Abbott v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 15
•24 January 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Abbott | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 015
| PARTIES: | Abbott, Winsome | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (First Respondent) | |||||
| CASE NO: | WC/2013/8 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) | ||||
| DELIVERED ON: | 24 January 2014 | ||||
| HEARING DATE: | 23 to 26 September 2013 | ||||
| 25 October 2013 (Appellant's submissions) | |||||
| 7 November 2013 (Respondent's submissions) 15 November 2013 (Appellant's submission in reply) | |||||
| MEMBER: | Industrial Commissioner Thompson | ||||
| ORDERS: |
|
(Workers' Compensation Regulator) stands. 3. The claim for compensation is not one for
acceptance.
3. Costs are reserved.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant bears onus of proof - standard of proof - balance of probabilities - Appellant a worker - Appellant to establish she suffered a personal injury - injury arose out of, or in the course of, employment and employment was a significant contributing factor - whether management action taken was not reasonable action taken in a reasonable way - Appellant suffered a personal injury (adjustment disorder) that arose out of, or in the course of, her employment and employment was a significant contributing factor - meeting of 28 July 2011 conducted reasonably - personal injury not compensatable - s 32(5)(a) enlivened - personal injury excluded - Appeal dismissed - Claim not one for acceptance - costs reserved. |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003, s 31(1), s 32(1), s 32(5)(a), s 34(1)(a) and (b), s 550, s 556, Schedule 6 Mason v WorkCover QLD (2002) 170 QGIG 376 Delaney v Q-COMP (2005) 178 QGIG 197 Qantas Airways Ltd v Q-COMP (2001) 191 QGIG 115 Georges v Telstra Corporation Limited (2009) AATA 731 | |
| Aigner v Q-COMP (C/2011/2) - Decision < | |
| Re Mullen [1995] 2 Qd. R. 608 at 614 Chattin v WorkCover Queensland [1999] 161 QGIG 531 | |
| WorkCover Queensland v Cotmore [1999] 162 QGIG 190 Mayo v Q-COMP [2004] 177 QGIG 667 | |
| Colbran v Workers' Compensation Board of | |
| Queensland [1996] 152 QGIG 1180 Thompson v Armstrong & Royse Pty Ltd [1950] 81 CLR 585 R v Butler [2009] QCA 111 Fox v Percy [2003] 214 CLR 118 Jones v Dunkel [1959] 101 CLR 298 FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 | |
| Telecomputing PCS Pty Ltd v Bridge Wholesale | |
| Acceptance Corporation (Aust) Ltd [1994] 24 NSWLR 513 Fabre v Arenales [1992] 27 NSWLR 437 HML v The Queen [2008] 235 CLR 334 | |
| APPEARANCES: | Mr K. Watson, Counsel instructed by Susan Moriarty & Associates for the Appellant. |
| Mr S. Sapsford, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), Respondent. |
[1] On 8 January 2013, Dr Winsome Abbott (Dr Abbott) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 5 December 2012. Since the hearing of the Appeal, a number of amendments have been made to the Act which included the Respondent to the Appeal being abolished and from 29 October 2013 the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (Regulator) who, in turn, becomes the Respondent to this Appeal.
[2] The decision of the Regulator was to confirm the decision of WorkCover to reject Dr Abbott's Application for Compensation in accordance with s 32 of the Act.
Relevant Legislation
[3] The Legislation pertinent to this Appeal is s 32 of the Act:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation. Examples of actions that may be reasonable management actions taken in a
reasonable way -
• action taken to transfer, demote, discipline, redeploy, retrench or dismiss
the worker•
a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.".
Nature of Appeal
[4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[5] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[6] In the course of the proceedings, evidence was provided by nine witnesses (including Geoffrey Lau through an affidavit).
[7] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[8] The witnesses for the Appellant were as follows:
Dr Abbott;
Dr Ian Wilkie (Dr Wilkie); Janet Meadows (Meadows); and
Dr Frances Dark (Dr Dark). [9] The witnesses for the Regulator were as follows:
Lorna Hampson (Hampson);
Julie Connell (Connell);
Dr Maree Ferguson (Dr Ferguson); Dr Angela Vivanti (Dr Vivanti); Geoffrey Lau (Lau) - Affidavit tendered but was not required for cross-examination.
Appellant
Dr Abbott
[10] Dr Abbott, a Dietician, commenced permanent employment at the Princess Alexandra Hospital (PA Hospital) in 1981 working up to 28 July 2011. Dr Abbott had completed a Masters Degree.
[11] In 2007 the funding for her substantive position altered with Metro South Mental Health becoming the primary funding body for her position. This brought changes to her work role in which she was required to spend additional time in providing treatment to patients. Dr Abbott was reporting directly to Dr Ferguson up until January 2011 when changes to the structure saw her reporting to Dr Vivanti in addition to being involved in meeting with the Allied Health Team Leader. Dr Vivanti was said not to be consultative in her dealings with Dr Abbott. In 2008 Dr Abbott had some issues regarding job expectation which culminated in a mediation meeting between Dr Ferguson and herself.
[12] Dr Abbott's areas of work at the time (28 July 2011) included:
Adult Acute Psychiatric Unit (AAPU); Burke Street - outpatient facility close to the PA Hospital; and Grevillea - a geriatric mental health unit. [13] Her workload over a five day working fortnight was around 80 inpatients in addition to outpatients with her hours of work being 8.30 am to 5.00 or 6.00 pm with a 30 minute lunch break. Dr Abbott also undertook work in private practice. Emails and electronic statistics were usually taken care of out of normal working hours, including weekends.
[14] A number of documents with their origin in late 2010 and early 2011 were tendered in the proceedings in which references were made to work and research performed by Dr Abbott out of work hours as well as a business case prepared by Dr Abbott in respect of increasing services and staffing in the dietetic service area in March 2009.
[15] Evidence was given in relation to the following meetings:
10 August 2009 - Dr Abbott had made a number of suggestions to a backup
Dietician regarding treatment of a severe anorexic patient which led to the involvement of Dr Ferguson who had some issues regarding the advice;
28 January 2010 - meeting with Dr Ferguson over core business matters including
a "Vitamin B12 project"; 21 June 2010 - meeting with Dr Ferguson and Lau where Dr Abbott was
presented with a service level agreement - in which her input was not requested and expectations put around her workload as an 0.5 of FTE (Full-Time Equivalent);
12 July 2010 - meeting with Dr Ferguson where approval was given for
Dr Abbott to attend departmental meetings on a pro rata basis;
14 September 2010 - meeting with Dr Ferguson and Bob Anderson (Anderson) in
connection with Dr Abbott's two week evolving work schedule.[16] In July 2011 the reporting relationship for Dr Abbott involved monthly meetings with Dr Ferguson and two team leaders, of which Dr Vivanti was one.
[17] Dr Abbott expanded her evidence regarding the meeting of 28 January 2010 saying she had informed Dr Ferguson of the importance of the Vitamin B12 research project due to its significance and her academic background. There was also discussion around staffing levels at the time where a document from mental health indicated that 0.5 of an FTE would service 76 inpatients. At the time her service levels were:
80 in patients;
three outpatient sessions a month; and work with eating disorder patients in acute mental health. [18] The Vitamin B12 research project involved data collection that was done outside of her hours of work.
[19] Dr Abbott's evidence around time analysis summaries [Exhibit 2] was that from August 2010 the inputting of the statistics was done as part of her out of hour's hospital visits, usually on weekends.
[20] On 5 July 2010, Dr Abbott had met with Dr Ferguson regarding the possible reallocation of 0.1 of FTE previously removed, however approval was not forthcoming despite her work levels being at the high end.
[21] On 14 September 2010 at a meeting with Dr Ferguson and Anderson, Dr Abbott conveyed further concerns about her workload being unreasonable, but there was no discussion how her schedule might have been rearranged.
[22] On 30 June 2011 there was a routine meeting of Health Practitioners 4 (HP4) at which Dr Ferguson advised that the nutrition and dietetics would be getting clinical governance of research projects which, in effect, meant that Dr Ferguson would be replacing Dr Lie.
[23] On 11 July 2011, Dr Vivanti informed Dr Abbott that if she wanted to attend work outside of work hours she was required to notify Dr Ferguson by email and also advise security of being on site.
[24] The issue of workload was again raised by Dr Abbott in a meeting on 25 July 2011 with Dr Vivanti and Mary McKenzie (McKenzie) and whilst she did not go into detail, there was a request of her to email an outline of her work activities.
[25] In reference to a service agreement document [Exhibit 24], which was an analysis of services provided by Dr Abbott from 4 January 2011 to 21 July 2011, she concluded that the average daily servicing was two hours, 45 minutes which was beyond the two hours a day which was her goal.
[26] In further evidence regarding the meeting of 28 July 2011 her evidence was she was first advised of the meeting at 8.30 am that morning when contacted by Dr Vivanti and, as such, was forced to cancel a meeting with a patient. It was not a regularly scheduled meeting and whilst an email with the agenda attached was forwarded to her on 26 July 2011, as the 26 and 27 July 2011 were not work days for her, the email was not read until after Dr Vivant's phone call. At the meeting an issue was raised by Lau relating to Dr Abbott's attendance at a Logan Mental Health event, questioning her approval to attend. This matter had not been on the agenda and the way the matter was handled left her feeling very unhappy about the whole meeting.
[27] The meeting was said to have continued in a negative way and became overwhelming and depressing leading to her total breakdown after that meeting. A directive was given to Dr Abbott that any unpaid out of hours work had to be done in business hours which was inconsistent with directives to other people. The governance of her research in to the Vitamin B12 research project was raised with Lau asking Dr Abbott to do a time study so he could be sure they were getting value for money. An offer by Lau to provide support with Dr Abbott's emails seemed patronising and a "misjudgement" of her as the issue had not been raised previously.
[28] Dr Abbott's evidence-in-chief concluded with a description of the PA Hospital work locations.
[29] Under cross-examination, Dr Abbott indicated that following the 28 July 2011 meeting which concluded at 9.45 am, she undertook her usual clinical duties, finishing between 5.00 and 6.00 pm. She confirmed the date of injury as 28 July 2011, giving evidence that beyond that date she continued in private practice and of presenting a paper in Leipzig in February 2012, for which approval was given after 28 July 2011 [Transcript p. 3-19]. Dr Abbott was of the opinion that Grevillea Place (where she carried out her out of hours work) was much less dangerous than AAPU and the proximity to Grevillea was not potentially dangerous. The Vitamin B12 research project was important in laying a foundation to improve cognition of clients [Transcript p. 3-14] and she acknowledged that Lau, in emails, had supported the project [Transcript p. 3-16] which was funded by Queensland Health outside normal auspices of her 0.5 funded position [Transcript p. 3-17].
[30] The suicide prevention training sought by Dr Abbott was initially not approved by Dr Ferguson, however following intervention by Jim Williams, approval was given. Dr Abbott conceded that whilst absent on sick leave (after 28 July 2011), arrangements were made by Queensland Health to continue to make payments to allow her to undertake her research project [Transcript p. 3-21] and earlier that Dr Ferguson had liaised with her to build a business case for the purpose of attempting to secure additional funds for her [Transcript p. 3-22]. Dr Abbott accepted that the concerns raised with Dr Ferguson regarding her workload were addressed on multiple occasions [Transcript p. 3-22]. There was evidence that the up-skilling of other staff was a strategy which would not have reduced her workload [Transcript p. 3-23]. Dr Abbott accepted that emails between Dr Vivanti and herself [Exhibits 34 and 35] which confirmed changes to her eating disorder patients had been the subject of earlier discussion [Transcript p. 3-25].
[31] Dr Abbott, on 21 July 2011, emailed Dr Ferguson informing her of her intention to perform unpaid overtime onsite on Saturday night or Sunday which Dr Ferguson approved on the basis of a need to review when they met the next week (28 July 2011). Dr Abbott did not accept the 28 July 2011 meeting was anything other than a non-standard meeting and she had not read information about the meeting in her emails because it was not routine for her to scroll down on her computer [Transcript p. 2-26]. Dr Abbott had been pleased with the outcome of a meeting with McKenzie and Dr Vivanti on 25 July 2011 that addressed her workload [Transcript p. 3-28]. Dr Abbott did not accept a communication from Dr Vivanti on 11 July 2011 was an invitation to the 28 July 2011 meeting, but an appointment [Transcript p. 3-30].
[32] On arrival at the 28 July 2011 meeting, Dr Abbott told Dr Ferguson that she had only just been notified of the meeting, despite a reference to the meeting in an email from Dr Ferguson which had not prompted any enquiry as the meeting "was not a priority" for Dr Abbott. She continued to state that it was an appointment [Transcript p. 3-32]. Dr Abbott did not consider it had been necessary to get approval to attend a mental health meeting in Logan in June 2011, but had contacted Dr Vivanti as a courtesy [Transcript p. 3-34]. Dr Abbott stated that once it was established that Dr Lie was funding and happy to govern the Vitamin B12 research project, there was never any question that he would continue to govern the project [Transcript p. 3-35]. Dr Abbott believed it was Dr Ferguson's intention that items under research would be managed by Nutrition and Dietetics and Mental Health Unit, although she had no awareness about what happened in the workplace after 28 July 2011 [Transcript p. 3-36].
[33] Dr Abbott strongly opposed Nutrition and Dietetics being able to veto or otherwise work performed outside normal hours of work, signed out by Dr Lie [Transcript p. 3-38]. However, Dr Abbott agreed that if staff were onsite at the weekend, or late at night, it made sense that Dr Ferguson and security needed to be made aware [Transcript p. 3-43].
[34] Dr Abbott did not welcome the offer of assistance with her emails at the 28 July 2011 meeting, saying she was "insulted by it, because I had not been notified about the - meeting in a timely way" [Transcript p. 3-40]. Dr Abbott acknowledged the content of an email from Dr Vivanti following the 28 July 2011 meeting regarding:
for optimal safety, ensuring any overtime hours when needed are undertaken
within usual working hours between Monday and Friday; and
McKenzie, Dr Vivanti and Dr Abbott to discuss ideas and strategies for managing
and optimising email time.[35] Dr Abbott first saw Dr Wilkie on 3 August 2011 in relation to her injury at which time she was said to be "capable of attending to her research job. However her evidence was "the whole deal was that it was nutrition and dietetics that I was not capable of returning to work to" [Transcript p. 3-44]. Dr Vivanti had advised Dr Abbott that while being unfit for work until 22 August 2011, she was not able to attend the PA Hospital in any role which led to the involvement of her Solicitor generating correspondence and Dr Wilkie providing a letter on 30 August 2011 stating Dr Abbott was fit for work at workplaces other than Nutrition and Dietetics at the PA Hospital. Dr Abbott could not recall if she had specifically requested Dr Wilkie to tailor her medical certificate, giving the evidence "I do not recall, but it is possible that I did" [Transcript p. 3-46].
[36] In re-examination, Dr Abbott responded to questions regarding the initial non-approval to attend suicide prevention training and up-skilling of other staff which, according to her, would have increased her workload.
Dr Wilkie
[37] Dr Wilkie, a Consultant Psychiatrist who had been treating Dr Abbott since 2002, produced a report (dated 11 September 2013) which identified that:
since November 2002 he had interviewed Dr Abbott on a further 77 occasions; he had provided professional supervision on numerous occasions for which he was not paid a fee;
he observed documents produced by Dr Abbott that convinced him she had been relentlessly discriminated against by persons including Dr Ferguson, with Connell being an accessory to the discrimination through the failure to act to provide a safe workplace environment; and
the meeting of 28 July 2011 with Dr Abbott, Lau, Dr Ferguson and others had
represented the final assault on her integrity causing her to break down into a
stress-caused depression.[38] The opinion expressed in the report was that after years of coping with and tolerating bullying and despite Dr Abbott using every avenue available to her, she broke down and was suffering severe anxiety symptoms as well as symptoms of depression.
[39] Dr Abbott had sustained a personal injury on 28 July 2011 when she was subjected to a meeting aimed at taking over her research project. Dr Abbott's condition arose solely as a result of bullying by her employer and there were no other causative factors.
[40] Dr Wilkie provided evidence on his knowledge of the 28 July 2011 meeting in which he believed Dr Abbott was placed in a no-win situation and was the subject of "plain personal persecution" as a result of restricting her attendance at the workplace outside of her hours of work.
[41] Under cross-examination, Dr Wilkie's evidence was he first issued a Medical Certificate for the workers' compensation claim on 28 October 2011 which indicated Dr Abbott was suffering an injury but capable of attending to her research job under the supervision of Dr Lie. A further certificate was issued on 16 August 2011 stating Dr Abbott was unfit to return to work until 12 September 2011 and on 30 August 2011 Dr Wilkie revised Dr Abbott was fit to work at workplaces other than within Nutrition and Dietetics at the PA Hospital from that date. Dr Wilkie denied the 30 August 2011 position was in response to correspondence generated by Dr Abbott's Solicitors on the same date. Dr Wilkie's evidence was the certificate was altered upon a request from Dr Abbott, not the Solicitors, giving evidence that she had continued to work as a dietician in private practice [Transcript p. 1-52]. Dr Wilkie acknowledged on 8 February 2012 he had given Dr Abbott specific certification for her to attend and present a paper at a conference in Leipzig, Germany [Transcript p. 1-57]. Dr Wilkie, in addressing the distinction between professional supervision and treatment, indicated the difference was "in actual fact, not much" although accepting professional supervision could include talking to Dr Abbott when she was not clinically unwell [Transcript p. 1-58].
[42] Dr Wilkie conceded he may have advised Dr Abbott in 2011 of her capacity to make a WorkCover claim stating it "would have been reasonable advice" [Transcript p. 1-60]. In terms of Dr Abbott's work situation Dr Wilkie was aware of:
Dr Abbott seeking elevation from HP4 to HP5 without success; and at the end of 2011 (after 28 July 2011) unsuccessful in seeking transfer at level. [43] On the Health Practitioner promotion process, Dr Wilkie acknowledged in correspondence (dated 26 July 2013) he had written of seeing documentary evidence which convinced him that Dr Abbott was discriminated against and treated unfairly, motivated by a desire to see her humiliated and blocked from promotion [Transcript p. 1-60]. He gave evidence of Dr Abbott informing him that the selection panel was not free of bias as Dr Ferguson was a panel member [Transcript p. 1-61]. Dr Wilkie conceded he had not sighted documentary evidence of Dr Ferguson's alleged bias [Transcript 1-62].
[44] In terms of a written opinion where he had indicated Dr Abbott may recover from her medical condition if she received an apology from Queensland Health and the perpetrators of the bullying were sacked with compensation for wages lost through the non promotions, Dr Wilkie's evidence was that he was "regarded as somewhat of an expert in treating people with post-traumatic stress disorders and work conditions arising from bullying" and his opinion was based on similar cases he had been involved in over the years [Transcript p. 1-63].
[45] Dr Wilkie's interest in the meeting of 28 July 2011 was as a therapist and whatever happened at the meeting had caused Dr Abbott to lose her motivation, self confidence and she was "wounded" by what happened at the meeting which caused her injury even though all the prior bullying of the previous nine years had contributed as well [Transcript p. 1-66].
[46] In re-examination, Dr Wilkie's evidence was that Dr Abbott's psychological problem was said to be specifically associated with trauma from particular individuals. Prior to 28 July 2011 she was suffering from anxiety symptoms from time-to-time and "little bouts of short-lived feelings of depression, sadness and frustration" due to her treatment [Transcript p. 1-69]. Since 28 July 2011 Dr Abbott had been treated for an adjustment disorder.
Meadows
[47] Meadows, a former Nurse Unit Manager with Queensland Health, had also been a Team Leader for nursing staff, administrative staff and divisional therapists in the Grevillea Place ward at the PA Hospital. Her evidence was that Dr Abbott had demonstrated a high level of professionalism, was highly ethical and a good communicator. Meadows further observed that whilst Dr Abbott's workload was considerable, she remained good with her patients.
[48] Under cross-examination, Meadows confirmed she had left the PA Hospital in 2009 which was the last time she had the opportunity to observe Dr Abbott in the workplace. She was aware Dr Abbott had undertaken a range of research work outside of her 0.5 FTE position and that she engaged in private practice. Meadows saw no issue with staff members being able to access Grevillea Place outside of hours.
Dr Dark
[49] Dr Dark, the Acting Director of Rehabilitation Services for Metro South Mental Health, had been at the PA Hospital for about 30 years and had a working relationship with Dr Abbott in the period 2004 to 2009 at the West End Clinic with some involvement on research papers and as a mentor. Her observations of Dr Abbott were she:
showed initiative;
showed an understanding of people's problems (regarding mental health); was responsive to the needs of clients; was professional; and
appropriately assertive.
[50] She had not been in a position to observe Dr Abbott interacting with patients in the last three to four years.
[51] Under cross-examination, Dr Dark indicated she had no direct involvement in Dr Abbott's research and that the mentoring was of an informal nature [Transcript p. 2-56].
Regulator
Hampson
[52] Hampson, a Principal Consultant for Workplace Services at the PA Hospital, gave evidence of creating a document addressed to Dr Wilkie [Exhibit 43] which was compiled based on a "M10" template which came from the Queensland Health's corporate office templates for requesting further medical information.
[53] Under cross-examination, Hampson stated she was not the person managing Dr Abbott's workers' compensation claim and had accessed information from files held by Workplace Services. The correspondence was a request for further medical information as a result of the medical certificates provided by the treating psychiatrist. Her use of the word "perception" regarding Dr Abbott's workload was based on information from files and past statements [Transcript p. 3-67].
[54] In re-examination, Hampson's evidence on the use of the word "perception" was that she did not form a view whether the perception by Dr Abbott was correct or otherwise [Transcript p. 3-70].
Connell
[55] Connell has been the Executive Director of Clinical Support Services at the PA Hospital for the past 12 years. She worked with Dr Abbott through interaction with Dr Ferguson as Dr Abbott's Line Manager. Evidence was given in respect of the changing role of the dietician at the PA Hospital with a lot more emphasis on clinical communication, team skills, professional supervision, support mentoring and clinical leadership. In 2008 the Health Practitioners Agreement translated people out of the professional stream in to the HP stream in a process that allowed for people to challenge various stages of the process. There were limited opportunities to access paid overtime due to limited budgets.
Dr Ferguson
[56] Dr Ferguson is currently the Acting Principal Research Fellow of the Dietetics Department at the PA Hospital, having previously held the position of Director of Nutrition and Dietetics at the PA Hospital from April 2007 until 10 July 2013.
[57] Dr Ferguson was, at times, the person to whom Dr Abbott reported directly and other times she reported through another level of management. During this time, it was necessary to having meetings with Dr Abbott which varied between weekly and monthly with Dr Ferguson accepting the criticism of Dr Abbott that the meetings were oppressive given the nature of her 0.5 FTE position which led to meetings being on a pro rata basis.
[58] Dr Ferguson was aware of Dr Abbott being at the PA Hospital on 23 July 2011 outside of normal work hours having forwarded her an email advising of the need to review overtime at a scheduled meeting on 28 July 2011. There were concerns about overtime being worked as well as issues regarding safety. At the meeting of 28 July 2011, attended by Dr Abbott, which had been called to, amongst other things, to welcome a new Team Leader (McKenzie), Dr Ferguson gave evidence that on 11 July 2011, Dr Vivanti had sent on "Groupwise" an electronic appointment advice to those required (including Dr Abbott) to attend the meeting. Dr Ferguson recalled issues discussed included:
roles and responsibilities; and
inquiry around the governance of the Vitamin B12 project. [59] Dr Ferguson was satisfied with the outcome of the inquiry made into the Vitamin B12 project in that Dr Lie was happy to continue to manage the project.
[60] Dr Ferguson acknowledged that at some stage she had provided assistance to Dr Abbott in putting forward a business case for improved funding of her position.
[61] Under cross-examination on the matter of the electronic appointment notice for the 28 July 2011 meeting, Dr Ferguson's evidence was that a recipient would be required to open up their calendar as well as the email "mailbox". She had made no inquiry regarding acceptance, declining or whatever by Dr Abbott regarding the 28 July 2011 meeting [Transcript p. 4-12]. Regarding the email of 23 July 2011, Dr Ferguson conceded that the out of hours overtime on that occasion had been approved by her, however she had concerns in respect of Dr Abbott being at the PA Hospital at 10.48 pm. Dr Ferguson, as a result of her concerns about personal safety, implemented a departmental guideline requiring contacting her for approval to be at the hospital outside normal business hours. Dr Ferguson acknowledged that a statement given to WorkCover earlier about the overtime incident was chronologically incorrect and a misstatement of that sequence of events [Transcript p. 4-14].
[62] Dr Ferguson gave evidence of reviewing documents relating to work undertaken by Dr Abbott which clearly identified Dr Abbott's involvement in the Vitamin B12 research project. The documentation included an email from Lau where he reported on meeting with Dr Abbott, after which he formed the view that the research had academic merit and he supported the project going ahead [Transcript p. 4-17]. Dr Ferguson could not point to any documentation forwarded to Dr Abbott (by her) between July 2010 and February 2011 that raised questions as to who was the supervisor of the research project, who had the governance and how it was being funded. Dr Ferguson's evidence was at the meeting of 28 July 2011, her questions were open-ended as to any projects that Dr Abbott had or may have been conducting at the time [Transcript p. 4-18].
[63] In re-examination, Dr Ferguson's evidence went to accessing meeting notes on a computer and of having no recall of other documentation regarding the Vitamin B12 research project [Transcript p. 4-19].
Dr Vivanti
[64] Dr Vivanti, a Dietician and Team Leader at the PA Hospital, worked with Dr Abbott both as a colleague and team leader. Dr Vivanti's evidence initially related to issues concerning eating disorders across all work areas at the hospital. On the matter of the meeting of 28 July 2011, Dr Vivanti gave evidence in relation to the 11 July 2011 appointment advice she had initiated for that meeting. A screenshot [Exhibit 44] revealed that Dr Abbott had not accepted the invitation. There was further evidence from Dr Vivanti regarding an email sent by her in preparation for the 28 July 2011 meeting which was said to have come in the "text of the appointment" [Exhibit 39]. Dr Vivanti also confirmed sending out an email to those who had attended the 28 July 2011 meeting which was said to summarise the discussions at the meeting.
[65] Under cross-examination Dr Vivanti responded to questioning around Exhibits 39 and 44. She recalled having notified Dr Abbott of the need to inform Dr Ferguson when onsite outside normal hours of work [Transcript p. 4-26]. Over time, there had been a number of meetings attended by Dr Abbott at a range of locations that included buildings 1, 15 and 19.
[66] Dr Vivanti gave evidence of forwarding advice on 26 July 2011 which identified points for discussion at the meeting of 28 July 2011 and Dr Abbott was on the list of recipients [Transcript p. 4-28]. Dr Vivanti confirmed the content of a statement given to WorkCover in May 2012 that indicated Dr Abbott was not rostered to work on 26 and 27 July 2011 [Transcript p. 4-28].
Lau
[67] Lau, the Director of Therapies and Allied Health at the Metro South Mental Health Service, provided an affidavit [Exhibit 32] which was tendered in the proceedings by consent. He gave evidence regarding the funding of Dr Abbott's position for which funding must be sought on a yearly basis. In order to secure that funding, it was necessary to present on a yearly basis a business case to the finance board and executive of Mental Health to justify the position. The importance of sound governance, service evaluation and clinical support was essential to ensure continued funding.
[68] When it came to his attention Dr Abbott was working late in the evening on weekends, it was necessary to outline issues relating to personal safety and breaches of Occupational Health and Safety by working in mental health areas without notification and approval. It had been standard practice in the past for workers to "pair up" when working outside of normal working hours.
[69] Dr Abbott's position was not unique in relation to the necessity to report to a number of managers with other health professionals operating out of the Grevillea ward being required to report to the Nurse Unit Manager and Team Leader.
[70] In relation to Dr Abbott's alleged invitation to the Logan Transitions in Care Working party, she had not completed the appropriate approval process for participation but had simply turned up on the day alleging approval from her Team Leader.
Submissions
Appellant
[71] It was submitted that:
the Appellant was, for the purposes of the Act, a "worker" - conceded; the Appellant suffered a personal injury being an adjustment disorder as
1
diagnosed by Dr Wilkie - see Mason v WorkCover QLD ; Delaney v 2
Q-COMP ;and Dr Wilkie as the treating Psychiatrist was in a unique position to be able to
determine that the meeting of 28 July 2011 was the precipitating event causing
the Appellant's decompensation.[72] The medical evidence was all one way with Dr Wilkie stating categorically that the meeting of 28 July 2011 was the event that caused the adjustment disorder. It was not to the point that the Appellant may have been able to do other things.
[73] The provisions of the Act through s 31(1), s 34(1)(a) and (b) and Schedule 6 clearly identify the tests for an injury arising out of, or in the course of, employment which was this case and there is no doubt that the event of 28 July 2011 took place on the premises under the control of the Appellant's employer. Accordingly the injury arose out of, or occurred in, the course of her employment.
[74] On employment being a significant contributing factor, Dr Wilkie's evidence was the
only matter that contributed to the Appellant developing the adjustment disorder was
the 28 July 2011 meeting which must qualify as a significant contributing factor.
The meaning of "significant" was said not to mean substantial but means something
which is important or of consequence as was found by President Hall in
3
Qantas Airways Ltd v Q-COMP where significant was towards the lower end, if not the base, of the spectrum. [75] The most critical issue in the case is whether the Appellant's injury is withdrawn from the definition of injury pursuant to s 32(5)(a) of the Act leaving three questions needing to be answered in the determination, namely:
Was the management action taken reasonable?; Was the management action taken in a reasonable way?; and Was the management action taken in a reasonable way in connection with the Appellant's employment?
[76] The word "reasonable" had been held to mean reasonable in all circumstances with
reliance upon the Administrative Appeals Tribunal decision in Georges v Telstra
4
Corporation Limited which was approved as being apposite by President Hall in 5
Aigner v Q-COMP . According to the authority, issues of fairness are necessary prerequisites when looking at whether or not management action is reasonable and
taken in a reasonable way.[77] The submission focussed on the notice given to the Appellant of the 28 July 2011 meeting which acknowledged Dr Vivanti's appointment notice of 11 July 2011 of which there was no evidence of Dr Abbott opening or accepting the email for that meeting. If she had opened the appointment notice, it was likely she would only have been informed in a general way of the meeting. On 26 July 2011 Dr Vivanti provided an agenda for the meeting in email form, however due to Dr Abbott not working on 26 or 27 July 2011, she only read the email 30 minutes before the meeting which led to her protest about the short notice she had received and of not having fully read the agenda.
[78] The issue for Dr Abbott is not only the timing of the notice, but the advice relating
6
to what the meeting was about. In Re Mullen , Lee J had said: "Although the precise content of the rules of natural justice may vary according to such considerations as the type of proceedings involved or the nature of the interest or interests being affected, at the very least they import a requirement that the person who's interests are likely to be affected be given reasonable notice of the nature of
the case which he or she is called upon to meet … That the notice is to be provided,
not at the steps of the meeting room but in such time as would enable that person to
reasonable and effectually prepare any case which they would seek to make.".[79] Of the meeting content, the fundamental concern was the Vitamin B12 research project and the evidence of Dr Ferguson was said to be unacceptable as a result of her overall credibility. The suggestion that the issue of the project governance was raised because of a number of projects that Dr Abbott was conducting and that Dr Ferguson was unsure at the time who was in charge of the project, stretches credibility to breaking point, particularly as Dr Ferguson at the meeting of 30 June 2011 had said the project would be taken over once the new Team Leader was on board. Dr Abbott had every reason to be concerned with the addition of the research project on the 28 July 2011 meeting agenda, given Dr Ferguson's earlier comments.
[80] Other matters covered in the submission relating to the 28 July 2011 meeting included:
Dr Abbott's attendance at the Logan meeting on mental health issues as a carer
and not an employee and should not have been raised at the meeting;
informing one Team Leader that another Team Leader had agreed to something
as a reason to require Dr Abbott to perform a task when the reason was not
applicable to her, was unreasonable;
getting value for money from Dr Abbott's 0.5 of a FTE position as raised by Lau was to imply she had not been performing the role to the upmost and was a reprehensible slur particularly as the evidence of Dr Ferguson was that the position was under resourced and a business case had previously been formulated (unsuccessfully) seeking additional resources;
management of emails was found to be offensive by Dr Abbott because of the
way in which it was raised; and
notification of the working of overtime was to be applied to Dr Abbott for out of
hours activities in a way more restrictive than applied to other employees.[81] In conclusion, it was submitted that the identified defects in the meeting of 28 July 2011 were such that it was not reasonable management action taken in a reasonable way and, accordingly, the Appeal should be allowed with Dr Abbott's claim one for acceptance.
Regulator
[82] The submission identified the alleged injury and cause as:
"Adjustment disorder as a result of long term pattern of bullying and discrimination
at work. Decompensation following supervision meeting on 28 July 2011.".[83] Dr Abbott had sought to conduct the Appeal in a way that ventilated a lengthy diatribe of dissatisfaction with not only her current supervisors but representatives of management from as early as 2002 as being contributory to her alleged injury.
[84] It was conceded that at all material times Dr Abbott was a "worker" within the meaning of that term as used in the Act leaving Dr Abbott to establish, on the balance of probabilities, each of the following elements:
that the Appellant sustained an injury; that any injury so sustained arose out of, or in the course of, employment and was
one to which employment was a significant contributing factor; and that the injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the
Appellant's employment.[85] The case for the Appellant wholly involves an alleged psychiatric injury that arose out of the interaction between the Appellant and management and in particular at a meeting of 28 July 2011. The Regulator conceded that if Dr Abbott is found to have sustained an "injury" within the terms of the Act, then given the matters recited by her (and in the absence of other factors possibly contributing to the psychiatric illness) work events were a significant contributing factor to the contraction of injury.
[86] The two issues remaining for consideration were:
Whether the Appellant sustained an injury?; and Whether that injury (being a psychiatric or psychological disorder) arose out of or
in the course of reasonable management action taken in a reasonable way?[87] There were a number of peculiar facts, (undisputed by evidence) pertaining to this matter:
the Appellant was never certified as being incapacitated for work; before, during, and after the alleged injury the Appellant maintained employment
and income by virtue of the following:
engaging in private practice as a Dietician; undertaking research work for Dr Lie; while allegedly suffering from a psychiatric injury the Appellant applied for
and was accepted to provide a paper at an international conference in Leipzig,
Germany.
[88] The diagnosis of Dr Wilkie was that the Appellant sustained an injury that was "people specific" meaning that it was of a nature that she could continue to attend at the same workplace just not "with the same people". None of the matters alleged as being contributory to psychiatric illness were productive of certification as to illness of any description until 16 August 2011, with that document being adduced by the Regulator. It was submitted that Dr Wilkie was, in any event, bias and his evidence should not be accepted by the Commission as it was unreliable.
[89] On the matter of injury where such injury cannot be discerned from observations of a broken bone or the like, the injury must be evaluated by consideration of the following:
observable indicia of distress;
the incapacity which it produces; and medical evidence as to the existence of such an injury. [90] Distress - The Appellant produced no evidence of being in any way distressed by the various issues allegedly contributory to her injury. There was no evidence adduced from co-workers and no distress exhibited in relation to the 28 July 2011 meeting with the Appellant remaining in her workplace, continuing with her normal duties on that day.
[91] Incapacity - The evidence overwhelmingly leads to a conclusion that any alleged injury was not productive of incapacity and the only certification affirms this as being the case.
[92] Medical Evidence - The Appellant failed to call evidence from a General Practitioner said to have been seen on 30 July 2011, nor was there an explanation on why that person was not called.
[93] The submission dealt, at some length, with the evidence of Dr Wilkie in the following terms:
diagnosis -
adjustment disorder;
reactive depression;
incapacity diagnosis and certification tailored to the dictates of the "patient"
herself;
incapacity did not prevent the Appellant: engaging in private practice;
attending at her former workplace; being paid by her former employer; accessing the PA Hospital library for the purpose of reviewing emails and dealing appropriately with same;
servicing Queensland Health clients;
performing research for Dr Lie; attending and presenting a paper at an international conference at Leipzig,
Germany;
fact remains Dr Wilkie's diagnosis changed after he had received a letter from the
Solicitors for the Appellant which dictated the terms of incapacity; and Dr Wilkie quite properly conceded he was not independent - 77 sessions over a
period near to a decade was said to have eroded any independence.
[94] On whether a medical condition or disorder was a compensatable injury, it was said
to be a matter for the Commission not the medical profession with reliance upon the
7
matter of Chattin v WorkCover Queensland : "As was authoritatively pointed out by the High Court in Ramsay v Watson (1961) 108 CLR 642 at 644-5 questions such as those which are critical for determination in this case are not to be answered purely by reference to a medical opinion. The mere fact that a medical witness has expressed an opinion that something is more probable than not does not conclude that issue. It is still for the tribunal of fact to weigh and determine the probabilities. But often where there is conflicting medical evidence on a critical issue preference for the opinion of one over that of another will have a significant impact upon the tribunal of facts, deliberations and conclusions. Here, as already noted, in order to provide the reasonable mind or mind of a commonsense person with the basis for making the necessary findings of fact in favour of the appellant it would be necessary to give greater weight to the evidence of Dr Durrant than that of Dr Carroll.".
[95] Other authorities relied upon included:
WorkCover Queensland v Cotmore[8]; and Mayo v Q-COMP[9].
[8][9][96] On being incapacitated for work, the submission relied upon a passage in the case of
10
Colbran v Workers' Compensation Board of Queensland where the Industrial 11
Court cited the decision of Thompson v Armstrong & Royse : "Mr Smith separately challenged the Magistrate's conclusion that, following cessation of the employment, the appellant was not 'incapacitated for work'. That conclusion was made in context of what McTiernan J. said in Thompson v. Armstrong & Royce Pty Ltd, supra at 602-603:-
'The phrase ["incapacity for work"] does not merely mean inability to work for the employer in whose service the worker was injured. An injury results in incapacity for work, according to the intention of the Act, when it takes away or diminishes the power of the worker to earn wages in some suitable employment.'.
Mr Smith contended that the range of 'suitable employment' to which His Honour there referred, should be seen as including employment such as the appellant had with Brodies, so that now the employment is denied the appellant, the Magistrate should have found him incapacitated for work.
In my opinion, that is not a fair reading of the passage. Any number of other avenues of employment would be open to this appellant, and suitable, once one excluded the element of the coldroom.".
[97] The specifically worded certificates of incapacity from Dr Wilkie indeed only expressed the "incapacity" was to work with Dr Ferguson and Dr Vivanti as persons perceived to be in conflict with her. The certification as to injury was highly questionable given Dr Wilkie's own evidence.
[98] Dr Wilkie was said to have relied upon emotive content in his report and lacked
independence which rendered his evidence on whether the Appellant had sustained
12
an injury, as no assistance to the Commission. In the matter of R v Butler the following extract was said to be relevant in this matter: "The extent to which Professor Boettcher has taken it upon himself to perform the role of advocate for Mr Butler in his subsequent reports bespeaks a level of personal commitment to Mr Butler's cause which is not consistent with the detachment and independence which is to be expected of an expert witness if that witness' opinion is to be given full weight by the court. In Cross on Evidence, in a discussion of the decision of the High Court in Fox v Percy, the learned author observes: 'An expert witness should never assume the role of an advocate and argumentative or adversarial evidence may be rejected'.".
[99] In Fox v Percy[13], Callinan J cited, with approval, the following passage from Phipson on Evidence:
"The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of pre-conceived theories; moreover, support or opposition to given hypotheses can generally be multiplied at will.".
[13]
[100] Dr Wilkie's evidence should be put to one side with the Regulator submitting that the Appellant had failed to discharge its onus to establish that she sustained an injury within the terms of the Act.
[101] The submission, in addressing the issue of management action, said the evidence was limited to a number of factors identified by the Appellant as being contributory to her alleged illness. Those being:
workload;
Appellant's position;
out of hours access; and meeting of 28 July 2011. [102] Workload was conceded by Dr Ferguson to have demands beyond the resources available with efforts made to address those concerns being:
business case (unsuccessful) to increase the funding available to the Appellant's
position;
deletion of "CC East" and "Eating Disorders Inpatient" programs; creation of job requirement schedule; and one-on-one meetings with the Appellant and McKenzie to analyse matters that
were able and unable to be completed in her daily routine.
[103] There was no evidence of any criticism from management for failing to complete matters beyond the allocated time. The Appellant complained of the number of meetings she was required to attend which itself was addressed by allowing her to attend meetings on a pro rata basis. Management had attempted in a myriad of ways to alleviate the workload which supports that reasonable action was taken by management in this regard.
[104] The Appellant had chosen to work the 0.5 FTE position and could have returned to her full-time position following any yearly period of the 0.5 FTE position appointment. The employment arrangement allowed her to complete her PhD, undertake private practice and research activities.
[105] It was unremarkable that management elected to restrict out of hours access to the PA Hospital when the evidence of the Appellant around the housed psychiatric inmates was taken into account. Dr Abbott's evidence included:
"These are acutely ill patients. Often come in being psychotic, often brought in by
Police. So it's acute situations coming through emergency." [Transcript p. 1-18].[106] The most telling evidence was that out of hours was necessary for her as it was inconvenient on days where she conducted her private practice.
[107] The meeting of 28 July 2011 was criticised by the Appellant due to the lack of notice received by her, however it was clear she had simply chosen to not check her electronic diary and had ignored the email of 22 July 2011 from Dr Ferguson which alerted to the meeting. Whilst the Appellant contends that this was unreasonable management action taken in an unreasonable way, the facts are she was notified by proper means in a timely fashion and chose to ignore it.
[108] On the permission to attend the Logan event following the approval of
Lisa Appleyard (Appleyard), the failure to call Appleyard allows for a negative
14
inference to be drawn in the circumstances (see Jones v Dunkel ). Overall, the Appellant was granted every indulgence she sought. [109] The Appellant had failed to discharge her onus of proof in relation to the issue of reasonable management action quite independently of any consideration of injury and on that basis the Appeal should be dismissed.
[110] The submission took issue with the reliance on Re Mullen[15] stating it was inaccurate in these circumstances as the 28 July 2011 meeting was not:
[15]
a meeting of a disciplinary nature regarding the Appellant; a meeting wherein the Appellant's interests were likely to be affected; or a meeting where the Appellant was to be called upon to "meet a case". [111] The Appellant submissions on Re Mullen were not based upon evidence in these proceedings.
[112] In concluding, it was submitted the Appellant must establish that she had sustained an injury and it did not arise out of or in the course of reasonable management action taken in a reasonable way. There was insufficient evidence to satisfy the Commission that the Appellant suffered an injury and, for that reason alone, the Appeal should fail.
[113] In the alternative, the Appellant's own evidence reveals that her desires to maintain private practice, undertake research independently of her job and to work her job in a part-time fashion were accommodated by the employer in every possible way.
[114] The major allegation relating to not having adequate notice of the 28 July 2011 meeting was not borne out by the Appellant's own evidence.
[115] Finally, it was submitted that the Appeal should be dismissed with costs.
Appellant in Reply
[116] The Appellant submitted a 17 page document in which concerns with the submission filed on behalf of the Regulator were addressed. Upon review of the document, it was evident that not all matters fitted within "matters of law".
[117] In précising the submission, the following were noted:
the cause of the Appellant's personal injury was the meeting of 28 July 2011; the failure to call Lau as a witness, relying only upon his affidavit, was very unsatisfactory as it gave no opportunity for cross-examination;
Dr Wilkie was acknowledged as not being an independent witness because at all relevant times he was her treating practitioner, however it was not accepted he
16
was bias. Reliance was placed upon FGT Custodians Pty Ltd v Fagenblat
where Ormiston JA said:
"Again, I know of no principle stated as a principle of the common law which would exclude as incompetent the evidence of a person otherwise qualified to give expert testimony but who is said to be effected by interest or bias.".
the Commission was also taken to the authority of Telecomputing PCS Pty Ltd v 17
Bridge Wholesale Acceptance Corporation (Aust) Ltd ; neither the Insurer nor the Regulator sought to have the Appellant independently
assessed pursuant to s 556 of the Act; Dr Wilkie was in a position to distinguish between the difficulties suffered by the
Appellant prior to and after the 28 July 2011 meeting;
the Act identifies an injury at s 32(1) which is not the same as whether or not the injury is productive of incapacity. The distinction was said to be neatly revealed by a reference to Part 3 of Chapter 11 of the Act. The issue for these proceedings is not whether the Appellant suffered a total or permanent or partial incapacity, but simply whether the Appellant has suffered an injury;
in terms of the Jones v Dunkel[18] inference, it was said to be based on a
[18]misunderstanding by the Regulator. There was reliance upon authorities said to support the "failure" to call the Appellant's General Practitioner and Appleyard. Those being:
Fabre v Arenales[19];
[19]
HML v The Queen[20] - when Heydon J had stated: "In civil cases the unexplained failure of a party to give evidence, call witnesses or tender material is not treated as evidence of fear that it would expose an unfavourable fact, nor as an assertion of the non-existence of the fact not proved: the only consequence is that the failure can cause an inference arising from the evidence of the opposing party to be more confidently drawn.";
[20]
no adverse inference can be drawn against the Appellant for the failure of the
Regulator to adduce evidence close to touching the issue;
on the attempt to make a case that Dr Wilkie's medical opinion changed
according to orders from either the Appellant or Appellant's Solicitors it is important to note his diagnosis of the medical condition suffered by the Appellant did not change with the definition of injury contained at s 32(1) of the Act being a composite notion. The issues regarding causation is set against a statutory standard which is always the sole province of the Commission;
the submission challenged the authority of Colbran v Workers' Compensation
21
Board of Queensland which contained no suggestion that there must be a total
or any incapacity for work before there can be an injury. In Thompson v
22
Armstrong & Royse Pty Ltd it was said by Latham CJ: "The cases show that in order that an employer should become liable actually to pay compensation in respect of a particular period there must be (1) an injury of the worker as defined in the Act; (2) a resulting incapacity for doing the work for which he was earning wages; (3) a consequent economic loss of wages.".
[118] The submission addressed other issues including:
Lau's comment regarding value for money; out of hours access; and meeting of 28 July 2011. [119] The submission concluded on the basis that the Appeal be allowed and the Appellant's claim for compensation be one for acceptance.
Conclusion
[120] In consideration of the Appeal, there is no requirement to decide whether Dr Abbott was for the purposes of s 11 of the Act, a "worker" as that matter was conceded by each of the parties.
[121] The matters for determination are limited to:
Whether Dr Abbott suffered a personal injury pursuant to s 32 of the Act?; and If such an injury (if suffered) being that of a psychiatric or psychological nature rose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with Dr Abbott's employment or otherwise? Injury
[122] In terms of injury, the Commission had only the medical evidence from Dr Wilkie to consider and as her treating psychiatrist he had undertaken some 77 sessions of treatment or supervision since 2002.
[123] Dr Wilkie, in relation to Dr Abbott's workers' compensation claim, first treated her on 3 August 2011 at which time he issued a Workers' Compensation Medical Certificate on 28 October 2011 which indicated she was suffering from an adjustment disorder and was totally incapacitated for work from 29 July 2011 until 2 January 2012 with a review to occur on 21 December 2011.
[124] On 16 August 2011 Dr Wilkie authored documentation pertaining to Dr Abbott that she was under treatment for reactive depression and would be unfit to return to work until 12 September 2011.
[125] On 30 August 2011, he authored similar documentation to that of 16 August 2011 advising that Dr Abbott was under treatment for reactive depression and was unfit to return to work within the Nutrition and Dietetics at the PA Hospital until 2 January 2012, however was fit for work at workplaces other than within Nutrition and Dietetics from 30 August 2011.
[126] In each of the abovementioned documents, Dr Wilkie identified workplace bullying as being causative of the injury based on information provided by Dr Abbott.
[127] Clearly the issue of Dr Abbott's capacity to perform work changed significantly in the space of 27 days from the first certification on 3 August 2011 and the documentation of 30 August 2011. In the circumstances, it is not possible to discount correspondence from Solicitors acting for Dr Abbott sent to Dr Wilkie on 30 August 2011 from enquiry when considering the changes to her capacity to perform work.
[128] The Solicitors, in correspondence dated 30 August 2011, sought the following:
"For the purpose of our client's future medical certificates, it would be useful if you could note in those certificates that our client's capacity to continue to engage in research is of therapeutic benefit to her and is assisting her in her overall recovery. It is out understanding that she will need a medical certificate that advises she is 'fit for duties elsewhere but not at the PAH'.".
[129] Hence, Dr Wilkie's documentation of 30 August 2011 advising of changes to Dr Abbott's incapacity complied with the general position identified by her Solicitors. Dr Wilkie, in cross-examination, denied the correspondence from the Solicitors had influenced his changed position, but had altered the position upon a request from Dr Abbott herself. Nevertheless doubt is cast upon Dr Wilkie's information regarding the management of the diagnosed injury in that Dr Abbott was initially incapacitated until 2 January 2012 and upon a request was able to return immediately to all duties except duties in Nutrition and Dietetics at the PA Hospital.
[130] The matter somewhat deepens when the correspondence to Dr Wilkie of 30 August 2011 from Dr Abbott's Solicitors is read in concurrence with correspondence forwarded to the Metro South Hospital Service District on 30 August 2011 from the same Solicitors which acknowledged Dr Abbott is currently absent from the workplace on approved sick leave and requested the following:
"I therefore request that you confirm that our client is at liberty to resume her data collection work involved in her Queensland Health funded research immediately and that any direction not to attend at the PAH is immediately revoked. I seek such confirmation from you prior to close off [sic] business on Wednesday, 7 September 2011.".
The correspondence went on to state:
"I advise that if any term is imposed on our client which restricts her capacity to perform her research functions, I expect to receive instructions to file an appropriate application in the Anti-Discrimination Commission Queensland complaining of your direct discrimination on the basis of our client's impairment.".
[131] The correspondence was in response to an email from Dr Vivanti to Dr Abbott (dated 10 August 2011) in which it was stated:
"You are currently on sick leave and your medical certificate (which you have kindly provided) indicates you are unfit to return to work on 22 August [2011]. Therefore you can't be at PAH, in any work role, during this period of time.".
[132] The conclusion the Commission has reached regarding Dr Wilkie's certifications regarding Dr Abbott's incapacity to perform work in accordance with her 0.5 FTE position description from 3 August 2011 onwards is that it would be somewhat unsafe to rely upon those certifications with any confidence when in fact Dr Abbott continued her role in private practice at the time without interruption and the level of incapacity was adjusted principally on a request from the patient or possibly her Solicitors in the absence of any nominated medical reasoning.
[133] Dr Wilkie on 3 August 2011 had diagnosed Dr Abbott with an adjustment disorder and in his medico-legal report of 11 September 2013 confirmed that this diagnosis remained current. In other certifications authored by Dr Wilkie in August 2011, he provided an alternate diagnosis being that of reactive depression, although I am not certain that anything of significance falls upon the differing diagnosis in that the symptoms of each were said to not be dissimilar to any noticeable extent.
[134] Dr Wilkie, in his medico-legal report, referred to documentation produced by Dr Abbott that convinced him she had been relentlessly discriminated against by a number of persons including Dr Ferguson and that Connell had become an accessory to the actions of Dr Ferguson through her failure to provide a safe workplace environment. In terms of causation of the injury Dr Wilkie at paragraph 22 of the report stated the following:
"Dr Abbott sustained a personal injury on 28th July 2011 at the Princess Alexandra Hospital where she worked, when she was subjected to a meeting aimed at taking over her research project. The injury was of such severity that she had been unable to return to work at the Princess Alexandra Hospital since then.".
[135] Expert medical evidence was not adduced in the proceedings on behalf of the Regulator that directly challenged the evidence of Dr Wilkie regarding Dr Abbott's previous psychiatric history from 2002 or his diagnosis of an adjustment disorder on 3 August 2011. On that basis the Commission accepts it is likely that Dr Abbott was suffering from an adjustment disorder as diagnosed which Dr Wilkie had distinguished from her previous psychiatric conditions which had been described by him in evidence as "little bouts of short-lived feelings of depression, sadness and frustration". There was an absence of any evidence connecting any other event beyond Dr Abbott's work that could be causative of Dr Abbott's psychiatric condition and therefore I am of the view that, despite my concerns about incapacity, Dr Abbott suffered a personal injury that arose out of, or in the course of, her employment, and employment was a significant contributing factor, with that injury being an adjustment disorder.
Reasonable management action taken in a reasonable way
[136] For Dr Abbott's psychiatric injury to be compensatable, there is a requirement for a case to be made that the management action said to be causative of the injury was not reasonable management action taken in a reasonable way in connection with her employment so as to nullify the exclusions of s 32(5)(a) of the Act.
[137] The case for the Appellant was that the event causative of her injury was solely the meeting held on 28 July 2011 and, for that reason, it is not necessary to examine matters pertaining to her employment before or after that date.
[138] Dr Abbott's evidence was the first advice received of the 28 July 2011 meeting was 30 minutes prior to the meeting when contacted by Dr Vivanti. The meeting was unscheduled and whilst an email with the agenda attached was forwarded to her on 26 July 2011, the email had not been read until after Dr Vivanti's telephone call. Dr Abbott had registered her dissatisfaction at the commencement of the meeting regarding inadequate notice and she was very unhappy with the meeting due to matters not on the agenda being raised. The meeting had continued in a negative way, becoming overwhelming and leading to her total breakdown following the meeting.
[139] The meeting of 28 July 2011, according to the evidence of Dr Ferguson who had scheduled the meeting, had been called, amongst other things, to welcome a new Team Leader (McKenzie) and those requested to attend, including Dr Abbott, had been advised through a "Groupwise" electronic advice sent out by Dr Vivanti. Confirmation of the electronic advice of 11 July 2011 was given by Dr Vivanti in her evidence, in addition to further evidence relating to the business of the meeting which was sent to Dr Abbott, Dr Ferguson and Lau on 26 July 2011. Dr Vivanti indicated that a "screenshot" had revealed Dr Abbott had not opened the electronic advice.
[140] Dr Ferguson, in evidence, informed the Commission of having advised Dr Abbott on or around 23 July 2011 that the matter of working outside of normal work hours would be reviewed at the 28 July 2011 meeting.
[141] There was a contemporaneous note of the meeting distributed by Dr Vivanti to all attendees by email on the evening of 28 July 2011 which contained a "thank you" for attendance at the meeting and to ensure smooth working relationships between departments to ensure the best outcomes for mental health clients. Additionally, the following information emanating from the meeting relating to Dr Abbott, and issues concerning her, was included in the note:
"2) Needing to confirm who is responsible for the governance arrangements round
MH dietetic research endeavours (Action: Geoff to explore)
Generally, decision will be jointly made between the mental health and
dietetics team leaders to ensure both team leaders are included in emails to
help ensure clear communication (Action: Win, Angela Mary)3)
For optimal staff safety, ensuring any overtime hours when needed are undertaken within usual working hours between Monday and Friday
Before undertaking any overtime hours, approval needs to be confirmed to be
on campus outside of the positions dedicated working hours (Action: Win)
from Dr Lee if visiting Grevillea
from Mary McKenzie if visiting the Mental health Building
from Maree Ferguson if visiting the Nutrition and Dietetics department
4) optimising email time (Action: Win, Angela Mary)
Mary Angela and Winsome to discuss ideas and strategies for managing and red (urgent) (Action: Angela, Mary).".
[142] In addressing the management action pertaining to the meeting of 28 July 2011, the evidence before the Commission is that:
the meeting of 28 July 2011 was scheduled for normal work-related issues, not
for the purposes of disciplinary measures in relation to Dr Abbott's conduct or
performance;
the electronic advice given on 11 July 2011 notifying of the meeting was more
than adequate notice and the failure of Dr Abbott, a health professional of considerable standing, to open that advice in the circumstances is somewhat reprehensible and certainly not a reasonable ground upon which to rely for not being properly informed;
the forwarding of the meeting agenda on 26 July 2011 was timely for those
attending. Acknowledging Dr Abbott's absence from work on 26 and 27 July 2011, the matters for discussion were not matters for which she would not have had some prior understanding so as not to be disadvantaged by her attendance at the meeting;
there was no evidence of any restriction being placed on Dr Abbott's participation in the meeting beyond her own evidence of deliberately not being a contributor to the meeting;
matters raised at the meeting said to have contributed to Dr Abbott's
decompensation were:
Lau's comments regarding whether the department were getting value for
money from Dr Abbott;
governance arrangements for the Vitamin B12 research project; out of hours access to the PA Hospital; and email management;
value for money - Dr Abbott's 0.5 FTE position was funded year to year and in successfully having funding renewed, value for money would be an important factor for consideration. There were no questions ever raised regarding Dr Abbott's work performance or level of work, therefore such an inquiry in the terms of this meeting was not unreasonable;
governance arrangements - Dr Ferguson, as the Manager responsible for
Dr Abbott had every right to make inquiries regarding the research project being undertaken by Dr Abbott. The outcome of any inquiry did not interfere with Dr Abbott's continued participation in that project;
out of hours - the employer took reasonable steps to manage employees wishing to attend the workplace outside of normal work hours, particularly when the workplace involved is a mental health facility; and
email management - the failure of Dr Abbott to open the electronic advice of
11 July 2011 on its own was sufficient to "red flag" there were problems that required attention and to involve Dr Abbott in the process was further evidence of reasonable management.
[143] On the evidence on and around the meeting of 28 July 2011, I find that the employer, at all times, acted reasonably in their conduct of this event.
Finding
[144] The Commission, having considered the evidence, material and submissions before the proceedings, finds that for the purposes of s 11 of the Act, at the relevant time, Dr Abbott was a "worker" and that Dr Abbott suffered a psychiatric or psychological injury pursuant to s 32(1) of the Act.
[145] The injury suffered by Dr Abbott is not compensatable pursuant to s 32(5)(a) of the Act in that the actions said to be causative of the injury have been found to be reasonable management action taken in a reasonable way in connection with her employment, therefore the injury is excluded.
[146] The Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 5 December 2012 stands. The claim is not one for acceptance.
[147] The matter of costs is reserved.
[148] I order accordingly.
1
Mason v WorkCover QLD (2002) 170 QGIG 376
2
Delaney v Q-COMP (2005) 178 QGIG 197
3
Qantas Airways Ltd v Q-COMP (2009) 191 QGIG 115
4
Georges v Telstra Corporation Limited (2009) AATA 731
5
Aigner v Q-COMP (C/2011/2) - Decision <
6
Re Mullen [1995] 2 Qd. R. 608 at 614
7
Chattin v WorkCover Queensland (1999) 161 QGIG 531
WorkCover Queensland v Cotmore (1999) 162 QGIG 190
Mayo v Q-COMP (2004) 177 QGIG 667
10
Colbran v Workers' Compensation Board of Queensland (1996) 152 QGIG 1180
11
Thompson v Armstrong & Royse Pty Ltd [1950] 81 CLR 585
12
R v Butler [2009] QCA 111
Fox v Percy [2003] 214 CLR 118
14
Jones v Dunkel [1959] 101 CLR 298
Re Mullen [1995] 2 Qd. R. 608 at 614
16
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
17
Telecomputing PCS Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd [1994] 24 NSWLR
513
Jones v Dunkel [1959] 101 CLR 298
Fabre v Arenales [1992] 27 NSWLR 437
HML v The Queen [2008] 235 CLR 334
21
Colbran v Workers' Compensation Board of Queensland [1996] 152 QGIG 1180
22
Thompson v Armstrong & Royse Pty Ltd [1950] 81 CLR 585
0
3
0