Zdziarski and Telstra Corporation Limited
[2014] AATA 108
•28 February 2014
[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
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).
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.
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
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”.
Mr Zdziarski has not been referred to a psychologist or psychiatrist for treatment. Mr Zdziarski told consultant psychiatrist Dr Yvonne Skinner, who assessed him at the request of Telstra, that he does not believe that a psychologist could do anything for him.
Mr Zdziarski testified that when told by Dr Bergin he was suffering from depression he “felt like shit”. As he recalled:
The whole world was kicking me in the guts, getting nowhere, more or less going downhill, couldn't get money out of Telstra, they wouldn't pay me a wage at the time – compensation at the time. It was several years later, everything was just catching up on me, I was running out of money financially because I was living off my own wage. Managed to pick up a little bit of work to help pay the bills but my whole life just was going to shit. I didn't get much support at home so we ended that situation.
According to Mr Zdziarski, at around the time he was diagnosed with depression, the pain from his accepted condition was starting to become severe. On his account his mood and sleep pattern were “lousy” and he felt like “ripping somebody’s head off”. He said he felt exhausted and his concentration was poor. He claimed that before his injury he was gregarious and socialised with friends at least five or six nights a week, but is now almost a recluse and seldom socialises, even with his close friends.
In oral evidence Mr Zdziarski agreed that when he met with Dr Skinner in October 2012 he told her that: he was going to “drag Comcare through the gutter”; he didn’t want any psychiatric treatment but wanted Comcare to pay for treatment; his depression was caused by the management of his case; he wanted to put all the Comcare people and their solicitors in a room and throw a grenade. He told the Tribunal he was very upset with Telstra’s “invasion of privacy and continual harassment”.
Dr Bergin’s records show that shortly after the accepted injury he starting prescribing Orudis®, a drug used to treat pain and inflammation, to Mr Zdziarski. In addition his records show that he also prescribed Panadeine Forte® (from September 2006), Valium® (from July 2006) and Ordine®, liquid morphine (from July 2010) to date, on a regular basis. Since about mid-2006 Mr Zdziarski has also been prescribed medication to assist with sleep.
Mr Zdziarski claims that since the accepted injury he has been in constant pain, which has gradually increased. Mr Zdziarski had a bilateral knee replacement in April 2013.
What is the nature of Mr Zdziarski’s condition?
The consensus of available medical opinion is that Mr Zdziarski was suffering a psychiatric condition when he made his claim for compensation. Opinion is divided on the nature of that condition. Dr Bergin is of the opinion that his patient suffers from a significant reactive depression. Dr Skinner believes he suffers from substance (and possibly alcohol) abuse. Consultant psychiatrist, Dr GS Robinson, is of the opinion that Mr Zdziarski suffers from an adjustment disorder with anxiety.
Dr Bergin’s opinion
In a report dated April 2010, Dr Bergin wrote that since Mr Zdziarski has been in his care, his arthritis in his knee and lumbar spine has deteriorated causing severe chronic pain and stiffness and rendering him unemployable. He wrote that Mr Zdziarski developed significant reactive major depression due to his “now crippled state” and the failure of a long term relationship which “he reasonably views as the consequence of these injuries”. In Dr Bergin’s opinion, difficulties with the insurer together with lack of progress in his compensation claim have left Mr Zdziarski feeling “isolated and marginalised”. Dr Bergin holds the view that but for the injuries sustained in 2001, it is unlikely that Mr Zdziarski would have developed a psychiatric condition.
In a subsequent report prepared in November 2010, Dr Bergin stated that the insurer’s decision to decline Mr Zdziarski’s claim for compensation for remedial massage (made in respect of the accepted injury) caused a further exacerbation of his “reactive major depression”. In a letter to Mr Zdziarski’s solicitor dated 22 February 2013, Dr Bergin wrote that Mr Zdziarski’s psychological/psychiatric condition had not changed since he made his diagnosis of depression in 2004. He also wrote that given the history and absence of previous psychiatric illness, it is highly probable that the accepted injury was the principal cause of Mr Zdziarski’s psychiatric condition.
Dr Robinson’s opinion
Dr Robinson has assessed Mr Zdziarski on three occasions: in February and March 2011 and in February 2013. In a report dated 4 March 2011, Dr Robinson recorded that he was told by Mr Zdziarski:
He has the “shits with the world” and is “tired of fighting ‘the Compo’”
He has a lot of conflict with people including repairmen, the insurance company, his old workplace, the Ombudsman.
He can’t relax. He freaks out. He pumps Valium into himself to settle down. He is restless. He feels the stress inside him. He feels he could explode.
He has difficulty concentrating and sleeping.
He believes his sense of frustration came from dealing with courts as did the breakup of his relationship [in about 2004].
Mr Zdziarski told Dr Robinson that he was “not like this before his accident”.
Dr Robinson wrote that Mr Zdziarski suffered from the following symptoms which, in his opinion, caused significant distress and impairment in Mr Zdziarski’s social function:
Restlessness, feeling keyed up, on edge
Being easily fatigued
Difficulty concentrating
Irritability
Muscle tension
Sleep disturbance
Dr Robinson made a diagnosis of adjustment disorder with anxious mood, which in his opinion, arose in relation to “compensable physical injuries”, including resultant pain and incapacity, ongoing legal problems and treatment issues. In his opinion the condition was compounded by “relationship problems stemming both from the physical and the psychological condition”.
Drinking history given to Dr Robinson
In his first report Dr Robinson recorded that he was told by Mr Zdziarski that:
He cut down on regular drinking when he was about 35 [in 1992].
Around the time of the injury he went out drinking one or two nights a week – and might have four or forty drinks.
After the accepted injury he cut down on his drinking but still likes a drink now and again. On most days and on most weeks he does not drink at all.
In April 2013 Dr Robinson met again with Mr Zdziarski and took a detailed history of Mr Zdziarski’s alcohol use. In a second report dated 22 April 2013, he recorded:
Prior to 2001
Mr Zdziarski began to drink regularly around the age of 15 or 16
He acknowledged that when he was a young man he drank when he shouldn’t have
In his early years of drinking there was a DUI offence and subsequent loss of licence
If he did have a problem with alcohol, it was “all over 20 or 30 years ago” and since then does not drive when he drinks
After the injury
He now drinks alcohol occasionally
At times he drinks regularly and at others from time to time
Five to eight years ago he might have had up to 15 stubbies in “a session”
The last time he drank up to 10 stubbies was six years ago and it was then a rare occurrence and more likely to have been six
Since November 2012 he has had about two drinks a day and it is now extremely rare to drink beer at all; he now drinks whisky
In the month before the interview [March 2013] he drank alcohol on only one occasion and then consumed a third of a bottle of whisky, over five hours
Before that the last time he consumed alcohol was around Christmas 2012 when he had a couple of nips of whisky
In his second report Dr Robinson wrote that based on the updated history he concluded that Mr Zdziarski now drinks alcohol very occasionally; there is no evidence of tolerance or withdrawal and he “clearly … does not suffer from alcohol dependence”. According to Dr Robinson there was a lack of correlation between Mr Zdziarski’s alcohol use and psychological symptoms and for this reason he excluded substance abuse as a cause of Mr Zdziarski’s anxiety symptoms. He confirmed his earlier diagnosis of an adjustment disorder and stated that it was probably diagnosable when Dr Bergin first commenced Mr Zdziarski on antidepressant medication.
Mr Zdziarski stated that he does not agree with Dr Robinson’s opinion that he is suffering from an anxiety condition. He claimed not to suffer either anxiety or anxiety attacks.
Dr Skinner’s opinion
Dr Skinner assessed Mr Zdziarski in October 2012. She prepared two reports and also gave oral evidence.
In her first report dated 26 October 2012, Dr Skinner examined Mr Zdziarski’s history of prescription medication and alcohol use. She recorded that he told her:
When he first gets up in the morning he feels all right for the first couple of hours and then needs pain relief, takes 50 mg of morphine and goes to bed
He can take up to 50 mg of morphine and “keep walking”
He planned to go home [after the examination with Dr Skinner] and take three or four Panadeine Forte and maybe 30 to 40 mg of Valium [Dr Skinner recorded that Mr Zdziarski reported problems during the interview with cramping in his legs]
Over the last 12 months he “hit the morphine” and also takes Valium in large doses as a muscle relaxant
Dr Skinner recorded that Mr Zdziarski did “not want to talk about his alcohol consumption: he drinks when he feels like it and can out drink most people when he is upset”.
Dr Skinner made a diagnosis of substance abuse (prescribed narcotic analgesics - morphine and Panadeine Forte and benzodiazepine tranquilliser, Valium) and possibly alcohol abuse and put the date of onset at about October 2011. In her opinion Mr Zdziarski reported dosages of narcotic analgesics and benzodiazepine tranquilliser that were not only excessive but potentially harmful and, in the short term, could lead to agitation and sedation, and, in the long term, brain impairment. She explained that DSM-IV (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed, 1994) defined substance abuse as a pattern of excessive use of substances, which in Mr Zdziarski’s case was prescribed medication, over a 12 month period. She also explained under DSM-IV the criteria for a diagnosis of substance abuse are: (i) a maladaptive pattern of substance use leading to clinically significant impairment or distress as manifested by at least one of four listed factors, which include recurrent substance–related legal problems and persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance, and (ii) the person’s symptoms do not meet the criteria for substance dependence.
In Dr Skinner’s opinion the available material together with his self-report suggest that Mr Zdziarski has a long-standing alcohol problem. She considers Mr Zdziarski’s history of convictions and conflict with people to be evidence of alcohol-related impairment. She stated that it was common for people suffering substance abuse to switch between substances and that this was consistent with Mr Zdziarski’s history.
Dr Skinner disagreed with Dr Robinson’s opinion that the symptoms reported by Mr Zdziarski — restlessness, fatigue, difficulties concentrating, irritability and muscle tension — were unrelated to his substance use. She wrote that given the sporadic and large doses of narcotic analgesics and benzodiazepine tranquilizers taken by Mr Zdziarski it is “entirely possible” that many or all of those symptoms were due their use. In addition she stated that she did not agree with Dr Robinson’s opinion that those symptoms would found a diagnosis of adjustment disorder.
Mr Zdziarski’s account of drug and alcohol use
Before evaluating these competing diagnoses, it is useful to set out the evidence Mr Zdziarski gave about his drug and alcohol use and what he was recorded to have told those medical practitioners whose reports were tendered in these proceedings.
Mr Zdziarski testified that around the time of the accepted injury he was probably drinking a couple of nights a week: two beers if he was driving, otherwise half a dozen, or, on a “big night”, a dozen. He agreed he told Dr Robinson that he might have “four or forty beers” a night. In his opinion he did not have a problem with alcohol before the accepted injury and his drink-driving convictions (six offences between 1977 and 1985) were “a dead issue”. He stated that after the injury, on occasion he “binged” to self-medicate and deal with the pain. He claimed not to have had “a session” in the past 12 months.
In cross-examination he stated that the history recorded by Drs Skinner, Robinson and Bracken as recorded in the table below, was largely correct. However, he denied telling Dr Hopcroft that he took 20 to 30 tablets of Panadeine Forte a day, and claimed not to have taken that amount since “going on the morphine”. He also denied telling Dr Hopcroft that he took between 30 to 40 mgs of liquid morphine and claims he used the term “units” not “milligrams”.
Mr Zdziarski testified that he took pain medication only as required and in accordance with Dr Bergin’s instructions “to the letter”. He said he was unsure of the amount of medication he took because he didn’t write it down: “All I know is I balance out my medication for my conditions on the day”.
Dosages of prescribed medication
In final submissions an issue arose as to whether, as Dr Skinner believed and Mr Zdziarski disputed, Mr Zdziarski was using pain relief medication in dosages exceeding those prescribed. At my request Dr Bergin provided the Tribunal with details of the medication he had prescribed to Mr Zdziarski and the parties made written submissions about that information.
The table below summarises the information provided by Dr Bergin and the Mr Zdziarski’s history of drug use as recorded by Drs Robinson and Skinner and orthopaedic surgeons, Barry Bracken and Alan Hopcroft.
Panedeine Forte Valium Morphine Dosage prescribed by GP 1-2 tablets every 4 hours ½ - 1 tablet per day (5mg per tablet) or a maximum of 15mg per day 5 – 10mg every 6 hours Dosage reported to Dr Robinson in March 2011 2 - 3 tablets every 4-6 hours 30mg at a time, occasionally Up to 4mg as needed Dosage reported to Dr Bracken in December 2011 12 – 15 tablets each day 20mg per day 20 – 30mg “for bad patches” Dosage reported to Dr Bracken in August 2012 6 – 20 tablets each day 0 – 8 tablets (5mg per tablet) each day Unstated dosage once a day Dosage reported to Dr Skinner in October 2012 Many tablets per dose, sometimes extra 30 – 40mg “at a time” 30 – 50mg “at a time” Dosage reported to Dr Hopcroft in October 2012 20 – 30 tablets each day 20 – 30mg per day 30 – 40mg occasionally
Does/did Mr Zdziarski suffer a psychiatric condition and, if so, what is the nature of that condition?
It is agreed that Mr Zdziarski suffers a psychiatric condition, the issue in dispute is the nature of that condition(s).
Counsel for Mr Zdziarski, Mr Edwards, argues that Dr Robinson’s opinion on diagnosis should be preferred because he had the advantage of directly observing Mr Zdziarski on three separate occasions and taking a detailed history of his alcohol use. In contrast, Dr Skinner met with Mr Zdziarski on only one occasion and her conclusion that he has a “long history” of alcohol problems rested largely on drink driving offences that occurred over three decades ago. Further, Mr Edwards submits that there is no evidence to suggest that Mr Zdziarski used pain relief medication in a manner other than prescribed by Dr Bergin.
Counsel for Telstra, Mr Kelly, submits that Dr Bergin’s opinion that Mr Zdziarski suffers from depression cannot be accepted as it has been rejected by two experts in the field of psychiatry. Mr Kelly contends that Dr Robinson’s analysis of Dr Skinner’s opinion “entirely misses the point”, pointing out that Dr Skinner referred only to the possibility of alcohol abuse and identified prescription medication — narcotic analgesics and benzodiazepine tranquilliser — as the class of substances she believed Mr Zdziarski to have abused.
Mr Kelly argues that the evidence does not support a finding that Mr Zdziarski suffered a psychiatric condition over and above substance abuse. He contends that Mr Zdziarski’s problems lie in the “non-compensable realm of anger and frustration”.
Determining the nature of Mr Zdziarski’s psychiatric condition is not an easy task given the dearth of independent evidence and conflicting available evidence. The opinions held by each of the three practitioners who have commented on the aetiology of Mr Zdziarski’s condition rest almost entirely on his self-report. For example, his claims of not drinking to excess prior to the 2001 injury and of moderating his consumption after that injury, are entirely unsupported. In addition, the claim made by Mr Zdziarski in these proceedings of following his doctor’s instructions “to the letter”, is both unsupported and contradicted by other accounts he has given.
The contention advanced on behalf of Mr Zdziarski that there is no evidence that he used medication for pain relief in a manner other than as prescribed, must be rejected. As the evidence in the table above reveals Mr Zdziarski has taken Valium, Panadeine Forte and Orphine in dosages well in excess of those prescribed by his GP. I do not accept his claim that in the history he gave Dr Hopcrort he used the term “units” not “milligrams”. Nor do I accept what I understand him to have suggested in oral evidence that after being prescribed Orphine, his use of Panadeine Forte declined. That claim is inconsistent with both the histories he has given and Dr Bergin’s records. It may be, as claimed by Mr Zdziarski, that he did not consume excessive dosages of prescription medication on a daily basis, nonetheless the evidence reveals a pattern of significant, if erratic, overdosing over an extended period.
It should be emphasised that there is no evidence and nor was it suggested that Dr Bergin’s decision to prescribe Mr Zdziarski pain relief medication, or the type of medication, or dosages prescribed, were inappropriate.
I do not accept the proposition advanced by Telstra that because Dr Bergin’s diagnosis is not supported by either Dr Skinner or Dr Robinson, his opinion must be rejected. While not expert in the field of psychiatry, Dr Bergin has had the immeasurable advantage of directly observing and interacting with Mr Zdziarski for over a decade. Of significance, his original diagnosis and decision that anti-depressant medication was warranted, was made well before Mr Zdziarski made a claim for compensation in respect of a psychiatric condition.
Nonetheless, i find aspects of Dr Bergin’s opinion to be unsatisfactory. First, neither Dr Skinner not Dr Robinson reported observing evidence of depressive symptoms. Second, on the available material it is not possible to say whether Dr Bergin was aware, as revealed in these proceedings, that Mr Zdziarski has seldom taken anti-depressants in the manner as prescribed since being commenced on the medication in 2004. While this does not establish that Mr Zdziarski does not suffer from depression, nonetheless it casts doubt over the reliability of Dr Bergin’s opinion that the condition is chronic and entrenched — assuming he was unaware that his patient did not follow his advice. Third, no explanation has been provided for Dr Bergin’s decision to stop prescribing anti-depressants in late 2006 for over three years. Fourth, there is no evidence to suggest that Dr Bergin is aware, or has taken account of, the evidence that emerged in these proceedings of Mr Zdziarski taking medication for pain relief in dosages in excess of those prescribed, over an extended period.
In my opinion Dr Robinson failed to give proper regard to the compelling evidence of Mr Zdziarski’s abuse of prescription medication. His observation that there is no evidence of alcohol tolerance or withdrawal and his opinion that Mr Zdziarski does not suffer from alcohol dependence, is not incompatible with Dr Skinner’s diagnosis of substance abuse. Dr Skinner agrees that Mr Zdziarski does not suffer from substance dependence. As she explained, substance abuse and substance dependence are not one and the same condition, pointing out that one of the criteria for a diagnosis of substance abuse under DSM-IV is that the person’s symptoms do not meet the criteria for a diagnosis of substance dependence.
Of the available opinion on diagnosis, I prefer that proffered by Dr Skinner. It is reasoned, plausible and consistent with the known evidence of Mr Zdziarski’s drug use. The more difficult issue is whether, as suggested by Mr Edwards, Mr Zdziarski also suffers from an adjustment disorder. As conceded by Dr Skinner, a diagnosis of substance abuse does not rule out the existence of another psychiatric condition(s) and she could not exclude the possibility that Mr Zdziarski might also be suffering from depression, although she saw no indication in her clinical examination. None of the practitioners who provided an opinion about Mr Zdziarski’s condition suggested that he suffered from more than one psychiatric condition. While possible, I am not satisfied on the balance of probabilities that Mr Zdziarski also suffers depression, an adjustment disorder with anxiety or a yet undiagnosed psychiatric condition. Nor am I satisfied on balance that Mr Zdziarski was suffering from some form psychiatric ailment in the period between September 2004 to the date of claim.
Was Mr Zdziarski’s substance abuse contributed to, to significant degree, by his employment with Telstra?
Mr Zdziarski’s substance abuse will constitute a “disease” for the purpose of the Act if it was contributed to, to a “significant degree”, by his employment with Telstra. In making that assessment it is necessary to identify all contributory factors — employment and non-employment — and then evaluate whether Mr Zdziarski’s employment with Telstra did or did not contribute to his substance abuse, to a degree substantially more than material (Comcare v Sahu-Khan 156 FCR 536 at 542, 543, per Finn J, commenting on the definition of disease contained in the Act prior to 13 April 2007). In undertaking that task the Tribunal is not confined to the matters specified in s 5B(2) and may take into account other factors relevant to the determination of the question of whether the employment concerned was a substantial contributing factor to the injury.
Mr Kelly submits that the evidence given by Dr Skinner indicates that Mr Zdziarski’s substance abuse is unrelated to his physical injuries and there is no evidence to the contrary. Further he submits that it is a “long bow” to draw to suggest that the mere fact that Mr Zdziarski was prescribed medication led to its abuse.
Mr Edwards argues that Mr Zdziarski’s employment with Telstra contributed to his psychiatric condition, however described. He contends that Dr Skinner’s opinion supports the proposition that Mr Zdziarski’s employment, specifically the “unstructured lifestyle, chronic pain and frustration at his limitations” resulting from the accepted injury, was causative of Mr Zdziarski’s’s substance abuse. He argues that the accepted injury and the consequent need for pain relief, together with Mr Zdziarski’s anxiety and frustration, contributed to his substance abuse.
It is uncontroversial that since the accepted injury Mr Zdziarski has experienced increasing levels of pain and has become progressively disabled. The decision of his treaters to recommend and undertake a bilateral knee replacement points to the objective seriousness of his condition. Nonetheless, I am unable to accept the proposition put by Mr Edwards that Dr Skinner holds the opinion that the accepted injury contributed to Mr Zdziarski’s substance abuse.
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.
Adopting that approach, the question posed is whether, having regard to Mr Zdziarski’s pre-disposition to substance abuse together with any relevant factors, employment and non-employment, his condition was contributed to, to a significant degree, by his employment with Telstra.
While it is plausible that Mr Zdziarski’s anxiety and frustration with the circumstances in which he found himself in after the accepted injury contributed to an environment where he was at greater risk of developing a substance abuse condition there is no expert evidence to suggest it did. Dr Skinner considered Mr Zdziarski’s condition was not work-related mainly because she thought the condition was probably long-standing. Even if she is mistaken and Mr Zdziarski’s “unstructured lifestyle, chronic pain and frustration at his own limitations” following the injury were contributory in some way, in my opinion it would be erroneous, as I understand to have been suggested for Mr Zdziarski, that these stressors could be characterised as entirely employment–related. While it is difficult to apportion culpability, the available evidence suggests that while the pain and consequent disability resulting from the accepted injury contributed to Mr Zdziarski’s feelings of distress and anxiety, his belief that Telstra, its insurers and lawyers had mismanaged his claims for compensation and subjected him to egregious treatment, was probably the most significant stressor. The latter, in my opinion, could not be characterised as a factor related to “employment” as that term is used in the definition of disease contained in the Act. The decision of the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 establishes that in this context “employment”, does not extend to all work-related matters:
When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. [per Windeyer J (at 641)]
While Windeyer J’s comments were directed to the definition of "injury" in the Workers' Compensation Act 1926-1960 (NSW), they apply equally to the definition of disease contained in the Act. (See for example the comments of von Doussa J in Wiegand v Comcare (2002) 72 ALD 795 at 796)
While it is difficult to measure, I am not satisfied on balance that those factors that can be characterised as “employment”, such as the pain and consequent disability resulting from the accepted injury, contributed to Mr Zdziarski’s substance abuse to a degree that is more than material. For this reason, I conclude that Mr Zdziarski did not suffer a disease within the meaning of Act.
By the operation of s 4(3) of the Act, can Mr Zdziarski be taken to have suffered an injury?
Mr Zdziarski will be taken to have sustained a psychiatric injury if it was a result of the treatment received in relation to the accepted injury. Section 4(3) of the Act provides:
For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a)compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)it was reasonable for the employee to have obtained that medical treatment in the circumstances.
Paragraphs (a) and (b) are satisfied; the issue to be determined is whether Mr Zdziarski’s substance abuse was “as a result of” treatment received for pain relief.
Mr Edwards submits in effect, that the phrase “a result of” imposes a “but for” test. (For a discussion of the “but for” test see March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ at 515–516). I do not agree. Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 is authority for the proposition that the phrase “a result of” in the context of the Act, means an operative or material cause. The “but for” test imposes a low threshold that merely relates to a condition or factor that is necessary but not, by itself, sufficient to establish causation. The test under s 4(3) requires a determination of whether an operative cause of Mr Zdziarski’s substance abuse was the treatment he received for his accepted injury (Hart at 33). There is no requirement that the treatment be the sole, dominant or proximate cause of the substance abuse (Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 at 121).
But for the injury, Mr Zdziarski probably would not have had the need for pain relief medication. While that treatment provided Mr Zdziarski with the opportunity to take excessive dosages of prescription medication, in my opinion it was not an operative cause of his substance abuse.
In my opinion, the elements of s 4(3) are not satisfied and therefore Mr Zdziarski cannot be taken to have sustained an injury, in the form of a disease, namely substance abuse.
Summary
Mr Zdziarski did not suffer an injury within the meaning of the Act and therefore the decision under review must be affirmed.
I certify that the preceding 65 (sixty- -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .....................[SGD]...................................................
Associate
Dated 28 February 2014
Date(s) of hearing 9 and 10 September 2013 Date final submissions received 27 February 2014 Counsel for the Applicant Tony Edwards Solicitors for the Applicant Harris Wheeler Lawyers Counsel for the Respondent Brendan Kelly Solicitors for the Respondent Sparke Helmore
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