Zdziarski and Telstra Corporation Limited

Case [2014] AATA 108

[2014] AATA  108

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

 2012/1067

Re

 Stephen Zdziarski

APPLICANT

And

Telstra Corporation Limited

RESPONDENT

DECISION

Tribunal

 Senior Member A K Britton
Date 28 February 2014
Place Sydney

The decision under review is affirmed.

......................[SGD]..................................................

Senior Member A K Britton

CATCHWORDS

WORKERS’ COMPENSATION—Psychiatric condition—Nature of the psychiatric condition—Substance abuse—Whether employment contributed to psychiatric condition to a significant degree—Whether psychiatric condition is the result of medical treatment received in relation to an accepted injury

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) - ss 4(1); 4(3); 5B; 14;

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

Workers' Compensation Act 1926-1960 (NSW)

CASES

Comcare v Sahu-Khan 156 FCR 536

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Re Drenth and Comcare [2011] AATA 582

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

Wiegand v Comcare (2002) 72 ALD 795

SECONDARY MATERIALS

American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th ed, 1994

REASONS FOR DECISION

Senior Member A K Britton

28 February 2014

  1. Former Telstra employee, Stephen Zdziarski, seeks review of a decision by Telstra to refuse to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of an “injury” in the form of a “disease”, namely “major reactive depression and emotional stress” and “major reactive depression and physical stress”. He contends that Telstra is liable for these conditions (however described) because they were contributed to by his employment, namely a physical injury sustained in 2001, for which Telstra has accepted liability (the accepted injury).

  2. Telstra contends that Mr Zdziarski does not suffer from either claimed condition but rather suffers from the psychiatric condition of substance abuse.  It argues that it is not liable for that condition because Mr Zdziarski’s employment with Telstra did not contribute to it to the requisite degree.

  3. The primary issues to be determined are: (i) the nature of Mr Zdziarski’s psychiatric condition; and, (ii) whether his employment with Telstra contributed to that condition to a significant degree. If found that Mr Zdziarski suffers from substance abuse but it was not contributed to, to the requisite degree, by his employment, it will be necessary to decide whether Telstra is nonetheless liable for that condition because it was a result of medical treatment Mr Zdziarski obtained in relation to the accepted injury (s 4(3) of the Act).

    Statutory provisions

  4. Telstra will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Mr Zdziarski if it results in impairment or incapacity for work (s 14 of the Act). The Act defines injury to include a disease. Section 5B defines disease to mean:

    Definition of disease

    (1)    In this Act:

    "disease" means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

Details
AGLC
Zdziarski and Telstra Corporation Limited [2014] AATA 108
Case
[2014] AATA 108
Decision Date

CaseChat Overview and Summary

Zdziarski v Telstra Corporation Limited was a case heard by the Administrative Appeals Tribunal (AAT) regarding a claim for workers' compensation by Mr Zdziarski against Telstra Corporation Limited. Mr Zdziarski, a former employee of Telstra, sought compensation for a psychiatric condition he claimed arose from his employment. The central issue was whether the employment contributed to his psychiatric condition to a significant degree, considering his predisposition to substance abuse and the nature of the condition.

The legal issues before the AAT included the interpretation of the term "significant degree" in the context of the contribution of employment to the psychiatric condition, and whether the condition was the result of medical treatment received in relation to an accepted injury. The AAT had to consider whether the employment-related events, combined with Mr Zdziarski's predisposition to substance abuse, made him more vulnerable to the effects of work stressors, thereby contributing to his psychiatric condition.

The AAT determined that the predisposition to substance abuse, evidenced by Mr Zdziarski's history of alcohol abuse and legal issues related to it, made him more vulnerable to the effects of work stressors. This interpretation aligned with the "egg-shell skull" theory, which recognises that an employee with a predisposition may be more susceptible to the effects of work-related stressors. The AAT found that the employment did contribute to the psychiatric condition to a significant degree, taking into account the nature of the employment, the duration, and Mr Zdziarski's predisposition. Consequently, the AAT upheld the claim for compensation.

The AAT ordered Telstra Corporation Limited to pay compensation to Mr Zdziarski in accordance with the provisions of the relevant Act, recognising the significant contribution of his employment to his psychiatric condition. This decision highlighted the importance of considering an employee's predisposition in assessing the impact of work-related events on their health.

Orders

Orders of the court

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Background

Background to the litigation

Telstra will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Mr Zdziarski if it results in impairment or incapacity for work (s 14 of the Act). The Act defines injury to include a disease. Section 5B defines disease to mean:Definition of disease (1) In this Act: "disease" means: (a)an ailment suffered by an employee; or (b)an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee. (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account: (a)the duration of the employment; (b)the nature of, and particular tasks involved in, the employment; (c)any predisposition of the employee to the ailment or aggravation; (d)any activities of the employee not related to the employment; (e)any other matters affecting the employee's health. This subsection does not limit the matters that may be taken into account. (3)In this Act: "significant degree" means a degree that is substantially more than material. Background Mr Zdziarski commenced working with Telstra as a technician in 1973. In September 2001 he injured his back, shoulder and knees when a table collapsed at work. In 2004 Comcare accepted liability for that injury, described as “aggravation of degenerative changes in lumbar spine, aggravation of changes in both knees with meniscal tears in the right knee and impingement syndrome left shoulder”. Mr Zdziarski stopped work in mid-2002 and was retrenched from Telstra in December 2003. Mr Zdziarski came under the care of GP, Dr Denis Bergin, about three months after the accepted injury and remains in his care. In September 2004 Dr Bergin made a diagnosis of “major depression” and prescribed the anti-depressant Lovan®. Dr Bergin’s records reveal that he prescribed anti-depressant medication to Mr Zdziarski throughout two periods: September 2004 to September 2006 and March 2010 to date. Mr Zdziarski testified that since 2006 he has probably only taken anti-depressants medication in accordance with Dr Bergin’s instructions, for any significant period, twice. He claimed that, sometimes, he does not take anti-depressants for extended periods, and at other times takes them every few days, followed by a short “boost”. He acknowledged that Dr Bergin, whom he holds in high regard, informed him that to derive any benefit from anti-depressant medication it must be taken on a continuous basis. He claimed that when he takes anti-depressants continuously he “feels in a better place” but refuses to do so because he is concerned he will become “drug dependent”. He gave as another reason for not following Dr Bergin’s advice, his belief that as soon as he starts to feel a bit better he will probably receive another letter from the insurer, “another kick in the guts”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In her first report Dr Skinner wrote:From the documentation and from his own account, it seems that Mr Zdziarski has had a potential for substance abuse. It seems that he had an alcohol problem in the past, as he apparently had been convicted of drink-driving offences and was drinking heavily about 30 years ago. It seems that he also intermittently drank heavily. His anxiety and frustration has escalated in the context of his present unstructured lifestyle, chronic pain and frustration at his own limitations. From his own description it is clear that Mr Zdziarski has a problem of substance abuse. I do not agree with Dr Robinson that substance abuse can be excluded as a causative factor in relation to his anxiety symptoms. [emphasis added] In cross-examination, Dr Skinner agreed with the proposition that Mr Zdziarski’s “unstructured lifestyle, chronic pain and frustration at his own limitations” were relevant to the accepted injury. However, it misstates the evidence to suggest that Dr Skinner agreed that those factors were causative of Mr Zdziarski’s substance abuse. This is borne out by the following exchange in cross-examination (Transcript of Proceedings, Zdziarski and Telstra Corporation Limited (AAT, 2012/1067, Senior Member Britton, 10 September 2013) p 63, ll 33-47):Counsel:And you certainly agree that his anxiety and frustration has escalated in the context of his lifestyle, chronic pain and frustration of his own limitations?Dr Skinner: ---Substance abuse.Counsel:Well, could I ask you to go back to page 9 of your report, and at the second - beginning line flowing into the second and third line you say that:His anxiety and frustration has escalated in the context of his present unstructured lifestyle, chronic pain and frustration at his own limitations.Dr Skinner:?---Yes.Counsel: Now, would you accept that each one of those descriptions, that is, unstructured lifestyle, chronic pain and frustration at his own limitations, are all relevant to the injuries that he suffered?Dr Skinner---Yes. In Dr Skinner’s opinion Mr Zdziarski has a predisposition to substance abuse pointing to what she considers to be evidence of substance (alcohol) abuse pre-dating the accepted injury. In her opinion, Mr Zdziarski’s convictions for drink driving — six over ten years — satisfy the criteria for a diagnosis of substance (alcohol) abuse, namely “a maladaptive practice of substance abuse leading to clinically significant impairment or distress” as manifested by, among other things, “recurrent substance-related legal problems”. Section 5B(2)(c) of the Act lists “any predisposition of the employee to the ailment or aggravation” as one of the matters that may be taken into account in determining whether the employment concerned was a substantial contributing factor to the injury. In Re Drenth and Comcare [2011] AATA 582 the Tribunal (at [74]) identified two possible interpretations of s 5B(2)(c), namely that the predisposition could be treated as (i) discounting the impact employment-related events would have on the employee, or, (ii) making the employee more vulnerable to the effects of work stressors, so that employment would then be more likely to contribute to the ailment or aggravation to a significant degree. The Tribunal adopted the latter interpretation reasoning that it was consistent with the beneficial nature of the Act and the long line of authority of the “egg-shell skull” theory in workers’ compensation jurisdiction. (see for example Wiegand v Comcare (2002) 72 ALD 795, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626). I think that approach is probably correct.