Rodriguez v Telstra Corporation Limited

REASONS FOR JUDGMENT 1 On 14 October 1999 Spender J made orders in three appeals brought by the applicant from decisions of the Administrative Appeals Tribunal concerning his entitlement to workers' compensation. Two of the decisions concerned a condition relating to the applicant's neck which was said to have arisen out of an incident in which he was involved in the course of his employment. The Tribunal found that the applicant had suffered a naturally occurring degenerative condition and rejected those claims for compensation. The third involved a claim for a major depressive disorder. His Honour ordered that the decision rejecting this claim be set aside and the matter remitted to the Tribunal for further consideration

the tribunal decision 2 The Tribunal considered the matter afresh and on 29 June 2001 set aside the decision of the delegate of 17 December 1996, rejecting the claim, and substituted its decision that: "1. sets aside the decision of the respondent dated 17 December, 1996; and 2. substitutes a decision that: (1) the applicant's major depressive disorder is an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 from and including 1 July, 1994 up to and including 1 September, 1998; and (2) the applicant was totally incapacitated for work as a result of that major depressive disorder from and including 1 July, 1994 up to and including 1 September, 1998; and 3. adjourns consideration of costs to a date to be fixed." It is the Tribunal's decision that the disorder from which the applicant is suffering was, from 1 September 1998, no longer work-related which is at issue on the appeal. 3 The hearing before the Tribunal involved a number of psychiatrists and other doctors and therapists. The Tribunal found, following the hearing: "The consensus amongst all of the psychiatrists is that Mr Rodriguez is suffering from a major depressive disorder and we so find." although it noted the differences in the medical opinions and in particular whether he suffered from delusional or paranoid thinking. The medical evidence was to the effect that he was to be taken to suffering from the disorder if he was found to be a truthful person. The Tribunal did not find him to be untruthful. It then posed the question for itself: "Did that condition arise out of, or in the course of, his employment so that it is an injury within the meaning of s. 4(1) of the Act?" and answered it: "On the basis of the psychiatric evidence, we find that his condition arose out of his perception of the events in the workplace." And the Tribunal adopted the summary of those events earlier made by Spender J. "There were many aspects of the workplace relationship which, it is said on Mr Rodriguez's behalf, contributed to the onset of his disorder. There was the delay in settling his claims for compensation for medical expenses associated with his neck injury. There was the requirement by his superiors that he resign from the position of floor warden. There was the issue of his signing on in the sign-on book as if he had been at work when he had been at physiotherapy; this was something that he claimed to be entitled to do, but which was disputed by his superiors, and generated much tension. The unhappy relationship which developed between Mr Rodriguez and his superior in the latter half of 1993, included a complaint by Mr Rodriguez that she had singled him out for special attention. There is undisputed evidence that the supervisor approached two other employees of Telstra senior to Mr Rodriguez and told them to keep a special eye on him, and told them that, if the supervisor was on holidays and Mr Rodriguez had a day off, they were to ring her at home so she could drive past his house to check on him. There was the direction by his superiors that the setting up of procedures and systems to do with the handling of enquiries, which work Mr Rodriguez was initially entrusted with, be taken away from him. Mr Rodriguez considered this direction to be a slight on him. There were disputes about the claim by his superiors that he was taking excessive sick leave." (I shall refer to those events as "the incidents" in the balance of these reasons). 4 After dealing with those situations which could amount to reasonable disciplinary action, and which might therefore be excluded under the definition of "injury" for which compensation might be payable (s 4 Safety, Rehabilitation and Compensation Act 1988 (Cth)),the Tribunal went on: "…we are satisfied that his major depressive disorder arose out of or in the course of his employment. His reaction to the incidents we have referred to above might not have been rational to an outsider or might at least have been exaggerated. Despite that, all of them contributed to the development of his major depressive disorder. As Dr Green expressly said and as is implicit in the evidence of Dr Levien, Dr Klug and Dr Reddan, it was probably a condition that developed insidiously over many months. That is to say, there was no particular incident that led to its onset but all did so. The incidents other than that relating to the disciplinary action and the compensation matters arose out of, or in the course of, his employment. Although it is not possible to separate completely the effect of the incidents one from another, we are satisfied from the insidious nature of the onset of the condition that each of the incidents contributed in a material way to that onset. Therefore, Mr Rodriguez suffered an injury within the meaning of the Act." 5 The Tribunal therefore found the incidents to be the causes (or they combined to be "the cause"). That meant it was an "injury" under the Act. 6 It is the next step which the Tribunal took that is the focus of this appeal. The Tribunal found that Mr Rodriguez continues to suffer a major depressive disorder, having first noted that "It is now well over six years since Mr Rodriguez left his employment with Telstra". It then went on to consider the causes of the continuation of the condition: "110. … In that time, Mr Rodriguez has pursued his claim for compensation as he is entitled to do. We are satisfied on the basis of the medical evidence that Mr Rodriguez continues to suffer from a major depressive disorder. In the past six years, however, Mr Rodriguez has not received as much psychiatric treatment as might have been of benefit to him. That is the view of Dr Levien and was expressed in the knowledge that Mr Rodriguez had seen Dr Parmegiani on two occasions while he has been under Dr Erian's care. Dr Levien did not consider that the lack of psychiatric treatment was the ongoing cause of Mr Rodriguez' condition. It was only one of the causes and had to be combined with the nature of the condition, the ongoing litigation and underemployment allowing him time to ruminate on past events. 111. We have thought long and hard about Mr Rodriguez and his illness. At the hearing, his focus was frequently upon the problems brought about by his neck pain. It seems to us that his focus was not upon the other incidents and tensions he felt with his colleagues and supervisors at River Quays and that they were very much at the periphery of his interest. That this is so is consistent with the evidence of Dr Erian whom he has been consulting since September, 1998. In speaking with Dr Erian, we find, Mr Rodriguez did not refer to any incidents at Telstra as the cause of any concern to him. In so far as Telstra was concerned, his focus was upon the pain in his neck and the ongoing compensation claim and appeal process. He made no mention of the other matters to Dr Erian. At some time, possibly 1995, Mr Rodriguez had also found himself able to attend the Bible College and to move his focus away from the events at Telstra. 112. In view of these matters, we have concluded that the factors contributing to his ongoing major depressive disorder are not the incidents and perceived stresses of his employment at Telstra but his neck condition and his compensation action. Neither arises out of, or in the course of, his employment. Just when the work related factors ceased to be relevant is a difficult question. Just as the onset of the condition was insidious, we consider that the change in the reason for its ongoing condition was equally insidious. Whenever the change occurred, we consider that it had happened at some time before he first consulted Dr Erian in September, 1998. Therefore we find that he was no longer suffering an injury within the meaning of the Act on or after 22 September, 1998."