Wiegand and Comcare - [2002] AATA 530

DECISION AND REASONS FOR DECISION [2002] AATA 530

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1998/414

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOACHIM WIEGAND
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

Date28 June 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
COMPENSATION – whether various events which occurred during applicant's employment with the respondent caused major depressive disorder – underlying personality traits – consideration of medical evidence.
Safety, Rehabilitation and Compensation Act 1988 ss.4, 14

REASONS FOR DECISION

28 June 2002 Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

This is an application for review of a decision of the respondent dated 22 September 1998 (T26) which affirmed the decision dated 10 June 1998 (T17), which denied liability to pay compensation to the applicant, Mr Joachim Wiegand, under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of a claim for "major depression".
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T26) together with 25 exhibits, ten lodged by the applicant (Exhibits A1-A10) and fifteen by the respondent (Exhibits R1-R15). In addition, the Tribunal heard oral evidence from the applicant and Dr David Trevor Coyte, psychiatrist, also gave evidence on behalf of the applicant. The respondent called Professor Robert D. Goldney, psychiatrist. The applicant represented himself and the respondent was represented by Mr S. Milazzo, of counsel.
issues
The issues for consideration by the Tribunal are:

whether the applicant is currently suffering from an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular whether the applicant's employment materially contributed to the causation, aggravation or acceleration of a major depressive disorder; and
whether the applicant is currently incapacitated, either partially or totally, for work for the purposes of the Act.

applicant's evidence

The applicant, who is aged 58 years, was born in Germany on 16 September 1943. He migrated to Australia in about April 1984, settling in Adelaide. His wife and two children arrived in Australia to join him some four months later. He stated in his evidence that he undertook his education in Germany and that he has not done any formal studies during the time he has been in Australia. He also stated that on his arrival to Australia he had no health problems. He further stated that he was thoroughly examined by medical officers at the Australian Embassy before migrating and was given a "clean bill of health".
Mr Wiegand stated that his first job was in private enterprise followed by a period of unemployment for about a year. He stated that in about April or May 1986 he obtained employment as a clerical officer with the Australian Taxation Office (ATO) and which position he held until ceasing to work there. He also stated that prior to commencement with the ATO he was subjected to medical examination by the Australian Medical Health Services and was also given a "clean bill of health" apart for slight hay-fever.
Mr Wiegand stated that his problems within the ATO started within a short time of his commencing work there. He stated that his work entailed working in different areas including Primary Audit and Income Non-Business. He stated that his problem arose whilst working in the "T&G Building" location situated at the corner of King William and Grenfell Streets, when after a few weeks there he became sick suffering flu-like symptoms.
Mr Wiegand stated that the T&G Building was a very old but refurbished building providing open space which was continuously overcrowded and at that time smoking in the workplace was permitted and there were many heavy smokers there. He said that this was in 1986 and that the air-conditioning was not functioning properly due to the air vents being quite dirty.
After being with the ATO for some three months and being at about the time his probationary period was up he was again examined by the Medical Officer whereat he told the doctor of the working conditions and his flu-like symptoms such as sinus and dry cough. His probation time was extended and he was referred to a specialist who diagnosed him as being asthmatic. In either 1995 or 1996 he underwent proper tests at the Royal Adelaide Hospital and in fact was found not to be asthmatic. He stated that his health got worse forcing him to give up the playing of volleyball socially as well as windsurfing.
As a result of his finding it "bad" to work in the T&G Building and his continual complaining Ms Rosie Price, Occupational Health and Safety Officer organised for his transfer to another location namely the King William Tower building. He described this as comparable to "being in Siberia" and he stated his problems got worse – he was constantly coughing and it was affecting his eyesight.
The applicant stated that in his opinion he did his job well and spoke of his various duties including the issue of replacement cheques to taxpayers due to loss or damage. At the same time he stated that he expressed concern as to how various aspects of ATO policy were being exercised as well as treatment of one of the female officers. As a result of his complaining he stated that his Section Manager commenced to pick on him for various reasons including his eating at his desk. He also stated that he was a hard worker and he stated that he was told not to work so hard. He further stated that unless one was regularly looking out of the window or involved in football discussion such person was then held in "poor light".
Mr Wiegand stated that his medical condition caused him to have sleeping problems and memory lapses and he was advised that this condition was due to the environment he was working in at the T&G Building. When in the King William Tower, which had been refurbished, the new carpet was placed and the walls painted during working hours and there was no proper ventilation. He stated that he complained to Ms Price and alleged she accused him of deliberately inhaling fumes to create problems and said that the paint was water-based. Mr Wiegand stated that he had been told by the painter that the paint was not water-based. He also stated that the windows were opened and he had become sensitive to cigarette smoke and to car fumes. He stated that as a result of his continual complaining he was seen as "public enemy no. 1".
In June 1988 whilst going home from work he was injured in a motor vehicle collision as a result of which he sought damages and costs. He stated that after some time liability was accepted by the other party and this matter was resolved.
In late 1989 the applicant sought promotion to ASO 4 level by applying for two positions but was unsuccessful. The two successful candidates were from the same team. When the promotions were announced people laughed as the view was that those who were successful were undeserving. Notwithstanding this the applicant stated that nobody was prepared to appeal. It was then that he decided to obtain data and appeal the positions. At the same time he stated that he had suggested to his seniors that morally the appointments should be cancelled. As this was not done he decided to appeal. The next thing he heard was a rumour alleging that he had damaged computer software and hardware. He stated that this caused him to fear for his job because any such behaviour would be viewed as a criminal offence.
Mr Wiegand stated that he was told by a team leader, Mr John Tim, that he was wasting his time appealing and that he in fact was unsuccessful on appeal. He then stated that he decided to pursue this through the Federal Court but discontinued such action on legal advice. In addition to this he stated that more rumours about him were in circulation alleging his improper use of computers and that he had tapped into and read files of other officers. The applicant stated that he had not done so and management never pursued the matter. He also stated that he told management that he would request the Australian Federal Police to investigate. He further stated that the Section Manager, Mr Shane Reardon, called a meeting where these rumours were discussed and he was then given a written statement stating that these were only rumours and nothing more. Mr Wiegand stated that all this had a bad effect on him and due to his age and without any qualifications he was concerned as to whether or not he could obtain other employment.
The applicant stated that he raised a substantial number of issues as to working conditions in the T&G Building, then at King William Tower and then again in the T&G Building to which he had returned. The ATO in Adelaide then separated into two locations, namely Pulteney Street and Waymouth Street. He was relocated to Waymouth Street in about 1994 where he remained until he stopped working.
The applicant stated that in early 1992 a Health and Safety Act was introduced and he became the Safety Officer seizing this as an opportunity to do something about improving conditions in the office. He stated that he took this position seriously and was quite conscientious. As a result of this he stated that a director, Mr Dennis Davey, organised with the librarian, Ms Heather Sharkey, to meet with him and lecture him on doing his work and not to spend a lot of time on health and occupational issues. He stated that Ms Sharkey subsequently became another team leader.
The applicant stated that when his term as Health and Occupational Officer was up for re-election, he was re-elected unopposed but his manager attempted to have this cancelled without success. He described the many complaints received as to the working conditions and that one officer working in the T&G Building had died from Legionnaire's Disease. He stated he continually complained about the condition of the air-conditioning until both the ATO and the respondent agreed to have it investigated and did so, rectifying the problem.
The applicant stated that in 1993 he made an application for part-time work in lieu of full-time. The person responsible for deciding, Mr Warwick Gardiner, said that he would support the applicant in his application if he agreed to relinquish union activities and the position of Health and Occupational Officer. The applicant stated that Mr Gardiner told him that his application would not otherwise be considered and was not told why he should give up these activities. He stated that as these activities were not connected to his actual work that Mr Gardiner had discriminated against him. Mr Gardiner felt that too much time was being spent on the duties required of the Health and Occupational Officer.
As a result the applicant stated that he lodged a grievance against Mr Gardiner, whose behaviour had caused him to get upset. He stated that Mr Gardiner told him that he (Gardiner) wanted to talk about it to him (applicant). He further stated that he had two discussions with Mr Gardiner, who repeated the requests for him to give up the positions. The applicant stated that this made him furious and upset him even further. He stated that Mr Gardiner told him to take it up with Mr Raymond Veitch, an officer on a level higher than Mr Gardiner but he never did so as he could not see the point.
As nothing was resolved between the applicant and Mr Gardiner, the applicant stated that personnel then decided to become involved. He stated that this was soon after Christmas 1993 and in about February 1994 he was advised that his application would be accepted for part-time work without his being required to give up the other activities. He further stated that the ATO did not pursue his grievance although he still attempted to have it resolved but was told that no action would be taken. He stated that he felt both disappointed and upset by this. The applicant stated that his duties were reduced from five days a week to three days, remaining in the same area of the ATO and with the same manager.
The applicant stated that he then had cause to lodge another grievance and was informed by an investigating officer that Mr Gardiner was keeping a file on him. He stated that he then confronted Mr Gardiner requesting to see the file and its contents. He further stated that Mr Gardiner agreed that he had "something like that" and took a file out of a cupboard. The applicant stated that Mr Gardiner did not show him the contents of the file and left the room with it and then after a short time returned and handed the applicant some papers saying these were a complete copy of the file. The applicant challenged the right to open and start a file without his being given prior knowledge. He stated that the explanation given him for the file was to keep track of his work output and that he was given this reason in writing by Ms Dianne Mitchell.
The applicant stated that another officer, Mr Michael Grivell, told him that he had breached security by accessing the records of the two successful applicants for the earlier jobs previously referred to herein. The applicant stated that he had discussed this with senior management and had admitted so doing but that he denied any breach. He stated that at no time was any action taken against him for any alleged breach. One of the officers who he then made regular contact with was Ms Heather Sharkey who did not like his insistence on obtaining information or his role as Health and Occupational Officer. The applicant stated that Ms Sharkey had claimed that he had denigrated her by his actions and behaviour, a fact which he denied. He said that she later admitted that the applicant had not made any derogatory remarks about her.
The applicant stated that in June 1997 his father, aged 77 years at the time, came to Australia for a short visit and spent about a week in Adelaide. He stated that his father, whom he had not seen for some eight years, was very sick due with prostate cancer. Because of the shortness of the stay and the father's condition, the applicant stated that he asked Mr Gardiner if he could have a few days off to spend with his father, explaining that it could possibly be the last time he would see his father alive. At that time the applicant was a part-time employee and felt that he could make up the lost working days in the following weeks. The response from Mr Gardiner was that he could not take the time off as there was too much work to do. The applicant also stated that Mr Gardiner had accused him of being the worst performing officer and that a lot of people were on leave at that time. The applicant stated that this caused him to be greatly upset at that time. He stated that he lodged a grievance which was found to be unjustified and he was told that Mr Gardiner was correct in refusing him time off.
Another incident which the applicant referred to was that as a result of his being upset he saw a psychologist, Dr Patrick Flynn, who charged him $130 for the visit. The applicant stated that the respondent refused to reimburse him and he was asked by Mr Grant Dewar, adviser on health and occupational safety at the ATO Waymouth Street office to provide a written report on why he saw Dr Flynn. The applicant stated that because he was not well at the time he advised Mr Dewar that he was not able to provide written reasons. This then led to his meeting with Mr Dewar and Mr Shane Volkes, Section Manager, and much of the discussion centred on the visit to Dr Flynn. The applicant stated that he asked them to put the request in writing. He then stated that the discussion was not leading anywhere and he got up to leave only to find Mr Dewar blocking his path, not enabling him to leave the room. He said that Mr Volkes tried to calm the situation and had him again sit down to discuss the visit to Dr Flynn.
Again the applicant stated the discussions were fruitless and he got up to leave a second time. He stated that Mr Dewar got up and again blocked the door causing him to be extremely worried and fearful something would happen. He also said that Mr Volkes again told him to "sit down" and he pretended to do so and Mr Dewar moved away from the door, enabling the applicant to move quickly out through the door and out of the room. When Mr Volkes returned to the area the applicant said that he asked Mr Volkes to write a short report on what happened in the room. He stated that Mr Volkes declined to do so, saying that he was too busy. He also requested of Mr Dewar written reasons for requesting information as to why he visited Dr Flynn. He stated that Mr Dewar did provide a report in which he said that he had blocked the door on two occasions. The applicant stated that he lodged a grievance against Mr Dewar but this was rejected.
The applicant stated that a further meeting was initiated by Mr Volkes when the applicant and two other work colleagues were present. He further stated that in the course of the discussions Mr Volkes allegedly belittled the applicant in front of the others calling him names and referring to him as "boy". He stated that this incident and others made him feel numb, but that he kept "rolling along". He stated that the pressures at work caused him to be unable to sleep at night, have nightmares, put on considerable weight (from 84 kilograms to 101 kilograms) and his cholesterol level became quite high.
The applicant stated that another major concern to him was the audit undertaken by the ATO of his private tax affairs. He believed that this might have started about 1986 when Mr Peter Caddy, team leader for the Income Non-Business (INB) section asked to have a discussion with the applicant. The applicant stated that Mr Caddy told him that the ATO wanted to do an audit on his tax returns for the previous two years for which returns were lodged. The applicant stated that he told Mr Caddy that he had already been audited and found to be involved as a "share trader" and that this took place in about 1986 being a year after joining the ATO. Notwithstanding the explanation given for a previous audit the applicant stated that he agreed to an audit being undertaken and to cover the last three years. He stated that as he was unable to provide receipts and other relevant information due to his health problems Mr Caddy disallowed any claim for the three years. He further stated that he did not appeal this because his ill health prevented him from conducting an appeal.
The applicant stated that as a result of the audit this alleged debt due to the ATO had grown to $17,500. He further stated that the ATO has made a number of requests for this money comprised of principal and accrued interest and have threatened him with legal action to recover this money. He stated that to date he has made no payments and has challenged to take the matter to Court.
The applicant stated that he saw no reason for the ATO to do an audit on him and that in any case the normal thing was to do an audit on one year. He further stated that it was quite unusual for an audit over a three-year period to take place. He also stated that he had a penalty rate of 50% imposed on him whereas in fact it should have been 25%. He stated that he believed that he had not been chosen by any random action but that he had been specifically handpicked by Mr Volkes. He rejected the suggestion that his tax return came to the attention of an officer in the normal process. He stated that he strongly believed that all of his actions for deduction claims were justified and proper.
The applicant gave a number of other instances where he had a difference of opinion with team leaders and senior management. The Tribunal has attempted to refer to a number of these as well as other incidents described by the applicant but not all of them. Notwithstanding this the Tribunal in arriving at its conclusion has taken into account the evidence as a whole as presented by the applicant.

The applicant also stated that in early 1999 he applied to the ATO for a position as a GST field officer and was of the view that he was ideally suited for this job. He further stated that this job was remote from office management and hence he could function in this position. He stated that this position was being handled by an independent agency, Morgan and Banks. he also stated that he did not inform anybody in the ATO of his application for this position. He stated that he was unsuccessful and was of the belief that the ATO on finding out about his application advised Morgan and Banks to ensure he was not successful.
The applicant stated that he does not sleep well and still continues to suffer with depression as a result of his association with the ATO. He stated that he has seen three psychiatrists, namely Dr David Coyte, Dr Tony Davis and Professor Robert D. Goldney. He further stated overall he was very angry and concerned and that he believed that he had been "set up". As to the incident involving Mr Dewar blocking the door, the applicant stated that he felt threatened by this and that efforts were being made to provoke him.
The applicant stated that the respondent has maintained that he is sick because of his failure to succeed in his job application. He stated that he certainly felt "buggered" by all the difficulties confronting him and he formed the belief that he would never succeed in obtaining promotion.
The applicant stated that after he was absent from work on leave and being due to return on about 2 January 1998 he did not return to work nor did he advise the ATO of his intention not to return to work. He stated that he was not angry but that it had not entered his mind to phone the office and advise of his intention. He stated that he made the decision not to return to work. He further stated that when he was working he would force himself to go to work which he regarded like a prison. He did not look forward to going to work.
As to the debt for which the ATO sought recovery, the applicant stated that he received the first letter of demand in about May 1997. He agreed that he had not lodged an objection to this, stating that he failed to do so as a result of his poor health. He further agreed that he was given an extension until 24 December 1997 to lodge an objection, but stated that he was unable to do so. He stated that the fact that he had not lodged an objection did not worry him nor have any effect on him. He also stated that he was threatened to have his wages garnished. He stated that in fact this did happen and on one occasion the income he received was $50. He felt in January 1998 that as the part-time salary was not much and that if the ATO garnished his wages then there was little reason for him to go to work. He stated that this did not worry him and was furthest away from his mind as for the last four years he had been living on Social Security payments.
dr tony davis, psychiatrist
In his report of 24 June 1998 (T20), Dr Davis, psychiatrist, states that he examined the applicant on two occasions. Dr Davis stated, inter alia, that the applicant did not demonstrate signs of anxiety or depression throughout the two-hour assessment. He could find no impairment of speech, thought, perception or cognition. He stated that the applicant was concerned that he was not fit enough to return to work, and that the applicant could no longer tolerate the work environment.
Dr Davis also in his report considered that the predominant contributing factor in this depressive disorder relates to the applicant's personality style, with a lesser contribution from workplace problems. He further stated that the applicant has demonstrated a propensity for depression, which will remain with the applicant. He stated that if the applicant is exposed to overwhelming stressors, the applicant could again experience an exacerbation of depression. He went on to state that this vulnerability of the applicant relates to constitutional factors rather than any external factors.
professor robert d. goldney, psychiatrist
Professor Goldney is a Professor of Psychiatry at the University of Adelaide and in addition he conducts a private practice, both of general psychiatry and medico-legal assessment in the field of psychiatry. He examined the applicant on 1 May 2001 and 14 May 2001 for the purposes of providing a report dated 15 May 2001 (Exhibit R3).
In his report dated 15 May 2001, Professor Goldney stated (Exhibit R3, pages 11-12):
"Mr. Wiegand gives a history which attributes all his difficulties to the Australian Taxation Office. However, it is evident that other issues have been of considerable importance when one considers his longitudinal life history. He tended to present an idealised view of his family of origin, but quite clearly that is not consistent with the reports of other practitioners. Indeed, at the first interview I did not elicit the information that Mr. Wiegand had been estranged from his mother for so many years and that his mother had had a paranoid disorder, as recorded by Dr Davis (24/6/98). Furthermore, also at the first interview, in response to direct enquiry, Mr. Wiegand denied any family history of nervous disorder. … However, at the second interview Mr Wiegand acknowledged that his mother had had a treatment for a psychiatric condition.
It is also pertinent that Mr Wiegand separated from his wife in the last 1980's and there was ongoing litigation in regard to custody of their children.
Mr. Wiegand has pursued litigation on a number of occasions, including apparently shortly after his arrival in Australia in regard to a German man with whom he attempted to establish a business. He also had a motor cycle accident in which he severely injured his left leg, and he expressed concern about the amount of compensation which he obtained following that accident. Indeed, I understand that he applied for that to be under Comcare, but that that was rejected.
I also understand that Mr. Wiegand has had a number of concerns about the workplace investigated extensively, and to the present time the conclusion from those various investigations and tribunals has been that work has not been a significant or material factor in his psychiatric condition.
Nevertheless, there is no doubt that the workplace has become a primary focus for Mr. Wiegand and he tends to attribute all his difficulties to that. Quite clearly from the psychiatric point of view such an attribution is not tenable, as one would need to factor in other longitudinal life issues such as the family and interpersonal stressors referred to immediately above and in the body of this report.
In addition one must consider whether or not Mr. Wiegand's perception of the workplace is in fact reality based, or whether it is over determined by his basic personality. In regard to that basic personality, there is no doubt that he is a man with very strong views, and the term 'obsessive compulsive' is appropriate, and indeed it is probable that Mr. Wiegand's intense focus borders on the paranoid. However, whether or not his perception is definitely paranoid depends on the reality or otherwise of his claims about the workplace. It is challenging to evaluate such claims as Mr. Wiegand tends to present his complaints in general terms, denigrating the public service as a whole. I regret that I am unable to make any determination on the basis of the information he has provided. Indeed, the information which he refers to appears to have been the subject of quite intensive scrutiny over a number of years, and it would not be prudent to disagree with their conclusions."
As to diagnosis, Professor Goldney stated in his report (Exhibit R3, page 12):
"I consider that Mr. Wiegand has a major depressive disorder and in addition he has prominent obsessive compulsive personality traits. In addition it is probable that there are paranoid personality traits present. Indeed, his description of his thoughts disappearing is consistent with paranoid thinking.
It is pertinent to reflect on the fact that in the correspondence of Dr. LeLeu (2.11.92) there is reference to emotional distress in the late 1980's and, as noted in the body of this report, the history of waking at night with shortness of breath is probably consistent with him having had an episode of depression at that state. Thus one not infrequently is able to elicit such a history when a person has subsequent episodes of depression. Indeed, it may well be that part of his shortness of breath in the late 1980's and early 1990's was related to emotional distress, rather than an organic condition per se. Naturally one is not on firm ground in stating this, but it certainly is a possibility. At the very least, one can note that the history of emotional distress with a sleep disturbance and nocturnal panic is consistent with the subsequent development of a major depressive disorder."
Further in his report, Professor Goldney stated (Exhibit R3, page 13-15):
"Naturally, Mr. Wiegand attributes his condition to the workplace, but the reality of the situation is that there are a number of other significant issues which have occurred in his life and which need to be considered when assessing the cause of his undoubted major depressive disorder. On balance, I consider that it is most unlikely that the workplace has materially contributed to his condition and that it has been Mr. Wiegand's perception of the workplace, due to his longstanding personality traits, which have led to difficulties in the workplace. If in fact there have been significant breaches of reasonable practice within the workplace, then there would be substance to Mr. Wiegand's complaints. However, it is my understanding that his complaints have been investigated extensively and found wanting.
…
I consider that Mr. Wiegand's incapacity is related to his major depressive disorder and obsessive compulsive personality traits which are almost certainly related to longitudinal life issues.
…
Should Mr. Wiegand return to work his condition would undoubtedly deteriorate and this is simply because of his fixed views about the workplace.
…
I consider that Mr. Wiegand could pursue non-Public Service type employment should he wish to do so. I should emphasise that such a comment is made in isolation from the fact that he is aged fifty-seven; he has not worked for several years; and the employment environment is not favourable. Indeed, for practical purposes he is not employable.
…
Mr. Wiegand's condition will persist indefinitely, albeit with fluctuations. However, I consider that he is probably functioning as well as he will ever do so and that any fluctuations would only be in the direction of a worsening of his condition, rather than any improvement. Thus he has a significant psychiatric condition, that of a major depressive disorder, and in addition there are long-standing obsessive-compulsive personality traits, as well as probable paranoid personality traits.
…
The issue of whether or not Mr. Wiegand is entitled to ongoing medical treatment is not my decision. However, I consider that Mr. Wiegand does require ongoing treatment with his present anti-depressant and with the continuing supportive consultations of his psychiatrist, Dr. Coyte. In addition, I consider that it would be prudent to add a major tranquilliser/anti-psychotic medication to dampen down the intensity of some of his ideation. Such medication may also assist in regard to his perception of his thoughts occasionally disappearing. I consider that Mr. Wiegand will require treatment indefinitely. The benefits of treatment are that the intensity of his thinking will lessen."
Professor Goldney stated in oral evidence before the Tribunal that he still adhered to his diagnosis of the applicant's condition as found in his reports, with only one modification – that, after perusing all of the documents, he was confident that the applicant had paranoid personality traits of far greater significance than he had previously thought. It was his view that the applicant would always have problems with authority figures and that difficulties would be inevitable in any workplace where there was supervision.
Professor Goldney gave the opinion that any structured workplace like the ATO would ordinarily be good for a person like the applicant with obsessional and paranoid personality traits because of the clear rules and regulations and its well-structured environment. However, where a person like the applicant perceives people not obeying the rules, he or she would have problems. Any problems would become "mountains out of molehills".
Professor Goldney referred to the applicant's track record of problems with his personal relationships, for example, his falling out with his mother, whom he has not seen since 1986; litigation involving a partnership; problems with work peers; and problems with people in authority. Professor Goldney gave the opinion that this suggested that the applicant would have difficulties no matter what workplace he was in. Professor Goldney emphasised in his evidence that in his opinion the issues in the ATO were of far lesser significance to the applicant than the break-up of his marriage and the difficulties with his mother. The workplace had minimal impact in terms of the applicant's overall functioning.
During cross-examination, Professor Goldney stated that he is quite experienced at writing psychiatric reports and does approximately three per week. He approximated that 25% of these reports relate to applicants or plaintiffs and 75% relate to others.
During cross-examination, when asked to explain why he found it challenging to obtain a history from the applicant, Professor Goldney stated that he found it difficult to pin down the specific issues of concern to the applicant in the workplace. He stated that the applicant spoke about being the wrong environment; that public servants did as little as possible; of defamation, slander and denial of promotion. Professor Goldney stated that it was difficult to keep the applicant on track and the applicant had noted that he had had some difficulties with his thoughts disappearing. Professor Goldney further stated that the applicant's discursive way of talking and his difficulty in following the applicant's line of thought indicated to him that the applicant's thinking style was not as cohesive as it should be.
Professor Goldney agreed during cross-examination that at the beginning of the interview, he continuously interrupted the applicant and asked how he felt. Professor Goldney accepted that the applicant felt that he did not really have an opportunity to expand on an issue.
Professor Goldney stated during cross-examination that he was able to form conclusions and prepare a report after a one-hour examination even though the applicant's situation covered some 15 years by limiting the applicant's discursive talking. Professor Goldney stated that psychiatric interviews are always difficult, rigorous and there is always a need to cover a lot of ground in a short period of time. Professor Goldney stated that in his experience of assessing people, it can be very challenging to work out what the difficulties are and that sometimes if he has a bad day it is his fault, other times it is the patient. Professor Goldney stated that he very much doubted that the substance of his opinions would change after 20 hours of interview, as it is his expertise to work things out in a few minutes.
During cross-examination, Professor Goldney agreed that the applicant was reluctant to talk about his feelings. In his opinion, this was due to the fact that the applicant did not want to share them as he was paranoid. Professor Goldney accepted as a possible explanation that if the applicant were pressured to talk about his feelings he would fall apart. He stated that putting aside thoughts about feelings would constitute an "ego defence to the disintegration of his personality".
It was put to Professor Goldney that if the events at the workplace actually happened to the applicant and the applicant's life "went down the toilet" then that would explain the applicant's reluctance to talk about it. Professor Goldney replied that this was one explanation but it remained his opinion that no sensible incidents at work led to the applicant's problems and that the applicant had stated that his problems were there right from the beginning at the ATO.
Professor Goldney could not accept a dichotomy between the applicant's physical and mental problems. He stated that the two are intimately connected. He referred to a 1989 report of a Dr Heddle which stated that there was an absence of organic findings and that the applicant's physical symptoms were likely to be caused by the applicant's emotional distress at the time. Professor Goldney stated that Dr Heddle's report supports a plausible view of the applicant's problems. Professor Goldney stated that often people with depressive disorder experience similar physical symptoms. Professor Goldney stated that he had not ignored the report of Dr LeLeu as to the applicant's physical symptoms.
Professor Goldney stated during cross-examination that he did not refer to Dr Coyte's opinion of the applicant because he was not asked to agree or disagree with this opinion. Professor Goldney stated that he believed that his view was congruent with that of Dr Coyte and that if he had disagreed with Dr Coyte he would have mentioned it.
Professor Goldney stated that it was his opinion that the applicant's psychiatric problems are a result of an inability to comply with people in authority and if the applicant sees something wrong it upsets him. Professor Goldney stated that the very fact that one has difficulties obtaining information from a patient could be a pointer to a particular diagnosis. Professor Goldney stated that the applicant probably did not have schizophrenia but the strength of his paranoid feelings did come through.
Professor Goldney stated during cross-examination that the applicant mentioned various incidents at the ATO and did talk about his individual grievances, including his lack of promotion in late 1989, rumours about him damaging computer hardware and software, being stonewalled on OH&S issues, allegations of divulging section 16 information, trying to sue two colleagues for defamation and fearing he had been set up to be accused of aggression. When asked by the Tribunal whether one of these events could upset a person, Professor Goldney stated that the information he received was that due process happened in relation to these incidents, investigations were undertaken and the applicant's version of events was found wanting. Professor Goldney stated that a person would be upset, but it was up to him to ask if their perception of events is accurate. Professor Goldney stated that he accepted that these issues distressed the applicant, but gave the opinion that the applicant's other issues, involving his wife and mother, were far more likely to have been more important.
Professor Goldney stated that the phrase "paranoid personality traits" meant that a person perceived injustice in many situations and had a certain rigidity in relating to others. He agreed that it was a crucial in paranoid thinking for there to be no fact to what the person believed. Paranoid personality disorder is not actually a psychiatric illness but it is usually compounded by depression. Professor Goldney referred to the applicant's style of relating and difficulty thinking, for example, the applicant went on about defamation, slander and denial of promotion; he thought the amount of compensation he received before "stinks"; he displayed rigidity of behaviour in not seeing his mother for years; he was contradictory, for example, he said no psychiatric illness in family but later acknowledged his mother had been in Glenside; his memory was fallible; he was very pedantic about what others said.

When it was put to Professor Goldney that the applicant on admission to the ATO had a clean bill of health, Professor Goldney gave the opinion that certain problems can be glossed over on an intake medical examination.
dr david coyte, psychiatrist
Dr Coyte is the applicant's treating psychiatrist and has been seeing the applicant since February 1998, about once every two weeks. He has prepared three reports in relation to this matter, dated 10 June 1998 (T19), 6 March 2000 (Exhibit R4) and 22 November 2000 (Exhibit R5).
In his first report dated 10 June 1998 (T19), Dr Coyte stated inter alia:
"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.
…
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.
…
I therefore cannot see Mr. Wiegand being able to return to work at the A.T.O. and believe that working in any large organisation will inevitably lead to problems of a major degree. It may be possible to give him work which he could perform from home (e.g. on a computer) if contact with authority figures were minimised but I have not specifically raised this with him."
In his report dated 6 March 2000, Dr Coyte stated inter alia:
"2.The diagnosis remains that of Major Depression. At times (with treatment), he only exhibits some of the features of this condition but on each occasion that he ceases medication, the full syndrome develops. It remains the case that the nature of Mr. Wiegand's depression is coloured by his personality, which is characterised by prominent obsessive-compulsive traits.
3.1As stated above, Mr. Wiegand's depression has come about because of the impact of the perceived injustices and imperfections of the workplace upon a man with highly principled, rigid rules and a strong sense of justice needing to be done. (These personality traits are referred to as obsessive-compulsive in the above paragraph).
…
3.In my opinion, Mr. Wiegand remains unable to return to his original work in the ATO. I would expect that any attempt to return to working within the same workplace structure or with similar personnel would similarly incapacitate him. However, Mr Wiegand possesses a number of personal attributes and strengths that would be of great advantage in some work settings. Ideally, work that was clearly delineated, involved intellectual challenge and allowed a high degree of independence would best suit his personality and minimise the risk of recurrent Major Depression."
In his report dated 22 November 2000 (Exhibit R5) Dr Coyte stated inter alia:
"Mr. Wiegand gave a history and showed signs of having had a depressive disorder for at least two years prior to my first contact with him. His symptoms had worsened over the few months prior to the first consultation however and at that time, were severe enough to be given a diagnosis of Major Depression.
Mr. Wiegand also gave a history of a long tendency toward being preoccupied with injustices and imperfections and the correction of these. He thus could be described as a man who lives by highly principled rules, which are fairly rigidly held in spite of the difficulties produced by doing so. This would be diagnosed as a personality with prominent obsessive-compulsive traits.
It was the impact of perceived incompetencies, 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.
With specific treatment over time, (antidepressant medication, psychotherapy and removal from the environmental stressor), Mr. Wiegand's mood has improved considerably. However, lowering his antidepressant dose results in relapse and I would expect that a return to the same work environment would do likewise."
In his oral evidence before the Tribunal, Dr Coyte stated that to his mind, the crux of the matter rests upon whether the applicant's pre-existing personality predisposed him to major depression in his particular workplace or whether it would have happened anyway. Dr Coyte stated that his conclusion was that the applicant has a personality which consists of sticking by the rules and is very justice and rights orientated, but it was his work environment that triggered his depression. This conclusion was based upon the longitudinal history and the nature of the applicant's presentation.
Dr Coyte stated that paranoia is a very loosely used term. Dr Coyte explained that paranoid personality disorder traits are that a person tends to jump to conclusions not based on enough information. Paranoia is when if you present a person with information and they still do not believe it. Dr Coyte stated that one could argue that the applicant had paranoid personality traits but on knowing the applicant for a long time, it was his opinion that the applicant was not paranoid because there were no problems with the applicant if things were explained to him in a clear, truthful way. Dr Coyte told the Tribunal that in his interviews with the applicant, the applicant wanted things quite clear and if the applicant had any sense that Dr Coyte had made the wrong judgment, then as long as Dr Coyte heard him out and acknowledged him then it was okay. On the other hand, Dr Coyte had no doubt about the applicant's obsessive-compulsive traits.
Dr Coyte gave the opinion that if someone like the applicant was keen on a sense of justice and things being done correctly and these standards were not met but were addressed, then that would be fine. However, if despite repeated efforts to get to the truth, he felt he was blocked again and again, this could result in depression. Dr Coyte stated that in his opinion, backed up by the applicant's history, the applicant had a pre-disposition to depression but he was not depressed all his life – his suffering was triggered by events in the workplace.
During cross-examination, it was put to Dr Coyte that the applicant was involved in a business partnership prior to working for the ATO, there was a problem with treating employees as subcontractors, the product was inferior and after six weeks the partnership failed and this resulted in litigation. Dr Coyte agreed that this had come up in sessions as part of the history-taking process.
Dr Coyte stated that in our culture, people with obsessive-compulsive traits are highly rewarded, for example, solicitors, doctors, and auditors. However, if one possesses obsessive-compulsive traits and is not in the correct work environment, one often becomes immobilised and unable to complete things. When asked during cross-examination if he could conceive of a work structure which would not frustrate the applicant, Dr Coyte suggested the applicant working for himself, in a solitary setting to produce a high quality product, for example, as a winemaker; or if the people working with him had similar traits, for example, solicitors.
When asked during cross-examination whether he had proceeded on the basis that what the applicant told him was accurate, Dr Coyte stated that he relied upon his assessment of the applicant's judgment based upon how the applicant behaved with him. Dr Coyte stated that his opinion of the applicant was also based upon the applicant's description of what he was like before joining the ATO, however, he admitted that he did not know enough about ATO processes. Dr Coyte stated that he did not take everything at face value and that subtle personality traits are very difficult to know after only one interview.
When asked by the Tribunal whether in all the times he had seen the applicant, he had found the applicant to be erratic in the giving of his history, Dr Coyte stated that it was actually the opposite. Dr Coyte stated that he had to word his questions specifically and would get a specific answer in reply, but he would not read into that that the applicant was hiding something. He stated: "Obsessional people are so particular about getting every word right".
When told by the Tribunal that repeatedly in his evidence, the applicant would describe a grievance and the Tribunal would ask him how he felt about it, the applicant would not respond and said only "I was numb", Dr Coyte commented that this was explained by the nature of the applicant's attention to detail. Dr Coyte stated that obsessive-compulsive people pay attention to "things" and pay little attention to feelings, which are too powerful and too nebulous for them.
When asked during cross-examination whether it was realistic to expect an employer to be able to instruct the applicant without encountering conflict, given that one had to ask the applicant specific questions and that the applicant was so rigid in the way he saw things, Dr Coyte commented that an employer would have to be more particular about getting things right and if instructions were vague, an employer could expect the applicant to come back for clarification.
When asked whether the applicant had difficulty with authority, Dr Coyte stated that there was some evidence of difficulties with authority in the early part of the applicant's life, for example, during his schooling and early university life. Dr Coyte came to the conclusion that such conflict came about because of the applicant's efforts to arrive at the truth, "wanting to argue to get to the particular".
When it was put to Dr Coyte during cross-examination that all was well if the applicant was always right, but what if the applicant was not right and could not convince the other person that he was right, Dr Coyte commented: "We disagree about many things. I bring up my point of view and why it is the correct position and we discuss it. It is about attention to detail and getting it right, not 'being' right".
When asked during cross-examination whether he could identify anything the ATO could have done to prevent the applicant having continuing problems, Dr Coyte stated the he did not have the expertise to answer this question and therefore could not draw many conclusions.
discussion and findings
The original decision determined that there was no liability by the respondent to pay compensation to the applicant under section 14 of the Act. Mr Milazzo in his submissions conceded that the prerequisites for such liability are made out by the applicant except for one thing, namely, whether or not the applicant has been injured in the course of his employment. The respondent has conceded that the applicant has suffered incapacity for some period of time. However, whether or not the incapacity is ongoing is not an issue for this Tribunal to consider.
The definition of "injury" as set out in section 4 of the Act raises two issues, whether the applicant suffers from a disease and whether the exclusion provision has any operation. Under the Act, injury does not include a disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against an employee or the failure by the employee to obtain a promotion, transfer or benefit in connection with his employment.
There is no doubt on the full and comprehensive evidence of the applicant that he raised a number of grievances stemming from different aspects of his employment, including the failure to obtain promotion. In determining whether or not the applicant suffers from a disease the respondent made the concession that at least at the time the applicant ceased work he was incapacitated by a psychiatric condition. It is certainly apparent on the medical evidence that the applicant had symptoms that effectively prevented him from working for a period of time. In conceding that the applicant had the condition the respondent does not concede, however, that it is work-related.
The Tribunal in reaching its conclusion has taken into account the evidence as a whole as presented by the applicant. The Tribunal is satisfied and so finds on the medical evidence before it that the applicant has a depressive disorder. However, before elaborating on the medical evidence the Tribunal turns to consider many of the factors referred to by the applicant whilst employed by the respondent.
The applicant in his evidence referred a number of times to the conditions in the ATO such as:

smoking in the workplace and his sensitivity to cigarette smoke;
the airconditioning in the T&G Building and the effect it had on him such as coughing and sore eyes; and
the smell of paint, new carpet and no proper ventilation in the King William Tower.

In addition the applicant also referred to other issues which caused him concern. These include:

the exercising of ATO policy;
treatment of a female ATO officer;
various grievances;
being picked upon because of continual complaining;
an alleged secret file on him;
accessing records of other ATO personnel;
his role of Health and Occupational Officer;
the amount of time spent in performance of duties of Health and Occupational Officer;
the events leading to his being able to reduce employment from full-time to part-time, leading him to believe that he was discriminated against; and
his seeking of time off for his father's visit to Australia.

In so far as the visit to Australia by the applicant's father and the manner in which this was handled, the Tribunal is satisfied that the officer, Mr Gardiner, could have been much more sensitive. The Tribunal in saying this accepts that Mr Gardiner had the power to refuse the applicant's request and obviously did so. However, in light of all that had transpired between him and the applicant it would appear that he was out to show the applicant who was "boss" and not give sensitive consideration to that request for time off for the applicant to spend a few days with his father. The Tribunal is satisfied and accepts that such refusal would justifiably cause the applicant to be upset. However, given his condition at the time the Tribunal is unable to determine that such refusal and his subsequent being upset by it can be such to be accepted as a factor in his depressive state.
As to the factor of reducing his employment from full-time to part-time, the only logical explanation that can be given to the demand that for this to be considered favourably he needed to first give up the role of Health and Occupational Officer was that he was spending too much time in this role to the detriment of his work. It would appear that if the applicant were allowed to continue in this role whilst employed on a part-time basis then very little would be done as to his ATO duties. The applicant felt that by making this demand on him that he had been discriminated against and caused him to be furious and upset. The Tribunal accepts that the applicant enjoyed his role as Health and Occupational Officer and his keen desire to improve conditions in the workforce for his colleagues but finds that the request for him to relinquish the role of Health and Occupational Officer, no matter how upsetting, does not amount to discrimination. It further finds that it cannot be classed as having a causal connection with his condition.
In so far as other factors are concerned the Tribunal is satisfied that much of the cause of the applicant's condition was due to his personality. Dr Davis, who saw the applicant on two occasions, stated that he considered that the predominant contributing factor in this depressive disorder relates to the applicant's personality style, with a lesser contribution from the workplace problems. He felt that any exposure by the applicant to overwhelming stressors would cause an exacerbation of depression. He also was of the view that the applicant demonstrated a propensity for depression which condition will remain with the applicant. Dr Davis was further of the view that this vulnerability of the applicant relates to constitutional factors rather than external factors.
Dr Coyte has seen the applicant on many occasions. In diagnosing the applicant as suffering with major depression he stated that the nature of the applicant's depression is coloured by his personality, which is characterised by prominent obsessive-compulsive traits. He further was of the view that the applicant's depression has come about because of the impact of the "perceived" (Tribunal emphasis) injustices and imperfections of the workplace upon a man he described as highly principled, with rigid rules and a strong sense of justice. Dr Coyte described these personality traits as obsessive-compulsive. Dr Coyte stated that it was the impact of "perceived" incompetencies, errors and injustices in the applicant's workplace upon his pre-existing personality, which caused him increasing frustration and worry. Dr Coyte was of the view that it was the applicant's work environment that triggered his depression and that such conclusion was based upon the longitudinal history and the nature of the applicant's presentation.
In his opinion Dr Coyte was satisfied that the applicant could not be described as being paranoid but that the applicant had a pre-disposition to depression. He was of the view that the applicant had not been depressed all his life and that such condition was triggered by events in the workplace. Dr Coyte further stated that in describing the applicant as having obsessive-compulsive traits that people with such complaints pay attention to "things" and pay little attention to feelings, which are too powerful and too nebulous for them.
Professor Goldney stated that apart from the difficulties experienced by the applicant at the ATO, other issues are also evident and have been of considerable importance when considering the applicant's longitudinal life history. He states that the workplace has become a primary focus for the applicant and that the applicant tends to attribute all difficulties to that. He also stated the need to consider whether or not the applicant's "perception" of the workplace is in fact reality-based, or whether it is over determined by his basic personality. He described the applicant as a man with very strong views and agreed that the term "obsessive-compulsive" was appropriate. In fact he was of the view that this intense focus by the applicant borders on the paranoid. He considered the applicant to suffer with a major depressive disorder and in addition has prominent obsessive-compulsive personality traits. He also stated that a paranoid personality disorder is not actually a psychiatric illness but is usually compounded by depression.
Whilst he would not comment as to whether or not the applicant is entitled to ongoing medical treatment, Professor Goldney did consider that the applicant required ongoing treatment with the present anti-depressant and to continue receiving support from his psychiatrist, Dr Coyte.
Whilst Professor Goldney realised that the applicant attributed his condition to the workplace, Professor Goldney concluded that there are a number of other significant issues which have occurred in the applicant's life and which needed to be considered when assessing the cause of his major depressive disorder. He considered it most unlikely that the workplace has materially contributed to the applicant's condition and that it has been the applicant's perception of the workplace, due to his longstanding personality traits, which led to difficulties in the workplace.

Professor Goldney, as previously stated, was satisfied that the applicant has a significant psychiatric condition, namely that of a major depressive disorder in addition to long-standing obsessive-compulsive personality traits, as well as probable paranoid personality traits. He believed that the applicant would always have problems with authority figures and that difficulties would be inevitable in any workplace where there was supervision. On this point the Tribunal makes the observation that in his evidence the applicant when explaining his application for the GST Field Officer position stated that he felt this job, being one remote from management in an office setting, would be ideal and he felt he could function in this position. This would tend to support Professor Goldney's view that the applicant's psychiatric problems are the result of an inability to comply with people in authority, hence if seeing something wrong gets upset.
Dr Coyte acknowledged that the applicant had particular personality traits which were in existence well before the applicant's employment at the ATO, namely, obsessive-compulsive personality traits. It was his opinion that the applicant's depression or major depressive disorder was caused by his employment at the ATO. However, when asked during cross-examination whether he could identify anything the ATO could have done to prevent the applicant having continuing problems he stated that he did not have the expertise to answer the question. By contrast, Professor Goldney and Dr Davis were of the opinion that the applicant was likely to have developed depression no matter what work environment he was in.
The Tribunal is satisfied on its observations of the applicant that he was a very sincere man whose credibility was not in issue. He represented himself at the Tribunal, and whilst without legal skills, presented commendably. However, the Tribunal in arriving at its conclusion not only takes into account the factual evidence as a whole as presented by both the applicant and the respondent but also the medical evidence and submissions.
The Tribunal on the evidence before it is satisfied and finds that the applicant has a major depressive disorder and that in addition has prominent obsessive-compulsive personality traits which are related to longitudinal life issues and that whilst upset in the work environment such was not the cause of his unfortunate condition. The Tribunal is further satisfied that the applicant is vulnerable to stressors resulting in his depression being exacerbated but that such is the result of constitutional factors rather than any external factors. As a result of his condition the Tribunal is satisfied that he is unable for the present to return to his original work in the ATO.
The Tribunal in considering the work environment in the ATO and the evidence before it finds that the applicant's condition cannot materially be attributed to his work at the ATO.
Accordingly, the Tribunal, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.

I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B. Linn, Member.
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  25 February 2002 – 28 February 2002
Date of Decision  28 June 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr S. Milazzo
Solicitor for the Respondent    Sparke Helmore