Zdziarski and Telstra Corporation Limited (Compensation)

Zdziarski and Telstra Corporation Limited (Compensation) [2017] AATA 637 (10 May 2017)
Division:GENERAL DIVISION
File Number(s): 2012/1067
2014/0554
2015/5802

Re:Stephen Zdziarski
APPLICANT

AndTelstra Corporation Limited
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:10 May 2017
Place:Sydney

Application 2015/5802
The reviewable decision of Telstra Corporation Limited made 8 October 2015 is set aside. In substitution it is decided that Telstra Corporation Limited is liable to pay compensation to Mr Zdziarski under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of injuries to his lumbar spine and left shoulder suffered on 17 September 2001 for the period commencing on 14 August 2015 until the date of this decision.
Application 2012/1067
The reviewable decision made 21 February 2011 is set aside. In substitution it is decided that Telstra Corporation Limited is liable to pay compensation to Mr Zdziarski in respect of an injury, being Major Depressive Disorder suffered in 2004.
Application 2014/0554
The reviewable decision made 27 November 2013 is set aside. The matter is remitted to Telstra Corporation Limited for reconsideration of Mr Zdziarski’s entitlement to compensation for pharmaceutical expenses under section 16 of the Safety, Rehabilitation and Compensation Act1988 in accordance with these reasons for decision.
Applications 2015/5802, 2012/1067, 2014/0554
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made Telstra Corporation Limited shall pay the costs of the proceedings incurred by Mr Zdziarski.
...................................[sgd].....................................
J W Constance
Deputy President
CATCHWORDS
COMPENSATION – workers’ compensation – fall at work in 2001 – injuries to lower back, left shoulder and knees – paid compensation until August 2015 – determined no longer suffering effects of back and shoulder injuries – whether entitlement to medical expenses – whether entitlement to incapacity payments – has not ceased to suffer the effects of the injuries – continues to reasonably require treatment – continues to be totally incapacitated for work – decision set aside and decision made in substitution
COMPENSATION – workers’ compensation – major depressive disorder – ailment – result of physical injuries sustained during workplace fall – onset in early 2004 – decision set aside and decision made in substitution
COMPENSATION – workers’ compensation – pharmaceutical expenses – medication prescribed by general practitioner – Valium – Pristiq – Endep – Quinbisul – treatment for injuries arising from workplace fall – whether Employer liable to reimburse expenses – whether the expenses reasonable in the circumstances – decision set aside and remitted for reconsideration
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 7(4), 14, 16, 19
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
REASONS FOR DECISION
Deputy President J W Constance
10 May 2017
PART A
INTRODUCTION

Mr Zdziarski has applied to the Tribunal to review three decisions made by his employer, Telstra Corporation Limited, the Respondent in these proceedings. All the decisions relate to injuries suffered by Mr Zdziarski in a fall which occurred on 17 September 2001.
Application 2015/5802
In late 2001 Telstra accepted liability to compensate Mr Zdziarski under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of injuries, being “aggravation of degenerative changes in lumbar spine, aggravation of degenerative changes in both knees with meniscal tears in the right knee and impingement syndrome of left shoulder” sustained on 17 September 2001.[1] From the time liability was accepted until 14 August 2015 Telstra paid compensation for medical treatment obtained in relation to the injuries and for incapacity suffered as a result of the injuries.
[1] Exhibit RR1 2015/5802 p.193.
On 8 October 2015 Telstra affirmed an earlier decision that by 14 August 2015 the injuries had resolved and at that time no further compensation was payable.[2]
[2] Exhibit RR1 2015/5802 p.193.
For the reasons which follow the reviewable decision will be set aside. It will be decided that continuously since 14 August 2015 and at the time of this decision, compensation has been payable in respect of medical expenses and incapacity in accordance with the Act.
Application 2012/1067
On 21 February 2011 Telstra denied liability to compensate Mr Zdziarski for an injury described as “major reactive depression” which he claimed was a consequence of the physical injuries he had sustained.
For the reasons which follow the decision denying liability to compensate Mr Zdziarski for the claimed injury will be set aside. In substitution it will be decided that Telstra is liable to pay compensation to Mr Zdziarski in respect of the injury.
Application 2014/0554
On 27 November 2013, Telstra determined that it was liable to reimburse Mr Zdziarski an amount of $384.40 for pharmaceutical expenses incurred by him in relation to his injuries. Mr Zdziarski claims that he is entitled to compensation for additional pharmaceutical expenses incurred in obtaining treatment prescribed by his General Practitioner.
This decision will be set aside and the matter will be remitted to Telstra for reconsideration in accordance with these reasons for decision.
PART B
BACKGROUND
Unless stated otherwise the findings of fact in these reasons have been made on the basis of the evidence of Mr Zdziarski.
Mr Zdziarski is 59 years old. From the time he was 15 until he was made redundant on 3 December 2003 (at age 46) he was employed by the Postmaster General’s Department followed by Telstra Corporation Ltd. He served his apprenticeship and later qualified as a Telecommunications Technician. He was promoted to Team Leader. As a result of the skills he developed he regularly worked from various depots in the Greater Newcastle area and was required to work a lot of overtime.
At the beginning of September 2001 Mr Zdziarski was fit and well. He enjoyed his work and held a responsible position and earned “very good money.”[3]
[3] Exhibit AA1 para.22.
On 21 September 2001 Mr Zdziarski was involved in an accident at work. In his statement made 10 September 2016 he described the circumstances of this accident as follows:
…… I was undertaking a maintenance job at Tarro Exchange where the remote unit had been reported as malfunctioning. Whilst performing that work I had to speak to the CEMC in Brisbane regarding the fault in the Exchange. To do so, I used a telephone in the lunch room and whilst talking to the CEMC I leaned on the lunchroom table. As I did so, the lunchroom table collapsed underneath me and I fell, so that I landed partly on the collapsed table, and partly on the floor that was made of concrete buy had vinyl tiles on it. As I fell, my right leg was twisted out and my left leg was twisted underneath me. As I fell I flung my left arm out behind me as a reflex action.
After I fell I immediately felt severe pain in both my knees, my back and my left shoulder.
That afternoon I drove home. The pain continued and I took some Panadol and went to bed. I recall thinking at the time that the pain would go away overnight.
However, the next morning I still had pain in both my knees, my left shoulder and my back.[4]
[4] Exhibit AA1 paras 23-26.
Mr Zdziarski did not seek medical attention immediately following the accident as he hoped that he would recover over time. He continued to work by restricting the amount of heavy work he engaged in. He took Panadol to try to control the pain in his back, in his shoulder and particularly, in his knees.
As his condition worsened Mr Zdziarski consulted a General Practitioner, Dr Shah, on 5 November 2001. He was given a medical certificate for time off work. When he handed this certificate to his supervisor it was rejected and he was told to obtain a “certificate for light duties.”[5] The following day Mr Zdziarski consulted Dr Bergin who has been his treating General Practitioner ever since.
[5] Exhibit AA1 para.34.
Dr Bergin issued a certificate for light duties but advised Mr Zdziarski that he should take two weeks off work. Apart from giving technical advice by telephone Mr Zdziarski then rested at home for the next two weeks.
On 22 November 2001 Mr Zdziarski made a claim for worker’s compensation. Following this he consulted several specialists for advice as he continued to suffer pain in his back, shoulder and knees. I will refer to these consultations later in these reasons.
Mr Zdziarski was unable to return to his full-time duties and on 3 December 2003 he was made redundant by his employer. In 2005 he worked for a private employer doing similar work to that he had done for Telstra. He was unable to continue this work after five weeks by reason of the pain he was suffering.
In August 2005 Mr Zdziarski obtained part-time employment as a retail assistant in a bottle shop. He continued in this position until January 2008; he ceased this work by reason of the pain in his knees and back. He has not worked since.
1.
PART C
LEGISLATION
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 19(2) provides in part:
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …. [set out in the subsection].
The relevant provisions of the Act which refer to Comcare apply to the Respondent as a licensee under the Act.
Additional sections of the Act will be set out later in these reasons.
PART D
APPLICATION 2015/5802
REVIEW OF DECISION TO CEASE PAYMENTS FOR INCAPACITY AND MEDICAL EXPENSES IN RELATION TO THE INJURIES TO THE LUMBAR SPINE, BOTH KNEES AND LEFT SHOULDER
By the reviewable decision made 8 October 2015 Telstra affirmed an earlier determination that from 14 August 2015 Mr Zdziarski had no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of the injuries to his lumbar spine, knees or left shoulder suffered on 17 September 2001. The determination was made on the basis that as at 12 August 2015 Mr Zdziarski no longer suffered from the effects of the injuries.
Section 14 of the Act provides for a determination as to whether the Respondent is liable to pay compensation for a claimed injury. Section 16 sets out the circumstances in which compensation is payable for medical expenses obtained in relation to an accepted injury. This section requires the Employer to consider each expense claimed and to make a decision whether or not compensation is in fact payable. Similarly section 19 requires the Employer to decide upon the compensation payable for each claimed period of incapacity.
The Act does not require the Employer to revisit the original decision to accept liability to compensate made under section 14 when deciding that compensation is no longer payable under section 16 and/or section 19.
The issues
The Tribunal stands in the shoes of the original decision-maker and it must take into account all of the evidence before it. The issues I must decide follow.
(a)Has Mr Zdziarski any entitlement to compensation for medical expenses incurred in relation to the injury to his lumbar spine and/or his left shoulder on, or at any time since, 12 August 2015?
(b)Has Mr Zdziarski any entitlement to incapacity payments in respect of the injury to his lumbar spine and/or his left shoulder for any period on or since 12 August 2015?
At the commencement of the hearing Counsel for Telstra informed me that his client had agreed to continue to compensate Mr Zdziarski in respect of the injuries to his knees. On this basis there is no further issue for determination in relation to these injuries.
Evidence of Mr Zdziarski
I have already referred to some of the evidence of Mr Zdziarski in relation to the continuing pain he has suffered in his lower back and his left shoulder since 17 September 2001.
In his statement made 10 September 2016, Mr Zdziarski described the current situation in relation to his lower back and left shoulder as follows:
So far as my back is concerned, I have continuous pain which is made worse in activity. On a normal day, providing I don’t do anything, my back pain is nowhere near as bad as my knee pain. However, after activity such as carrying shopping, pushing myself up out of the chair (particularly a low chair) driving for longer than 30 minutes, all cause the back pain to increase significantly. However, if I then rest it returns to its normal level of discomfort.
So far as my left shoulder is concerned it, likewise, is not too bad provided I don’t do anything to aggravate it. It is certainly not as bad as the pain in my knees.[6]
[6] Exhibit AA1 para.106.
Report of Dr Smith, Orthopaedic Surgeon
Mr Zdziarski was assessed by Dr Smith in November 2002 at the request of Telstra’s insurers. He provided a report dated 29 November 2002.[7]
[7] Exhibit RR7.
Dr Smith was of the view that any aggravation of the degenerative condition in Mr Zdziarski's back would have settled within three months, but it was likely that he would continue to aggravate it in the course of daily living.
Report of Dr Millons, Orthopaedic Surgeon
Mr Zdziarski was assessed by Dr Millons in September 2003 at the request of the Solicitors for Telstra.
In a report dated 2 September 2003[8] Dr Millons stated:
He has some pain in the left lower lumbar region radiating into the groin. That has been present since his fall. Sitting and standing are aggravating. He prefers to keep on the move. Bending increases his symptoms. He takes care with lifting. Jarring is troublesome, especially to his knees. He gets some relief from his back pain when he lies down.
……
He has seen Dr Kemp about [his shoulder injury]. He saw him earlier this year. He was told that he had some muscle is torn off the rib cage and that there was no operation that he needed. He was told to live with his problems which he tries to do.
He finds it hard to lift his left arm above shoulder height.[9]
[8] Exhibit AA2 p.66.
[9] Exhibit AA2 p.68.
Dr Millons was asked for his opinion as to the nature of the back injury sustained by Mr Zdziarski on 17 September 2001. He responded that Mr Zdziarski sustained “a substantial aggravation of a degenerative lumbo-sacral disc” and that he considered that Mr Zdziarski continued to suffer the effects of that injury.
Dr Millons reported further in relation to the back condition:
·It is ongoing aggravation of the underlying attritional change of the lumbo-sacral level. He hurt his legs at the same time and has an altered gait pattern and that will be playing a part in perpetuation of symptoms coming from the degenerative changes in the lower back. Symptoms have been in train for two years and it seems unlikely they will subside.
·The back problem limited his capacity to work in an environment which entails much bending, lifting more than 10 kg or working in awkward or confined spaces.
·Treatment for the back should follow conservative lines with him keeping up with an active exercise program, perhaps including some hydrotherapy.
·There is no indication for any surgical intervention.[10]
[10] At p.73.
In relation to the shoulder injury Dr Millons was of the opinion that the effects of the injury had passed.
Report of Dr Thomson, Orthopaedic Surgeon
Dr Thomson assessed Mr Zdziarski on 2 December 2003 at the request of the Telstra’s Solicitors. He provided a report dated 2 December 2003.[11]
[11] Exhibit AA2 p.75.
In the opinion of Dr Thomson Mr Zdziarski suffered from an aggravation of a degenerative lumbo-sacral disc. His prognosis was that Mr Zdziarski would continue to suffer lumbar backache and that this condition would deteriorate over time. He did not anticipate that the effects would cease. In his opinion there may be a plateauing of the pain but it would be aggravated by repetitive bending or lifting.
Dr Thomson considered that Mr Zdziarski suffered a soft tissue or myofascial injury of the left shoulder. However, he did not consider that Mr Zdziarski suffered from any major disability of his left shoulder at the time of the assessment as the effects of the injury had modified and almost completely resolved. He expected that any disability of the left shoulder would cease within the following 12 months.
Report of Dr Bodel, Orthopaedic Surgeon
Dr Bodel assessed Mr Zdziarski at the request of Telstra’s insurers in March 2007.
In a report dated 2 March 2007[12] Dr Bodel stated that Mr Zdziarski had ongoing work-related back pain and shoulder pain. In his opinion the pathology would probably deteriorate over time.
[12] Exhibit AA2 p. 127.
Report of Dr Tarrant, Orthopaedic Surgeon
Dr Tarrant reviewed Mr Zdziarski in February 2008 at the request of Telstra’s Solicitors.
On 3 April 2008 Dr Tarrant reported that:
In the injury of 17/09/01 he suffered aggravation of widespread arthritis and has probably had an ill-defined low-grade soft tissue injury of both shoulders. Symptoms are as listed and basically include pain in areas as given. The fact that he stayed at work the next 6-8 weeks is an indication that he avoided acute orthopaedic injury as such. As he has got older in the last seven years then his condition has become worse in that arthritis is a progressive pathology that gets worse with age. …… There was a strong chance that he would have developed these conditions as he got older and that this is the normal progression of the axial spine and also weight bearing joints, such as knees, and it is not uncommon for middle aged men to develop subacromial impingement and rotator cuff pathology anyway…… I don’t believe that he continues to suffer ill effects of the injury of 17/09/01.[13]
[13] Exhibit RR8 p.6.
Report of Associate Professor Myers, Vascular/Endovascular Surgeon
Professor Myers assessed Mr Zdziarski in June 2008 and June 2009 and provided reports dated 11 June 2008[14] and 6 July 2009.[15] The assessments were requested by Mr Zdziarski's Solicitors.
[14] Exhibit RR9.
[15] Exhibit RR10.
Professor Myers diagnosed Mr Zdziarski as suffering degenerative lumbo-sacral spine changes (which are unlikely to improve) and non-specific limitation of movement and pain in the shoulders with symptoms suggestive of rotator cuff impairment with pain on abduction.[16] He noted that that he was unaware of a specific diagnosis of the condition of the shoulder.
[16] Exhibit RR10 p.6.
It is to be noted that the assessments by Professor Myers were carried out for the purpose of determining the extent of Mr Zdziarski's impairment. They were based on an acceptance by Telstra of liability to compensate for the injuries.
Report of Dr Hopcroft, Consultant Orthopaedic Surgeon
Telstra’s insurers had Mr Zdziarski assessed again in September 2010, this time by Dr Hopcroft. He provided a report dated 8 September 2010.[17]
[17] Exhibit AA2 p.180.
Dr Hopcroft agreed with the opinion of Dr Thomson that Mr Zdziarski had “pre-existent asymptomatic changes in …… his back and that the fall at work on 17 September 2001 rendered them permanently altered and symptomatic.”[18]He disagreed with the view that Mr Zdziarski's ability to continue working immediately after the fall was an indication that he had avoided an acute orthopaedic injury.
[18] At p.182.
Dr Hopcroft reviewed the various medical reports and scans.
He stated further:
Mr Zdziarski does in fact continue to suffer from the effects of the injury suffered on 17 September 2001 but there has been a continuum and gradual increase in his symptoms from the date of his injury. In my opinion he is not exaggerating in any significant way and his rate of deterioration is gradually increasing, specifically with his shoulders and knees.[19]
[19] At p.187.
Report of Mr Bracken, Orthopaedic Surgeon

Mr Bracken assessed Mr Zdziarski at the request of his Solicitors in December 2010. His report is dated 17 December 2010.[20]
[20] Exhibit AA2 p.210.
In the opinion of Mr Bracken, Mr Zdziarski had “aggravated and accelerated degenerative changes in his lumbo-sacral disc with restricted ranges of motion especially in extension, typical of mechanical low back pain with some somatic referral to his legs.”[21] Further, in his opinion, the marked restriction of motion in Mr Zdziarski's shoulder indicated that he had an impingement syndrome and an overlying adhesive capsulitis.
[21] At p.218.
Evidence of Dr Young, Consultant Orthopaedic Surgeon
In September 2014 Mr Zdziarski was assessed by Dr Young at the request of Telstra. He provided a report dated 25 September 2014[22] and gave evidence.
[22] Exhibit R1 2015/5802 p.111.
Dr Young is of the opinion that Mr Zdziarski has mild AC joint left shoulder osteoarthritis and lumbar spondylosis. In his view the effects of any aggravation of the lumbar condition suffered in the fall would have ceased within 12 months.
As to the condition of the shoulder, Dr Young said that no firm diagnosis had been made and that the suggestion that there had been a soft tissue injury had not been adequately investigated. The restriction in movement could be related to the fall.[23]
[23] Transcript 15/09/16 pp.121-122.
Evidence of Dr Berry, Senior Consultant Surgeon
Dr Berry assessed Mr Zdziarski in February 2015 at the request of his Solicitors. He provided reports dated 16 February 2015 and 17 May 2016.[24] He also gave evidence.
[24] Exhibit AA2 pp.287,289 and 330 respectively.
In the opinion of Dr Berry, Mr Zdziarski’s condition involving his back and left shoulder are continuing and is a direct consequence of his falling in 2001. He agreed that Mr Zdziarski had significant degenerative changes present in his back prior to the fall. However he found him to be asymptomatic and carrying out full duties as a Telstra technician at that time.
Evidence of Dr Findeisen, Consultant Rheumatologist
Dr Findeisen assessed Mr Zdziarski in June 2016 at the request of Mr Zdziarski’s Solicitors. Dr Findeisen provided a report dated 10 June 2016[25] and gave evidence.
[25] Exhibit AA2 p.333.
Dr Findeisen’s opinion is that Mr Zdziarski suffers from chronic pain in his lower back and his left shoulder. In his view lumbosacral disc disease was probably present prior to the accident but only became symptomatic as a result of the fall. Similarly with the left shoulder he had no symptoms prior to the fall but has chronic pain since. His findings on examination of Mr Zdziarski's shoulder were consistent with a rotator cuff injury.
Dr Findeisen concluded that:
…… if Mr Zdziarski had not sustained the workplace accident on 17.09.2001 he would not be in his current state. I suspect due to constitutional factors he may well have developed a degree of knee and low back pain but nothing like what he is currently experiencing. Prior to the workplace accident he was essentially painfree one would have expected only a slow deterioration over the years from any underlying pre-existing degenerative disease.[26]
[26] Exhibit AA2 p.340.
Discussion
Whilst neither party bears an onus of proof, there is an evidentiary burden on Telstra which must be discharged if the decision under review is to be affirmed. For this to occur I have to be satisfied that:
(a)Mr Zdziarski has not suffered from the effects of the compensable injury such as to reasonably require medical treatment; and/or
(b)that he has not been incapacitated for work as a result of the injury,
at any time since 12 August 2015.
If I cannot be so satisfied the reviewable decision must be set aside and another decision substituted.
Having considered the evidence I am not satisfied on the balance of probabilities that Mr Zdziarski ceased to suffer the effects of the injuries at any time since 12 August 2015. I accept the evidence of Mr Zdziarski that he has continued to suffer pain, at times severe, in his lower back and left shoulder. I am not satisfied that he no longer reasonably requires treatment for the injuries or that he is no longer totally incapacitated for work as a result of those injuries. However I note that he is already receiving compensation on the basis that he is totally incapacitated for work as a result of the injuries to his knees.
In reaching this conclusion I have preferred the evidence of Dr Berry and Dr Findeisen to that of Dr Young. In particular I am persuaded by the opinion of Dr Findeisen that although Mr Zdziarski was likely to experience some pain in his lower back and in his shoulders as he aged, neither condition would have developed to the point of being as disabling as they are presently.
There is further support for the opinions of Dr Berry and Dr Findeisen in the report of Dr Millons in 2003, two years after the accident. At that time Dr Millons was of the view that Mr Zdziarski continued to suffer the effects of his back injury although he did report that the effects of the shoulder injury had passed. Dr Thomson also formed the view that by December 2003 Mr Zdziarski continued to suffer aching in his lumbar back and that this condition was likely to deteriorate. In 2007 Dr Bodel reported ongoing work-related pain in the back and shoulder which was likely to deteriorate over time. This was supported by the view of Dr Hopcroft after he assessed Mr Zdziarski in 2010.
The opinions of the various medical witnesses to which I have referred are consistent with the evidence of Mr Zdziarski. I accept that he was an honest witness who gave his evidence to the best of his recollection. He was in good health immediately prior to the incident in which he was injured; he was successful in his career and enjoyed his work; he was earning a good income. I accept that Mr Zdziarski endeavoured to continue to work despite the effects of his injuries. On the evidence before me there was no apparent reason why he would have stopped working had he been able to continue despite his injuries.
I note that prior to the decision to cease payments there was no offer of suitable work to Mr Zdziarski, nor was there a return to work programme in place. It also appears that no counselling assistance was given to prepare Mr Zdziarski to return to the workforce leading up to the reviewable decision being made.
In all the circumstances I am not satisfied on the balance of probabilities that Mr Zdziarski had ceased to suffer the effects of either injury at the date of the reviewable decision or at any time since. I am satisfied that since 12 August 2015 and at the date of this decision, Mr Zdziarski is entitled to medical expenses reasonably incurred in relation to the injuries and to compensation for incapacity caused by the injuries (taking into account compensation already being paid in respect of the injuries to his knees).
The decision under review will be set aside.
The matter will be remitted to the Respondent for reconsideration of Mr Zdziarski’s entitlements to compensation under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act1988 in accordance with these reasons for decision.
PART E
APPLICATION 2012/1067
REVIEW OF DECISION TO DENY LIABILITY FOR MAJOR REACTIVE DEPRESSION AND EMOTIONAL STRESS
The claim
On 22 November 2010 Mr Zdziarski made a claim for a work-related psychological injury described as a “major reactive depression and emotional stress” and as “major reactive depression and physical stress”.[27]
[27] Exhibit RR1 2012/1067 p.19.
On 21 February 2011 Telstra affirmed an earlier decision to deny Mr Zdziarski’s claim.[28]
[28] Exhibit RR1 2012/1067 p.24.
Legislation relating to liability to compensate for an injury
The definition of “injury” in the Act was changed in 2007.[29] The definition in the Act prior to the amendment continued to apply to ailments suffered before 13 April 2007.
[29] See Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth).
For reasons stated later I have decided that Mr Zdziarski suffered a Major Reactive Depression in 2004 which means that the applicable definition of injury is that in force prior to the amendment taking effect.
Subsection 14(1) of the Act provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The following definitions were included in subsection 4(1) of the Act prior to the 2007 amendment taking effect:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
Ailment is defined in subsection 4(1) to mean:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Mr Zdziarski’s evidence
Mr Zdziarski says that following his redundancy he became very anxious and depressed and was worried about his employment and income. He began to have difficulty controlling his emotions and became irritable and angry. He felt lethargic and rarely went out socially. When he did, he did not find this enjoyable. He felt that he had lost all his courage and confidence.
In September 2004 Mr Zdiarski consulted Dr Bergin concerning the problems he was experiencing. He was advised by Dr Bergin that he was suffering depression and was prescribed anti-depressant tablets (Lovan). After about eight weeks he stopped taking medication as it did not seem to have much effect. He says that he “remained extremely frustrated, irritable, lethargic and depressed mainly because I was in constant pain.”[30]
[30] Exhibit AA1 para.64.
In July 2006 Mr Zdziarski again discussed his feelings with Dr Bergin, who prescribed Effexor. Mr Zdziarski described his situation at this time as follows:
I felt weak for taking tablets and I didn’t think there was anything wrong with my mind. The tablets didn’t seem to have any effect anyway, I certainly remained depressed, agitated and angry
Also, at about that time, Dr Bergin commenced to prescribe me with Valium. I had for some time following the injury suffered cramps in my legs and understand that Dr Bergin prescribed the Valium to try to control those cramps. He also prescribed me sleeping tablets, Temaze, because I was having a great deal of trouble sleeping because of pain.[31]
[31] Exhibit AA1 paras 74-75.
The pain in Mr Zdziarski's knees and back worsened and in about March 2008 Dr Bergin prescribed a morphine-based medication. Mr Zdziarski now understands that the medication was probably MS Contin. Later Dr Bergin prescribed the anti-depressant, Pristiq.
Mr Zdziarski describes his situation in February 2011 as follows:
At that time I was very depressed. I couldn’t see life was worth living. I was tired of fighting with Telstra all the time. I was sick of being in constant pain. I was really angry that Telstra had stopped my massage, which was one thing that seemed to help me. I was in conflict with lots of people and had lost a lot of my former friends. I tended to stay at home by myself, sleeping a lot during the day. At night I found it very hard to get to sleep. I was tired and lethargic all the time. I was unable to relax and I couldn’t concentrate.[32]
[32] Exhibit AA1 para. 92.
At the time he made his statement in September 2016 Mr Zdziarski said:
So far as my depression is concerned I think, if anything, it is getting worse. I was so disappointed that the knee replacements were not effective as I had hoped they would be. I feel more disabled than I was beforehand. I am always tired and I have difficulty concentrating. Before this injury I had always been strong and now I feel weak. I seem to have lost most of my friends and I have trouble trusting people. I have no social life and spend most of the time lying down watching TV. I used to occasionally go to a men’s shed where I talk to other men who are in a similar situation to mine. It was about the only thing I used to get any enjoyment out of. It has been suggested to me that I might benefit from some psychological counselling but I understand that will require me to talk about the events of the last 15 years and I notice that when I do that I seem to only get more depressed. I no longer go to the men’s shed as I physically struggle to get there. I don’t think that counselling will help me just as taking anti-depressants doesn’t seem to have made much difference to how I feel about myself.[33]
[33] Exhibit AA1 para. 107.
Report of Dr Bergin, General Practitioner
In a report dated 6 September 2013[34] Dr Bergin stated that Mr Zdziarski “developed significant Major Depressive Disorder early in 2004; this condition was reactive to his progressive incapacity caused by a work accident in 2001. On 16/9/04 I commenced him on Lovan tablets to manage this condition.”
[34] Exhibit AA2 p.261.
Records of drugs prescribed for Mr Zdziarski
Details of prescriptions issued for Mr Zdziarski[35] show that he was initially prescribed the following medication as follows:
·Lovan on 16 September 2004;
·Panadeine Forte in March 2005;
·Effexor in July 2006;
·Valium in July 2006;
·Aropax in September 2006;
·MS Contin in March 2008.
[35] Exhibit AA2 p.255.
Mr Zdziarski gave evidence that all these drugs were prescribed for him by Dr Bergin.
Evidence of Dr White, Consultant Psychiatrist
Dr White assessed Mr Zdziarski at the request of his Solicitors in July 2015. The assessment was carried out by video link. He provided reports dated 2 July 2015 and 27 July 2015[36] and gave evidence.
[36] Exhibit AA2 pp.300 and 313 respectively.
Dr White reported, in part:
Mr Zdziarski …… appears to be suffering from a Major Depressive Disorder, Single Episode. Characterised by low mood and other biological, psychological and social symptoms of depression, including some melancholic features and suicidal ideation.
Upon the history available, both from Mr Zdziarski and others, it would appear that Mr Zdziarski's depressive symptoms were precipitated by a workplace injury in 2001.
……
Given the duration and severity of Mr Zdziarski's depression, as well as its context, i.e. chronic pain, disability, and other vocational, social, financial, relationship, recreational and other consequences from his pain and disability, Mr Zdziarski is likely to remain significantly depressed into the foreseeable future.
……
Mr Zdziarski's depression would probably have been diagnosed as an Adjustment Disorder with Depressed Mood not long after the onset of his chronic pain in 2001.
It has since evolved into a Major Depressive Disorder, Single Episode, as described.
……
Upon the history available, Mr Zdziarski's employment i.e. his physical injury, would appear to have contributed significantly to the psychiatric disorder. Major Depressive Disorder, Single Episode, appears to be most certainly secondary to his physical injuries and their consequences.
Report of Dr Skinner, Consultant Psychiatrist
Mr Zdziarski was assessed by Dr Skinner in October 2012 at the request of Telstra. She provided reports dated 26 October 2012[37], 4 July 2013[38] 16 July 2015[39] and 5 September 2016[40] and gave evidence.
[37] Exhibit R1.
[38] Exhibit R2.
[39] Exhibit RR1 2015/5802 p.176.
[40] Exhibit RR6.
In her first report Dr Skinner noted that during the assessment Mr Zdziarski was “very angry and controlling”[41] which made it difficult to obtain a comprehensive history. She expressed the opinion that “Mr Zdziarski has sustained a psychological/psychiatric condition. He suffers from substance abuse (prescribed medications, narcotic analgesics and benzodiazepine tranquillisers) and possibly alcohol. According to his account, Mr Zdziarski became dependent on narcotic analgesics about 12 months ago……. Mr Zdziarski continues to be affected by substance abuse. He is overdosing on prescribed medications and this is likely to impact on his psychological state.”
[41] Exhibit R1 p.1.
In July 2015 Dr Skinner expressed the opinion that Mr Zdziarski’s “problem of substance abuse was pre-existing and is related to genetic and environmental factors.”[42]
[42] Exhibit RR1 2015/5802 p.178.
In her report of 4 July 2013 Dr Skinner expressed the view that Mr Zdziarski had a primary problem of alcohol abuse and that his work related injury had not contributed to his substance abuse or any other psychiatric condition.[43]
[43] Exhibit R2 p.3.
On 12 September 2016 Dr Skinner reported:
His condition [substance abuse (alcohol, narcotic analgesics and benzodiazepine tranquillisers)] probably arose in his adolescent years, as he reports drinking heavily during his teenage years and his alcohol-related driving offences occurred in the 1980s. He lost his licence around that time, probably after a serious charge in 1986, but a number of alleged offences in the 1990s might have been alcohol-related. I noted that he reported to Dr Hopcroft that he was drinking heavily, abusing alcohol around the time prior to his accident of 2001.[44]
Discussion
[44] Exhibit RR6 p.4.
Does Mr Zdziarski suffer from a psychiatric condition?
On the basis of the evidence of Dr White, the report of Dr Bergin and the evidence of Mr Zdziarski I find that Mr Zdziarski suffers from a Major Depressive Disorder. I am satisfied that this condition is an “ailment” within the meaning of subsection 4(1) of the Act.
I found the evidence of Dr White and the report of Dr Bergin far more persuasive than the evidence of Dr Skinner.
In particular Dr White gave evidence that Mr Zdziarski’s consumption of drugs in the overall quantities prescribed by Dr Bergin, and in circumstances when he was suffering chronic pain, was not indicative of substance abuse. He said that it is common for a person in these circumstances to take extra medication from time to time to see if it helps with chronic pain. It does increase the chances of depression developing and is totally consistent with depression.[45] Further, it was Dr White’s opinion that a chronic pain patient responds differently to a narcotic than a patient who does not have chronic pain.[46]
[45] Transcript 15/09/16 p-106.
[46] Transcript 15/09/16 p-110.
When the history given by Mr Zdziarski as to his feelings and physical symptoms in 2003 was put to Dr Skinner she agreed that it would probably not have been difficult to diagnose depression “had [she] seen him at that time.” [47]
[47] Transcript 16/09/16 p-7.
Dr Skinner also agreed that it was “quite misleading”[48] for her to have reported on 5 September 2016 that there are:
a number of charges of alcohol-related driving offences in the 1980s and a number of alleged offences in the 1990s that appear to have been alcohol-related.
[48] Transcript 16/09/16 p-10.
When given the opportunity to point to the material on which she made this statement Dr Skinner was unable to do so. This raises doubt as to the reliability of her opinion.
In the course of giving oral evidence Dr Skinner revised her diagnosis of Mr Zdziarski’s condition from “substance abuse” to “substance dependence”.[49]
[49] Transcript 16/09/16 p-12.

A further matter which causes me to doubt the reliability of Dr Skinner’s diagnosis was that she conducted her assessment of Mr Zdziarski at the offices of the Solicitors acting for Telstra in this application, when she was aware prior to the assessment that Mr Zdziarski perceived that there had been “real problems”[50] in the manner he had been treated by Telstra.
[50] Transcript 16/09/16 p-14.
Dr Skinner gave evidence that during her interview of Mr Zdziarski he was angry and that this indicated something about his underlying personality. She agreed that his presentation during the assessment indicated that the requirement that he attend at the Solicitors’ offices affected him and affected the examination.[51] Dr Skinner also became aware after the interview that Mr Zdziarski had been angered by difficulties he had experienced in gaining access to the Solicitor’s offices to attend the assessment.
[51] Transcript 16/09/16 p-18.
In my view, unless there are exceptional circumstances, this practice is inappropriate and should not be followed.
When did Mr Zdziarski suffer the injury?
In subsection 4(1) impairment is defined to mean:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Mr Zdziarski first consulted Dr Bergin in relation to symptoms of depression in September 2004. At that time Dr Bergin diagnosed that he developed a significant Major Depressive Disorder in early 2004. On the basis of this evidence I am satisfied that Mr Zdziarski suffered the ailment sometime in early 2004.
Did Mr Zdziarski’s employment by Telstra contribute to the Major Depressive Disorder “in a material degree”?
On the basis of the opinion of Dr Bergin set out in his report of 6 September 2013[52] I am satisfied that the Major Depressive Disorder initially suffered by Mr Zdziarski in 2004 was contributed to by his employment by Telstra in a material degree. This is consistent with the evidence of Mr Zdziarski as to the symptoms he was suffering before he consulted Dr Bergin in September 2004.
[52] ExhibitAA2 p.261
The opinion of Dr Bergin is supported by Dr White who reported that Mr Zdziarski’s depressive symptoms were precipitated by his workplace injury in 2001.[53]
[53] Exhibit AA2 pp.300 – 313.
Conclusion
For the reasons stated I am satisfied that Telstra is liable to compensate Mr Zdziarski in accordance with section 14 of the Act in respect of an injury being a Major Depressive Disorder.
In accordance with subsection 7(4) of the Act, and for the purposes of the Act, Mr Zdziarski is taken to have sustained the injury (being a disease) in 2004.
Subsection 7(4) of the Act provides:
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
Section 53 of the Act provides for an employee to give notice of an injury to the relevant authority (in this case Telstra) in certain circumstances. After the hearing of these applications concluded I gave both parties the opportunity to raise any issue which may arise under this section. Telstra did not seek to raise any such issue.
PART F
APPLICATION 2014/0554
REVIEW OF DECISION MADE 27 NOVEMBER 2013 THAT TELSTRA WAS LIABLE TO REIMBURSE MR ZDZIARSKI AN AMOUNT OF $384.40 FOR PHARMACEUTICAL EXPENSES UNDER SECTION 16 OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Legislation
Subsection 16(1) provides:
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Note: Compensation is not payable under this subsection in relation to certain defence‑related claims (see Division 2A of Part XI).
The reviewable decision
Prior to 27 November 2013 Mr Zdziarski had lodged a number of claims for medication prescribed by Dr Bergin for treatment of his various injuries arising from the incident on 17 September 2001. As at 27 November 2013 Telstra had accepted liability to compensate Mr Zdziarski in respect of “aggravation of degenerative changes in lumbar spine, aggravation of degenerative changes in both knees with meniscal tears in the right knee and impingement syndrome of left shoulder.”[54]
[54] Exhibit RR1 2015/5802 p.5.
Section 16 requires Telstra to consider each claim for the cost of medical treatment when it is made. It is liable to pay by way of compensation such amount as it determines to be appropriate for treatment that was reasonable for Mr Zdziarski to obtain in the circumstances.
By its reviewable decision Telstra refused to compensate Mr Zdziarski for the cost of Valium, Pristiq and Endep on the basis that there was an application before this Tribunal relating to the claim for major depression. Telstra also refused to pay compensation for the drug Quinbisul as insufficient information was available to determine whether that pharmaceutical was reasonable to treat the compensable injury.[55]
[55] Exhibit RR1 2014/0554 p.85.
Mr Zdziarski does not dispute Telstra’s liability to pay the sum of $384.40. He claims that in addition Telstra should compensate him for the cost of the Valium, Pristiq, Endep and Quinbisul which he has taken on prescription by Dr Bergin.
Mr Zdziarski’s claims
In a document headed “Patient Health Summary” issued on 7 August 2014,[56] Dr Bergin provided a list of all of Mr Zdziarski’s medications current at that time. The list included all of the disputed medications. On the document Dr Bergin has noted:
All of the above medications are related to the treatment of his compensible [sic] conditions; those required due to treatment side effects are marked *.
[56] Exhibit RR1 2015/5802 p.108.
Mr Zdziarski gave evidence that Dr Bergin has continued to be his treating General Practitioner since the accident and that he has not sought, nor been given, prescriptions from or by any other practitioner. I accept this evidence.
Quinbisul
Dr Bergin prescribed Quinbisul to relieve leg cramps associated with the injuries to Mr Zdziarski’s knees.[57] Mr Zdziarski’s experience is that this medication provides some relief from the cramping and has no side effects.
[57] Exhibit RR1 2015/5802 p.97.
Valium
This drug was also prescribed by Dr Bergin to relieve leg cramps.[58]
[58] Exhibit RR1 2015/5802 p.97.
Endep
Endep is a tricyclic anti-depressant commonly prescribed as part of treatment for depressive disorders. Dr Bergin included this medication in the list of those prescribed for Mr Zdziarski’s compensable conditions. Mr Zdziarski does not recall taking this drug.
Pristiq
Pristiq is used to treat depressive disorders. It is included in the “Patient Health Summary” prepared by Dr Bergin.
Report of Ms Jenkins, Medication Review Accredited Pharmacist[59]
[59] Exhibit AA2 p.350.
This report was prepared in July 2016 for the purposes of these proceedings. In preparing the report Ms Jenkins spoke to Dr Bergin and reviewed all Mr Zdziarski’s medication records.
In her report Ms Jenkins listed Valium as one of Mr Zdziarski’s current medications; Endep, Pristiq and Quinbisul were listed as past medications.
In relation to the medications in issue Ms Jenkins reported:
VALIUMThis prescription was reasonable for Mr Zdziarski’s injury and subsequent disabilities. It would have been beneficial for both muscle spasms from the injury and anxiety associated with the injury. Dr Bergin (Mr Zdziarski’s GP) has prescribed this appropriately and Mr Zdziarski uses a minimal amount.
ENDEPThis prescription was reasonable for Mr Zdziarski’s injury and subsequent disabilities. Endep is often prescribed for patients who are suffering from both pain and depression (the result of Mr Zdziarski’s injury).
Quinine bisulfate tablet This prescription was reasonable for Mr Zdziarski’s injury and subsequent disabilities. His leg cramps would have resulted from his injury.
PRISTIQThis prescription was reasonable for Mr Zdziarski’s injury and subsequent disabilities. His depression began after his injury and his subsequent job loss.
Telstra’s argument
Telstra relied upon the opinions of Dr Young and Associate Professor McGill that the use of Valium and/or Quinbisul was inappropriate for the treatment of muscle spasm. Further they stated that, some years ago government authorities advised against the use of Quinbisul due to a lack of proven benefit and evidence of potentially harmful side-effects. Both Doctors were of the view that the use of Valium for treatment of muscle spasm was inappropriate because it is addictive and there is only weak evidence of its efficacy for that purpose.
It was argued that there is no evidence that Mr Zdziarski has ever taken Endep. In relation to Pristiq it was put that it was appropriate to deal with this claim with the claim for the psychological injury.
Discussion
I am satisfied that Mr Zdziarski has always relied upon the drug treatment prescribed for him by Dr Bergin and that Dr Bergin has continually monitored his use of the medications prescribed. Although Mr Zdziarski did not always comply strictly with the timing of the dosages prescribed, I am satisfied that he did not use, nor seek to obtain, more than the quantity of medication prescribed for him.
Whilst neither Dr Young nor Associate Professor McGill would have prescribed Valium or Quinbisul in the circumstances I am satisfied that Dr Bergin properly prescribed these drugs, particularly as Mr Zdziarski did not suffer any side-effects. I have taken into account also that neither drug is being prescribed on a continuing basis.
Dr Bergin has been Mr Zdziarski’s treating General Practitioner for the past 15 years and I am satisfied that he is in the best position to determine the appropriate medication to treat the multiple conditions from which Mr Zdziarski suffers. I find support for this conclusion in the report of Ms Jenkins. I also accept the evidence of Dr White that Valium is an appropriate medication to treat a patient suffering chronic pain.[60]
[60] Transcript 15/09/16 p-108.
Although there is no direct evidence as to the purpose for which Endep was prescribed, on the basis of the nature of the drug, I am satisfied that it is likely that it was prescribed to treat Mr Zdziarski’s depression.
As Mr Zdziarski is claiming for reimbursement of the cost of only those drugs prescribed for him by Dr Bergin I am satisfied that it was reasonable for him to obtain such treatment in the circumstances. He is entitled to rely on the advice given to him by his general practitioner, especially one who has been treating him over many years.
There is no evidence to suggest that the amount prescribed of any particular drug was excessive or that Dr Bergin had prescribed any treatment inappropriately. The differing of opinions expressed by Dr Young and Associate Professor McGill do not outweigh those of the treating practitioner in this regard. In these circumstances it is appropriate that Telstra pay the full cost of the listed medication incurred to date upon the lodgment of the necessary claims.
PART G
CONCLUSION
Application 2015/5802
The reviewable decision of Telstra Corporation Limited made 8 October 2015, that from 14 August 2015 Mr Zdziarski has no entitlement to compensation in respect of medical expenses or to incapacity payments in respect of the injuries to his lumbar spine or left shoulder suffered on 17 September 2001, will be set aside.
In substitution it will be decided that Telstra Corporation Limited is liable to pay compensation to Mr Zdziarski under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of injuries to his lumbar spine and left shoulder suffered on 17 September 2001 for the period commencing on 14 August 2015 until the date of the decision in this matter.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made Telstra Corporation Limited shall pay the costs of the proceedings incurred by Mr Zdziarski.
Application 2012/1067
The reviewable decision made 21 February 2011, being the decision of Telstra Corporation Limited to refuse to compensate Mr Zdziarski for an injury, being Major Depressive Disorder, will be set aside.
In substitution it will be decided that Telstra Corporation Limited is liable to pay compensation to Mr Zdziarski in respect of an injury, being Major Depressive Disorder suffered in 2004.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made Telstra Corporation Limited shall pay the costs of the proceedings incurred by Mr Zdziarski.
Application 2014/0554
The reviewable decision made 27 November 2013, being the decision of Telstra Corporation Limited that it was liable to reimburse Mr Zdziarski an amount of $384.40 for pharmaceutical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988, will be set aside.
The matter will be remitted to Telstra Corporation Limited for reconsideration of Mr Zdziarski’s entitlement to compensation for pharmaceutical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with these reasons for decision.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made Telstra Corporation Limited shall pay the costs of the proceedings incurred by Mr Zdziarski.

I certify that the preceding 142 (one hundred and forty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.....................................[sgd]...................................
Associate
Dated: 10 May 2017

Date(s) of hearing: 14, 15, 16 September 2016

Date final submissions received: 24 February 2017

Counsel for the Applicant: I Roberts SC and M Weightman

Solicitors for the Applicant: S Gray, Harris Wheeler Lawyers

Counsel for the Respondent: B Kelly

Solicitors for the Respondent: A Bortone, Sparke Helmore

[2017] AATA 637

10 May 2017

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Remedies

Date(s) of hearing:	14, 15, 16 September 2016
Date final submissions received:	24 February 2017
Counsel for the Applicant:	I Roberts SC and M Weightman
Solicitors for the Applicant:	S Gray, Harris Wheeler Lawyers
Counsel for the Respondent:	B Kelly
Solicitors for the Respondent:	A Bortone, Sparke Helmore