Wiegand and Comcare - [2007] AATA 1708

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1708
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700042

GENERAL ADMINISTRATIVE DIVISION )

Re JOACHIM WIEGAND

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Date12 June 2007
PlaceAdelaide

Decision The Tribunal decides that it has no jurisdiction in the present proceedings to consider whether the respondent is liable for compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the applicant’s major depression in respect of a period prior to 1 January 1998.

D G Jarvis
(Signed)
Deputy President

CATCHWORDS
JURISDICTION - compensation - Commonwealth employee - claim for compensation for asserted injury that happened probably in early 1990 - rejection of claim - request for reconsideration of claim for compensation from the beginning of 1998 - reviewable decision addressing that request - no reviewable decision as to entitlement for compensation in respect of period earlier than 1998 - held that the Tribunal has no jurisdiction to consider entitlement to compensation for earlier period.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 62 and 64
Lees v Comcare (1999) 56 ALD 84
Re Laird and Australian Broadcasting Tribunal (AAT 78/122, 10 May 1979)
Re Wiegand and Comcare [2005] AATA 780
COMPENSATION - Commonwealth employee - claim for compensation for asserted injury that happened probably in early 1990 - claim form accompanied by medical certificate that referred to illness having occurred in approximately January 1998 - compensation not payable because medical certificate did not refer to earlier period.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 54
WRITTEN REASONS HANDED DOWN ON
29 AUGUST 2007 FOR ORAL DECISION

12 June 2007   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. The certificate also included the following information: “Stated Date of Injury: approx/1/98 Onset Of Symptoms: approx/1/98”.
2. On 10 June 1998 an officer of Comcare determined that Comcare was not liable to pay compensation under the SRC Act.
3.      By letter dated 23 July 1998, Mr Wiegand requested reconsideration of this determination. In paragraph 2 of his letter, he said:
“As all reports from doctors Coyte, Davis and Long support my position, that the ATO has at least contributed to my condition, I request that Comcare accepts my claim to be compensated for the time from the beginning of this year.”

His letter went on to say that he accepted that “compensation claims for earlier periods will have to be determined later.”
4. Mr Wiegand’s request for reconsideration was determined on 22 September 1998. The primary decision was affirmed. Mr Wiegand subsequently…

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 Wiegand and Comcare

Details

AGLC: Wiegand and Comcare [2007] AATA 1708
Case: [2007] AATA 1708
Decision Date: 12 June 2007

CaseChat Overview and Summary

In this case, Joachim Wiegand, a former employee of the Australian Taxation Office, sought compensation from Comcare under the Safety, Rehabilitation and Compensation Act 1988 for a condition of major depression. Mr Wiegand filed a claim form on 12 May 1998, accompanied by a medical certificate from Dr David Coyte, which stated that the onset of symptoms was approximately January 1998. Comcare initially rejected the claim, a decision that was later affirmed on reconsideration and upon review by the Administrative Appeals Tribunal. The case has since been subject to multiple appeals to the Federal Court, which has twice remitted the matter back to the Tribunal for reconsideration.

The central legal issue before the Tribunal was whether it had jurisdiction to determine Comcare’s liability for compensation in relation to Mr Wiegand's condition prior to 1 January 1998. The Tribunal had previously ruled that it lacked such jurisdiction (Re Wiegand and Comcare [2005] AATA 780 at [8]). This issue was not addressed by the Federal Court in its judgments. The Tribunal found that it did not have jurisdiction to consider the claim for compensation in respect of the period prior to 1 January 1998, as there was no reviewable decision regarding entitlement for compensation for that earlier period. The reasoning was grounded in statutory interpretation, particularly sections 62 and 64 of the SRC Act, and case law such as Lees v Comcare (1999) 56 ALD 84 and Re Laird and Australian Broadcasting Tribunal (AAT 78/122, 10 May 1979).

The Tribunal concluded that it lacked jurisdiction to determine Comcare's liability for compensation for the period prior to 1 January 1998. The decision was influenced by the absence of a reviewable decision concerning entitlement for that earlier period, as well as the statutory provisions and precedents cited. The Tribunal also considered the procedural aspect, noting that Mr Wiegand's request for written reasons was made outside the usual 28-day period stipulated by the Administrative Appeals Tribunal Act 1975, but it deemed it appropriate to provide reasons given the history of the case and Mr Wiegand's unrepresented status.

ORDERS:
The Tribunal decides that it has no jurisdiction in the present proceedings to consider whether the respondent is liable for compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of the applicant’s major depression in respect of a period prior to 1 January 1998.

Orders

Orders of the court

The Tribunal decides that it has no jurisdiction in the present proceedings to consider whether the respondent is liable for compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the applicant’s major depression in respect of a period prior to 1 January 1998.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JOACHIM WIEGAND