COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal – whether the applicant suffered an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment with the Australian Taxation Office – applicant suffering a major depressive disorder – whether various events which occurred during the applicant’s employment contributed to a material degree to an aggravation of that condition – whether condition and incapacity caused solely by underlying personality traits – appeal allowed.
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
JOACHIM WIEGAND APPLICANT
AND:
COMCARE AUSTRALIA RESPONDENT
JUDGE:
von DOUSSA J
DATE OF ORDER:
5 DECEMBER 2002
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.Appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against the decision of the Administrative Appeals Tribunal dated 28 June 2002 allowed.
2.Decision of the Administrative Appeals Tribunal set aside.
3.Matter remitted to the Administrative Appeals Tribunal for re-hearing according to law.
4.No order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 183 OF 2002
BETWEEN:
JOACHIM WIEGAND APPLICANT
AND:
COMCARE AUSTRALIA RESPONDENT
JUDGE:
von DOUSSA J
DATE:
5 DECEMBER 2002
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
Introduction
This is an appeal brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal (the Tribunal) dated 28 June 2002. Such an appeal to this Court lies only on a question of law.
The Tribunal by its decision affirmed a decision of the respondent (Comcare Australia) dated 22 September 1998 which in turn affirmed a decision dated 10 June 1998 by a delegate of the respondent to deny liability to pay compensation to the applicant (Mr Wiegand) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of a claim for “major depression”. That claim was made by Mr Wiegand on 12 May 1998. He asserted in his claim form that the following events which occurred in the course of his employment with the Australian Taxation Office (ATO) contributed to this condition: namely “Defamation and victimisation in 1990. Ongoing discrimination etc. Lodged various grievances which all ended as white wash. Asked Comcare for help – in vain.”
The applicant was born in Germany on 16 September 1943. He migrated to Australia in about 1984 and in…
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.
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Details
AGLC
Wiegand v Comcare Australia [2002] FCA 1464
Case
[2002] FCA 1464
Decision Date
CaseChat Overview and Summary
In the case of Wiegand v Comcare Australia, the appellant, Mr Wiegand, contested the decision of the Administrative Appeals Tribunal (AAT) which dismissed his appeal regarding the definition of disease under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Federal Court of Australia was tasked with determining whether the AAT erred in its application of the definition of disease to the facts presented in the case. The central issue revolved around whether Mr Wiegand's depressive disorder, which he claimed was aggravated by workplace conditions, qualified as a disease within the statutory definition.
The court found that the AAT had indeed erred in its legal interpretation of the definition of disease. The AAT's decision failed to adequately consider the contributions of workplace factors to Mr Wiegand's illness. The court held that the AAT should have focused on whether the aggravation of Mr Wiegand's ailment was contributed to in a material degree by his employment, rather than solely considering the workplace as a primary focus for his difficulties. The medical evidence suggested that while Mr Wiegand's personality played a significant role in his depressive disorder, workplace issues also contributed to its aggravation.
Consequently, the Federal Court allowed the appeal, set aside the AAT's decision, and remitted the matter back to the AAT for re-hearing in accordance with the law. The court did not make any order regarding costs. This ruling underscores the importance of a comprehensive analysis of both workplace and personal factors when assessing claims under the SRC Act.
Orders
Orders of the court
1. Appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against the decision of the Administrative Appeals Tribunal dated 28 June 2002 allowed.
2. Decision of the Administrative Appeals Tribunal set aside.
3. Matter remitted to the Administrative Appeals Tribunal for re-hearing according to law.
4. No order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
For reasons which follow I consider this complaint should be upheld. I have reached the conclusion that the Tribunal erred in law in applying the definition of disease to the factual material which was led in evidence before the Tribunal, and the decision under appeal must be set aside. In these circumstances it is unnecessary to consider the procedural complaints raised by Mr Wiegand in his notice of appeal. Evidence before the Tribunal The facts, issues and contentions filed by Mr Wiegand, and his oral evidence, canvass many situations and events at the ATO which he claimed had contributed to his medical condition. These include:·When Mr Wiegand commenced employment he was in good health. Bad air, passive smoke, and other fumes in his workplace caused him ill health which led to him being erroneously diagnosed as suffering asthma. ·Poor relationship with a section manager who started spreading untruths about him. Mr Wiegand complained to the Director of the section which led to Mr Wiegand being transferred to the audit section.·In 1988 Mr Wiegand was involved in a motor accident which caused a compound fracture of his leg. Comcare at first denied liability, and later there was disagreement with Comcare over the reimbursement for various expenses.·In 1989 Mr Wiegand applied for a promotion to the ASO4 level. There were two positions to be filled. Two other colleagues were successful. Mr Wiegand considered that his work performance was better than that of those promoted. He discussed the issue with supervisors who showed disinterest. He decided to appeal. The promoted officers raised claims that implied that Mr Wiegand had damaged computer hardware and software and had broken the secrecy provisions of s 16 of the Income Tax Assessment Act 1936 (Cth). He considered this conduct to be very threatening. Mr Wiegand denied these allegations but management took no steps to quash them. He told management that he would request the Australian Federal Police to investigate. He said that the section manager then called a meeting where the allegations were discussed, and he was then given a written statement stating that they were only rumours and nothing more. He said that all this had a bad effect on him and due to his age and being without any qualifications he was concerned as to whether or not he could obtain other employment. He was so concerned about the allegations that he got a solicitor to start legal action for defamation against the two officers who had made defamatory statements.·In early 1992 after the introduction of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) Mr Wiegand became an Occupational Health and Safety (OH&S) representative. He said that he took this position seriously but his commitment to this responsibility led to him being lectured by his superiors on the need to perform his ordinary duties, and not to spend a lot of time on health and occupational issues. He said many complaints were received by him, and passed on, about the bad air and other environmental conditions of the workplace before action was taken by ATO to investigate the complaints and to rectify problems. ·In 1993 Mr Wiegand made an application for a part-time position in lieu of his full-time position. The person responsible for deciding the application said that he would support the application if Mr Wiegand agreed to relinquish union activity and his role as an OH&S representative. Mr Wiegand said that he was told that his application would not otherwise be considered, but he was not told why he should give up these activities. Disputation occurred over whether the occupational, health and safety responsibilities formed part of his work. Mr Wiegand lodged a grievance complaint against the officer concerned whose behaviour he said had caused him to get upset. After the grievance complaint was made, Mr Wiegand was informed that his application would be accepted for part-time work without him being required to give up the other activities. Notwithstanding his request that his grievance be nonetheless considered, this did not happen. He said the failure to follow up his grievance caused him disappointment and upset. [In respect of this complaint, the Tribunal said that it accepted that Mr Wiegand enjoyed his role as an OH&S representative and his keen desire to improve conditions in the workforce but found that the request for him to relinquish the role “no matter how upsetting, does not amount to discrimination”.]·In 1993 the applicant became aware that the same officer against whom he had lodged the grievance complaint was keeping a “secret” file on him. He confronted the officer and requested to see the file. The officer agreed that there was a file which he produced. Mr Wiegand requested a copy of the contents but believes that only some of the papers were given to him. Mr Wiegand challenged the officer’s right to open and start a file. The explanation given to him was that the file was to track his work output.·In 1993 Mr Wiegand was advised by an officer that he had “shortlisted” Mr Wiegand out of consideration for a promotion because the officer was still convinced that Mr Wiegand had broken the secrecy provisions of s 16 of the Income Tax Assessment Act when he was making enquiries about the workload of the two people who had obtained promotion over him in 1989. ·In June 1997 the applicant’s father, then aged seventy-seven, came to Adelaide for a short visit. His father, whom he had not seen for some eight years, was very sick with prostrate cancer. The applicant sought to have a few days off to spend with his father. He said he explained that it could possibly be the last time he would see his father alive. As he was then a part-time employee he felt that he could make up lost working days in the following weeks. He was informed that he could not take time off as there was too much work to do in the department. He said he was accused by his superior of being the worst performing officer and that a lot of people were on leave at the time. Mr Wiegand said he was greatly upset by these events. He lodged a grievance complaint against the officer. The grievance was disallowed. Mr Wiegand was advised that it was proper for management to consider applications for recreation leave based on work demands and personal needs of staff. The investigating officer was satisfied that this happened in relation to his application. Mr Wiegand was informed that the investigation had not produced any evidence of discrimination against him. However, the investigating officer said that he was not satisfied that the necessary open lines of communication either from management to staff or from staff to management were in place to address things such as planning workloads, monitoring results, responding to fluctuations and dealing with workforce planning issues. The investigating officer intended to implement arrangements of that kind. [In relation to this incident, the Tribunal said that it was satisfied that the officer concerned could have been much more sensitive in dealing with Mr Wiegand, and that it appeared that the officer was out to show Mr Wiegand who was “boss”. The Tribunal found that the refusal of the application “would justifiably cause the applicant to be upset”.]·In December 1995 Mr Wiegand attended a meeting with an occupational health adviser and his section manager which followed the refusal of the respondent to pay a doctor’s account. The meeting concerned the reasons why Mr Wiegand had visited the doctor. As the meeting progressed, he felt that it was leading nowhere so he got up to leave the room only to find one of the officers blocking his path. The other officer calmed down the situation and had Mr Wiegand sit down again to discuss the visit to the doctor. On a second occasion Mr Wiegand again got up to leave the room and again his exit was blocked. He became extremely worried and fearful something would happen. He was again told to sit down. He pretended to do so and as the officer blocking his exit moved away from the door, he was able to move quickly through it and out of the room. Mr Wiegand lodged a grievance complaint against the officer who had blocked his exit saying that he felt harassed and that his health had been affected. The grievance was disallowed. [The investigating officer who conducted the grievance investigation found that as Mr Wiegand had attempted to leave the room, an officer had stood so as to appear to block the exit. The investigating officer said:“The meeting room in which the meeting of 6/12/95 took place is such that given the position in which (the officer who blocked the exit) sat, it was inevitable that in standing he would have stood between the door and anybody trying to leave the room. I am satisfied that (the officer) was attempting to convince Mr Wiegand of the need to treat the matter under discussion both seriously and urgently and therefore in standing he prevented Mr Wiegand from leaving. However, I am not convinced that there was ever any threat either implied or otherwise on the part of (the officer). I can see how Mr Wiegand might have interpreted (the officer’s) actions as an attempt to prevent him from leaving the room, and therefore feel harassed, but from the evidence given by (the officers) I do not believe there was ever any intent on the part of (the officer), and that harassment did not occur.” Later, in his recommendations, the investigating officer said that if Mr Wiegand felt harassed then he could certainly not dispute that.] ·In about 1996 Mr Wiegand was the subject of a tax audit in relation to his previous three years tax returns. This led to the disallowance of a number of business related expenses and the raising of a tax debt in the order of $17,500. Mr Wiegand said that it was unusual for an audit of this kind to take place and he believed that he had been chosen not by random action, but specifically by one of the officers against whom he had lodged a grievance.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The above is not a complete list of the situations and events about which the applicant expressed concern in the course of his employment and which he said contributed to his ill health. However, these include the major events canvassed in his evidence. I think it is unnecessary to go into further detail for the purpose of demonstrating the error of law by the Tribunal which I consider occurred. Consideration The events about which Mr Wiegand made complaint were canvassed extensively by the respondent in Mr Wiegand’s cross-examination. Documents relating to the several grievance complaints were placed in evidence by the respondent. However, no other evidence was led by the respondent, save from Professor Goldney on medical issues. Mr Wiegand’s evidence about the happening of the events was not directly challenged, and the Tribunal in its reasons said that it was satisfied on its observations of Mr Wiegand that he was a very sincere man whose credibility was not in issue. I think it must follow from this finding that the happening of the events about which Mr Wiegand made complaint was accepted by the Tribunal. Indeed, the occurrence of the events was to an extent borne out by the exhibits tendered by the respondent. What was put in issue by the respondent was the reasonableness of the interpretations placed on these events by Mr Wiegand, and his perceptions generally about them. As I understand the medical evidence, which the Tribunal accepted, there was no substantial disagreement between the psychiatrists. Mr Wiegand has a major depressive disorder and in addition he has prominent obsessive compulsive personality traits. Professor Goldney thought in addition it is probable that there are paranoid personality traits present. Professor Goldney observed that “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 …”. That opinion appears to be consistent with the views of the other doctors. The psychiatrists appear to be in substantial agreement that all of Mr Wiegand’s difficulties cannot be attributed to his employment, and that the predominant factor in his depressive disorder relates to his basic personality. However, that conclusion does not answer the question whether, within the meaning of the definition of disease in the SRC Act, Mr Wiegand was in January 1998 incapacitated by an aggravation of that ailment that was contributed to in a material degree by his employment with the ATO. Dr Davis, in his report said:“I consider that his chronic depressive disorder is a consequence of an interaction of his personality style and his perception of major problems in the work place. He has repeatedly been in conflict with his employer, and this has given rise to intense frustration, anxiety and depression. Mr Wiegand indicated a number of structural problems in the work place, and made frequent reference to incompetence and inefficiency by management. I am unable to offer an objective appraisal of this, and suggest that an independent review would be necessary to assess the validity of these claims. Nonetheless, I consider that the predominant contributing factor in this depressive disorder relates to his personality style, with a lesser contribution from work place problems.”This opinion treats workplace problems as making a contribution to the depressive disorder which Mr Wiegand was suffering at the time of Dr Davis’ examination and report in June 1998.