sought orders to permit him to file certain fresh evidence, Deputy President Jarvis had said:
[25] If Mr Wiegand decides to appeal he would now need to apply for an extension of time, and he would presumably base that application on his having recently obtained the further medical reports to which I have referred above, and having become aware of the matters to which I refer in these reasons for decision.
[…]
[28] An alternative course of action, if Mr Wiegand is to pursue the relevance of the recent medical evidence, would be for Mr Wiegand to make a fresh claim for compensation in respect of dysthymic disorder based on an asserted date of injury of a date preceding 10 February 2004, when he commenced permanent part-time employment.
However, Mr Dubé submitted that, to the extent that the Deputy President’s statements might be argued to have influenced Mr Wiegand to lodge his 2013 application rather than seek an extension of time for leave to appeal to the Federal Court against the decision of the 2010 Tribunal (and thus lose his right to have that decision set aside), one had to consider the frail basis to suggest any actual prejudice had been occasioned.
First, Mr Wiegand was already then 21 months out of time for an appeal to the Federal Court and facing a nearly impossible task of persuading that court to grant leave. Second, Mr Wiegand had told Deputy President Jarvis that he was not disposed to lodge what would be his third appeal to the Federal Court. Third, Mr Wiegand had made that decision despite being informed by Comcare in detail of his diminished entitlements to compensation and a bundle of relevant e-mails was tendered to establish that proposition.
Finally there had been no errors of law demonstrated in the Tribunal’s decision-making as would give rise to any expectation that such an appeal even if brought might have been successful. There was no breach of natural justice in the 2010 Tribunal indicating to Mr Wiegand that it would come back to the question of whether he should be given an opportunity to arrange for his treating general practitioner, Dr Mackay, to give evidence.[7] Mr Wiegand could have sought an adjournment if he had believed, in the light of the way the hearing had proceeded, that his doctor needed to be called.
[7] Transcript, 9 August 2010, p 8.
Responding to questions from the Tribunal, Mr Dubé submitted that the 2010 Tribunal’s reasons revealed no relevant misstatements of the legal tests. What the 2010 Tribunal had concluded at [60] was, in the context of the reasons of the Tribunal taken as a whole, clearly no more than its shorthand way of referring to a cluster of symptoms first identifiable as an injury: Comcarev Mooi (1996) 69 FCR 439.
In response, Mr Wiegand made extensive submissions as to the merits of his case. In so far as those submissions were relevant to the tests in Re Matusko he pointed out that there had been no attempt to infer the date of his injury from his impaired performance at work. He submitted that mental illness was quite different from physical injuries which could be easily diagnosed. Sometimes it was only in retrospect that psychological injuries could be diagnosed. He had been a very controlled person seeking to avoid any display of emotional vulnerability, but he now had the documents to show he had suffered those injuries earlier than the Tribunal had found. Justice as between the parties required him to be allowed to relitigate the correctness of the Tribunal’s earlier findings.
Following those submissions the Tribunal indicated it would adjourn to consider whether it might be able to give ex-tempore reasons to permit or refuse leave to re-open the matter. However, in the course of its deliberations the Tribunal identified another document which it suspected Mr Wiegand might have thought to be before the Tribunal.
In the proceedings that the Tribunal had dismissed by consent on 1 October 2013, Mr Wiegand had filed a report of Dr David Coyte dated 23 June 2013. It had not been put forward in these proceedings as new evidence, despite it being the only material suggesting any challenge to the proper diagnosis of Mr Wiegand’s injury. Noting that Mr Wiegand had opened with a brief statement indicating that he wished to contest these proceedings not only as to the date of injury but also as to his injury’s diagnosis, the Tribunal sought the views of the parties as to the status of the document.
Mr Wiegand confirmed he had thought the document was before the Tribunal, and that he had intended to rely on it to challenge the correctness of the diagnosis reached in the earlier proceedings that his injury was in the nature of a depressive illness. Dr Coyte’s report states, inter alia:
I had formed the opinion when I consulted with him in 1998 that in all probability he had suffered from an Adjustment Disorder With Depressed Mood – Chronic type, during the early 1990s, based on the information he gave me in regard to his circumstances and health in the early 1990s. (As distinct from the diagnosis of Major Depression made in regard to his symptoms at the time of assessment in 1998.) I recall that he described having ongoing somatic (ie body), then emotional and mental symptoms over the years after joining the Taxation Office in 1986 and that these resulted from experiencing multiple stresses in the workplace over time. He had sought medical advice and was given various diagnoses including asthma, and “stress” and by about 1995 his mood had deteriorated to the point that he was prescribed antidepressant medication by his general practitioner.
After setting out extracts from reports and letters written by other doctors during the 1990s, Dr Coyte makes reference to the criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) and concludes his report as follows:
I therefore consider that the most likely diagnosis of Mr Wiegand’s condition in the early 1990’s was that of an Adjustment Disorder – Chronic type albeit that such a retrospective diagnosis is somewhat speculative and that he did later go on to develop a more severe Major Depressive Episode.
The Tribunal accordingly asked Mr Dubé what his instructions were regarding that report. Upon the resumption of the hearing on the morning of 18 March 2014, Mr Dubé told the Tribunal that Comcare had no objection to the Tribunal having regard to Dr Coyte’s new report for the purpose of the exercise of its discretion whether or not to permit relitigation of Re Wiegand and Comcare [2010] AATA 790, but that if a decision was made to permit that, Comcare would want to cross-examine Dr Coyte and would possibly seek to recall Dr Flynn and Dr Davis who had given evidence in that matter.
Mr Dubé submitted that Dr Coyte’s new report should be given little weight—he had not referred to a diagnosis of adjustment disorder in any of his previous seven reports or in his oral evidence to the Tribunal. It was completely at odds with what he had said in the Tribunal when he had been asked if he agreed with Dr Flynn’s diagnosis of dysthymia.[8]
[8] Transcript, 11 August 2010, pp 57-58.
Dr Coyte himself had stated in 2005 in evidence in related proceedings that the more time that had elapsed since the relevant events and reported symptoms, the more likely a psychological diagnosis was to be inaccurate.[9]
[9] ReWiegand and Comcare No S2002/458 at Transcript, p 7.
In any case the ultimate question that the Tribunal had to decide was not one that depended on the accuracy of a diagnosis—the question the Tribunal had to determine was when Mr Wiegand could be said to have suffered from a psychological condition “outside the boundaries of normal mental functioning and behaviour” and therefore a compensable condition: Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439 at 444.
That was the task it had undertaken and placing a different label on what Mr Wiegand had manifested by way of symptoms could not alter the outcome.
In reply, Mr Wiegand submitted that Dr Coyte should not be criticised for a change of mind. He had come up with his new diagnosis at Mr Wiegand’s request when Mr Wiegand had asked him to consider the “lowest level of mental illness” for which he could be compensated. The Tribunal had not posed that question. The result might have differed if it had.
Mr Wiegand discounted any injustice to Comcare in having to relitigate—it was he who had suffered injustice because of the actions of the ATO and Comcare who had fought him at public expense.
Mr Wiegand referred the Tribunal to Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 as a decision relevant to the exercise of the Tribunal’s discretion.
Consideration
Understood in their context as part of a continuum, these proceedings have a long history—involving many determinations, appeals and reviews. The Tribunal simply notes that fact—it is no part of its function to attribute blame for the unfortunate history to either party or to deny the applicant any fair opportunity to relitigate any aspect of those proceedings determined adversely to him if a proper basis for doing so has been established.
However, we are not ultimately persuaded that we should permit that decision to be relitigated. This is notwithstanding the Tribunal’s natural sympathy for Mr Wiegand given the history of these proceedings, and the fact that undoubtedly he did suffer symptoms which another differently constituted Tribunal might have used as the basis for a factual finding as to the date of his injury different from that reached in Re Wiegand and Comcare [2010] AATA 790 (which is of large economic significance to him because his compensation had to be calculated on the basis of his working part-time rather than full-time at an earlier date).
For the reasons referred to previously, we accept both that the Tribunal has jurisdiction to permit reopening of a decision in the exercise of its discretion should it be persuaded it would be correct to do so, and that the principles that govern the exercise of that discretion are correctly summarised in Re Matusko.
Critical to the exercise of our discretion we have concluded that, contrary to the applicant’s submissions, the Tribunal in Re Wiegand and Comcare [2010] AATA 790, gave close attention to whether the various symptoms exhibited and complaints made by Mr Wiegand before the date it identified as the date of his injury could be accepted as sufficient to establish an earlier onset of psychological injury however described (our emphasis) by reference to s 7(4) of the SRC Act.
In that regard it is important to note that the Tribunal faced the difficult task of determining whether Mr Wiegand’s complaints of various physical ailments were explained by or referable to an underlying psychological condition, and, if so, to what extent and at what point in time they indicated or supported the existence of a psychological injury. This was made more difficult by the fact that Mr Wiegand’s case was not that his physical injuries were illusory or psychosomatic—he maintained and continues to maintain that while at work he had also suffered injuries from “sick building disease” and other injuries from environmental exposure. His early medical treatment was in relation to those symptoms per se and it was only gradually that any attention had been given by his medical practitioners to possible overlapping mental health issues. In those circumstances what might have been, in other instances, obvious signs of mental illness could well have had another explanation.
The task of identifying the point in time where the onset of mental illness could be confidently established was further complicated because the Tribunal also had to identify the point in time when Mr Wiegand’s symptoms (taken together) had gone beyond the boundaries of his normal mental functioning and behaviour: Comcare v Mooi 69 FCR 439 at 444. It was common to all his treating doctors that Mr Wiegand was by his nature a man who had a long history of being preoccupied with injustice and imperfections and their correction. Dr Coyte described him as “a man who lives by highly principled rules, which are fairly rigidly held in spite of the difficulties produced by doing so. This would be diagnosed [the Tribunal interpolates not as a diagnosis of mental illness] as a personality with prominent obsessive-compulsive traits”.[10] Dr Coyte noted that Mr Wiegand’s meticulous attention to detail had often given rise to conflict between him and his employers.[11] Such a nature places a person inherently in circumstances where they will encounter setbacks and discontent in their daily life falling short of mental illness.
[10] Report of 22 November 2000.
[11] Report 10 March 1998.
We are not persuaded that those combined difficulties would evaporate upon the reception of the new evidence (taken at its highest) were the Tribunal to permit the matter to be relitigated. Nor are we persuaded that the new evidence adds materially to what was already before the Tribunal in Re Wiegand and Comcare [2010] AATA 790 and considered by it.
More particularly, we do not think that the previous Tribunal can be criticised for relying on a particular diagnosis of Mr Wiegand’s mental illness. It did not do that. Mr Wiegand had claimed compensation for major depression but the Tribunal did not limit itself to that diagnosis. Rather it explicitly accepted all the evidence before it going to the establishment of his psychiatric condition, however diagnosed, and ultimately concluded that he suffered from two distinct psychiatric conditions—dysthymic disorder and major depressive disorder.
If permitted to be led in these proceedings, the new medical evidence Mr Wiegand has referred us to would not of its nature require a different substantive conclusion, even if it might result in a renaming of his condition. Nor has it been shown to the Tribunal that such new evidence might reasonably be expected to do so given that the description of the injury in diagnostic terms was not critical. In circumstances in which it would still be necessary to disentangle Mr Wiegand’s ordinary but obsessive compulsive behaviour and his physical symptoms from what might be the manifestations of mental illness, the relevance of the new evidence is slight.
It is quite understandable, given the difficulty of disentangling physical causes of symptoms and the manifestations of Mr Wiegand’s ordinary personality from the manifestations of mental illness, that in the end the 2010 Tribunal felt driven to rely upon the contemporaneous clinical notes to identify the point in time when those manifestations became evident and, ultimately, to find his date of injury as that when the medical notes first recorded his seeking treatment for stress-related symptoms rather than when he began working part-time. Dr Mackay’s new evidence could not materially alter that position. As noted above Dr Mackay was not in fact treating Mr Wiegand at the time he decided to apply to work part-time, which detracts from the weight which can be given to this evidence.
Nor is the new evidence of Dr Coyte greatly persuasive in the Tribunal’s opinion given the circumstances in which it was obtained,[12] the qualifications with which it was expressed and what Dr Coyte had said in evidence in earlier related proceedings. In Wiegand and Comcare S2002/458, Dr Coyte said in answer to questions put by Mr Wiegand:
Would you like to comment on that?---My recollection of the history that I obtained when I first saw you was that you described some symptoms of – which sounded like depression, dating back to 1989 and inability to function at that time. One would have to say that was – those symptoms would be consistent with a diagnosis of depression but looking back over such a long period of time one couldn’t say it was diagnostic. One would need to be there at the time, I think, and determine the mental state and take a lot more history at the time to make a definitive diagnosis.
As a medical expert, how far would you be – were you prepared to go back in time to say, this and this, a condition was definitely there?---I’m not sure there’s any cut-off time. Unfortunately, it is something of a spectrum effect I think in that the further one goes back in time, making diagnoses, the more likely it is that one is actually incorrect, historically. So the most accurate diagnoses are made at the current time.[13]
[12] See [39] above.
[13] Transcript, 22 March 2005, p 7, lines 14-28.
The Tribunal accepts Mr Dubé’s criticism of the argument that Mr Wiegand was misled by the comments of Deputy President Jarvis to forgo a prospective successful appeal to the Federal Court. By the time those remarks were made (whether in the Tribunal’s reasons or in argument previously) it was well after the relevant appeal period had expired. Mr Wiegand would have faced formidable hurdles to obtain leave to proceed out of time and there has been nothing identified which would suggest the merits of such an appeal would have been more than arguable at the highest.
Moreover Deputy President Jarvis did not put the alternative in the stark form advanced by Mr Wiegand. The learned Deputy President was at pains to indicate that whatever course Mr Wiegand chose to pursue was a matter for him, and further indicated that if Mr Wiegand was to make a new application it would need to be advanced on grounds which would satisfy the discretionary tests referred to and summarised in Re Matusko.
We do not think the case advanced by Mr Wiegand overcomes the burden upon an applicant to provide the Tribunal with a basis to allow relitigation of issues already decided.
We accept, as Mr Wiegand submits, that in Filsell Deputy President Jarvis declined to dismiss Mr Filsell’s application pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 notwithstanding that that application related to a claim for compensation which in substantive terms had previously been the subject of a consent decision by the Tribunal, affirming a denial of liability. Deputy President Jarvis reached that conclusion partly on the basis that he considered Mr Filsell should have the opportunity to argue, based on the principles formulated in Re Matusko, that he should be permitted to relitigate the question of liability in light of fresh evidence which had become available. However the situation in Filsell was significantly different from that before us, not least because the relevant previous Tribunal decision in that matter was a consent decision rather than a decision following a contested hearing. In addition, Deputy President Jarvis’ decision related to whether Mr Filsell’s application should be dismissed entirely as frivolous and vexatious, not whether the Tribunal should permit relitigation of the issue the subject of the consent decision. It is relevantly distinguishable.
The issues which Mr Wiegand now wishes to re-agitate were squarely before the earlier Tribunal and for the reasons we have stated we are not persuaded that the new material is sufficiently compelling in the specific circumstances of this case to justify the Tribunal in the exercise of its discretion permitting relitigation of those issues. We decline to exercise our discretion to permit relitigation of the matters decided in Re Wiegand and Comcare [2010] AATA 790.
THE REMAINING ISSUES
The remaining issues in dispute are within a narrow compass. They relate only to whether Mr Wiegand is entitled to incapacity payments in respect of days on which he was absent from work and where Comcare has not accepted that that particular absence was attributable to his compensable dysthymic disorder, and/or that it gives rise to an entitlement to incapacity payments. The dates in dispute fall within the period 20 July 1994 to 27 January 1998. At the hearing, without objection, Mr Dubé handed the Tribunal a document that purported to set out the relevant dates and circumstances in tabular form. However the information in that table, at least in some regards, did not appear to match documents on file and the Tribunal, having identified that difficulty, raised this with the parties and gave them the opportunity of filing further short written submissions. We have taken those submissions into account in finalising these reasons.[14]
[14] Our conclusions therefore have taken into account the “Chronology of Applicant’s Leave” provided by Comcare, the contents of the relevant leave records at T40/230-232 and the written submissions of the parties.
The dates which are in dispute fall into two categories.
The first category consists of days when Mr Wiegand took sick leave but where the relevant sick leave form and/or medical certificate attributed his need for the leave either to a physical cause, or simply to a “medical condition”. The second category consists of days for which Mr Wiegand took recreation leave in circumstances where he now says that the need for him to do this was attributable to his dysthymic disorder. It is common ground that no medical certificates have been provided in respect of those days.
As to the first category, having regard to what we understand to have been the contents of the medical certificates provided in respect of these absences, and the medical records pertaining to the relevant days, we are satisfied that all but one of those days were taken in respect of physical symptoms or illnesses or for other reasons which so far as we can ascertain do not appear to have been related to Mr Wiegand’s dysthymic disorder. However the medical certificate provided by Mr Wiegand for 8 August 1995 apparently stated simply “medical condition”. The notes for the relevant consultation on 8 August 1995 apparently referred to “work stress and insomnia”. In light of the fact that Mr Wiegand provided a medical certificate and having regard to the notes made in respect of the relevant consultation, we are satisfied that Mr Wiegand’s absence from work on that day (of 1 hour and 15 minutes)[15] was sufficiently related to his subsequently diagnosed dysthymic disorder such that he is entitled to incapacity payments for that day.
[15] T44/230.
In respect of the second category of absences, as pointed out by Mr Dubé, the difficulty confronting Mr Wiegand is that s 54 of the SRC Act relevantly provides as follows:
54 Claims for compensation
(1)Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2)A claim shall be made by giving the relevant authority:
(a)a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3)Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.
…
(5)Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
Although we have no reason to doubt what Mr Wiegand says as to his need to take recreation leave on the relevant dates by reason of his dysthymic disorder given that Mr Dubé, on behalf of Comcare, explicitly disclaimed any suggestion of want of credit on Mr Wiegand’s part, there is no dispute that no medical certificates have been provided in respect of those days. Accordingly, in view of the terms of s 54, we have concluded that claims with respect to those days are taken “not to have been made”, and incapacity payments are not payable for those days.[16] The terms of s 54 permit a certificate to be provided after the event. We understand Comcare not to dispute, as a matter of fact, that those days were taken for the reason claimed. Accordingly, despite the already protracted nature of these proceedings, for completeness, we note that it would still be open to Mr Wiegand to provide medical certification with respect to any of these days, which potentially would complete the making of a claim which would then need to be considered by Comcare.
[16] We note our conclusion is broadly consistent with the Tribunal decisions in Re Catoni and John Holland Group Pty Ltd [2013] AATA 509 at [14], [24]-[26]; Re Vittiglia and John Holland Group Pty Ltd [2013] AATA 493 at [23]-[32].
We did not understand Mr Wiegand to dispute the correctness of Comcare’s determinations as to his incapacity entitlements on any other basis.
We note that in its further written submissions of 24 April 2014 Comcare suggested that the Tribunal had the duty of also considering whether any other dates which had been accepted by Comcare had been correctly accepted. However this submission was not made at the hearing, or at any time prior to 24 April 2014, and was not responsive to the matters on which the Tribunal sought further submissions. Nor was it made with any particularity, although reference was made to one suggested example of an absence related to “shoulder pain”. Moreover to make clear the context in which these submissions were received, the document referred to at [61] was presented to us immediately following the Tribunal giving its oral reasons explaining why it had declined to reconsider the date of Mr Wiegand’s injury. At that point Mr Wiegand disclaimed any real interest in whether he might be entitled to one or more additional days for incapacity payments but the Tribunal took the view it had an obligation to address those matters even though Mr Wiegand now thought they were inconsequential. The document, the inaccuracy of which prompted the Tribunal later to raise questions with the parties was thus put forward by Comcare to assist the Tribunal to determine any additional entitlements that Mr Wiegand might have. At no stage during the hearing had Comcare put Mr Wiegand, or the Tribunal, on notice that it disputed any part of Mr Wiegand’s previously accepted entitlement to incapacity payments.
In order to properly address this submission, and accord procedural fairness to Mr Wiegand in relation to it, we consider it would probably be necessary to reconvene the hearing, or at the very least seek further more detailed submissions from the parties addressing the question of which of the absences previously accepted by Comcare should be found not to be compensable. However we have concluded that in all the circumstances, including the history of the matter, the fact that the issue arose so late and was not seriously pursued and that the absences in question are small in number and the amounts involved are trivial, that course is not warranted and we should not now revisit the question of whether absences accepted by Comcare as compensable were correctly accepted.
In reaching that conclusion, we have also had regard to the fact that for the reasons given by the Full Court of the Federal Court in Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1, we do not regard ourselves as bound to address this late submission.[17] As Allsop CJ observed in that matter:
The prompt and fair despatch of business in the Tribunal requires order and regularity in the provision of evidence and submissions for the Tribunal’s consideration. Nothing obliges the Tribunal to consider arguments sent to it after a hearing, without leave, and of which the other side has had no notice.[18]
[17] Per Allsop CJ at [37]–[43] and Katzmann J at [111]–[127].
[18] At [39].
Similarly, although Comcare’s submission of 24 April 2014 invited us to do so, we do not propose to revisit the question of whether the medical certificates supplied by Mr Wiegand in support of his applications for sick leave complied with s 54. As we understand the position, none (or very few) of the relevant certificates have been retained or are now available. In these circumstances, we consider the only tenable approach for us to take is to assume, as Comcare did when assessing Mr Wiegand’s entitlements at first instance and on reconsideration, that the medical certificates he supplied at the relevant time (including for 8 August 1995) substantially complied with s 54, which we note does not require strict compliance.[19] Comcare does not suggest that its substantive decisions were erroneous. A belated dispute about whether or not Comcare was right to assume compliance with s 54 ought not be permitted by afterthought. Even if we are wrong in refusing to entertain the submission, given that the issue concerns procedural questions raised as to matters occurring years ago when it is common ground that most, if not all, of the contemporary documents are missing, we think the Tribunal would be entitled to proceed on the basis that a presumption of regularity applies.
[19] SRC Act s 54(5).
Accordingly, we propose to vary the decision under review only to the extent necessary to reflect our conclusions as set out above.[20] We should note that, as we understand the position, Mr Wiegand was paid sick leave for his partial absence on 8 August 1995 in any event, and his sick leave balance was in credit when he left his employment with the ATO. Therefore our decision will not result in any payment to Mr Wiegand.
[20] There are two application numbers in this matter because the reviewable decision affirmed two separate determinations, both made on 17 December 2010: T27/191-194; T28/195-203.
We should also record the fact that Mr Dubé indicated at the conclusion of the hearing that Comcare was prepared to consent to a variation to the decision under review to the effect that Mr Wiegand’s compensable condition of dysthymic disorder was better described as an “adjustment disorder with depressed mood”. However, in light of our conclusions above, including with respect to our assessment of Dr Coyte’s evidence on the question of diagnosis, we are not persuaded that we should make that adjustment to the description of Mr Wiegand’s compensable condition.
DECISION
The Tribunal:
(a)varies the decision under review so as to provide that Mr Wiegand is entitled to compensation pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of his absence from work on 8 August 1995; and
(b)otherwise affirms the decision.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of The Hon Justice D Kerr, Chev LH, President, and Deputy President K Bean
........................[Sgd]..........................
Associate
Dated 25 June 2014
Dates of hearing 17 and 18 March 2014 Applicant In person Counsel for the Respondent Mr B Dubé Solicitors for the Respondent Sparke Helmore Lawyers
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