Slaters and Telstra Corporation Ltd [2002] AATA 75 (8 February 2002)

Last Updated: 11 February 2002

CATCHWORDS - COMPENSATION - Major Depressive Disorder - Adjustment Disorder - whether applicant has a Major Depressive Disorder, and if so, whether it arose out of, or in the course of, his employment - whether applicant has an Adjustment Disorder, and if so, whether it arose out of, or in the course of, his employment - whether ongoing - applicant entitled to compensation for a specified period - decision set aside

Safety, Rehabilitation and Compensation Act 1988 Part II, Part VIIIB, ss. 4, 14, 19, 24

Rodriguez v Telstra Corporation Limited [1999] FCA 1400

DECISION AND REASONS FOR DECISION [2002] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q1999/809

GENERAL ADMINISTRATIVE DIVISION )

Re DAVID McCAULEY SALTERS

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Dr K P Kennedy, OBE (Member)

Date: 8 February, 2002

Place: Brisbane

Decision: The Tribunal:

1. sets aside the decision of the respondent dated 9 June, 1999; and

2. substitute a decision that:

(a) the respondent is liable to pay compensation in accordance with the Safety Rehabilitation and Compensation Act 1988 in respect of Major Depressive Disorder from 15 April, 1998 to 13 December, 1999; and

(b) the applicant was incapacitated for work as a result of Major Depressive Disorder from 15 April, 1998 to 13 December, 1999.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 27 July, 1999, the applicant, Mr David McCauley Salters, applied for review of a reviewable decision of the respondent, Telstra Corporation Limited ("Telstra") dated 9 June, 1999. That reviewable decision affirmed an earlier decision dated 3 March, 1999 that Telstra was not liable to pay Mr Salters compensation under s. 14 of the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act") in respect of major depression.

2. At the hearing, Mr Bolton of counsel represented Mr Salters and Mr Dickson of counsel represented Telstra. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with other material to which we will refer in the course of these reasons. Oral evidence was given by Mr Salters in support of his case together with Mrs Annette Salters, Dr Ivan Holm, Dr Michael Gillman, Mr Paul White and Mr Garry Rogers. Dr Martin Nothling, Mr Noel Massy, Mr Paul Witzeman, Dr Roger Allen and Dr Ian Low gave evidence in support of Telstra's case.

THE ISSUE

3. The issue in this case is whether the applicant suffers from a Major Depressive Disorder and, if so, whether it or they arose out of, or in the course of, his employment with Telstra.

BACKGROUND

4. On the basis of the evidence, we find that Mr Salters was born on 12 September, 1964 and has three sisters and a brother. He came to Australia with his family in 1973 and continued his schooling. After leaving school, he was employed for some two years as a shop assistant in a supermarket and then became a storeman. After spending twelve years in two positions as a storeman, he joined Telstra on 27 October, 1994 as a Communications Officer Level 1 ("CO1"). As a CO1, he worked as a labourer digging trenches and laying cables. At times, he made connections. After twelve months, Mr Salters was promoted to a Communications Officer Level 2 ("CO2") and he completed a cable joining course. He was then given a van and required to make telephone connections in the street for both business and domestic customers. Installers made those connections.

5. Mr Salters is married and has been since 28 July, 1990. His wife worked as a computer operator with Goodman Fielder for approximately five years before resigning in September, 2000. In November, 2000, Mr and Mrs Salters sold their Brisbane home, where they had lived for approximately ten years, and moved to the Gold Coast where they rent an apartment. Since moving there, Mrs Salters has worked for a three month period with One Tel but has not worked otherwise.

THE EVIDENCE

Life before the events leading up to Mr Salters' taking sick leave

Mr Salters

6. Mr Salters denied that he had experienced any difficulties with sleeping before he experienced any difficulties with work. After he left Telstra, he said, he had experienced sleep apnoea and had sought help with it. He uses a machine to help him sleep.

The work

Mr Salters

7. Mr Salters said he felt that he handled his work at Telstra quite well until 1997. There was nothing either in his work or in his home life that was placing him under any strain. His relationship with his wife was extremely good. They did not have children. He would go into the depot where he was allocated his jobs. If there were any problems, he would telephone head office and the problems would be sorted out there and then, he said. Each day he would complete two to three jobs.

8. In giving his evidence, Mr Salters said that he first detected changes in Telstra's work practices when the sale of Telstra was first mooted. There were many rumours about how many people would be looking at redundancies and that the people who were left would have to pick up the load. That sale occurred in approximately 1997.

9. Mr Salters said that Telstra introduced a new system of allocating work in December, 1997. It was a computer based system called "DIRECTOR". A computer was installed in his van and was linked by mobile net to a computer in Telstra's head office in Brisbane. He checked the computer for his allocated jobs and, if he had queries, he had to telephone the head office. It was not, he said, a very efficient system at all. Every staff member was trying to get a line at the same time, he said, and the network did not handle that well. At times, it would take up to 30 minutes to log on. On one occasion, he waited for three quarters of an hour. Once he had finished the allocated job, he had to sign off on the computer and take his next job from the computer. At least once each day, he said, he had a problem with the computer. On one occasion, the computer was broken and it took six weeks before it was replaced.

10. Mr Salters said that the system was introduced to eliminate delay and so result in more work being done. When a certain amount of work was not achieved, questions were asked. Two hours were allocated to each job and he was meant to get four done each day. That time was allotted regardless of the size of the job or how far he had to travel to reach it. Although he was attached to the Cleveland depot, not all of the jobs were in the Cleveland area. Rarely did he complete the job in the allotted time, he said. The time began from the time he was allocated the job on the computer until he completed it. That meant that he had to work as fast as he could to get the job completed within the two hour time period. Although his supervisor, Mr Noel Massy, told the officers that they were not to cut corners, he also told them to "do whatever it took" to get the job done. Whereas he would have fixed any additional fault before the introduction of the computer, once it was introduced, he would only fix it if he were within his allocated time. If he were over the allocated time, he said, an alarm would go off in head office. Someone from that office would telephone him to find out what was happening. That person would decide if he should finish the job that he was on or move to the next job. Problems would occur on a regular basis, he said. Quite regularly, Mr Salters said, he worked through his lunch breaks in order to keep up with the work. Others did the same. Mr Massy, who had been his supervisor since August, 1997, told them not to do that but Mr Salters continued to work in his lunch break.

11. Mr Salters said that the communications officers were divided into two teams each having twenty people. Over time, the position of CO1 disappeared. The teams were restructured and those who had been CO2s became Communications Officers Level 3 ("CO3"). A CO3 could do a greater range of work than a CO2. Mr Salters said that those at the CO2 level were asked to apply for the CO3 level and, at the same time, were required to apply their own positions as CO2. He felt that he was virtually told to apply but was not given a training course. His application was not successful. Staff morale was very low, he said. This affected him, he said.

12. Mr Salters' supervisor, Mr Massy, had completed a form in relation to Mr Salters' compensation claim in December, 1998. In it, he stated that Mr Salters was a CO3 and had been for three months. Mr Salters denied that this was so and stated that he had received only one promotion i.e. from a CO1 to a CO2. He "totally denied" that he had been promoted to a CO3 on 31 July, 1997.

Mr Garry Rogers

13. Mr Rogers is the Queensland Industrial Officer employed by the Communications, Electrical and Plumbing Union (Communications Division) ("CEPU") since 1 July, 1998. He said in his statement that a new Certified Agreement took effect in the period 1998 to 2000. Negotiations for that agreement had commenced in 1997. It required all Telstra employees to re-apply for their positions and that a total of 2,500 employees would be made redundant. That process started in February or March, 1998. They stopped for a period after July, 1998 when the CEPU stopped redundancies because of their effect on its remaining members. Those employees who wanted redundancies had to wait until 1999 when Telstra successfully applied to vary the agreement.

14. After he commenced employment, Mr Rogers said that he received 50 to 60 calls a day regarding job insecurity, problems with DIRECTOR and additional work pressures as a consequence of the partial privatisation of Telstra. With regard to DIRECTOR, Mr Rogers said that he had no experience with it prior to 1 July, 1998. The complaints about DIRECTOR included complaints that it sent people outside their designated work areas, that there was a random dispatch of work, customers were angry because they had not had a service for 3 or 4 days and there was trouble getting back to management to clarify information such as street names given by DIRECTOR. Employees complained that they received a telephone call if a job took them beyond the allotted time. The time limits were unrealistic.

Mr Paul White

15. Mr White has been the Secretary of the CEPU since March, 2001. Previously, he was the elected Organiser for the Union. From 1996 to 1998, he had responsibility for Telstra employees. He met employees regularly and talked to approximately 5 each day on the telephone. The main complaints were that work allocated by DIRECTOR frequently did not match the areas that they were working in, DIRECTOR set unrealistic time frames which did not take account of travelling time and the information was often incorrect. In addition, there were complaints about problems in contacting the Work Management Centre and getting through to the help line. Some linemen were computer illiterate and some had real problems in adjusting to the change in deployment of tasks from a manual system to screen based system. Mr White also said that there were complaints relating to job security and worries about job redundancies and performance reviews.

16. Mr White said in his statement that he recalled Mr Salters' telephoning him on numerous occasions:

"... about the fact that he wasn't coping with the introduction of director, the pressure of having to complete targets, mainly the pressure in the increase of his workload and the effect that all of this was having on his personal life.

I have a clear recollection of David Salters ringing me from his van one day in a distressed state. He had suddenly become aware of where he was but wasn't sure of how he got there. I recall that he was crying and I was concerned that he sounded suicidal. I recall him asking me about taking time off work and whether it was work related. I recall that we talked about him resigning and what he needed to do to apply for a redundancy package as he was not coping." (Exhibit 14)

Mr Noel Massy

17. Mr Massy was a Communications Officer Level 7 when he resigned from Telstra after almost 30 years service. Mr Salters was under his supervision from July, 1997. When he first met Mr Salters, Mr Salters was a CO2 but his position was then part of a restructure within Telstra. Mr Massy said that he would give jobs to his staff. If there were any problems, he would talk to the staff member concerned. Mr Massy said that in April, 1998 Mr Salters had concerns about his skill levels but his worries were no different from anyone else's. Mr Massy said that Mr Salters had told him that he was concerned that he was not fast enough but Mr Massy said that he told him that his performance was all right.

18. Mr Massy was questioned at length at the hearing but, in view of our findings in this matter, there is no need to refer to his evidence in any detail. We will set out an extract from his letter of 2 March, 1999 regarding the workplace and the issues raised by Mr Salters:

"... The issues he raises about the computer system are exaggerated. He had only just started the type of work he claims was causing him such problems. My recollection is that he started the installation work just prior to Christmas 1997. There were, and still are problems associated with the automated work dispatch system he refers to, but his assessment is all the worst cases rolled into one. His claim in Para.4 that the company was happy with three jobs, but then wanted 4 and 5 jobs is rubbish. David was completing two (2) telephone installations on average each day. I had informed him prior to April 15 and afterwards in the presence of his wife, that his work performance and attitude were completely satisfactory, and not to be concerned with numbers of jobs or speed, as this would come with time and experience. My only concern with him, and again, this was stated to him prior to April 15 and afterwards in the presence of his wife, was that he sometimes worked through his lunch to finish jobs. My assessment of David was simply that he lacked self confidence, but this would improve with experience.

Managing for Performance is a standard policy across Telstra. One on One meetings to review performance are a monthly occurrence for staff and supervisors alike. All I can say is that David was never told to pick up his act. Retrenchment was never mentioned. " (T documents, pages 39-40)

The feelings

Mr Salters

19. Mr Salters said that he felt that he was doing the job to the best of his ability but others thought that that was not so. He was not happy when he had to walk away from a job when a fault remained in the service. That was not a case of his doing his job to the best of his ability. He felt that, with time and experience, he would have improved.

20. Mr Salters said that he and the other members of the crew were told each month how each member had performed that month. They were also told of their team's performance in relation to the performance of other teams in South East Queensland. On occasions, the team was given a target to meet. He denied Mr Massy's statement that the performance reviews were one on one occurrences (T documents, page 40). In an undated letter, Mr Salters wrote that:

"Also with fewer staff, customers were forced to wait longer for their service. The longer the public have to wait the more irate they become. With my job being the frontline (dealing with the public) it was not the managers or the staff in town that the abuse was levelled at - it was me. My direct boss had to keep performance graphs on how many jobs I completed in a day, week and month. At the end of each month I was given a copy of this graph with the details of every one in my section. It was at this time each month I was told whether I was doing a good enough job or not. If not, they told me to pick up my act. That was the last thing I needed to hear, especially with retrenchment hanging over my head when I was already doing the best I could." (T documents, page 35)

21. In cross-examination, Mr Salters agreed that Mr Massy was, and is, a decent man. He said that it was Mr Massy who told him to pick up his act but acknowledged that Mr Massy had told him that he would be able to pick it up with more experience. Mr Salters said that he took this as a reproval as he questioned how he could improve when he was already experienced. Despite having that view, he said that he did not tell Mr Massy of it. He believed that Mr Massy expected more of him. He accepted that Mr Massy had not criticised his work when DIRECTOR was not working.

22. Mr Salters also agreed with Mr Massy's assessment in his letter of 2 March, 1999 (T documents, pages 39-40) that he was completing, on average, two jobs each day. He also agreed that Mr Massy had told him that his work performance was satisfactory and had told him that in front of his wife. Mr Massy was quite supportive of him and not tough "as such". At times, though, he could make life difficult if he got on his wrong side. Mr Salters agreed that his difficulties had not been noted in his performance reports. He had been sent back on a few occasions to fix a job. Mr Massy did not "bawl him out" but did point out his errors. He did not single him out, Mr Salters said, but spoke to anyone whom he thought was not working to his ability. When asked whether Mr Massy singled him out, Mr Salters said that he felt consistently on the lower end of the scale of output and so felt that Mr Massy was always talking to him. He was not at the bottom end of that scale but was near it over the last few months.

23. By 1998, Mr Salters said, he was not handling the change very well. He had a lot of problems in concentrating on his jobs and was feeling quite agitated and aggressive. There were several instances where he narrowly averted giving in to road rage. He felt angry. His feelings carried over to his private life. He became moody, withdrawn and started to argue with his wife over simple things. His sleep was affected as his mind was "continuously on overdrive". He worried about such things as whether he had closed the modem down and would get out of bed feeling worn out.

24. Mr Salters said that he recalled getting in touch with his union to talk about his problems. That would have been towards the end of 1997 or beginning of 1998. He telephoned the union once from his home and on other occasions from his van. He spoke with Mr White and recalled telephoning him and crying. That was on the Monday preceding Wednesday, 22 April, 1998. Mr Salters also believed that he told Mr White that he was considering killing himself. Mr White had talked to him for some time until he sounded as if he would not do anything to himself. Mr Salters said that he did not seek help from a doctor or anyone else on that day. Mr White did not go to see him or send anyone else to him. He did not telephone him back. Mr Salters did not telephone Mr White again until some months later.

25. Mr Salters said that he consulted his general practitioner, Dr Gilmore, as he thought that his feelings of tiredness and lethargy might have been caused by a mosquito bite. He had a blood test in March, 1998.

Mrs Annette Salters

26. Mrs Salters described her husband as a relaxed, easy going person who was very happy in his employment. He kept good health and rarely needed to see a doctor. All that changed in about mid 1997, she said. She said that she is not sure whether she was fully aware of the change at the time but, looking back, she recalled that he gradually became frustrated, worried and anxious. Her husband did not talk to her very much about the problems he was having but he did tell her that he was very frustrated and somewhat angry about his work. These changes occurred at about the time that partial privatisation of Telstra was being discussed. Her husband became very moody, withdrawn and irritable. Her husband told her that there was intense pressure on him and other employees to increase the number of jobs they completed. He was also concerned about the security of his employment. Mrs Salters said that she watched her husband's steady deterioration to the point where he was totally demoralised and had to cease work. She became aware some days before he stopped work that her husband was contemplating suicide.

27. In cross-examination, Mrs Salters said that there was a marked change when her husband started using DIRECTOR. Mrs Salters said that she had observed him having a lot of problems when she left for work half an hour later than he did. She agreed with Mr Dickson that it was a change as marked as turning a light switch on and off. She then said that the change was gradual in 1997 and her husband did not go to see a doctor as he did not really know what was wrong. Mrs Salters explained the two statements by saying that the change was gradual but the change from bad to worse happened very quickly. Whereas he had been an open person who did not let little things affect him 12 months before, he was now a person who would fly into a rage. He became quite withdrawn. Her husband told her that he was having suicidal thoughts shortly before he saw Dr Michael Gillman. She told him that it was time to get help.

28. Mrs Salters denied that she and her husband decided that he should give up work. Her first thought had been that he should consult a doctor. They did speak about it before he saw Mr Massy as he told her that things were getting beyond him.

The departure

Mr Salters

29. Mr Salters said that he approached Mr Massy on a Wednesday after the regular team meeting. He noted the day in his diary as the day on which he handed in his resignation. That was 22 April, 1998. For a couple of days before that day, he had gone to bed hoping that he would not wake up the next day. He had found it hard to get through the previous weekend and then to complete his work on the Monday morning. At lunch time on the Monday, he found himself sitting in his van and listing the ways in which he could end his life, he said. He finished his work for the day and had a rostered day off on the following Tuesday.

30. In cross-examination, Mr Salters acknowledged that he had, in his claim form completed on 7 December, 1998, stated that the day he spoke to Mr Massy was 15 April, 1998 (T documents, pages 15-16). Despite that, he believed that the day was 22 April, 1988. He said that he could not recall what he had told Dr Holm and, in particular, could not recall whether he had told him that his incapacity had commenced on 15 April, 1998 as recorded by Dr Holm in his certificate dated 18 December, 1998 (T documents, page 25). Mr Salters said that he must have taken the date of 15 April, 1998 from Mr Massy's letter to the Commonwealth Medical Officer on 3 June, 1998 (T documents, pages 26-27) and not consulted his own diary.

31. Mr Salters said that he first approached Mr Massy about having annual leave. He told Mr Massy how he was feeling and that it had all got too much. Mr Massy told him that he could not give him annual leave as other officers were already on leave. He sat him down, though, and discussed the matter. Mr Massy told him that he should see his doctor and get a medical certificate. It was the best that he could do as he could not give him annual leave. Mr Salters said that he told him that, if he could not take annual leave, he would resign. He said that he put his keys to the van and his mobile telephone on Mr Massy's desk. Mr Massy would not accept his resignation and advised him to see his doctor. Mr Salters did that and saw Dr Gillman. He later said that it was possible that he saw another doctor in Dr Gillman's practice.

32. In cross-examination, Mr Salters agreed that he had not given Mr Massy any indication prior to this that he intended to resign or that he was experiencing emotional difficulties. He rejected Mr Massy's view of the events on his last day at work. That view was:

"Mr Salters approached me on the morning of the 15th April 1998, in a very upset state, saying he wished to resign from Telstra. He put his identification card and vehicle keys on my table and said he had had enough and wanted out." (T documents, page 39)

Mr Salters did agree that he had been very upset but did not agree as to the date of the events or that he had initially stated that he wished to resign. Resignation only became an issue when his request for annual leave was refused.

33. Mr Salters said that Mr Massy talked to him about going back to Telstra and Mr Massy came to his house several times. At first, Mr Massy was quite sympathetic. He told him that he had looked for a position that he could occupy on a return to work programme but could not find one. Mr Salters believed that the manager of his section was quite prepared to offer him a position away from the computer but nothing ever came of that. After a while, Mr Massy gave him an ultimatum and said that he either had to return to work or resign. That was in 1998. His employment was terminated on 12 March, 1999.

34. Earlier, when he had been absent from Telstra on sick leave without pay since 26 June, 1998, Mr Salters had received a letter dated 20 January, 1999 from Telstra (Exhibit 5). That letter summarised medical reports it had received and noted that his treating psychiatrist, Dr Holm, had liased with Dr Low and Dr Knight, who are specialists in occupational medicine. Dr Holm had reported that he was not optimistic about Mr Salter's return to duties at Telstra. All of the reports it had received indicated that his return to work was unlikely given the nature of his medical condition. Given the length of time that he had been away from work, Telstra advised Mr Salters that the only option open to him was to consider medical retirement. It sought Mr Salters' views as to why it should not terminate his employment. Mr Salters said that he was not aware of any efforts made by Telstra to find him a suitable job despite his medical condition. Such efforts were referred to by Telstra in its memorandum of 15 February, 1999 terminating his employment (Exhibit 6).

35. In cross-examination, Mr Salters said that he recalled that there had been the possibility of his obtaining work at Visionstream but only if he resigned first from Telstra. He knew that part of its work was to install cable for cable television. As at September, 1998, he said, he did not know what Visionstream did. He did not ask Mr McKeand about it and Mr McKeand did not follow him up. Mr Salters said that he did not get in touch with Visionstream. He had a job at Telstra and he liked Telstra. Visionstream did not interest him at all. Mr Salters agreed that Mr McKeand had advised him that resignation would be more financially beneficial for him and that redundancy was not an option for him. As to the Visionstream option, he was not making a decision on the spot and told Mr McKeand that he had not made up his mind. Mr Salters denied that he had not wanted to go back to work at Telstra since April, 1998. All that he had wanted was some time to get his head straight and to decide what to do. Telstra told him to resign.

Mr Massy

36. Mr Massy said that, before 15 April, 1998, Mr Salters had never given him any reason to think that he was unhappy or that he was dissatisfied. There would be occasions on which Mr Salters would call him on the telephone, he would call in to see Mr Salters or he would see Mr Salters at staff meetings. On that day, Mr Massy held a staff meeting at the depot on 15 April, 1998. Other people had enquiries of him. Mr Salters then came in to him and, put his van keys and ID card on the table and said that he had had enough and wanted to resign. He then burst into tears and Mr Massy spent 2 to 2½ hours trying to calm him down. Mr Massy was definite that Mr Salters had told him that he wanted to resign and had not said that he wanted to take leave.

37. As to the other events of that day and the following months, Mr Massy wrote in his letter of 2 March, 1999:

"... During the conversation, he mentioned to me that there was a history of 'nerves' in his family, and that he had been seeking medical advice for some time, in an effort to identify the cause of this apparent problem. He stated that he had been tested for a number of viruses, but there had been no positive results.

Within a short period of time, that is, the next day or the day after, I spoke to David and he told me that a local doctor that he had not been to before, had informed him that his problem was due to a low level of some particular chemical, and he had started on a course to remedy the situation, because the run down of the chemical occurs over a long period of time, it would take a long period of time to build up again. From this point on, I had occasional contact, limited to a phone call to enquire after his condition, and a couple of visits from David and his wife Annette, thanking me for my assistance and concern, and talking over prospects for the future. My role in this matter gradually decreased with the increasing input of medical visits, opinion and higher level management involvement. At this point in time, David ceases his employment with Telstra on the 12th of March 1999.

...

In September 1998, it was put to David and Annette at a meeting with my then manager, Glen McKeand, that resignation might be a less stressful alternative to the implementation of Telstra's Effective Employment Policy, as it would give David some parting cash, as he had been on nil pay for quite a while, and when his health was right, Mr. McKeand would arrange a job in Visionstream, a major contractor for Telstra work. I tried to explain to David at the time, that sick leave on nil pay would not go on for ever, and that eventually the company would need to get some sort of answers from David or his doctors regarding his fitness to return to work, fitness to engage in a structured return to work re-hab program, or unfit to work, in which case he would be retired unfit. I have been to David's house approximately 15 times in the 11 months this has been going on. Although friendly, he is generally un-communicative, and that can make these issues very difficult to resolve.

With regard to the two month run around regarding compensation, I was made aware that David wished to claim compensation and wished for the appropriate forms. His request came at the time that the P400 form was discarded for the Intranet version of the accident notification. As I had no access to the Intranet, it did take longer than normal to get a print-out of the Intranet screen to David, but it wasn't 2 months. On speaking to him, he said to me that he didn't care whether he got compo or not, but that he had been advised buy the union to claim.

I was never approached by David re his job prior to April 15th, so most of the comment in the letter is his perception of how things seemed. The whole letter is gross overstatement. Initially, David and his wife couldn't have been more thankful for my efforts in firstly calming the situation and getting him off work and to a doctor, but as the months wore on, their attitude changed, especially when it became obvious that Telstra was forcing the issue to get David back to work, or to get some sort of outcome.

..." (T documents, pages 39-40)

Life since Telstra

Mr Salters

38. Mr Salters said that he had sent out resumes in Brisbane in an attempt to find work. He had not kept copies of them. Mr Salters said that he and his wife moved to the Gold Coast for a new start. That occurred in November, 2000. He thought that there would be greater opportunities in the hospitality industry and work in general. Before moving to the Gold Coast, he did not make any enquiries about work opportunities in that area but did not accept the proposition that it had a higher unemployment rate than Brisbane. Mr Salters said that he looks for work in the newspaper and, a couple of times each week, he takes his car to an industrial area and hands out a copy of his resume. If anybody shows any interest, he spends a bit more time filling in applications. In November, 2000, he said, he was not sure about his ability to work but was prepared to test the waters. Until he gets a job, he will not know if he can work, he said. He thought that he might be able to handle a graduated return to work.

39. Since leaving Telstra, Mr Salters said that he is doing yard work for an equipment hire service for two days each week. He has applied for positions of storeman, yard worker, sales representative and telemarketer. Over the previous six months, he had taken his resume to various businesses. He is hoping to obtain more permanent work than he has at the moment.

Mrs Salters

40. Mrs Salters said that her husband had had casual work for three days as a stock taker. That had occurred in June, 2001. His sleeping had not returned to normal by November, 2000 but his appetite had returned to normal. He seemed to have picked up his emotional state. He would do things at home and go shopping with her. He still needed her though as he still had insecurities, she said. Her husband found it hard to resign and not support her. For a little while she had thought that he was capable of going back to work full-time but now believes that it would be very tough for him to become motivated and to gain confidence in himself.

Medical consultations and treatment sought

Mr Salters

41. Mr Salters said that it was "possible" that he had consulted Dr Gillman on about 10 November, 1998 regarding his emotional difficulties. He agreed that it was also quite possible that he had not consulted him regarding those difficulties from 10 November, 1998 until 24 May, 1999. That would have been, he said, because Dr Gillman is a general practitioner. When it was suggested that he had not consulted Dr Gillman at all during 2000 regarding his emotional difficulties, he could not recall. He did agree that he had not consulted Dr Holm for either advice or treatment between 10 January, 2000 and 8 March, 2001. Mr Salters said that he had not consulted either doctor as Dr Holm had told him that nothing further could be achieved until he closed the book with Telstra. If he ever needed him, Dr Holm told him that he was only a phone call away. Mr Salter said that he never became so distressed that he had to call him. Although that was the case, he did not accept that there was nothing preventing him from carrying out full time duties. Mr Salters was not aware that Dr Holm had stated in his report of 14 May, 1999 that he would continue to receive supportive psychotherapy and antidepressant medication. He said that he had not previously seen the report and had not asked to see it as he believed that it was a matter between Dr Holm and his solicitors.

42. Since December, 1999, he had consulted Mr Paul Witzeman, who is a psychologist at the Alexandra Hills Family Clinic. He, rather than Dr Gillman or Dr Holm, had arranged those visits and he had seen Mr Witzeman on approximately ten occasions.

43. Mr Salters said that he first consulted Dr Roger Allen on 24 November, 1998. He denied that he had told Dr Allen that, for the previous 8 years, he had snored loudly, had occasional choking attacks and apnoea. He had possibly said that he had been a light snorer but that he had not been as bad as he had been in the couple of months leading up to November, 1998. He did not say that it had been present for 8 years and nor did his wife. Mr Salters also denied that he or his wife had told Dr Allen that they had slept apart for the previous few months although his wife had told Dr Allen that they had been sleeping apart for approximately two weeks. Mr Salters agreed that Dr Allen had accurately reported the history he had given him in his report of 27 November, 1998.

Mrs Salters

44. Mrs Salters said that her husband had seen Dr Holm in January, 2000 and had next seen him in March, 2001. He had not seen any other psychiatrist during the remainder of 2000.

45. Mrs Salters said that her husband slept for about 6 hours each night with the CPAP machine. Before he used the machine, he had snored for 8 years although not loudly. Up until 1998, the intensity of snoring was loud enough for them to sleep apart on only one occasion. That one occasion was for a week, she said. In the few months leading up to April, 1998, her husband began to snore heavily and became extremely tired. He would go for nights without sleep and had very erratic sleep patterns. Sometimes he would wake up at hourly intervals and, at others, would wake constantly. The CPAP machine has helped him enormously. Her husband now goes to sleep and stays asleep.

46. As for panic attacks, it was possible that he had them during 1998, she said. Her husband had told her that, one occasion in a shopping centre, he had become very agitated and anxious. They had to stop shopping and leave, she said. That happened a few times.

Medical evidence

Dr Roger Allen

47. In his report dated 27 November, 1998 to Dr Gillman, Dr Allen, who is a Thoracic and Sleep Disorders Physician, noted that Mr Salters had consulted him on 24 November, 1998 for further investigation of sleep apnoea. Mr Salters had been treated by Dr Holm and continued to suffer a lot of symptoms of depression and sleep apnoea. Those symptoms overlap very well, he wrote. He wondered whether a lot of Mr Salters' symptoms were related to sleep apnoea rather than depression although he had no doubt that he was depressed.

48. Dr Allen set out the history he had obtained:

"For the last eight years since he has been with his wife he has snored loudly and had occasional choking attacks and apnoeas noticed by her. The intensity of his snoring is so loud that she has been sleeping separately from him for the past few months, a problem, which is upsetting their relationship. He goes to bed around 9.30pm with no initial insomnia but has had middle insomnia around 3am for many months and lies a wake for hours and eventually rises at 6am feeling exhausted and tired this has been particularly severe over the past five months. He has excessive daytime somnolence, which has been a major problem lately. He has been on sick leave since April 1998 as a Telstra employee installing home telephones. He initially was on Zoloft and more recently Cipramil 2 tabs mane for the past two months. He has had no past history of depression. He can fall a sleep even by mid morning and feels like he could easily go back to bed not long after he rises in the morning.

He falls a sleep while reading and has been avoiding driving because of this problem, his wife now driving for him. His short-term memory and concentration span have been badly effected and he has had marked reduction of libido for the past twelve months but with no impotence. He has gained about 10-15kg in weight over the past five years mainly due to lack of exercise. He has had clear nasal passages frequent headaches in the morning and has been drinking 3-4 cups of instant coffee a day but no coca cola or tea.

He has had no nocturia although he has had some reduction of stream and recurrent migraines for years often triggered by chocolate. He has been irritable, dysthymia and has anhedonia.

He drinks the occasional beer and smoked from his teens until eight years ago about 10-15 cigarettes a day and has no drug allergies." (Exhibit 19)

No family history of depression was noted. On examination, Mr Salters was overweight and looked depressed. He had a slight inspiratory nasal obstruction bilaterally, a bull neck, normal dentition and a mildly inflamed soft palate typical of a snorer. Dr Allen arranged for Mr Salters to undergo further investigations including a sleep study.

49. In his oral evidence, Dr Allen said that sleep apnoea means partial awakening. Chemical changes are caused and they are similar to the changes accompanying depression. The symptoms of sleep apnoea and depression overlap strongly. Those symptoms are tiredness, inertia, flat mood, loss of pleasure, early morning awakening, loss of libido with impotence, loss or gain of weight, depressed mood and even suicidal thoughts due to inadequate sleep. Snoring is not necessarily a feature of sleep apnoea although people who snore may have an increased risk of developing the condition. Sleep apnoea develops over a period of time. Factors which worsen or aggravate sleep apnoea are weight gain, greater intake of alcohol and depression. It is also common to see weight gain in males.

50. Dr Allen said that it was very common to get sleep apnoea and depression occurring together. Unless one is treated with the other, they are not treated. There is no proof that depression is caused by sleep apnoea. It takes clinical skill and judgement to determine whether symptoms are attributable to one cause or the other. If the treatment for sleep apnoea is followed and a person is still feeling sad, then Dr Allen said that he would be inclined to diagnose depression.

51. In diagnosing sleep apnoea, the patient's history is crucial and it is important that he or she volunteers the right information. The history that he had obtained from Mr Salters was that he had snored for 8 years but he did not tell him that it was for the whole of those 8 years. Dr Allen said that the severity of sleep apnoea depends on a number of factors including how frequently apnoea occur and how frequently a person is aroused because of apnoea. Mr Salters had 27 apnoea each hour. As a consequence, his intake of oxygen decreased and this is usually a sign of severe sleep apnoea. Dr Allen said that his notes indicated that Mr and Mrs Salters had been sleeping apart for some months. That indicated the severity of the condition and tension in the relationship. In Dr Allen's opinion, Mr Salters had severe sleep apnoea in 1998. It is known that sleep apnoea does not develop overnight and Mr Salters had shown weight gain. Mr Salter's condition would have started as a mild sleep apnoea. His treatment of Mr Salters has been only partially successful and Mr Salters is still suffering a lot of symptoms. He thought that it was now depression that was causing his symptoms.

Dr Ivan Holm

52. Dr Holm is a psychiatrist who initially saw Mr Salters on 1 June, 1998 after he was referred by Dr Gillman. Dr Gillman told him that Mr Salters had first presented to him on 22 April, 1998 with acute anxiety and depression with symptoms of early morning wakening, loss of interest in activities. Dr Holm noted in his first report dated 14 May, 1999 that Mr Salters had obvious symptoms of a depressive illness with pervasive depression associated with anxiety and depression, neurovegetative dysfunction including sleep disturbance, tiredness, impaired concentration and short term memory, irritability and diurnal mood variation. He reported thoughts of suicide and told Dr Holm that his condition had progressively worsened since he left work on 22 April, 1998.

53. Dr Holm subsequently saw him on 15 occasions between 15 June, 1998 and 7 May, 1999. Over that period, he wrote in his first report that his core symptoms of Major Depressive Disorder had improved to a degree but worsened again in the context of his ongoing difficulties and the thought that he could not return to his previous work. Dr Holm thought that Mr Salters' condition could best be described as an Adjustment Disorder with mixed emotional features although the symptoms of his depression had improved. Mr Salters continued to suffer from a Major Depressive Disorder.

54. Dr Holm described Mr Salters as being by nature somewhat obsessional and a perfectionist. As such, he would have difficulty in dealing with the sort of pressure and stress Mr Salters described in the context of the degree of demand for his work output complicated by continued pressure from management. His personality type, therefore, was a contributing factor to the development of his condition. There is nothing in Mr Salters' past to suggest previous episodes of depression and there have been no other significant stressors in his life. In light of this, Dr Holm concluded that 70% of his condition was contributed to by work and 30% by his personality style. Work related stress was, therefore, a major contribution to his developing a depressive illness leading him to leave work.

55. Normally, Dr Holm would have expected Mr Salters' condition to have resolved within 6 months of his leaving work. The fact that his condition has not resolved is due to additional compounding factors he has experienced with Telstra's inability to provide him with a suitable avenue to return to work and then terminating his employment. In his view, Mr Salters continued to be totally disabled in that he cannot work in his usual position or any similar position. The initial stressors that led to his developing a depressive illness are still a contributing factor to his symptoms but those symptoms are caused to a significant degree by the further difficulties he has experienced in dealing with Telstra while on sick leave and then the final termination of his employment. If the situation with Telstra could be resolved, Dr Holm ventured, it would enable him psychologically to resolve the conflict and further prepare him to do something positive with his life.

56. In his second report dated 13 December, 1999, Dr Holm described similar symptoms and concluded that Mr Salters' work environment has been the major factor in the development of his symptoms of Major Depressive Disorder and secondarily chronic Adjustment Disorder. His capacity to return to work is impaired by the chronicity of his Adjustment Disorder. Mr Salters continues to describe fatigue, difficulty with concentration and short term memory, decision-making as well as a loss of confidence and anxiety when dealing with people. Mr Salters told him that he felt that he would have difficulty returning to employment particularly if he were to experience any sort of stress. Dr Holm was confident that Mr Salters would be able to return to some full-time employment in time although he was unable to be specific. The time would depend somewhat on the type of work he intends to return to and the environment in which he is placed.

57. Dr Holm concluded:

"RELATIONSHIP BETWEEN WORK ENVIRONMENT AND DEVELOPMENT OF SYMPTOMS

As can be seen from my statement above, I consider that Mr Salters work environment has been the major factor in the development of his symptoms of Major Depressive Disorder and secondarily chronic Adjustment Disorder. While the percentage contribution of personality and other factors is difficult to define, I have stated previously that I would consider Mr Salters as suffering from a condition which has been contributed to by approximately 70% due to factors associated with work and 30% which would be considered constitutional i.e. related to his personality vulnerabilities.

Mr Salters is undoubtedly a somewhat obsessional personality. He has always strived to do a good job and essentially not settled for second best. It is this very nature which often creates an increased level of stress in a person faced with a work environment in which they feel they do not have the time to do the job adequately, where they are paced under constraints of time and where they are subjected to criticism. Mr Salters describes all of the above factors in relation to his work with Telstra.

It is likely in my view that Mr Salters would not have developed a Depressive Illness had he not been exposed to the stressors associated with his work with Telstra.

There is no past history to suggest that he has suffered from Depressive Illness prior to 1997. It would be realistic to state that a 'reasonable person' could quite possibly experience stress and develop depression in the same circumstances. Indeed Mr Salters has informed me that he has been told unofficially that considerable numbers of Telstra employees had experienced stress in their workplace and had been offered counseling.

PRESENT AND FUTURE CAPACITY FOR WORK

Mr Salters's capacity to return to work is impaired by the chronicity of the Adjustment Disorder as described. He continues to describe fatigue, difficulty with concentration and short term memory, decision making as well as a loss of confidence and anxiety when dealing with people. He feels in the light of these symptoms that he would have difficulty returning to employment particularly if he were to experience any sort of stress.

I am confident that Mr Salters will be able to return to some form of full time employment in time though I am unable to be specific. This will depend somewhat on the type of work he intends to return to and the environment in which he is placed.

PROGNOSIS

As can be seen from my statement above, Mr Salters future prognosis is somewhat guarded. He is likely to continue to experience symptoms at least of an Adjustment Disorder possibly for several years. Again his symptoms will vary somewhat depending on a number of variables. Firstly I feel that his claim against Telstra needs to be resolved for him to be able to psychologically put this period in his life behind him and move onto something else. As a result of experiencing an episode of Major Depressive Illness, Mr Salters would be considered statistically at an increased risk of developing further episodes of depression in the future. While it is not possible to state more specifically, it is possible that in response to any future period of stress he will develop a similar Depressive Illness.

I would recommend that he continue at least intermittent medical treatment from a psychiatrist assisting him to deal with his future adjustment hopefully back into the work force and to deal with the stressors I have discussed. While again difficult to be more precise, I would recommend at least monthly treatment sessions over the next 12 to 18 months." (Exhibit 4)

58. In his final report dated 21 May, 2001, Dr Holm reported that Mr Salters continued to present with an ongoing Adjustment Disorder with mixed anxiety and depressed mood. He went on to address the possible contribution to his condition from sleep apnoea and set out the history given to him by Mrs Salters and in other sources:

"... The history given by Mrs Salters is that her husband had no significant sleeping problems until approximately February 1998. I note in Dr Gilman's notes that in 1998 he complained of feeling tired and lethargic in March and that in April Dr Gillman diagnosed him as suffering from depression and noted that he was suffering from sleep disturbance with early morning wakening. In October 1998 he notes that snoring was a problem and it was in that month that he referred Mr Salters to Dr Roger Allen Thorasic and Sleep Physician.

I note that in Dr Allen's initial letter to Dr Gillman that in the history he took from Mr Salters and his wife it was noted that 'for the last eight years he has been with his wife he has snored loudly and had occasional choking attacks and apnoas noted by her'. He noted further that this appeared to have become considerably worse in the months prior to the initial consultation in November of 1998 leading to Mr Salters and his wife sleeping separately. Dr Allen diagnosed Mr Salters as suffering from both sleep apnoa and depression."

59. Dr Holm concluded that:

"The overall history would therefore suggest that Mr Salters probably had some difficulties sleeping for some years but this first became a significant problem in 1998 particularly in the later months prior to his initial consultation with Dr Allen. It would appear that Mr Salters began suffering from depression in about March 1998 and was noted to suffer from the symptoms of sleep disturbance typically associated with depression i.e. initial insomnia and early morning wakening.

It would therefore seem exceedingly unlikely that Mr Salters sleep apnoa actually caused his depression. On the contrary it would appear more likely that with Mr Salters developing depression, the sleep disturbance associated with depression has resulted in an apparent worsening of his sleep apnoa resulting in it becoming a focus for assessment and treatment. There may have been some pre-existing sleep apnoa at the time of Mr Salters developing depression and it is possible that the day time fatigue frequently associated with sleep apnoa may have been a contributing factor in addition to the work related stress in Mr Salters developing depression.

However I remain of the view as stated in my previous report that Mr Salters work environment and the stressors he experienced in that environment were by far the most significant factor in his developing a Depressive Illness. Subsequent treatment of sleep apnoa with Mr Salters now regularly using a CPAP machine has improved his quality of sleep and reduced his day time tiredness though his sleep remains disturbed at times and he continues to describe some continued day time lethargy." (Exhibit 13)

60. In his oral evidence, Dr Holm said that it is likely that Mr Salters had some degree of sleep apnoea before his depressive illness appeared. Possibly, he suffered from some degree of fatigue and day time headaches. His sleep apnoea would have been a factor contributing to the development of his depressive illness but his work was the primary cause of that depressive illness. In developing the depressive illness, his sleep apnoea worsened, became of more concern and he was referred for treatment.

61. Mr Salters' prognosis is, in Dr Holm's view, quite guarded:

"... He was initially diagnosed as suffering from quite significant Major Depressive Disorder which persisted over quite some time. The core symptoms of depression improved with time away from the stressful work environment and continued antidepressant medication. However his condition has developed into one of a chronic Adjustment Disorder due to many complicating factors including his forced retirement from Telstra and the stress this caused him. It is quite likely in my view that he will continue to experience symptoms over a long period of time possibly indefinitely." (Exhibit 13)

62. In giving oral evidence, Dr Holm said that he had only spoken with Dr Knight about Mr Salters. At the time that he did that, Mr Salters was not well enough to consider going back to work. If he were to return to work now, he would be particularly vulnerable when placed under stress and required to meet time frames. In order to return to work, he would need a relatively supportive work environment with, perhaps, less taxing work. In cross-examination, Dr Holm said that Mr Salters was probably not fit to return to work before November, 1999 but would be fit now to return in a supported return to work programme.

63. Dr Holm had read Dr Nothling's reports and that of Mr Witzeman. On 27 March, 2000, Mr Witzeman had recorded that he did not consider that Mr Salters was suffering from a psychological or psychiatric condition. When asked in cross-examination whether he considered that Mr Salters could have returned to work on that day, Dr Holm said that this was a different question from that to which Mr Witzeman had given his answer. Most likely, Mr Salters was then still impaired to some extent and his options for employment were restricted. Under appropriate circumstances, it might have been possible that it would have been appropriate for him to return to work. In view of what he had seen of Mr Salters, Dr Holm said that he found it hard to believe that Mr Salters was not impaired at that time. He was of the view that he was impaired but it was most likely that he was fit for some work at that time. Dr Holm did not agree with Dr Nothling that Mr Salters was fit to return to work in November, 1999 unless it was in the form of some supported return to work programme.

64. In cross-examination, Dr Holm said that he would not consider that most of Mr Salters' symptoms are associated with sleep apnoea. Tiredness and loss of energy could be but he would not associate anxiety with sleep apnoea. He did not accept that a person could become anxious after a lengthy history of sleep apnoea. There could be frustration rather than anxiety. Dr Holm agreed that there is a link between the symptoms of sleep apnoea and depression but did not consider that it was difficult to determine what caused the symptoms. He originally associated the symptoms with depression. They are symptoms of difficulty in getting to sleep and in waking spontaneously a couple of hours later with trouble getting back to sleep. Sleep apnoea is associated with restless and disturbed sleep with frequent awakenings. Dr Holm had thought that Mr Salters was suffering from his symptoms for some 3 to 4 months before he saw him. Later in 1998 or 1999, sleep apnoea was diagnosed. Mr Salters' sleep apnoea was no more than a contributing factor to his depression. Its major cause was the stress he felt at work, Dr Holm said.

65. Dr Holm agreed with Mr Dickson that Mr Salters had become pre-occupied with the litigation. It is, however, too difficult to speculate upon whether his condition will improve once the litigation has been resolved. The Tribunal's proceedings are certainly a factor in Mr Salters' not improving.

66. When asked to express Mr Salters' condition in terms of endogenous and reactive depression, Dr Holm said that Mr Salters had presented to him with endogenous depression in the sense that he was suffering from severe depression with biological symptoms. Such depression usually arises in response to some form of stressor and, in that sense, is reactive to that stressor but has biological symptoms. Now that the stress of his employment with Telstra has been removed for some three years, Dr Holm was asked to consider whether there is a feature preventing him from getting better. Dr Holm replied that depressive illness can constitute a chronic disorder and not all people recover with the removal of the stressor. The stressor changed somewhat. His situation was unresolved and that became a stressor. There was also a chronic stressor with the loss of his employment as he valued himself as a working person. The stressors of the workplace had caused his condition but were replaced with chronic stressors that prolonged the situation. Mr Salters has a need to resolve his situation but he is not driven by outcomes, Dr Holm said.

Dr Michael Gillman

67. Dr Gillman is Mr Salters' general practitioner and first saw him in April, 1994 when he was suffering from miscellaneous aches and pains. In March, 1998, he saw Mr Salters on two occasions. On the first visit, he gave him a tetanus injection. He saw Mr Salters also on 14 March, 1998 when he thought that, excluding medical causes, Mr Salters was probably suffering from depression. Dr Gillman referred Mr Salters to Dr Holm and also did a blood test. After the referral, Dr Gillman said that he saw Mr Salters only for minor matters. He also referred Mr Salters to Mr Witzeman, who is a clinical psychologist, and, on 19 October, 1998, to Dr Allen who is a specialist in sleep disorders. Mr Salters had never told him of his sleeping difficulties in the degree reported by Dr Allen but nor did he ask him in that detail, he said. At first, he had associated Mr Salters' sleep disturbance with depression but later thought that they could possibly be associated with sleep apnoea.

Dr Martin Nothling

68. Dr Nothling is a Consultant Physician in Psychiatry who saw Mr Salters on 1 November, 2000. He had read reports from Dr Holm, Dr Gillman and Dr Low as well as material in the T documents. Dr Nothling set out the history he had obtained from Mr Salters. It was broadly consistent with the evidence given by Mr Salters. Mr Salters also told him that he becomes depressed from time to time but, in all, he is depressed for only about 30% of the time. His biggest problem now is anxiety. At his worst, Mr Salters thought that he was depressed about 90% of the time. That continued from the time he stopped work in April, 1998 until May, 1999. He gradually improved after that. His concentration levels have returned to about 80% of their former levels and his energy levels, while fluctuating, are now fairly good. He now sleeps all night with the use of a CPAP machine and told Dr Nothling that he has no problems with that machine. Mrs Salters told Dr Nothling that she thought that her husband had the symptoms of sleep apnoea for approximately 2 months before his visit to Dr Allen.

69. Dr Nothling also had regard to a report from Mr Massy dated 3 June, 1998 in which Mr Massy described the events as he saw them of Mr Salters' last day at work. Mr Massy had noted that, prior to that day, Mr Salters had taken normal amounts of sick leave and that his work was satisfactory both in quality and quantity. He had also noted that Mr Salters' duties could be physically demanding and involved customer contact skills. Mr Massy also noted that Mr Salters had been very tentative and anxious for a long period during his transition to the telephone installation area and was only just beginning to settle into those duties.

70. Dr Nothling's opinion as to Mr Salters' current health was:

"In my opinion, Mr David Salters is not now suffering from a Major Depressive Disorder. I note that he was originally diagnosed with a Major Depressive Disorder when he first saw Dr Ivan Holm on 1 June 1998. When I saw him the Major Depressive Disorder had resolved following effective treatment by his treating psychiatrist, Dr Ivan Holm, with the antidepressant medication Efexor XR. There had clearly been a significant improvement in his psychiatric symptomatology following treatment by Dr Holm. When I saw him the diagnosis was of an Adjustment Disorder with mixed anxiety and depressed mood. I would rate his level of psychiatric impairment as mild when I assessed him. He was suffering depressive mood states for probably 30% of the time. He now has no difficulties with his appetite, his weight is slightly increased on what it was prior to the onset of his problems, his bowel function was regular and he seemed to be sleeping well, apart from being awakened by his wife. His concentration was about 80% of its previous self and had improved significantly, as had his energy levels, which he considered were 'fairly good' at interview. He seemed to have a range of interests. He did not express any current suicidal ideation when I saw him at assessment." (Exhibit 16, pages 11-12)

71. As to the cause of Mr Salters' conditions, Dr Nothling reported:

"With respect to attribution of causation, from the history I have obtained of his difficulties as described at Telstra and the other information available to me, I would consider that approximately 65% of causation could have been attributed to stressors in his work situation at Telstra. I would consider that 35% of causation could be attributable to other factors. He outlined clear factors in his work situation which had been stressful for him. He did not outline particularly any major stressors other than in his work situation. However, he has somewhat obsessional personality traits which probably contributed to some degree to his decompensation in his work situation. With respect to the Adjustment Disorder, clearly the ongoing stressor of work has been removed as he has not effectively worked since April 1998 at Telstra. The ongoing stressor with respect to causation of the Adjustment Disorder would, in my opinion, be centred around the unresolved litigation issue and I would expect with settlement of litigation that the Adjustment Disorder should then resolve. I am not aware of any other current stressors for him. ..." (Exhibit 16, page 12)

In reaching this conclusion, Dr Nothling took account of Mr Massy's statements that Mr Salters had not approached him about his difficulties prior to 15 April, 1998, that Mr Salters had only just started the type of work that he states gave him trouble and Mr Salters' claims about the computer system were exaggerated. His view of work and its stressors would have been exaggerated by his depression. Dr Nothling considered that Mr Salters is now fit to resume employment although it would not be practical to resume work with Telstra as he had been involved in litigation with it.

72. In cross-examination, Dr Nothling said that, having suffered a major depressive episode in 1998, Mr Salters now has an increased vulnerability to such episodes. On the other hand, work is a very productive positive aspect of life. All recovery is aimed at getting a person back to work.

73. When he wrote his report dated 18 June, 2001, Dr Nothling had reviewed the clinical notes of Dr Gillman, Dr Holm's report of 21 May, 2001 and the records of Mr Witzeman. He considered that Mr Witzeman's records were consistent with his conclusions. In Dr Gillman's notes, there had been no record of any work problems between 18 April, 1994 and 9 August, 1997. On 14 March, 1998, Mr Salters was reported as tired and lethargic for three weeks, his appetite was down, his weight stable but he had a lot of arthralgia. On 22 April, 1998, depression was diagnosed. He was referred to Dr Holm on 13 May, 1998. Dr Holm's report had addressed the issue of sleep apnoea. In Dr Nothling's opinion, if Mr Salters had suffered from sleep apnoea for that period of time with a disturbed sleeping pattern, it would have been a usual consequence that he suffered from tiredness during the daytime. In his opinion, it is probable that developing sleep apnoea would have been a partial contributor to the developing depression.

74. In giving evidence, Dr Holm said that the information obtained from Dr Allen's notes had changed his views as it appears from those notes that Mr Salters had a severe problem with sleep apnoea and an 8 year history is detailed. That is significant as sleep apnoea may be associated with depression although not in every case. Ongoing effects of sleep apnoea include reduced energy levels as a general, but not necessary, effect. Anxiety, tension and mood swings may also be ongoing effects. The presence of sleep apnoea may mean that it had some contribution in the development of depression. He was unaware of the condition when he wrote his first report. Sleep apnoea is possibly a contributing stressor for the Adjustment Disorder although he noted that Mr Salters appeared to have had a very favourable response to the treatment.

75. In cross-examination, Dr Nothling said that sleep apnoea usually develops quite insidiously. There is a gradual build up and a person is often not aware that he or she has it. He or she is deprived of oxygen all night and so wakes up. Sleep apnoea is a recognised contributor to depression but not a cause of it. Dr Nothling could not understand that depression could worsen sleep apnoea but sleep apnoea could worsen depression.

76. Given the criteria expressed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"), Mr Salters could no longer be said to be suffering an Adjustment Disorder from his work as one of the criterion is that the stressor must have been present no longer than 6 months before. After the stressor has been removed, it can no longer be a stressor, Dr Nothling said. If there is a continuing Adjustment Disorder, there has to be another stressor.

Dr Ian Low

77. Dr Low, who is a specialist in occupational medicine, saw Mr Salters on 19 June, 1998 and then on 17 August, 1998. He also spoke to Dr Holm in September and October, 1998. In his report dated 13 October, 1998, reported that Mr Salters had become progressively depressed over the 12 months to 22 April, 1998. There had been no previous history of depression in his family. Dr Low considered that Mr Salters was suffering from a Major Depressive Disorder and required further treatment. He spoke with Dr Holm who felt that workload might have contributed to Mr Salters's depression but his depression could also be influencing his perceptions of his workload. Mr and Mrs Salters had asked whether the condition was likely to be compensable but he had told them that he thought not. Dr Low concluded:

"Mr Salters is suffering from a Major Depressive Disorder. From discussions with Dr Holm, his treating psychiatrist, Mr Salters will not be able to return to his usual duties, as a linesperson, in view of his perception of the workload and its implications for safety. It is not appropriate to consider options for either redeployment or leaving the organisation. I told Dr Holm that you would contact Mr Salters in order to arrange a meeting to discuss these options." (T documents, page 29)

Mr Paul Witzeman

78. Mr Witzeman, who is a qualified psychologist, saw Mr Salters early in 2000. He noted that it was now all too much for Mrs Salters and understood her to be referring to the state of their relationship. Difficulties in their relationship had led Mr and Mrs Salters to go to him, Mr Witzeman said. Sleep apnoea made it difficult for Mr Salters, he was told.

79. In cross-examination, Mr Witzeman said that he had encouraged Mr Salters to engage in voluntary work as he had seen it work for other clients. He had not, however, assessed his psychological capacity to engage in employment. On 27 March, 2000, he had written that:

"It is my opinion that, if Mr Salters chose to engage in full-time employment, he is not currently suffering from any psychological or psychiatric condition that would prevent him from doing so." (part of Exhibit 18)

Mr Witzeman said that Mr Salters had telephoned him and said that he was considering taking up voluntary work. Motivation and anxiety had been the main problems for him. The fact that he was able to telephone him meant that he was making steps to overcome those problems. Mr Witzeman said that he fully expected that a prospective employer would see the letter. His return to work would have to be gradual but he had no psychiatric condition that would prevent him from undertaking full-time work. As to whether Mr Salters had a psychological condition that would have prevented full-time work, he did not have enough information upon which to make an assessment.

CONSIDERATION

The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988

80. Reading the provisions of Part VIIIB and s. 14 of the Act together reveals that Telstra is liable to pay compensation to Mr Salters in certain circumstances. In general terms and subject to Part II of that legislation, Telstra is liable to pay him compensation "...in respect of an injury suffered ... if the injury results in ... incapacity for work, or impairment" (s. 14(1)). Exceptions to that general proposition are found in ss. 14(2) and (3). The first is that compensation is not payable in respect of an injury that is intentionally self-inflicted (s. 14(2)). The second is that:

"Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment." (s. 14(3))

81. Unless a contrary intention is shown in the Act, the word "injury" is defined in s. 4(1) to mean:

"(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."

82. The word "disease" is defined, unless a contrary intention is shown in the Act, to mean:

"(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". (s. 4(1))

83. An "ailment" is defined to mean:

"... any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)" (s. 4(1)).

84. Section 19 sets out the circumstances in which Telstra is liable to pay compensation to an employee in respect of an injury resulting in incapacity. What is meant by "incapacity" in the Act? Section 4(9) provides that:

"A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened."

85. Section 24(1) provides that, where an injury to an employee results in a permanent impairment, Telstra is liable to pay compensation to an employee in respect of the injury. The word "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" (s. 4(1)).

We have viewed the evidence in light of the principles summarised by Spender J in Rodriguez v Telstra Corporation Limited [1999] FCA 1400 (14 October, 1999):

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

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

[my emphasis]

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

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

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

Davies J noted:

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

Davies J held at 242:

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

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

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

'The applicant's case is to be contrasted with cases such as Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29, reversed on appeal 47 ALJR 236. In the former case a work accident aggravated a previous schizophrenic condition by producing a new delusion. Kitto J at 634 said:

"Where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder."

In the latter case Mason JA (as he then was), whose dissenting judgment was approved upon appeal to the High Court, referred (at 43) to a work accident and hospitalisation to which it led as having "set in motion the delusional condition" from which the worker thereafter suffered. In both of these cases, the work incident was actually operative as a factor in producing the worker's condition. That condition happened to be one involving delusions, but it was no delusion that the work incident produced the relevant mental effect. In the present case, on the other hand, the worker suffered a condition of leg disability, to which the work had not been a contributing factor, and it is his mere belief that the work had been a contributing factor to the disability that is relied upon as being causally related to the subsequent neurosis.'

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

'It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment. See Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641-643 per Windeyer J and Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 598 per Mason J. Moreover, as Barwick CJ said in Favelle's case at 585:

"...the idea that the employment must have been of a nature to carry a special risk of suffering injury of some particular kind has been exploded and is no longer valid."

Similarly, in Thom or Simpson v Sinclair [1917] AC 127 at 145, Lord Parmoor said:

"The fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment."

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

86. In applying these principles to Mr Salters' case, we must first consider whether Mr Salters is suffering from a mental injury. On that matter, the medical evidence of Dr Gillman and Dr Holm, who treated him in April, 1998 or shortly thereafter and Dr Nothling, who saw him much later, is consistent. In light of that, we find that, Mr Salters suffered a Major Depressive Disorder in April, 1998. He continued to suffer from that condition and, on the basis of the evidence of Dr Holm, we find that Mr Salters' depression progressively worsened after he left work.

87. Evidence as to the date on which he left work varies as between 15 and 22 April, 1998. Nothing turns upon that in this context but we are satisfied that the correct date is 15 April, 1998 and not 22 April, 1998 as Mr Salters puts forward. The basis upon which we prefer that date is that it is the date appearing in the claim form signed by Mr Salters later in the year on 7 December, 1998 and in the certificate signed by Dr Holm on 18 December, 1998. It is also the date referred to by Mr Massy in his earlier letter of 3 June, 1998 and in the statement signed by him on 11 December, 1998 Mr Massy's claim form. All of those documents were signed at a time much closer to events when it can be expected that everybody's memory was much fresher than it was at the hearing. Dr Holm's certificate in particular was based on the date given to him by Mr Salters at the time of his consultation on 27 November, 1998.

88. That brings us to the cause of Mr Salters' Major Depressive Disorder. On behalf of Mr Salters, Mr Bolton submitted that it was caused by or arose out of his employment with Telstra. Mr Salters, he submitted, experienced frequent difficulties with DIRECTOR which caused delays, customer unhappiness and frustration. In turn, Mr Salters found the system very stressful. He also found stressful the pressure he felt to perform a broader range of work more quickly. It is Mr Dickson's submission on behalf of Telstra that Mr Salters' evidence as to the events in the workplace and his feelings about them should not be accepted. He points to discrepancies, inconsistencies and vagaries in Mr Salters' evidence.

89. We have considered all of the evidence carefully. There are certainly discrepancies and vagaries in the evidence of Mr Salters and it is not consistent with the evidence of Mr Massy. It is not always internally consistent. The depth of feelings that he states that he experienced is not consistent with the reaction to him of others, such as Mr White and his wife, with whom he spoke at the relevant times. So, for example, their doing nothing in the face of Mr Salters' evidence that he spoke with them about his suicidal thoughts is not consistent with his having expressed those suicidal thoughts in a way that indicated a serious intent to carry them through. To be weighed against these matters are Mr Salters' statements to his general practitioner and to his treating psychiatrist, Dr Holm at or about the time of his departure from the work place in April, 1998. He spoke of work pressures to both Dr Gillman and Dr Holm. Certainly, he did not specify the nature of those work pressures but he consistently spoke of those same work pressures, and again in general terms, over two years later to Dr Nothling.

90. Having heard Mr Salters and considered all of the evidence, we have concluded that he is giving an accurate account of events and pressures as he viewed them. His view does not necessarily accord with the view of those events and pressures taken by others. It does not accord with the view expressed by Mr Massy of those events and pressures and we accept Mr Massy's view as more accurately reflecting what actually happened. For all of that, it is Mr Salters' view of the workplace and the feelings that it precipitated that was the cause of, or the circumstance out of which arose, Mr Salters' Major Depressive Disorder. That is the medical evidence and we accept it. It matters not that Mr Salters' view was not, on our findings, a realistic view. It matters not that we find that Mr Salters was by nature somewhat obsessional and a perfectionist who would have difficulty dealing with pressure and stress.

91. In reaching this conclusion, we have also discounted sleep apnoea. The history given by Mr Salters to Dr Allen was of a much more serious problem in November, 1998 than he sought to paint it at the hearing. It was a history of 8 years of loud snoring, occasional choking attacks and apnoeas. It was such a problem that they had slept apart for a few months. We have no reason to doubt that the history as recorded by Dr Allen is the history as given to him. Even on the basis of that history, however, we do not accept that the sleep apnoea played a part in his developing depression. Dr Allen's evidence was that there is no proof that sleep apnoea causes depression. Dr Holm saw his sleep apnoea as being a contributing cause but his work as being the primary cause of his depressive illness. In developing the depressive illness, the sleep apnoea worsened. Dr Nothling said that sleep apnoea is recognised as a contributor to depression but not a cause of it. In view of this evidence, we are not satisfied that Mr Salters' depression was caused by or arose out of his sleep apnoea. His sleep apnoea may have worsened his depression but no more than that.

92. Is Mr Salters continuing to suffer from a Major Depressive Disorder? Dr Holm considers that he is not but is now suffering from an Adjustment Disorder. Dr Nothling agreed with Dr Holm regarding the Major Depressive Disorder and did not discount an Adjustment Disorder. In light of that evidence, we are satisfied that Mr Salters is suffering from an Adjustment Disorder. The time at which Mr Salters' Major Depressive Disorder resolved and he began to suffer from an Adjustment Disorder is difficult to pinpoint. Dr Nothling was of the view that the transition had occurred when he saw Mr Salters in November, 2000 and Mr Salters' treating psychiatrist, Dr Holm, reported on 13 December, 1999 that it had occurred. He was not of that view in his earlier report of 14 May, 1999 when he considered that Mr Salters continued to fulfil the criteria for a Major Depressive Disorder. Although the task is somewhat arbitrary, we have, in view of the evidence, fixed upon 13 December, 1999 as the date upon which Mr Salters ceased to suffer from a Major Depressive Disorder and began to suffer from an Adjustment Disorder.

93. If that condition is compensable under the Act, it must also have been caused by or arisen out of his employment. Both psychiatrists are of the view that the condition resolves within six months of the removal of the stressor causing it. The stressor must be a matter that itself has been caused by or arisen out of Mr Salters' employment with Telstra. We find that, by 13 December, 1999, Mr Salters had been away from the stressors of the Telstra workplace for some twenty months. Dr Holm attributed his condition to many complicating factors including his forced retirement from Telstra and the stress that had caused him, his illness and his subsequent difficulties. Such matters cannot be said to be a matter of employment. Dr Nothling also attributed it to matters other than his employment with Telstra and particularly to the ongoing litigation with Telstra. That also is not a matter of employment. Given this evidence and the criteria expressed in DSM-IV, we are satisfied that Mr Salters' Adjustment Disorder was not caused by, or arose out of, his employment.

94. It follows from our findings that Telstra is liable to pay compensation to Mr Salters for any incapacity arising out of his Major Depressive Disorder until 13 December, 1999. Mr Salters' evidence was that he felt able to consider work again in November, 2000. The letter written by Mr Witzeman stated that he could return to work in March, 2000. His treating psychiatrist considered that he was incapacitated for work in November, 1999. In view of this evidence and our finding that Mr Salters was not suffering from a compensable injury after 13 December, 1999, we do not need to reach a view as to the precise time between November, 1999 and March, 2000 at which Mr Salters ceased to be incapacitated for work. On the basis of the evidence of his treating psychiatrist, who was best placed to assess the matter, we have formed the view that Mr Salters was incapacitated for work as a result of a Major Depressive Disorder at least until 13 December, 1999.

95. For the reasons we have given, we:

1. set aside the decision of the respondent dated 9 June, 1999; and

2. substitute a decision that:

(a) the respondent is liable to pay compensation in accordance with the Safety Rehabilitation and Compensation Act 1988 in respect of Major Depressive Disorder from 15 April, 1998 to 13 December, 1999; and

(b) the applicant was incapacitated for work as a result of Major Depressive Disorder from 15 April, 1998 to 13 December, 1999.

I certify that the ninety-five preceding paragraphs are a true copy of the reasons for the decision herein of

Miss S A Forgie (Deputy President),

Dr K P Kennedy, OBE (Member)

Signed: ....................................................

Clancy Riddiford Associate

Dates of Hearing 17, 18 and 19 April, 2001

23 and 24 July, 2001

Date of Decision 8 February, 2002

Counsel for the Applicant Mr Bolton

Solicitor for the Applicant Maurice Blackburn Cashman

Counsel for the Respondent Mr Dickson

Solicitor for the Respondent Standish Partners