David Kelso and Telstra Corporation Limited

[2015] AATA 403

[2015] AATA 403

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3631
Re	David Kelso
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter Dr M Sullivan, Member
Date	5 June 2015
Place	Brisbane

The Tribunal sets aside the decision under review and substitutes a decision that the Respondent is liable to pay compensation to the Applicant in respect of the Applicant’s Adjustment Disorder.

................................SGD.....................................

Senior Member A C Cotter

CATCHWORDS

COMPENSATION – Liability accepted for workplace injury to back – whether liability to be accepted for associated psychological injury – Adjustment Disorder – Depression – whether “injury” or “disease” under the Safety, Rehabilitation and Compensation Act 1988 (Cth)- decision under review set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 5A, 5B and 67(8)

CASES

Comcare v Canute (2005) 148 FCR 232

Canute v Comcare (2006) 226 CLR 535

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Comcare v Etheridge (2006) 149 FCR 522

ReRosenzweig and Military Rehabilitation and Compensation Commission (2012) 130 ALD 284.

Comcare v Mooi (1996) 69 FCR 439

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Commonwealth of Australia v (K C) Smith (1989) 18 ALD 224, 227

Re Havnen and Comcare [2010] AATA 535

REASONS FOR DECISION

5 June 2015

INTRODUCTION

1. David Kelso was working as a technician for Telstra Corporation Limited when he suffered a muscular strain to his lower back in February 2012. He subsequently lodged a workers’ compensation claim with Telstra, which accepted liability to pay compensation in respect of that injury.

2. Some five weeks after the first incident, he suffered another injury to his lower back, also while at work.

3. During the course of the next few months, Mr Kelso consulted his general practitioner on several occasions about his ongoing back pain. She prescribed anti-inflammatory drugs and referred him for physiotherapy and ultimately, to an orthopaedic surgeon. She also issued a number of medical certificates, certifying that he was either unfit for work at all, or fit only for suitable duties.

4. Regrettably for Mr Kelso, his back pain continued. Neither a CT scan nor a MTI disclosed any major abnormality. The orthopaedic surgeon to whom he was referred was likewise unable to find any particular physical abnormality. In a letter to the referring general practitioner in late July 2012, he noted that Mr Kelso was starting to feel depressed with the lack of improvement in his symptoms. He therefore suggested that she see Mr Kelso with respect to his depression and to potentially prescribe him an antidepressant.[1] 

   [1] Exhibit 15: Letter Dr John Albietz to Dr Lalitha Gunasena dated 25 July 2012.

5. By September 2012, Telstra wanted Mr Kelso examined by an orthopaedic surgeon of its choosing. That doctor thought that it was difficult to justify the ongoing complaint severity at a physical level, given the lack of supportive features to account for it, and having regard to the duration of the ongoing symptoms. Noting that Mr Kelso was clearly anxious about his future and the fact that he had not recovered, the doctor thought that his condition had some non-physical elements to it. He therefore suspected that it would be appropriate for Mr Kelso to see a psychiatrist to determine what other underlying concerns he had or reasons for his illness behaviour.[2]

   [2] Exhibit 1: T Documents, T28, ff90-98: Report of Associate Professor Peter Steadman dated 7 September 2012.

6. In light of that opinion, Telstra sought further comment from Mr Kelso’s orthopaedic surgeon, who agreed that it was difficult to explain the persistence of his symptoms. He questioned whether psychosocial factors were responsible.[3]

   [3] Exhibit 1: T Documents, T31, ff107-109: Letter Dr John Albietz to Telstra dated 2 November 2012.

7. After receiving the reports of the two orthopaedic surgeons and after giving Mr Kelso an opportunity to submit further information, Telstra advised him in January 2013 that it had determined that he was no longer entitled to compensation for medical treatment and incapacity payments in respect of his muscular strain lower back injury.[4] Mr Kelso did not seek a review of that determination.

   [4] Exhibit 1: T Documents, T38, ff135-137.

8. In the meantime, Mr Kelso lodged another workers’ compensation claim with Telstra, claiming to have been suffering depression since August 2012 as a result of the pain from his back injury.[5] 

   [5] Exhibit 1: T Documents, T35, ff115-132.

9. Telstra denied liability for the depression claim on the basis that it was not satisfied that Mr Kelso’s employment contributed to a significant degree to the onset or aggravation of his psychological condition. That denial of liability was affirmed by a reviewable decision. Mr Kelso seeks a review of that decision. 

10. The question we have to decide is whether Telstra is liable to pay compensation in respect of Mr Kelso’s claimed psychological condition. Before considering the substantive issues in any detail, there are a number of related provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“Act”) that need to be mentioned.

    THE LEGISLATIVE FRAMEWORK

11. The starting point for a consideration of the relevant legislative framework is s 14 of the Act. Subsection (1) provides that, subject to Part II of the Act (dealing with compensation), Comcare[6] is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    [6] Section 4(10) of the Act provides that where an employee is employed by a licensed authority, relevant references to Comcare in the Act are to that licensed authority, unless the contrary intention appears. Telstra is a licensed self-insurer for workers’ compensation purposes under the Act.

12. So far as it is relevant, “injury” is defined in s 5A(1) to mean:

    (a) a disease suffered by an employee; or

    (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    ….

13. “Disease” is in turn defined in s 5B(1) as an ailment suffered by an employee, or an aggravation of such an ailment, that was “contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.” Subsection (2) goes on to list (non-exhaustively) a number of matters that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by that employment. They include, among other things: any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; and any other matters affecting the employee’s health. Section 5B(3) says that “significant degree” means “a degree that is substantially more than material”.

14. The terms “ailment” and “aggravation” are defined in s 4.  “Ailment” is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”, while “aggravation” includes acceleration or recurrence.

    THE PARTIES’ CONTENTIONS

15. At the heart of this dispute are the competing psychiatric opinions on which Mr Kelso and Telstra rely. It is useful to set those out in some detail, as they go a considerable way towards crystallising the issues that we need to determine.

    Mr Kelso’s case

16. Mr Kelso relies on the evidence of two psychiatrists, Dr Eric De Leacy and Dr Benjamin Duke, both of whom diagnosed him as suffering from a psychological condition (albeit differently described).

    Dr De Leacy’s evidence

17. Dr De Leacy saw Mr Kelso on 12 December 2013 and diagnosed his condition as an Adjustment Disorder with Anxiety and Depressed Mood, which he rated as chronic and moderately severe. He attributed the disorder to Mr Kelso’s back injury, saying that he developed depression because of his circumstances, most notably not being able to work and engage in various activities. Dr De Leacy considered that Mr Kelso’s mood disturbance would be likely to continue indefinitely and that he would be left with a degree of permanent impairment, particularly if his back did not improve. He thought that Mr Kelso’s work prospects remained poor.[7]

    [7] Exhibit 10: Report of Dr Eric De Leacy dated 16 December 2013.

18. In a supplementary report[8] and again at the hearing,[9] Dr De Leacy reiterated that he stood by his view that Mr Kelso “has developed an Adjustment Disorder in relation to the work-related injury that ultimately led to chronic back pain and disability”.

    [8] Exhibit 12: Supplementary report of Dr Eric De Leacy dated 12 January 2015.

    [9] Transcript of hearing, page 27, lines [1]-[6].

    Dr Duke’s evidence

19. Dr Duke saw Mr Kelso almost a year later, on 19 November 2014. He diagnosed Mr Kelso as having initially developed an Adjustment Disorder with Mixed Anxiety and Depression. However, over time and with ongoing symptoms of pain and functional impairment as a result of his back injury, he thought Mr Kelso’s condition had progressed to the point where he was, at the time of the consultation, suffering from a Major Depressive Episode. Dr Duke considered that the Adjustment Disorder first developed in the middle of 2012 and that Mr Kelso’s back pain and his limited response to treatment had been the major significant factors contributing to its onset. He stated that had Mr Kelso not suffered the back injury in 2012, he would not have presented with symptoms of major depression. Dr Duke expressed the opinion that if there was no further improvement in his back pain, Mr Kelso’s depressive symptoms would likely be permanent.[10]

    [10] Exhibit 14: Report of Dr Benjamin Duke dated 26 November 2014.

20. In oral evidence at the hearing, Dr Duke elaborated further:

    ….(Q)uite often when people experience an acute physical injury that is associated with pain and that pain doesn’t improve, they will begin to develop depressive symptoms that would initially be perceived to be part of what we call an adjustment disorder with depressed mood. Depending upon the circumstances surrounding their pain and whether it’s impacting upon their finances, their financial security, their job security, they often will also develop anxiety symptoms, and so occasionally people will have what’s called an adjustment disorder with mixed anxiety and depression. If people, for whatever reason, be it continuation of the pain, lack of response to treatment, other difficulties that have arisen as a result of pain such as in Mr Kelso’s case, impaired work performance with resulting extended time away from the workplace, the depressive symptoms can worsen and intensify, and according to DSM-IV, if somebody’s depressive symptoms and range of depressive symptoms have increased in their breadth and severity to the point where they then meet the criteria for a major depression, then the diagnosis transfers across. In Mr Kelso’s case, given that he was…reportedly stood down from the workplace because of depression and then was unable to obtain viable alternative employment with Telstra, and because of continued unemployment and the financial difficulties that have arisen as a result of that, that progression of his depressive symptoms occurred, to the point where I felt they did also progress to a major depressive illness.[11]

    [11] Transcript of hearing, pages 51 to 52, lines [29]-[47] and [1] to [4].

21. When asked about the impact of Telstra not being able to continue to offer Mr Kelso employment, Dr Duke remarked:

    …I think that was one of the factors that had contributed to the progressive worsening of his depressive illness, and I think that it is in some ways a reflection of the continued impairment associated with the pain that he’s having. I think part of the problem was that…he found this alternative work role, thought that he was doing well in this alternative work role within Telstra that was taking into account his physical limitations, and then to have that hope of being able to maintain some form of productive employment taken away from him by Telstra when they said he was unable to continue in that role and they were unable to find an alternative role within the organisation for him.[12]

    [12] Transcript of hearing, page 56, lines [3] to [12].

22. Dr Duke was also asked about the fact that Mr Kelso was asked to take time off work by his manager who considered him to be depressed:

    …(F)or me, that was one of the clear things where… I guess I differed in my opinion from Dr Steinberg [Telstra’s expert witness], and that suggested to me that prior to becoming essentially unemployed, his depressive symptoms were present to the point where they were impairing his performance within the workplace. So for me, that was a clear sign that he was having ongoing depression at that time, the depression was severe enough that it was affecting his ability to perform within the workplace, to the point where the workplace,(said)’You need to go and get this sorted out and addressed.’[13]

    [13] Transcript of hearing, page 56, lines [18] to [26].

    Mr Kelso’s submissions

23. It was submitted on behalf of Mr Kelso that the definitions of “injury” and “disease” in the Act are broad enough to permit the conclusion that a psychological condition resulting from a physical injury may be considered to be either a mental injury or an ailment for the purposes of the Act.[14]

    [14] Applicant’s written submissions dated 20 February 2015, paragraph [19].

24. Should the condition be classed as an injury rather than a disease, it was submitted that where a physical injury is sustained either arising out of or in the course of the employment, any psychological condition caused by that physical injury may also be regarded as having arisen out of the employment, or contributed to by the employment, so as to be compensable under the Act.[15]

    [15] Applicant’s written submissions dated 20 February 2015, paragraph [19].

25. Alternatively, it was said that even if the condition were not considered an “injury”, it would, based on the opinions of Drs De Leacy and Duke, constitute an “ailment”. In those circumstances, it was submitted that Mr Kelso’s back pain, incapacity and resultant reduction in employability significantly contributed to the development of his Adjustment Disorder in July 2012. As such, it would fall within the definition of “disease” in s 5B of the Act, and be compensable on that basis.[16]

    [16] Applicant’s written submissions dated 20 February 2015, paragraphs [13] to [17] and [26].

    Telstra’s case

26. Telstra relies on the evidence of another psychiatrist, Dr Jon Steinberg, who saw Mr Kelso on 10 March 2014.

    Dr Steinberg’s evidence

27. Dr Steinberg considered there was no evidence that Mr Kelso had a psychiatric illness which would satisfy either of the definitions of injury or disease under the Act. He acknowledged that at times since the onset of his back pain, Mr Kelso may have experienced periods of depressed mood. However, in Dr Steinberg’s opinion, that depressed mood was within the normal range to be expected, given that Mr Kelso had chronic back pain and a range of social and financial stressors; he did not believe that Mr Kelso’s emotional reaction to those stressors had been out of a range of what would normally be expected. Accordingly, he did not consider that Mr Kelso was suffering from a psychiatric condition according to DSM 5. He concluded that there was no psychiatric illness or condition arising from the alleged back injury or his employment with Telstra.

28. Dr Steinberg did, however, acknowledge that Mr Kelso may have had symptoms consistent with an Adjustment Disorder with Depressed Mood in December 2013 when he suspected his former fiancé was having an affair, culminating in his suicide threat on Boxing Day that year. Dr Steinberg considered that that was unrelated to Mr Kelso’s employment, just as there were several other factors unrelated to his employment which affected his mood.  In his evidence at the hearing, he elaborated:

    ….(T)here’s a chronology of events that Mr Kelso experienced dating back to and including his experience in 2011 when his sister had an overdose and was unwell, and he was depressed at that time and presented to his GP complaining of depressed mood. And he had a number of life events, and that was a distressing life event, but then relocating from his established employment in Far North Queensland to Brisbane, which he didn’t enjoy and he was upset with management, saw that he wasn’t really suited to more overtime and less independence in his life, and he was stressed by that move to Brisbane. And then he became stressed with a muscular strain. I don’t think his reaction was unusual. He certainly recovered and was able to work in a non-physical activity role in an office job, which he enjoyed. He told me that he wasn’t depressed during that time and has enjoyed the clerical work. And then in 2013 – in early 2013, he was shocked when he found out that there was no position for him in an ongoing role, which in that sort of role in an office, and that was emotionally distressing. I think that would have affected any person in that role within…the normal range of emotional responses one would experience. And his girlfriend had post-natal depression as well, which was also a difficult time. He admitted to having a tough time in early 2013 because of that. Late in 2013 he had a very distressing event when he found out that his girlfriend was liaising with somebody on Facebook and it turned out that there was an affair. He had in retrospect suspected that there was an affair, he became suicidal, and at that point it’s possible to diagnose him with an adjustment disorder with depressed mood with associated suicidal thoughts. But it was only in that point, I think, that he – there was a boundary crossed between a normal level of emotional response and an unusual response with suicidal ideas.[17]

    [17] Transcript of hearing, pages 59-60, lines [34]-[47] and [1]-[13].

    Telstra’s submissions

29. Telstra disputes that Mr Kelso’s alleged Adjustment Disorder constitutes an “injury” within the meaning of s 5A of the Act, saying that it does not represent some physiological change which defines injury.[18]

    [18] Respondent’s written submissions lodged 13 March 2015, paragraphs [19] to [21].

30. Because of what it says are shortcomings in the reports of Drs De Leacy and Duke, Telstra contends that their opinions should not be accepted, and that the opinion of Dr Steinberg is to be preferred.[19]

    [19] Respondent’s written submissions lodged 13 March 2015, paragraphs [3] to [4] and [26] to [30].

31. If that is the case, Telstra submits that Mr Kelso does not satisfy the necessary threshold test of what constitutes an ailment, in that his behaviour did not fall outside the boundaries of normal mental functioning and behaviour.[20]

    [20] Respondent’s written submissions lodged 13 March 2015, paragraphs [3] and [20] to [24].

    ISSUES FOR DETERMINATION

32. In deciding whether Telstra is liable to pay compensation, several issues fall to be determined:

    (a)How is Mr Kelso’s condition to be described? In particular, in the context of the legislative framework described earlier, can it be described as an “injury” under s 5A(1)(b) of the Act or is it an “ailment”? Is it open to find that it can be described as both?

    (b)If it is described as an “injury”, did it arise out of, or in the course of, Mr Kelso’s employment?

    (c)Alternatively, if it can be described as an ailment, does it constitute a “disease”, in that it was contributed to, to a significant degree, by Mr Kelso’s employment with Telstra?

1. We deal with each of these issues below.

   CONSIDERATION

   How is Mr Kelso’s condition to be described?

2. How Mr Kelso’s condition is described is important because the Act differentiates between a “disease” and an “injury (other than a disease)” and prescribes different contribution tests for each. While an “injury” is compensable if it “arises out of, or in the course of”, employment, “disease” is compensable only if an ailment or its aggravation was “contributed to, to a significant degree” by the employment. The former therefore imports a wider test which recognises either a causal or temporal relationship with the employment, whereas the latter requires a narrower, causal relationship with the employment to be established.

3. Equally, it is important to determine whether Mr Kelso’s condition amounts to an ailment, as that is central to the determination of whether he is suffering from a “disease” within the meaning in s 5B of the Act.

   Is Mr Kelso’s condition an “injury”?

4. Counsel for Mr Kelso referred us to the remarks of Gyles J in Comcare v Canute[21] which were affirmed on appeal by the High Court,[22] to the effect that the definitions of “injury” and “disease” were wide enough to permit the conclusion in that case that the psychological condition might be regarded either as a mental injury or as an ailment.

   [21] (2005) 148 FCR 232 at [83].

   [22] Canute v Comcare (2006) 226 CLR 535.

5. While that general observation is not disputed, the question of whether it is possible to describe a psychological condition as a mental “injury” depends on the circumstances of the particular case. That in turn involves a consideration of the plain meaning of “injury”, as that word is used in the definition in the Act. It is well established that the word “injury” in that context involves a sudden, ascertainable physiological change.[23]

   [23] See Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at [39] (Gleeson CJ and Kirby J); Comcare v Etheridge (2006) 149 FCR 522; and Re Rosenzweig and Military Rehabilitation and Compensation Commission (2012) 130 ALD 284.

6. The difficulty for Mr Kelso in the present case is that there is no evidence of the requisite sudden and ascertainable or dramatic physiological change necessary to constitute an “injury” as that word is normally understood. While the assessments of Drs De Leacy and Duke confirm Mr Kelso as suffering from diagnosed psychological conditions, they fall short of describing what one would normally understand as an “injury”; to so describe his condition would, in our view, be straining the normal meaning of the word. We therefore do not consider that Mr Kelso’s condition can be described as an “injury”. That then leads us to the next question, whether Mr Kelso’s condition is an “ailment” as that term is understood in the Act.

   Is Mr Kelso’s condition an “ailment”?

7. It is long accepted that, for the purposes of the Act, it is not necessary to identify the employee’s psychological condition by reference to some diagnostic label. Rather, the threshold test is whether the employee’s psychological condition goes beyond a normal human reaction, such that it falls “outside the boundaries of normal mental functioning and behaviour.”[24]

   [24] See Comcare v Mooi (1996) 69 FCR 439, [444] (Drummond J).

   Competing Opinions

8. That threshold test highlights the significant point of distinction between Mr Kelso’s and Telstra’s respective experts. As mentioned earlier, Mr Kelso relies on the evidence of Drs De Leacy and Duke, both of whom diagnosed him as suffering from a psychological condition (albeit differently described). On the other hand, Dr Steinberg concluded that while Mr Kelso may have experienced periods of depressed mood since the onset of his back pain, such mood would have been (with one possible exception related to his later relationship breakdown) within the normal range to be expected in the circumstances and did not develop into a psychiatric illness or condition.

9. Dr De Leacy acknowledged that by the time that Dr Duke saw him, Mr Kelso may have had major depression. For his part, Dr Duke noted the timing of Dr De Leacy’s report as coinciding with the breakdown of Mr Kelso’s relationship, and thought that Mr Kelso’s current presentation might not reflect the level of symptoms he had at that stage.

10. Not surprisingly, Dr De Leacy thought that that Dr Steinberg had understated the severity of Mr Kelso’s difficulties.

11. Before considering the question of which psychiatric opinion to prefer, it is convenient to first address some broader matters raised on behalf of Telstra concerning the general reliability of part of the evidence.

12. In his written submissions, Telstra’s counsel submitted that the opinions of Drs De Leacy and Duke should not be accepted because the self-report of Mr Kelso provided to those doctors has not been supported by the contemporaneous medical evidence.[25] In particular, he pointed to the history recorded by Dr De Leacy from his consultation with Mr Kelso concerning the functional impairments associated with his back pain and the fact that they are recorded nowhere in the medical records of the time, particularly those of Mr Kelso’s general practitioners.[26] The accuracy of that history is not in issue, with Mr Kelso confirming during cross-examination that he reported the history to Dr De Leacy and that it was, and is, accurate;[27] that was unchallenged.  There is no suggestion that, at least in respect of the specific evidence in question, Dr De Leacy’s opinion is based on incorrect information. While we understand counsel’s complaint, we are conscious of the different circumstances under which Mr Kelso consulted his treating general practitioners as opposed to the psychiatrists who were preparing medico-legal reports for use in these proceedings. The former would no doubt have been already familiar with Mr Kelso’s history and the way in which he would normally present. Their notes would presumably have been recorded during the course of, or shortly after, their consultation in what would be a general clinic. As a consequence, it is not surprising that their notes, whether they relate to psychological or physical complaints, were, of necessity, brief. That is to be contrasted with the situation where the psychiatrists were preparing one-off reports concerning a person whom they had not previously met. The fact that the reports were being prepared for legal proceedings dictated that the psychiatrists should record their observations in significant detail so that they would lay the factual basis for the opinions they expressed. It is therefore understandable that the recording by the treating practitioners was not as comprehensive or detailed as that by the expert psychiatric witnesses. For those reasons, we do not think it would be appropriate to automatically and wholly discount Dr De Leacy’s opinion on the basis that the history on which it relies is not in complete or perfect conformity with the contemporaneous medical reports. The highest it can be put is that lack of conformity may be a factor in weighing up which expert opinion may be preferred on a particular issue. The same is equally apposite to Dr Duke’s opinion.

    [25] Respondent’s written submissions lodged 13 March 2015, paragraph [4].

    [26] Respondent’s written submissions lodged 13 March 2015, paragraph [11] - [13].

    [27] Transcript of hearing page 12.

13. Counsel for Telstra also raised questions as to Mr Kelso’s credit. In particular, he seized on the fact that during cross-examination Mr Kelso’s description of the activities leading up to his suffering his initial muscular strain were “enlarged” compared with earlier descriptions. It is said that Mr Kelso mentioned, for the first time, that on the day in question he had been digging more than he normally would have done and had been working with his arms over his head for a lot longer than he normally would have. While that was new information, it needs to be viewed in the context in which it was provided -  in response to specific questions about Mr Kelso’s “normal daily tasks” and if there was anything “exceptional” about his work activities on that day. There is no suggestion that those answers were incorrect. In any event, we do not think the fact that Mr Kelso gave a more expansive answer to the question is significant, or that anything turns on it; his description is not inconsistent with the version he gave when initially making the claim. We therefore do not think that impacts on his credit, as Telstra contends.

14. It was also submitted by counsel for Telstra that Dr Steinberg had conducted a more thorough examination of Mr Kelso’s personal and medical history, and therefore should be favoured over Drs De Leacy and Duke. We find it difficult to accept a submission put on such a broad or general basis. Rather, it is a matter for specific submissions concerning the respective opinions of Dr De Leacy and Dr Duke and why Dr Steinberg’s opinion should be preferred in each instance.

15. It is also relevant that Dr Duke saw Mr Kelso after having been provided with (and apparently considered) the relevant material (including Dr Steinberg’s two reports), and so had the benefit of the observations from Dr Steinberg’s examination.[28] Similarly, Dr De Leacy was provided with a copy of Dr Steinberg’s reports and was asked to provide comments, which he did. Again, he had the benefit of the observations from Dr Steinberg’s examination and had the opportunity to revise his opinion if he identified any fresh information from it.

    [28] Exhibit 14: Report of Dr Benjamin Duke dated 26 November 2014, page 2.

    Which opinion is to be preferred?

16. We consider that the evidence of Drs De Leacy and Duke should be preferred to that of Dr Steinberg. We therefore find that Mr Kelso has suffered from, and continues to suffer from, a psychological condition that is “outside the boundaries of normal functioning behaviour”; in the language of the Act, it is an “ailment”. We come to that conclusion for a number of reasons, which we detail below.

17. While it is true that the assessments by Drs De Leacy and Duke were undertaken some time after the onset of Mr Kelso’s condition, their opinions are nevertheless consistent with the diagnoses and conclusions formed and recorded at the relevant times by Mr Kelso’s treating doctors.

18. After being alerted by Mr Kelso’s orthopaedic surgeon, Dr John Albietz, that Mr Kelso was starting to feel depressed as regards his progress, or lack of it, Dr Lalitha Gunasena, Mr Kelso’s general practitioner, made arrangements to see Mr Kelso on 14 August 2012. She diagnosed him as being depressed and prescribed a course of antidepressants.  Dr Steinberg was critical of Dr Gunasena’s diagnosis, commenting that no mental state examination or psychiatric symptoms had been documented.[29] Although it is true the notes do not contain a detailed record of what was told to her, they do reflect that she had recourse to the commonly used Kessler Psychological Distress Scale (K10), a screening measure for psychological distress, and that Mr Kelso scored 30, placing him in the band of patients likely to have a severe disorder. It is also apparent from her notes that she undertook an assessment by reference to a clinical “Mood Module” tool, as well as establishing that Mr Kelso had no suicidal thoughts.[30] Whatever the criticism about their lack of detail or completeness, the notes are a contemporaneous record of the fact that Mr Kelso’s depression was discussed at that time and that the diagnosis was made by the general practitioner after apparently turning her mind to appropriate indicia.

    [29] See Exhibit 17: Report of Dr Jon Steinberg, page 16 and transcript of hearing, page 66, lines [12] to [20].

    [30] Exhibit 4: Summons material from Middle Park Medical Centre (Dr Gunasena), page 3.

19. In his written submissions, Telstra’s counsel pointed to a number of entries in Dr Gunasena’s clinical records where there was no mention of depression or mental illness. He submitted that such references would have been expected if Mr Kelso was mentally ill, especially in light of the comment in the 14 August notes that he was to be reviewed the following week.[31] As it is not uncommon for mood disorders such as that diagnosed to follow a fluctuating course, with patterns of partial remission and relapse common, the absence in clinical notes of regular or constant notations about depressive symptoms (or the lack of them) is not surprising. Further, we note that when asked during cross-examination why he did not attend an anticipated follow up meeting, Mr Kelso could not recall, saying that because of his mood, he was not concentrating at the time.[32] In the circumstances, we think that is a plausible response.

    [31] Respondent’s written submissions lodged 13 March 2015, paragraph [17].

    [32] Transcript of hearing, page 41, line [45] to page 42, line [14].

20. Telstra’s counsel also drew our attention to the entry of 23 November 2012 which he says “records that in spite of no reference to any psychiatric symptoms, that the Applicant ‘feels good today’ and ‘better now’.” He proceeded to quote another part of the entry as saying “requests a MC (medical certificate)” and “required to back date and add depression”, but took that submission no further.[33] We attach little weight to those observations. The references tend to conflate remarks in respect of different conditions that Dr Gunasena was being consulted about; they appear to relate to the abdominal pain that Mr Kelso had experienced the previous night, and not his mental condition.[34] Further, it is significant that, despite cross-examining Mr Kelso on this particular consultation, counsel for Telstra stopped short of directly asking him about the reference to back dating the workers’ compensation certificate and to adding depression.[35] In those circumstances and in the absence of direct evidence on the point, we are not inclined to attach any significant weight to these matters, or draw any adverse inferences from them.

    [33] Respondent’s written submissions lodged 13 March 2015, paragraph [17].

    [34] See Transcript of hearing, page 42, lines [30] to [35].

    [35] Transcript of hearing, pages 42 and 43.

21. The opinions of Drs De Leacy and Duke are also consistent with the clinical notes and records of the other general practitioner Mr Kelso consulted, Dr Andrew Springfield of Everton Park Medical Centre. Those notes reveal that on 12 March 2013, Mr Kelso saw Dr Springfield. The doctor noted that Mr Kelso worked for Telstra and was under “quite a lot of stress of work with work cover” and that there was a prolonged rehabilitation with his back injury. Dr Springfield noted Mr Kelso to be very reactive and in a low mood. Further Lovan (an antidepressant) was prescribed.[36] Dr Springfield saw Mr Kelso on several other occasions. On 6 May 2013, he completed a medical report in support of Mr Kelso’s claim for a Disability Support Pension. It described his diagnosis as “Depression (major)”. It noted that Mr Kelso’s mood was low, that he had a lack of interest in life, that he was aggravated easily, and that he was anxious.[37] A Mental Health Plan completed by Dr Springfield on 14 May 2013 diagnosed Mr Kelso as suffering from an Adjustment Disorder.  It attributed that to his loss of work role. That plan also attached the results of an assessment undertaken with the use of the K10 questionnaire, on which Mr Kelso scored 48 out of 50, signifying a severe disorder.[38] 

    [36] Exhibit 6: Clinical notes from Everton Park Medical Centre (Dr Springfield), page 10.

    [37] Exhibit 16, Medical report of Dr Andrew Springfield dated 6 May 2013.

    [38] Exhibit 13: Summons material from Dr Peter Hayton.

22. Dr Springfield in turn referred Mr Kelso to a psychologist, Mr Peter Hayton, who reviewed Mr Kelso on 24 May 2013. He described Mr Kelso as “reporting a history of depression problems with stress symptoms and adjustment issues suggesting the possibility of a moderate psychological condition.”[39] Again, that diagnosis is consistent with the opinions of Drs De Leacy and Duke.

    [39] Exhibit 13: Summons material from Dr Peter Hayton.

23. The timing of Mr Kelso seeing Dr Springfield in May and Mr Hayton is also significant, those consultations coming, on our calculations, not long after Mr Kelso was advised by his manager at Telstra to take time off work because he was depressed. While Mr Kelso disputed he was depressed at that stage, he nevertheless took two weeks off work.  When he returned, there was no position for him; he says he became depressed and upset at that time. Although there was no documentation produced to the Tribunal in relation to this particular episode, these circumstances do not appear to be disputed. It is significant in that it highlights the fact that, by that time (about April 2013), Mr Kelso’s depressive symptoms had seemingly become so manifest that they were apparently affecting his work performance and were identified by a person within Telstra’s management team (whom we assume was not medically qualified).

24. Finally, Dr De Leacy’s and Dr Duke’s opinions are also consistent with the observations recorded by the orthopaedic surgeons, Drs Albietz and Steadman, who, while unable to pinpoint any physical explanation for Mr Kelso’s ongoing pain, suggested referral to a psychiatrist to attempt to identify and address what they would call “psychosocial” issues.  In that respect, the opinions of Drs De Leacy and Duke offer a plausible explanation or hypothesis for the condition the orthopaedic surgeons were unable to treat.

25. In summary, we favour the opinions of Drs De Leacy and Duke over Dr Steinberg because they are consistent with, and supported by, the diagnoses and conclusions contained in the contemporaneous notes and clinical records of the doctors and health professionals who were responsible for Mr Kelso’s treatment over some years. Further, the preponderance of evidence favours the opinions of Drs De Leacy and Duke. In addition to the views of the treating practitioners, their opinions are consistent with the manifestation of Mr Kelso’s depressive symptoms in April 2013 and sit comfortably with the observations of the orthopaedic surgeons, Dr Albietz and Associate Professor Steadman, by offering a plausible hypothesis or explanation for Mr Kelso’s ongoing “non-physical” back pain.

    Is Mr Kelso’s condition a “disease”?

26. Having established that Mr Kelso’s condition can be described as an ailment, the question next arises as to whether that ailment was contributed to, to a significant degree, by his employment with Telstra. If so, it is considered a “disease”.

27. Among the matters which may be taken into account are: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to their employment; and any other matters affecting their health.[40]

    [40] s 5B(2) the Act. The Act also notes that this subsection does not limit the matters that may be taken into account.

28. Section 5B(3) of the Act states that the expression “significant degree” means “a degree substantially more than material.” It is not necessary that the employment be the sole or dominant cause of the injury. Further, it is well established that the test of causation is one of common sense, rather than adopting some scientific or logical theory of causation.[41]

    [41] See March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

29. In support of his claim that his employment with Telstra contributed significantly to his ailment, Mr Kelso points to the assessments and diagnoses of Drs De Leacy and Duke, to which we have already referred. Both attribute the ailment which they identified to Mr Kelso’s back injury, with Dr Duke going so far as to say that had Mr Kelso had not suffered his back injury in 2012, he would not have been presenting with symptoms of major depression.[42]

    [42] Exhibit 14: Report of Dr Benjamin Duke, paragraph [8].

1. On the other hand, Dr Steinberg, having concluded that Mr Kelso was not suffering from a psychiatric illness, rejected any suggestion of Mr Kelso suffering from a condition arising from his employment with Telstra. Rather, he identified a range of social and financial stressors besides Mr Kelso’s chronic back pain, such as his lack of employment, his poor financial situation and his relationship difficulties. While he thought that Mr Kelso’s emotional reaction to those stressors was within the range of what would normally be expected, he did acknowledge that at the time of his relationship breakdown and alleged suicide attempt at Christmas 2013, Mr Kelso may have been suffering from Adjustment Disorder with Depressed Mood due to that relationship stress. Dr Steinberg also noted that Mr Kelso had experienced a previous episode of depressed mood following his sister’s suicide attempt in September 2011.

2. After considering the surrounding circumstances and for the reasons we alluded to earlier, we consider that the weight of evidence favours the opinions expressed by Drs De Leacy and Duke, that Mr Kelso’s ailment was significantly contributed to by his employment with Telstra. That conclusion is consistent with the contemporaneous records of Mr Kelso’s treating general practitioners and psychologist. It is also consistent with the account given by Mr Kelso to the Prince Charles Hospital Mental Health Unit after the incident involving his ex- fiancé on Boxing Day 2013, when he reported that the increasing stress at home was due to an ongoing work related issue following a back injury in 2012.[43]

   [43] Exhibit 5: Summons material from Prince Charles Hospital: Adult Mental Health Services Consumer Assessment form, page 14, and letter Peter Ofoma to Dr Andrew Springfield dated 27 December 2013 page 23.

3. That said, there are two further matters raised by Telstra that need to be addressed.

4. First, it is said that, based on the assessments of the orthopaedic surgeons Dr Albietz and Professor Steadman, any work-related component to Mr Kelso’s back pain had ceased by August 2012, or 5 September 2012 at the latest, such that his on-going back problems were not related to his employment with Telstra.  In support of that contention, Telstra points to the fact that Mr Kelso did not challenge Telstra’s subsequent determination of January 2013 that he ceased to suffer the effects of his work-related back injury.[44]

   [44] Exhibit 3: The Respondent’s Statement of Facts, Issues and Contentions, paragraphs [22] to [26].

5. We do not consider that, simply because the initial physical injury resolved itself, Mr Kelso is precluded from pursuing his subsequent claim in respect of his psychological condition. It is well settled that an injury which is consequential upon a primary work-related injury may be compensable under the Act, but that a separate assessment is required.[45] In considering that consequential claim, the continuing presence of the earlier accepted injury is not necessary for it to be compensable.  That is particularly so in cases involving psychological claims consequent upon accepted claims for minor physical injury. As Von Doussa J observed in Commonwealth of Australia v (K C) Smith:[46]

   Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well-recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly.

   [45] See Canute v Comcare (2006) 226 CLR 535.

   [46] (1989) 18 ALD 224, 227.

6. Nor do we think that the fact that Mr Kelso did not challenge Telstra’s determination of January 2013 in respect of the back injury is determinative. As noted already, the physical and psychological claims are separate and are to be assessed as such. No estoppel arises out of Mr Kelso’s failure to challenge the determination.

7. For those reasons, we do not think the fact that Mr Kelso’s claim in respect of his back injury has been resolved and is no longer continuing is fatal to the present claim.

8. Telstra’s other ground of objection was that, even if, contrary to its contentions, Mr Kelso suffered a psychological condition, his employment with it was not a significant contributing factor. Rather, it identified a number of other stressors, unrelated to work, which would have arguably contributed to that condition, including Mr Kelso’s non-physical back pain, his financial difficulties and the breakdown of his relationship.

9. Even if Telstra were correct about the impact of other stressors unrelated to Mr Kelso’s employment, that would still not necessarily warrant the denial of the claim in circumstances where his employment was also found to be a significant contributing factor. The fact that there may be more than one significant contributing factors (one of which being relevantly related to the employee’s employment) to the ailment does not prevent the claim from being accepted as one in respect of a disease. In Re Havnen and Comcare,[47] the Tribunal observed:

   Being satisfied that employment was a contributing factor to the aggravation of the condition, it is necessary to decide whether it contributed to the condition to a “significant degree” – that is, a degree that is substantially more than material. This requires an evaluation of the role played by employment and non-employment factors. It seems to us that both employment and non-employment factors each contributed to the aggravation of Ms Havnen’s condition to a “significant degree”. The use of the indefinite article “a” in the definition of disease indicates that employment need not be the only factor that contributed to the disease to a significant degree. Here the employment factors were not trivial or slight, but in this situation, critical.

   [47] [2010] AATA 535 at [67].

10. Having reached the conclusion that Mr Kelso’s employment was a significant contributing factor to his ailment, it is not necessary to decide whether the other stressors in his life may have also contributed in some way.

11. For those reasons, we consider that Mr Kelso’s employment with Telstra significantly contributed to the ailment, such that his Adjustment Disorder with Anxiety and Depressed Mood is a disease within the meaning of s 5B of the Act and therefore, an “injury” for the purpose of s 5A(1)(a) of the Act.

12. Based on the opinions of Drs De Leacy and Duke, we consider that that “injury” resulted in impairment and is therefore compensable. Telstra is therefore liable to pay compensation in respect of that injury under s 14 of the Act.

    CONCLUSION

13. For the reasons set out above, we consider that under s 14 of the Act, Telstra is liable to pay compensation in respect of Mr Kelso’s Adjustment Disorder. We therefore set aside the Reviewable Decision the subject of the application and substitute for it a decision to this effect.

14. We note that in his submissions, counsel for Mr Kelso sought an additional order that Telstra pay Mr Kelso’s costs pursuant to s 67(8) of the Act. Telstra made no submissions on that matter. We therefore propose to adjourn the proceeding for 14 days to enable both parties to make written submissions on costs, to be provided to the Tribunal and the other party within that period. After the expiration of that time and after considering the parties’ submissions (if any), we intend to make a further order on the question of costs.

I certify that the preceding 75 (seventy -five) paragraphs are a true copy of the reasons for the decision herein of

....................................SGD....................................

Associate

Dated 5 June 2015

Date of hearing	22 January 2015
Date final submissions received	7 April 2015
Counsel for the Applicant	Mr Scott Richardson
Solicitors for the Applicant	Maurice Blackburn Lawyers
Counsel for the Respondent	Mr CJ Clark
Solicitors for the Respondent	DLA Piper