Rodriguez and Telstra Corporation Ltd

[2001] AATA 620

CATCHWORDS – COMPENSATION – Major Depressive Disorder – Whether applicant has a major depressive disorder, and if so, whether it arose out of, or in the course of, employment – whether ongoing – applicant entitled to compensation for a specified period – whether Tribunal able to consider permanent impairment – no relevant reviewable decision – decision set aside.

Administrative Appeals Tribunal Act 1975 – s 42B
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 14, 19, 24, 27, 54, 60, 62, 64
Workers' Compensation Act 1926-1946 (NSW) - s 7

Dawkins v Metropolitan Coal Company (1947) 75 CLR 169; (1947) 55 ArgLR 533; (1947) 21 ALJR 403
Lees v Comcare (1999) 56 ALD 84; (1999) 29 AAR 350
Re Nicholson and Department of Social Security (1990) 21 ALD 537; (1990) 12 AAR 298
Rodriguez v Telstra Corporation Limited [1999] FCA 1400 (unreported, Spender J, 14 October, 1999)
Rotherwell v Caverswall Stone Co. Ltd. [1944] 2 All ER 350

DECISION AND REASONS FOR DECISION [2001] AATA 620

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/1286
GENERAL ADMINISTRATIVE DIVISION      )

Re                  GABRIEL RODRIGUEZ

Applicant

And                TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)
  Miss A M Brennan (Member)
  Dr K P Kennedy (Member)

Date  29 June, 2001

Place  Brisbane

Decision  The Tribunal:

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.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 16 October, 1998, a differently constituted Tribunal decided to affirm three decisions of the respondent, the Telstra Corporation ("Telstra"), regarding whether or not compensation was payable to the applicant, Mr Gabriel Rodriguez.  In the first of those decisions, Telstra denied liability to pay Mr Rodriguez compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of an aggravation of pre-existing cervical spondylosis on and from 4 March, 1994.  That aggravation arose out of an incident on 11 June, 1992.  In the second, Telstra denied liability in respect of a permanent neck disability arising out of the same incident on 11 June, 1992.  In the third, Telstra denied liability in respect of a major depressive disorder claimed to have arisen as a result of pain associated with Mr Rodriguez' cervical spine, discrimination and victimisation at work and his having been unfairly and unreasonably reprimanded.  Mr Rodriguez lodged an appeal against the Tribunal's decision in the Federal Court.  On 14 October, 1999, Spender J dismissed the appeal against the decisions concerning Mr Rodriguez' cervical spondylosis and neck disability and allowed it in respect of the major depressive disorder (Rodriguez v Telstra Corporation Limited [1999] FCA 1400 (unreported, Spender J, 14 October, 1999)). His Honour remitted the matter to the Tribunal for further consideration according to law.

1. At the hearing, Mr Rodriguez was represented by Mr Hampson QC and Mr Moon of counsel while Telstra was represented by Mr Dickson of counsel.  The appeal books lodged in the Federal Court were admitted in evidence together with a report of Ms Nina Williams, a rehabilitation and vocational consultant, dated 20 October, 2000, two reports of Dr Bartholomew Klug, psychiatrist, dated 26 September, 2000 and 31 October, 2000, a letter to Dr Klug dated 15 September, 2000, a report by Dr Samy Erian, general practitioner, dated 13 February, 2001, Mr Rodriguez' curriculum vitae, a letter from Sarinas & Associates to The Manager, Telecom (Telstra Corporation Limited) dated 12 June, 1999, reports of Dr Jill Reddan, psychiatrist, dated 7 June, 2000 and 20 June, 2000, affidavits by Dr Reddan and Ms Marson, a report by Ms Murphy, Occupational Therapist at EKCO Occupational Services Pty Ltd, Ms Murphy's notes, and a statement by Mr DiBella, former Customer Services Manager at Telstra's Townsville premises in the River Quays Centre ("River Quays").  A copy of questions used by Dr Reddan in administering a Malingering Probability Scale test ("MPS test") were admitted in evidence.  They are subject to a confidentiality order restricting access to members and staff of the Tribunal and to counsel. 

1. Oral evidence was given by Mr Rodriguez in support of his case together with Dr Klug, Mr Steve Donaldson (former Telstra officer), Mr William Henry Marklew (Assistant State Secretary of the Community and Public Sector Union ("CPSU")), Mr Trevor Doyle (former Telstra officer), Dr Samy Erian, Dr Bruce Low (orthopaedic surgeon), Mr Ronald Fischer (former Telstra officer), Dr Hugh Levien (psychiatrist), Dr Richard Green (psychiatrist), Ms Nina Williams and Ms Tania Ballam (Call Centre Manager in Telstra).  In support of Telstra's case, oral evidence was given by Dr Reddan, Ms Elizabeth Murphy, Ms Joanne Marson (a receptionist in Dr Reddan's rooms), Ms Kimberley Watson (a former Telstra officer), Mr Daniel Rees (Project Manager with Telstra) and Mr Peter Row (former Centre Manager at River Quays).

THE ISSUE

1. There are two central issues in this case.  The first is whether Mr Rodriguez suffers from a major depressive disorder and, if so, whether it arose out of, or is attributable to his employment with Telstra.  The second is whether the Tribunal may consider whether Mr Rodriguez is entitled to compensation for permanent impairment.

BACKGROUND

1. On the basis of the evidence, we have made a number of findings of fact forming the background to the matters in issue in this case and we will set them out in the following paragraphs. 

1. Mr Rodriguez was born in Uruguay on 7 April, 1956 and migrated to Australia in 1964, at the age of 7, with his parents and brother and sister.  They settled in Sydney.  Although he attended school in Uruguay, he completed most of his schooling in Australia.  He completed year 10 and left school when he was about 16 years of age.  Years 11 and 12 were completed in one year at a TAFE college.  He is married to Kim Therese Rodriguez and has two children from that marriage: Emma who was born on 15 February, 1993 and Joshua, who was born on 11 December, 1990.  Mr Rodriguez also has a son, Nathan, from a previous marriage and he was born on 17 March, 1986.  His parents and his brother returned to Uruguay to live but his sister married and remained.

1. In the fifteen years after he left school and prior to his commencing work with Telstra, Mr Rodriguez worked as a printing hand/labourer, a salesman, a steward/chief steward, wardsman and a self-employed cleaner.  He also travelled around Australia and completed part of a nursing course.  In 1988, he commenced work with Telecom (as Telstra was formerly known) as a Communications Officer 1 ("CO 1").  In that role, he was responsible for digging trenches and laying new lines and wiring to residential dwellings.  He was promoted to a CO 2 and then obtained an administrative job as an Administrative Officer Grade 1 ("AO 1") in Telstra's offices at Parramatta.  As an AO 1, he first undertook a training course and then answered customers' enquiries.  His work required him to answer the telephone, deal with customers and operate a DOS computer system.  He was later promoted to an AO 2 and was given broader duties in relation to dealing with customers' enquiries, liaising with customers and promoting Telstra products.

1. In his early years with Telstra, Mr Rodriguez took sick leave for a number of ailments.  In 1990, for example, he took 10 days sick leave spread over seven occasions for conditions including a viral infection, upper respiratory tract infection, throat infection and upset stomach (Exhibit A, pages 178-179).  He took 28 days over twenty two occasions in 1991 and 12 over nine occasions in 1992 (Exhibit A, pages 178-184 and pages 195-196).  Only two days, 3 and 4 March, 1991, made any reference to anxiety.  On that occasion, he was "…suffering from anxiety and abdominal pain" (Exhibit A, page 180). 

1. When he had been working at Parramatta for some 18 months, Mr Rodriguez responded to a request by Telstra to assist other employees to install office partitions. On the evening of 11 June, 1992 he was injured when a partition fell. There were various views as to precisely what happened in that incident and we will return to it later. Mr Rodriguez reported the incident in a report he gave to Telstra on 25 June, 1992 (Exhibit A, page 12). On the same day, he lodged a claim for compensation for injury to his left shoulder blade, neck and lower spine (Exhibit A, pages 12-14). A determination was made on 3 July, 1992 to the effect that Telstra was liable to pay Mr Rodriguez compensation pursuant to s. 14 of the Act in respect of neck and back pain. Pursuant to s. 16, it reimbursed him the fees he had paid for chiropractic services on 19 June, 1992 (Exhibit A, page 17).  Following determinations made on 7 and 18 August, 1992 and 30 September, 1992 Telstra reimbursed him fees he had paid for osteopathic services on 5, 8, 12 and 19 August, 1992 (Exhibit A, pages 18-20). 

1. In September, 1992, Mr Rodriguez accepted a transfer from Sydney to Townsville as an AO 2.  He saw that transfer as an opportunity to improve his chances of obtaining a promotion as well as an opportunity to buy a house for his family and give them a good environment in which to live.  Mr Rodriguez did not immediately take up his duties in Townsville but travelled first to Toowoomba and Maryborough where he worked in Telstra's offices for two weeks.  Once he arrived in Townsville, he assisted in establishing a new customer service centre at River Quays.  He did so by assisting in training other inexperienced officers and assisting in the standardisation of policies and procedures. 

1. Mr Rodriguez was also appointed as a Floor Warden.  The duties of a Floor Warden were contained in AS3745-1990 (Emergency Control Organisation and Procedures for Buildings):

"2.4.3.4           Floor Wardens.  On hearing an alarm or on becoming aware of an emergency, the Floor Wardens should take the following actions:

(a)Commence evacuation if the circumstances on their floor warrant this.

(b)Implement the emergency procedures for their floors.

(c)Communicate with the Chief Warden by whatever means available and act on his instructions.

(d)Direct Wardens to check the floor or area for any abnormal situation.

(e)Advise the Chief Warden as soon as possible of the circumstances and of the action taken.

(f)Arrange immediate replacement of Wardens, who are no longer available for reasons of transfer etc. and nominate suitable persons to cover short term absences." (Exhibit A, page 235)

The types of persons who should be appointed as Floor Wardens were set out in paragraph 2.4.2.4:

"…The Emergency Control Committee should appoint persons to the ECO consistent with the level of their day-to-day supervisory responsibilities.  The ECO responsibilities should be attached to a position so that its permanent or temporary occupant carries out the necessary ECO functions. In any event, it is essential that the persons appointed have the qualities needed to enable them to perform duties required of them in emergencies. Factors to be considered include the following:

(a)Availability – they should be persons who spend most of their time at, or near, their work stations.

(b)Ability to organize others in an emergency.

(c)Reliability." (Exhibit A, page 294)

1. Mr Donaldson, the House Warden, said in a minute dated 19 August, 1993 that the wardens on level 7 of River Quays needed 2 hours each week to complete their training and consolidate procedures.  He considered that this need would continue for a further six months and that the time required would then be scaled down to approximately 15 minutes each week.  (Exhibit A, page 234)

1. On 3 November, 1992, Mr Rodriguez applied for a temporary position of a Customer Service Supervisor (Exhibit A, pages 218-219).  The position, together with other temporary positions, was to be advertised on a permanent basis at a later stage when other Telstra staff had been transferred to River Quays and all staff had an equal opportunity to apply for the positions.  Mr Rodriguez' application was unsuccessful and he was not named on a list known as the order of merit list after the interview.  His application, which was bordered by figures of dancing cats, was "deemed unacceptable" (Exhibit A, page 223).  As to the order of merit, Mr Rodriguez was advised that he had been harshly dealt with in being omitted but that an order of merit had relevance only for a period of six months or so.  He was not included in a later order of merit established after the position of Team Leader at the AO 3 level was advertised as he had not applied for that position.  Mr Rodriguez subsequently lodged an application for the position (Exhibit A, pages 225-226) but was unsuccessful. 

1. On 20 May, 1993, Mr Rodriguez' then general practitioner, Dr Jim Sheppard, referred him to Mr Peter Lamb, an osteopath, regarding neck and back strain due to his sitting in front of a terminal at work (Exhibit A, page 21).  Dr Sheppard gave Mr Rodriguez a medical certificate stating that the symptoms of upper neck and back ligamentous strain from which he complained and which he stated were a recurrence of an old work injury were consistent with that cause.  He considered that Mr Rodriguez was incapacitated for work on 25 May, 1993 (Exhibit A, page 25). 

1. Ms Helen Devine, a physiotherapist, reported on 20 May, 1993 with regard to the workplace environment at River Quays generally and with regard in particular to the appropriateness of the furniture and equipment and their placement.  She visited River Quays again on 22 June, 1993 regarding Mr Rodriguez' particular workplace.  Following that visit, Mr Ken Cox, Telstra's Risk Management Consultant at River Quays wrote to Mr Rodriguez to confirm their agreement that he set out as follows:

"1)      you should undergo a physiotherapy program at Telecom expense – 2 visits per week for 4 weeks, in an attempt to overcome the underlying cause of your problem. These visits are to be coordinated with your Team Leader and wherever possible arranged at the beginning or end of a shift. You should make the necessary arrangements with the physiotherapist of your choice.

2)you gave a commitment that you would comply with all recommendations made by the physiotherapist.

3)The situation is to be reviewed after 4 weeks and a report obtained from the physiotherapist. It would probably be a good idea to have the physiotherapist call me to confirm the arrangements.

4)        you will submit an accident report form and explanatory statement to me through Mr Joe DiBella before Friday 25 June." (Exhibit A, page 26)

1. Mr Rodriguez submitted an undated report.  He referred in that report to the incident at Parramatta and said that it was "to be tied up with previous report" (Exhibit A, page 28).  On 6 July, 1993, Mr Rodriguez lodged another claim for compensation in respect of his neck, back and shoulders and said that it was "to be tied up with previous claim" (Exhibit A, page 29).  He referred to the falling partitions and to Mr Fisher's being a witness to his accident.  Mr Rodriguez submitted another medical certificate in respect of 20 July, 1993 (Exhibit A, page 31). 

1. In reply, Ms Terri Dillon, Telstra's delegate, asked Mr Rodriguez for particulars of his symptoms and the time of their occurrence as well as factors that might have caused or contributed to them.  She noted in her letter of 4 August, 1993 that:

"The information I am seeking relates to the symptoms suffered in May 1993, and all answers should be related to this particular period of time and not to your injury on 11 June 1992." (Exhibit A, page 32)

1. Mr Rodriguez responded to this letter on 16 August, 1993 when he enclosed a report from Mr Michael Plush, physiotherapist, and stated that:

"…the symptoms have been there since injury ocurred (sic) (stiff neck, back pain, headaches etc) but due to the paperwork & complexity to claim for a day under compensation many times I took a day off as flex and then I made up the time by working additional hours, there has been many times where I have gone to work and only have slept 2-3 hours the night before, and there has been many times since my injury where I have worked with a very sore neck and headaches.

Just because I did not put a claim since then does not mean that the symptoms were not there (as stated in physiotherapist's report attached to this letter 'such injury to neck and back varies enormously from time to time due to instability to neck and back'). There has also been a factor that would of aggravated the injury and that is, my previous workplace Telecom Parramatta Sydney there was ergonomic desks unfortunately this is not the case in townsville (sic) Telecom, and due to this there are a number of workers in this building suffering from neck and back pains and headaches, many may not bother to make claims pains are going to get worse if nothing is done about it." (Exhibit A, page 35)

1. On 19 August, 1993, Mr Donaldson wrote to Mr DiBella regarding Mr Rodriguez and said, in part:

"Mr Rodriguez has displayed considerable dedication and enthusiasm in carrying out the role of Floor warden and should be commended for this. However the duties of warden should not adversely affect our ability to carry out our normal functions. It is my view that Mr Rodreguez (sic) has too many extra commitments and this is not compatible with his warden duties I would suggest we ask someone who is less heavily committed. I have recommended this to other wardens and some have discovered it themselves. Mr Rodriguez may be able to nominate a replacement.  Otherwise it becomes a management responsibility." (Exhibit A, page 234)

1. Mr Rodriguez presented medical certificates referring to neck and back pain for the periods 19-29 August, 1993 and 17-21 August, 1993 (Exhibit A, pages 36-37) and 24 August, 1993 to 24 September, 1993 (Exhibit A, page 40).  A meeting was held on 25 August, 1993 among Mr Rodriguez, Mr DiBella, Ms Watson and Mr Cox.  In a letter to Mr Rodriguez dated 26 August, 1993, Mr Cox noted that a voluntary physiotherapy programme had been offered by Telstra to treat his "underlying neck problem" (Exhibit A, page 41).  It was to commence on 12 August, 1993 and to conclude on 8 September, 1993.  Expenses incurred as a result of treatment with Mr Lamb would be met if Mr Rodriguez' claim for compensation were accepted.

1. A meeting was held on 25 August, 1993 among Mr Rodriguez, Mr DiBella, Ms Watson, Mr Cox and Mr Marklew, the CPSU representative.  Subjects discussed included the manner in which Mr Rodriguez completed his time and flex sheets and the role of a customer service representative. (Exhibit A, pages 237-239)  Mr Rodriguez did not agree with the minutes of the meeting (Exhibit A, pages 238-241).

1. As foreshadowed in Mr Cox's letter, questions were submitted to Dr Sheppard and Mr Plush.  Telstra also referred Mr Rodriguez to Dr Laister, orthopaedic surgeon (Exhibit A, pages 48-50).  Mr Rodriguez continued to submit medical certificates for varying periods in respect of his injury, which was variously described as a neck injury, neck and back injury or cervical spondylosis.  On 11 November, 1993, Ms Dillon advised Dr Keyes (general practitioner) that Mr Rodriguez' rehabilitation plan would allow for twice weekly physiotherapy visits from 3.00pm.  A standard working day finished at 4.36pm (Exhibit A, page 59).  Ms Dillon issued determinations on 17 and 18 November, 1993 and 1 December, 1993 to the effect that compensation was payable to Mr Rodriguez for an aggravation of pre-existing cervical spondylosis following an incident at work on 11 June, 1992 (Exhibit A, pages 60, 62 and 68).  Compensation was payable in respect of specified periods of absence from work and for specified expenses.

1. A revised rehabilitation plan was agreed upon among Mr Rodriguez, his supervisor, Ms Tanya Bellam, Ms Devine and Ms Dillon on 13 December, 1993 (Exhibit A, page 74).  The plan alternated Mr Rodriguez' call duties with other duties.  Mr Rodriguez submitted further medical certificates in respect of a number of days in December and January, 1993 and February, 1994 (Exhibit A, pages 74-78).  A further determination was made to the effect that Mr Rodriguez was entitled to compensation in respect of the periods of absence up to 16 February, 1994 and for the expenses incurred in respect of his rehabilitation (Exhibit A, page 99). 

1. On 14 December, 1993, Mr DiBella wrote to Mr Rodriguez asking him to explain anomalies that had occurred in his flex sheets and directing him to resign as the Floor Warden on level 7 at River Quays.  Mr DiBella wrote a further letter to Mr Rodriguez on 15 December, 1993 regarding the duties of Floor Warden:

"After our meeting of 25/8/93 it is very apparent that the duties of Floor Warden are causing a great deal of pressure and stress on you, as well as on your primary duties.

In order to relieve you of this pressure and stress, and to assist you to perform your primary duties as a CSR, I am in agreement with the recommendation put forward by Steve Donaldson the House Warden that you resign as a volunteer Floor Warden as of the 17/12/93 and offer up the position for someone else to continue the fine work already started by you.

This will enable you to concentrate more fully on delivering your primary duties, as a CSR, providing excellent customer service.

Your primary duty as discussed at our meeting is as a CSR and will be carried out to the best of your ability daily and you will not be distracted from this role. Please find attached a copy of these duties." (Exhibit A, page 248)

1. On 15 December, 1993, Ms Sue Bordujenko, the Human Relations Consultant at Telstra, wrote to Mr Rodriguez regarding his taking sick leave without providing a medical certificate (Exhibit A, pages 249-250).  Mr Rodriguez' solicitors responded to that letter.  In the course of doing so, they observed that Mr Rodriguez had only recently become aware that he needed to provide medical certificates for time he was absent as a result of the work related injury from which he suffered.  They also observed that Mr Rodriguez had recently experienced some difficulties with his supervisor, Ms Watson, and his manager, Mr DiBella, because of misunderstanding and lack of communication between Telstra and him regarding his rights and obligations in relation to his ongoing entitlement to compensation. (Exhibit A, pages 251-253)

1. As there was some uncertainty as to how Mr Rodriguez was coping with the rehabilitation programme, there was a meeting among Mr Peter Row, Mr Marklew, Ms Bellam and Mr Rodriguez on 30 March, 1994.  Mr Rodriguez reported that he felt that the rehabilitation programme in place seemed to be too inflexible; there were times when he could keep to the programme, times when he could not and times when he could do more than the rehabilitation programme permitted.  It was agreed that the rehabilitation programme would be restarted and modified to fit Mr Rodriguez' capabilities.  It was also noted that Mr Rodriguez was feeling that he was "…experiencing more & more stress the longer this issue continues.  He would like to see it all resolved as soon as possible, everyone agreed" (Exhibit A, page 106).  There was discussion about a letter from Ms Dillon to Mr Rodriguez.  Mr Rodriguez questioned the need for him to sign medical releases as Telstra should have on its files all the information from his previous compensation claim.  He also suggested that all future correspondence be sent to his solicitors.

1. Mr Rodriguez later expressed concern about the form of the authority he was asked to sign to release his medical records to Telstra and, after discussion with him and a representative of the Public Sector Union ("PSU") it was re-drafted to limit it specifically to treatment of a cervical condition (Exhibit A, pages 113-116).  The PSU had earlier told Ms Dillon on 13 April, 1994 that Mr Rodriguez was prepared to pass Telstra's request for information to his medical practitioners and then to provide it with their responses (Exhibit A, page 260).  His solicitors advised Telstra on 16 May, 1994 that no discussions were to take place between Telstra and any medical practitioners unless Mr Rodriguez was a party to those discussions (Exhibit A, page 119).

1. On 12 May, 1994, Ms Bellam wrote to Mr Rodriguez regarding an alleged misuse of a telephone at River Quays:

"On Wednesday 4 May 1994, it was observed on extension 27730 (the city end tea room) the outgoing light was on and a two party conversation was heard emanating from the hand piece. The question was asked 'Who is using the phone?' After this, you moved from your dining seat to the telephone and asked 'Are you finished?' and disconnected the call

Under the provisions of Clause 10 of the Telecom General Conditions of Employment Award 1989, I direct you to provide me, in writing, by no later than close of business on 19 May 1994, a full explanation of the matter listed above.

A copy of Clause 10 of the Telecommunication General Conditions of Employment Award is attached for your information." (Exhibit A, pages 265-266)

1. Mr Rodriguez' response was dated 13 May, 1994:

"A.      I did not make a two party cnversation (sic) call, not in the sense that you imply, I did make a call but it only invoved (sic) one other party.

B.I only left the telephone a moment to pick up my cup of coffee when someone called out 'Who is using the phone?'

2.Further to this I find that your reaction to an alledged (sic) breach of Ref B is appalling, surely you or whoever drafted Ref A should have checked with me prior to this action taking place.

3.You can rest assured that I have passed on my concerns reference your actions to the PSU, and I ask myself the question 'Does this boarder (sic) on harrassment (sic), and breach of my privacy?" (Exhibit A, page 267)

1. On 27 May, 1994, Mr Rodriguez submitted an expression of interest in two positions as House Warden.  He referred to the occasion on which Mr Donaldson had said that he should be thanked for his considerable effort and dedication.  Until shortly before he expressed his interest, Mr Rodriguez said, he had not been aware that the positions would be declared vacant.  He found it surprising that they were vacant as Mr Donaldson had told them their team was the most competent in the whole building.  He asked for a full explanation.  (Exhibit A, page 269)

1. There followed period of absences covered by medical certificates.  Ms Bellam certified that she received medical certificates from Mr Rodriguez on 3 June, 1994.  They related to the period 12 May, 1994 to 14 June, 1994 (Exhibit A, page 131).  Unaware of that, Mr Row wrote to Mr Rodriguez on 6 June, 1994 stating that he had not provided his Team Leader with appropriate certificates for the period from 12 May, 1994 to 6 June, 1994.  Mr Rodriguez' attention was drawn to the need to provide medical certificates and advised that absences that were in excess of a week might not be regarded as service for any purpose.  He was directed to attend Dr Savis, who was the Government Medical Officer, for an assessment of the nature of the condition from which he suffered and his fitness to resume employment.  An appointment was made for noon on the same day. (Exhibit A, page 133)  Ms Bellam and Mr Daniel Rees delivered the letter to Mr Rodriguez at his home on 6 June, 1994.  Mrs Rodriguez later complained about the visit of the two officers and said that it constituted harassment and that she was already stressed by Telstra's actions against her husband (Exhibit A, page 143).

1. Dr Conway Savis reported on 8 June, 1994.  He noted that Mr Rodriguez suffered from a pre-existing cervical spondylosis and this condition was aggravated by the falling partition on 11 June, 1992.  After giving his opinion regarding that condition, Dr Savis continued:

"His second problem which I believe is his main problem and possibly aggravates his neck condition is stress.  He apparently has had problems at work with his manager which has been occuring (sic) since he was employed in this current job following a transfer from Sydney. He subsequently complains of tightness in his neck and head with associated headaches and stiffness. These headaches occur every second and third day and he takes Naprosyn and apparently has been recommended to take Prozac an antidepressant.

He is a poor sleeper, and was noted at the interview to be quite an anxious person who's particularly concerned about his treatment by Telecom and in particular his manager. He feels very angry towards them and has seen a solicitor privately and indue (sic) course intends to make a claim and hopefully intends this to reach the Industrial Commissioner and be reinstated in his job and have the manager dealt with in the appropriate way.

Therefore, in answer to your questions Mr Rodriguez suffers from a stress situation and some minor degree a neck injury that is cervical spondylosis. His neck discomfort is a symptom of his stressful situation. As to Mr Rodriguez fitness to resume employment this is a difficult question and in his current frame of mind I think any resumption of employment will I am sure result in further sick days being taken. Therefore, I beleive (sic) that it is in Mr Rodriguez and Telecom interests to resolve the problem. His Local Medical Officer has referred him to Dr Richard Green, Psychiatrist and this appointment is on 1st July, 1994. However, I believe that Mr Rodriguez may be better suited to see a Psychologist for stress counselling and I believe that Telecom should arrange this form of treatment. Also as a suggestion Mr Rodriguez current opinion and feelings towards his manager are rather poor and he had indicated to me that if he could be transferred to another section he would be willing to return to work. Obviously, the stress that has developed could be alleviated.

In reference to his cervical spondylosis if his stress condition was resolved this also could be resolved. As a suggestion I have indicated to Mr Rodriguez that he should purchase a soft cervical collar and wear whilst at work.  This could be re-embursed (sic) through Comcare." (Exhibit A, pages 138-139)

1. Mr Rodriguez was referred by his local medical officer to Dr Richard Green, Psychiatrist, who reported to Dr Travers on 10 June, 1994:

"This … thirty-eight year old man…gave the impression of being depressed in the early parts of the interview but later on he was able to smile and his affective responses were within normal limits.  The final impression was that he is suffering from symptoms related to anxiety associated with bureaucratic problems in Telecom where he has worked for the last five years.

Although he is suspicious of the motives of the Telecom bureaucracy and has come to the conclusion that he has no future with Telecom, I do not believe that he is suffering from a paranoid state.

He clearly relates his occipito-nuchal tension to the stress that he is currently experiencing with Telecom. He did mention that he had had a past injury to his neck in 1992 when two partitions fell on the back of his neck but this did not result in any significant time off work. Again he says that 'the hassels" (sic) have largely caused his current level of occipito-nuchal tension.

There is no past history of nervous disorder.

There is no family history of nervous disorder.

His early family life and his description of his relationships with his parents, siblings and spouse do not suggest that he has a personality disorder.

He has had a number of long term jobs in the past. He impresses as being a loyal and dedicated worker.

He says that he has suffered a loss of confidence, suffers severe initial insomnia sometimes to 4am in the morning and feels that he has 'no hope'. In the last three months he has been inclined to be tearful. He is irritable. When asked about feelings of depression he indicated that he feels that they (Telecom) 'have taken everything out of me …'.

There has been a modest weight loss in the last three months.

It would appear that at times his mood is depressed but his symptoms do not constitute a depressive illness…" (Exhibit A, pages 140-141)

1. Ms Dillon made a further determination on 28 June, 1994 to pay Mr Rodriguez compensation for periods of incapacity taken up to 6 May, 1994 and for medical expenses (Exhibit A, page 147).  Compensation was again paid on the basis that Mr Rodriguez had suffered an aggravation of pre-existing cervical spondylosis following an incident at work on 11 June, 1992. 

1. On 30 June, 1994, a document setting out a charge under clause 10 of the General Conditions of Employment Award 1989 was handed to Mr Rodriguez (Exhibit A, page 270).  It charged Mr Rodriguez with being guilty of improper conduct as an employee in that he misused Telstra's equipment in that he facilitated a two party conversation in the tea room at River Quays.  At the same time, he was given a notice advising him that he could admit or deny the truth of the charge and could furnish a written statement in relation to the charge.  If he wished, he could make oral submissions.  Mr Peter Smith, the Service Delivery Manager, was appointed as the officer to conduct the enquiry into the charge. 

1. Also on 30 June, 1994, Mr Row sent a letter to Mr Rodriguez referring to inconsistencies in his records of attendance when a comparison was made between his flex records and the attendance book (Exhibit A, pages 296-298).  Mr Row also sent a second letter to Mr Rodriguez responding to a number of issues either he or his solicitors had raised (Exhibit A, pages 286-288).  Those issues related to correspondence and to whom it was to be addressed, Mr Rodriguez' position as Floor Warden, his flex sheets and sign on and sign off sheets (i.e. the records of attendance), Team Leader positions and Mr Rodriguez' requests that files concerning the dispute be destroyed, that he be cleared of all wrongdoing, that appropriate steps be taken to discipline officers who were found guilty of misconduct or abuse of power regarding Mr Rodriguez and that his legal costs be paid by Telstra.  A third letter sent by Mr Row to Mr Rodriguez on 30 June, 1994 directed Mr Rodriguez to provide him with details as to why he had failed to obey Mr DiBella's direction to resign as Floor Warden (Exhibit A, page 309).

1. On 13 July, 1994, Dr Green wrote that he had reviewed Mr Rodriguez on 13 July, 1994 and found that:

"Mr Rodriguez appearance was much the same as it was when I first saw him.  He continues to complain about administrative matters with Telecom and overall his mental state has deteriorated.

He is unable to stop worrying about the situation although he makes efforts to get thoughts of Telecom out of his mind. He is tearful, very anxious, has impaired appetite and some weight loss, impaired concentration, sleep disturbance with initial insomnia and eary (sic) morning wakening and loss of energy. He has no definite thoughts that his life is not worth living and no suicidal thoughts but he says in a joking manner, I am worth more dead than alive.

He has been off Prozac since I last saw him. This might account for the more obvious evidence of depression now. He thinks that the Prozac did not help him, so I have started him on Anafranil.  I will be reviewing him." (Exhibit A, page 313)

1. On 21 July, 1994, Mr Rodriguez responded to Mr Row's letter of 30 June, 1994 regarding the suggestion that he had failed to carry out a direction to resign as Floor Warden (Exhibit A, pages 314-315).  He stated that he had not received the direction until 22 December, 1993 and asked that the following be taken into account:

"a.       I was under going (sic) Physio at the time,

b.There was pressure on me to complete my compensation submission,

c.There was alot (sic) of friction between the ex-manager and myself, over sick leave, etc,

d.The centre was undergoing a substantial amount of change due to the arrival of the new Manager,

e.I had a new Team Leader and the team was undergoing a lot of changes,

f.I was also going through the process of moving into a new house, and

g.At work, there were a number of unresolved issues that were being addressed.

As you can see, during that period I was under alot (sic) of stress as there were numerous issues that I was trying to address at the same time. This is were (sic) I, as would anyone, suggest that I was possibly confused in regards to the direction to resign as a Floor Warden.
…" (Exhibit A, pages 314-315)

On the same day, Mr Rodriguez briefly responded to the issue regarding his flex and records of attendance.  He pointed out that the periods in question had occurred over twelve months previously and he could not truthfully recall the circumstances surrounding the instances.  Furthermore, the CPSU and Telstra were engaged in discussions over flex sheets being compared with the building occupancy book (i.e. the records of attendance).  (Exhibit A, page 316)

1. On 22 July, 1994, another delegate of Telstra reconsidered the determinations already made regarding Mr Rodriguez and revoked all determinations from 18 November, 1993.  He remitted the claim to the original delegate to investigate it further and to determine it again  (Exhibit A, pages 151-154).   On 26 July, 1994, another delegate, Ms Valerie Franks, expressed her opinion that Mr Rodriguez was entitled to compensation up to and including 4 March, 1994 but that liability should cease after that date.  He was invited to submit further information in support of his claim.  (Exhibit A, pages 155-156)   Ms Franks made a determination in these terms on 6 September, 1994 (Exhibit A, pages 161-164).

1. Dr Green wrote a further report dated 12 October, 1994.  He reported that he had seen Mr Rodriguez regularly since his first visit on 7 June, 1994.  His report reads, in part:

"When I reviewed him it was clear that Mr Rodriguez was suffering from a major depressive disorder.  He was preoccupied to the extent of being obsessed by worries related to Telecom which he was unable to get out of his mind for any significant length of time. As noted in my report to Dr. Travers of the 13 July, 1994., he had not improved very much on Prozac and so I started him on Anafranil.
…
Mr Rodriguez symptoms of major depressive disorder developed insidiously.  He says that by July '93 he was tearful, tense and suffered from pain in the neck, back and various other symptoms.

The symptoms related to the neck injury of May 1992 became aggravated by the development of his major depressive disorder.  His preoccupation with work related stresses and his musculoskeletal symptoms made the diagnosis of the underlying major depressive disorder difficult.  However in my opinion his major depressive disorder was very significant in his impaired ability to deal with work related stresses.

His inability to cope due to his depressive illness has resulted in the development of further work related problems which in turn have added to Mr Rodriguez worries.

It is very probable that Mr Rodriguez was developing his depressive illness early in '93 ie from before the 4th March, 1993 but that he (and others) saw his disability in terms of musculoskeletal symptoms related to his neck injury of May 1992.

In my opinion it will take many months for Mr Rodriguez to make a full recovery from his major depressive disorder. It may take even longer for his negative attitudes towards Telecom to ameliorate. It is likely that as his depression improves he will be left with a residual phobic anxiety in relationship to Telecom which may prove very resistant to further treatment and result in him being unable to return to work. Accordingly my prognosis for return to work is guarded.

In my opinion work related stresses are very likely to be the  precipitating and aggravating factors to his major depressive disorder." (Exhibit A, pages 166-167)

1. B. McKinnel, a delegate of Telstra, affirmed Ms Frank's earlier determination of 6 September, 1994 and did so on 28 November, 1994 (Exhibit A, pages 173-177). 

1. On 8 November, 1994, Mr Smith found that Mr Rodriguez had been guilty of improper conduct as an employee in that he had misused Telecom equipment by facilitating a two party conversation on an extension at River Quays.  He concluded that Mr Rodriguez should make restitution to Telstra in the sum of $5.62 being the cost of the eleven minute telephone call.  Mr Row was directed to formally counsel Mr Rodriguez about the matter.  (Exhibit A, pages 330-331)

1. On 14 November, 1994, Mr Row wrote to Mr Rodriguez regarding the flex records and records of attendance and accepted Mr Rodriguez' explanation.  He said that the matter was concluded but made some comments regarding the discrepancies and the manner in which the records must be completed and used in the future.  (Exhibit A, pages 333-334)  On the same day, Mr Row formally counselled Mr Rodriguez regarding his failure to comply with a direction to resign as Floor Warden (Exhibit A, pages 335-336).

1. Dr Green wrote a further report on 23 June, 1995 in which he reiterated matters dealt with in his earlier reports.  He continued:

"Since then Mr Rodriguez (sic) mental state has continued to improve.  He remains significantly impaired.  He remains inordinately suspicious of Telecom's motives in relationship to himself.  On the 18th January, 1995 he informed me that he was certain that his house ws (sic) bugged by Telecom.  He was also certain that Telecom would ruin any chances he had of obtaining other employment. As a result I added the antipsychotic medication Stelazine to the antidepressant Anafranil that he was already taking. On the 08.02.95 he appeared to be much more settled and said that he felt 'not as tense'. However he said that he was continuing to check cars as they drove by his house and he would get up at night and check the locks of his house. He said that he felt that there had been somebody inside his house when he and his wife had been out. He also indicated that he felt he was being followed.

I have reviewed him most recently on the 21.06.95 and he felt that his mental state was basically stable 'not going forward of (sic) backwards'. He indicated a lack of drive … 'I need to deal with thing (sic) and can't …' indicating letters, bills and so forth. He indicated that he was relying on his wife to attend to those matters. He continued to be suspicious… 'I feel sometimes they (Telecom) could be looking at me and checking me out … I don't say much over the phone … I am wary'. He said that strange things had been happening over the telephone, ie picking up the phone, finding it is dead and then function reverting to normal.

Although his mental state is greatly improved, he still remains preoccupied wit (sic) the perceived injustices that he has suffered at the hands of Telecom.

In my opinion on the balance of probabilities Mr Rodriguez (sic) major depressive disorder with paranoid features developed as a consequence of difficulties wich (sic) he has experienced in his relationship with Telecom as a result of the injury he sustained on the 11th June, 1992.

I do not believe that Mr Rodriguez will be able to return to work with Telecom. A resolution of his major depressive disorder with paranoid features does not necessarily mean that he will see Telecom as a benign or benevolent employer. It is most likely that his negative attitudes to Telecom will continue indefinitely.

At present his mental state is such that he is unemployable. He remains irritable, preoccupied with problems relating to Telecom and he lacks drive.

Depressive illness commonly aggravates a patient's symptoms arising from physical causes. I believe that in Mr Rodriguez (sic) case his symptoms related to his neck and back have been aggravated by his depressive illness.
…" (Exhibit A, page 348)

A further report dated 26 July, 1995 was consistent with this report (Exhibit A, pages 350-351).

1. Dr Klug wrote a report on 21 September, 1995 (Exhibit A, pages 372-379).  He wrote a lengthy summary of Mr Rodriguez' history.  He concluded:

"1.       The account provided by Mr Rodriguez in the present examination was dominated by an almost overwhelming preoccupation with Telecom, including a strong belief that he was (sic) been unjustly dealt with and harassed by Telecom/Telstra and that this organization is still persecuting him. Some of his statements – e.g. that Telecom/Telstra is tapping his phone – suggested paranoid thinking.

His clinical presentation was that of an extremely anxious individual and consistent with his expressed thought content. He clearly believed what he said and there was no suggestion of deliberate exaggeration.

2.(a)     Available information indicates that Mr Rodriguez's psychiatric condition began to manifest itself in the latter part of 1993 when his dispute with Telecom was in full swing. Documented evidence of his anxiety/depressive disorder and its relationship to stresses arising from his employment is provided by medical certificates issued by Dr. Keyes from March 1994 onwards and by the report of Dr. Savis (GMO) who stated on 8.6.95 that Mr Rodriguez's main problem was stress related to his work situation and the stress was aggravating his neck problems.

(b)Based on Mr Rodiguez's history and clinical presentation in the present examination, and information contained in the above-mentioned documents it is my opinion that:

*Mr Rodriguez suffers from a MAJOR DEPRESSIVE DISORDER with paranoid features.

*His psychiatric condition is causally related to stresses associated with his employment with Telecom/Telstra." (Exhibit A, page 378)

In answer to particular questions, Dr Klug said that work factors have materially contributed to the contraction, aggravation, acceleration or recurrence of Mr Rodriguez' present condition.  Although his depression will probably subside slowly once his dispute with Telstra has been settled, it is unlikely that he will ever lose his suspiciousness of Telstra.  Therefore the effects of his condition are likely to be permanent.  At the time of writing his report, Mr Rodriguez' condition was likely to be permanent. 

1. Dr John Morris, an orthopaedic surgeon, reported on 26 September, 1995 that he considered Mr Rodriguez' pain to be due to osteoarthritis.  He was not aware of any connection between stress and the onset of osteoarthritis.  Dr Morris assessed Mr Rodriguez' disability as 5%.  (Exhibit A, page 380)

1. Dr Green reported further on 4 June, 1996 and said in part:

"… Mr Rodriguez is suffering from major depressive disorder with psychotic and obsessional features.  However he also has an orthopaedic problem with his neck on which I make no further comment.

There is no specific event which can be identified as the probable cause of Mr Rodriguez' condition. There are a number of factors which are probably relevant, ie the injury to his neck and the subsequent administrative difficulties that Mr Rodriguez experienced in relationship to Telstra.

His illness probably started some time before July 1993.

Mr Rodriguez had numerous complaints regarding the behaviour of Telstra towards him which he perceived as being unjust and which he believed caused his psychiatric disorder. His complaints regarding Telstra were much more extensive than the issue of his compensation being rejected, his leave attendance being questioned and being disciplined over the telephone incident. However all those specific matters would have aggravated his depressive illness but I doubt that they could be regarded as causal. Accordingly if any or all of those events were removed then in my opinion Mr Rodriguez would still be suffering from his condition.

Yes, in my opinion there has been aggravation of his depressive illness by the numerous administrative difficulties that he sites (sic) in relationship to Telstra.

No, in my opinion this aggravation did not cease given that Mr Rodriguez has not worked for Telstra since 1995 because Mr Rodriguez is still pursuing various matters in relationship to Telstra though legal channels.

It is not for me to judge the veracity or otherwise of conflicts in the account of events being related by the various parties in this dispute. I believe, on the balance of probabilities that Mr Rodriguez did in fact experience significant administrative problems in his relationship with Telstra which seriously aggravated his mental state.  I also believe that there were times when Mr Rodriguez' mental state was so disturbed that his perceptions of Telstra were unrealistic." (Exhibit A, pages 418-419)

1. On the basis of the evidence of Ms Murphy and Mr Rodriguez we find that he attended a Bible College at Katoomba.  The date is a little uncertain but we find that he told Ms Murphy that he did so in 1995.

2. On 11 June, 1996, Dr Klug expanded upon his earlier report:

"1.       Mr Rodriguez suffers from:

(a)MAJOR DEPRESSIVE DISORDER

(b)DELUSIONAL DISORDER, persecutory type.

2.The probable cause of Mr Rodriguez's psychiatric condition is a chain of events commencing with his work related neck and back injury in June 1992 and continuing through a series of related events which occurred over the next two years.  As a result of these events, Mr Rodriguez has developed the belief that he is being persecuted by Telecom for having claimed compensation for his neck and back injury. His persecutory beliefs involve mainly his supervisors, whom he sees as instruments of Telecom. In turn, the resulting deterioration of his relationship with his supervisors has contributed to the gradual strengthening of his persecutory beliefs.

3.I am unable to state precisely the point in time when Mr Rodriguez's psychiatric condition began to manifest itself. However, based on his history obtained when I first saw him on 19.9.95, it would seem that he developed various emotional and coping problems during the latter part of 1993 (see the penultimate paragraph on page 2 of my report dated 21.9.95).

4.On the balance of probabilities his condition arose out of a series of events commencing with the original injury and including the change of his duties, the Floor Warden matter, the sign-on-book matter, the disciplinary action over the telephone incident and the stopping of his compensation after he ceased work, among other things. I consider it unlikely that Mr Rodriguez would be suffering from his psychiatric condition if these events had not occurred.

…" (Exhibit A, pages 421-422)

1. On 21 August, 1996, a delegate of Telstra determined that Mr Rodriguez was not entitled to compensation for the condition of a major depressive disorder (Exhibit A, pages 423-431). 

1. Dr Levien is a consultant psychiatrist to whom Mr Rodriguez was referred.  He wrote a report on 16 September, 1996 in which he detailed a number of complaints Mr Rodriguez had made about his work and his supervisor.  Dr Levien diagnosed that Mr Rodriguez was suffering from a Major Depressive Disorder with Melancholia (chronic).  The probable cause was work related stress.  There was no family history of psychiatric conditions, no personal history of psychiatric conditions or of vulnerability to high levels of stress, his condition did not appear to be due to some other extraneous factor and his present condition was not due to the progression of a pre-existing affective disturbance.  In Dr Levien's opinion:

"On the balance of probabilities, Mr Rodriguez's condition arose out of the dispute between Telstra and himself focusing upon a recurrence of symptoms due to his original injury in 1992. A major factor here appears to have been the delays in Telstra reaching a decision as to his entitlements to financial assistance for medical treatment. In addition there appears to have been major delays in reaching decisions concerning various allegations made by Telstra Management against Mr Rodriguez which tended to encourage a climate for suspiciousness and mistrust. There also appears to have been a break down in the process of conciliation between Mr Rodriguez and Management.

4.
Mr Rodriguez currently is totally incapacitated for all types of employment due to his psychiatric condition. The question has been posed as to when one might expect his depression to lift given that Mr Rodriguez has not worked for Telstra since early 1995. Unfortunately his depression is entrenched and perpetuated by financial penury, unemployment, and Mr Rodriguez's perception that he has suffered an injustice which has yet to be fully resolved. Clearly these psychological stressors perpetuate his Major Depressive Disorder.

…

4.The onset and progression of his depression and it's perpetuation seem intimately related to issues in the workplace. In particular there appears to have been a lack of conciliation over a number of disputed issues occurring from a recurrence of his past neck injury. Mr Rodriguez highlights a range of unfair and prejudicial practices focused upon himself, delays in decision making about charges laid against him and a climate of acrimony, suspicion and mistrust which he felt pervaded the work place.

5.The events in this case are complex and subject to different interpretations, in particular there appears a gap between the case as outlined by Telstra (letter from Telstra 29/5/96) and the events related to me by Mr Rodriguez. I would therefore endorse a judicial process clearly testing the evidence from both parties to get to a wider sense of the truth of issues occurring between Mr Rodriguez and Telstra. However from a directly observed clinical examination, I feel Mr Rodriguez is genuine in his understanding of events and clearly exhibits signs and symptoms of a Major Depressive Disorder with Melancholia." (Exhibit A, pages 447-449)

MEDICAL EVIDENCE AT THE HEARING

1. In view of the conclusions we have reached regarding the various incidents at Telstra's premises in Townsville, we have not summarised the evidence in relation to them.  Instead, we have referred only to the medical evidence that was given at the hearing. 

Dr Klug

1. In his report dated 26 September, 2000, Dr Klug set out in some detail Mr Rodriguez' present complaints and difficulties:

"-'Butterflies' in the stomach most of the time.

-A feeling of being highly stressed.

-A sense of hopelessness.

-A feeling of not being in control of his life.

-Flat, depressed mood most of the time.

-Inability to enjoy himself.

-An urge 'to give up on everything.'

-A feeling that he is being squashed 'by all the problems TELSTRA has created.'

-Insufficient energy to keep going.

-'A lot of anger inside'.

-Difficulty falling asleep.  He usually falls asleep at 2-3 a.m., then sleeps fitfully until 9 a.m.

-Difficulty in concentrating for more than half-an-hour.

·Constant tightness and soreness in the neck and upper back, as well as frequent headaches, including migraine type episodes associated with vomiting.

He states that he feels very angry about TELSTRA which, he believes, has caused him to lose his home and car and nearly caused him to lose his family. He says: 'If TELSTRA was a person I would kill it … I wouldn't think twice about it.' He still feels very uneasy about TELSTRA and believes that TELSTRA is still watching him and tapping his phone, even though the phone is in his wife's name. He says: 'They wouldn't care'.

He believes that TELSTRA has singled him out for discriminatory treatment from the start because he took sick leave after his neck and back injury. He cites what he describes as an 'endless list' of discriminatory acts by TELSTRA, including TELSTRA's allegedly false claims that he did not provide a medical certificate and that he disobeyed a manager's order to resign as a floor warden. He states that he was the only person required to ring the supervisor if he wanted a day off and the only person to be watched by supervisors at work. He states that if he took a day's sick leave, the supervisor would drive past his home to check on him.

He believes that TELSTRA would go to any length to avoid liability for compensation and legal expenses." (Exhibit C)

1. After setting out Mr Rodriguez' personal situation and further history and after reviewing previous reports given by himself and other specialists, Dr Klug concluded that Mr Rodriguez suffers from Major Depressive Disorder associated with considerable anxiety, Delusional Disorder Paranoid Type and therapeutic drug (codeine) dependence.  Apart from failing to obtain a promotion, all of the other 26 factors set out in Mr Rodriguez' solicitors' letter to him of 15 September, 2000 (Exhibit E) contributed in a material degree to his condition.  No other factors contributed in a material degree.  The 26 factors included the physical injury and Mr Rodriguez' concerns about it, the method in which Telstra handled his claim, a stressful and uncomfortable working environment, involvement in industrial action, having to submit a second claim, his perception that his supervisors did not believe that he was suffering from an injury, the refusal to pay compensation, his perception that he was under surveillance, the removal of quality work from him and the charge with respect to his engaging in improper conduct. 

1. Based on Table 5.1 of the Guide to the assessment of the degree of permanent impairment ("Guide"), Dr Klug assessed the level of Mr Rodriguez' impairment to be 25% and considered the impairment permanent.  In a report dated 31 October, 2000, Dr Klug expressed the opinion that Mr Rodriguez' condition prevented him from securing suitable employment.  Mr Rodriguez would benefit from treatment but that would be unlikely to cure his mental illness and enable him to return to employment.

1. In giving oral evidence, Dr Klug said that he had not noticed that Mr Rodriguez was any better when he saw him on 26 September, 2000 than when he had seen him in 1997.  When asked whether Mr Rodriguez' condition would be likely to improve when the compensation issues were resolved, Dr Klug observed that Mr Rodriguez suffers from two conditions: a major depressive disorder and a delusional disorder.  Each has a different prognosis.  With regard to the first, it can be expected to improve with the removal of the major stressors.  That does not apply to the second condition. In some cases, a delusional disorder may resolve itself but it is not uncommon that it becomes chronic. 

1. The cause of a delusional disorder is unknown.  That is to say, it is not known whether it has a constitutional or genetic basis or whether it is a reactive state.  To the best of Dr Klug's knowledge, Mr Rodriguez did not have a personality that predisposed him to develop either a major depressive disorder or a delusional disorder.  Dr Klug did not agree with Mr Dickson's proposition that a delusional disorder is not acknowledged as a reaction to stress but may produce a brief reactive disorder.  He could not answer whether the delusions were brought about by the mood disorder or vice versa. 

1. Dr Klug did not consider that Mr Rodriguez' unfamiliarity with Townsville or any factors in the breakdown of his first marriage played any part in the development of his condition.  He confirmed that the 26 matters set out in the solicitor's letter of 15 September, 2000 were the relevant contributing factors to Mr Rodriguez' condition.  Mr Rodriguez could benefit if his treatment were to include psychotic drugs but his condition will remain the same so long as the litigation continues. 

1. In 1997, Dr Klug said, Mr Rodriguez had told him that he was not as preoccupied with Telstra as he had been previously when he had seen him in 1995.  Despite that and while his concentration had improved, he remained suspicious of Telstra.  Not all of Mr Rodriguez' ideas could be regarded as paranoid ideas.  When the litigation was resolved for Mr Rodriguez, Dr Klug said that it was possible, but not likely, that he would be able to work again.  His reason for saying that was that people who suffer persecutory delusions may attach their delusions to some object other than that causing the delusions in the first place.  Even if some other work were available to Mr Rodriguez, the chances are that he would become paranoid.  A likely scenario is that he would project his delusions on to others.  Dr Klug was not saying that Mr Rodriguez was unemployable on any basis. 

Dr Levien

1. In giving oral evidence, Dr Levien said that he had seen Mr Rodriguez on approximately ten occasions and that, on the last, he had been very volatile.  He would over endorse items that truly represented his mental state.  He noted that Dr Reddan had diagnosed a lesser degree of depression than he had but said that the difference could lie in the passage of time or in treatment.  Dr Levien agreed with Dr Reddan that Mr Rodriguez is not delusional but said that he does feel persecuted.  As regards Mr Rodriguez' employability, Dr Levien commented that Mr Rodriguez had been extremely unwell when he had seen him and would have benefited from hospitalisation. 

1. Dr Levien did not agree with Dr Reddan regarding Mr Rodriguez' pre-morbid personality.  He felt that his pre-morbid personality was robust and there was no evidence that he was "an accident waiting to happen".  Looking back in Mr Rodriguez' life, Dr Levien did not consider that the explanation for his anxiety lay in the failure of his first marriage.  He observed that Mr Rodriguez had undertaken a range of jobs and had been promoted.  He had done well in those jobs.  He was not intrinsically vulnerable.  In his youth, he did not fall into difficulties and held himself together under the burden of the breakdown of his marriage.  Mr Rodriguez did not tend to become symptomatic in talking about his previous marriage.  At the same time, Dr Levien did not consider that the explanation for Mr Rodriguez' condition lay in his new marriage.

1. When told that Mr Rodriguez' general practitioner, who was not called to give evidence, had noted "anxiety" on one occasion, Dr Levien said that he was not prepared to change his diagnosis on the basis of that word's appearing in clinical notes.  There was no treatment for anxiety recorded at the time.

1. Dr Levien explained what he had meant when he said in his report that Mr Rodriguez did not show any evidence of delusional thinking or overt Paranoid Disorder (Exhibit A, page 446).  Some psychiatrists have gone one way in this case and others the other.  He said that the line between the two is difficult.  Delusional thinking is not always genetic although some people have a genetic predisposition to it.  It is an area still unknown to psychiatrists.  In Mr Rodriguez' case, Dr Levien thought that the events had happened in some form.  Mr Rodriguez could have been paranoid but he spoke with such reasonableness.  He was not necessarily delusional.  The workplace could have been degenerating but that went beyond facts known to Dr Levien.  He did note that Mr Rodriguez had been quite happy in Sydney but that he felt that the group was treating him quite unreasonably in Townsville.

1. When asked whether he would have expected there to have been substantial healing in the last ten years, Dr Levien said that he would not.  The reason for that lay not in the ongoing litigation.  Instead, it lay in several reasons.  First it lay in the nature of Mr Rodriguez' condition combined with underemployment.  People become fixated on certain periods of their lives, ruminate on it endlessly and become preoccupied with blaming their misery on it.  Second, Mr Rodriguez should be having far more treatment than he has received in the past. Two visits to Dr Parmegiani in the last two years are not enough.  He needs far more, Dr Levien said.  The third reason why he would not expect Mr Rodriguez to have improved lay in the ongoing litigation.  Mr Rodriguez feels that he has been denied natural justice.  The third reason leads to the fourth and that is that his having to go over events almost amounts to his being re-traumatised.  Even when the litigation is complete, though, Dr Levien did not expect Mr Rodriguez to get better.  People in his situation become broken people.  Their condition can be likened to a psychological paralysis from which they do not get better.  If he is not better now, it is not to be expected that he will do so.  People do not get well even if they have a couple of hundred thousand in their pocket, Dr Levien said.  In Mr Rodriguez' case, he saw him as recovering to the extent of 30 or 40% but did not see him ever recovering to become more than a very part time employee.

Dr Erian

1. Mr Rodriguez has been consulting Dr Erian since 22 September, 1998 when he first moved to Sydney.  He informed Dr Erian at that time that a heavy partition wall had fallen on him on 11 June, 1992 and that, since then, he has had ongoing pain.  This has led to frequent trips to the doctor, regular medication and litigation with Telstra.  On many occasions, Dr Erian wrote in his report of 13 February, 2001, Mr Rodriguez has complained to him of neck pain (Exhibit F).  That pain, Mr Rodriguez complains, always interrupts his sleep.  As a result, he wakes up each morning suffering from headaches and with feelings of depression and agitation.

1. In giving oral evidence at the hearing, Dr Erian said that, in May, 2000, he had referred Mr Rodriguez to a neurologist regarding his headaches.  At that time, Mr Rodriguez had complained of headaches at the top of his head and said that he had been tired and lethargic for years.  He did not have a report from the specialist but he, Dr Erian, considered that Mr Rodriguez' headaches were related to his ongoing depression and frustration.  We return to this below (paragraph 69).

1. Painkillers were prescribed for Mr Rodriguez' degenerative spondylosis.  Dr Erian noted limited lateral flexion in Mr Rodriguez' neck in his examination in 2001.  He could link the neck condition with the work incident Mr Rodriguez had related to him.  Mr Rodriguez had complained of his neck injury when he first consulted Dr Erian.  Dr Erian prescribed an anti-inflammatory drug; Brufen.  Neck pain was also the subject of the second consultation on 22 February, 1999. 

1. Mr Rodriguez had not complained to him of anxiety but Dr Erian said that he could recall from the first time that Mr Rodriguez was not happy.  The first time that Dr Erian looked at Mr Rodriguez for symptoms of anxiety and depression was in August, 1999.  He tried to treat him by using anti-depressants and by controlling his pain.  When that did not succeed, he referred him to a psychiatrist, Dr Parmiagani.  That was at the beginning of February, 2000.  Dr Erian did not know on how many occasions, Mr Rodriguez had seen Dr Parmiagani.  He had received one report from him.  Public mental health facilities are available in the area of Sydney in which Mr Rodriguez lives.  Dr Erian has a choice of sending him to any one of three such facilities.  

1. Dr Erian said that Mr Rodriguez consulted him regarding a range of complaints other than neck and/or back pain.  He did not express any concern or anxiety regarding these complaints.  Mr Rodriguez did, however, complain of anxiety in connection with low back pain.  His low back pain came with his neck pain.  Dr Erian prescribed an anti-inflammatory and a pain killer.  Dr Erian did not refer Mr Rodriguez back to Dr Parmegiani when he complained of headaches in May, 2000 but did prescribe medication and referred him to an allergist.  After the allergist's report, Dr Erian concluded that Mr Rodriguez' headaches arose from both his neck pain and his depression and anxiety.  Depression aggravates pain and pain aggravates depression.  Dr Erian noted that Mr Rodriguez' depression increased in October, 2000 as he was going through his allegations.  Mr Rodriguez did not tell Dr Erian of any other features of his time with Telstra that might have affected his emotional well-being.

Dr Reddan

1. Dr Reddan's first report of 7 June, 2000 was prepared after she had been given the four appeal books (Exhibit A) and interviewed Mr Rodriguez.  She took a detailed history from him but noted that it was difficult to do so as he frequently told her that he could not remember events.  Attempts to explore matters further often did not result in further material being gathered.  Dr Reddan's examination of Mr Rodriguez' mental state revealed:

"… a small, rather squat man, with poor dentition.  He was cleanly dressed, but his general self-care was poor.  His social skills were also poor.  He was a difficult historian frequently claiming that he could not remember events. He was vague and tended to repeat non-specific phrases to describe his problems. At times he seemed guarded.

His speech initially lacked spontaneity. On a number of occasions, however, his speech became pressured when he was reporting upon the victimisation and harassment he complains of. At other times his speech was of normal rate, tone and volume.

His affect, that is, the observable range of his emotional expression, was reactive and congruent with his mood. There was no evidence of any restriction or liability of his affect. At times he appeared perplexed. His mood was initially anxious, but this improved substantially as the interview wore on. At times he appeared angry, and overall his mood could be described as dysphoric. There was no evidence of psychomotor agitation or psychomotor retardation.

His thought form was mildly disorganised. His thought content revealed some paranoid themes, but I could not find evidence of delusional thinking. His thought stream suggested a tendency to ruminate. His thought possession was normal. He reported a substantial diminution in his enjoyment of life, but he denied anhedonia, that is, an inability to experience pleasure. He appeared to lack self-confidence and to have a rather low self-esteem, although there were some matters about which he appears to idealise himself, for example, he claimed great personal moral virtue. He reported that he gives no thought to his future. He denied current suicidal ideation.

There was no evidence of any perceptual disturbance.

His attention and concentration were intact for interview purposes and he was not particularly distractible. He was oriented and appeared to be of average intellect.

He displayed a superficial insight into the nature of his psychological functioning.  His judgement for day-to-day matters did not appear to be grossly disturbed." (Exhibit 3, pages 9-10)

1. Dr Reddan's opinion as to Mr Rodriguez' condition is summarised in the following passage from her report:

"Mr Rodriguez relates suffering an injury to his neck in June 1992.  He reported that he thereafter developed pain, stiffness in his neck and associated headaches.  He reported, however, that he was progressing reasonably well with conservative treatment and he specifically denied developing any significant mood problems or anxiety, as a result of his symptoms. Mr Rodriguez reported that his difficulties began when he transferred within Telstra to Townsville and he essentially attributed the conflict he had with management there to a perception that his supervisor did not believe he had suffered an injury and did not require time off work for treatment. It would appear that his supervisors and managers did have some concerns as to the veracity of Mr Rodriguez' complaints. Mr Rodriguez then reported that he became depressed and stressed about his condition. He was vague about the specifics of his symptomatology, but in considering the whole case, I think it likely that Mr Rodriguez's symptoms commenced over the latter part of 1993, but they probably did not reach the level of a disorder until 1994. The precipitant to him leaving work was the charge in relation to misuse of a telephone and he did not consult a psychiatrist until June 1994.

It is my opinion that Mr Rodriguez developed Major Depression (Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition). It is my opinion that Mr Rodriguez was predisposed to his condition by virtue of his personality. His presentation and self-report would suggest that he has avoidant, obsessiional (sic) and paranoid personality traits. His developmental history and the medical records would suggest that he has suffered ear, nose and throat problems chronically as a result of the cleft palate he was born with and which was later repaired, but he also appears to have been preoccupied with his health and suffered anxiety previously. I note quite an extensive sick leave history from the time he commenced working with Telstra. It is my opinion that the precipitant to his condition was the conflict with his supervisors and managers. The residual symptoms of the injury incurred in June 1992 were not primarily responsible for the depression which developed. It is possible that his perception of pain altered as he became depressed.

On 30 May 2000 I formed the opinion, based on Mr Rodriguez' self-report, that he is probably suffering from a Dysthymic Disorder (DSM-IV), that is, chronic depression. It is my opinion that Mr Rodriguez' condition has been perpetuated by a combination of circumstances including his personality and the ongoing litigation which has kept him focused on his previous difficulties and maintained his paranoia. The litigation has incurred for him further stressors, particularly financial ones. It is also likely that his condition has been perpetuated by an increase in his ingestion of Panadeine forte. Although Mr Rodriguez refers to this as 'an addiction' it is more likely that he has developed a physiological dependence upon codeine. …" (Exhibit 3, pages 13-14)

1. Dr Reddan considered that Mr Rodriguez might benefit from trials of a number of other antidepressants or the addition of a mood stabiliser.  She thought that it was unlikely that he would engage in cognitive behavioural therapy until after his litigation had concluded.  That was so because:

"… The process of litigation involves fault finding, an attribution of blame to others, whereas the processes of cognitive behaviour therapy and psychiatric treatment generally involve accepting some responsibility for one's difficulties and then acting to reduce dysfunctional thinking patterns. These antithetical aims cannot be resolved in Mr Rodriguez' current situation. Additionally, the longer he remains out of work, the more difficult it becomes for him to return to the work force. However, he is a person of at least average intellect, who has worked in a variety of occupations in the past and I would predict that Mr Rodriguez should be able to return to the work force after his litigation has been concluded and with further more intensive psychiatric treatment." Exhibit 3, page 15)

1. In a second report dated 20 June, 2000, Dr Reddan referred to the MPS test she had administered to Mr Rodriguez.  This test caused a great deal of discussion and exchange between the parties at the hearing as well as being the subject of evidence from Dr Reddan and Dr Klug.  Its worth was challenged by Mr Hampson and defended by Mr Dickson.  Dr Reddan stated in her affidavit that:

"11.     The Malingering Probability Scale is a psychometric instrument which consists of 139 questions which assess whether an individual is attempting to produce false evidence of psychological distress or not.  The MPS test approaches the assessment of malingering by evaluating a person's tendencies to answer questions in an inconsistent fashion, which is called the INC Scale and to endorse statements that describe spurious yet seemingly authentic symptoms of psychological distress (the MAL Scale).

12.The kinds of feigned psychological distress that are covered by the MPS, parallel 4 areas of real distress that are considered likely to be exaggerated or feigned:

(a)Depression and anxiety;

(b)Dissociative disorders;

(c)Post-traumatic stress disorder; and

(d)Schizophrenia.

13.The MPS also provides for use for clinical scales that assess the presence of actual psychological distress in these same areas:

(a)Depression and anxiety (the DEP Scale);

(b)Dissociative orders (the DIS Scale);

(c)Post-traumatic stress disorder (the PTS Scale);

(d)Schizophrenia (the SCH Scale).

14.The scales referred to in my previous paragraph, have sufficient psychometric utility and validation to help generate preliminary diagnostic hypotheses and to confirm diagnostic hypotheses drawn from other sources. Therefore, in cases where a patient is not malingering, the MPS can also assist to confirm the presence of real distress.  In this sense, the MPS is even handed." (Exhibit 5)

1. In her second report, Dr Reddan said of the MPS test results in Mr Rodriguez' case:

"I note when assessing his validity scales that he endorsed the items consistently, but endorsed an extreme number of 'pseudo-symptoms'. Pseudo-symptoms are complaints that often sound like legitimate signs of distress or appear to be legitimate symptoms in several psychiatric disorders, but they are not connected with the mental disorders tested by this instrument as they had been studied and documented by psychiatrists and psychologists. This pattern of responding suggests that Mr Rodriguez in his answers had attempted to appear more disturbed than he actually is and suggests that his self-report cannot be uncritically accepted." (Exhibit 4)

1. At the hearing, Dr Reddan was cross-examined at some length about her use of the MPS test.  She pointed out that she had not used the word "malingering" in either of her reports and had not, in her second report, changed the opinion she had reached in her first.  The situation was more complex.  What she had drawn from the MPS test was that Mr Rodriguez' statements about his symptoms could not be uncritically accepted.  She did not know whether he had exaggerated his symptoms, whether consciously or unconsciously, and, if so, the extent to which he had done so.  Dr Reddan stated that she did not use the word "malingering" because it implies a deliberate exaggeration and she was not in a position to express such a view.  She did not consider a computer test, which is what the MPS test is, to be the final word on the matter.

1. In giving her oral evidence, Dr Reddan was asked about the continuing relationship between Mr Rodriguez' work history and his condition in view of the fact that, apart from his neck, he had made no mention of that history to Dr Levien in the course of 15 consultations.  During those consultations, Mr Rodriguez was treated for depression and consulted Dr Levien for a number of ailments including sleep apnoea.  He reported to Dr Levien a set back in the legal proceedings. 

Dr Green

1. In giving oral evidence at the hearing, Dr Green said that he had retired after practising psychiatry for 25 years.  He had not read of the MPS test in the literature.  Speaking generally, he considered that psychomatic testing may be of some help but cannot be relied upon.  The effect of his oral evidence was that he had nothing to add to his reports.

Dr Low

1. Dr Low has written two reports regarding Mr Rodriguez.  His first was dated 18 August, 1994 (Exhibit A, pages 507-508) and his second 19 June, 1995 (Exhibit A, pages 340-341).  In his second, he said that Mr Rodriguez had suffered a degeneration of his cervical spine and he suffered pain.  The pain he suffered, however, was not as a result of the degeneration but as a result of an aggravation of his injury on 11 June, 1992.  Degeneration in the spine can be asymptomatic but it can, as in Mr Rodriguez' case, be brought to light by a major injury.  That was what Dr Low believed had happened.  Dr Low could not estimate when the effects of the aggravation ceased to be the predominant source of his current ongoing pain and when his underlying degeneration became the predominant source of pain.  As at 19 June, 1995, he considered that the symptoms were more likely to be due to the injury than to the underlying condition. 

1. Dr Low also considered that the stress that Mr Rodriguez complained of in the workplace would have aggravated the symptoms of pain he felt from the degeneration.  In giving evidence at an earlier time, Dr Low had said that there is no organic link between stress and an aggravation of pain.  If a person is stressed, his or her pain will be perceived as greater.  In Mr Rodriguez' case and speaking as an orthopaedic surgeon, Dr Low said that Mr Rodriguez theoretically had an ability to work.

1. In addition to these matters, we also refer to the incident regarding his misuse of the telephone in the tea room at River Quays and the subsequent decision that he reimburse Telstra for the cost of the call and that he be formally counselled.  Spender J summarised the law relating to the meaning of the words "reasonable disciplinary action" as they appear in the definition of "injury" appearing in s. 4(1).  His Honour said:

"31            As to the meaning of  'reasonable disciplinary action', Cooper J, in Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 109 ALR 361, adopted a narrow view of that phrase, holding that the phrase 'disciplinary action' is to be interpreted by reference to its ordinary grammatical meaning in the context where it appears in the Act. Cooper J held that, in the context of the definition of 'injury' in s 4(1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988, the phrase 'disciplinary action' means 'reasonable action lawfully taken against an employee in the nature of or to promote discipline'. At 370 Cooper J said:

'...the effect to be given to the words "disciplinary action" is determined in any particular case by reference to the regulatory rules applicable to the employee in question and not by reference to general notions of good order and control of Commonwealth employees.'

At 375-6 Cooper J said:

'In my view disciplinary action is not lawfully taken against a member of the Australian Federal Police until such time as the Commissioner determines, in accordance with the Discipline Regulations or the Complaints Act, after the provisions of the general order have been complied with, to take some action against a particular member in respect of a defined disciplinary offence and takes one of the steps provided for under the Discipline Regulations or the Complaints Act to give effect to that determination.
...
Action taken to investigate a complaint or allegation against a member, including advising the member of the existence and nature of the complaint or allegation and interviewing the member in relation to it prior to the Commissioner determining to act in accordance with the provisions of the Discipline Regulations or the Complaints Act on the report of the investigation, does not constitute "disciplinary action taken against the employee" within the meaning of the definition of "injury" in the Act.'"

1. With regard to the requirement that Mr Rodriguez reimburse Telstra and be formally counselled, we find that both amounted to disciplinary action.  It was action taken after a charge had been made under the General Conditions of Employment Award 1989 and Mr Rodriguez had been formally notified of the charge and of the relevant conditions of the Award.  It was action only taken after there had been a formal investigation, Mr Rodriguez had been given an opportunity to respond to the charge and there had been formal findings relating to the charge. 

1. We also find that Mr Rodriguez considered these actions to be unreasonable.  In our view, they were not unreasonable.  Despite the written evidence from other officers to the effect that they did not know that connecting two parties to each other on the tea room telephone was not permitted, we are not satisfied that Mr Rodriguez did not know.  When first required to write an explanation regarding the use of the telephone, Mr Rodriguez denied that he had made the connection.  He later admitted that he had done so.  As we said earlier, it is the only matter regarding which Mr Rodriguez felt disgrace.  It is the only matter about which he has admitted that he was in error at all.  Given the nature of the misdeed, it seems to us that reimbursement of the cost of the call and formal counselling is an appropriate penalty.  The steps taken by Telstra amounted to reasonable disciplinary action.

1. The disciplinary action was only one of the matters which Mr Rodriguez said led to his becoming ill.  There were various issues in Mr Rodriguez' mind.  Some of those could be said to arise out of, or in the course of, his employment.  Others, such as the concern about his compensation payments and the disciplinary action, do not.  Each of the psychiatrists who have given an opinion has attributed his psychiatric condition to some or all of those stresses.   We have viewed the evidence in light of the principles summarised by Spender J:

"44            The principles to be applied in relation to Mr Rodriguez's case were referred to by Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 642, where his Honour said:

'The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinarily concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so.'
[my emphasis]

1. In Westgate v Australian Telecommunications Commission (1987) 17 FCR 235, the Administrative Appeals Tribunal had found that the applicant's depression, whether it was reactive or endogenous, was triggered by his having to work at all, rather than by some characteristic or condition of his work for the respondent, and considered some factor in the applicant's personal life or circumstances might just as readily have triggered his depression as did working for the respondent, or working generally. As a result of this finding, the Tribunal had affirmed a determination that the applicant's condition was not the result of the contraction, aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor, as required by s 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth).

1. Davies J allowed the appeal, holding that the Tribunal's approach was in error. Davies J referred, at 239, to the observations of Windeyer J in Federal Broom Co Pty Ltd, to which I have referred, and then said at 240:

'A like problem was examined in O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154. In that case, Pincus J went on to make plain a further point which is also relevant in the present appeal, namely, that it is sufficient that the employment contributes in a material way to the contraction of a disease, its aggravation, acceleration or recurrence. It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself.'

Davies J noted:

'As Windeyer J pointed out in Federal Broom Co Pty Ltd v Semlitch (supra) at 643, "all that the statute requires is 'a contributing factor". In the passage that I have set out above, Windeyer J pointed out that it is necessary to look "to what the worker in fact does in his employment". It does not matter that the worker's response to what occurred in the course of employment was irrational. It is sufficient that there was an incident or an event or circumstances in the employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence. Windeyer J used the words "precipitated or stimulated".'

Davies J held at 242:

'Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.'

1. In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36, a Full Court of the Federal Court (Davies, Beaumont and Burchett JJ) was concerned with an application for compensation under the Compensation (Commonwealth Government Employees) Act 1971 ss 45 or 46, and held that the Commonwealth was not bound to pay compensation in respect of a compensation neurosis that developed out of an allegedly disabling physical condition that was not itself compensable. The fact that, in that case, the applicant genuinely believed that his right leg pain was related to the injury to his coccyx may have been a potent factor in the development of his neurosis, but did not mean that his employment was operative in producing his condition. A distinction is to be drawn between, on the one hand, the sequelae making a sick mind sicker and contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness but not in such a way as to add to existing incapacity.

1. The question was whether the disease of compensation neurosis (from which, on the evidence, Mr Kirkpatrick was suffering), was within the meaning of s 29 of the Act, where physical injuries suffered at work had, as a matter of fact, healed uneventfully, but Mr Kirkpatrick genuinely believed that his leg was painful and that he could not cope with his former work as a consequence, his belief being that his leg pain was due to a back injury suffered some years earlier. The Full Court observed at 40:

'The applicant's case is to be contrasted with cases such as Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29, reversed on appeal 47 ALJR 236. In the former case a work accident aggravated a previous schizophrenic condition by producing a new delusion. Kitto J at 634 said:
"Where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder."
In the latter case Mason JA (as he then was), whose dissenting judgment was approved upon appeal to the High Court, referred (at 43) to a work accident and hospitalisation to which it led as having "set in motion the delusional condition" from which the worker thereafter suffered. In both of these cases, the work incident was actually operative as a factor in producing the worker's condition. That condition happened to be one involving delusions, but it was no delusion that the work incident produced the relevant mental effect. In the present case, on the other hand, the worker suffered a condition of leg disability, to which the work had not been a contributing factor, and it is his mere belief that the work had been a contributing factor to the disability that is relied upon as being causally related to the subsequent neurosis.'

1. Whether employment contributes to the contraction, aggravation, acceleration or recurrence of the disease is a question of fact. In Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42, Davies J said at 43:

'It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment. See Federal Broom Co Pty Ltd v Semlitch (1964)110 CLR 626 at 641-643 per Windeyer J and Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 598 per Mason J. Moreover, as Barwick CJ said in Favelle's case at 585:
"...the idea that the employment must have been of a nature to carry a special risk of suffering injury of some particular kind has been exploded and is no longer valid."
Similarly, in Thom or Simpson v Sinclair [1917] AC 127 at 145, Lord Parmoor said:
"The fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment."

His Lordship was there considering a case of injury "arising out of" employment but the principle which he expounded is equally applicable with respect to a disease in respect of which the worker's employment is a contributing factor.'"

1. Applying these principles to Mr Rodriguez' case, 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.

1. It is now well over six years since Mr Rodriguez left his employment with Telstra.  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.

1. 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. 

1. 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.

1. The time at which that condition first commenced is also problematic.  Dr Green thought that it had commenced at approximately the middle of 1993 and was not present earlier in 1993 when Dr Sheppard saw Mr Rodriguez.  Neither Dr Green nor we have the advantage of having seen Mr Rodriguez in 1993.  Dr Green first saw him in June, 1994.  At that time, he did not consider that he was suffering from a depressive illness.  His state had deteriorated by July, 1994.  We find that his depression deteriorated further after that date and rely again on the reports of Dr Green. 

1. The insidious nature of the onset of the condition makes it difficult to fix a date upon which he suffered the injury but we must because it relates to our consideration of Mr Rodriguez' incapacity. Taking our guidance from Dr Green's reports, we have concluded that Mr Rodriguez suffered from a major depressive disorder that was an injury within the meaning of the Act from and including 1 July, 1994.

Application of the principles in Dawkins v Metropolitan Coal Company

1. We are satisfied that Mr Rodriguez continues to suffer from pain in his neck.  For the reasons we have just given, we cannot revisit the previous Tribunal's decision that its cause on and from 4 March, 1994 is naturally occurring degeneration and that it is not compensable.  On behalf of Telstra, it is submitted that we can consider the incapacity that Mr Rodriguez suffers is as a result of his degenerative condition.  It is further submitted that, as a result of his degenerative condition we can find that Mr Rodriguez has no capacity to carry out the work of a CO 2 required to sit at a computer work station and answer telephone calls.  To support Telstra's submission, reliance was placed on the case of Dawkins v Metropolitan Coal Company (1947) 75 CLR 169 (Latham CJ, Rich, Starke, Dixon and McTiernan JJ).

1. In Dawkins, Mr Dawkins had made a claim for compensation under the Workers' Compensation Act 1926-1946 (NSW) ("NSW Act") on the basis that he was totally incapacitated as a result of pulmonary fibrosis caused by the inhalation of dust.  He had been a coal miner and was last employed by the Metropolitan Coal Company for a six week period in 1934.  Pulmonary fibrosis is a disease that is contracted by gradual process.  Mr Dawkins was given a medical certificate dated 27 July, 1945 that he was totally incapacitated from pulmonary fibrosis that was probably due to his work in coal mines.  Under s. 7(4) of the NSW Act, he was permitted to make a claim against his last employer.  That employer tendered a medical certificate that Mr Dawkins had suffered from total incapacity since 1938 (or even 1934) by reason of a disease (tuberculosis) which was not connected with his employment. 

1. The first question considered by the Court was whether Mr Dawkins was totally incapacitated for work on 27 July, 1945 by a non-compensable condition (i.e. tuberculosis) and that condition continued after that date.  All judges of the High Court found that the appeal should be dismissed.  As Latham CJ concluded:

"The total incapacity from which the worker suffered in 1945 was incapacity which had been created before 1938 and which had continued ever since.  In respect of that incapacity no increase was possible.  The incapacity due to the fibrosis which had become complete by 1945 did not add to previously existing incapacity.  The previous existing incapacity still continued and that incapacity did not result from an injury in respect of which compensation was payable.  Under the New South Wales Act an applicant can succeed in his claim only if he can show he has suffered an injury arising out of or in the course of his employment (s. 6, definition of 'injury'; and s. 7) which results in incapacity (s.9)." (page 183)

1. Dixon J, with whom Rich J concurred, reached a similar conclusion.  His Honour went on to highlight other scenarios although they did not arise in the case he had to consider:

"In cases of this description a question will naturally present itself whether a continuing incapacity may not at one time be attributable to one disease as the dominant cause and at another time to another disease as a dominant cause. The effects of the first disease may gradually modify or disappear, so that, if it were not for the second disease, the man would not be totally incapacitated. Where the employer is liable in respect of one of the two diseases and not in respect of the other his liability may perhaps ensue from the replacement of one cause by another, but that question does not arise in the present case. The findings of fact make the case one in which a total incapacity attributable to a disease for which the employer was not liable continued unaffected by the progress of another disease for which he might have been liable, developing to a severity sufficient of itself to cause incapacity." (page 188)

1. Courts in other cases have, however, been required to consider situations in which the predominant cause of a continuing incapacity may change over time.  That consideration is illustrated by the case of Rothwell v Caverswall Stone Co. Ltd. [1944] 2 All ER 350 (Court of Appeal, Luxmoore and du Parcq LJJ, Scott LJ dissenting). An employee had suffered an injury but, due to the negligence of the doctor at the hospital he attended, the fractured dislocation of his shoulder was not discovered. When his shoulder injury was discovered, it was too late for treatment to be successful. The issue before the Court was whether the employee's incapacity resulted from the injury that arose out of and in the course of his employment or whether it resulted from the negligence at the hospital. Scott LJ dissented on the basis that any decision that made recovery of compensation dependent upon the skill of a doctor would be contrary to the public policy upon which workers' compensation legislation is based. Negligent medical treatment following the injury could not, as a matter of law, be regarded as a novus actus interveniens.  That is to say, it could not be regarded as a new cause of the injury.  His Honour did not dissent on the basis that the issue is one of causation.

1. Luxmoore and du Parcq LJJ considered the issue of causation to be simply one of fact.  Whether or not the same conclusion would be reached today is not relevant.  It is the principles that are relevant.  In his judgement, du Parcq LJ set out the principles for determining that issue:

"In my opinion, the following propositions may be formulated upon the authorities as they stand: first, an existing incapacity 'results from' the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though, but for the original injury, there would have been no incapacity. Secondly, negligent or inefficient treatment by a doctor or other person may amount to a new cause and the circumstances may justify a finding of fact that the existing incapacity results from the new cause, and does not result from the original injury. This is so even if the negligence or inefficient treatment consists of an error of omission whereby the original incapacity is prolonged. In such a case, if the arbitrator is satisfied that the incapacity would have wholly ceased but for the omission, a finding of fact that the existing incapacity results from the new cause, and not from the injury, will be justified." (page 365)

1. Applying the principles in a case such as Mr Rodriguez', it means that regard must be had to the cause of his incapacity and to the sequence of events over the years.  On the basis of the medical evidence, we are satisfied that Mr Rodriguez has suffered a loss of movement in his cervical spine.  We are also satisfied that Mr Rodriguez suffers pain if he sits in one position for any length of time and so would have difficulty with engaging in work that required him to do so.  We are also satisfied that his loss of movement and the symptoms of pain and discomfort he experiences are caused by cervical spondylosis.  For the reasons we have previously given, we are bound to regard that condition as a degenerative condition and not an injury that arose out of or in the course of his employment.  These findings, however, do not equate with a finding that Mr Rodriguez is incapacitated for work because of his cervical spondylosis. 

1. As we have said above, s. 4(9) provides that an incapacity for work is a reference to an incapacity to engage in any work or an incapacity to engage in work at the same level at which he or she was previously engaged by the employer immediately before the injury happened.  An incapacity must be distinguished from an impairment.  We have also set out the meaning of an "impairment".  Its meaning focuses on loss and damage, be it loss of a part of the body or of a bodily system or loss of the use or function of such a part.  A person may suffer an impairment but not suffer an incapacity for work.  It may be, for example, that a person employed by Telstra in a clerical position is rendered a paraplegic by an accident arising out of or in the course of his or her employment.  The loss of the use of his or her legs is an impairment but that impairment does not necessarily translate to an incapacity for his or her previous work.  He or she may retain his or her full capacity.

1. In Mr Rodriguez' case, we are satisfied that he has suffered an impairment by virtue of his non compensable condition of cervical spondylosis.  That impairment arises from the fact that his cervical spondylosis has led to the loss of movement in his neck.  When he saw Mr Rodriguez in 1995, Dr Low considered that he was perfectly fit to resume work at some time in the future provided that ergonomic changes were made to accommodate him.  In the same year, Dr Morris found him to have an impairment but made no comment about his capacity for work.  Dr Erian has documented Mr Rodriguez' complaints of neck pain and treated it since 1998.  Neck pain has been of major concern to Mr Rodriguez during his consultations with Dr Erian.  It was clear from comments that he made during the course of his evidence that it has remained a major concern to Mr Rodriguez.

1. Both Ms Williams and Ms Murphy have assessed Mr Rodriguez' capacity for work.  Ms Murphy was unable to separate the incapacity caused by his physical condition from that caused by his psychiatric condition.  She had made her assessment on the basis that he suffered from both conditions.  Ms Williams had separated the two.  On the basis of Mr Rodriguez' physical condition, she had assessed him as being able to undertake work of the type he had previously undertaken on a part time basis.

1. Taking all of the evidence into account, we are satisfied that the pain and discomfort that Mr Rodriguez suffers from his cervical spondylosis have increased over the years since he left Telstra's employment.  Although Mr Rodriguez now considers that his difficulties at work were great at the time he left Telstra, we find the evidence of Dr Low more accurate in this regard.  In 1994 at about the time he left, Dr Low considered that Mr Rodriguez could work with appropriate ergonomic support.  He recorded Mr Rodriguez as having agreed with his assessment.  It seems to us that this was the case and that, at that time, Mr Rodriguez did not suffer any incapacity for work from his non compensable cervical spondylosis.

1. His capacity as a result of his major depressive disorder was another matter at that time.  Dr Green was then his treating psychiatrist and we pay considerable regard to his evidence.  In his opinion, Mr Rodriguez was not capable of working when he saw him in the latter part of 1994.  We accept his opinion and find that Mr Rodriguez' major depressive disorder incapacitated him for work from and including 1 July, 1994. 

1. As Mr Rodriguez was not incapacitated for work from his non compensable cervical spondylosis in 1994, we find that his incapacity for work resulted from his compensable major depressive disorder.  We find that his major depressive disorder has continued to incapacitate him for work.  The medical evidence was consistent in that regard.  As his cervical spondylosis worsens, it is to be expected that it will lead to an increasing incapacity for work.  Taking into account both the evidence of Dr Low and Ms Williams, who separated Mr Rodriguez' physical and psychiatric difficulties, we find that his cervical spondylosis causes him only to have partial incapacity for work at this stage.  Just when that partial incapacity for work commenced is difficult to judge.  It seems to us that we do not need to try for we do not regard it as being the condition from which Mr Rodriguez' incapacity can fairly be said to result.  His major depressive disorder was the cause of his incapacity in the first place and continued to be the cause of his total incapacity.  His incapacity from his cervical spondylosis is partial only.  In our view, Mr Rodriguez' cervical spondylosis cannot be regarded as a supervening cause to which Mr Rodriguez incapacity should be attributed between 1 July, 1994 and 21 September, 1998.  It follows that we consider that Mr Rodriguez' total incapacity in that period was as a result of his major depressive disorder and he is entitled to compensation in respect of that incapacity.  The amount of that compensation is a matter that needs to be remitted to Telstra to calculate.

May we consider Mr Rodriguez' application for compensation for permanent impairment?

1. Mr Hampson submitted that we may consider whether Mr Rodriguez is entitled to compensation for permanent impairment. That entitlement arises under s. 24 of the Act. In a letter to Telstra dated 12 June, 1995, Mr Rodriguez' solicitors advised it that they had been instructed to make a claim under ss. 24 and 27 of the Act. They wrote:

"Our client makes his claim as follows:

1.That on the 11th June 1992 the claimant suffered a permanent injury to his back and neck whilst in the employ of Telecom when some office partitions fell on him.

2.That subsequent to the above date the Claimant developed:

A.a major depressive disorder, and

B.worked related stress

and that these illnesses developed in early 1993.

3.That the major depressive disorder and work related stress have contributed to and or exacerbated and or aggravated the injuries referred to in (1) above, and further, they were developed in the course of employment." (Exhibit A, page 493). 

Reference was also made to a claim previously made under s. 19 of the Act.

1. Although s. 54(2) provides that a claim shall be in accordance with an approved form, s. 54(5) provides that strict compliance with an approved form is not required and substantial compliance is sufficient. The letter of 12 June, 1995 substantially complies with the approved form. Telstra treated it as doing so when it considered the issues raised by Mr Rodriguez' claims under ss. 19, 24 and 27 (Exhibit A, page 423).  A delegate of Telstra decided on 21 August, 1996 that "… Telstra is not liable to pay the said Gabriel Rodriguez compensation for the condition of major depressive disorder" (Exhibit A, page 424).  In his reasons, the delegate found that Mr Rodriguez was suffering from a disease which he described as a chronic anxiety condition but concluded that the disease could not be said to have been contributed to in a material degree by his employment. Consequently, the major depressive disorder claimed by Mr Rodriguez was not an injury within the meaning of the Act and so was not compensable under the Act.

1. Internal review was requested in a letter dated 22 August, 1996 (Exhibit A, page 551).  The internal review decision was made on 17 December, 1996.  It affirmed the decision of 21 August, 1996 and expressly stated that "…the work factors did not contribute to a material degree to the development of the claimed condition" (Exhibit A, page 481).  After reviewing the evidence, the delegate concluded:

"Thus after giving careful consideration to all the available evidence I am satisfied the Claimant did suffer from a major depressive disorder with associated factors.  I am further satisfied that work factors did not contribute to a material degree to the development of this condition, based on the exclusionary clause of the above Act." (Exhibit A, page 485)

1. In an application dated 14 January, 1997, Mr Rodriguez sought review of that decision.  He described the decision as a decision "That in accordance with the provisions of the Safety Rehabilitation and Compensation Act 1988, Telstra is not liable to pay compensation under ss. 24 and 27" (Exhibit A, page 212). Having considered the decisions and the reasons for those decisions, we have concluded that Telstra did not make a decision under either ss. 24 or 27. Rather, it made a decision as to whether Mr Rodriguez' major depressive disorder was a compensable injury under the Act at all. That is to say, it made a decision under s. 14. That is a decision that must be made before there can be any decision whether Telstra is liable to pay particular types of compensation (such as payments for incapacity or permanent impairment) in respect of that compensable injury. Having made a decision that Mr Rodriguez had not suffered an injury that was compensable, it did not go on to make decisions under ss. 19, 24 and 27. In the absence of such a decision and, more importantly, in the absence of a reviewable decision regarding entitlement under s. 24 we are unable to consider whether Mr Rodriguez is entitled to compensation payments in respect of any permanent impairment. That follows from the fact that s. 64 provides that the Tribunal may only review a reviewable decision i.e. a decision made under s. 62 (s. 60(1)).

1. It may be thought that this conclusion leads to an unnecessarily circuitous approach to the resolution of the matters in dispute between the parties.  The approach, however, accords with that recognised by the Full Court of the Federal Court as being the correct approach.  In Lees v Comcare (1999) 56 ALD 84 said:

"…As is mentioned above, on 16 October 1995 an authorised officer of Comcare had determined pursuant to s 14 of the Act that Comcare was liable to pay compensation in accordance with the Act to Ms Lees in respect of the injury suffered by her. That determination had not been the subject of reconsideration under s 62 of the Act and was therefore not a 'reviewable decision' for the purposes of s 64 of the Act. The determination under s 14 established, amongst other things, that Comcare would be liable to pay compensation to Ms Lees under s 24 of the Act if the injury resulted in permanent impairment. We interpolate that we do not read s 24(1) of the Act as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment. We see that liability as being created by s 14 of the Act. Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.

[49] It may be that a situation could arise in which an employee has a claim for compensation for permanent impairment under s 24 of the Act where no determination of Comcare's liability under s 14 of the Act has been made. In such a case it may well be that the Act allows the issue of Comcare's liability to pay to the employee compensation for permanent impairment to be determined under s 24 notwithstanding that no earlier determination under s 14 has been made. However, the practical reality is that such cases will be rare. Ordinarily, before any issue of an employee's, or former employee's, entitlement to compensation for permanent impairment arises, a determination concerning that person's entitlement to compensation will have been made under s 14 of the Act. Neither of the matters under present consideration is an instance of a case in which a claim for compensation for permanent impairment arose in the absence of a determination under s 14 of the Act.

[50] The only issues under s 24 of the Act which required determination in Ms Lees' case were the issues of whether she had a permanent impairment and, if she did, the amount of compensation payable under the section in respect of that impairment. Neither of these issues had been determined at the first tier decision-making stage. Necessarily in the circumstances, there had been no reconsideration under s 62 of the Act of a determination on these issues. Consequently there was no reviewable decision touching on these issues to found an application to the AAT under s 64 of the Act. The reviewable decision which founded Ms Lees' application to the AAT was the determination of the independent review officer concerning Ms Lees' entitlement under s 16 of the Act for compensation in respect of taxi fares incurred, or to be incurred, for the purpose of obtaining medical treatment. It was that determination, and that determination only, that s 64 of the Act authorised the AAT to review. The powers of the AAT under s 43 of the AAT Act were powers which it was authorised to exercise for the purpose of reviewing only that determination." (pages 94-95)

1. For the reasons we have given, we:

1.set aside the decision of the respondent dated 17 December, 1996: and

2.        substitute a decision that:

(3)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

(4)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.        adjourn consideration of costs to a date to be fixed.

I certify that the one hundred and thirty three preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President); Miss A M Brennan and Dr K P Kennedy (Members) 

Signed:          ................................................
  A R Horne             Associate

Dates of Hearing    6, 7, 8, 9, 16 March, 17, 18, May and

8 June, 2001

Date of Decision       29 June, 2001
Counsel for the Applicant                 Mr Hampson QC; Mr Moon
Solicitor for the Applicant                Shine Roche McGowan
Counsel for the Respondent             Mr Dickson
Solicitor for the Respondent             Standish Partners