Wiegand and Comcare
[2007] AATA 1708
•12 June 2007
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 applied to this Tribunal for review of the decision on reconsideration.
5. It is not necessary for the purpose of these reasons to deal with the subsequent history of the proceedings, other than to say that Mr Wiegand has successfully appealed to the Federal Court against two decisions of this Tribunal in which the Tribunal affirmed the decision under review for different reasons. The proceedings have not yet been reheard following the second remittal from the Federal Court.
Issue Before the Tribunal
6. An issue arose on the hearing of the first remittal as to this Tribunal’s jurisdiction to determine whether the respondent is liable for compensation for Mr Wiegand’s condition of major depression in respect of a period prior to 1 January 1998. The Tribunal decided that it did not have jurisdiction to determine that issue (Re Wiegand and Comcare [2005] AATA 780 at [8]). That issue was not considered by the Federal Court on the hearing of Mr Wiegand’s appeal, and there is no indication in the Court’s judgment that the issue was raised on appeal.
7. The same issue has again been raised in connection with the further hearing of Mr Wiegand’s claim pursuant to the second remittal to this Tribunal. In an oral decision, I decided that this Tribunal does not have jurisdiction in the present proceedings to determine the claim for compensation in respect of the earlier period. Mr Wiegand recently requested written reasons for my decision, and in view of the history of this matter, and because Mr Wiegand is unrepresented, I thought it appropriate to provide written reasons, notwithstanding that his request was not made within the period of 28 days referred to in s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).
Legislation
8. Under s 14 of the SRC Act, subject to Part II of the Act, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. The word “injury” is defined in s 4(1) of the Act in terms that include a disease such as major depression if that condition was contributed to in a material degree by the employee’s employment by the Commonwealth.
9. Under s 54(1) of the SRC Act, compensation is not payable to a person unless a claim for compensation is made by or on behalf of the person under that section. Under s 54(2), a claim is made by giving the relevant authority a written claim and (subject to exceptions not relevant in this matter) a certificate by a legally qualified medical practitioner, in accordance in each case with forms approved by Comcare.
10. Under s 62 of the SRC Act, a claimant for compensation may request Comcare to reconsider a determination made by it, and Comcare is required to reconsider the determination. The person who reconsiders a determination may affirm, revoke or vary the determination in such manner as he or she thinks fit. The decision on reconsideration is a reviewable decision that may be reviewed by this Tribunal under s 64 of the SRC Act.
11. This Tribunal has no inherent jurisdiction to review administrative decisions made by the Commonwealth or its agencies; the Tribunal’s jurisdiction only arises if another enactment specifically confers jurisdiction on it (Re Laird and Australian Broadcasting Tribunal (AAT 78/122, 10 May 1979)).
Consideration
12. I have referred in paragraph 1 above to the claim form and to the medical certificate attached to it. In the claim form, Mr Wiegand also asserted that he was suffering major depression. In answer to a question in the form as to when the injury happened or when he noticed the illness, he said “cannot determine probably early 1990”. Later in the claim form, in response to a request to describe in detail what events contributed to the injury or illness, Mr Wiegand said “defamation & victimisation in 1990. ongoing discrimination etc. …”.
13. In addressing the issue of jurisdiction to which I referred in paragraph 6 above, Mr Wiegand contended that his claim form clearly indicated that his illness developed from probably early 1990, and that it was clear that he attributed this to events that had happened in 1990 and onwards. As I understood his position, counsel for Comcare, Mr Cole, conceded these matters. However, he submitted that the Tribunal did not have jurisdiction to determine Comcare’s liability for the claim for compensation for Mr Wiegand’s illness in respect of a period prior to January 1998 because there has been no reviewable decision in respect of that claim.
The absence of a reviewable decision
14. In Lees v Comcare (1999) 56 ALD 84 a Full Court of the Federal Court decided that this Tribunal had no jurisdiction to consider a claim for entitlement to compensation for permanent impairment on hearing an application for review of a decision by Comcare that the employee was not entitled to payment for taxi fares to the rooms of her treating specialist. In the course of its judgment, the Court examined the provisions in the SRC Act relating to the making of decisions and the reconsideration of such decisions, and the jurisdiction of this Tribunal to review the reviewable decisions that emanate from such reconsiderations. The Court said at [39]:
“In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”
15. In the present proceedings, a determination of Comcare’s liability for a depressive illness that occurred in approximately 1990 (or at any time earlier than 1998) would entail considering medical evidence relating to Mr Wiegand’s condition as at the relevant date, and the connection between that condition and Mr Wiegand’s employment, including the question of whether the condition was the result of one or more of the excepted events referred to in the proviso to the definition of “injury” in s 4(1) of the SRC Act. These matters would entail considering all available medical evidence, and also evidence as to employment related events (including Mr Wiegand’s perception of those events) in the period prior to the date when Mr Wiegand said that he noticed his illness, namely probably early 1990, or any other relevant date earlier than 1998.
16. However, these matters were not considered by the primary decision-maker or by the review officer who made the decision on reconsideration. In accordance with the Court’s decision in Lees v Comcare, I therefore conclude that this Tribunal has no jurisdiction to determine Comcare’s liability in respect of the period earlier than 1 January 1998.
The relevance of the medical certificate
17. As mentioned above, the claim form was accompanied by a medical certificate that related to the period from approximately January 1998 onwards, but there was no medical certificate to the effect that the illness commenced from earlier than then. This is not therefore a case where Comcare refused to make a decision on a matter that was the subject of a claim for compensation, (in which case, that refusal would constitute a “decision” within the meaning of s 3(3) of the AAT Act, which meaning is imported into the SRC Act by the definition of “decision” in s 60(1) of the SRC Act). On the contrary, as mentioned in paragraph 3 above, Mr Wiegand only requested a review of the decision as to Comcare’s liability for the period from early 1998 onwards.
18. Furthermore, the fact that the claim form was not accompanied by a medical certificate that referred to the earlier period commencing in early 1990 means that the claim for compensation has not been made in accordance with s 54(2) of the SRC Act, if the claim form is being relied upon to support a claim for compensation in respect of that earlier period. As a result, by virtue of s 54(1), compensation is not payable under the SRC Act.
19. However, s 54(3) contemplates that the relevant medical certificate can be provided later, and that the claim for compensation is then taken to have been made. I also note that under s 54(5), strict compliance with an approved form is not required, and substantial compliance is sufficient. At the hearing as to jurisdiction the parties adverted to the possibility of Mr Wiegand now providing a letter to Comcare formally advising of his claim in respect of the earlier period, and asking Comcare to consider that claim. It may be that if Mr Wiegand provides a letter to that effect to its solicitors, Comcare will accept for the purpose of the present proceedings that some other medical information has been provided to Comcare that would cure any apparent deficiency in Mr Wiegand’s claim for compensation in respect of the earlier period. I record that Mr Cole said that he had no instructions to make any concession as to such matters, and that Comcare would consider its position if and when Mr Wiegand provided a letter advising his intentions with respect to his claim for the earlier period.
If a claim for compensation for the earlier period is pursued, could it be consolidated with or heard at the same time as the present proceedings?
20. I also record that there was a suggestion at the hearing on jurisdiction that it would be convenient for liability for the earlier period to be determined in the present remitted proceedings, as this may avoid a future separate hearing which would be likely to involve evidence from the same witnesses, as well as similar factual and medical issues. On the other hand, other potentially complex issues would be raised by a claim for compensation in respect of the earlier period, and this may make the pending remitted hearing more protracted.
21. It seems to me that to enable the Tribunal to deal with a claim for the earlier period, it would not be necessary for Mr Wiegand to lodge a new claim form, because the claim form already lodged refers to his having contracted his illness in approximately 1990, and refers to events from then onwards. I understood that following the hearing on jurisdiction, Mr Wiegand was to consider his position following my ruling on jurisdiction, and if he decided to pursue his claim for compensation in respect of the earlier period, he was to advise Comcare accordingly, indicating what entitlements to compensation he was claiming. If Mr Wiegand were to adopt that course, it would I think be necessary for him to contend that some medical report or other medical evidence in the possession of Comcare satisfies his obligation under s 54(2)(b) of the SRC Act to provide a medical certificate. If he is unable to do this so as to satisfy the concept of substantial compliance referred to in s 54(5) of the SRC Act, then it would appear that Mr Wiegand should lodge a fresh medical certificate in support of his claim for compensation in respect of the earlier period.
22. If these matters are resolved, it would then be necessary for Comcare to make a primary determination as to its liability in respect of the earlier period, and as to any claim Mr Wiegand may make for entitlement to specific heads of compensation (for example, medical expenses or incapacity payments) in respect of the earlier period. If Comcare rejects any such claim by Mr Wiegand for compensation for the earlier period, Mr Wiegand could request reconsideration of that determination pursuant to s 62(3) of the SRC Act. If the determination on reconsideration is also unfavourable, Mr Wiegand could then apply to this Tribunal for review of the decision on reconsideration. Either he or Comcare could then apply for that application to be consolidated with or heard at the same time as the present proceedings, so that all issues would then be dealt with on the hearing of the present proceedings. The Tribunal would of course have a discretion as to whether or not to grant that application, having regard to all relevant considerations.
23. Whether Mr Wiegand pursues the course of action outlined above is a matter for him to decide. I think that it would be appropriate for him to make a prompt decision as to how he intends to proceed, since it may not be appropriate to progress the remitted proceedings until the Tribunal is advised of his intentions.
Decision
24. 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.
I certify that the 24 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 12 June 2007
Date of Decision 12 June 2007
Counsel for the Applicant In Person
Solicitor for the Applicant -
Counsel for the Respondent Mr S Cole
Solicitors for the Respondent Sparke Helmore
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