Shulten and Comcare (Compensation) - [2023] AATA 3249

Shulten and Comcare (Compensation) [2023] AATA 3249 (10 October 2023)
Division:GENERAL DIVISION
File Number(s): 2021/8464
Re:Harald Werner Shulten
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member A Ward
Date of Decision: 10 October 2023
Place:Adelaide

The reviewable decision is affirmed.
................[Sgnd].........................
Member A Ward
CATCHWORDS
WORKERS COMPENSATION – Commonwealth employee – significant delay in alleged onset of injury (mid 1980s) and hearing - whether Comcare liable for applicant’s depression, generalised anxiety disorder and schizophrenia – issues with self-represented applicants – issues with applicants/witnesses with diagnosed psychiatric illnesses – application of s 42B of the Administrative Appeals Tribunal Act 1975 – where there is no reasonable prospects of success – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Carvalho and Comcare (Compensation) [2022] AAT 1081
Manuel and Comcare [2009] AATA 848
Oliver and Comcare (Compensation) [2018] AATA 1964
REASONS FOR DECISION
Member A Ward
10 October 2023

The applicant Mr Shulten has suffered from psychiatric symptoms for most of his life. These cause him difficulties with interactions with people or could compound stressful situations. He had treatment whilst so affected during his university studies prior to his Commonwealth employment. He obtained employment with the Commonwealth and noted symptoms of distress and intrusive thoughts which he related to his employment and interactions in the office environment.
Over the years, Mr Shulten has submitted three claims for compensation, effectively claiming psychiatric injuries related to his employment within Commonwealth agencies. These employment issues arose in the mid - 1980s and the applicant has maintained a steady stream of correspondence with the respondent (in previous iterations as well) up to the hearing of this determination. However, the primary cause for this ongoing interaction of 40 years were the events in the mid-1980s.
The respondent has denied liability for what has been summarised as “depression, generalised anxiety disorder and schizophrenia”.
This determination was made on 22 April 2021. The decision was reconsidered and upheld by Notice on 23 September 2021.
It was that decision that was the subject of this application to the Tribunal and the hearing that commenced on Monday, 4 September 2023.
Hearing and Application
The applicant represented himself. Documentary evidence was tendered at the commencement of the proceedings in the usual way in a compensation case. He gave evidence at the commencement of the hearing. At the conclusion of his evidence in chief, the respondent made an application that the claim be dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”).
Section 42B(1) of the AAT Act provides the Tribunal with the power to dismiss an application for the review of a decision at any stage of the proceedings if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shulten and Comcare (Compensation)

Details

AGLC: Shulten and Comcare (Compensation) [2023] AATA 3249
Case: [2023] AATA 3249
Decision Date: 10 October 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Shulten against a decision of the Administrative Appeals Tribunal (AAT) concerning a claim for workers' compensation made against Comcare. Mr. Shulten alleged that he suffered from depression, generalised anxiety disorder, and schizophrenia, with the onset of these conditions dating back to the mid-1980s. The AAT had affirmed a decision that Comcare was not liable for Mr. Shulten's claimed conditions.

The central legal issues before the court were whether the AAT had erred in affirming Comcare's decision, particularly in light of the significant delay between the alleged onset of the psychiatric conditions and the hearing of the matter. The court also considered the implications of the applicant being self-represented and the challenges presented by applicants and witnesses with diagnosed psychiatric illnesses, including the application of section 42B of the *Administrative Appeals Tribunal Act 1975* regarding applications with no reasonable prospects of success.

The court found that the issues raised by Mr. Shulten were essentially a re-litigation of matters previously determined. It acknowledged the significant difficulties and prejudice faced by Comcare due to the prolonged period of time that had elapsed since the alleged onset of the conditions. Consequently, the court affirmed the reviewable decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, this is essentially a re-litigation of issues that have been dealt with previously. The respondent has raised the issues as to the difficulties and prejudice it faces with regards to the very long period of time, which is self-evident. DECISION In the circumstances described above, and in so far as it is necessary, the reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

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