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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] AATA 620
Decision Date: 29 June 2001

CaseChat Overview and Summary

The case between Gabriel Rodriguez and Telstra Corporation Limited was reviewed by the Administrative Appeals Tribunal. The Tribunal considered whether Rodriguez's major depressive disorder arose from his employment and whether it was compensable under the Safety, Rehabilitation and Compensation Act 1988. Rodriguez claimed that the disorder resulted from workplace stresses and discrimination. The Tribunal found that Rodriguez's disorder was indeed an injury under the Act, arising from his employment, and he was totally incapacitated for work from 1 July 1994 to 1 September 1998. The Tribunal set aside Telstra's decision not to compensate Rodriguez and substituted its own decision. However, the Tribunal concluded that it could not consider Rodriguez's claim for compensation for permanent impairment as Telstra had not made a reviewable decision on this matter under the Act.

Orders