Joachim Wiegand and Comcare

Case [2014] AATA 413

[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 Bean
Date 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 623

REASONS FOR DECISION

President D Kerr
Deputy President K Bean

25 June 2014

  1. 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.

  2. 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.

  3. 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…

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AGLC
Joachim Wiegand and Comcare [2014] AATA 413
Case
[2014] AATA 413
Decision Date

CaseChat Overview and Summary

In the case of Joachim Wiegand and Comcare, the Federal Circuit Court was asked to determine whether the Administrative Appeals Tribunal (AAT) had the discretion to revisit the date of injury and diagnosis in a previous decision concerning Mr Wiegand's entitlement to incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The case involved Mr Wiegand, a former Commonwealth employee, who had previously sought to relitigate the date of his injury before the AAT. The central legal issue was whether the AAT should exercise its discretion to revisit the date of injury in light of new evidence presented by Mr Wiegand. The court examined whether the new evidence was sufficient to raise plausible doubt about the correctness of the earlier Tribunal's conclusions and whether justice to the parties required a departure from the general rule.

The court found that while there was a clear legislative intent that decisions regarding compensation entitlements should not be final, such reconsideration should not be permitted on flimsy grounds. The new evidence presented by Mr Wiegand, including a report from Dr Mackay, was deemed incapable of raising any plausible doubt as to the correctness of the earlier Tribunal’s conclusions. The report's reliance on Mr Wiegand’s recall after 20 years was considered less reliable than the clinical notes made at the time by Dr Mackay, which had already been relied upon by the previous Tribunal. The court also noted that any potential prejudice caused by misleading statements from a Deputy President of the Tribunal was minimal, given the already tenuous basis for Mr Wiegand's appeal to the Federal Court.

Ultimately, the court ruled that there was no basis to permit the relitigation of the date of injury issue that had already been decided. The court varied the decision under review to provide Mr Wiegand with compensation for his absence from work on 8 August 1995, but otherwise affirmed the decision of the AAT.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.