Re Wiegand and Comcare
[2010] AATA 790
•15 October 2010
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, MemberDate15 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 Reilly, MemberIntroduction
1. Joachim Wiegand (“Mr Wiegand”) was employed by the Australian Taxation Office (“ATO”) from 28 May 1986 to 28 March 2003. Mr Wiegand, however, last attended at the ATO for duty on 31 December 1997 and he remained absent from duty for health reasons from 2 January 1998 to 28 March 2003 when he was medically retired.
2. On 12 May 1998 Mr Wiegand made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of “major depression” which he claimed had been contributed to by events described by him in the claim form as follows:
“defamation & victimisation in 1990.
ongoing discrimination etc.
Lodged various grievances which all ended as whitewash.
Asked Comcare for help – in vain”.
Attached to the claim form was a medical certificate, dated 28 April 1998, issued by Dr David Coyte, Psychiatrist, which stated that Mr Wiegand was suffering from “major depression”.
3. Comcare has decided that it is not liable under the SRC Act to pay compensation to Mr Wiegand and it has disallowed his claim.
4. Mr Wiegand has applied to the Tribunal for review of Comcare’s disallowance of his claim for compensation.
The Decisional History Regarding Mr Wiegand’s Compensation Claim
5. An officer of Comcare made a determination on 10 June 1998 disallowing Mr Wiegand’s claim and that determination was affirmed by an Independent Review Officer of Comcare in a “reviewable decision” made under s 62 of the SRC Act on 22 September 1998.
6. On 4 November 1998 Mr Wiegand applied to the Tribunal for review of that reviewable decision, and, on 28 June 2002, the Tribunal affirmed that decision: see Re Wiegand and Comcare [2002] AATA 530.
7. Mr Wiegand appealed to the Federal Court of Australia against the Tribunal’s decision of 28 June 2002 and, on 5 December 2002, the Court (von Doussa J) allowed the appeal, set aside the Tribunal’s decision, and remitted the matter to the Tribunal for re-hearing according to law: see Wiegand v Comcare Australia (2002) 72 ALD 795.
8. On 12 August 2005 the Tribunal (differently constituted) again affirmed Comcare’s reviewable decision of 22 September 1998: see Re Wiegand and Comcare [2005] AATA 780.
9. Following an appeal by Mr Wiegand to the Federal Court of Australia against the Tribunal’s decision of 12 August 2005, the Court (Finn J), on 27 November 2006, dismissed the appeal: see Wiegand v Comcare Australia [2006] FCA 1620. On 16 February 2007, however, Finn J, pursuant to O 35 r 7(1) of the Federal Court Rules 1979 (Cth), set aside his judgment in Wiegand v Comcare Australia [2006] FCA 1620, allowed Mr Wiegand’s appeal, set aside the Tribunal’s decision of 12 August 2005, and remitted the matter to the Tribunal “to be decided again”: see Wiegand v Comcare (No 2) (2007) 94 ALD 154.
10. On 12 June 2007 the Tribunal made an interlocutory decision that it did not have jurisdiction in the present proceedings to consider whether Comcare is liable under the SRC Act to pay compensation to Mr Wiegand for major depression “in respect of a period prior to 1 January 1998”: see Re Wiegand and Comcare [2007] AATA 1708.
11. Mr Wiegand subsequently provided to Comcare a written statement dated 21 February 2008, in support of his abovementioned claim for compensation dated 12 May 1998, which Comcare accepted as a claim for compensation in respect of injury suffered by Mr Wiegand prior to 1 January 1998.
12. On 9 May 2008 a delegate of Comcare made a determination that Comcare was not liable under the SRC Act to pay compensation to Mr Wiegand in respect of “major depressive disorder, single episode” which occurred on 25 October 1995. That determination was affirmed by another delegate of Comcare in a reviewable decision made under s 62 of the SRC Act on 21 January 2009.
13. By letter dated 22 March 2009 Mr Wiegand applied to the Tribunal for review of that reviewable decision.
The Matters Presently Before the Tribunal
14. The Tribunal, in the present proceedings, has two matters before it, namely:
· the matter remitted by the Federal Court of Australia on 16 February 2007 (see paragraph 9 above) (No S2007/42); and
· Mr Wiegand’s application for review of Comcare’s reviewable decision of 21 January 2009 (No 2009/2916).
The Evidence
15. The evidence in the hearing of the present proceedings comprised:
· all of the exhibits (namely, Exhibits A1–A10 and R1–R15) which were in evidence in the Tribunal’s first hearing in 2002 (“the 2002 hearing”), and a copy of the transcript of that hearing;
· all of the exhibits (namely, Exhibits AI–AXLI and RI–RXV) which were in evidence in the Tribunal’s second hearing in 2004–2005 (“the 2004–2005 hearing”) and a copy of the transcript of that hearing;
· the “T Documents” (T1–T19) lodged by Comcare, in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), in Application No 2009/2916;
· Exhibits A, B, C and D tendered by Mr Wiegand;
· Exhibit E and a bundle of “Further Documents” (1–8) tendered by Comcare; and
· the oral evidence of Mr Wiegand, Dr David Coyte, Dr Patrick Flynn, Dr Anthony Davis, and Professor Robert Goldney.
The Agreed Facts
16. The parties filed a Statement of Agreed Facts and Issues, dated 12 May 2010, in which “the major events” in the course of Mr Wiegand’s employment by the ATO, for the purpose of these proceedings, and “the extent to which the parties agree on the detail of those events”, were set out as follows:
“4.1Mr Wiegand complained of bad air, passive smoke, and other fumes in his workplace causing him ill health which led to him being diagnosed as suffering asthma (the ‘air-conditioning concern’).
4.2Mr Wiegand complained to the Director of the section about his relationship with his section manager (which he considered to be poor) and about statements made by the section manager about Mr Wiegand. Mr Wiegand was transferred to the audit section (the ‘untruthful statements concern’).
4.3In 1988 Mr Wiegand was involved in a motor accident which caused a compound fracture of his leg. Comcare at first denied liability, and later there was disagreement with Comcare over the reimbursement for various expenses. Liability was ultimately accepted for the claim (the ‘journey accident claim’).
4.4In 1989 Mr Wiegand applied for a promotion to the ASO4 level. There were two positions to be filled. Two other colleagues were successful. Mr Wiegand appealed. Mr Wiegand considered that the promoted officers had raised claims that implied that Mr Wiegand had damaged computer hardware and software and had broken the secrecy provisions of s 16 of the Income Tax Assessment Act 1936 (Cth). He considered this conduct to be very threatening. Mr Wiegand denied these allegations. He told management that he would request the Australian Federal Police to investigate. The section manager, Mr [R], then called a meeting where the allegations were discussed. Mr Wiegand was concerned about the effect on him of these matters and as to whether he could obtain other employment. He was so concerned about the allegations that he consulted a solicitor about legal action for defamation against the two officers who had in his view made defamatory statements (‘the 1989 non promotion’).
4.5In early 1992 after the introduction of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) Mr Wiegand became an Occupational Health and Safety (OH&S) representative. He took this position seriously. He was advised by his superiors of the need to perform his ordinary duties, and not to spend too much time on health and occupational issues. Many complaints were received by him, and passed on, about the bad air and other environmental conditions of the workplace. Action was taken by ATO to investigate the complaints (the ‘OH&S concerns’).
4.6In 1993 Mr Wiegand made an application for a part-time position in lieu of his full-time position. Mr Wiegand says the section manager, Mr [G], said that he would support the application only if Mr Wiegand agreed to relinquish union activity and his role as an OH&S representative. Disputation occurred over the occupational health and safety responsibilities. Mr Wiegand lodged a grievance complaint against Mr [G]. After the grievance complaint was made, Mr Wiegand was informed that his application would be accepted for part-time work without him being required to give up the other activities. The grievance was considered by the investigating officer to have been resolved. Mr Wiegand considered this to be a failure to follow up his grievance and it caused him disappointment and upset (the ‘request for a part-time position and its aftermath’).
4.7In 1993 Mr Wiegand formed the view that the same officer against whom he had lodged the grievance complaint was keeping a ‘secret’ file on him. He confronted the officer and requested to see the file. The officer agreed that there was a file which he produced. Mr Wiegand requested a copy of the contents but believes that only some of the papers were given to him. Mr Wiegand challenged the officer’s right to open and start a file. The explanation given to him was that the file was to track his work output (the ‘secret file concern’).
4.8Mr Wiegand says that in 1993 he was advised by an officer, Mr [D], that he had ‘shortlisted’ Mr Wiegand out of consideration for a promotion because the officer was still convinced that Mr Wiegand had broken the secrecy provisions of s 16 of the Income Tax Assessment Act when he was making enquiries about the workload of the two people who had obtained promotion over him in 1989 (the ‘second promotion concern’).
4.9In [October] 1996 Mr Wiegand’s father, then aged seventy-seven, came to Adelaide for a short visit. His father, whom he had not seen for some eight years, was very sick with prostate cancer. Mr Wiegand sought to have a few days off to spend with his father as it could possibly be the last time he would see his father alive. As he was then a part-time employee he felt that he could make up lost working days in the following weeks. He was informed that he could not take time off as there was too much work to do in the department. He was told by his superior, Mr [G], that a lot of people were on leave at the time. Mr Wiegand says that Mr [G] also accused him of being the worst performing officer he had encountered. Mr Wiegand was greatly upset by these events. He lodged a grievance complaint against the officer. The grievance was disallowed. Mr Wiegand was advised that it was proper for management to consider applications for recreation leave based on work demands and personal needs of staff. The investigating officer was satisfied that this happened in relation to his application. Mr Wiegand was informed that the investigation had not produced any evidence of discrimination against him. However, the investigating officer said that he was not satisfied that the necessary open lines of communication either from management to staff or from staff to management were in place to address things such as planning workloads, monitoring results, responding to fluctuations and dealing with workforce planning issues. The investigating officer intended to implement arrangements of that kind (the ‘compassionate leave event’).
4.10In December 1995 Mr Wiegand attended a meeting with an occupational health adviser and his section manager which followed the refusal of the ATO to pay a doctor’s account in the absence of an incident report. The meeting concerned the reasons why Mr Wiegand had visited the doctor. As the meeting progressed, he felt that it was leading nowhere so he got up to leave the room only to find one of the officers blocking his path. The other officer calmed down the situation and had Mr Wiegand sit down again to discuss the visit to the doctor. On a second occasion Mr Wiegand again got up to leave the room and again his exit was blocked. He says he became extremely worried and fearful something would happen. He was again told to sit down. He pretended to do so and as the officer blocking his exit moved away from the door, he was able to move quickly through it and out of the room. Mr Wiegand lodged a grievance complaint against the officer who had blocked his exit saying that he felt harassed and that his health had been affected. The grievance was disallowed. [The investigating officer who conducted the grievance investigation found that as Mr Wiegand had attempted to leave the room, an officer had stood so as to appear to block the exit. The investigating officer said:
‘The meeting room in which the meeting of 6/12/95 took place is such that given the position in which (the officer who blocked the exit) sat, it was inevitable that in standing he would have stood between the door and anybody trying to leave the room. I am satisfied that (the officer) was attempting to convince Mr Wiegand of the need to treat the matter under discussion both seriously and urgently and therefore in standing he prevented Mr Wiegand from leaving. However, I am not convinced that there was ever any threat either implied or otherwise on the part of (the officer). I can see how Mr Wiegand might have interpreted (the officer’s) actions as an attempt to prevent him from leaving the room, and therefore feel harassed, but from the evidence given by (the officers) I do not believe there was ever any intent on the part of (the officer), and that harassment did not occur.'
Later, in his recommendations, the investigating officer said that if Mr Wiegand felt harassed then he could certainly not dispute that] (the ‘meeting room obstruction concern’).
4.11In about 1996 Mr Wiegand was the subject of a tax audit in relation to his previous three years tax returns. This led to the disallowance of a number of business related expenses and the raising of a tax debt in the order of $17,500. Mr Wiegand considered that it was unusual for an audit of this kind to take place and he believed that he had been chosen not by random action, but specifically by one of the officers against whom he had lodged a grievance (the ‘tax audit event’).
4.12In 1997 Mr Wiegand applied for a further promotion, having been encouraged to do so by his then Team Leader. Mr Wiegand says he was not expecting success. Mr Wiegand was advised on 30 December 1997 that he had been unsuccessful (the ‘1997 non promotion’).”
The Evidence of Mr Wiegand
17. In his oral evidence-in-chief Mr Wiegand briefly described the circumstances leading up to his employment by the ATO and the events referred to in paragraph 16 above. He said that, before he migrated to Australia, he had run his own business in Germany for 13 years. He migrated to Australia when he was 40 years of age and he was then “in top condition”. After arriving in Australia he entered into a business partnership but that was dissolved after a short period and, subsequently, despite attempts to obtain employment, he remained unemployed “for quite a few months” – a situation which he found “very distressing” as he could not support his family. He eventually undertook the Australian Public Service examination and was subsequently offered employment by the ATO. He said that when he joined the ATO he was “very fit” but that he soon began to suffer from various physical ailments which he attributed to unhealthy working conditions in the T&G Building where he was then working.
18. In cross-examination Mr Wiegand confirmed that he was involved in a motorcycle accident in July 1988 and that he was thereafter off work for the next 10 months until May 1989 when he returned to work. He initially worked for two hours per day and he then gradually increased his working hours until January 1990 when he was again working full-time hours. He was questioned about some of the events referred to in paragraph 16 above and his evidence was as follows.
The 1989 non promotion
19. Mr Wiegand said that there were “more than a dozen” applicants for the two ASO4 positions from within his section of the ATO but that he was not aware of how many persons from outside the section had applied for the positions. He added:
“… but I was the only ASO2 who went for the promotion. All the rest were ASO3s.” (Transcript, p18)
20. Mr Wiegand said that, when the names of the two successful applicants were announced, “lots of people were really peeved off”. He said that he then “decided to get the work stats” of the two successful applicants, and he added:
“… this established that one of those two people who had been successful had, in six months, finalised one case, and the other had finalised three cases.”
His evidence continued:
“ … When I then found out, my reaction was, ‘That is a fairly crass case of favouritism’, to put it as mildly as possible, and I tried to raise this with the management, first, with various team leaders, then with the manager of the section, and then, eventually, with the director of the section and I tried to convince them that the exercise – or the result of the promotion, if it would not be corrected, would destroy morale and I tried to argue that the exercise should be cancelled and should be redone, but to no avail.” (Transcript, p 19)
He confirmed that he then formally appealed to the Promotion Appeals Committee, in order to “prove the point – my argument”, but that his appeal was unsuccessful. He said that, after he made the abovementioned representations to management, and “nothing happened”, he went straight to the MPRA (Merit Protection and Review Agency), without success.
21. Mr Wiegand agreed that his abovementioned action in investigating the work performance of the two successful promotion applicants was “the catalyst” for their alleging that he had damaged computer hardware and software and breached the secrecy provision in s 16 of the Income Tax Assessment Act. He added:
“Well, my understanding, limited at (sic) it was at that time, was that, as a public servant, the public service has to play by certain rules. My understanding was that if I become aware of corruption, or whatever, I have an obligation to bring this to the attention of management. Following from this, my understanding is that management, in principle, has an obligation to investigate the matter. That didn’t happen, despite the accusations being fairly – how do I say – sincere. The offences were punishable with imprisonment, but nothing happened, ever.” (Transcript, p 20)
22. Mr Wiegand was referred to a file note of “M S Grivell”, dated 25 March 1993, which states as follows:
“I joined Primary Audit in January 1990 as Manager of a Team in which Joe Wiegand was a member. For about the first 6 months of the time I supervised Joe he performed work of a very high standard and quality. During this time he was mainly working on spouse rebate cases. After the first 6 months, Joe went for a job at the ASO4 level and missed out on this position. From this time until [PR] took over supervising Joe, his work quality and quantity decreased at an alarming rate. He collected a large number of cases, with only a small number of these being completed. He would visit the Stock Exchange during morning tea, which often led to his taking extra long morning tea. He spent a lot of time looking into the successful applicants at the ASO4 level and in fact breached security by accessing their cases and work completed on our recording system. Joe spent a large amount of time on his accident claim and also with his appeal regarding the ASO4 positions. On the occasions that I stressed to Joe the troubles he was having and my disappointment at his low level of output he would improve for a short period of about a week and then relapse into his old bad habits. Joe has the ability to be a very effective and efficient officer, however during the time I supervised him he came nowhere near fulfilling his potential.” (Exhibit A4 in the 2002 hearing)
Asked whether he agreed with Mr Grivell’s statement that, after the promotion decision in 1990, his “work quality decreased at an alarming rate”, Mr Wiegand answered “No” and referred to a document (unsigned and undated) comprising a report on his work performance in the period from 1 July 1990 to 30 July 1990 (Exhibit A5 in the 2002 hearing) which stated that he had completed 33 cases in that period and which, he said, was written by Mr Grivell and showed that “what [he] did in a month was more than what the average officer was doing in a year”. He said that the abovementioned file note of Mr Grivell was “the first folio in what [he] called the secret file, the dirt file” and that there was “a certain motivation behind this which is not backed up by what really happened”. (Transcript, p 21)
The OH&S concerns and the request for a part-time position and its aftermath
23. Mr Wiegand confirmed that, when he first became an OH&S representative, he was working full-time hours and that he subsequently requested approval to work part-time hours. He agreed that he then had discussions with his section manager regarding his performing OH&S activities as well as his normal ATO duties. He said that the section manager told him (referring to his OH&S activities and his request to work part-time):
“You give this up or I won’t approve it.”
He added:
“And I had a clash with him a couple of years earlier when he tried to make certain changes for the whole section, and I approached him as the union rep and told him, ‘Look, in my opinion you can’t do that’, and then he steamed off to see someone high up in management, and then he came back and he had to pull his tail in. So that’s – we weren’t on too friendly terms. His approach or his demand of me to drop my own union activities and occupational health and safety activities I found quite offensive. I felt compelled to – on behalf of the union, to reject that, and same thing on occupational health and safety. This, in my opinion, was just an attempt to get rid of me because I was standing on toes – on the toes of certain people.” (Transcript, p 24)
24. It was put to Mr Wiegand that, in his evidence at the 2002 hearing, when asked how he felt about the section manager’s statement that he would not approve his request to work part-time unless he gave up his OH&S activities, he said that he was “furious” and “upset”. Mr Wiegand responded:
“I was as furious as I sort of am here now.”
It was also put to him that he had then said, in giving evidence at the 2002 hearing:
“I’m a very stubborn person. Once I’ve made up my mind, I try to bring something to a conclusion.”
to which he responded:
“I do.” (Transcript, p 25)
25. Mr Wiegand confirmed that he made his request to work part-time in December 1993 and that that request was ultimately approved in February 1994. He also confirmed that, in the meantime, he had lodged a grievance against the section manager on the ground that he “took matters into consideration which were not relevant”, but that he was dissatisfied with the way that grievance – and, indeed, all the grievances which he lodged – were handled. He added:
“It was a closed club … Mates looking after each other.” (Transcript, p 27)
26. Asked by the Tribunal 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 he 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.” (Transcript, p 25)
The compassionate leave event
27. It was put to Mr Wiegand that, when asked at the 2002 hearing how he felt about the section manager’s refusal to approve his request for compassionate leave in October 1996, he said that he was “extremely upset”. Mr Wiegand responded:
“I thought it was outrageous what he did, yes.” (Transcript, p 28)
Later he said:
“… Well, I clearly was entitled to carer’s (sic) leave and it was a grave situation my father was in, so Mr [G] simply saying, ‘No, you won’t get it’ – I thought it – I thought it was outrageous but then – and I had in my – sort of an upset stomach because of this. But in a way I simply gave him the birdie and took sick leave, so ---” (Transcript, p 29)
The 1997 non promotion
28. Mr Wiegand was referred to a document headed:
“Joe Wiegand
Manager Comments”
prepared by Michael Edgecombe and dated 22 May 1998 (T7, pp 226–227, in Application No 2009/2916). That document relevantly states:
“1.I was Joe’s team leader in INB Audit from early November 1997 to the end of November, and his manager from December 1997 to the point at which he commenced the current period of absence on Monday 12 (sic) January 1998.
…
6.Shortly after I became Joe’s team leader, INB Correct Payments commenced an ASO 3 selection process, and INB Audit joined in with this.
7.I was keen for Joe to apply for the positions, but I had serious doubts about his ability to produce sufficient quality examples of work-related behaviours to succeed. I took Joe aside and spoke to him frankly. I said that I was aware that he had historical issues with the organisation, although I was not personally familiar with the details. I urged him to put them in a box and deal with them separately, and pursue a positive course within the organisation in the present. I told him that he had plenty of initiative and ability, and that there was every reason for him to progress in the organisation if he chose to do so. We agreed that he did not have a record of contributing to the organisation in a positive way, and was therefore unlikely to succeed in the current process, but I urged him to apply anyway, as a signal of his commitment to the organisation, and as a step in turning around his own attitude. He agreed to do this.
8.Subsequently Joe was notified that he had been unsuccessful on application, and he appeared disappointed when he spoke to me about it, although not surprised. He expressed some cynicism about the reasons for the decision.
9.Shortly after this, Joe’s absence commenced.”
With respect to paragraph 8 of that document, Mr Wiegand said:
“I wasn’t disappointed because I had told him before I don’t see the point, but I did it to humour him. The application.” (Transcript, p 31)
He later added:
“I advised Edgecombe when he approached me and urged me to – to put an application in, that it would be a pointless exercise. … A pointless exercise, in view of what had happened before. It’s like when I went for a promotion a couple of years – a few years earlier – back in 1993 or thereabouts, 94, I forgot. When a senior manager told me, ‘By the way I have short listed you out’, so my case – my application wasn’t even looked at. ‘I have short listed you out because I am still convinced that you breached section 16, the secrecy provision, back in 1989-90’. …” (Transcript, p 32)
He said that he had then realised that his name was “absolutely mud” and that he had “no chance whatsoever to ever get a promotion … in the tax office”.
29. Mr Wiegand was then questioned about his initial consultations with Dr Coyte and Dr Lang. He confirmed that he first saw Dr Coyte, a psychiatrist, in early February 1998 and he accepted that, as recorded in Dr Coyte’s clinical notes (part of Exhibit RI in the 2005–2005 hearing), he had mentioned, among other employment-related events, that his promotion application had been unsuccessful. He also confirmed that he first saw Dr Long, an occupational physician, at the request of the ATO in May 1998. He was referred to Dr Long’s clinical notes regarding his consultation on 25 May 1998 (T7, pp 219–220, in Application No 2009/2916) and, in particular, the following notes:
“R/V ‘Manager’s Comments’ – disagrees with comments at point 7.
Accepts failed selection and related issues may have contributed to trigger not to go to work in 1/98.”
Mr Wiegand said that he did not remember discussing Mr Edgecombe’s comments (see paragraph 28 above) with Dr Long or telling Dr Long that he accepted that the “failed selection and related issues may have contributed to” the “trigger not to go to work” in January 1998. He acknowledged, however, that he “may have done so”.
30. Mr Wiegand asserted that his failure to be promoted (of which he had been informed on 30 December 1997) did not cause him “to become depressed or not to turn up at work” on 2 January 1998. He referred to a “German tradition” of, at the end of each year, reviewing the past year and considering what the coming year may bring. His cross-examination continued:
“Yes. And you say that – well, I’ll put these propositions to you. In sitting there, reviewing the previous year, your evidence is that in no way did it cross your mind that once again, someone had said to you, ‘Why don’t you progress – try and progress in the tax office.’ And once again, the tax office had ignored you?---No.
It didn’t cross your mind at all?---No.” (Transcript, p 31)
He was later cross-examined further on this matter and his evidence was as follows:
“Yes, but in terms of – do you agree with me that, in terms of whatever was crossing your mind in early January 1998, as to whether or not you should get up and go to work, the 1997 promotion (sic) was one of the things that was on your mind?---No, I did not think about it. I just didn’t move it. I didn’t – I didn’t think. This was not – not a rational decision. … I was just sitting in my chair, watching the wallpaper, and I kept saying that’s what it was.
But at least on what Dr Long said, or what his notes say, is that, on 2 January 1998, one of the reasons that made you think – or one of the reasons that caused you to still sit and stare at the wallpaper and not get up was the failed selection?---It might have been the case, yes. It might have contributed to it.” (Transcript, p 43)
31. Mr Wiegand was asked by the Tribunal to describe the effect on his health of his unsuccessful promotion applications in 1989, 1993 and 1997 and his being refused compassionate leave in October 1996. As regards the unsuccessful promotion applications, Mr Wiegand denied that any of them had affected his health. He reiterated that he had not expected any of those applications to be successful for the reasons that he had earlier explained. As regards the refusal of his compassionate leave request, Mr Wiegand said that he regarded it as an attempt by the section manager to “get back at” him and it made him “furious” and “angry” but, he added:
“I don’t think it contributed to my depression or mental condition along those lines. I was furious, and I fought back.” (Transcript, p 45)
The Evidence of the Medical Witnesses
Dr David Coyte
32. Dr Coyte, Psychiatrist, first saw Mr Wiegand on 5 February 1998, following a referral by Dr Mackay (Mr Wiegand’s general practitioner), and he has continued to see him on approximately a monthly basis since then. Seven reports by Dr Coyte relating to Mr Wiegand, and his clinical notes of consultations with Mr Wiegand from February 1998 to March 2004, are in evidence.
33. Dr Coyte confirmed that, when he first saw Mr Wiegand in 1998, he made a diagnosis of major depression.
34. Dr Coyte was asked by the Tribunal to explain his understanding of the association between Mr Wiegand’s employment and his psychiatric condition. Dr Coyte responded as follows:
“Yes, I understand that question because it’s one which, I think, turned up in my mind on the very first time I saw him. My understanding, perhaps, in the first two or three times that I saw him, and the understanding I have had – I have developed subsequently are slightly different . When I first saw him, I was aware of the ongoing nature of conflict that he’d had at work, and with what seemed to be other authority figures in life in different settings. And my first impression was that there may be some kind of paranoid process going in the background. After two or three times of seeing him and clarifying this, it became quite apparent that it was not a paranoid process at all, that is, not a process where a person has a pre-existing assumption of the malevolence of others as being the primary motivation. But instead, I saw that he had an underlying personality style which was governed by a desire to strictly adhere to rules and protocols and that the things should be done correctly – what has been termed ‘obsessive compulsive’ personality traits, or various ways of describing this, and that, with that personality, when faced with a work system where things were not done always strictly according to the rules, or according to protocols, that he was in some conflict and distress about that. And for a person with this kind of personality, the way to approach that is, of course, to try to have things adhere to the rules and the protocols – to be done correctly, so to bring this up with superiors, to try to make those rules be reinforced. And it appeared to me that Mr Wiegand’s repeated attempts to try to do that had been thwarted, from what he’d told me, and that people didn’t want to know, or, you know, wished to allow the system to keep working in the way they saw it was going. And this caused him increasing levels of frustration. And so, the experience that, on my understanding, is that he had was that of anxiety and increasing levels of frustration and irritation. And if one is frustrated and irritated and still keeps trying to reinforce these rules and have them adhered to and fails, then one – excuse me – then one starts becoming demoralised and depressed. And that’s my understanding of the interaction.” (Transcript, pp 62–63)
35. Dr Coyte was also asked by the Tribunal to comment on the relationship (if any) between Mr Wiegand’s unsuccessful promotion applications and his psychiatric condition. Dr Coyte commented as follows:
“Yes. I guess I can speak more specifically about the 19 – get my dates right, 1997 application for promotion, because I knew most about that because it was just prior to my seeing him. And he described not being particularly interested in seeking the promotion in the first place but was encouraged to do so by others. And his dissatisfaction, if you like, was slightly heightened by what he saw as the incompetent process involved and the lack of credibility of the people that he saw who were actually being promoted. So it was more about, for him, about the process. And certainly, when I saw him, he didn’t express disappointment at not being promoted. That wasn’t the issue in his mind. It’s a bit like, perhaps if I can use a medical – if one has a toe which is swollen with gout, which is very painful, the cause being high blood levels of uric acid – if one taps that toe against the leg of a chair, it causes pain. But one wouldn’t want to be saying, ‘Well, the leg of the chair caused the gout.’ Now, that underlying depression, in other words, was already there. That sense of dissatisfaction in rules not being followed was already there. This just came along as another small thing and confirmed it in terms of the processes that were involved. That was how it was put to me.” (Transcript, p 65)
36. The circumstances surrounding Mr Wiegand’s request for approval to work part-time in 1993, and the refusal of that request, were referred to Dr Coyte for comment, and he commented as follows:
“Well, again, rather than the failure to achieve something being the problem, again, it’s more a perception that correct process has not actually been adhered to. The facts as you outlined them to me were the ones that – the same facts that Mr Wiegand had outlined to me. But, again, his perception of that was more about how distressing it is that things are not done correctly. And while someone with this kind of personality can keep coming back to try to correct something, they are not particularly depressed or disturbed. It’s when things cannot be made to follow correct processes that things become depressing.” (Transcript, p 67)
37. The circumstances surrounding Mr Wiegand’s request for compassionate leave in October 1996, and the refusal of that request, were also referred to Dr Coyte for comment, and he commented as follows:
“Yes, again, I would expect that the failure to gain benefit, a bit like some of these other failures, are likely to cause short-term irritation. But the inability to get correct process to be followed is the prime problem giving rise to the sort of depressive condition. So in other words, I’d expect some degree of frustration or irritation of a short-term nature, but not a lot more than that.” (Transcript, p 67)
38. In cross-examination Dr Coyte was referred to his report of 21 February 2000 to Comcare’s solicitors and, in particular, to the following passage:
“My first consultation with Mr Wiegand was on 5.2.98. The history obtained at that time and on subsequent occasions, was that of a gradual accumulation of multiple events and stresses at work over many months. One month or so prior to our first consultation, Mr Wiegand had missed out on a promotion at work but rather than this being the solitary cause of his depressed mood (which had been present for two years or more), more accurately, it acted to exacerbate it.”
Dr Coyte’s evidence in relation to that matter was as follows:
“Yes. Now, when you prepared a report back in February of 2000, in your report you said that the 1997 promotion (sic) wasn’t the solitary cause of the major depression, but that it had exacerbated the depressed mood? --- Yes.
Yes. And I think you might recall that in 2005 you were asked a lot of questions about what you meant by exacerbation. Would it be fair to say that in terms of the expression you used of exacerbation, was that it either aggravated or accentuated the clinical symptoms of the depression to the point that Mr Wiegand was no longer able to go to work?---Yes, that would be my understanding.
So that he had – on your evidence you’re saying he had major depression from at least – or from around 1996?---Yes.
These events happened at the end of 1997?---Mm.
And in some way act on his overall clinical presentation to the effect that in early January 1998 he is no longer capable of motivating himself to go to work?---Yes, though I remember, and I think in the notes too, that the history given to me was that the depressive symptoms, having been there for about two years, had been progressively becoming worse - - -
Yes?--- - - - prior even to the failed promotion. So my understanding at that time was that the depressive illness itself was becoming more and more severe, and that there was this temporary exacerbation, as I’ve indicated, a sort of frustration, irritation as well, which would have temporarily caused some change or some worsening, is what I meant by exacerbation.
Yes?---But it was not the principal issue nor the principal cause of the depression.
But it was, and it might not be a medical point, but it was the final event before he never went back to work?---I think, like I was saying with my medical metaphor, the final event before my toe really hurting badly is I tap it on the chair, but that’s not the cause of my gout.
Yes?---Yes, it may have temporarily exacerbated, yes.” (Transcript, p 74)
39. As regards Mr Wiegand’s unsuccessful applications for promotion, Dr Coyte was asked, on the assumption that the refusal of promotion and the process surrounding that refusal were inextricably bound together, whether he agreed that Mr Wiegand’s failure to obtain promotion contributed to his developing major depression. Dr Coyte responded:
“Well, I think if one were to take a theoretical point of view or a general population point of view, I would have to agree with you.
… with Mr Wiegand, when one understands his particular personality and way of functioning, one can understand that a general view is actually not going to be the correct one.
Yes?---That, in specific terms, his frustration about not gaining a promotion is of small consequence, but is nonetheless there. But the problem with due process – what he would regard as due process not being adhered to and repeatedly not, and not being able to correct that, is the depressive process. So I see them as quite different.” (Transcript, pp 76–77)
40. Finally, in response to a question from the Tribunal, Dr Coyte reiterated his opinion that, immediately following the 1997 non promotion, there was a “temporary exacerbation” of Mr Wiegand’s depressive symptoms but “not an aggravation of the underlying condition”. (Transcript, p 83)
Dr Patrick Flynn
41. Dr Flynn, Psychiatrist, saw Mr Wiegand on two occasions for psychiatric assessment – first, on 18 July 1995 on referral by Dr Mackay, and, secondly, on 21 July 2010 at the request of Comcare’s solicitors. He prepared a report following each of those assessments, namely, a report dated 20 July 1995 (T9 in Application No 2009/2916), and a report dated 26 July 2010 (Exhibit A).
42. In his oral evidence Dr Flynn reiterated the opinions expressed in his report of 26 July 2010, namely, that, although Mr Wiegand was not suffering from a diagnosable psychiatric disorder when he assessed him on 18 July 1995, Dr Mackay’s clinical notes indicated that from “about 1993” onwards he was experiencing depressive symptoms consistent with a diagnosis of dysthymic disorder and that the level of his depression fluctuated and was more severe in “about 1993”, in “late 1995” (when he was prescribed anti-depressant medication by Dr Mackay) and in 1998 (when he was referred to Dr Coyte) to the point that he probably had episodes of major depressive disorder at those times.
Dr Anthony Davis
43. Dr Davis, Psychiatrist, examined Mr Wiegand, at the request of Dr Long, on 16 and 18 June 1998, and he prepared a report, dated 24 June 1998, regarding that examination (T13 in Application No 2009/2916).
44. Dr Davis’ report of 24 June 1998 concludes with the following assessment:
“The history and examination indicates that Mr Wiegand has experienced symptoms of a depressive disorder for several years. The persistence of low-grade depressive symptoms for greater than 2 years is consistent with a diagnosis of a dysthymic disorder. In early 1998 he experienced a worsening of his depressive state, in keeping with a major depressive disorder. Prior to 1998, his depressive disorder has not prevented him from working, or from carrying out his usual social functions. He has stabilised with cessation of work, modification of anti-depressant medication, and regular contact with his psychiatrist.
The history indicates that Mr Wiegand has been a highly principled man who has gone to great lengths to ensure that his grievances about the work place have been heard. This occurs against a background of pre-occupation with identifying wrong-doing, and trying to bring about change in various systems. These behaviours are reflective of an unusual personality with prominent obsessive-compulsive personality traits.
I consider that his chronic depressive disorder is a consequence of an interaction of his personality style and his perception of major problems in the work place. He has repeatedly been in conflict with his employer, and this has given rise to intense frustration, anxiety and depression. Mr Wiegand indicated a number of structural problems in the work place, and made frequent reference to incompetence and inefficiency by management. I am unable to offer an objective appraisal of this, and suggest that an independent review would be necessary to assess the validity of these claims. Nonetheless, I consider that the predominant contributing factor in this depressive disorder relates to his personality style, with a lesser contribution from work place problems.
…”
45. In his oral evidence Dr Davis described dysthymic disorder as “a depressive disorder characterised by low grade chronic symptoms of depression”. He said that the history he obtained from Mr Wiegand indicated that there had been “longstanding low grade symptoms for some years, at least back from ’92 onwards”. He added:
“And then ’95, some further symptoms including memory loss which were a concern, and then in ’98 more intense and disruptive symptoms, and they were of more severe depression of mood, low energy, sleep disturbance, poor concentration, memory loss, irritability and tension. And I just felt at that point in time he would have satisfied the criteria for major depression, but it is, in fact, a fairly blurred boundary between the two …” (Transcript, p 96)
Dr Davis, however, felt unable to express an opinion on whether Mr Wiegand’s depressive symptoms were sufficiently severe at any time prior to 1998 to warrant a diagnosis of major depressive disorder at that time.
46. Dr Davis was asked to comment on the distinction between the failure to obtain a promotion and the promotion process, as regards their relative contribution to Mr Wiegand’s psychiatric condition. Dr Davis said that, in the history of “work issues” he took from Mr Wiegand, the issue of promotion was not raised by him, and he added:
“So having said that, I mean, I would have thought the failure to achieve the promotion in itself was a significant stressor, and, you know, at a level, a loss or a noxious event which could contribute to depression, then a perception, say, that the process was flawed, and that it was an unfair process giving rise to a grievance and a grievance procedure, as well, could be another stressor which in turn could contribute. I would imagine both are relevant.” (Transcript, p 96)
Dr Davis said, however, in response to Mr Wiegand’s explaining to him the surrounding circumstances of his applications for promotion in 1989 and 1997 (see paragraphs 19–20 and 28 above), that he would be prepared to accept that, in those circumstances, the failure by Mr Wiegand to obtain promotion in 1989 and in 1997 might not have affected his psychiatric condition.
Professor Robert Goldney
47. Professor Goldney, Psychiatrist, examined Mr Wiegand on 1 and 14 May 2001, and re-examined him on 26 February 2004, at the request of Comcare’s solicitors, and he prepared two reports, dated 15 May 2001 and 2 March 2004, regarding those examinations (Exhibit R3 in the 2002 hearing, and Exhibit RX in the 2004–2005 hearing, respectively).
48. In his report of 15 May 2001 Professor Goldney opined that Mr Wiegand had a “significant psychiatric condition”, namely “major depressive disorder”. In his report of 2 March 2004 Professor Goldney opined that Mr Wiegand continued to be depressed. He also addressed the following question asked of him by Comcare’s solicitors:
“4.In relation to Mr Wiegand’s personal tax audit, he was given an extension of time until 24 December 1997 to lodge an objection to the assessment and also was told that payment might be recovered by garnisheeing of his wages. The notification he was unsuccessful in applying for promotion was given on 30 December 1997. Because of the proximity of those events and the fact that Mr Wiegand did not attend for employment on 2 January 1998, is it likely that one or both of those incidents resulted in a worsening of Mr Wiegand’s condition, so that although he previously attended work, he was not able to do so on and after 2 January 1998?” (Exhibit RIX in the 2004–2005 hearing)
He replied as follows:
“It is entirely reasonable to consider that incidents such as the personal tax audit and the lack of success in applying for promotion would have been the proximal cause for Mr Wiegand’s condition deteriorating in January 1998. It is also possible that it was simply the natural history of his psychiatric condition.”
49. In his oral evidence Professor Goldney was referred to references, in his report of 15 May 2001, to Mr Wiegand’s unsuccessful applications for promotion, and he was asked whether he had formed a view regarding “the impact that not getting those promotions had on the ultimate psychiatric condition of Mr Wiegand”. Professor Goldney responded:
“Yes, I considered that they were important factors.”
His evidence continued:
“Yes. And the basis for you reaching that view?---The basis was that at the initial interview when I inquired about specific issues, the issue of promotion was the second issue that he raised, the first being concerns about the old T&G building making him sick, and after that, his next one was talking about not having been promoted, and then he noted that a couple of his fellow colleagues in his section, as he said, burst out laughing that others had been promoted in front of him, and my interpretation of that was that that would be humiliating for a person. And then he indicated that he made appeals. He inquired about the work output of the persons who had been promoted, and he considered that his work output was greater than that, and he certainly – you know, I gained the impression that that was a very significant factor in his condition.
Yes. Now, Mr Wiegand has given evidence before, and did again this week, that in essence, he wasn’t so much concerned that he didn’t get promoted, but that the fact that those two individuals got promoted demonstrated, essentially, incompetence within the Tax Office, and his concern was with the process, rather than the ultimate result. From what you’ve seen and what you (sic) read, do you think there’s a distinction between, or can you draw a distinction between the two?---Any distinction would be pretty subtle. If, in fact, one hadn’t pursued issues such as making inquiries about his workload and others, if he had not appealed it, you know, one might say he’d shrugged his shoulders and would let it go. But if he’s pursued these actions, it seems to me that it’s important to him, rather than purely the process. I mean, you know, it’s almost inextricably bound but, you know, many people in that sort of situation would just shrug their shoulders and apply to work elsewhere or resign or whatever. I mean, it’s not the action of someone who’s unconcerned about it.” (Transcript, p 110)
Additional Medical Evidence
50. Reports of Dr Gale, Dr Richards, Dr Heddle, Dr Le Leu, Dr Mackay, Dr Long, and Dr Koopowitz are in evidence. Clinical notes of Morphettville Medical Centre (Dr Mackay), Dr Coyte, Dr Flynn, Dr Long, and Professor Goldney are also in evidence. We have had regard to this additional evidence although it is unnecessary to refer to it in detail in these reasons.
The Relevant Legislation
51. Section 14(1) of the SRC Act provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Section 4(1) of the SRC Act, as in force at all material times, relevantly provided:
“In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
Section 7(4) of the SRC Act provides:
“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
The Issues
52. In the Statement of Agreed Facts and Issues filed by the parties on 12 May 2010, the issues which arise for determination in the present proceedings, and which of those issues are agreed and which of them remain in dispute between the parties, were set out as follows:
“1.Mr Wiegand and Comcare have identified the following issues raised by the applications before the Tribunal:
1.1 What is the diagnosis of Mr Wiegand’s condition(s)?
1.2 What is the date of injury or the dates of injuries?
1.3 Did Mr Wiegand’s employment materially contribute to his condition(s)?
1.4 Did any, and, if so, which, of the specific events in Mr Wiegand’s employment amount to failures to obtain a promotion or benefit within the meaning of section 4(1) of the SRC Act (as it then was)?
1.5 Did any such specific events materially contribute to Mr Wiegand’s condition(s)?
2.In respect of the above issues, Mr Wiegand and Comcare agree:
2.1 In relation to 1.3 above, that Mr Wiegand’s employment at the ATO cumulatively materially contributed to his psychiatric condition(s), however diagnosed.
2.2 In relation to 1.4 above, the following specific events amounted to failures to obtain a promotion or benefit within the meaning of section 4(1) of the SRC Act (as it was):
a)the 1989 non promotion;
b)the 1993/1994 request for a part time position;
c)the compassionate leave event; and
d)the 1997 non promotion.
3.Issues 1.1, 1.2 and 1.5 above are in dispute.”
Findings
The appropriate diagnosis of Mr Wiegand’s psychiatric condition(s)
53. It is common ground that Mr Wiegand suffered one or more psychiatric conditions and that his “employment at the ATO cumulatively materially contributed to his psychiatric condition(s), however diagnosed”.
54. In making a finding as to the appropriate diagnosis of Mr Wiegand’s psychiatric condition(s), we attach the greatest weight to the evidence of the psychiatrists who examined him in the period up to, and including, 1998 (the year in which he lodged the relevant claim for compensation), namely, Dr Flynn, Dr Coyte and Dr Davis.
55. On the basis of the evidence of Dr Flynn and Dr Davis, we find that, in the period up until 1998, Mr Wiegand had, for several years, been experiencing chronic low-grade depressive symptoms such as to satisfy the diagnostic criteria for dysthymic disorder. On the basis of the evidence of Dr Coyte and Dr Davis, we also find that, in early 1998, Mr Wiegand’s depressive symptoms became more severe such as to warrant a diagnosis of major depressive disorder.
The dates on which Mr Wiegand suffered dysthymic disorder and major depressive disorder
Dysthymic disorder
56. Having regard to the whole of the evidence before us, the date on which Mr Wiegand suffered dysthymic disorder is problematic. Mr Wiegand submits that it is likely that he was suffering from dysthymic disorder “in the late 1980s” as a result of his various physical health problems which he attributed to an unhealthy workplace. Although there is substantial medical evidence before us regarding Mr Wiegand’s various physical ailments from the late 1980s onwards, there is insufficient medical evidence before us, relating to the state of his mental health prior to 1994, on the basis of which we could properly find that he was suffering from dysthymic disorder, or, indeed, any diagnosable psychiatric condition, in that period.
57. In seeking to determine the time when Mr Wiegand commenced to suffer symptoms indicative of a dysthymic disorder, we regard the contemporaneous clinical notes made by general practitioners whom he consulted at the Morphettville Medical Centre from 1991 (which are in evidence) as instructive. The clinical notes in the period from 1991 to 1993 do not appear to refer to complaints by Mr Wiegand of symptoms indicative of a psychiatric condition. In respect of the period from January 1994 (when Dr Mackay commenced to treat Mr Wiegand), the clinical notes of Dr Mackay include references to the following consultations:
· 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;
· on 19 May 1995 it was noted that Mr Wiegand self-diagnosed “depression” and that he was to be referred to Dr Flynn;
· on 8 August 1995 it was noted that “work stress etc” was discussed and that “insomnia” was “still a problem”;
· on 25 October 1995 it was noted that “a major depression highly likely” and that “Prozac” was prescribed.
58. It appears from the abovementioned clinical notes that the first reference to a possible psychiatric condition was made in the note regarding Mr Wiegand’s consultation on 4 February 1994 when Dr Mackay referred to “stress related pain” as one of three alternative diagnoses (the other two being “peptic disease” and “gallstones”). It was not until the consultation of 20 July 1994, however, that Dr Mackay made an unequivocal reference to “stress at work”, although he excluded “major depression” on that occasion.
59. We note that Dr Flynn, in his report of 26 July 2010, expressed the opinion, apparently on the basis of Dr Mackay’s clinical notes, that Mr Wiegand was experiencing depressive symptoms in “about 1993”. Having perused the clinical notes of the Morphettville Medical Centre, however, we have not been able to identify any clear reference to psychiatric symptoms in those clinical notes prior to 4 February 1994.
60. 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.
Major depressive disorder
61. For the purpose of determining when Mr Wiegand suffered major depressive disorder, we derive great assistance from Dr Mackay’s contemporaneous clinical notes and his report of 28 February 1996 (T10 in Application No 2009/2916).
62. Although, in his clinical note of 25 October 1995, Dr Mackay stated:
“I consider that a major depression highly likely”,
in his report of 28 February 1996 he qualified that statement as follows:
“… on 25 October 1995 I considered that he may have major depressive disorder…”.
Dr Mackay’s clinical notes of subsequent consultations relevantly state:
·11 December 1995: “ Stressful event at work on Dec 6th
abdo pain since …”;
·16 January 1996: “ … depression improved – sleep improved
continue Prozac …”;
· 2 July 1996: “ poor sleep 6–8 wks, despite Prozac …”;
·23 October 1996: “ … work conflict with management continues. Work refused leave (… father came to Adelaide). No major depression (on Prozac). I consider that he is anxious because of workplace conflicts …”;
·30 January 1998: “ Major depression – lethargy, anhedonia … Recommend counselling – David Coyte …”.
63. On 3 March 1998 Dr Coyte issued a Workers Compensation Medical Certificate in which he stated that he had examined Mr Wiegand on 5 February 1998 and 3 March 1998 and that, in his opinion, Mr Wiegand was suffering from “Major Depression”, the onset of symptoms having occurred on “1/98” (T4 in Application No S98/414 – Exhibit A XXI in the 2004–2005 hearing).
64. We note, from Dr Mackay’s clinical notes, that the first occasion on which he recorded an unequivocal diagnosis of “major depression” in respect of Mr Wiegand was the consultation of 30 January 1998. We also note that Dr Mackay’s clinical notes refer to 10 consultations involving Mr Wiegand between 23 October 1996 and 30 January 1998, the last of which occurred on 23 January 1998, and that none of the clinical notes regarding those consultations expressly mentions depression or major depression.
65. On the basis of the abovementioned evidence, we are satisfied that Mr Wiegand suffered major depressive disorder on 30 January 1998.
Is each of Mr Wiegand’s psychiatric conditions an “injury” within the meaning of s 14(1) of the SRC Act?
66. It is common ground that “Mr Wiegand’s employment at the ATO cumulatively materially contributed to his psychiatric condition(s)”. We agree. We find, therefore, that each of Mr Wiegand’s psychiatric conditions, namely, dysthymic disorder, and major depressive disorder, was “contributed to in a material degree by” his employment by the ATO. Accordingly, each of those psychiatric conditions is a “disease” as defined in s 4(1) of the SRC Act.
67. It follows that each of those psychiatric conditions will be an “injury”, within the meaning of s 14(1) of the SRC Act, unless it was suffered by Mr Wiegand “as a result of”, relevantly, “… failure by [Mr Wiegand] to obtain a promotion, … or benefit in connection with his … employment” (see the definition of “injury” in s 4(1) of the SRC Act).
68. It is common ground that each of :
· “the 1989 non promotion”, and
· “the 1997 non promotion”
constitutes a “failure … to obtain a promotion”, and that each of:
· “the 1993/1994 request for a part-time position”, and
· “the compassionate leave event”
constitutes a “failure … to obtain a … benefit”, within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
69. We note that “the second promotion concern” in 1993 (see subpara 4.8 in the Statement of Agreed Facts and Issues referred to in paragraph 16 above) was not included in the agreed issues listed in that Statement (see paragraph 52 above). We are unaware whether that omission was deliberate or accidental. In any event, we think that, having regard to Mr Wiegand’s own evidence that he “went for a promotion … back in 1993 or thereabouts” (see paragraph 28 above), we should also regard that event as involving a “failure … to obtain a promotion” within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
70. The phrase “as a result of” in the definition of “injury” in s 4(1) of the SRC Act involves causation: it requires that there be a causal relationship between the “reasonable disciplinary action”, or the “failure … to obtain a promotion, transfer or benefit”, (as the case may be) and the contraction of the relevant “disease”: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463–464; Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; Woodward v Repatriation Commission (2003) 131 FCR 473 at 488. Although that phrase, in terms, is not qualified and does not expressly impose an “evaluative threshold below which a causal connection may be disregarded” (Comcare v Canute (2005) 148 FCR 232 at 249–250), it is clear that the required causal connection will be present where the “reasonable disciplinary action” or the “failure … to obtain a promotion, transfer or benefit” (as the case may be) “materially contributed to” the contraction of the relevant “disease”: Hart v Comcare (2005) 145 FCR 29 at 33. More recently, however, in Comcare v Caldwell [2008] FCA 2015 Perram J observed (at para 5):
“… The necessity for the disciplinary process to contribute to the injury in a material degree in order to be excluded from the definition of ‘injury’ was established by this Court’s decision in Weigand (sic) v Comcare Australia (No 2) (2007) 94 ALD 154.”
71. In the present case Comcare submitted (Transcript pp 154-155 and letter dated 19 August 2010), that the “material contribution test” should be applied for the purpose of determining whether Mr Wiegand suffered the relevant psychiatric condition(s) “as a result of … failure by [him] to obtain a promotion, … or benefit in connection with his … employment” within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
72. Applying a “material contribution” test may facilitate a determination whether the disqualifying proviso in the definition of “injury” in s 4(1) is attracted. However, we must observe the warning in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 311 [92] (per Hayne and Heydon JJ; see also Kirby J at 295 [25]) that “decided cases… must not be permitted to distract attention from the language of the applicable statute or statutes.” In the present case the statute requires us to determine whether the psychiatric condition was “suffered… as a result of reasonable disciplinary action… or failure… to obtain a promotion, transfer or benefit…”. Where the words of a section are “perfectly clear”, as they are here, the preferable course is generally “to ask the question in terms of the language of the legislation itself, rather than any adaptation of it” (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 468 [131] per Callinan and Heydon JJ).
73. We have accordingly addressed the issues considered below in the balance of these reasons both by reference to the precise words of the section and also by applying a “material contribution” test. The result, in each case, is the same. Although we make reference primarily to the “material contribution” test, in what follows we reach the same conclusion applying that test and applying the words of the statute themselves.
Was Mr Wiegand’s dysthymic disorder suffered by him “as a result of … failure by [him] to obtain a promotion, … or benefit in connection with his … employment”?
74. As we are satisfied that Mr Wiegand suffered dysthymic disorder on 20 July 1994, we shall, for the purpose of making our finding on this issue, confine our consideration to relevant employment events which occurred in the period up until that date.
75. The relevant employment events which occurred in the period up until 20 July 1994, as set out in the Statement of Agreed Facts and Issues (see paragraph 16 above), were as follows:
· the “air-conditioning concern”;
· the “untruthful statements concern”;
· “the 1989 non promotion”;
· the “OH&S concerns”;
· the “secret file concern”;
· the “second promotion concern”; and
· the “request for a part-time position and its aftermath”.
We note, in passing, that we are aware that there were also employment-related matters, other than those outlined in the Statement of Agreed Facts and Issues, that caused Mr Wiegand concern during his employment by the ATO but we understand that those other matters are regarded by Mr Wiegand as less important than those outlined in the Statement. Accordingly, we shall concentrate our attention on the events referred to in the Statement of Agreed Facts and Issues.
76. Having considered the whole of the evidence before us, we are satisfied that the genesis of Mr Wiegand’s experiencing depressive symptoms and ultimately suffering dysthymic disorder lay in his history of ongoing physical health problems which he attributed to his working environment, and his conflicts with various ATO management staff which occurred in the context of what he perceived to be a management culture of cronyism and cover-up, incompetence, inefficiency and, generally, consistent failure to observe proper management practices and procedures. We accept Dr Coyte’s general analysis of the association between Mr Wiegand’s employment at the ATO and his psychiatric condition set out in paragraph 34 above.
77. We are satisfied, having regard to Mr Wiegand’s evidence, that the matter which, in the pre-July 1994 period, was of the greatest concern to him and which made the greatest single contribution to the development of his dysthymic disorder was the allegation, in or about 1990 following the 1989 non promotion, that he had damaged ATO computer hardware and software and had breached the secrecy provision in s 16 of the Income Tax Assessment Act. We accept Mr Wiegand’s evidence that he felt very threatened by that allegation because it related to offences that were punishable by imprisonment and because it jeopardised his employment security and future employment prospects. We also accept his evidence that that allegation continued to be a matter of very serious concern to him because it was never properly investigated or resolved and because he felt that it had destroyed his reputation and standing in the ATO.
78. As regards Mr Wiegand’s unsuccessful applications for promotion in 1989 and 1993, we are satisfied that his failure to obtain promotion on each of those occasions did not make a material contribution to his subsequently suffering dysthymic disorder. In the case of the 1989 non promotion, we accept Mr Wiegand’s evidence that, as he was at the ASO2 level and was competing with at least 12 applicants at the ASO3 level for an ASO4 level position, he did not expect that his application would be successful. We regard his subsequent actions of obtaining the work statistics of the two successful applicants and appealing to the Promotion Appeals Committee and to the MPRA as demonstrating his concern, not that his own application for promotion had been unsuccessful, but rather that the promotion process involved cronyism and incompetence and was thereby discredited. In the case of the 1993 unsuccessful application for promotion, we are satisfied that what was of concern to Mr Wiegand was not his failure to obtain the promotion but rather that the 1990 allegation that he had damaged ATO computer equipment and breached s 16 of the Income Tax Assessment Act was continuing to adversely affect his reputation and standing in the ATO. We do accept, however, that Mr Wiegand’s failures to obtain promotion in 1989 and 1993 probably caused him to feel some personal disappointment, but we are satisfied that those failures, individually and collectively, did not make a material contribution to his suffering dysthymic disorder on 20 July 1994. To the extent to which circumstances immediately surrounding Mr Wiegand’s unsuccessful application for promotion had any effect on his mental health, we consider that they were “events which surround a promotion process” which are “quite distinct from any injury suffered as a result of a failure to obtain a promotion” (Hart v Comcare (2005) 145 FCR 29 at 33 [26]).
79. We note that Dr Davis and Professor Goldney, in their oral evidence, each expressed the view that Mr Wiegand’s unsuccessful applications for promotion would have been significant factors in his psychiatric presentation. Those opinions, however, were expressed on the basis of an incomplete history regarding the circumstances in which Mr Wiegand made those applications and, accordingly, we attach little weight to them. In the case of Dr Davis, furthermore, when he was informed by Mr Wiegand of the relevant circumstances of the 1989 application, he acknowledged that the failure by Mr Wiegand to obtain promotion in those circumstances might not have affected his psychiatric condition (see paragraph 46 above).
80. As regards the “request for a part-time position and its aftermath”, Mr Wiegand acknowledged in his own evidence that he had felt “furious” and “upset” by the section manager’s negative attitude to his request. He then, on 17 January 1994, lodged a formal grievance in respect of the section manager’s “non-approval” of his request, claiming that the section manager had not followed the Staff Guidelines for Permanent Part-time Employment. His request for a part-time position was in fact approved in February 1994 and his grievance was not thereafter investigated or resolved. We note that when, in the course of his cross-examination at the 2002 hearing, he was asked:
“Yes, but how did you feel? Did it upset you or cause you to worry?”
and he responded:
“Upset, disappointed. I’m a very stubborn person and I – once I’ve made up my mind, I try to bring something to a conclusion.”
his response, in context, related to the failure to investigate the grounds of his grievance rather than the initial failure to approve his request for a part-time position (see transcript of evidence on 25 February 2002, p 51, lines 12–14, part of Exhibit AI in the 2004–2005 hearing).
81. We accept that Mr Wiegand was, by way of an initial response to the section manager’s lack of support for his request for part-time employment, angry and upset. We are, however, satisfied that that emotional response was transient. We are also satisfied that it did not make a material contribution to his suffering dysthymic disorder on 20 July 1994.
82. We note that it is common ground that none of the other employment events referred to in paragraph 75 above – namely, the “air-conditioning concern”, the “untruthful statements concern”, the “OH&S concerns”, and the “secret file concern” – involved a failure by Mr Wiegand “to obtain a promotion, … or benefit in connection with his … employment” within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
83. Accordingly, we find that Mr Wiegand’s dysthymic disorder was not suffered by him “as a result of … failure by [him] to obtain a promotion, … or benefit in connection with his … employment” within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
Was Mr Wiegand’s major depressive disorder suffered by him “as a result of … failure by [him] to obtain a promotion, … or benefit in connection with his … employment”?
84. The relevant employment events which occurred in the period between 20 July 1994, when (we have found) Mr Wiegand suffered dysthymic disorder, and 30 January 1998, when (we have found) he suffered major depressive disorder, are as follows:
· the “compassionate leave event”;
· the “meeting room obstruction concern”;
· the “tax audit event”; and
· the “1997 non promotion”.
85. We note at the outset that, on 21 March 1996, Comcare accepted liability to pay compensation to Mr Wiegand for incapacity for work for the period 11–13 December 1995 resulting from a stress-related condition arising out of the “meeting room obstruction” event which occurred on 6 December 1995.
86. As regards the “compassionate leave event”, we accept that Mr Wiegand was, as he himself acknowledged in his evidence, “extremely upset” by the section manager’s refusal to approve his request for compassionate leave in October 1996. The medical evidence before us, however, does not indicate that that event either aggravated Mr Wiegand’s existing dysthymic disorder or made a material contribution to his subsequently suffering major depressive disorder on 30 January 1998. We note Dr Mackay’s clinical note of 23 October 1996 (see paragraph 62 above) and Dr Coyte’s evidence that he would expect that event to have caused Mr Wiegand “some degree of frustration or irritation of a short-term nature, but not a lot more than that” (see paragraph 37 above). We also note, and accept, Mr Wiegand’s evidence that, when his request for compassionate leave was refused, he took sick leave instead. Accordingly, we are satisfied that the “compassionate leave event” neither aggravated Mr Wiegand’s existing dysthymic disorder nor made a material contribution to his suffering major depressive disorder on 30 January 1998.
87. Finally, as regards the “1997 non promotion”, we accept Mr Wiegand’s evidence that he only applied for promotion in 1997 because his then team leader, Mr Edgecombe, urged him to do so, and that, given his history at the ATO, he thought that such an application would be “a pointless exercise”. We note that para 7 of Mr Edgecombe’s memorandum of 22 May 1998 (see paragraph 28 above) is not inconsistent with that evidence. Notwithstanding Mr Edgecombe’s comment (at para 8) that Mr Wiegand “appeared disappointed” that his application had been unsuccessful, having regard to the abovementioned circumstances in which Mr Wiegand made that application, we accept his evidence that he was not in fact disappointed when informed that his application had not been successful.
88. We note Dr Coyte’s evidence that Mr Wiegand “didn’t express disappointment at not being promoted” when he first saw him on 5 February 1998. He described the effect on Mr Wiegand of his non-promotion as a “sort of frustration, irritation” involving a “temporary exacerbation” of his existing depressive symptoms but “not an aggravation of the underlying condition”. We accept Dr Coyte’s evidence.
89. For the reasons expressed in paragraph 79 above, we attach little weight to the evidence of Dr Davis and Professor Goldney to the extent to which it refers to the effect of Mr Wiegand’s unsuccessful promotion application in 1997 on his psychiatric condition. We note, furthermore, that Dr Davis, when informed by Mr Wiegand of the circumstances in which he made that application, acknowledged that the failure by Mr Wiegand to obtain promotion in those circumstances might not have affected his psychiatric condition (see paragraph 46 above).
90. In coming to our conclusion we have taken into account the proximity of Mr Wiegand’s failure to return to work on 2 January 1998 to his being told only a few days earlier that his application for promotion had been unsuccessful. We are aware of his evidence relating to this aspect, some of which is set out above. We are nevertheless satisfied that Mr Wiegand’s failure to obtain the promotion did not make a material contribution to his major depressive disorder and that his major depressive disorder was not a result of his failure to obtain the promotion.
91. Having regard to the whole of the evidence before us, for reasons similar to those given above in relation to dysthymic disorder, we find that the “1997 non promotion” neither aggravated Mr Wiegand’s existing dysthymic disorder nor made a material contribution to his suffering major depressive disorder on 30 January 1998.
92. We note that it is common ground that neither the “meeting room obstruction concern” nor the “tax audit event” involved a failure by Mr Wiegand “to obtain a promotion, … or benefit in connection with his … employment” within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
93. Accordingly, we find that Mr Wiegand’s major depressive disorder was not suffered by him “as a result of … failure by [him] to obtain a promotion, … or benefit in connection with his … employment” within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
Each of Mr Wiegand’s psychiatric conditions is an “injury” within the meaning of s 14(1) of the SRC Act
94. It follows from the above findings, and we find, that each of Mr Wiegand’s psychiatric conditions, namely dysthymic disorder, and major depressive disorder, is an “injury” within the meaning of s 14(1) of the SRC Act. Pursuant to s 7(4) of the SRC Act, Mr Wiegand is taken to have sustained dysthymic disorder on 20 July 1994, and major depressive disorder on 30 January 1998.
Conclusion
95. We conclude, therefore, that Comcare is liable, under s 14(1) of the SRC Act, to pay compensation, in accordance with that Act, to Mr Wiegand in respect of dysthymic disorder (sustained on 20 July 1994) and major depressive disorder (sustained on 30 January 1998).
Decision
96. For the above reasons we set aside the decisions under review and, in substitution therefor, we decide that Comcare is liable, under s 14(1) of the SRC Act, to pay compensation, in accordance with that Act, to Mr Wiegand in respect of the following injuries, namely, dysthymic disorder (sustained on 20 July 1994) and major depressive disorder (sustained on 30 January 1998).
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President, Mr S D Hotop, Deputy President, and Professor P L Reilly, Member
Signed: .............[sgd]....................................................................
Alison Connor, Associate
Dates of Hearing 9, 11 and 12 August 2010
Date of Decision 15 October 2010
Representative of the Applicant Self-represented
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Sparke Helmore
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