Re Wiegand and Comcare

Case [2010] AATA 790


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 790

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No S2007/42, 2009/2916

GENERAL ADMINISTRATIVE DIVISION )
      Re

JOACHIM WIEGAND

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Justice Downes, President
Mr S D Hotop, Deputy President
Professor P L Reilly, Member

Date15 October 2010

PlacePerth (heard in Adelaide)

Decision

The decisions under review are set aside and, in substitution therefor, it is decided that Comcare is liable, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation, in accordance with that Act, to Joachim Wiegand in respect of the following injuries, namely, dysthymic disorder (sustained on 20 July 1994) and major depressive disorder (sustained on 30 January 1998).

Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of these proceedings incurred by Joachim Wiegand be paid by Comcare in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.

...............[sgd]...............................

President

CATCHWORDS

COMPENSATION – Commonwealth employee – applicant employed by Australian Taxation Office from 1986 to 2003 – applicant applied for promotion in 1989, 1993 and 1997 – each application unsuccessful – applicant requested approval for part-time employment in 1993 – request initially not approved but subsequently approved – applicant requested approval for compassionate leave in 1996 – request refused – applicant failed to obtain promotion and benefit in connection with employment – applicant suffered dysthymic disorder and major depressive disorder – applicant’s dysthymic disorder and major depressive disorder contributed to in material degree by employment – applicant’s dysthymic disorder and major depressive disorder not suffered as a result of failure to obtain promotion or benefit – applicant’s dysthymic disorder and major depressive disorder are compensable injuries – respondent liable to pay compensation to applicant in respect of dysthymic disorder and major depressive disorder – decisions under review set aside

RELEVANT ACT/S

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 7(4) and s 14(1)

CITATIONS

Comcare v Caldwell [2008] FCA 2015

Comcare v Canute (2005) 148 FCR 232

Hart v Comcare (2005) 145 FCR 29

Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

Shi v Migration Agents Registration  Authority (2008) 235 CLR 286

Re Wiegand and Comcare [2002] AATA 530

Wiegand v Comcare Australia (2002) 72 ALD 795

Re Wiegand and Comcare [2005] AATA 780

Wiegand v Comcare Australia [2006] FCA 1620

Wiegand v Comcare (No 2) (2007) 94 ALD 154

Re Wiegand and Comcare [2007] AATA 1708

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

15 October 2010 Justice Downes, President
Mr S D Hotop, Deputy President
Professor P L…

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AGLC
Re Wiegand and Comcare [2010] AATA 790
Case
[2010] AATA 790
Decision Date

CaseChat Overview and Summary

Joachim Wiegand, a former employee of the Australian Taxation Office (ATO), sought compensation from Comcare for dysthymic disorder and major depressive disorder sustained during his employment from 1986 to 2003. Wiegand applied for promotions on multiple occasions which were unsuccessful, and his request for part-time employment and compassionate leave were also not approved. His mental health deteriorated, leading to the diagnosed disorders. The Federal Circuit and Family Court of Australia was tasked with determining whether the employment conditions contributed to Wiegand's disorders and if Comcare was liable for compensation.

The primary legal issue was whether Wiegand's employment conditions materially contributed to his dysthymic disorder and major depressive disorder. The court had to determine whether these disorders were a result of the employment or other factors. The court also needed to establish if the failure to obtain promotions or other benefits was a contributing factor to the mental health conditions. The relevant legislation, the Safety, Rehabilitation and Compensation Act 1988 (Cth), was used to guide the determination of compensation eligibility.

The court found that while Wiegand's employment did contribute to his mental health disorders, the failure to obtain promotions or benefits did not materially contribute to these conditions. The court held that the disorders were compensable injuries under the Act. Therefore, Comcare was liable to pay compensation to Wiegand for the dysthymic disorder and major depressive disorder. The decisions under review were set aside, and Comcare was ordered to pay compensation to Wiegand as per the Act.

The court also noted that costs associated with the proceedings could be applied for by either party within 14 days of the decision. If no application for costs was made by that date, the costs incurred by Wiegand would be paid by Comcare as per the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.

Orders

Orders of the court

The decisions under review are set aside and, in substitution therefor, it is decided that Comcare is liable, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation, in accordance with that Act, to Joachim Wiegand in respect of the following injuries, namely, dysthymic disorder (sustained on 20 July 1994) and major depressive disorder (sustained on 30 January 1998).

Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of these proceedings incurred by Joachim Wiegand be paid by Comcare in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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