Re Wiegand and Comcare
[2005] AATA 780
•12 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 780
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/458
GENERAL ADMINISTRATIVE DIVISION ) Re JOACHIM WIEGAND Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date12 August 2005
PlaceAdelaide
Decision The decision under review is affirmed.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Australian Tax Office employee – major depressive disorder – whether contributed to in a material degree by employment – alternative diagnosis of paranoid personality disorder not accepted – whether perceived situations or events actually happened – meaning of “injury” – failure to obtain a promotion, transfer or benefit – meaning of “benefit” – condition due to combination of employment related factors and excepted factors – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1) and 14
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Wiegand v Comcare (2002) 72 ALD 795
Lees v Comcare (1999) 56 ALD 84
Hart v Comcare [2005] FCAFC 16
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD 320
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kirkpatrick v Commonwealth (1985) 9 FCR 36
Re Sutherland and Comcare [1996] AATA; 16 December 1996
Trewin v Comcare (1998) 84 FCR 171
Re Fitzgerald and Comcare [1995] AATA 10514; 6 November 1995
Re Parker and Comcare [1996] AATA 11298; 11 October 1996
REASONS FOR DECISION
12 August 2005 Deputy President D G Jarvis 1. The applicant, Joachim Wiegand, was employed by the Australian Taxation Office (“ATO”) from May 1986 until January 1998. By a claim form dated 12 May 1998, Mr Wiegand indicated that he wished to claim benefits under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). He attached to the claim form a medical certificate from a psychiatrist, Dr David Coyte, which contained a diagnosis of major depression, with a stated date of injury described as approximately January 1998.
2. The claim form requested the claimant to describe in detail what events contributed to the asserted injury or illness. Mr Wiegand responded: “defamation & victimisation in 1990. ongoing discrimination etc. Lodged various grievances which all ended as white-wash. Asked Comcare for help – in vain”. I will refer later in these reasons to a number of situations or events which occurred between 1986 and 1997 in the course of Mr Wiegand’s employment with the ATO, and which he asserts resulted in his suffering depression.
3. On 10 June 1998 an officer of Comcare determined that Comcare was not liable to pay compensation under the SRC Act. That decision was confirmed by a review officer on 22 September 1998.
4. Mr Wiegand applied to this Tribunal for review of the decision by the review officer. In a decision made on 28 June 2002, Senior Member Kiosoglous and Dr JTB Linn, Member, affirmed the decision under review.
5. Mr Wiegand then appealed to the Federal Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). Von Doussa J allowed the appeal on 5 December 2002 and set aside the Tribunal’s decision, and remitted the matter to this Tribunal for rehearing according to law (Wiegand and Comcare (2002) 72 ALD 795).
6. Von Doussa J distilled from the notice of appeal and outline of argument a complaint by Mr Wiegand that the Tribunal had “erred as a matter of law in finding that (Mr Wiegand’s) major depressive disorder, or an aggravation of that disorder, was not contributed to in a material degree by his employment”, and found that that complaint should be upheld (72 ALD 795 at [8] and [9]). His Honour then recounted a number of situations and events at the ATO that he described as matters which Mr Wiegand claimed had contributed to his asserted medical condition. He then recorded that the psychiatrists who had assessed Mr Wiegand appeared to be in substantial agreement that all of Mr Wiegand’s difficulties could not be attributed to his employment, and that the predominant factor in his depressive disorder related to his personality. After referring to the medical evidence and the Tribunal’s reasons, he indicated that Mr Wiegand’s depression would nevertheless be compensable if it was “an aggravation of an ailment to which the employment was merely one of a number of factors that contributed in a material degree” (72 ALD 795 at [20]). His Honour then referred to evidence to the effect that Mr Wiegand was vulnerable to events occurring in his employment which resulted in his depression being exacerbated, and continued (at [21]):
“The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.”
He later said:
“[24] … All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a ‘reality’ test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.
[25] This situation may be contrasted with that considered Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 where it was held that the fact that a neurotic employee wrongly believed that his leg pain arose out of his work did not mean that his employment actually was a contributing factor to his neurosis.”
Von Doussa J then further analysed views expressed by Professor Goldney (a psychiatrist who had examined Mr Wiegand at the request of Comcare) as to the relevance of Mr Wiegand’s perception of the various employment related events. His Honour then concluded as follows:
‘[31] In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
Issues
7. The issues raised by Mr Wiegand’s claim for compensation are as follows.
(a)Did he suffer an injury? (It was common ground that by force of the definition in s 4(1) of the SRC Act, “injury” includes disease, and that his asserted condition of major depression constitutes a disease and so an “injury” within the meaning of that word in the SRC Act.)
(b)Was his asserted condition contributed to in a material degree by his employment by the ATO?
(c)To the extent that Mr Wiegand asserts that his perception of certain situations or events at the ATO contributed to his asserted condition, did those situations or events actually happen?
(d)Did any of the relevant situations or events, or Mr Wiegand’s perception of them, fall within the proviso to the definition of “injury” in s 4(1) of the SRC Act, which relevantly excludes a disease, injury or aggravation suffered by an employee as a result of failure to obtain a promotion, transfer or benefit in connection with his or her employment?
(e)If yes to (d) above, did Mr Wiegand suffer the asserted condition as a result of that failure?
8. In December 1993 Mr Wiegand applied for permanent part-time employment with the ATO. At first this application was not granted. Mr Wiegand lodged a grievance complaint complaining that his manager did not follow the ATO Staff Guidelines for Permanent Part-time Employment. On 8 February 1994 approval was given for Mr Wiegand to commence permanent part-time employment (see exhibit AII, R9(2), paragraph 2). He in fact commenced working three days a week as from early in February 1994. However, neither the original decision-maker nor the review officer regarded the claim which has given rise to the within proceedings as constituting a claim for compensation in respect of any partial incapacity from 1994 onwards. In a letter dated 23 July 1998 in which Mr Wiegand requested reconsideration of Comcare’s initial decision not to accept liability for his claim, he requested Comcare to accept his claim “to be compensated for the time from the beginning of this year”, and accepted that “claims for earlier periods will have to be determined later” (exhibit A XXI, T22, pages 47 – 48). The issues of whether Mr Wiegand was suffering from an injury or disease at the date when he commenced part-time employment, and whether any such injury or disease resulted in an incapacity for work, have accordingly not been the subject of a consideration by Comcare, or of a reviewable decision. As a result, I have no jurisdiction to consider those issues in the present proceedings (see Lees v Comcare (1999) 56 ALD 84).
Background
9. Mr Wiegand was born in Germany on 16 September 1943. He migrated to Australian when he was 40 years of age. His wife and two children arrived about four months later. He had finished matriculation at high school and commenced studying economics in Germany part-time, but married and elected not to continue his studies.
10. After he arrived in Australia he established a business with a partner to process gypsum into plaster and then manufacture building blocks. However, the business only lasted for about six weeks and then broke up because he had come to the conclusion that his partner was a liar and a cheat. Mr Wiegand sued his former partner and recovered the money he had invested in the business.
11. After that Mr Wiegand was unemployed for about one year. He then commenced employment with the ATO in May 1986 as a clerical officer.
12. He gave evidence that his health was excellent when he arrived in Australia, and that he had undergone extensive tests in Germany before migrating to Australia. He said his only known problem at that time was a slight problem of hay fever. The respondent did not dispute Mr Wiegand’s evidence as to his state of health on arriving in Australia, subject however to contentions as to his psychiatric condition, to which I will refer later.
Situations and Events Relied Upon by Applicant
13. In his judgment, von Doussa J summarised a number of situations and events at the ATO which were canvassed by Mr Wiegand (see 72 ALD 795 at [10]). I set out below an extract from his Honour’s judgment which contains his summary of those situations and events. (For convenience of cross-referencing in these reasons I have given each dot point in paragraph 10 of his Honour’s judgment a separate sub-paragraph number, and I have also added a brief description to identify each situation or event, which in some cases I have described as “concerns”.)
13.1“• When Mr Wiegand commenced employment he was in good health. Bad air, passive smoke, and other fumes in his workplace caused him ill health which led to him being erroneously diagnosed as suffering asthma (the “air-conditioning concern”).
13.2• Poor relationship with a section manager who started spreading untruths about him. Mr Wiegand complained to the Director of the section which led to Mr Wiegand being transferred to the audit section (the “untruthful statements concern”).
13.3• In 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 (the “journey accident claim”).
13.4• In 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 considered that his work performance was better than that of those promoted. He discussed the issue with supervisors who showed disinterest. He decided to appeal. The promoted officers 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 but management took no steps to quash them. He told management that he would request the Australian Federal Police to investigate. He said that the section manager then called a meeting where the allegations were discussed, and he was then given a written statement stating that they were only rumours and nothing more. He said that all this had a bad effect on him and due to his age and being without any qualifications he was concerned as to whether or not he could obtain other employment. He was so concerned about the allegations that he got a solicitor to start legal action for defamation against the two officers who had made defamatory statements (the “first non-promotion and its aftermath”).
13.5• In 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 said that he took this position seriously but his commitment to this responsibility led to him being lectured by his superiors on the need to perform his ordinary duties, and not to spend a lot of time on health and occupational issues. He said many complaints were received by him, and passed on, about the bad air and other environmental conditions of the workplace before action was taken by ATO to investigate the complaints and to rectify problems (the “O H & S concerns”).
13.6• In 1993 Mr Wiegand made an application for a part-time position in lieu of his full-time position. The person responsible for deciding the application said that he would support the application if Mr Wiegand agreed to relinquish union activity and his role as an OH&S representative. Mr Wiegand said that he was told that his application would not otherwise be considered, but he was not told why he should give up these activities. Disputation occurred over whether the occupational, health and safety responsibilities formed part of his work. Mr Wiegand lodged a grievance complaint against the officer concerned whose behaviour he said had caused him to get upset. 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. Notwithstanding his request that his grievance be nonetheless considered, this did not happen. He said the failure to follow up his grievance caused him disappointment and upset. [In respect of this complaint, the Tribunal said that it accepted that Mr Wiegand enjoyed his role as an OH&S representative and his keen desire to improve conditions in the workforce but found that the request for him to relinquish the role "no matter how upsetting, does not amount to discrimination"] (the “request for a part-time position and its aftermath”).
13.7• In 1993 the applicant became aware 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”).
13.8• In 1993 Mr Wiegand was advised by an officer 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”).
13.9“• In June 1997 the applicant'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 prostrate cancer. The applicant sought to have a few days off to spend with his father. He said he explained that 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 said he was accused by his superior of being the worst performing officer and that a lot of people were on leave at the time. Mr Wiegand said he 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. [In relation to this incident, the Tribunal said that it was satisfied that the officer concerned could have been much more sensitive in dealing with Mr Wiegand, and that it appeared that the officer was out to show Mr Wiegand who was "boss". The Tribunal found that the refusal of the application "would justifiably cause the applicant to be upset"] (the “compassionate leave event”).
(I have been unable to find any reference in all of the evidence before me to the date of the father’s visit. It appears that an informal request for leave had been made in September 1996, and Mr Wiegand said he had been told that this would be refused. There was apparently a refusal of the request at a meeting on 2 October 1996, as appears from exhibit AII, R11)
13.10• In December 1995 Mr Wiegand attended a meeting with an occupational health adviser and his section manager which followed the refusal of the respondent to pay a doctor's account. 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 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”).
13.11In 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 said 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”).
14. Von Doussa J added (72 ALD 795 at [11]) that the above was not a complete list of the situations or events about which Mr Wiegand expressed concern in the course of his employment and which, he said, contributed to Mr Wiegand’s ill health, but included the “major events” canvassed in his evidence.
15. I will, however, record other situations or events of which Mr Wiegand complained in his evidence. These further situations or events included the following.
(a)After complaining about the air-conditioning in the T & G Building, he was transferred to the King William Tower, and heard from other people that a transfer to the relevant section was comparable to being transferred to Siberia. He worked there a lot with an old IBM photocopier.
(b)He was responsible for the issue of replacement cheques by the ATO where earlier cheques had gone stale or had been lost, misplaced or damaged. He said there were millions of dollars sitting in anonymous accounts, and the ATO was “sitting on the money” which clearly belonged to the taxpayers concerned, and was not taking steps to credit funds belonging to taxpayers against assessments of tax for following years. He said he tried to raise this issue several times with his section manager, who got angry with him because he (Mr Wiegand) felt that things should have been done differently.
(c)He made a complaint about another assistant manager who was picking on a woman for working to the last minute, when she was still at her desk five minutes before her lunch break, and some twenty or so people were already standing at the lift. He said the section manager started coming up with funny stories about Mr Wiegand eating at his desk, but he did not do this. He became scared and applied for a transfer, which was granted.
(d)He said that when he joined the ATO, he was repeatedly told not to work so hard and to behave like the other public servants, some of whom engaged in various non work-related habits which he described.
(e)He also referred to new carpet being laid in the King William Tower, and to the walls being painted in working hours, and said that lots of fumes were emitted but the windows were not opened, and he suffered an allergic reaction. He said that he was accused of inhaling the fumes deliberately, but eventually the windows were opened after obtaining confirmation from the painter that, contrary to what he had been told by the person to whom he complained, the paints were not water-based paints.
(f)He expressed concern about metal containers of chemicals in the office of one Barry Snell in the T & G Building, and after checking he found that the chemicals were dangerous if they caught fire, and complained that they should have been kept in fire-proof cupboards. He said the chemical was withdrawn in the T & G Building but continued to be used in the King William Tower.
(g)He said that after he had become the O H & S representative, he was allowed to spend one-third of his working time on O H & S issues, but in the remaining two-thirds of his working time he was expected to do something like “250, 260 cases a year” (transcript 25.2.02, page 59, line 28) whereas average full-time officers probably only did 30 to 50 cases a year, and the best performing officer only did 115 to 120.
(h)He said he was asked by his team leader, who was twenty years younger than he, to tell her when he went to the toilet.
(i)He said that very shortly after the ATO moved to the new Waymouth Building he was concerned “highly” by the re-spraying of filing cabinets and shelves resulting in fumes which were “quite overwhelming” and dust particles (transcript 25.2.02, page 67, line 32). He said he raised an issue about this but to no avail.
(j)Also shortly after moving to the Waymouth Building, Mr Wiegand said that it took “a few weeks or so” of his pushing before a fire drill was conducted.
(k)Also some weeks after moving to the Waymouth Building, Mr Wiegand was moved to the first floor and gave evidence that he and others noticed strange smells in the morning and tried to do something about it, but he was told by management that because the sections had moved to a different floor he was no longer the O H & S representative.
(l)At another stage he said that he and other people in his category were moved to the ground floor to deal with taxpayers directly. He and others argued that this was not part of their duties, but he said his management belittled him.
(m)On other occasions he raised a concern that penalty calculations being applied by the ATO computer were wrong in his opinion, but he said that he was belittled in front of other people, and the computer was changed only a considerable time afterwards.
(n)He also referred to attempts to persuade his section manager and others to focus on taxpayers who were claiming substantial unauthorised deductions, instead of focussing on cases where only minor omissions of income were involved, but his suggestions were not taken up.
(o)He objected on various occasions to filing practices adopted by the personnel section whereby documents in files were only sometimes given folio numbers, enabling documents to be removed at will.
(p)He complained in vain to the Ombudsman about the manner in which a Deputy Commissioner had responded to the objections referred to in the previous sub-paragraph.
(q)He complained to the Human Rights Commission about the scope of a medical examination conducted by one Dr Richards, a general practitioner.
(r)He complained to Comcare about the absence of fire drills in buildings where there were multiple tenants.
(s)His requests for regular training for O H & S representatives were not acceded to.
(t)He was concerned that in mid March 1998 the acting O H & S manager of the ATO and another person visited his home to deliver a Comcare claim form, which he said could have been posted.
(u)Early in 1999, he applied for a job with the ATO as a GST field officer, but believes that persons from the ATO gave information to the ATO’s employment agents in order that they would reduce his assessments so that his application would not succeed.
16. In the course of describing his concerns at his experiences in the ATO, Mr Wiegand said that he muddled through up to about 1989, when he went for a promotion. I infer from this that the events referred to in sub-paragraphs 15(a) to (d) above occurred prior to that time. It also appears that the events referred to in sub-paragraphs 15(e), (f), (i), (j), (k), (r) and (s) arose out of his activities as the O H & S representative.
17. When Mr Wiegand’s case was originally heard the members who constituted the Tribunal, Senior Member Kiosoglous and Dr Linn, asked him on many occasions to explain how he related the problems he had at the ATO to his condition. He said in answer to one such request:
“… the problem is to some degree what I was hinting at before that my feelings simply got numb at some time. I didn’t feel any more. I was just like a machine. I was sitting in the morning in my chair and I was observing the wallpaper and I couldn’t move and then I simply got going and spent some time – most of the time I turned up in the office at 9.30, a minute early, a minute late, something like this and I was running only on coffee and willpower.” (transcript 25.2.02, page 75, line 3)
18. Mr Wiegand denied in cross-examination that he made a conscious decision not to go to work on 2 January 1998 (this being the commencement of the period of incapacity for which he is claiming compensation). He explained that Christmas in Germany is a very solemn occasion. He continued:
“And New Year in Germany is a time when you sort of sit down and you think about the previous year and like about the future and something like that is what happened in my mind and I in a way, I did not reach a conscientious conclusion or decision, there was no decision, no active mental process that I made a decision not to go back to work. It was simply that for a very, very long time I had been sitting every morning in my chair reading the newspaper and having a coffee and what ever and sitting there for a long time and watching the wallpaper opposite and the watching the clock.” (transcript 26.2.02, page 62, line 31)
He went on to say that eventually he would realise he had to go so that he would be at work in time. He was feeling despondent that he had to go to work, and said that it was worse than prison, because he had to make a deliberate decision every day and “put up with encountering the people who again, laughing or what ever who had in my opinion done the wrong by me before … So on that day I simply didn’t move, I didn’t get up in time, this was it.” (transcript, 26.2.02, page 63, line 18). He said the same thing occurred on 3 January 1998, and in fact he did not return to work at the ATO after that.
19. On the remitted hearing before me, I also asked about the effect on Mr Wiegand of various of the stressors identified by von Doussa J. In response, Mr Wiegand referred to “immense problems concentrating on anything” (transcript 18.10.04, page 41, line 4) and to the stress which the various issues were causing him, and he said that they had a considerable effect on him. In some instances he said that they made him feel despondent.
Medical Evidence
20. Mr Wiegand called his treating psychiatrist, Dr Coyte, to give evidence. Dr Coyte first saw Mr Wiegand on 5 February 1998 on referral from his local doctor because of symptoms of major depression. He subsequently became his treating psychiatrist.
21. In his earliest report, which is dated 10 June 1998, Dr Coyte said:
“Mr. Wiegand gives a detailed and elaborate account of his complex situation which required two sessions to explore in any more than a superficial manner. He described a two year (or more) history of depressed mood associated with poor concentration, poor short-term memory, anergia, social withdrawal and sleep disturbance (initial insomnia, dreams of work, early morning wakening). Over the four to six weeks before our first interview, he had become more seriously depressed, irritable and angry and had felt unable to continue working. …
Mr Wiegand described a long history of stress, related to his work, which culminated in his depressive illness. While he felt that he had been good at his work, he perceived various inaccuracies, omissions and errors within the functioning of the workplace, at the Australian Taxation Office, which he had taken up with his superiors and agencies outside of the A.T.O. Mr Wiegand felt that his pursuit of these matters had led to increased ill-feeling toward him at work and resulted in various vindictive acts being performed by staff of the A.T.O. He explained that he was still pursuing the recognition and resolution of these injustices through the office of the Commonwealth Ombudsman. The stress of this process, the ill-feeling at work and the symptoms of his depression meant he was no longer able to function adequately.
… .”
After then describing background features of note, Dr Coyte recorded his diagnosis as follows.
“In diagnostic terms, Mr. Wiegand described sufficient symptoms to warrant a diagnosis of Major Depression (partially treated) upon a background of a personality characterised by rigid rules and dichotomous thinking processes. The depressive illness occurred secondary to the stress of perceived injustices and imperfections in the work setting.” (exhibit AXXI, pages 36 – 37).
22. Dr Coyte provided subsequent reports in which he confirmed his diagnosis of major depression. He also described Mr Wiegand as having a personality with prominent obsessive-compulsive traits. In a report dated 22 November 2000, Dr Coyte said:
“It was the impact of perceived incompetancies, errors and injustices in his workplace, upon his pre-existing personality, which caused Mr Wiegand increasing frustration and worry. When this frustration and worry repeatedly failed to be resolved in spite of his best efforts, Mr Wiegand became more and more depressed.” (exhibit AII, exhibit R5).
In his oral evidence during the first hearing Dr Coyte confirmed that even though Mr Wiegand had the personality traits to which he had referred, it was his work environment that triggered Mr Wiegand’s depression.
23. In his evidence before me, Dr Coyte confirmed his earlier opinions. He further said that although Mr Wiegand had obsessive compulsive personality traits, he was not suffering from a paranoid personality disorder. Nevertheless, it seems very likely, and I find, that Mr Wiegand’s personality traits made him more vulnerable to developing depression as a result of the stressors which he experienced with the ATO. As Dr Coyte said:
“… speaking generally, first of all, people with obsessive compulsive personality traits tend to run their lives according to routines and rules and expect the world to be able to do that. Hence, if the world or people do not respond in like manner, it produces initially some anger and indignation. Various attempts to try to make things compatible with a sense (of) orderliness and rules and order and if that fails then despondency … .” (transcript 22.3.05, page 8, line 29)
Dr Coyte went on to refer to epidemiological studies showing that people with such traits are far more likely to experience episodes of mood disorder or depression in their life times, probably as a result of such traits. He said further that if a person with such personality traits experienced incidents that could not be cleared up according to concepts of rules and the person’s attempts to do so got nowhere, that would lead to a degree of hopelessness; and if the incidents happened again and again, then that could be expected to give rise to “a compounding of hopelessness” (transcript 22.3.05, page 10, line 9), and this would frequently then lead to depression.
24. A further psychiatric assessment was made in June 1998 by Dr Tony Davis. In a report dated 24 June 1998, after summarising the history he obtained, Dr Davis said:
“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 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.
…
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 contributions.” (exhibit AXXI, T20, page 42).
25. As von Doussa J said (72 ALD 795 at [15]), this opinion treats work-place problems as making a contribution to the depressive disorder from which Mr Wiegand was suffering at the time of Dr Davis’s examination and report in June 1998.
26. Counsel for Comcare, Mr Milazzo, submitted that Mr Wiegand reported symptoms consistent with depression as early as 1987. He referred to a letter dated 4 October 1987 from Mr Wiegand to Dr Gale (whom he saw in connection with respiratory problems, which letter is exhibit AV). He also referred to a medical report dated 30 September 1989 (exhibit RXI) from Dr RJ Heddle, who is a specialist in clinical immunology; this report refers to an anxiety state as providing an explanation for Mr Wiegand’s then symptoms of chest tightness and breathlessness. Counsel also referred to a report from Dr Leon A Le Leu dated 8 November 1992, which also refers to the possibility that Mr Wiegand’s symptoms of tiredness, coughing and shortness of breath were due to psychological factors (exhibit AII, A10).
27. Another psychiatrist, Dr Patrick Flynn, saw Mr Wiegand in July 1995 at the request of his general practitioner. In a report dated 20 July 1995, Dr Flynn includes the following history:
“In about 1989 he became concerned about favouritism that he observed with respect to promotion within the Tax Office and there were quite unsavoury allegations made about him by management. At around that time he began to experience symptoms of depression including a sleep disturbance characterised by initial insomnia and early morning wakening, early morning fatigue, concentration and memory problems and tremor. Subsequently there have been many matters of concern for Mr. Wiegan (sic) relating to the Tax Department. Secret files have been kept on him. He has had various disputes with Comcare and Occupational Health and Safety and he has a matter before the Human Rights Commission. Approximately two years ago he was put under pressure by management at work to shut up over these issues. Mr. Wiegan found this very difficult as he has habitually stood up for what he believed. His mood deteriorated considerably at that time and it sounds as if he had a clinical depression.
…
My feeling was that Mr. Wiegan does not suffer from a treatable psychiatric condition. He may have had a depressive illness some time ago but this seems to have resolved. He has some understandable but mild symptoms of anxiety relating to his concerns about his workplace. I was not convinced that Mr. Wiegan’s multiple concerns about his mistreatment by the Tax Office were consistent with him having a paranoid disorder. There were no other aspects of his lifestyle or previous history which were consistent with him having a long term paranoid condition. … .” (exhibit RI, pages 34 – 34)
28. Comcare obtained a report from Mr Wiegand’s general practitioner, Dr Malcolm Mackay, dated 28 February 1996. This was not tendered in the first hearing. Dr Mackay reported that Mr Wiegand had consulted him periodically since 5 April 1994. He reported that notwithstanding Dr Flynn’s assessment in the previous July, he considered that on 25 October 1995 Mr Wiegand may have had a major depressive disorder, and he prescribed an anti-depressant drug, Prozac. His report continues:
“Mr Wiegand believes that things should be done fairly and in the proper manner. There have been many instances dating back at least as far as 1989 where he considers that this was not the case in his work place. Mr Wiegand stands up for what he believes even if this brings him into conflict with management or co-workers. Past issues include: perceived favouratism (sic) in respect to promotion at the Taxation Office, unsavoury allegations made about him by management, files kept on him, and disputes with ComCare and with occupational health and safety. He feels that he has been under pressure from management to keep quite (sic) on these issues.
On 11 December 1995, Mr Wiegand presented with stress related symptoms such as abdominal pain. These symptoms followed a stressful event on 6 December 1995, in which Mr Wiegand says he was forcibly detained in an interview room. I issued a certificate of sickness for 11 to 13 December but later changed this to a work-related disorder certificate as it seemed that he probably had been treated in an unreasonable manner under the worker’s compensation legislation dealing with stress related disorder.” (exhibit AXXVIII, page 1, tendered on 24 March 2004 by Mr Wiegand).
Dr Mackay goes on to say that in his opinion Mr Wiegand was suffering from depression and anxiety, and that employment with the ATO had aggravated his depressive illness.
29. Comcare called another psychiatrist to whom it had referred Mr Wiegand, namely Professor Goldney. At the first hearing Professor Goldney said that in his opinion it was most unlikely that Mr Wiegand’s workplace had materially contributed to his condition. Von Doussa J referred in his judgment in detail to the reports and evidence provided by Professor Goldney. I will not repeat his Honour’s analysis. It suffices to say that his Honour considered that the witness had not correctly applied the relevant legal test, because he thought that it was necessary for Mr Wiegand’s perceptions of the employment related events to be objectively reasonable.
30. In reports provided by Professor Goldney after von Doussa J’s judgment and in his evidence before me, Professor Goldney said that his conclusions remained basically the same as those he had earlier expressed. In a report dated 2 March 2004, the professor referred to his clinical interpretation of the relevance of Mr Wiegand’s perceptions, which he acknowledged was “not congruent” with von Doussa J’s judgment, and he said that none of the specific events which Mr Wiegand had asserted to be important had been “in clinical reality, contributors to a ‘material degree’ to his condition. Rather, I consider that they have become an inappropriate focus for his thinking.” (exhibit RX, page 6). In his evidence before me, Professor Goldney said that his “current” diagnosis was as follows:
“I consider that he has a long standing paranoid personality disorder and at times he has had episodes of depression as well when his perception of events has not been shared by others and he has become frustrated about that and become depressed, but the primary problem is that of a long standing paranoid personality disorder. In addition, there are obsessive compulsive features as well.” (transcript, 20.5.05, page 4, lines 8 – 13)
When describing Mr Wiegand’s current condition earlier in his evidence Professor Goldney said that Mr Wiegand was also suffering from an obsessive compulsive personality disorder (transcript 22.3.05, page 62, line 30).
Legislation
31. Section 14(1) of the Act provides for compensation for injuries, and provides as follows:
“14(1) 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.”
32. Section 4(1) of the Act includes definitions of the words “injury” and “disease”, which apply unless the contrary intention appears. These definitions are as follows:
“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.
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.”
The word “ailment”, which is used in the definition of disease is also defined in s 4(1) to mean (in the absence of a contrary intention) as follows:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
33. The concept of incapacity for work is defined in s 4(9), which provides as follows:
“4(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
Consideration
34. I find on the evidence before me that Mr Wiegand was suffering from major depression as at 2 January 1998. Dr Coyte made this diagnosis when he first saw Mr Wiegand soon after that date, and I accept Dr Coyte’s evidence. The various references in earlier medical reports to which Mr Milazzo has drawn my attention, including the report from Dr Flynn, suggest that Mr Wiegand might well have been suffering from depression a number of years before 2 January 1998. Further, it is clear from Dr Mackay’s report that he was treating Mr Wiegand for depression as from October 1995, and I think it likely that Mr Wiegand was suffering from depression from at least then onwards.
Did the applicant’s employment materially contribute to his condition?
35. Under the definition of disease in the SRC Act, the relevant ailment or aggravation of an ailment suffered by an employee must be an ailment or aggravation that was contributed to “in a material degree” by the applicant’s employment by the ATO. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323, the Full Court of the Federal Court said when considering the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (which is the predecessor of the SRC Act):
“The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
This case is treated as authoritative on the meaning of the word “material” when interpreting the reference to that word in the SRC Act : Suters v Australian Postal Corporation (1992) 28 ALD 320 at 323, and see also Wiegand v Comcare (supra) at [23].
36. Mr Milazzo contended that the ATO was a “protective environment” for Mr Wiegand, in that it facilitated his pursuit of various causes through his position as an occupational health and safety representative and through the ATO’s procedures for dealing with grievances. He further contended that a private sector employer would not have been as tolerant of Mr Wiegand in dealing with the various issues and events which Mr Wiegand pursued. Mr Milazzo drew attention to the passage from the judgment of Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632. This passage is quoted by von Doussa J (32 ALD 975 at [23]), and is as follows:
“Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I shall understand the language of the definition.”
Mr Milazzo also referred to the following passage in the judgment of Windeyer J in the same case as page 641.8:
“When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of employment or some characteristic of the work performed or the conditions in which it was performed.”
Mr Milazzo submitted that having regard to the various checks, balances and procedures adopted by the ATO and the “salutary environment” in which Mr Wiegand worked, it was not possible to identify a state of affairs at the ATO “to which (Mr Wiegand) would not otherwise have been exposed.”
37. I have referred above in some detail to the situations and events on which Mr Wiegand relies in support of his claim. I find that these matters go beyond the fact of his having been employed. He was given a particular role to perform as the O H & S representative, and this required him to pay attention to, and ensure compliance with, various statutory or regulatory obligations on his employer; this meant he was in a position which, taking into account his personality traits, had the potential to, and (I find) did in fact, lead to various issues or conflicts with his employer. The history obtained by Dr Coyte, as well as by the other psychiatrists who provided evidence or reports in this matter, all indicate that various specific situations or events were the cause of concern to Mr Wiegand. I find that these matters caused an increasing sense of frustration and hopelessness, and in turn led to the development of his depressive condition.
38. Counsel next contended that Mr Wiegand’s perceptions were not based on reality, but were imagined. He relied on the decision of the Full Court of the Federal Court in Kirkpatrick v Commonwealth (1985) 9 FCR 36, and referred in particular to the passage at page 40 where the Court referred to the example of a worker wrongly believing that a boil was suffered as a result of dust at work, becoming resentful upon his claim being rejected, and then developing a neurosis. Counsel argued in the context of the present case that if Mr Wiegand’s concern about discrimination was imaginary, and not the result of a distorted view of a genuinely discriminatory event at work, then it could not be said that his employment had in fact contributed to the psychological sequelae. He submitted that von Doussa J’s analysis of the issues in the present case (see 32 ALD 795 at [31]) should be understood in this way in order to be consistent with “higher” authority.
39. It is therefore necessary to determine what was the relevant event or situation that gave rise to the perception, and whether that event or situation actually occurred. In considering this, I observe that not all of the asserted stressors would meet counsel’s description of “concern about discrimination”. As well as perceived discrimination, the asserted stressors included perceived irregularities in ATO practices, errors or inappropriate actions or inaction, frustrations arising from perceived bureaucratic practices, and harassment or wrongful conduct by fellow employees. Comcare disputed that certain of the asserted events had in fact occurred.
40. I refer in considering counsel’s submission first to matters referred to in the evidence of Mr Gherardin. In 1993 he was employed by Comcare Australia as its Manager, Occupational Health and Safety SA/NT, and he gave evidence as to investigations that had been undertaken following the issue by Mr Wiegand, in April 1993, of a provisional improvement notice with respect to the air-conditioning system in the T & G Building, which was then occupied by the ATO. Mr Gherardin also produced copies of other correspondence relating to various other issues that Mr Wiegand had raised in his capacity as an O H & S representative between December 1992 and May 1996. Mr Gherardin acknowledged in cross-examination that during his time with Comcare Mr Wiegand had raised many health and safety issues. He said that some in his view had substance, others had little substance. He also said that the level of interaction with Mr Wiegand and the range of issues he raised were significantly greater than the norm raised by others from both within the ATO and the broader public sector. He added that the majority from the broader public sector had a “higher level of substance” than the issues Mr Wiegand raised (transcript 11.3.05, page 21, line 8). Mr Wiegand tendered two further exhibits (exhibits AXXII and AXXIII) which evidence further issues he raised as an O H & S representative and the convenor on O H & S matters for the union. These copy records go back to July 1992.
41. Counsel submitted on the basis of exhibit RVIII that Mr Wiegand’s complaints about air quality in the T & G Building were imaginary, but in his final written submission (MFI AXXXVII) Mr Wiegand vigorously disputed this submission. I find it unnecessary to decide this issue, because it was not suggested that all of the matters raised by Mr Wiegand in his above capacities were imagined. I find that Mr Wiegand raised various issues in these capacities which were not imaginary, and that he perceived that there were delays in responding to his complaints, or that his complaints were not otherwise actioned appropriately. Having regard to von Doussa J’s judgment, it is unnecessary for me to examine the reasonableness or otherwise of Mr Wiegand’s perceptions, because they were based on events which actually occurred.
42. There was some evidence before me as to the keeping of a separate file on Mr Wiegand, which he described as a “secret file” (see paragraph 13.7 above). The ATO officer who kept the file was Diane Mitchell. She gave evidence as to the circumstances which led her to do so. I find that her explanation for her actions was reasonable and her action was consistent with her responsibilities. However, Mr Wiegand’s concern about the existence of this file arose from the fact that he only became aware of it at a later stage, and on asking for a copy of it, was not given a complete copy. His concerns that the keeping of this file was in some way discriminatory or sinister were I think unreasonable, but his perception was based on events which actually occurred.
43. Whilst the evidence before me includes reports on various grievances lodged by Mr Wiegand which found that his complaints were not justified, there was also evidence that the events which gave rise to the grievances actually occurred. Further, I accept that the various other events or situations (not the subject of grievances) of which Mr Wiegand complained also in fact occurred and gave rise to his perceptions. Once again, it is unnecessary to make any finding as to the reasonableness or otherwise of his perceptions.
44. Counsel further relied upon the evidence of Professor Goldney in contending that Mr Wiegand’s depression was not employment-related. However, Dr Coyte expressed the opposite opinion, and I prefer his opinion to that of Professor Goldney. Professor Goldney did not see Mr Wiegand for the first time until May 2001, which was more than three years after January 1998, being the date of injury referred to in the claim form, and the date when Mr Wiegand last worked. Professor Goldney saw Mr Wiegand on two successive occasions in May 2001 in order to provide his first medico-legal assessment, and on one further occasion when he re-examined him for the purpose of providing his report dated 2 March 2004. As against this, Dr Coyte has treated Mr Wiegand since early 1998, and has seen him at regular intervals since then. Having regard to the above matters I think that Dr Coyte has been in a better position to assess Mr Wiegand’s psychiatric condition, and the effects on him of his employment with the ATO. Dr Coyte was an impressive witness and carefully addressed the questions put to him in the course of his evidence. Further, Dr Coyte’s opinion is more consistent with the views expressed both by Dr Davis and Dr Mackay than the views expressed by Professor Goldney.
45. Professor Goldney’s opinion differs from Dr Coyte’s in a further important respect. When Professor Goldney gave evidence before me, he said that Mr Wiegand was suffering from a paranoid personality disorder and an obsessive compulsive personality disorder (transcript 22.3.05, page 62, line 30). He said that he first made this diagnosis in July 2004, as a result of being provided with further information, but not as a result of a further consultation with Mr Wiegand. However, his references to the further information on which he relied were unconvincing insofar as he referred to Dr Coyte’s handwritten notes of consultations on 5 February and 25 May 1998 (which are included in exhibit R1). This involved his interpreting Dr Coyte’s notes. The notes of 5 February 1998 were made at the time of Mr Wiegand’s first consultation with Dr Coyte. They refer to both personality disorder and personality traits, but do not suggest that Dr Coyte had made a concluded diagnosis as to which of these alternatives was applicable. Since that first consultation Dr Coyte has seen Mr Wiegand on many occasions in the course of treating him, and he does not consider that Mr Wiegand is suffering from paranoid personality disorder. Dr Flynn also expressed the same view in his report. Dr Coyte’s notes of 25 May 1998 refer to Mr Wiegand’s underlying personality, but do not refer to a disorder.
46. Professor Goldney also based his later diagnosis in part on certain conflicts which Mr Wiegand had had with other persons, such as his mother and his former business partner, and thought that his relationship with those people satisfied the first diagnostic criterion of a paranoid personality disorder in the Diagnostic and Statistical Manual of Mental Disorder, Fourth Edition, Text Revision (“DSM-IV TR”). That criterion requires that the person concerned “suspects, without sufficient basis, that others are exploiting, harming or deceiving him or her” (emphasis added). Professor Goldney clearly thought that this was Mr Wiegand’s position, but in my view he did not adequately inquire into the circumstances which gave rise to Mr Wiegand’s conflicts with his mother or his partner, and in these circumstances it was unsafe to rely on this criterion.
47. Professor Goldney further relied upon Mr Wiegand’s conduct during the period when he gave evidence as supporting his revised diagnosis. For most of the time Professor Goldney referred to, Mr Wiegand was cross-examining him. Professor Goldney appeared to suggest that this conduct demonstrated mistrust on the part of Mr Wiegand. However, it is not surprising that during the cross-examination, Mr Wiegand pressed the professor for answers when it appeared that his questions had not been directly addressed, or that he indicated that he disagreed, and indeed disagreed strongly, with the professor’s explanation for his views.
48. I find that Mr Wiegand was concerned about a large number of situations and events which occurred during his employment by the ATO. Whilst his evidence suggests that some particular events had a more significant effect on him than others, I find that the combination of a large number of employment related situations and events (including those to which I have referred in paragraphs 13 and 15 above), or Mr Wiegand’s perception of them, led to his developing major depression. I further find that he was suffering from this condition, or an aggravation of this condition, as at 2 January 1998, when he failed to return to work at the ATO, and that this condition was materially contributed to by his employment.
Did the applicant’s injury result from a non employment-related event or a failure to obtain a promotion, transfer or benefit?
49. I have so far dealt with the issue of whether the various stressors of which Mr Wiegand complains materially contributed to his depressive condition, without dealing separately with the effects of any one or more of those stressors. It is however, necessary to do this, because counsel for Comcare contended that certain of the stressors were not employment-related, or were excepted from the definition of injury in s 4(1) of the SRC Act.
50. In view of Dr Flynn’s report, I find that Mr Wiegand was not suffering from depression in June 1995, but I find that he was suffering from depression in October 1995, when Dr Mackay diagnosed depression and prescribed anti-depressants.
51. In considering the relevance of individual asserted stressors, I think it important to have regard in particular to the period both prior to the date when Mr Wiegand’s depression was first diagnosed (that is, in October 1995) and also to the period from then until 2 January 1998, when he did not return to work. A large number of the asserted stressors took place prior to October 1995. I referred in paragraphs 22 and 23 above to Dr Coyte’s opinion as to the increasing and compounding effect of the stressors, and I find that those stressors that occurred prior to October 1995 materially contributed to the subsequent development of Mr Wiegand’s depression. Mr Milazzo pointed out that there were suggestions in earlier medical reports that Mr Wiegand was suffering from psychiatric rather than physical problems from early in the period of his employment by the ATO. However, it is not necessary for the determination of the present matter to make any finding as to whether Mr Wiegand was suffering from depression at an earlier time in his employment with the ATO.
Non-employment related event - the tax audit event
52. One of the stressors relied upon by Mr Wiegand was his belief that he had been wrongly selected for audit by the ATO because of a vindictive attitude of certain ATO officers towards him, and that the resulting audit had not been carried out in accordance with proper procedures.
53. Comcare adduced evidence that this was not the case, and that Mr Wiegand’s returns included claimed deductions for business expenses at a level which, by the operation of a centralised computer programme, resulted in his returns being set aside for audit. I accept the evidence that one or more of Mr Wiegand’s returns were in fact selected for audit in this way, so that, to that extent, the audit was not an employment-related event. I further find that, to that extent, Mr Wiegand’s perception was not based in reality. This stressor cannot therefore found a claim for compensation.
54. Mr Wiegand further contended that his 1995 tax return was not selected for audit in accordance with standard procedures, and that the audit was not conducted by the appropriate person(s) according to their current procedures, and that the person who conducted the audit did not make appropriate inquiries. Comcare led evidence which met those contentions, including documents which indicated that Mr Wiegand did not object to the officer concerned conducting the audit, and did not comply with a request to provide information relevant to the audit. On the basis of this evidence, which I accept, I find that his being selected for audit and the conduct of the audit were not employment related events.
55. It appears from exhibit RV that Mr Wiegand became aware by at least May 1996 that the audit would be undertaken. He has consistently maintained that the deductions for his expenses in the two years of income in question should have been allowed to him, and that he had proper grounds to object to the disallowance of the claimed deductions. Amended assessments reflecting the audit adjustments were issued on 22 January 1997 (exhibit AXVII). Mr Wiegand regards these assessments as illegal, and says that he is not troubled by the assessments or the ATO’s action to recover the tax owing in consequence of the assessments, and has no intention of ever paying the tax owing, and in any event cannot afford to do so. Whilst I accept Mr Wiegand’s evidence that the issue of assessments following the audit did not cause him undue concern, I further find that his perception that he had been unfairly selected for audit and that the audit had been conducted improperly added to his concerns that he was being victimised, and were factors which materially contributed to his depression.
56. After the audit had been completed amended assessments were issued. While I accept that Mr Wiegand was not concerned about the ATO’s threats to enforce the resulting debt for additional tax and penalties, I find that the subsequent steps of garnisheeing Mr Wiegand’s income did cause him concern, and contributed to his developing major depression. This garnishee action meant that his income, which was quite low due to his reduced working hours, was further reduced to the point where he said that on one occasion, he was paid only $50 or so (transcript 26.2.02, page 66, line 9). However, the garnishee action was not taken until late March 1998, and is only therefore relevant to the period after he had ceased work and had been diagnosed as suffering from major depression.
Promotion, transfer or benefit
57. The proviso to the definition of “injury” excludes from the meaning of “injury” a failure by the employee to obtain a “promotion, transfer or benefit” in connection with his or her employment. Counsel for Comcare referred, by way of an alternative argument, to five stressors which, he contended, were all covered by the exclusion in the proviso to the definition of injury. He acknowledged that he had not specifically asked Mr Wiegand whether the five events he identified were the most meaningful to him. The matters that Mr Milazzo identified were: first, the first non-promotion of Mr Wiegand (see paragraph 13.4 above); second, the request for a part-time position and its aftermath (see paragraph 13.6 above); third, the meeting room obstruction concern (see paragraph 13.10 above - counsel described this event as “the dispute over the ATO’s attempt to enlist the applicant’s cooperation in complying with section 69(1) of the O H & S Act in December 1995”); fourth, the compassionate leave event – see paragraph 13.9 above; and finally, the failure to obtain promotion in late 1997.
58. Mr Milazzo referred to the five events in question in support of an alternative argument that Mr Wiegand’s condition was not compensable because one or more of the events had contributed to his condition, and as those events were excluded from the definition of “injury” by the proviso to that definition, Mr Wiegand had not suffered an “injury” as defined. In support of his submission, Mr Milazzo relied on Hart v Comcare [2005] FCAFC 16.
59. Prior to the hearing I was concerned to ensure that the psychiatrists on each side would consider the effect on Mr Wiegand of the various stressors which were not excluded by the proviso to the definition of injury. I accordingly directed the solicitors for Comcare to include the following questions of Dr Coyte and Professor Goldney when obtaining updated medical reports from them:
“On the issue of whether Mr Wiegand’s employment contributed to a material degree to the psychiatric condition from which he suffers (i.e. major depressive disorder), do you consider that Mr Wiegand’s employment (i.e. his perception of any incidents or states of affairs at the ATO, either separately or in combination), created a perception in his mind that contributed in a “material degree” (in the sense explained in paragraph (b) on page 1 above) to the development of his condition (and it does not matter whether Mr Wiegand’s perception was reasonable or unreasonable in the thinking of others)? If yes, from your notes what were the incidents or what states of affairs which created that perception? In particular, if the perception (if any) resulting from the incidents referred to in paragraph (e) above are excluded from consideration, either separately or together, or in their various potential combinations, would Mr Wiegand’s perceptions of the remaining incidents or states of affairs at the ATO (i.e. the various matters other than the 3 issues referred to in paragraph (e) above which, according to the history you obtained, he was concerned about), either separately or in combination, have contributed in a “material degree” (in the sense explained in paragraph (b) above) to an aggravation of a previous condition?” (exhibit RIX, page 3)
The three issues referred to in paragraph (e) of that letter were the journey accident claim (see paragraph 13.3 above), the second promotion concern (see paragraph 13.8 above), and the compassionate leave event (see paragraph 13.9 above).
60. In answer to this question, Dr Coyte (whose evidence I accept) said:
“With regard to your third, rather convoluted, question I continue to be of the opinion that Mr Wiegand’s employment contributed to a “material degree” to his depressive illness.
In particular, my notes made on 5/2/98 indicate that Mr Wiegand had been depressed for about two years prior to this date and had been on some antidepressants for about one year. This mood decline had occurred as a result of multiple incidents at work, where Mr Wiegand found himself fighting the beaurocracy at work including what he believed to be a vindictive tax auditing of himself, false accusations made by others against him and his inability to get other workers to work in a reasonable and productive manner. The promotional failure of late December 1997 exacerbated his mood, only in so far as it confirmed his belief in the incompetence of the workplace. Mr. Wiegand informed me that he was urged to apply for the promotion by his supervisor and would not have applied otherwise. Therefore, he was not disappointed in the outcome, it just confirmed what he already knew. Hence, the history obtained is of a significant, longstanding contribution of his workplace experience to the development of his depressive illness with the promotional failure forming a minor component.” (exhibit AXXV, paragraph 3)
61. In his oral evidence, Dr Coyte was asked also to exclude from his consideration the three matters referred to in paragraph 59 above, and was asked whether the other employment-related incidents which Mr Wiegand had told him about nevertheless made a material contribution to either the causation or aggravation of Mr Wiegand’s depressive condition. Dr Coyte responded:
“Yes, certainly. The vast bulk of material that Mr Wiegand described to me as causing his chronic frustration, irritation, anger, then despondency, despair, didn’t have anything to do with these particular issues. These issues were brought up in the history along the way, but certainly did not form anything like the bulk of what he complaint (sic) about. In fact, they seemed to be fairly minor, as I think I’ve mentioned.” (transcript 22.3.05, page 26, line 40)
I understand that when Dr Coyte referred in the third sentence of this extract to “(t)hese issues” he was referring to the three matters referred to in paragraph 59 above.
62. Dr Coyte was then asked to “take out of the equation also” Mr Wiegand’s concern that he had been improperly selected to be subjected to a tax audit, and whether that altered his opinion as to the relevance of the other stressors. Dr Coyte responded:
“I guess it is a question of how many things can one remove? …Whilst his perception of the motivation behind the individual tax audit was that this was a – and I think my notes said it was a vindictive thing to be doing, to have been done – again, it was – the sense, again, is that there’s confirmation of what he is already perceiving to be taking place. There were so many details, so many different incidents that he had experienced, it was, kind of, impossible to note them all down as he was telling them to me as I think I, sort of, indicated. So, certainly, that was one of those incidents but, I guess, in balance, if one considered the history as a whole, this would be one small section otherwise in a history which has very much got a pronounced theme of, yes, feeling blocked and frustrated and thwarted, and deliberately so.” (transcript 22.3.05, page 27, line 14).
63. On the basis of Dr Coyte’s report and evidence, I find that the combination of the many stressors of which Mr Wiegand complained arising from his employment with the ATO, and which were not excepted or non employment-related events, caused the development of his major depression.
Events excluded from definition of injury
64. It nevertheless remains necessary also to consider the relevance of the events said to be excepted or excluded events, in order to determine the contention of counsel for Comcare that if the condition of major depression was the result of one or more such events, it did not constitute an injury as defined in s 4(1).
65. In certain earlier decisions of this Tribunal, where there has been a combination of compensable and non-compensable events causing an applicant’s condition, the Tribunal has evaluated the contributing causes in order to determine which factor or factors were predominant; and if non-excluded factors were predominant, the exclusion to the definition of “injury” was held not to apply (see for example Re Fitzgerald and Comcare [1995] AATA 10514; 6 November 1995 and Re Parker and Comcare [1996] AATA 11298; 11 October 1996).
66. It is also relevant to refer to Trewin v Comcare (1998) 84 FCR 171 where after referring to the judgment of Drummond J in Comcare v Mooi (1996) 69 FCR 439, Heerey J said (at 176):
“It is implicit in Drummond J’s reasoning that if there were four contributing and employment-related factors, of which three were exclusionary and one was not, and if the requirement of “injury” were satisfied, the claim would succeed.”
67. However, the approach referred to in the two preceding paragraphs was not adopted in the recent matter of Hart v Comcare (supra). The decision of the Full Federal Court in that case was handed down part-way through the hearing of the present matter. In Hart, the applicant made a claim for rehabilitation and compensation based on depression, anxiety and an adjustment disorder with anxious and depressed moods caused by events associated with events occurring during her employment by the Department of Defence. The Tribunal identified two concurrent causes of the applicant’s conditions, namely the failure to obtain promotion, an excluded cause, and events connected with the process of promotion, which was not excluded. The Full Court of the Federal Court (Branson, Conti and Allsop JJ) decided that as the condition suffered by the applicant was a result of an excepted factor under the proviso to the definition of “injury” the applicant had not suffered an injury as defined. The Court further decided that this was so even though the applicant’s condition was also caused by other non-excluded factors. The Court said:
“21. The so-called proviso in the definition does not exclude causes. It provides that if a disease of (sic) which would otherwise fall within the definition (“any such”) is one which answers a description (relevantly here: “suffered as a result of … the failure to obtain a promotion”), the disease or injury is not an “injury” as defined. …
22. In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry. …
24. To the extent that Drummond J in Comcare v Mooi (1996) 69 FCR 439 at 448 took a different view as to the operation of the definition, we respectfully disagree. To the extent that his Honour did, it was clearly obiter.”
68. I now turn to consider each of the events which counsel asserts were excepted events.
69. First failure to obtain promotion : Counsel for Comcare relied upon the first failure to obtain a promotion, for which Mr Wiegand had applied late in 1989. I referred to this in paragraph 13.4 above. Counsel said that this event was in the early 1990’s, but it appears that Mr Wiegand applied for this promotion late in 1989 and the resulting challenges mounted by Mr Wiegand continued until 1991. Mr Wiegand referred in his evidence at the initial hearing to the two successful applicants being undeserving of the promotion in everybody’s opinion. He said he tried to have the promotions cancelled, investigated how many cases the successful applicants had done, raised the matter with the manager and director of the section and told them that the promotions had made everybody more cynical and were destroying morale in the section. He appealed to the Merit Protection Review Authority. It is apparent that Mr Wiegand felt most aggrieved by these matters. His further evidence as to the aftermath of the promotion of the two officers is summarised in paragraph 13.4 above.
70. This event is also referred to in exhibit AII, previous exhibit A4, being a memo prepared by one M.S. Grivell on 25 March 1993. This memo suggests that the failure to obtain the promotion had a significant impact on Mr Wiegand.
71. This first failure to be promoted is also referred to in Dr Flynn’s report of 20 July 1995 (exhibit RI, pages 34-35). This report refers to “favouritism that he observed with respect to promotion” within the ATO as the first of the matters he was concerned about. The report goes on to say that Mr Wiegand may have developed a “clinical depression” in about 1993, but Dr Flynn found that as at the date of his examination on 18 July 1995 Mr Wiegand was not suffering from a “treatable psychiatric condition”.
72. I next refer to Dr Mackay’s report of 28 February 1996 (exhibit AXXVIII). In the extract I have quoted in paragraph 28 above, the first instance he cites in explaining Mr Wiegand’s belief that things had not been done “fairly and in the proper manner” was a past issue of perceived favouritism with respect to promotion at the ATO.
73. In his report of 15 May 2001 Professor Goldney recited the history he had obtained from Mr Wiegand and this included “denial of promotion”, although he does not identify which denied promotion he was referring to (exhibit AII, R3, page 4.4).
74. I finally refer to the evidence of Dr Coyte. After reading paragraph 10 of the judgment of von Doussa J, which I have reproduced in paragraph 13 above, Dr Coyte confirmed that Mr Wiegand had mentioned in the course of his consultations all of the events referred to by von Doussa J, that all of those matters appeared to be of concern to Mr Wiegand, and they all contributed to the onset of his depression, or the aggravation of it (transcript 22.3.05, page 46, line 11). The events in question included the first failure to be promoted (as well as its aftermath: see paragraph 13.4 above).
75. Whilst (as I have already found) there was a combination of many events that caused Mr Wiegand’s depressive condition, it appears from the evidence before me that this first failure to be promoted marked the beginning of Mr Wiegand’s psychological concerns. I find from the above evidence that this event was one of the causative factors for his developing major depression and that it was not an insignificant factor. This factor was an excluded event within the proviso to the definition of “injury”.
76. This event also led to Mr Wiegand’s concern about statements defamatory of him being made by the promoted officers. That conduct was very concerning to him, and would not be an event excluded by the proviso to the definition of “injury”. However, that subsequent conduct and its effect on Mr Wiegand does not diminish the relevance in its own right of the initial failure to be promoted.
77. Failure to obtain promotion in 1997 : Mr Wiegand applied for a further promotion in or about November 1997. The circumstances in which this occurred are referred to in a memo dated 10 March 1998 from his then team leader or manager, a Mr Edgecombe (exhibit AXXI, T5, page 8). Mr Edgecombe records that he was Mr Wiegand’s team leader in November 1997, and he describes Mr Wiegand’s work performance in very positive terms. He further records that he urged Mr Wiegand to apply for a promotion within the ATO as a signal of his commitment to the organisation, even though they both agreed that because of his earlier record his application would be unlikely to succeed. Mr Wiegand agreed in cross-examination that Mr Edgecombe’s record of the discussion which led to his applying for the promotion was probably fair.
78. Mr Wiegand further acknowledged in cross-examination that when he made his application for the promotion he was prepared to be rejected. He said it was quite likely that he was advised on 30 December 1997 that he would not be promoted, but he said that this was no surprise to him and this did not really affect him (transcript 18.10.04, page 58, line 30). He denied that he “hit the wall” when the rejection occurred (transcript 18.10.04, page 59, line 1). Mr Edgecombe’s above memo also records that when Mr Wiegand was notified that his application had been unsuccessful, he appeared “disappointed … although not surprised” (exhibit AXXI, T5, page 9).
79. Dr Coyte made reference to this later failure to attain the promotion. In his report dated 21 February 2000 (exhibit AII, R4) Dr Coyte said at paragraph 3.4 that this was “not the solitary cause of his depressed mood (which had been present for two years or more), more accurately, it acted to exacerbate it.” In his evidence-in-chief, he said that that initial matter “seemed to be fairly minor. Maybe the equivalent is the expression : the straw that breaks the camel’s back” (transcript 22.3.05, page 24, line 11). In cross-examination, Dr Coyte said that there had been a pattern of major depression before the notification of the failure to be promoted, that the notification “seemed almost irrelevant” (transcript 22.3.05, page 38, line 19), and confirmed what Mr Wiegand already thought, and he added “in that sense when one has one’s sense of hopelessness and pointlessness affirmed, it is more intense, hence, exacerbated, but it is not the reason for the hopelessness in the first place … ” (transcript 22.3.05, page 40, line 23).
80. Mr Milazzo pointed out that Mr Wiegand failed to return to work on 2 January 1998, and this was virtually immediately after he had been notified on 30 December 1997 that his application for promotion had been unsuccessful. Certainly Dr Coyte’s evidence might be interpreted as suggesting that this event was an operative cause of his depression, and the temporal proximity of this event to Mr Wiegand’s failure to return to work would suggest that the event was significant. However, Mr Wiegand’s evidence that this event had no effect on him is consistent with Mr Edgecombe’s file note and with Dr Coyte’s opinion that this event was of no practical significance. I accept Mr Wiegand’s evidence. I find that this event did not contribute to Mr Wiegand’s major depression. I find that on 2 January 1998, in consequence of his major depression, he had reached a point where he was totally incapacitated for work.
81. Request for part-time position and its aftermath : I referred to this stressor in paragraph 13.6 above. This event might be interpreted as the failure to obtain a “benefit” (a concept which I discuss in paragraphs 86 and 87 below). However, a significant aspect of Mr Wiegand’s concern was not that his application was not approved; in fact it was subsequently approved. His primary concern appears to have been that the manager who dealt with his application required him to give up or reduce his O H & S activities, and that the manager did not follow the relevant ATO staff guidelines. This account is confirmed by a letter dated 17 January 1994 (exhibit AII, exhibit R7). I therefore find that even though this event may have been a contributing factor to the development of Mr Wiegand’s condition, it was not an excepted event.
82. Meeting room obstruction concern : Counsel for Comcare also submitted that the meeting room obstruction concern (see paragraph 13.10 above) was a non-compensable event. He described this event as the “dispute over the ATO’s attempt to enlist the Applicant’s cooperation in complying with section 69(1) of the O H & S Act”. That section imposes an obligation on an employer to maintain certain prescribed records of certain accidents or dangerous occurrences. However, I accept Mr Wiegand’s evidence that the essence of his concern was being prevented from leaving the meeting room because a person present blocked the door, and Mr Wiegand said caused him to feel harassed. I do not regard this event as falling within any of the exceptions to the proviso to the definition of “injury”. Once again, I further find that it was an event which contributed to the development of his major depression.
83. The compassionate leave event : Mr Milazzo finally referred to the refusal by the ATO to grant Mr Wiegand compassionate leave at the time of his father’s proposed visit to Adelaide late in 1996. When asked if that upset him, Mr Wiegand said: “I was extremely upset. Yes. Extremely”. (transcript 25.2.02, page 63, line 1). This matter was the subject of a further grievance by Mr Wiegand contained in a letter dated 9 December 1996 (exhibit AII, exhibit R11). In this letter, Mr Wiegand said that at a meeting on 2 October 1996 his then manager had refused his request for leave, even though his manager was fully aware that his 77 year old father, whom he had not seen for eight years and whom he might not see alive again, was about to visit him. His letter continued: “This has caused me great anguish and my health has been affected by this. I have been ov (sic) for three days.” The letter ended with a comment that he thought that he was probably wasting his breath as the result of the grievance would be another “white wash”.
84. In considering the relevance of this event I refer again to the letter from Mr Wiegand’s treating general practitioner Dr Mackay, dated 25 February 1996. His prognosis at that time was for gradual reduction in the depressive illness, but with further relapses possible. As I have already found, Mr Wiegand was suffering from major depression in January 1998.
85. There were only two other specific events which might have constituted stressors and occurred in the period after the date of Dr Mackay’s report and the refusal of compassionate leave and prior to when Mr Wiegand ceased work at the ATO in January 1998. The first was the tax audit (which I have found was a non-employment related event) and the second was the notification on 30 December 1997 that his application for promotion was unsuccessful (which I have found did not cause any undue distress). In these circumstances, and on the evidence to which I have referred in the preceding paragraph, I think it likely, and find, that the refusal of compassionate leave caused additional significant distress to Mr Wiegand, thus further compounding the effect of the many earlier stressors he had experienced, and that it was a causative factor in his suffering major depression as at January 1998.
86. In a case decided by this Tribunal in 1996, namely Re Sutherland and Comcare [1996] AATA 11481; 16 December 1996, the Tribunal considered a claim by an officer working in a debt recovery section of the Department of Employment, Education and Training who refused to transfer to a country town unless an office with appropriate personal security features was provided. The Tribunal held that “a suitable office and appropriate security in the workplace are rights or entitlements of employees and not ‘a benefit’ ” (at [39]).
87. However, that interpretation of the word “benefit” was not applied by Heerey J in Trewin v Comcare (1998) 84 FCR 171. His Honour said at page 177:
“I think that the word is used in s 4 in the latter sense (ie anything that is for the good of a person or thing), which does not necessarily exclude something obtained as a matter of right. An example of this usage is in the term “medical benefit”, which means a payment to which an insured person is entitled as a matter of contractual right. … For the reasons mentioned, a benefit (or promotion or transfer) to which an employee is entitled as a matter of right – in the sense of something being legally or administratively enforceable – is nonetheless within the exception.”
88. I am of course bound by this interpretation of the word “benefit”. It follows that the failure by the ATO to approve compassionate leave in October 1996, to enable Mr Wiegand to see his sick father when he visited Adelaide, was a “benefit” and so excluded from the definition of “injury” even if (as was likely to be the case, although there was no evidence on this point) Mr Wiegand had been entitled to such compassionate leave under the terms of the award or workplace agreement governing the terms of his employment by the ATO, or was entitled to other accrued leave.
89. For the above reasons I find that the compassionate leave event materially contributed (in the relevant sense) to Mr Wiegand’s condition, and that this constituted an event which was an excluded event under the proviso to the definition of injury in s 4(1) of the SRC Act.
90. Because two of the events from which Mr Wiegand’s condition resulted, namely the first failure to be promoted and the compassionate leave event, were excepted factors, it follows from Hart (supra) that he did not suffer an “injury” as defined, and so his claim for compensation must fail.
91. For the sake of completeness, I add that I also find that the various earlier employment-related stressors which I have not expressly discounted in these reasons were in combination the predominant cause of his major depression. If the earlier authorities to which I referred in paragraphs 65 and 66 above had not effectively been overturned by Hart, I would have decided the present application differently.
Decision
92. For the above reasons, the decision under review is affirmed.
I certify that the 92 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 18 October 2004, 10 and 11 March 2005, 22 March 2005, 24 March 2005, 20 May 2005 and 27 May 2005
Date of Decision 12 August 2005
Counsel for the Applicant In Person
Solicitor for the Applicant -
Counsel for the Respondent Mr Milazzo
Solicitors for the Respondent Sparke and Helmore
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