Aldi Stores (A Limited Partnership) v Simon Blackwood (Workers' Compensation Regulator)
[2016] QIRC 7
•15 January 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Aldi Stores (A Limited Partnership) v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 007 |
PARTIES: | Aldi Stores (A Limited Partnership) v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2015/146 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 15 January 2016 |
HEARING DATES: | 31 August, 1 and 2 September 2015. |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDERS: | 1. The appeal is allowed 2. The decision of the regulator dated 15 May 2015 is replaced by a decision that the claim is not one for acceptance 3. The matter of costs is reserved |
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether worker sustained an injury pursuant to s 32(1) of the Act – worker's version of events not accepted - medical evidence not determinative. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 550 |
| APPEARANCES: | Mr J. Miles, Counsel instructed by the Henty Lawyers for the Appellant. |
Decision
Introduction
Aldi Stores (A Limited Partnership) ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the respondent") dated 15 May 2015. The regulator confirmed a decision of WorkCover to accept an application for compensation lodged by Ms Dianne Page on 29 December 2014 in respect to a psychological injury. The regulator's decision is appealed pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
In her WorkCover application, Ms Page said that the injury arose from an incident at work on 23 December 2014 involving herself and another employee, Ms Laura Gilliland. Ms Page said that she was "verbally attacked" and "violently abused and threatened" by Ms Gilliland. Ms Page said that she was "extremely scared and intimidated" as Ms Gilliland confronted her "in rage as if she was going to physically attack" her. The incident occurred in the Aldi warehouse in Stapylton, near Beenleigh.
Soon after the incident, Ms Page complained to her supervisor about Ms Gilliland's behaviour. Later that day she attended on her general practitioner who diagnosed an injury described as "workplace stress" and issued Ms Page with a workers' compensation medical certificate.
Issue for Determination
It is not disputed that Ms Page was a "worker" for the purposes of s 11 of the Act. The issue for determination in this appeal is whether, pursuant to s 32(1) of the Act (as it then was), Ms Page suffered a personal injury arising out of or in the course of her employment, where the employment was the major significant contributing factor to the injury.
Evidence
During the course of the proceedings, evidence was provided by twelve witnesses. The witnesses for the appellant were as follows:
·Laura Gilliland
·Zac Morris
·Michael Mirecki-Jones
·Reece Bocher
·Rebecca Brunton Tamarapa
·Russel Baynton
·Michele Johnson
·Julie Collard
·Shaun Monk
·Ryan Ballantyne
Ms Dianne Page and Dr Shanil Rupnarain gave evidence for the respondent.
Appellant's Position
It was the appellant's submission that:
(a)The evidence does not support the allegations made by Ms Page about the incident;
(b)Ms Page did not sustain a "personal injury" as a consequence of the incident at work on 23 December 2014;
(c)That in the event of a finding that Ms Page did sustain a personal injury, it did not arise out of or in the course of her employment; and
(d)If the injury was held to arise out of or in the course of employment, the employment was not the major significant contributing factor to the injury.
In terms of the determination to be made by the Commission the appellant submitted that:
(a)The primary role of the Commission is to determine what happened on 23 December 2014 at the appellant’s workplace;
(b)The analysis of the evidence involves a determination of the respective positions of Ms Page, Ms Gilliland, and the eyewitnesses; a determination of the distance between Ms Page and Ms Gilliland; the content of the verbal exchange between Ms Page and Ms Gilliland; and the nature of the exchange;
(c)The decision to be made is whether Ms Page sustained a personal injury and, if she did, whether it was an injury as defined in s 32 of the Act. That task involves an assessment of the veracity and credibility of Ms Page’s claims and an assessment of the opinion of Ms Page’s general medical practitioner, Dr Rupnarain.
Respondent's Position
The respondent submitted that:
(a)The unchallenged evidence of Dr Rupnarain demonstrated that Ms Page sustained a personal injury;
(b)That the evidence established that the injury arose out of the verbal altercation that took place on 23 December 2014;
(c)That the employment was more than just the setting in which the altercation occurred. The altercation in the workplace caused Ms Page to sustain a personal injury;
(d)That the evidence demonstrated the necessary association between the injury and the employment. But for the altercation, the injury sustained by Ms Page probably would not have occurred. Accordingly, it must follow that the respondent has established that Ms Page’s injury arose out of, or in the course of, employment;
(e)The appellant was forced to rely on inferences about Ms Page's annual leave and sick leave record because it failed to call into question the veracity of Dr Rupnarain’s opinions;
(f)While the appellant submitted that "there were a whole range of other factors that led" to Ms Page’s injury, such factors were not made out on the evidence and the submission amounts to mere speculation;
(g)Importantly, absent any medical evidence to the contrary, there is no evidentiary foundation to depart from Dr Rupnarain’s stated conclusions.
Overview
The incident occurred around 8.00am on 23 December 2014 while Ms Page and Ms Gilliland, both warehouse operators, were assembling orders in an aisle in the warehouse. Product was stored on both sides of the aisle with access to one side of the aisle designated aisle 6 and access to the other side of aisle designated aisle 7.
The job of a warehouse operator involved travelling up and down aisles in the warehouse on a machine called a "picker", which is a battery powered forklift device, and assembling orders from stock stored on pallets or on shelving which lined each aisle in a process called "picking". When the product is picked it is then transferred to a plastic pallet which was carried on the tines of the picker. When the order is complete the pallet of product is delivered by the operator to the loading dock for dispatch.
It can be accepted that a spillage of product during the picking process was typically the cause of significant annoyance and frustration for the warehouse operator involved. In the first instance work is interrupted while the spill is cleaned up which slows down the picking process and negatively impacts productivity targets which measure output on a per hour and per shift basis. Secondly, reports have to be written or paperwork completed in respect to any damaged goods. Ms Brunton explained the consequences in the following terms (T1-80):
"Okay?‑‑‑And then you’ve got to replace all those bits that you’ve broken and then you’ve get to deal with the waste side of things and then you’ve got to repack it. Then you’ve got the pressure of transport saying where’s this pallet, where’s this pallet and then you’ve got the section leader stressing because then they have to make all the corrections in the system and it’s a huge process and then you’ve got to clean up, you know, and it could be ... all sorts of different products."
The incident arose after product was spilled while Ms Gilliland was picking an order in aisle 7. While the extent and nature of the manifestation of Ms Gilliland's displeasure was a matter in dispute, it was common ground that her behaviour attracted the attention of Ms Page who was working in the adjoining aisle (aisle 6) and who had stopped work to look at what was occurring. Ms Gilliland did not appreciate the attention and a robust exchange between the two women resulted. The exchange was witnessed or heard by three co-workers who were also working in either aisle 6 or 7.
While differing versions of the exchange emerged over time and between witnesses, it was accepted in the proceedings that the following words were spoken:
Ms Gilliland: What the fuck are you looking at?
Ms Page: I’m fucking looking at you acting like a clown.
Ms Gilliland: Why don’t you do some fucking work?
After Ms Gilliland's final salutation, both women resumed normal activities. Ms Page said that she worked for about a further ten minutes completing the order she was working on before deciding to report the incident to a warehouse manager, Mr Ballantayne. After complaining about Ms Gilliland's behaviour to Mr Ballanytne, Ms Page then took a morning tea break before resuming duties. She finished her shift at the normal time of 11am and later that day she attended on her general practitioner, Dr Rupnarain, who issued a workers' compensation medical certificate stating that Ms Page was not capable of completing any work until 1 January 2015.
In prosecuting its appeal the appellant promoted the view that it was not coincidental that Ms Page was able to secure certification of incapacity for work from 24 December 2014 to 31 December 2014 (both days inclusive) in circumstances where an application by her for time off work on annual leave for the same period had been refused only a few days before the incident. The refusal of Ms Page's request meant that she was scheduled to work on 24, 26, 29, and 30 December 2014.
In the end result Ms Page remained off work between 24 December and 31 December 2014. She commenced a period of annual leave on 1 January 2015 and resumed normal work on 15 January 2015.
Ms Page's Version of Events
In the first instance Ms Page provided an oral account of what transpired to Mr Ballantyne on 23 December 2014. She provided a more detailed and written version to Mr Ballantyne later that day when she emailed him with a formal complaint against Ms Gilliland. She had a further opportunity to explain what happened when she was interviewed by Mr Ballantyne on 30 December 2014 as part of his investigation. Outside of her communications with her employer, Ms Page provided versions of events to WorkCover both orally and in writing, to Dr Rupnarain, and to the Commission during the proceedings.
It was Ms Page's evidence in the proceedings that around 8.00am while she was working in aisle 6 and about ten to twelve metres from Ms Gilliland, she heard a commotion, stopped working and turned to look at the source of the noise. She observed Ms Gilliland driving her picker backward and forward into her pallet, while swearing at the top of her voice saying "fuck, fuck, fuck". Ms Page recalled seeing product falling off the pallet and she observed Ms Gilliland kicking products and throwing material or product into the racking. At some point, Ms Gilliland became aware that Ms Page was looking at her and the verbal exchange ensued. Ms Page described what happened in the following terms (T2-80):
"Right. Okay. And did – can you recall whether Ms Gilliland responded in any way?‑‑‑Yeah. She actually came a bit forward and she said can you do your fucking work because you – something about you never do your work or some – she just carried on. And when she did that, I actually turned away because I – I could see that it – it was not going to be good, so I just turned and continued with my order.
All right?‑‑‑And I mean, she mouthed off all the time, but I just carried on with my order."
Ms Page said that when the verbal exchange ended she turned away from Ms Gilliland and continued with her order but she said she remained apprehensive and that her legs started to shake. She said that about ten minutes later, when she finished the order she was working on, she went to report the incident to her section manager, Mr Ballantyne.
In her written complaint (Exhibit 20), Ms Page said that Ms Gilliland "drove her machine deliberately into the spill over and over while swearing at the top of her voice using the F-word over and over again, obviously wanting attract attention. She then proceeded to dismount her machine and started kicking the products around on the floor while still swearing at the top of her voice; she then picked up the products and violently started throwing the products at the racking while swearing at the top of her lungs."
Ms Page said that this behaviour caused her to look across at Ms Gilliland to see what was going on. When Ms Gilliland saw her looking, Ms Page said that she "turned her attention to me and violently started verbally abusing me and swearing at me. I felt very intimidated and threatened by her actions toward me and at this point I felt scared and alone as none of the other employees close by was willing to intervene to stop this act of violence against me". Ms Page then stated that in order to "avoid any further confrontation I turned my back on her and completed my order while feeling extremely scared not knowing what she is capable of doing".
The WorkCover communications report in the evidence as Exhibit 18 included notes of a conversation between Ms Page and Ms Collard on 16 January 2015. Ms Collard asked Ms Page to reiterate the "exact nature of the interaction" between herself and Ms Gilliland. The effect of Ms Page's response was that she looked at Ms Gilliland when Ms Gilliland became "disruptive" about the pallet she had dropped. When Ms Gilliland saw Ms Page looking at her she said "what the fuck are you looking at", to which Ms Page responded "I am looking at you". The report then indicates that Ms Gilliland said just do your fucking work "and walked off".
Ms Page had earlier provided a statement to WorkCover on 2 January 2015 in support of her application (Exhibit 16). In this document Ms Page said that she was "verbally attacked by another female employee who violently abused and threatened me". She further said that she was "extremely scared and intimidated" as the other employee "confronted me in a rage as if she was going to physically attack me". Ms Page also described the experience as "traumatic" and stated that she had been intimidated, degraded and humiliated by Ms Gilliland.
A matter in contention in the proceedings was whether, during the verbal exchange, Ms Gilliland moved toward Ms Page in a threatening manner. Having said in the first instance that Ms Gilliland "came a bit forward" and "carried on", Ms Page developed this version later in her evidence (T2-83):
"Right. And why did you feel scared?‑‑‑Because she seemed so aggressive, the way she came forward. Just her whole expression and body language ‑ ‑ ‑
And when you say expression, what do you mean by that?‑‑‑She pulled a face like – you know, like she looked so angry and – yeah. And she’s raised her voice and it was like in a screeching kind of tone. It wasn’t a – just a – a conversation.
…
Right. Okay?‑‑‑And she had products in her hand, so that also scared me, that she might just turn to – you know, and do something. So that’s when I just thought I need to just not say anything further and just carry on and move away, out of her way."
Ms Page said that she did not know what product was held by Ms Gilliland nor did she know which hand the product was held in. Her further evidence on the subject was recorded at T3-4:
"Okay. But you saw this packet in the hand – this product in the hand as some sort of threat to you?‑‑‑Because she was throwing it at the racking and she had something in her hand to throw again when she started talking to me, so that’s when I thought it could come my way, so that’s when I just turned away."
In cross-examination (T2-96), Ms Page said that Ms Gilliland moved a "few steps forward with her finger out, screeching at me". When asked what it was that Ms Gilliland was screeching, Ms Page said that Ms Gilliland said "do your fucking work, and she got all aggro when she said it."
Mr Ballantyne's evidence in the proceedings was to the effect that when Ms Page reported the incident to him she did not allege that Ms Gilliland had advanced on her. In the written note that he had made of Ms Page's complaint, Mr Ballantyne wrote that the exchange took place while Ms Gilliland "was carrying on in the aisles" and when Ms Gilliland noticed that Ms Page was looking at her. He wrote that "Dianne then said that Laura had glared at her and said, what the fuck are you looking at?" (T2-29).
It was Mr Ballantyne's evidence however that when he interviewed Ms Page on 30 December 2014 she told him that during the verbal exchange, Ms Gilliland had motioned toward her and shook her hand at her (Ms Page). Mr Ballantyne's evidence is recorded at T2-33:
"Did she tell you that Laura had made any movements at all?‑‑‑Yeah. Dianne stood up when we were having the meeting and shook her finger and showed like she was motioning towards her and said that Laura – that was Laura’s body language towards her.
Righto?‑‑‑Yeah.
So Dianne stood up?‑‑‑Stood up in the meeting, and she ‑ ‑ ‑
And what did she do? She ‑ ‑ ‑?‑‑‑Can I stand up?
Yes?‑‑‑She stood forward and she said she shook her hand like this, and that’s what she said Laura’s body language was like when she was having the altercation with her."
Ms Gilliland denied that she drove her picker back and forward into her pallet and none of the witnesses to the incident recalled this particular activity. Ms Gilliland also denied Ms Page’s allegation that she had advanced towards Ms Page shaking her hand at her and screeching. Nor was this allegation supported by other employee's in the vicinity of the incident.
Ms Gilliland's Version of Events
Ms Gilliland was assembling an order in aisle 7 when product that she was loading onto the pallet of her picking machine spilled. Some boxes of rice and noodles fell onto the floor and packets of rice and noodles spilled out of the boxes.
In her evidence at T1-15 Ms Gilliland described her reaction to the spill in the following terms:
" … I got extremely upset. I was crying. I handled the products probably a bit rougher than what I should of and would usually handle them, yeah.
Did you damage any of the products?‑‑‑I did mishandle a few of the products, kicked a couple of the empty boxes and was just rough handling the products putting them back in their boxes."
Ms Gilliland said that she verbalised her frustration by making noises or yelling out loud. She said that while she was cleaning up her spill she became aware in her peripheral vision that somebody was watching her. She turned to look and saw that it was Ms Page. Initially, she did not say anything but when Ms Page continued to look at her, Ms Gilliland yelled "what are you looking at?". She said that Ms Page responded "you acting like a clown". Ms Gilliland then replied "well, just don’t look". Ms Page replied, "look at the way you’re fucking acting". Ms Gilliland then responded "well, just don’t look and do some fucking work for a change". Ms Gilliland said the verbal exchange ended at this point and she resumed cleaning up her spill and finished packing her order.
Ms Gilliland said that Ms Page was positioned just before the yellow pedestrian crossing which is clearly visible in the foreground of Exhibit 5. She said that she estimated Ms Page to be about 26 metres away from her.
Ms Gilliland denied that she "deliberately drove the picker into the spill area over it backwards and forth". Ms Gilliland admitted that she was "extremely frustrated" at her spill, and got "extremely upset". She said she that she kicked a couple of empty boxes and "roughly put the product back into the boxes". She also said that she "quite possibly could have sort of made some noise – frustrated noises". In cross-examination she denied "swearing quite loudly, saying the work "fuck" over and over again". She did, however, agree that her behaviour was completely childish and unnecessary, and that she made some frustrated sounds quite loudly. She said that both herself and Ms Page spoke with the same volume of voice during the exchange. While Ms Gilliland said that she was yelling, she said she was not yelling at the top of her voice.
Ms Gilliland also denied verbally attacking, violently abusing, verbally threatening, physically threatening, or doing anything to indicate that she was going to physically attack Ms Page. She said that she did not move toward Ms Page nor did she raise her hand. She agreed however that the exchange was not "a pleasant exchange".
Mr Ballantyne said that when he interviewed Ms Gilliland during the course of his investigation, she said that the exchange "would have been quite loud, maybe even a yell, as she was quite far away".
Ms Gilliland agreed that she found Ms Page to be, at times, rude, abrupt, arrogant and belittling. It followed that the working relationship in general may not have been entirely amicable, at least from time to time.
Other Evidence about the Incident
The evidence of other witnesses assists in reconciling the differences in the versions of Ms Page and Ms Gilliland. Ms Page accepted that other employees were working in aisles 6 and 7 and were in the vicinity of herself and Ms Gilliland when the incident occurred. It was her evidence that these other workers would have heard what was being said and may have seen what was taking place (T2-98). Ms Page said that she recalled Mr Bocher being present but did not recall the names of other workers in the vicinity.
Mr Morris was working in aisle 7 on 23 December 2014 when the incident occurred. He was working on the same side of the aisle as Ms Gilliland but working ahead of her and was facing away from her as he worked. He said that Ms Page and Ms Gilliland were about 30 to 40 metres apart and that he was located at a point along aisle 7 which was about the same distance from both Ms Page and Ms Gilliland. The effect of his evidence was that he about 15 to 20 metres ahead of Ms Gilliland in aisle 7 and about 15 to 20 metres short of Ms Page who was in aisle 6. His position is marked on Exhibit 5.
It was his evidence that he did not see the spill occur but he heard noise associated with the spill. He said he could hear Ms Gilliland "getting frustrated with herself". His evidence at T1-37 is set out below:
"Did you see any evidence of something that might lead to that frustration?‑‑‑Well, there was – there was some boxes that kept on breaking on her as she was picking them up and putting them on the pallets ‑ ‑ ‑
Yeah?‑‑‑ ‑ ‑ ‑ and they kept on breaking and she was getting frustrated with herself and, yeah, I didn’t really see much into it and then she was getting even more frustrated. I was going to approach her, but I thought I’ll – you know, I didn’t really want to – you didn’t really want to approach her when she was like that."
…
Just tell the Commission as you saw it?‑‑‑She was just really angry – angry with herself and, like, kind of overwhelmed with herself, but, yeah, she was just – yeah, she – I mean, she wasn’t verbally or physically, you know, attacking anyone or anything, but she was just really overwhelmed with herself and really angry with herself and – yeah."
Mr Morris said that he had considered approaching Ms Gilliland but decided against it because of the state that she was in. He said he decided to wait until she calmed down. He further stated that after the spill occurred Ms Gilliland drove off on her picker in the direction of the zebra crossing. He thought Ms Gilliland had left the aisle and gone somewhere to calm down. When she returned to the aisle she commenced cleaning up the spill. The effect of his evidence was that Ms Gilliland was still agitated and that he heard her swear using the "F-word". Soon after this he heard the exchange between Ms Gilliland and Ms Page take place.
He said Ms Gilliland spoke first in a very loud tone saying to Ms Page words to the effect of "what the fuck are you looking at". He did not accept however that Ms Gilliland was exhibiting aggression when she made this comment. He then said Ms Page replied to Ms Gilliland with words to the effect "watching you acting like a clown". It was Mr Morris' evidence that this was the end of the conversation and that Ms Gilliland "just went off on her picker".
It was Mr Morris' evidence that he did not consider that Ms Gilliland either verbally or physically threatened Ms Page, nor did not observe Ms Gilliland driving back and forth over the spill with her picker.
Mr Mirecki-Jones was also working in aisle 7 at the time of the incident but he was located behind Ms Gilliland and facing toward her. He said that he was about 5 to 10 metres behind Ms Gilliland. He said while he was assembling an order he heard a noise and looked up to see that Ms Gilliland's product had spilled. He said that he saw a few boxes on the ground, heard Ms Gilliland loudly yelling out including saying the word "fuck", and he saw her throwing her arms about.
Mr Mirecki-Jones said that he heard a short verbal exchange between Ms Gilliland and Ms Page initiated by Ms Gilliland yelling "what are you looking at". After Ms Gilliland repeated the question, it was his recollection that Ms Page replied briefly but that she did not yell. He said that Ms Page and Ms Gilliland were separated by about 10 to 15 metres when the exchange occurred. It was his evidence that after the exchange Ms Gilliland drove off and came back with cleaning materials to clean the spill. He said that Ms Gilliland, when cleaning up the spill, was not as agitated as she was when the spill occurred and that she had "obviously calmed down".
Mr Mirecki-Jones did not consider that there was anything threatening or violent about the exchange, that Ms Page was not threatened either verbally or physically by Ms Gilliland, nor did he see Ms Gilliland drive back and forth through her spill.
Mr Bocher was working in aisle 6 behind Ms Page and facing toward both Ms Gilliland and Ms Page. He said that he was positioned about 30 to 35 metres from Ms Gilliland. He said in referring to Exhibit 7 that he was about 10 metres ahead of the person shown in the foreground of the photograph. If I estimate the distance from this person to the pedestrian crossing at about 5 metres, then he would have been positioned about five metres beyond the pedestrian crossing. He said that Ms Page was positioned about 10 metres in front of him.
While Mr Bocher agreed at T1-59 that the distance between Ms Gilliland and Ms Page was in the order of 30 metres to 35 metres, this evidence was inconsistent with his earlier evidence where he said at T1-56 that he was positioned about 30 metres to 35 metres from Ms Gilliland. If this evidence were correct then, given that Ms Page was 10 metres ahead of him, for his evidence to be consistent, Ms Page must have been about 25 metres from Ms Gilliland.
Mr Bocher's attention was drawn to Ms Gilliland by the sound of boxes and packets hitting the ground. In terms of Ms Gilliland's demeanour he said that while she appeared to be frustrated by the spill she was not having a tantrum and was trying to keep to herself. He said that she was "speaking to herself under her own breath" while restacking her product.
It was Mr Bocher's evidence that he observed the subsequent interaction between Ms Page and Ms Gilliland. He said that Ms Page stopped work and looked at Ms Gilliland when the incident occurred. In response, Ms Gilliland said "what are you looking at" which led to Ms Page saying "you acting like a fucking clown". The exchange ended with Ms Gilliland saying words to the effect "don’t worry about it, get back to your job". Mr Bocher said that was the end of the exchange and that both women then "got back to what they were doing".
It was Mr Bocher's evidence that the exchange was neither violent nor vicious. He said that Ms Gilliland did not threaten Ms Page either verbally or physically. He also said that Ms Gilliland did not drive her picker back and forth over the spill.
It was the effect of Mr Ballantyne's evidence that when Ms Page reported the incident to him she told him that while Ms Gilliland was cleaning up her spill she noticed Ms Page looking at her. This appeared to provoke an exchange of words between the two in which Ms Gilliland said words to the effect of "what are you fucking staring at" and Ms Page had responded "you acting like a clown". On what Mr Ballantyne was told that was the end of the incident, but as Ms Page did not feel good about the matter she came to report the incident to him.
Mr Ballantyne had made a contemporaneous record of what he had been told by Ms Page. He referred to this record when giving his evidence which included the following description of the incident (T2-29):
" … Dianne said that while she was picking near the damaged specials department that was in aisle 6, Laura came back to the aisle. Dianne said that Laura was not happy and was upset cleaning up the spill that occurred. While cleaning up the spill Dianne described Laura’s behaviour as unacceptable, taking out her obvious anger on the stock and equipment. Dianne then said that while Laura was carrying on in the aisles, Laura had noticed that Dianne was looking at her. Dianne then said that Laura had glared at her and said, what the fuck are you looking at? Dianne said that she said back to Laura, I’m looking at you carrying on like an effing clown. Laura then apparently said, well, why don’t you do some effing work. When Dianne finished describing the incident that she was adamant that Laura be dealt with, I mentioned to Dianne that I had noticed that Laura was not in a good mood that day when arriving at work. Dianne was concerned that Laura might confront her during the rest of the shift. I assured Dianne that the incident would be dealt with through the correct channels."
Ms Collard, the WorkCover claims officer handling Ms Page's application, spoke to Ms Page on 16 January 2015. Ms Page said that Ms Gilliland approached her and said "what the fuck are you looking at". When Ms Page responded with "I'm looking at you", Ms Gilliland said "just do your fucking work". Ms Page told Ms Collard that Ms Gilliland then walked off.
Ms Collard also said that when she spoke to Dr Rupnarain on 16 January 2015 he informed her that the major significant factor causing Ms Page's psychological injury was the "violent outburst" emanating from Ms Gilliland. He also said that Ms Page's ongoing incapacity for work resulted from her "fearfulness of the workplace".
On 22 January 2015 Ms Collard informed Ms Page that her claim had been accepted and asked her to get a return to work clearance. Ms Page subsequently secured the clearance from Dr Rupnarain on 27 January 2015 when she was issued with a workers' compensation medical certificate (Exhibit 17) stating that she was fit to return to work on normal duties from 1 January 2015.
After the Incident
It was Mr Ballantyne's evidence that Ms Page reported the incident to him shortly after it had happened. He said that Ms Page looked "a bit flustered" or a "little bit shaken" on presentation but had "calmed down a little bit" during the discussion. Mr Ballantyne said that Ms Page was not happy with some things that Ms Gilliland had said to her and she wanted him to deal with the situation. Ms Page's evidence was consistent with this. She said that she explained to Mr Ballantyne that she was unhappy with what had happened and that "something like that should not happen in the workplace".
Mr Ballantyne said that at the end of the discussion he asked Ms Page if she was okay to continue working and asked her if there was anything further that he could do for her. It was his view that Ms Page "seemed to be satisfied with how the meeting had ended" and with the assurances that he had given.
Ms Brunton said that she was in the office when Ms Page entered and asked to speak to Mr Ballantyne. She did not participate in the discussion that took place, but when it ended, Mr Ballantyne asked her to send Ms Gilliland home. Mr Ballantyne confirmed that after meeting with Ms Page he had discussed the incident with Ms Brunton and that they decided to send Ms Gilliland home for the rest of the shift and to discuss the incident with her when she next returned to work.
The effect of Ms Page's evidence was that while she continued to work through to the completion of her shift at 11am she was upset by the incident and as soon as she left work and got into her car she "broke down and cried". When she arrived home she was very upset and broke down and cried again. This led her husband to contact Mr Ballantyne to find out what was going on, and to make an appointment for Ms Page to see her general practitioner, Dr Rupnarain.
In the conversation between Ms Page's husband and Mr Ballantyne, Mr Ballantyne requested that Ms Page prepared a written account of the incident and forward it to him. In response Ms Page emailed Mr Ballantyne with an "official complaint" against Ms Gilliland later that day (23 December 2014). The complaint is in the evidence as Exhibit 20. Ms Page also attached a copy of the workers' compensation medical certificate that had been issued by Dr Rupnarain.
Mr Ballantyne subsequently met with Ms Page on 30 November 2014 as part of his investigation into the incident. He referred to his record of the conversation when giving his evidence in the proceedings. The record included reference to Ms Page saying that she saw Ms Gilliland "repeatedly running over the spillage and reversing back and driving forward again, swearing loudly".
Mr Ballantyne again met with Ms Page on 14 January 2015 for the purpose of informing her of the result of his investigation. He told her that he had found that both her and Ms Gilliland were at fault in the incident and that both women would receive a warning for unacceptable behaviour. Ms Page subsequently appealed the warning and while some elements of the warning were changed, the warning stood in terms of "unacceptable personal behaviour with regards to the use of language in the workplace".
Mr Ballantyne said that in forming his conclusions he had to reconcile a "lot of conflicting advice regarding who swore first and who swore". In the end result he concluded that "it was probably likely that both of them swore at each other".
Distance
There was no unanimous view about how far Ms Page was from Ms Gilliland when the spill occurred and the verbal exchange took place. As with the dispute over whether Ms Gilliland advanced toward Ms Page, this evidence was relevant to any assessment of the physical threat posed to Ms Page by Ms Gilliland. If Ms Gilliland and Ms Page were always separated by a considerable distance, then the prospect that Ms Page had a realistic expectation that Ms Gilliland might inflict physical harm on her becomes less likely.
Ms Gilliland estimated that she was 26 metres from Ms Page when the exchange took place however the appellant said in submissions that, relying on the evidence of Mr Monk, Ms Gilliland had underestimated the distance and that it was, in fact, in the order of 45 metres. Ms Page put the distance at approximately 12 metres. Mr Mirecki-Jones said that he thought that the distance was about 10 to 15 metres, while Mr Morris estimated that the two women were about 30 to 40 metres apart. I have interpreted Mr Bocher's evidence to mean that Ms Page was about 25 metres from Ms Gilliland.
Mr Ballantyne said that when he interviewed Ms Page on 30 December 2014 she had said that when the exchange occurred she was halfway down aisle 6 and that Ms Gilliland was about a quarter of the way down aisle 7. The effect of this evidence was that the women were separated by about one quarter of the length of an aisle. No evidence was adduced however revealing the length of aisles 6 and 7.
Mr Monk had used a measuring wheel to measure the distance between Ms Gilliland and Ms Page in accordance with Ms Gilliland's version of events. This version had Ms Page situated just before the yellow pedestrian crossing. Mr Monk measured this distance at 45 metres. Mr Monk also measured the width of a pallet at 1.2 metres and the width of a bay (holding two pallets) at 2.8 metres.
I have decided to reconcile the differences in the evidence by preferring the evidence of Mr Bocher. Of the three co-workers who witnessed the incident, he was situated the closest to Ms Page; he was picking in the same aisle as Ms Page; and he was only ten metres behind Ms Page in aisle 6. He was also positioned behind Ms Page in the aisle and Ms Page would have consistently remained within his line of vision. Mr Bocher also had the advantage of demarking his position by reference to the yellow pedestrian crossing, which may have enhanced his recollection.
On Mr Monk's evidence Ms Gilliland was about 40 metres from the yellow crossing. On Mr Bocher's evidence, Ms Page was about 15 metres forward of the crossing. Therefore, in my view, Ms Page was about 25 metres from Ms Gilliland at the relevant time.
The resolution of this issue is relevant to the accuracy of history relied on by WorkCover and Dr Rupnarain and is also relevant to an evaluation of Ms Page's evidence that she was fearful for her welfare. Ms Collard said that Ms Page told her on 22 January 2015 that she and Ms Gilliland were "only a few metres apart, across the aisle from each other". Dr Ruprarain understood that the women were in close proximity to each other when the exchange occurred and he agreed that this was an important consideration in the forming of his diagnosis. My finding on distance diminishes the prospect that Ms Page was at risk of physical harm during her verbal altercation with Ms Gilliland.
Motivation
The essence of the appellant's argument was that the incident was minor and could not have caused a psychological injury, and that Ms Page's response to the incident was not driven by psychological distress but from opportunism in circumstances where she wanted to secure time off over the Christmas-New Year period and had already unsuccessfully applied for this leave from her employer. In this regard it was Ms Brunton's evidence that Ms Page had unsuccessfully pleaded with Mr Monk to grant her time off work between Christmas and New Year in circumstances where Ms Page was rostered to work on 24, 26, 29, 30 December 2014.
Mr Monk said that Ms Page's initial application for annual leave from 5 January 2015 and 18 January 2015 was approved by him on 27 November 2014. Soon after the date of approval, Ms Page sought to change the period of the leave and Mr Monk acceded to this request. As a result Ms Page was scheduled to take leave from 1 January 2015 to 13 January 2015. Subsequently on 17 December 2014, as intimated by Ms Brunton, Ms Page asked Mr Monk to bring the start of her leave forward by a week. Mr Monk however declined to approve this change.
The appellant also drew attention to Ms Pages leave practices around the Easter period in 2015. It was Mr Baynton's evidence that in the first instance Ms Page had applied for and was granted leave from 11 April to 19 April 2015. However, subsequent to the approval of the leave Ms Page asked Mr Baynton for additional leave in the week prior to 11 April 2015. Mr Baynton refused the request because the maximum number of employees had already been granted leave for the period and he had already refused requests for leave for that period from other employees.
It was in these circumstances that Ms Page attended on Dr Rupnarain on 30 March 2015 complaining that she suffered from workplace stress, that previous issues persist, and that she felt bullied and harassed. It was agreed that Ms Page should have some time off work and she was given three medical certificates authorising time off. One certificate authorised an absence on 30 March 2015, a second authorised an absence from 30 March 2015 to 11 April 2015, and the third authorised an absence from 30 March 2015 to 10 April 2015. Despite her attendance on Dr Rupnarain, there was no evidence that Ms Page had complained about bullying to her employer and in any event she presented for work at the normal time the following morning and continued to work normally until 8 April 2015. On 9 April 2015, Ms Page worked for about two hours but then left work on account of illness. She was also off work sick on 10 April 2015, but the next day she boarded a flight for Fiji where she enjoyed a week's holiday.
It was the appellant's evidence that Ms Page had been counselled about the need to accept that it would not always be possible for her to take leave at her preferred times over the Easter and Christmas period. Ms Johnson said in her evidence that during a performance appraisal in July 2014 she expressed a concern about Ms Page's lack of teamwork in consistently requesting time off over Easter and Christmas, putting her own interests ahead of others. Ms Johnson had detailed the incidence of annual leave and sick leave taken by Ms Page over the Christmas period in 2010, 2011, 2012 and 2013 in an email to Mr Ballantyne dated 28 December 2014 (Exhibit 12).
In his evidence Mr Ballantyne expressed concern about Ms Page's practice of taking sick leave on days contiguous with the Christmas and Easter holidays. His evidence on the subject was recorded at T2-46:
" … It is our concern that come Christmas, come Easter, she seems to take a lot of sick leave, even if she hasn’t got the entitlement. And that was our other concern with her, that we said, well, look, you know, you’ve taken the sick leave. I’m not questioning the fact that you haven’t got a valid medical certificate for that, but we are concerned that this pattern is developing and that you need to be aware of that. So we have raised that issue with her."
Medical Evidence
Ms Page had been a patient of Dr Rupnarain since March 2010. Ms Page said that when she attended on Dr Rupnarain on the afternoon of 23 December 2014, she was feeling very stressed. It was her evidence (T3-19) that she told Dr Rupnarain about the incident at work and described the exchange that took place between herself and Ms Gilliland. She told Dr Rupnarain that Ms Gilliland was working opposite her. Ms Page agreed that she told Dr Rupnarain that the incident caused her to feel fearful and threatened, and that she asked the doctor to give her some time off work.
It was Dr Rupnarain's evidence that Ms Page told him that she had a verbal altercation with a co-worker earlier that day. He formed the opinion that the incident had left Ms Page feeling threated and fearful. He said that from the general way that Ms Page described the incident "it was like an intimidating situation". He entered a diagnosis of "work place stress" and prepared a workers compensation medical certificate. After the consultation Ms Page completed her formal complaint and emailed the complaint together with a copy of the medical certificate to Mr Ballantyne.
The certificate which is in the evidence as Exhibit 15 recorded a workers stated cause of injury of "verbal altercation with work colleague". The certificate stated that Ms Page had "no capability for any type of work" from 23 December 2014 to 31 December 2014 and indicated that the worker will be reviewed again on 31 December 2014. As it transpired however Ms Page did not attend on Dr Rupnarain on 31 December 2014 and by the time of her next attendance on 27 January 2015 she had already returned to work on 15 January 2015.
Ms Page visited Dr Rupnarain on 27 January 2015 after WorkCover had asked her on 22 January 2015 to secure a clearance to return to work. Dr Rupnarain had earlier informed Ms Collard on 20 January 2015 that he would be prepared to give Ms Page a clearance to return to work. Consistent with this Dr Rupnarain prepared a workers compensation medical certificate on 27 January 2015 (Exhibit 17) which stated that Ms Page was able to return to normal duties with effect from 1 January 2015.
Despite only seeing Ms Page on the one occasion (23 December 2013), Dr Rupnarain changed his diagnosis from "stress" to "acute anxiety episode" during a telephone discussion on 20 January 2015 when Ms Collard asked Dr Rupnarain whether he had entered a DSM IV diagnosis. In response, Ms Collard was informed that the "official diagnosis" was an acute anxiety episode. Why Dr Rupnarain thought it necessary to change his diagnosis, and what was the basis for the change of diagnosis, were questions that were not adequately answered in the evidence. As it was, Ms Page had already resumed work by this time and Dr Rupnarain subsequently issued a certificate saying that Ms Page was fit to resume normal duties on 1 January 2015.
It was Dr Rupnarain's evidence that the distinct impression that he had got from the history given to him was that the incident involved a violent outburst by the co-worker. He also agreed the history provided to him by Ms Page indicated that the two women were in close proximity (T2-56):
"Did she give you any indication that the co-worker was in close proximity to her?‑‑‑Okay. That was implied because the – there was a conversation occurred so she could – she said she could hear her, and she felt that the co-worker was looking in her direction. So I suppose it was a close proximity. Yeah."
Dr Rupnarain accepted that these two factors were important considerations in the formation of his diagnosis. His evidence about the nature of the exchange was recorded at T2-65:
"All right. And so a violent outburst was a crucial factor – your understanding – whether the words were used by Ms Page or not, your understanding that there was a violent outburst was crucial to the formation of your diagnosis of an acute anxiety episode?‑‑‑That’s correct."
While his evidence about proximity was recorded at T2-58:
"Okay. All right. And in forming your diagnosis ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ of stress and subsequently acute anxiety episode ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ it was crucial to that diagnosis that you regarded Mrs Page and the co-worker as being in relatively close proximity to each other. Is that right?‑‑‑That’s correct."
Whatever the discussion after the event about what actually transpired at work, it was Dr Rupnarain's view that there was "a definite incident there at work which she felt very, very aggrieved at and she felt the symptoms of anxiety following the incident".
Reasoning
Two alternative and competing factual scenarios were advanced in the proceedings. The scenario advanced by the respondent is that the workplace incident cannot be characterised as innocuous, that Ms Page was clearly affected by the incident, and that she reported the incident and sought medical assistance immediately after the event. A diagnosis of workplace stress and a conclusion that Ms Page was incapacitated for work for a period of time after the incident were outcomes that were clearly consistent with the underlying facts and circumstances. The medical evidence established that Ms Page had sustained a personal injury while the evidence generally demonstrated the necessary association between the injury and the employment.
The appellant however relied on the following considerations to support a conclusion that Ms Page had not sustained a compensable injury:
(i) That the version of events laid out by Ms Page should not be believed;
(ii) That the diagnosis entered by Dr Rupnarain was based on an incorrect history;
(iii) That the incident at work, on the facts, could not have caused an injury;
(iv) If Dr Rupnarain did diagnose an injury, such an injury could not be work-related;
(v) That Ms Page used the incident at work to support a claim for sick leave or workers compensation leave and secure time off over the Christmas-New Year period;
(vi) That Ms Page's practice in making a claim for leave was consistent with her behaviour over time which demonstrated a pattern of taking sick leave when annual leave applications had been rejected.
The factual findings do not support Ms Page's claim that she was the victim of violence, aggression and intimidation in the workplace. Neither the evidence about her verbal altercation with Ms Gilliland, nor the related evidence, support Ms Page's account of what transpired. While Ms Page looked a little shaken when she reported the incident, Mr Ballantyne said that she seemed satisfied with the outcome of the meeting and Ms Page did not appear to have any difficulty in resuming work and completing her shift. While Ms Page had said that she was not happy with Ms Gilliland's conduct and she wanted something done about it, her presentation did not reflect a traumatic experience in which she had been intimidated, degraded and humiliated (WorkCover application and Exhibit 16). Neither, on Mr Ballantyne's evidence, did Ms Page complain that Ms Gilliland had acted in a violent, threatening, or intimidating manner toward her. Despite this evidence however, Ms Page determined to rationalise the incident and her own circumstances very differently later in the day when she attended on Dr Rupnarain, and subsequently completed her written complaint.
In challenging Ms Page's version of events the appellant pointed to a number of inconsistencies in her evidence which support a finding of credit adverse to her. Firstly, the appellant submitted that Ms Page's evidence that Ms Gilliland advanced toward her in a threatening manner was to be rejected. It was pointed out that this allegation did not emerge until the interview on 30 December 2014 and was not consistently reported by Ms Page.
On my review of the evidence I accept the appellant's position that Ms Gilliland did not approach toward Ms Page in a threatening manner. In the first instance the witnesses to the incident were consistent in saying that when the verbal exchange ended both Ms Page and Ms Gilliland resumed work. Secondly, while Mr Ballantyne's record of the conversation between him and Ms Page immediately after the incident stated that Ms Page was concerned that Ms Gilliland "might confront her during the rest of the shift", there was no indication in the record that Ms Gilliland had during the incident moved toward Ms Page with an apparent intent to inflict harm. Thirdly, Ms Page did not specifically allege this in her formal complaint dated 23 December 2014. Fourthly, while Ms Page introduced the possibility in the interview on 30 December 2014, on Mr Ballantyne's account, she only said that Ms Gilliland shook her hand or finger at Ms Page and motioned toward her. Fifthly, the allegation was not canvassed in communications with WorkCover and an entry in the WorkCover communications report on 16 January 2015 suggested something to the contrary. This entry records Ms Page as saying that after Ms Gilliland told her to get on with her work, Ms Gilliland then walked off. Finally, Ms Page's evidence in the proceedings in relying on statements such as "she came a bit forward" and "she took a few steps", appears tentative and weak. In a context where Ms Gilliland was about 25 metres away at the time and none of the co-workers who witnessed the event supported the proposition, I do not accept this part of Ms Page's evidence.
Secondly, the appellant rejected Ms Page's characterisation of the incident in propositions such as that she was violently, verbally abused; that she was intimidated and threatened; and that she was scared and alone as no one was willing to intervene to stop "this act of violence". I accept that this characterisation is not supported by the evidence and that it amounts to an exaggerated and distorted view of what actually took place. Ms Page's version of events is inconsistent with Mr Ballantyne's evidence about what he was told by Ms Page immediately after the incident, and the evidence of co-workers who either saw or heard the incident unfold.
Thirdly, the appellant took issue with Ms Page's evidence in chief in which she testified that she had broken down and cried when she got in her car after finishing work on 23 December 2014. I am inclined to the view that had such an event occurred, Ms Page would have been expected to inform at least Dr Rupnarain and WorkCover of the event. On the evidence, neither her employer nor Dr Rupnarain or WorkCover were informed. Further, the proposition is not consistent with Ms Page's demeanour at work after the incident. In the circumstances I do not propose to attach any significant weight to this part of Ms Page's evidence in determining the appeal.
Fourthly, the appellant contested Ms Page's version of events about the distance separating herself and Ms Gilliland when the verbal exchange occurred. Ms Page told WorkCover on 22 January 2015 that her and Ms Gilliland were only a few metres apart and across the aisle from each other. Ms Page informed Dr Rupnarain that she and Ms Gilliland were in close proximity. In her evidence in chief Ms Page said that the distance between her and Ms Gilliland was 10 to 12 metres. The estimates provided by Ms Gilliland and co-workers in the vicinity all exceeded this distance. My earlier finding on the matter established that the women were about 25 metres apart at the relevant time.
In the circumstances it is reasonably clear that Ms Page has preferred to underestimate the distance for the purpose of emphasising or exaggerating the impact of Ms Gilliland's behaviour on her. The distance between the two women did not prevent or impair Ms Page's sighting of the incident nor did it impair the communication between the two women. Clearly they both heard and understood each other. But the distance does diminish the weight that might otherwise be given to Ms Page's evidence about the nature of the incident and its alleged impact on her.
In general terms I prefer Mr Ballantyne's contemporaneous record of what transpired as best resembling the true state of affairs. While I acknowledge that, in preparing the record of conversation, Mr Ballantyne may have tended to paraphrase Ms Page's version in objective or neutral language, it seems to me that this account (set out below), most accurately reflects all the evidence in the proceedings:
"Dianne said that Laura was not happy and was upset cleaning up the spill that occurred. While cleaning up the spill Dianne described Laura’s behaviour as unacceptable, taking out her obvious anger on the stock and equipment. Dianne then said that while Laura was carrying on in the aisles, Laura had noticed that Dianne was looking at her. Dianne then said that Laura had glared at her and said, what the fuck are you looking at? Dianne said that she said back to Laura, I’m looking at you carrying on like an effing clown. Laura then apparently said, well, why don’t you do some effing work. When Dianne finished describing the incident that she was adamant that Laura be dealt with … ".
This record captures the key facts. It notes that Ms Page considered Ms Gilliland's behaviour while cleaning up the spill to be unacceptable, which I accept that it was. It correctly records that the unacceptable behaviour involved Ms Gilliland taking out her obvious anger on stock and equipment. Significantly the record does not attribute to Ms Page an assertion that Ms Gilliland's anger was directed at her and that Ms Gilliland was targeting Ms Page in a violent and aggressive manner. It further records Ms Page as stating that when Ms Gilliland saw Ms Page looking at her, Ms Gilliland glared at Ms Page and said "what the fuck are you looking at". It recorded therefore that Ms Gilliland's first reaction to Ms Page was to glare at her, following which the verbal exchange ensued. This description does not include any intervening physical behaviour on Ms Gilliland's part which was overtly aggressive or threatening. Finally, the note records Ms Page's request that Ms Gilliland be dealt with, presumably asking that disciplinary action be taken against her which reflects that this was the desired outcome.
In terms of Ms Gilliland's behaviour I accept that Ms Gilliland's reaction to the spill was dramatic and aggressive. She yelled, she swore, she threw her hands about, and she kicked spilled product around. On the evidence, the co-workers in the vicinity other than Ms Page understood that the prudent course was to ignore Ms Gilliland, not to engage with her. There was no suggestion from them that there was any threat of physical harm, but that it was best to leave Ms Gilliland alone to resolve the problem that she had created. Up to this point there could be no suggestion that Ms Gilliland's behaviour had any implication for Ms Page.
In my view, in presenting her version of events in her formal complaint, Ms Page has both exaggerated and conflated the facts associated with Ms Gilliland's reaction to the spill and the verbal exchange. While Ms Gilliland was undoubtedly angry at herself for causing the spill, her anger was not directed at Ms Page and she only engaged with Ms Page when she noticed that she had stopped work and was her looking at her. It is likely given the brevity of the verbal exchange that activities associated with the tantrum would have been put on hold when the exchange took place. The reason Ms Page was motivated to exaggerate and conflate the facts when she wrote her formal complaint was because the verbal exchange in itself was unremarkable. It was a short, sharp, unpleasant exchange between two co-workers. Without some further dimension, it appears improbable that Ms Page could validly claim to feel threatened or intimidated or fearful as a result of an exchange in which she gave as good as she got and which ended with both women resuming their own work activities.
In my consideration of the medical evidence I follow the approach enunciated by President Hall in Groos v WorkCover[1] where it was stated that:
[1] Thorsten Groos AND WorkCover Queensland (No. C43 of 2000) 21 December 2000.
"The question whether an applicant for compensation has suffered an 'injury' within the meaning of the Workers’ Compensation Act 1990 is a question of mixed fact and law on which medical evidence is often helpful, but necessarily not decisive."
[100]In this matter the medical evidence is to be viewed within a prism wherein the diagnosis entered by Dr Rupnarain that Ms Page had suffered an injury in the form of workplace stress was based on an incorrect history and that while other factors may have been taken into account by Dr Rupnarain in making his diagnosis, the history provided to him by Ms Page about the incident was the most important consideration. Contrary to what Dr Rupnarain was told, the evidence in the proceedings does not support a balance of probabilities finding that Ms Page had been threatened or intimidated by Ms Gilliland. On the facts, the activities said to have caused Ms Page to feel intimidated and threatened did not occur. Ms Page had nothing to fear.
[101]On a common sense view of the matter, the exchange between Ms Page and Ms Gilliland could not be characterised as a violent outburst by Ms Gilliland. Both women contributed to the exchange and Ms Page's riposte of "looking at you acting like a fucking clown" falls on no lesser a scale of disrespect, insensitivity or offensiveness, than the invitation issued by Ms Gilliland for Ms Page to "do some fucking work".
[102]While I am of the view that the most significant consideration in the diagnosis of Dr Rupnarain was the account that Ms Page gave of the incident at work, I accept that the diagnosis of an injury would not rely solely on the history provided by the patient. It would also rely on the doctor's assessment of the patient's presenting condition, the results of any clinical examination or test, and a review of the complete patient record. These other considerations however were not explored in any detail during the evidence. The only particular reference to demeanour or presenting condition was provided in Ms Collard's notes of her discussion with Dr Rupnarain on 16 January 2015 where it was recorded that Dr Rupnarain said that Ms Page was "teary as she recollected the event". Statements such as that Ms Page was "fearful of the workplace" and that "she really felt threatened" by the incident in my view derive directly from the history given by Ms Page and are not descriptors of her presenting condition.
[103]No other elements arose from the consultation that would contribute to a conclusion that Ms Page had been the subject of a violent event which caused her to fear for her safety. No medications were prescribed and there was no evidence of any discussion about a mental health care plan or a referral for counselling. Further, Ms Page's condition did not require any further attendance on Dr Rupnarain before she resumed work. Finally Dr Rupnarain defined the extent of Ms Page's incapacity by certifying Ms Page fit to return to work on 1 January 2015.
[104]While invited to change his opinion based on a different history, Dr Rupnarain continued to defend the diagnosis he had entered on 23 December 2014. He said at T2-57 that if a "co-worker directs profanity at you in an unprovoked situation", he would take the co-workers' utterance to amount to a violent outburst. He said at T2-62 that whatever the nature of the exchange, Ms Page has reacted and presented to him feeling threatened. Finally at T2-63 when it was suggested to him that the facts do not support the occurrence of a violent outburst, he said that nevertheless the incident had caused Ms Page to feel threatened and fearful and that her reporting of these symptoms was sufficient to support his diagnosis. The difficulty with this evidence is that ultimately it avoids answering the question and the veracity of his responses remains conditional on the accuracy of the history given to him by Ms Page.
[105]To the extent however that this evidence supports a diagnosis of injury, it does not support a conclusion that the injury was sustained at work in the circumstances explained by Ms Page. In this respect Dr Rupnarain's evidence was fundamentally inconsistent. Having accepted that the existence of a violent and threatening event and the close proximity of the protagonists were crucial to his diagnosis, it was not open to Dr Rupnarain to decline to modify his diagnosis based on a history consistent with the facts.
[106]I acknowledge that when Dr Rupnarain assessed Ms Page he had no other history to rely on other than the history given to him by his patient. Both the diagnosis entered and the workers compensation medical certificate issued inevitably reflect the history provided. Further Dr Rupnarain is entitled to enter whatever diagnosis he considers appropriate having regard to circumstances relevant to the patient's presentation. But in entering a diagnosis of stress in these circumstances Dr Rupnarain does not necessarily satisfy the test of association set out in s 32(1) of the Act.
Conclusion
The evidence supports a finding that Ms Page has provided an exaggerated and distorted version of the events associated with the incident at work on 23 December 2014. The only time that Ms Gilliland showed an interest in Ms Page was when she noticed Ms Page looking at her. This awareness led to a very short exchange between the two women following which both resumed normal work activities. There was nothing in the verbal exchange that could support Ms Page's characterisation of the incident. It followed that the version of events that she provided to her employer in her formal complaint, to Dr Rupnarain and to WorkCover was not correct.
[108]This conclusion means that the factual basis for Ms Page's application for compensation is seriously eroded. It further means that Dr Rupnarain's diagnosis cannot be relied on to support the claim that Ms Page has suffered a work related injury.
[109]A conclusion that Ms Page has not sustained a work-related injury is also supported by the evidence establishing a willingness to take sick leave when applications for annual leave were declined. Opportunistic behaviour emerges as the most likely explanation for the dramatic variation in Ms Page's version of events upon attendance on Dr Rupnarain and in the expression of her formal complaint which was submitted with a medical certificate authorising an absence from work over the Christmas to New Year period.
[110]This is not a case where the possibility of opportunistic behaviour would be viewed as entirely inconsistent with Ms Page's employment history. She had been warned about taking sick leave contiguous with a period of annual leave after her application for leave for the same period had been refused. Further, despite the contest over her application for compensation arising from the 23 December 2014 incident, Ms Page was not deterred from attending on Dr Rupnarain and securing certificates giving her time off on account of sickness in the week or so leading up to her scheduled leave commencing on 11 April 2015. Again in circumstances where her application for annual leave in the week prior to 11 April 2015 had been declined. In my view the pattern of behaviour disclosed supports a finding that Ms Page was capable of manipulating the circumstances associated with the 23 December 2014 incident to secure time off over a period which she wanted to take off but had failed to get employer approval.
[111]The evidence supports a balance of probabilities finding that Ms Page did not suffer an injury pursuant to s 32(1) of the Act. Her application for compensation is therefore not one for acceptance.
[112]The appeal is allowed and the decision of the regulator dated 15 May 2015 is set aside and replaced by a decision rejecting the application for compensation made by Ms Page on 29 December 2015.
[113]I order accordingly.
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