Joachim Wiegand and Comcare
[2012] AATA 623
•18 September 2012
[2012] AATA 623
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/2895 and 2011/2896
Re
Joachim Wiegand
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis
Date 18 September 2012 Place Adelaide The applicant's request to tender further medical evidence is refused.
...... [Sgnd] ......
Deputy President D G Jarvis
CATCHWORDS
PRACTICE AND PROCEDURE - Claim for compensation arising from employment - assessment of compensation - fresh evidence as to date of injury - held that fresh evidence not admissible.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 7(4), 8, 9, 14(1) and 19
CASES
Comcare v Mooi (1996) 69 FCR 439
Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281
Re Filsell and Comcare (2009) 109 ALD 198
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595
Re Wiegand and Comcare [2010] AATA 790SECONDARY MATERIALS
Butterworths, Cross on Evidence (4th Australian edition)
REASONS FOR DECISION
Deputy President D G Jarvis
18 September 2012
The present proceedings arise from an application by Joachim Wiegand to review a determination made by the respondent Comcare, of the amount of its liability for compensation following a decision of this tribunal dated 15 October 2010, in which the tribunal (differently constituted) decided that Comcare was liable, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (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).[1]
[1] Re Wiegand and Comcare [2010] AATA 790. This decision was made in two proceedings before the tribunal, as explained in paragraph 10 of its reasons for decision. The history of these proceedings is referred to in paragraphs 2 to 13 of the tribunal’s decision.
Mr Wiegand has applied to tender fresh medical evidence in the proceedings. I have decided to refuse this application. Ordinarily I would not publish such detailed reasons for my decision as those that appear below. However, this case has had a most unfortunate history, in that Mr Wiegand first commenced proceedings in this tribunal in 1998, and he then made two successful appeals to the Federal Court of Australia. The tribunal’s above decision of 15 October 2010 followed the third substantive hearing of Mr Wiegand’s claim in this tribunal.
Mr Wiegand commenced employment with the Australian Taxation Office (ATO) on 28 May 1986. From and after 10 February 1994 he reduced his working hours to three days a week, and was paid at the rate of 60% of a full-time salary. He last attended work on 31 December 1997, and remained absent from duty for health reasons until an invalidity retirement on 23 April 2003.
In a determination made on 17 December 2010, Comcare calculated the compensation payable to Mr Wiegand in consequence of the tribunal’s decision of 15 October 2010. This entailed calculating incapacity payments for periods of time off work taken between 20 July 1994 and 29 January 1998 as a result of his dysthymic disorder. Comcare calculated these payments by reference to the normal weekly hours that he worked after he commenced working part-time on 10 February 1994. The calculations were based on the formula for calculating normal weekly earnings (NWE) in s 19 of the SRC Act, and by virtue of the meaning of NWE appearing in s 8 of the SRC Act, as interpreted by reference to s 9, the calculations were based on the average hours worked in the two weeks preceding the injury. During those two weeks, Mr Wiegand was working permanent part-time hours which by reference to ss 19, 8 and 9 of the SRC Act represented the rate at which he was being paid before the injury, on the assumption that it occurred on 20 July 1994. In a separate determination also made on 17 December 2010 Comcare calculated the compensation payable in respect of the major depressive disorder sustained on 30 January 1998 on the same basis, that is, in accordance with ss 19, 8 and 9 of the SRC Act. The calculations took into account details of increases to Mr Wiegand’s salary and periods of time off work as “compensation leave”. Comcare also took into account, in arriving at the amount of compensation for the major depressive disorder, the employer-funded portion of Mr Wiegand’s superannuation entitlement which he accessed on 23 April 2003.
Mr Wiegand subsequently requested a reconsideration of Comcare’s determinations. In a reviewable decision made on 19 July 2011, a senior review officer from Comcare affirmed the primary decisions. Mr Wiegand has applied to this tribunal for review of the primary decisions.
The total amount of compensation liability determined by Comcare was $2,767.04 for the period from 20 July 1994 to 30 January 1998, and $84,568.75 for the period from 30 January 1998 up to 23 April 2003. After his invalidity retirement on 23 April 2003, he received a superannuation pension and a superannuation lump sum benefit. Comcare calculated its compensation liability for the period from 23 April 2003 until the date of Mr Wiegand’s 65th birthday at $14,585.37. Comcare also took into account the amount of the Centrelink benefits which Mr Wiegand had received, and these are required to be repaid.
It is common ground that Mr Wiegand had made a request to work part-time on 7 December 1993, and this request was ultimately approved with effect on and from 10 February 1994.[2] The tribunal recorded that when he was asked why he made the request to work part-time, Mr Wiegand explained that he had had serious health problems including breathing problems, sleeping problems, constant stomach pain and problems with his heart, and that he had added:
So I was simply afraid that I might cark it if I don’t – wouldn’t reduce my exposure to the work environment, and I felt strongly compelled to take better care of my children, whom I had neglected for considerable time because of my problems.[3]
[2] Re Wiegand and Comcare [2010] AATA 790 at [25].
[3] [2010] AATA 790 at [26].
At an earlier stage of the present proceedings in this tribunal, Mr Wiegand had indicated that he did not agree with the decision made by the tribunal that the date of injury, in the case of the dysthymic disorder, was 20 July 1994, and that he thought that the date of injury should have been an earlier date when he had consulted his then general practitioner, Dr Mackay, concerning abdominal pains on 5 and 11 January 1994, and concerning pain after one day back at work on 4 February 1994. However, at a directions hearing on 15 November 2011, Mr Wiegand decided to proceed on the basis of the dates of injury determined by the tribunal in its above decision of 15 October 2010, and I made a direction dated 18 November 2011 requiring the respondent to file and serve a statement setting out its contentions as to how the amount of compensation for which it admits liability should be disbursed. Mr Wiegand’s preparedness to proceed on the basis of the above dates of injury was recorded in my direction in the following terms, to reflect his then position: “(t)he applicant acknowledges reluctantly, and without prejudice to his rights to make such other applications as he may later decide, that the present application is to proceed on the basis of the dates of injury determined by this Tribunal …”.
Mr Wiegand subsequently filed and served a report dated 3 July 2012 from his treating psychiatrist, Dr Coyte, in response to a request to provide an opinion “concerning the accuracy and validity of scanning general practitioner past case records in order to retrospectively make a diagnosis of depression.” In his report, Dr Coyte cited the results of a study published in The Lancet in 2009 which assessed the accuracy of unassisted diagnosis of depression by GPs, and concluded as follows:
I would therefore conclude that the retrospective review of GP case notes looking for the written diagnosis of depression is not a reliable way of determining its presence at that time in the past. Worse than this general conclusion, in Mr Wiegand’s case where his volunteered symptoms were primarily non emotional, one would not expect to find the diagnosis of depression recorded in the case notes even when depression was present.
Later Mr Wiegand filed and served a report from Dr Mackay dated 27 July 2012, which refers to Mr Wiegand having had consultations on many occasions and mentions conflicts with his employer, as well as having had consultations regarding his general health. Dr Mackay also said:
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.
My medical records in this era were hand written and brief, as there were time constraints and my handwriting is slow. The main purpose of these records was to assist me with ongoing case management, in a similar way that memory prompt cards assist with giving a speech. They were not intended to be a forensic medical record. On some occasions I may have written little if anything.
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.
Mr Wiegand also advised the tribunal that he had recently obtained a copy of a report dated 2 February 2005 from Dr M A Yaeger, which had apparently been obtained by insurers in connection with a claim that Mr Wiegand had made arising out of a motor vehicle accident. It appears that Mr Wiegand obtained this copy report from documents contained in a Centrelink file relating to social security benefits for which Mr Wiegand had applied. Dr Yaeger reported that Mr Wiegand was suffering with major depression and anxiety. His report relevantly continues:
The depression and anxiety symptoms have been persistent and moderate to severe since the early 1990s. The main initial contributing factors were work-related pressures (time and productivity issues).
Mr Wiegand also applied to use this report in connection with the present proceedings.
Comcare’s solicitors then sought to clarify whether Mr Wiegand proposed to argue that the date of injury, in the case of dysthymic disorder, should be earlier than 20 July 1994. This issue was considered by me at a directions hearing on 3 August 2012.
At this hearing Mr Wiegand sought leave to rely upon the recent reports from Drs Coyte and Mackay in support of a submission that the tribunal had not arrived at the correct date of his dysthymic disorder injury. He had previously requested the tribunal to make arrangements for Dr Coyte to give evidence by telephone as to the matters referred to in his recent report, and had also sought leave for Dr Mackay to give evidence by telephone from a ski resort in Victoria, where he was holidaying. I did not accede to the requests for the doctors to give evidence in this way, since it was first necessary to decide whether further evidence should be received as to this issue in connection with the present proceedings.
Mr Wiegand submitted at the directions hearing that he had been denied procedural fairness as to the issue of the date of onset of dysthymic disorder. He said that at the outset of the hearing, he had made the following statement to the tribunal, with the following response:
MR WIEGAND: There was one matter which I tried to organise. This was a report from my treating GP, who has been treating me since the early 1990s, and I had asked him – because the problem with note taking by a GP came up, and Comcare argued before that there was nothing in those notes indicating that I had been mentally sick, say, in the early 1990s. And I had discussed this with my GP and asked him to clarify this and indicate what his training is, and that the GP normally sees a patient like me only for max something like 10 minutes on matters which are, sort of – have a different cause, really, and the patient has no influence of the note-taking, what is happening, really, and he promised to do it but it hasn’t happened, and I understand he is skiing now in Victoria, so I can’t contact him.
HIS HONOUR: Well, let’s proceed with the case. If that becomes important, we’ll have to cope with it, but it may not be, as the case unfolds, something that - - -
MR WIEGAND: I agree.
HIS HONOUR: - - - we need to deal with.[4]
[4] Transcript, 09.08.10, page 8, lines 5-21.
Mr Wiegand said that notwithstanding his Honour’s response, the tribunal, when it delivered its decision, based its finding on the date of the dysthymic disorder injury on the clinical notes of Dr Mackay. This appears from paragraph 60 of the tribunal’s decision, which reads:
On the basis of the abovementioned clinical notes (which we regard as the best available evidence in the absence of contemporaneous expert psychiatric evidence), we are satisfied, on the balance of probabilities, that Mr Wiegand was suffering from dysthymic disorder when he consulted Dr Mackay on 20 July 1994. However, on the evidence before us, we find that, on the balance of probabilities, Mr Wiegand was not suffering from dysthymic disorder, or any other diagnosable psychiatric condition, at any time prior to 20 July 1994.
Mr Wiegand also referred to the tribunal’s narration of Dr Mackay’s clinical notes of consultations up to and including 20 July 1994, which read as follows:
●on 5 January 1994 Mr Wiegand complained of abdominal pains since 17 December “only when at work”, and a diagnosis of “duodenal/peptic ulcer” was made;
●on 11 January 1994 Mr Wiegand reported that his abdominal pains were “not better” and it was noted that “indoor pollution at work” was discussed;
●on 4 February 1994 Mr Wiegand reported that he had awoken at 4.00 am with pain after one day back at work, and a diagnosis of “peptic disease or stress related pain or gallstones” was made;
●on 20 July 1994 “stress at work”, “insomnia”, “no major depression” were noted.”[5]
[5] [2010] AATA 790 at [57].
Mr Wiegand maintains that he had had other tests which excluded an ulcer or a heart condition, and that the reason for his request on 7 December 1993 to go to permanent part-time work (which was later approved by the ATO and commended on 10 February 1994) was the result of the effect on his health of work-related stress which caused his dysthymic disorder.
From my perusal of the transcript of the proceedings that gave rise to the above decision of 15 October 2010, counsel for Comcare, Mr B Dube, appeared to accept that 4 February 1994 was the first suggestion of a question of stress-related issues, and he submitted that on the contemporaneous records, the onset of symptoms of depression suggested a date of injury of late 1993 or early 1994.[6] However, Mr Dube qualified this submission with the proviso that in order for there to be an injury within the meaning of the SRC Act, it remained necessary for the symptoms to constitute an “injury” within the meaning of the SRC Act, that is, it was essential for the employee to demonstrate that he or she is “in a condition that is outside the boundaries of normal mental functioning and behaviour”.[7] Mr Dube repeated this qualification at the directions hearing before me. This question would of course entail the tribunal determining a matter on which medical evidence would be relevant, in conjunction with evidence from Mr Wiegand’s symptoms and their effect on him, including his capacity to work.
[6] Transcript, 12.08.10, page 133, lines 15-19; page 134, lines 38-43; page 135, lines 44-46; page 136, lines 37-46; and page 137, lines 39-47.
[7] Comcare v Mooi (1996) 69 FCR 439 at 444.
It appears from my perusal of the transcript that the tribunal made no further reference to the necessity or otherwise for Dr Mackay to give evidence, and that the tribunal determined the date of injury as 20 July 1994 notwithstanding (a) Mr Wiegand’s statement at the outset of the hearing about being unable to obtain a report from Dr Mackay to clarify his notes, and (b) counsel’s reference to the contemporaneous records indicating the existence of symptoms in late 1993 or early 1994. The determination of the date of injury is a significant matter, because if, for example, the tribunal had instead decided that the date of injury was 4 February 1994 (when Dr Mackay’s notes referred to “stress related pain”), or 5 January 1994 (when there was a complaint of “abdominal pains since 17 December ‘only when at work’”), then incapacity payments would have been calculated on the basis of full-time work, rather than part-time work at the rate of 60% of full-time salary. In the circumstances, there may be some force in Mr Wiegand’s complaint that the tribunal did not refer again to Mr Wiegand’s stated wish to obtain a report from his GP in order to clarify the notes before determining this issue in a way that was adverse to him.
Of course, if what occurred amounted to a breach of the rules of procedural fairness that would involve an error of law and a ground of appeal to the Federal Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
Another matter relevant to the determination of the date of injury is whether that determination could have been informed by restrospectant evidence, that is the use of evidence of subsequent events or information, that later occur or become available, in order to determine a state of affairs as at an earlier date.[8] I understand from Mr Wiegand’s submissions that he undertook tests which excluded any heart condition or ulcer as a cause for his symptoms in late 1993 or early 1994. I am not sure when these results were available, but if this was after the consultations with Dr Mackay early in 2004, they might have made it more likely, taken in conjunction with the continuation of his symptoms, that the symptoms from which he was suffering at the time of those consultations were caused by a depressive disorder. It is not clear from my reading of the transcript or the reasons for decision whether the tribunal considered the relevance of these tests when determining the date of onset of the injury. The recent reports from Drs Mackay and Coyte would also fall into the category of retrospectant evidence.
[8] See generally Butterworths, Cross on Evidence (4th Australian edition) Vol. 1 at [1170] and Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281.
Quite apart from the above matters, it seems to me with respect that it may not follow that the contemporaneous records to which the tribunal referred, when considered in conjunction with s 7(4) of the SRC Act, should lead to the conclusion that the date of injury was a date earlier than when Mr Wiegand commenced permanent part-time work on 10 February 2004. Section 7(4) provides relevantly in effect that an employee is deemed to have sustained an injury, being a disease, on the day when he or she first sought medical treatment for the disease, or when the disease resulted in the relevant incapacity for work, or impairment of the employee, whichever happens first. That section does not necessarily entail a consideration of the date of diagnosis of the disease.
Having regard to Dr Mackay’s records and the evidence of Mr Wiegand as to his reasons for applying for permanent part-time work (which evidence I referred to in paragraph 7 above), as well as (to the extent that this may be relevant) the doctrine of retrospectant evidence (including the recent reports from Drs Coyte and Mackay), there appears to be a sound basis for an argument that the date of injury was more likely to have been (a) 7 December 1993, when Mr Wiegand applied for permanent part-time work (as this is evidence that he was incapacitated for work, and other contemporaneous evidence points to that incapacity having been caused by a depressive disorder), or (b) 4 February 1994, when he consulted Dr Mackay who recorded a diagnosis of “peptic disease or stress related pain or gall stones” (emphasis added) after one day back at work.
Mr Wiegand indicated that he was not disposed to lodge what would be his third appeal to the Federal Court. I can understand his reluctance to do so, in view of the history of this matter, but this is a matter for him to decide.
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. It is also appropriate to record Mr Dube’s comment that if Mr Wiegand seeks to challenge the date of the dysthymic disorder injury, he is instructed that Comcare would seek to re-open the issue (which appears to have been central to the tribunal’s decision of 15 October 2010) of whether Mr Wiegand’s injury was a result of an event which was excepted from the definition of “injury” in s 4(1) of the SRC Act as in force at the relevant time. As I understood Mr Dube’s comment, Comcare would seek to re-litigate this issue on the basis that if the date of the dysthymic injury was in late 1993 or early 1994 it was more likely to have been contributed to by an excepted event, namely a failure to obtain a promotion in 1993, than would have been the case if the date of injury were in July 1994.
Of course, if Mr Wiegand decides to apply for an extension of time to appeal, it will be necessary for the Federal Court to determine the relevance of the issues to which I have referred above, and it is not appropriate for me to express any view as to the likely outcome of any application that might be made to that court.
Whilst the question of whether Mr Wiegand’s condition was the result of an excepted event was central to the hearing before the tribunal, it is also clear, as Mr Dube contended, that the date of the injury was a live issue before the tribunal, and was the subject of evidence and discussion during the hearing. I refer in particular to references to this issue in the evidence of Mr Wiegand,[9] Dr Coyte,[10] Dr Flynn,[11] and Dr Davis.[12] I have already referred above to the references in the transcript to counsel’s final address. Accordingly, the tribunal was asked to make a finding as to the date of injury, and did so. It was necessary as a result of the tribunal’s decision for Comcare to consider the amount of compensation payable, but the tribunal did not remit the matter to Comcare pursuant to s 42D of the AAT Act for that purpose. The tribunal, having decided the issue of liability, including the date of injury, was accordingly functus officio as regards those issues. In these circumstances, I do not think it appropriate, on the hearing of a review on Comcare’s determination of the amount of compensation payable, to admit further evidence in relation to the date of injury, especially as this would result in re-opening the issue of liability.
[9] See for example transcript, 09.08.10, at page 25, lines 24-35, page 37, lines 25-38, page 43, lines 12-13, and page 46, lines 33-35.
[10] See for example transcript, 11.08.10, at pages 59 and 60, lines 14(page 59)-11(page 60), page 61, lines 8-19, page 62, lines 4-25, and page 79, lines 16-46.
[11] See for example transcript, 11.08.10, at page 86, lines 1-23.
[12] See for example transcript, 12.08.10, at pages 96-97, lines 20-22(page 96) and lines 34(page 96)-8(page 97).
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. The circumstances in which a fresh claim for compensation can be made notwithstanding an earlier determination have been discussed in a number of cases. Generally, parties should not be permitted to re-litigate matters that have already been determined in the tribunal.[13] In Re Matusko and Australian Postal Corporation,[14] the tribunal formulated the following propositions:
[13] See Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 and Re Matusko and Australian Postal Corporation (1995) 21 AAR 9.
[14] (1995) 21 AAR 9 at 20.
(a)No formal issue estoppel arises from the Tribunal’s findings in Re Matusko 1991, [i.e. the earlier tribunal proceedings under consideration in that case],
(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.
…
It is clear from the authorities that doctrines such as res judicata, issue estoppel and Anshun estoppel do not apply to proceedings in this tribunal, and that such doctrines are inappropriate to decision-making under legislation such as the SRC Act, which includes provision for Comcare to make reconsiderations of its own motion, as part of a continuing process of administrative decision-making.[15] It follows from these authorities including Re Matusko, that it would be competent for Mr Wiegand to make a new claim for compensation, notwithstanding the above decision made by the tribunal dated 15 October 2010.
[15] See Re Filsell and Comcare (2009) 109 ALD 198 and the authorities I there discussed.
Having regard to the authorities to which I referred in paragraphs 27 and 28 above and to the matters canvassed in my above reasons, it would also be competent for Comcare, on its own motion, to reconsider pursuant to s 62(1) of the SRC Act the date of the dysthymic disorder injury in the light of the analysis I have made in these reasons for decision.
I hope that the parties will even at this late stage endeavour to resolve their differences. However, if this does not occur, and further proceedings eventuate in this tribunal, no doubt the member(s) involved will investigate the possibility of making a direction under s 33(1)(c) of the AAT Act to inform itself of relevant facts by receiving as evidence in any such new proceedings the transcript of the evidence given in the most recent proceedings (being the proceedings that resulted in the above decision of 15 October 2010), as well as the Statement of Agreed Facts tendered in those proceedings, and also any relevant agreed findings of fact made in those proceedings.[16]
[16] See for example the directions made by Deputy President Forgie in Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595 at [126] – [138].
I shall arrange a further directions hearing shortly, to enable the parties to consider their position in the light of these reasons for decision.
DECISION
The applicant’s request to tender further medical evidence is refused.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis ... [Sgned] ...
Associate
Dated 18 September 2012
Date of hearing 3 August 2012 Applicant In person Counsel for the Respondent Mr B Dube Advocate for the Respondent Mr S McGregor Solicitors for the Respondent Sparke Helmore
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