Appleton v Workers Compensation Regulator
[2018] QIRC 104
•6 August 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Appleton v Workers Compensation Regulator [2018] QIRC 104 |
PARTIES: | Appleton, Stefan v Workers' Compensation Regulator |
CASE NO: | WC/2017/203 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 6 August 2018 |
HEARING DATES: | 26 April 2018 |
MEMBER: HEARD AT: | Vice President Linnane Caloundra |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the Workers' Compensation Regulator dated 26 September 2017 is confirmed. 3. The Appellant is to pay the Workers' Compensation Regulator's costs of, and incidental to, this appeal by 3 September 2018. |
| CATCHWORDS: | WORKERS' COMPENSATION LAW - APPEAL - whether worker suffered a personal injury - whether injury arose out of or in the course of employment - whether employment was a significant contributing factor to the injury - whether the actions taken by the employer involved reasonable management action taken in a reasonable way. |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Mr S. Appleton, the Appellant in person. |
Reasons for Decision
This is an appeal by Stefan Appleton (Appellant) against a decision of the Workers' Compensation Regulator (Regulator) dated 26 September 2017 to reject the Appellant's application for workers' compensation in accordance with s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Act).
The Appellant was, at the relevant time, employed as a driver by ComLink Limited (ComLink). The Appellant lodged an application for workers' compensation with WorkCover Queensland (WorkCover) on 9 November 2016 reporting that he had sustained workload anxiety and panic attacks while driving the work car in Maroochydore due to "working over hours, in home life hours, and in working day hours, panic attacks (and) anxiety from hours in work and outside". WorkCover issued a decision dated 16 December 2016 in which it found that the actions taken by the ComLink were "sound, based on reason, and were not arbitrary, nor involved any direct unfairness against" the Appellant. WorkCover decided that the management action was reasonable and undertaken in a reasonable way and therefore rejected the Appellant's application for compensation relying upon s 32(5) of the Act.
The Appellant sought review of that WorkCover decision to the Regulator. The Regulator in a decision dated 26 September 2017 confirmed the decision of WorkCover. The Appellant filed an Appeal Notice in the Industrial Registry on 26 October 2017 against that decision of the Regulator.
Legal Framework
The appeal relates to s 32 of the Act and in particular to subsection (5). Section 32(1) and (5) of the Act provide:
"(1) An injury is personal injury arising out of, or in the course of, employment if -
(a)for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
(b)for a psychiatric or psychological disorder - the employment is the major 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 Regulator or an insurer in connection with the worker's application for compensation."
Onus of Proof
The hearing of the appeal was conducted as a hearing de novo. The Appellant bears the onus of proving, on the balance of probabilities, that:
· he suffered a personal injury;
· the injury suffered arose out of, or in the course of, his employment;
· the Appellant's employment was a significant contributing factor to the injury; and
· his claim for compensation is not excluded by the provisions of s 32(5) of the Act in that his psychiatric or psychological disorder did not arise out of, or in the course of, reasonable management action taken in a reasonable way by ComLink in connection with the Appellant's employment.
Whilst the onus is to be discharged on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist.
Evidence
The Appellant relied upon the evidence of the following witnesses in this appeal:
·the Appellant himself;
·Dr Mark Veltmeyer, General Medical Practitioner; and
·Mr Francis Sibraa, Psychologist.
The Respondent relied upon the evidence of the following witnesses:
· Ms Tammie Guy, the then ComLink Human Resources Manager;
· Ms Robyn Elkojje, the then ComLink Regional Manager; and
· Ms Shelley Rooney, the ComLink Transport Supervisor.
Background
ComLink is a not-for-profit, community services organisation which is largely volunteer based. The organisation services the residents of Queensland. It is a registered charity which provides services to the aged and disadvantaged members of the community. The services it provides include transport, domestic assistance, home care packages and social support. ComLink's funding is provided by:
· the Commonwealth Home and Community Care Program within the Department of Social Services; and
· the Department of Communities which provides funding to support older people to stay at home and be more independent in the community.
ComLink provides these services to residents in Queensland communities, including Ipswich, North Brisbane, Sunshine Coast, Bundaberg, Townsville and Cairns.
In the preparation of this appeal for hearing I conducted a coupe of Mentions of the matter given that the Appellant was representing himself at the hearing. I strongly advised the Appellant to seek third party disclosure of documents from ComLink as he appeared to have little documentation. In the course of the hearing the Appellant agreed that he did not do this and therefore he had little documentary evidence to produce at the hearing. Further, I also suggested to the Appellant that he should prepare a dot point summary of the stressors and the evidence he needed to adduce at the hearing to take into the witness box. Once again the Appellant had not prepared such a list and was thus not prepared to deal with some of the stressors identified in his Statement of Facts and Contentions.
Prior to being offered employment as a driver and commencing work at ComLink on 17 March 2014, the Appellant provided the organisation with a resume of his previous work activities (Exhibit 5). This resume revealed that the Appellant had, for the two years prior to commencing employment with ComLink, only worked for five hours a week on a Saturday for Think Pharmacy. Thus, in March 2014, the Appellant went from working a ten hour fortnight to working an eighty hour fortnight. The Appellant's work duties at ComLink would thus have impacted upon the time he was able to spend with his son and the time he could devote to his "elite sports" training and competing.
When the Appellant commenced work with ComLink, the organisation was transitioning from an organisation called HACC Caloundra into a company called ComLink Limited. Prior to the employment of the Appellant (and five other full-time drivers), all the drivers for ComLink and/or its predecessor were volunteers. ComLink, at about this time, also expanded its operations from a Sunshine Coast operation to one servicing the areas listed in paragraph [8].
With the expansion of ComLink from a Sunshine Coast operation to one covering the areas identified in paragraph [8], ComLink sought to negotiate an enterprise agreement with its employees. The result was the ComLink Limited Enterprise Agreement 2015. That enterprise agreement had a commencement date of 1 July 2015. Following the certification of that agreement, ComLink provided the Appellant with a Letter of Engagement - Client Driver dated 1 July 2015 (Exhibit 7).
That Letter of Engagement was based on the ComLink Limited Enterprise Agreement 2015 and outlined the Appellant's terms and conditions of employment with ComLink as and from 1 July 2015. The Letter of Engagement provided that the Appellant's hours of work would be 40 hours per week with an average of 80 hours per fortnight. An Additional Day Off (ADO) per month was provided for in the Letter of Engagement. It is clear that the Appellant availed himself of the ADO each month therefore his hours per day over a four week period would have been 8 hours 42 minutes per day. This Letter of Engagement also provided that the Appellant may be required to work additional reasonable hours that are necessary to meet the business needs of ComLink. Any additional hours exceeding 5 hours per fortnight were to be paid at the applicable overtime penalty rate or a time off in lieu arrangement could be negotiated. There was no evidence of the Appellant claiming any overtime during the period 1 July 2015 to 7 October 2016 or that any time off in lieu arrangement was negotiated with the Appellant. The Appellant's remuneration was listed at $46,000.00 per annum. This placed the Appellant in the Level 3 PPT1 classification structure within the ComLink Limited Enterprise Agreement 2015. As a Level 3 Driver the Appellant's duties included the duties of a Level 2 Driver together with the following:
· reading schedules and contributing to improve current practices;
· reporting deficiencies or issues to schedulers;
· assisting lower level drivers to problem solve;
· facilitating team meetings; and
· mentoring lower level employees and volunteers.
Superannuation was paid to the Appellant in addition to that salary. The Appellant signed that Letter of Engagement on 6 July 2015.
Throughout his evidence the Appellant kept referring to the Passenger Transport Vehicle Award and the fact that he did not receive the entitlements of that award. I assume this was a reference to the Passenger Vehicle Transportation Award - an award of the Fair Work Commission. In cross-examination, the Appellant said that this award should have been the relevant award. I took this to mean that he was well aware that the Passenger Vehicle Transportation Award was not the relevant award but the Appellant thought that it should have been the relevant award. This was despite the fact that prior to the commencement date of the ComLink Limited Enterprise Agreement 2015, the appropriate award was the Social and Community Services Award.
Nowhere in the ComLink Limited Enterprise Agreement 2015 or the Letter of Engagement is there a reference to the Passenger Vehicle Transportation Award. I can only conclude that the Appellant, in his prior driving employment, had his terms and conditions covered by that Award. The terms and conditions of the Appellant's employment following 1 July 2015 were governed by the ComLink Limited Enterprise Agreement 2015 and his Letter of Engagement. His perception that he was employed pursuant to Passenger Vehicle Transportation Award was not, at any time during his employment with ComLink, a correct perception.
Throughout his evidence the Appellant had concerns about the rosters provided to him by ComLink. The ComLink Limited Enterprise Agreement 2015 in Clause 5.2 deals with Rosters and Rostering in the following terms:
"(a) Rosters will be provided 7 days in advance of the commencement of the first shift. For ComLink Limited Driver employees, rosters will be estimated start and finishing times.
(c) Rosters must not exceed the following consecutive days:
· 38 hours within a work cycle not exceeding 7 consecutive days; or
· 76 hours within a work cycle not exceeding 14 consecutive days.
(d) In the event a roster needs to be altered within the roster cycle due to a business need, employees affected by the change will be notified as soon as the change has been made.
(e) Employees who would like to make rostering requests are required to give ComLink Limited a minimum of seven (7) days' notice of desired roster changes; except where the employee is ill or in an emergency situation."
Stressors
In the Appellant's Statement of Facts and Contentions filed on 15 March 2016 the following stressors were identified:
· he was required to perform run management work at home after completing his driving duties and was not paid appropriately for this work;
· his finishing times were not identified on his roster;
· the start time of his roster could be changed;
· he was not paid in accordance with the ComLink Limited Enterprise Agreement 2015;
· ComLink Limited failed to pay travelling time; and
· he was required to pay client monies into the office weekly without recompense for this duty.
I intend to deal with the evidence on each of these stressors under the respective headings.
Run Management Work Performed at Home Stressor: This stressor and the following stressor appeared to be the most concerning for the Appellant throughout his evidence. The Appellant's contention was that he was required, after finishing his driving duties each day, to undertake sixty to ninety minutes of work at home performing run management duties. This was disputed by witnesses called by the Regulator.
The Appellant contended that the first of such duties he was required to perform was to print off from home the following day's run sheet. He complained that he should have been reimbursed the cost of printing those rosters. He said he was entitled to printing costs and this was in the ComLink Limited Enterprise Agreement 2015. His evidence was that the run sheet was at least five pages in length and it took him about two minutes to print the run sheet each afternoon. The Appellant specifically said that he could not go into work and print the following day's run sheet because ComLink would say that it was paying him to drive into the office. This evidence is contrary to that provided by ComLink officers.
There is no provision in the ComLink Limited Enterprise Agreement 2015 entitling a driver to printing costs. The allowances identified in that Agreement include higher duties, vehicle, meal, first aid, uniform, on call, articulated bus and telephone allowances. The Appellant did not identify where in that Agreement he became entitled to reimbursement of printing costs. As I understand the evidence the Appellant was provided with a mobile telephone and the run sheets were sent to his mobile telephone. The Appellant was not required to print the run sheets out. The Appellant chose to print his run sheet out each evening. As Ms Guy and Ms Rooney indicated, some drivers simply used their mobile telephones without printing the run sheets out and other drivers got ComLink to print off the run sheets and the driver collected the printed documents from ComLink's office. The Appellant could simply have used his mobile telephone to read his run sheets or he could have obtained a print out of the run sheets from the ComLink office. No unreasonable management action taken in an unreasonable manner was identified in this aspect of the Appellant's claim. ComLink did not require the Appellant to print out the run sheets.
The Appellant then said that he was required to read the run sheets in full each night including the requirements of each client. He said that the reading of the client notes took him about 25 minutes as there would be five to six lines about each client. Whilst the run sheets provided by ComLink had the time that each client needed to be collected, the Appellant said that he then had to factor in issues such as roadworks, school zones etc. The Appellant said that this took him between sixty and ninety minutes each afternoon/evening in the six months period prior to his decompensation. The Appellant's evidence-in-chief was that he had twenty to forty clients to drive every day in that six month period. He further noted that if he was driving the bus he would have forty clients and it took him about twenty-five minutes to work out where everyone would sit in the bus. Otherwise the Appellant said he would have twenty clients per day in which case it would also take him twenty-five minutes to read the client information for the following day.
The evidence of Ms Guy, ComLink's Human Resources Manager, was that the only thing that the Appellant had to do when he got home after completing his driving duties for the day was to call the clients he was to collect on the following day. Ms Rooney, ComLink's Transport Supervisor, confirmed that the only activity that the driver was required to undertake in terms of run management was to telephone the following day's clients to let those client know the time they would be collected on the following day.
Ms Rooney said the run sheets were collated by the ComLink scheduling team and were provided to drivers usually by 3.30 pm two days in advance. Ms Rooney said that amendments to the runs did occur but they were not a daily occurrence. Changes occurred because clients cancelled, medical appointment times changed, clients became unwell and needed to seek medical attention etc. An amended run sheet would, in Ms Rooney's view, be forwarded to drivers once or twice a week at a maximum.
According to Ms Rooney, ComLink asked clients to book their appointments three days in advance so that the run sheets could be provided to the drivers two days in advance. The run sheets indicated the name of the driver, the vehicle to be used by the driver, the time of the client's appointment, the client's home address, the fee that the client was required to pay, any special needs of clients such as mobility needs and the client's telephone number. Ms Rooney said that all the information the driver needed to perform his duties was placed on the run sheet by the scheduling team. Ms Rooney said that on average the driver would only have to collect money from two or three clients on any day.
A further duty that the Appellant said he was required to undertake after completing his driving duties was to ring each of the clients that he was to drive on the following day. If there were forty clients for a bus run then he would have to ring the forty clients. Often he had to ring some clients on a number of occasions before they would answer the telephone calls. These phone calls could take him up to thirty minutes. Both Ms Guy and Ms Rooney agreed that this duty was required to be performed by the drivers on the day prior to the collection of the client. They both disputed the time taken to undertake this duty and both disputed that it had to be done after hours as there was generally sufficient downtime during any work day to telephone the next day's clients.
It was the Appellant's evidence that this work performed after his driving hours were completed in the day, stopped him attending his son's Little League games, prevented him on occasions from doing the school pick-ups and prevented him from attending barbecues when invited. The Appellant said that he never knew his finishing time prior to 6.00 pm. He complained that he could not have a social life until after 6.30 pm at night. The Appellant further stated that he could still be working at 7.30 pm because "the office kept sending me a new run". The evidence was clear that the ComLink office closed at 4.30 pm each day and nothing was sent to the Appellant or any driver after 4.30 pm on any work day. This is indicative of the exaggeration that regularly found its way into the Appellant's evidence. In his evidence-in-chief, the Appellant was unable to show me any roster which required him to work beyond the 9 hours 12 minutes per day inclusive of his 30 minutes meal break.
Under cross-examination the Appellant was asked whether he had put in a claim for overtime having worked until 7.30 pm on an evening. The Appellant responded that "it didn't class as work". When pressed to answer the question he said that he had put in a claim for overtime but could provide no further evidence about the issue. Had the Appellant put in a claim and had ComLink dismissed the claim, I am sure that the Appellant would have retained details of such an event. He was involved in the EBA negotiations which resulted in the Fair Work Commission certifying the ComLink Limited Enterprise Agreement 2015 and he indicated that certain matters had been taken to the Fair Work Commission as a dispute and/or a claim for wage recovery. The Appellant was thus relatively familiar with his industrial rights.
In respect of this claim by the Appellant, Ms Guy and Ms Rooney undertook an analysis of the Appellant's driving duties. Exhibit 15 is a Summary Activity Sheet for the Appellant for the period 2 November 2015 to 7 October 2016. The supporting documentation for that Summary is found in Exhibit 16. The total number of hours worked by the Appellant on each of the work days is noted. In the first four weeks of that Summary, the Appellant performed driving work for 37 hours, 28.55 hours, 33.65 hours and 31.55 hours (this included the ADO) i.e. a total of 130.75 hours in the four week period. In the following four week period the Appellant worked 34.1 hours driving, 35 hours, 35.35 hours and 36.05 hours driving i.e. a total of 140.5 hours. In the following four weeks the Appellant spent 33.9 hours driving, 31.8 hours, 28.9 hours and 31.5 hours (included an ADO) i.e. a total of 126.1 hours. In the four week period leading up to his decompensation the Appellant performed 36.1 hours, 36.5 hours, 35.4 hours and 35.55 hours driving i.e. a total of 143.55 hours. The Appellant was required by his Letter of Engagement to work 160 hours per four week period. He was generally driving substantially less hours than his Letter of Engagement required him to work. Any time spent undertaking run management would not have taken the Appellant over the 160 hours per four week period. This is particularly the case when one considers the downtime during the day which could have been utilised by the Appellant to complete his "run management".
These hours also included the hours that the Appellant drove from his home to the first client and the hours driving from the last client to his home on each day. On 2 November 2015 the Appellant spent 1 hour and 2 minutes at Robe Street, Currimundi, and 1 hour and 18 minutes stationary at Mooloolaba Road. These hours are included in his driving hours. On 3 November 2015 the Appellant spent 1 hour and 9 minutes and 43 minutes at his home address during this driving time. Once again this time was included in his driving hours. The first week of Exhibit 15 shows that the Appellant had long periods of stationary time on almost every work day e.g.:
· 2 November 2015 - 1 hour and 2 minutes stationary at Robe Street, Currimundi and 1 hour and 18 minutes stationary at Mooloolaba Road;
· 3 November 2015 - 1 hour and 9 minutes and a further 43 minutes at 45 Janet Street, the Appellant's home;
· 4 November 2015 - 1 hour and 19 minutes at 1-9 Maroochy Boulevade; and
· 6 November 2015 - 1 hour and 33 minutes and a further 37 minutes stationary at 45 Janet Street, the Appellant's home.
These periods of stationary time could easily have been utilised by the Appellant to undertake his "run management" i.e. to consider the run for the following day and to telephone his clients for the following day. He had received his run sheet generally two days in advance so any calls could have been undertaken in the periods where the Appellant was stationary. The evidence in the Commission indicates that the Appellant's car was often parked at his home, in the carpark to his gym or near the beach during these stationary periods.
A further review of Exhibit 15 shows that the Appellant used his ComLink vehicle for private use e.g.:
· 13 November 2015 - vehicle used for private use from 4.45 pm;
· 16 November 2015 - vehicle used for private use from 4.00 pm;
· 17 November 2015 - vehicle used for private use from 6.45 am until 8.00 am and then after 4.00pm. On this day the Appellant was also stationary for 2 hours at Bridgestone Kunda Park;
· 18 November 2015 - vehicle used for private use from 2.00 pm;
· 20 November 2015 - vehicle used for private use from 3.45 pm;
· 23 November 2015 - vehicle used for private use from 3.00 pm; and
· 25 November 2015 - vehicle used for private use from 2.00 pm.
The abovementioned information is for the period 13 November 2015 to 25 November 2015. Whether ComLink authorised the private use of the Appellant's vehicle or not the Appellant utilised the ComLink car on seven days in that short period to undertake private business.
The material contained in both the Summary in Exhibit 15 and the supporting documentation in Exhibit 16 clearly shows that the Appellant was not working an 8 hour 42 minutes day driving (exclusive of his 30 minute meal break). The documentation also shows that the Appellant had a substantial period of downtime during most days where he could have telephoned his clients for the following day thus avoiding any "run management" time after the completion of his driving time on those days when he did not receive an amended run. On the days when he received an amended run he may have been required to telephone one client after receiving the amended run sheet. There has been no unreasonable management action taken in an unreasonable manner identified in connection with the Appellant's claim in respect of the time taken to manage his run sheets.
To reinforce this finding, ComLink produced a Snap Shot of the Appellant's Mobile Phone use and the NAV Audit for the last twelve months of the Appellant's employment with ComLink (Exhibit 14). This document indicates the fortnight ending, the required hours per fortnight of 80 hours, the total hours worked by the Appellant driving in the fortnight, the total call time from his mobile telephone, the downtime each fortnight and the overall benefit to the Appellant. Except for a period of time when the Appellant was on leave which showed as "neutral", the document shows that the Appellant's overall position benefited him considerably in the period 14 November 2015 to 15 October 2016. The Appellant's mobile telephone usage over various fortnightly periods is as follows:
· Fortnight ending 14 November 2015 - 11:02 minutes total call time;
· Fortnight ending 28 November 2015 - 8:20 minutes total call time;
· Fortnight ending 12 December 2015 - 9:45 minutes total call time;
· Fortnight ending 26 December 2015 - 9:13 minutes total call time;
…
· Fortnight ending 28 May 2016 - 1:01:06 minutes total call time. This was the most time the Appellant spent on the mobile in a fortnight during the last twelve months of his employment;
…
· Fortnight ending 17 September 2016 - 25:39 minutes total call time;
· Fortnight ending 1 October 2016 - 19:33 minutes total call time; and
· Week ending 15 October 2016 - 11.33 minutes total call time.
This Snap Shot of the Appellant's Mobile Phone usage and his NAV Audit (Exhibit 14) had been provided to the Appellant by the Regulator well prior to the hearing of this appeal. The Appellant was further advised by the Regulator that he should read the document carefully as he would be cross-examined on it at the hearing. It is doubtful whether the Appellant perused Exhibit 14 as it clearly indicated that he had been paid a salary for less than 80 hours work per fortnight. Similarly, the Regulator provided the Appellant, well prior to the hearing of this appeal, with the Summary of the Activity Reports (Exhibit 15) and the supporting documentation (Exhibit 16) and he was advised that he should read the documentation as he would be cross-examined on the material. The Appellant's response to Exhibit 14 was that his mobile was often not charged and he would use his personal mobile to make his phone calls whilst watching his son play Little League.
In circumstances where the Appellant knew that he would be cross-examined on Exhibit 14 it was within his power to bring his personal telephone records to support his assertion that he used his personal mobile to telephone clients. The fact that the Appellant had previously said that he was prevented from watching his son play Little League because of the time taken to complete his "run management", he then responded to cross‑examination about his mobile phone usage by saying that he would use his personal mobile to make calls whilst watching his son at Little League. I do not accept the Appellant's evidence as to the use of his personal mobile in such circumstances without corroboration from his personal mobile use records.
I accept the contents of Exhibits 14, 15 and 16 in that those documents show that the Appellant was not required to spend sixty to ninety minutes of "run management" at home after completing his driving duties each day. I do not accept his evidence that the "run management" required him to work sixty to ninety minutes every evening on "run management". In his last three fortnights at work Exhibit 14 shows that the Appellant had 10 hours, 11 hours 30 minutes and 11 hours 31 minutes of downtime per fortnight. Those periods of time that the Appellant had spent telephoning clients had been included in work time prior to the calculation of downtime. In those three fortnights there is at least one hour per day on average of downtime that could have been utilised by the Appellant to consider his run for the following day.
I do not accept the Appellant's contention that he was required to, or in fact did, sixty to ninety minutes of run management per day after he completed his driving duties. The evidence shows that the Appellant had sufficient downtime on each day to undertake the telephoning of clients for the following day should he have utilised his time appropriately. The greatest amount of time in the period 14 November 2015 to 15 October 2015 that the Appellant spent calling clients was in the fortnight ending 19 March 2016 where he spent 1 hour 30 minutes on the mobile in the fortnight. Most fortnights the Appellant spent under 40 minutes on the mobile telephone ringing clients i.e. approximately 4 to 5 minutes per day.
Ms Rooney's evidence was that run management takes probably ten to twenty minutes per day, including making the phone calls. I accept her evidence in this regard. I also accept that much of this work can be accommodated during the downtimes in driving. Even assuming that the Appellant was particularly slow at undertaking this run management I find that it could have been done within thirty minutes each day. When one considers that the Appellant did not perform driving duties for the period of 8 hours 42 minutes on each day (including downtime) a period of 30 minutes for run management per day would still have the Appellant performing work for less than the 80 hours per fortnight. Again I find no unreasonable management action taken in an unreasonable manner in respect of the Appellant's "run management" stressor.
Finishing Time Not Identified on Roster Stressor: The second stressor identified by the Appellant and one that he consistently referred to throughout his evidence, is that he was not provided with a finish time on his roster. Once the ComLink Limited Enterprise Agreement 2015 was certified, the Appellant said that he expected a roster would be provided that had starting and finishing times and such a roster was not forthcoming. The Appellant agreed that he was advised of the time that he would cease driving but then he had the "run management" to do at home. I have dealt with the issue of run management undertaken by the Appellant. Much of the run management could have been performed during the downtime periods of driving. In any event the only issues appear to be the printing time of two minutes which he was not required to perform and the telephoning of the following day's clients.
The Appellant was required to work 8 hours 42 minutes per day given that he had access to the ADO each month. The Appellant could not comprehend that he had an 8 hour 42 minute work day. If he had a start time of 9.00 am then his finish time would be 6:12 pm which included a 30 minute unpaid lunch break. If he started at 5.00 am then his work day would cease at 2.12 pm on that day. If he started the run at 5.00 am, the evidence was that he would conclude his driving at about 1.30 pm. The Appellant was then free unless he received an amended run sheet for the following day which would arrive at the latest at 4.30 pm. This may then involve him in having to telephone a new client. I accept Ms Rooney's evidence that an amended run sheet would only be sent to a driver once or twice a week.
The rosters were provided to the drivers at least seven days in advance in compliance with the ComLink Enterprise Agreement 2015. As indicated in Clause 5.2 of that Agreement, the rosters provided to drivers are "estimated start and finishing times". The rosters did not exceed fourteen consecutive days as is required by the Agreement and if rosters needed to be altered the drivers were notified as soon as the change had been made. The Appellant at all times knew that he was required to work an 8 hour 42 minute day. The Appellant never suggested that he drove a ComLink vehicle for more than 8 hours 42 minutes on any day. It must also be remembered that the driving to the Appellant's first client from home and the driving home from his last client was included in his driving time.
The basis of the Appellant's claim is that he alleged he was performing "run management" for sixty to ninety minutes each evening. That evidence of the Appellant was greatly exaggerated and I have found no basis in that claim to suggest that there was any unreasonable management action taken in an unreasonable way. The Summary of the Activity Report for the Appellant (Exhibit 15) clearly showed that the Appellant's driving duties varied from five to six hours per day on many occasions, sometimes eight hours in the day however the majority of hours spent driving was around the 7 hours 30 minutes per day. This period also included the downtime periods.
There is no basis for the claim that the Appellant did not receive a finish time. The finish time for each day of employment was 9 hours and 12 minutes (including the 30 minute lunch period) after his start time. During the period 2 November 2015 to 6 October 2016 the Appellant drove for more than 8 hours in a day on a handful of occasions with the longest day being on 23 March 2016 where he drove for a period of 9 hours 40 minutes with the total driving time for the week being 36.1 hours. There were other days when the Appellant drove for 2 hours 15 minutes on 6 July 2016, 3 hours 10 minutes on 18 July 2016 and 4 hours 30 minutes on 30 December 2015. The ComLink Limited Enterprise Agreement 2015 provided for the averaging out of hours over a fortnight i.e. eighty in a fortnight.
Once again I find the actions of ComLink to have been reasonable management action taken in a reasonable manner when considering the Appellant's claim that he was not provided with an exact finishing time on his roster. The ComLink Limited Enterprise Agreement 2015 required only estimated times. On most days the Appellant did not work anything like the 8 hours 42 minutes per day that his Letter of Engagement required him to work.
Change to Start Time Stressor: The Appellant's evidence is that he always started 45 minutes ahead of the rostered time. The Appellant confirmed that he started work 45 minutes prior to the rostered start time on "every single day". When I questioned him on the "every single day" aspect of his evidence between 1 July 2015 and October 2016, he responded "absolutely". I reiterated the question and he reiterated the answer "absolutely". The Appellant then said that the projected roster was a "fabricated roster" and that ComLink "manipulated" him when they felt the need to. He said he never started work at the projected start time on the roster provided to him. If the Appellant never started work at the projected start time then that was a personal decision of his. Exhibit 16 showed the Appellant's start time on every day during the period 2 November 2015 to 6 October 2016 i.e. when the ignition commenced on his vehicle at home. This is another example of the Appellant exaggerating his evidence.
In his evidence the Appellant said "my stressor was I never started at the time of the roster and I never knew when I was finishing". He received a run sheet for each day of driving and that run sheet noted the time when the Appellant's first client was to be collected and the time that his last client was to be returned to his or her home. At this time I suggested that perhaps the Appellant should have been making a claim for unpaid wages before the Fair Work Commission if he thought he was working excessive hours. The Appellant responded by saying "I did do that". It is more likely that the Appellant complained to the Fair Work Ombudsman rather than the Fair Work Commission and the response he received was that it was a "he said, she said" issue. The Appellant said that he then participated in a telephone Conference before the Fair Work Commission where he was advised to seek legal advice. As I have mentioned previously the Appellant was well aware of his industrial rights and if ComLink had breached any of the terms of the ComLink Limited Enterprise Agreement 2015 or his Letter of Engagement the Appellant would have sought to protect those industrial rights.
The Appellant was at all times provided with a roster providing an estimated start time in accordance with the terms of Clause 5.2 of the ComLink Limited Enterprise Agreement 2015. The run sheet that was provided to the Appellant two days in advance provided a more specific start time. The actions of ComLink management involved reasonable management action taken in a reasonable manner in respect of this stressor. The Appellant received the estimated start time with the roster received seven days in advance and then received a more specific start time when he received the run sheet two days in advance.
Not Paid in Accordance with the Award and the EBA Stressor: There is no evidence before me which would suggest that the Appellant was not paid in accordance with the ComLink Limited Enterprise Agreement 2015 and/or his Letter of Engagement. The Appellant had a Letter of Engagement - Client Driver (Exhibit 7) which stipulated that his annual remuneration was $46,000.00 and that he was paid fortnightly. Superannuation payments were also made by ComLink on his behalf in accordance with the Superannuation Guarantee (Administration) Act 1992.
The Appellant provided no evidence which even suggested that he was not paid in accordance with his Letter of Engagement.
The Appellant continued to complain that he was not paid in accordance with the Passenger Vehicle Transportation Award. Given the provisions of ComLink Limited Enterprise Agreement 2015, ComLink was not required to pay the Appellant in accordance with the Passenger Vehicle Transportation Award. It appears that the Appellant's claim in this regard was based on the work performed by him at home allegedly performing "run management". This is again confirmed in his later evidence where he agreed that his complaint wasn't that he was not being paid in accordance with the Passenger Vehicle Transportation Award but rather that he was not being paid for the work he performed at home. There was no unreasonable management action taken in an unreasonable way in connection with this stressor. The Appellant was paid in accordance with the ComLink Limited Enterprise Agreement 2015 and his Letter of Engagement.
Failure to Pay Travelling Time Stressor: In his Statement of Facts and Contentions the Appellant stated that "at the beginning and end of the day when travelling to your first client and back after your last client" he did not get paid for this time. Exhibit 16 clearly shows that the Appellant's day commenced when he started the ignition on his car i.e. from his home. Exhibit 16 further shows that the Appellant's driving day ceased when he took the key out of the car when he arrived at home. The driving to his first client and the driving home from his last client on each day was counted as work time.
There is no entitlement to Travelling Time when the time taken in driving is calculated as part of the hours of work. There is no provision in the ComLink Limited Enterprise Agreement 2015 for the payment of Travelling Time. The Appellant has not discharged his onus of proving that ComLink was involved in any unreasonable management action taken in an unreasonable manner in connection with this stressor.
Depositing Monies Collected from Clients' Stressor: In his Statement of Facts and Contentions the Appellant said that "money had to be handed into the office weekly with no allocated time" so he had to do it in his lunch break. A review of Exhibit 15 indicates that in every week of the Appellant's employment between 2 November 2015 and 6 October 2016 he had periods of downtime between clients where he could have driven to the ComLink office to deposit monies.
The Appellant had periods of downtime at his home, in the carpark of his gym and at the beach where he could have travelled to the ComLink office and deposited the monies. On most days of his employment during the abovementioned period, the Appellant did not drive for 8 hours 42 minutes per day. There were plenty of opportunities to deposit monies collected by him at the ComLink office. I do not accept that he had to perform this task during his lunch break. He may have chosen to undertake this task in his lunch break but he was not required to do so. The Appellant may have decided to go home on occasions when he had downtime but he could have driven to the ComLink office. He could have forgone attending the gym during a period of downtime and instead drove to the ComLink office to deposit the monies.
I find this claim by the Appellant to be most disingenuous. There is no unreasonable management action taken in an unreasonable way in connection with this stressor.
Further Stressors identified by the Appellant during the hearing: The Appellant added further stressors to those contained in his Statement of Facts and Contentions during the hearing. These stressors included the Drivers' Meetings and the EBA Meetings.
Drivers' Meetings: The Appellant further accused ComLink of holding Drivers' Meetings when he could not attend such meetings and when he did attend, ComLink did not listen to any issue he raised. The Minutes of certain Drivers' Meetings were in evidence. The Minutes of the 9 March 2016 meeting indicated that the Appellant was in attendance. Those Minutes reveal that Ms Elkojje, at the commencement of the meeting, opened up the floor to the drivers to discuss how things were going. The Appellant raised the issue that clients should not be given an exact return time as sometimes drivers finished earlier. Ms Elkojje said she would have a discussion about this issue with the CSQ and Scheduling Team to see if a solution could be found. The Appellant was clearly listened to at this Drivers' Meeting and his view is reflected in the Minutes. The Appellant did not raise any further issue at this meeting e.g. none of the alleged stressors in his appeal were raised. Further, the Appellant did not raise any objection to the content of the Minutes of this meeting.
At the Drivers' Meeting on 28 June 2016 the Appellant was an apology. Exhibit 8 indicates that the Appellant took annual leave during the period 24 June 2016 to 1 July 2016 for "school holiday camping". At the Driver's Meeting on 22 September 2016 the Appellant was again recorded as an apology as he had applied for annual leave on 21 and 22 September 2016 during school holidays. The Appellant then alleged that the ComLink office knew that he would be absent so it scheduled the Drivers' Meeting on a day that he was on leave. The Appellant provided no evidence to support this accusation. Ms Rooney organised the Drivers' Meetings and those meetings were organised three monthly. I accept Ms Rooney's evidence that she made no attempt to organise such meetings whilst the Appellant was on leave.
When it was put to the Appellant that he could attend such meetings on an ADO he said that he didn't know that the Drivers' Meeting was on that day. It was clear that the Appellant did attend some such meetings. He said that he was advised of these via a telephone call from the receptionists. The Appellant said that he felt belittled in not being advised of a Driver Meeting. When asked what he meant by being "belittled" the Appellant responded that even attending the meetings was belittling to him. The evidence would suggest that the Appellant may, at this time, have been referring to EBA negotiation meetings. The Appellant said that he represented the drivers in the EBA negotiations. This issue was not raised by the Appellant as a stressor in his Statement of Facts and Contentions.
Ms Rooney could not recall any Drivers' Meeting in 2016 where the Appellant raised issues about rosters or having to undertake long periods of run management. I accept her evidence in that regard.
EBA Meetings: The Appellant said that in the EBA negotiations he wanted a roster with start and finish times and to be paid overtime. He said that he was not listened to when advocating such matters and he felt belittled. This issue had not, until the day of the hearing, been part of the Appellant's claim in the appeal. It was not one of the stressors identified in the Appellant's Statement of Facts and Contentions.
The Appellant raised concerns that he was bullied at EBA meetings leading up to the commencement of the ComLink Limited Enterprise Agreement 2015. These meetings occurred prior to March 2015 and the Appellant's evidence was that his difficulties with ComLink occurred after 1 July 2015. Under cross-examination, the Appellant was shown the Minutes of an EBA meeting on 8 December 2014 (Exhibit 17) where the Appellant attended the meeting. This was the first such meeting and it appears from the Minutes that votes were being taken on issues. The Appellant was also present at the meeting on 7 January 2015 (Exhibit 18) where various issues were raised and votes were taken. At this meeting there were three drivers in attendance among a total of twelve attendees. The Minutes of these meetings are quite detailed with the votes for and against outlined where votes have been taken.
Once again I do not accept that the EBA meetings from December 2014 to July 2015 had any bearing on the Appellant's health. He confirmed early in the hearing that he had no difficulties with ComLink prior to the introduction of the ComLink Limited Enterprise Agreement 2015 which commenced to operate on 1 July 2015. The Appellant further confirmed that he did not seek any medical treatment as a result of the so-called "belittling" he received at these "traumatic" EBA meetings. The "belittling" was said to have been done by Ms Guy, Ms Elkojje and Ms Rooney when they talked over him and never let him say his piece. Ultimately the Appellant accepted that these meetings had nothing to do with his claim for workers' compensation. Once again the issue with the Appellant's credibility has created a difficulty for me in accepting his evidence where it conflicts with others. Initially his evidence was that he was happy with ComLink up until 1 July 2015 and then, when confronted with cross-examination, says that these EBA Meetings were a stressor for him. I do not accept his evidence in this regard. The Minutes of the EBA Meetings in evidence clearly show the issues that were discussed, the outcome of any votes and the fact that Ms Guy was the person responsible for attending to outcomes.
I am not satisfied that there was any unreasonable management action taken in an unreasonable manner in connection with the EBA Meetings.
Application for Annual Leave for October 2016: The Appellant, either prior to, or on 7 October 2016, asked Ms Rooney if he could take a period of annual leave. Ms Rooney e-mailed the Appellant on 7 October 2016 advising him that he had used all his annual leave except for two accrued days. Ms Rooney sent the Appellant an e-mail setting out the leave he had taken. The Appellant was on an ADO on 7 October 2016. That was his last day of work for ComLink.
On Monday 10 October 2016 at 5.00 am the Appellant forwarded a text message to Ms Rooney advising her that he had been at hospital the previous night and would not be able to work on Monday 10 October 2016. Ms Rooney responded to that text message asking that he telephone her and further, asked whether he would be available for work on the Tuesday (the following day). The Appellant left Australia for the United States on Tuesday, 11 October 2016 having received a clearance to fly from Dr Dominica Bartlett on that day. If in fact the Appellant had been in hospital on the Sunday evening and his health was as bad as he described it in evidence, it appears to me to be quite unbelievable that the Appellant would be travelling unaccompanied to the United States in such a condition. This, according to the Appellant, was not a planned visit to the United States. It was arranged on either the Sunday or the Monday prior to the Appellant leaving on the Tuesday. Yet he had sought leave on 7 October 2016 which was not approved given that he had only two days of leave available.
The Appellant said he knew that he did not have any approved annual leave when travelling to the United States on 11 October 2016. The Appellant said that he had an "emotional and mental breakdown" and was not in any state to contact ComLink. The Appellant was however sufficiently okay to fly to Los Angeles unaccompanied where he was met by family members and then to fly from Los Angeles to Salt Lake City unaccompanied. The Appellant said that on that Friday, Saturday and Sunday he was too ill to send a text message to ComLink however his parents booked a flight for him to go to the United States. The Appellant informed Dr Bartlett on 11 October 2016 that he had consumed three bottles of vodka on the weekend although the Appellant does not recall whether he drank the three bottles of vodka.
The Appellant, in evidence-in-chief, said that he had attended Dr John Kenafake in April 2016 who had provided him with a medical certificate for a week off work for stress. The Appellant confirmed it was not a workers' compensation medical certificate that he received from Dr Kenafake. Exhibit 8 is the Appellant's Leave Records at ComLink between 2 May 2014 and 8 November 2016. Exhibit 8 shows that the Appellant took the following sick leave periods whilst working at ComLink:
· 2 May 2014 - sick leave;
· 3 - 4 December 2015 - "Surg, consult, staynight, son, grommets, adenoid, tonsil". This appears to be in connection with his son; and
· 15 July 2015 - getting spot cut off back day hospital.
There is no week off work in April 2016 or at any time during the Appellant's employment with ComLink based on a medical certificate from Dr Kenafake. Once again I question the credibility of the Appellant's evidence. Later in his evidence‑in‑chief, the Appellant said that he was "anxious" and "had been anxious and stressed since April 2016". I assume this evidence was to coincide with his earlier evidence of seeing Dr Kenafake in April 2016. Later in the Appellant's evidence-in-chief he said that he had a "breakdown" in May 2016 after having seen Dr Kenafake. Once again there is no sick leave in May 2016 although the Appellant apparently attended a wedding in Sydney having sought leave from 30 May 2016 to 14 June 2016 to attend that wedding.
The Appellant did not return to work at ComLink after his ADO on 7 October 2016 although he continued to provide ComLink with some medical certificates. His employment with ComLink was ultimately terminated.
ComLink Management Evidence
Ms Guy described her professional relationship with the Appellant as "lovely". At no time did the Appellant speak to her about rosters, the hours he was undertaking performing "run management" at night or the starting and finishing times of rosters. Ms Guy said that the Appellant never spoke to her about any problem he was having at work. Ms Rooney, the Appellant's supervisor, had no discussion with the Appellant about rosters although she could recall overhearing a conversation between the Appellant and the then Human Resources Manager, Alexander Payne, about rosters. This conversation however occurred before the commencement of the ComLink Limited Certified Agreement 2015. Ms Rooney could not recall any conversation with the Appellant concerning difficulties he was having with the rosters.
When the Appellant cross-examined Ms Rooney asserting that he would also ring clients who he was delivering to their homes to confirm the pick-up time, Ms Rooney responded that it was not a requirement but she also said that "you were always very efficient, Stefan". This comment reinforced my view of the management witnesses that they were unaware that the Appellant was having any difficulties with his job in the latter part of 2015 and in 2016 and that his medical condition in October 2016 came as a great surprise to them.
Ms Elkojje was Ms Rooney's Manager at the relevant time. She indicated that she only saw the Appellant on a few occasions however her recollection of him was that he seemed quite a jolly happy person. Ms Elkojje said that the Appellant brought his puppies into the office on a couple of occasions when he came to talk to her. These occasions involved the Appellant seeking leave. Ms Elkojje said that she had no discussions with the Appellant about rosters or the way rosters were being done and no discussion with the Appellant about lengthy "run management: work at night". Further, Ms Elkojje said that she had no discussion with the Appellant about any dissatisfaction or unhappiness he had with ComLink. The only issue the Appellant raised with Ms Elkojje was his leave. At no time did the Appellant approach Ms Elkojje concerning any suffering or illness he was experiencing. The Appellant did not approach Ms Elkojje in October 2016 seeking leave.
Vehicles Driven by the Appellant in 2015 and 2016
Ms Guy's evidence is that the Appellant only drove the VW Multivan and the VM Commodore during the relevant period. Ms Rooney said that the VW Multivan was a 6 passenger van and the VM Commodore was a 3 or 4 passenger vehicle. The largest vehicle that ComLink had was a 20 seater Rosa Mitsubishi. Ms Rooney could not recall the Appellant ever driving the Rosa Mitsubishi. ComLink also had a Toyota Coaster which had a 14 seat capacity. Ms Rooney could recall the Appellant driving that vehicle on one occasion only and that was in May 2015 i.e. when his relationship with ComLink was good.
This evidence calls into question the Appellant's evidence that he drove a 40 seater bus and therefore had to telephone 40 clients as part of his run management. The Appellant did not drive any 40 seater bus during the relevant time. It also calls into question the evidence of the Appellant that he was required to telephone 20 clients as part of his run management. It further confirms Ms Rooney's evidence that the Appellant generally was required to ring 4 or 5 clients on the day prior to collecting those clients.
Medical Evidence
I accept that the Appellant has a medical condition and continues to be unwell. Before dealing with the medical evidence adduced by the Appellant, I formed the view that as the Appellant, prior to commencing work with ComLink, worked only five hours in a week, this gave him the opportunity to participate in his passion of "elite" sports and enabled him to spend time with his son. What was evident during the Appellant's evidence is that he sees himself as an "elite sportsperson". Whilst working at ComLink on a forty hour week his ability to undertake his sporting activities was limited. Similarly, the time he could spend with his son was limited. I formed the view that he regretted these restrictions placed on his sporting activities and the time spent with his son and the Appellant perceived that his work at ComLink was the cause of these restrictions.
The Appellant relied upon the evidence of Dr Mark Veltmeyer, a General Medical Practitioner. The Appellant at no time consulted with Dr Veltmeyer whilst the Appellant was employed by ComLink nor prior to his decompensation on 7, 8, 9 or 10 October 2016. The first time that The appellant consulted with Dr Veltmeyer was on 9 November 2016 upon the Appellant's return to Australia from the United States. Dr Veltmeyer provided the Appellant with a Workers' Compensation Medical Certificate on that occasion believing the Appellant to be still employed by ComLink. That certificate indicated that the Appellant had been diagnosed with "workplace stress anxiety and bullying reported by patient". According to that Certificate the Appellant had no capacity for any type of work from 9 November 2016 to 9 December 2016.
The Appellant was earlier asked to detail the bullying that he experienced at ComLink which he reported to Dr Veltmeyer. The response from the Appellant was that he had seen six of his supervisors over time and they all told him that Ms Guy, Ms Rooney and Ms Elkojje each said "that's the nature of the business". It was these three persons who undertook the bullying of him. The Appellant then accused those three of collaborating to bully him. Bullying was not mentioned as a stressor in the Appellant's Statement of Facts and Contentions. There is no evidence before me of any bullying behaviour directed towards the Appellant by any employee of ComLink.
In evidence Dr Veltmeyer confirmed that the Appellant suffered acute anxiety, major depression, panic disorder and probably some social anxiety disorder. Under cross‑examination Dr Veltmeyer indicated that he was of the belief that the Appellant had last worked in March 2016 i.e. about six months prior to the first consultation on 9 November 2016. Further, Dr Veltmeyer was not aware of the Appellant having a rather long history of taking psychotropic medications since 2002. The Appellant had clearly been prescribed (and had the prescriptions filled) a number of psychotropic medications which the Appellant denied had been prescribed for depression. These medications included Mirtazapine, Lexapro, Paroxetine, Sertraline and Amitriptyline. Dr Veltmeyer said that if a patient had been prescribed such medications, the doctor would have been treating the patient for depression. For some reason the Appellant does not accept that he has suffered from depression over a rather lengthy period.
The Appellant continued to dispute that he had been prescribed medication for depression saying that the abovementioned medications had been prescribed for him because of various physical injuries. Dr Veltmeyer also said that he had wanted the Appellant to see a psychiatrist and he had referred him to Dr Shamali on 5 July 2017 but the Appellant had not consulted with Dr Shamali.
I accept the evidence of Dr Veltmeyer.
The Appellant also relied upon the evidence of Mr Francis Sibraa, a registered Psychologist. A reading of Mr Sibraa's evidence-in-chief and his cross-examination will clearly show that Mr Sibraa was a strong advocate for the Appellant. Mr Sibraa had sent correspondence on behalf of the Appellant to WorkCover, to the Regulator and to the Queensland Industrial Relations Commission (Commission) prior to a Conference supporting the Appellant's claim. Mr Sibraa was anything but objective in his evidence. I could not accept his evidence as the evidence of an expert witness.
A further issue arose during the cross-examination of Mr Sibraa. It became apparent that Mr Sibraa had copied his clinical notes, amended them and then produced the amended copies to the Regulator and to the Commission. Words had been inserted by Mr Sibraa prior to disclosing his clinical records however he failed to keep a copy of the amended clinical notes. This conduct is not appropriate for an expert witness.
Mr Sibraa commenced to treat the Appellant on 29 November 2016 following a referral by Dr Veltmeyer. Mr Sibraa's evidence was that the Appellant "experienced a series of traumatic events in the workplace that resulted … in a stress condition and a … psychological breakdown in late 2016". These "traumatic events" included harassment, threats of unemployment should he not comply with the wishes of management". Mr Sibraa said that he listened to the Appellant repeat the same complaints over time. These work issues were associated with an "interference with Stefan's personal life, his private life, issues around the lack of a roster, issues associated with workplace agreements". Mr Sibraa said that he believed all these contributed to the Appellant's condition.
Mr Sibraa said that generally Psychologists resist taking any kind of position on a workplace issue because they have no way of verifying the circumstances, but, given that he had "over 30 hours of interviews, there was a plausible consistency and a rational interpretation or understanding of his workplace, that in many ways, corroborated what he was saying".
The Appellant did indicate during a Mention of this appeal, that he was seeing Mr Sibraa and that Mr Sibraa was assisting him in the preparation of his case before the Commission. This confirms that Mr Sibraa was really advocating the Appellant's case. The first duty of Mr Sibraa was to the Commission to give objective evidence. It is not a duty of an "expert" Psychologist before the Commission to advocate his client's case. Mr Sibraa saw the WorkCover and the Regulator's decisions as being "rejections" that the Appellant had to "endure". If Mr Sibraa was giving personal evidence on behalf of the Appellant then he would not have been afforded the benefit of having his evidence dealt with on the telephone. Only expert witnesses are offered that indulgence.
Mr Sibraa, under cross-examination, said that having read the decisions of WorkCover and the Regulator he "encouraged Stefan to sustain his appeal process in a hope to - that these issues that he related to me are explored". In corresponding with WorkCover and the Regulator on behalf of the Appellant, Mr Sibraa said that there was "information that needed to be aired" and that he had to support the Appellant in pursuing issues against ComLink.
Ms Callaghan, Counsel for the Regulator, put to Mr Sibraa that his role as a treating Psychologist was to support Mr Appleton in "returning him to wellness". Mr Sibraa agreed. Mr Sibraa said that it was also important to maintain the support for a client's position. Mr Sibraa said that he supported the Appellant's position because he had no other way of verifying the responses made by ComLink to his complaints. It should be noted that Exhibits 14, 15 and 16 were in the hands of the Appellant well prior to the hearing. Given that the Appellant had provided Mr Sibraa with all other documentary material that he had received, I would think that the Appellant would also have provided Exhibits 14, 15 and 16 to Mr Sibraa.
When cross-examined about his knowledge of the Appellant being previously prescribed anti-depressant medications, Mr Sibraa eventually agreed that he only became aware of this in May 2018. Mr Sibraa also suggested that such medications were prescribed for the Appellant's physical injuries. In response to this statement, the Appellant thanked Mr Sibraa for that evidence. Mr Sibraa said that the Appellant was not a person that he thought would be using a lot of medications or using such medications regularly.
Under cross-examination it became clear that the Appellant had also told Mr Sibraa that his panic attacks started in May 2016. He said that the Appellant gave a history of panic attacks on his way to Salt Lake City in the United States in May 2016. It was Mr Sibraa's understanding that the Appellant had been sedated for the flight to Salt Lake City in May 2016. Clearly these events occurred in October 2016 and not May 2016 although the Appellant did indicate during his evidence that he had a breakdown in May 2016. I have previously dealt with this evidence.
It is not necessary in this case to rely upon the evidence of Mr Sibraa and I do not rely upon his evidence. Mr Sibraa has altered his clinical notes before providing them to the Regulator or to the Commission under an Attendance Notice to Produce Documents. That is not what a professional medical expert would, or should, do. I would think that such conduct would not be supported by the Psychologists professional body. Further, Mr Sibraa, throughout his evidence-in-chief and his cross-examination acted as an advocate for the Appellant as he had done previously in forwarding correspondence to WorkCover, the Regulator and the Commission in support of the Appellant's claim.
Conclusion
As I have indicated previously the Appellant bears the onus of proving that he suffered a personal injury, it arose out of or in the course of his employment with ComLink, that his employment with ComLine was a significant contributing factor to the injury and that the injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by ComLink in connection with the Appellant's employment.
Based on Dr Veltmeyer's evidence I am satisfied that the Appellant sustained a personal injury of a psychological nature.
I have separately dealt with each of the stressors identified in the Appellant's Statement of Facts and Contentions. In so doing I have found no unreasonable management action taken in an unreasonable way associated with any of those stressors. I also found the Appellant to be an unreliable witness. Whether that unreliability arose from his illness or his attempts to make ComLink look bad is irrelevant. However, if that was his intent then he did not succeed. ComLink came out of the hearing as a very reasonable employer that treated its driver in a fair and reasonable manner.
The evidence would suggest that the Appellant clearly has a major psychological disorder which he has not accepted e.g. the evidence of his denial of substantial use of anti‑depressant medications for psychological reasons, at least since 2002. The cause of his psychological condition as at October 2016 was not his employment with ComLink. The Appellant's perceptions of reality is lacking.
In those circumstances I make the following orders:
1. The appeal is dismissed.
2. The decision of the Workers' Compensation Regulator dated 26 September 2017 is confirmed.
3. The Appellant is to pay the Workers' Compensation Regulator the costs of, and incidental to, this appeal by 3September 2018.
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