Davis v Blackwood

[2014] ICQ 9

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Davis v Blackwood [2014] ICQ 009

PARTIES:

CLEAVON DAVIS
(appellant)
v
SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)
(respondent)

CASE NOS:

C/2013/36 and C/2013/37

APPEARANCES:

In each appeal
S D Anderson on behalf of the appellant, instructed by Shine Lawyers
R J Clutterbuck on behalf of the respondent, instructed by the Workers’ Compensation Regulator

PROCEEDING:

Appeal

DELIVERED ON:

2 May 2014

HEARING DATE:

12 December 2013

MEMBER:

Martin J, President

ORDER/S:

In each appeal

1. Extension of time granted

2. Appeal dismissed

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EXCLUSIONS – STRESS INJURIES: AS A RESULT OF REASONABLE DISCIPLINARY OR ADMINISTRATIVE ACTION BY EMPLOYER – where the appellant sought damages in respect of a stress-related injury – where stressors on the appellant arose party in his personal life and partly from his work – where the work-related stressors on the appellant arose predominantly from reasonable management action reasonably taken – whether the appellant’s entitlement to compensation was defeated by s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003

Workers’ Compensation and Rehabilitation Act 2003, s 32

CASES:

Avis v WorkCover Queensland (2000) 165 QGIG 788; [2000] QIC 67, cited
Chapman v State of Queensland [2003] QCA 172, cited
Ford v La Forrest [2002] 2 Qd R 44; [2001] QCA 455, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176, cited
Neophytos Foundadjis v Collin Bailey (2007) 184 QGIG 177, cited
QANTAS Airways Limited v Q-Comp and Michelle Blanch (2009) 191 QGIG 115; [2009] QIC 20, cited
Q-Comp v Hohn [2008] 187 QGIG 139; [2008] QIC 56, referred to
Queensland Public Sector Union of Employees v Department of Corrective Services (2006) 182 QGIG 503; [2006] QIC 42, cited
Queensland Trustees Limited v Fawckner [1964] Qd R 153, cited

1. Cleavon Davis commenced work at the Princess Alexandra Hospital in May 2008 as an Aboriginal and Torres Strait Islander Liaison Officer – Men’s Business. The common description given to this role was: Health Liaison Officer or HLO.

1. He has appealed two decisions of the Commission concerning his claims under the Workers’ Compensation and Rehabilitation Act 2003 (the Act). Both claims failed due to findings that the psychiatric injury or injuries suffered by Mr Davis arose as a result of reasonable management action reasonably taken. Where such a finding is made, s 32(5) of the Act defeats an entitlement to compensation that might otherwise have arisen. The background to these matters is well set out in the two decisions under appeal. I have combined them to give an overview of the matters which led up to the claims which were made by the appellant.

Background

1. Mr Davis’ role was to act as a liaison or support person for indigenous people who were receiving treatment at the hospital or who were family members or friends of patients. The role, in part, sought to overcome some traditional difficulties experienced by indigenous people accessing healthcare, especially communication of clinical issues and certain cultural misunderstandings. The families and friends of patients also had particular needs and the HLOs assisted these people in a variety of ways.

1. The typical working hours for an HLO were 7:30 am to 4:30 pm - Monday to Friday. They could, under a flexitime arrangement, complete their daily shift between the hours of 6:00 am and 6:00 pm. The HLOs were not on call. Social workers and other PAH staff would attend to matters outside the HLOs’ daily hours and on week-ends.

1. Mr Davis found some aspects of the HLO role stressful. On occasions he would be required to intervene in disputes between family members or friends of patients and try to resolve situations involving physical conflict. The role also required him, from time to time, to attend dying patients and support friends and family in the mourning process. He experienced stress and anxiety associated with these types of activities and advised his line manager, Carmen Forster, accordingly.

1. Ms Forster was the appellant's supervisor, or direct report, for the duration of his employment. His professional supervisor was John Corowa, a District Co-ordinator. According to the job description, the HLOs are “supported professional [sic] and strategically by the District Indigenous Health Co-ordinator who works in the Southside Health Service District”. Mr Corowa did not give evidence in the proceedings.

1. Mr Davis alleged that Ms Forster did not take his complaints seriously and failed to provide support and guidance. He also criticised his indigenous co-ordinator for failing to act on his concerns. Matters climaxed in early 2011 following meetings that Ms Forster had with Mr Davis on 17 January and 24 January 2011. Mr Davis alleged that Ms Forster conducted these meetings in a culturally insensitive manner and made discriminatory and racist comments to him.

1. During the meetings on 17 and 24 January 2011 Ms Forster asked Mr Davis to respond to questions which suggested that he had not complied with his obligations in specified areas, including: whether he had attended for work on 23 and 24 December 2010 in accordance with his roster, whether he had entered statistics as required, and whether he had correctly filled in his time sheet and annual leave form.

1. On 1 February 2011 Mr Davis lodged an internal staff complaint against Ms Forster, following which he commenced a period of unpaid leave which ultimately extended for approximately one year, and from which Davis never returned to work. A workers’ compensation medical certificate was issued by Dr Mary Woodward on 11 February 2011 and the Appellant lodged a workers' compensation claim with WorkCover on 14 February 2011. Mr Davis resigned his employment from the PAH with effect from 23 February 2012.

1. The appellant alleges that he sustained a psychological injury arising from the two meetings in January 2012. The grounds advanced in the appellant’s final submissions in the Commission alleged that the stressors which caused the Appellant's injury were:

•being subjected to racial discrimination by his direct line manager, Ms Forster;

•          being subject to workplace harassment and bullying by Ms Forster;

•being humiliated by Ms Forster when she raised a performance management issue in a public place on17 January 2011; and

•being subjected to discriminatory words and bullying and harassing behaviours by Ms Forster during a meeting on 24 January 2011.

1. Mr Davis was diagnosed with an adjustment disorder with depressed anxious mood by Dr Oelrichs on 4 July 2011.

1. On 18 October 2011, Mr Davis lodged a notice of claim for damages relating to events occurring over the course of his employment with the PAH.

Extension of time

1. Each notice of appeal was filed eight days after the time limit expired. The respondent does not claim that any prejudice has been occasioned as a result. An extension of time is sought but an extension is not available simply for the asking.

1. I was told that the fault lay not with the appellant but with his solicitors. No affidavit was provided in which the error was explained, but Ms Anderson offered to call her instructor to explain why the notice of appeal was not filed in accordance with the Act. This is unsatisfactory. An applicant for an extension of time should give notice of an intention to seek an extension and file affidavit material in which the delay is clearly explained. As Hall P said in Neophytos Foundadjis v Collin Bailey[1]:

“This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case, and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period, compare The Queensland Public Sector Union of Employees v Department of Corrective Services (2006) 182 QGIG 503 and the cases there cited. In ordinary circumstances the evaluation of whether a case advanced by an applicant for extension of time discharges that positive burden will be guided by the principles developed by Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349; compare Chapman v State of Queensland [2003] QCA 172 at [3].”

[1](2007) 184 QGIG 177.

1. In applying those principles this Court will not grant leave unless it is positively satisfied that it is proper to do so. I will turn to the merits of the appeals before determining the applications for extension. As was said in Chapman v State of Queensland:

“In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application: see Queensland Trustees Limited v Fawckner [1964] Qd R 153 at 163-64. An extension of time will not be granted if the court considers the appeal to be plainly hopeless: see Ford v La Forrest [2002] 2 Qd R 44 at 45.”

Legislation

1. The questions for consideration by the Commission in both matters were:

(a) Did the appellant suffer a personal injury within the meaning of s 32 of the Act? And, if so:

(b) Was the injury excluded by the operation of s 32(5)?

1. Section 32 (as it stood at the relevant time) provided:

“(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

(2)However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

(3)       Injury includes the following—

(a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;

(b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—

(i)a personal injury other than a psychiatric or psychological disorder;

(ii)       a disease;

(iii)a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

(ba)an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation;

(c)loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;

(d)death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;

(e)death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;

(f)death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.

(4)For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.

(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.

Examples of actions that may be reasonable management actions taken in a reasonable way—

•action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

•a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment”

Appeal C/2013/37 – Claim related to absence from work and subsequent meetings

1. This appeal arises out of a complaint lodged by Mr Davis against Ms Forster on 1 February 2011. He alleged that he suffered a psychological injury arising from two meetings which he had with Ms Forster on 17 and 24 January 2011.  In the submissions made before the Commission the appellant argued that the stressors which caused his injury were:

·     Being subjected to racial discrimination by his direct line manager, Ms Forster;

·     Being subjected to workplace harassment and bullying by Ms Forster;

·     Being humiliated by Ms Forster when she raised a performance management issue in a public place on 17 January 2011; and

·     Being subjected to discriminatory words and bullying and harassing behaviours by Ms Forster during a meeting on 24 January 2011.

1. The meeting on 17 January arose out of an alleged unauthorised absence from work by Mr Davis on 23 and 24 December 2010. The meeting took place in a waiting area which was near an administrative section of the building in which the parties worked. The Commissioner described it in these terms:

“The waiting area was reasonably spacious and was furnished with some lounges and a coffee table, but it was an open area and staff passing by would have observed Forster in discussion with Davis. Forster did not occupy an enclosed office and she and some other staff worked in an open plan area in which partitions separated staff or groups of staff. It was Forster's preference to talk to Davis in the waiting area, rather than in the area where her desk was located. Davis, however, considered that the discussion should have taken place in a private office.”

1. The grounds of appeal advanced in this Court were:

(a)        The Commission erred in finding that the appellant was not at work on 23 and 24 December 2010;

(b)        The Commission erred in finding that the finding immediately above permitted a “material credit finding against the appellant” so far as it related to reasonable management action having regard to the concessions by Ms Forster;

(c)        The Commission erred in finding the venue for and conduct of the 17 January meeting constituted reasonable management action;

(d)        The Commission erred in finding the conduct of the 24 January meeting constituted reasonable management action;

(e)        The Commission, despite finding that Ms Forster used racially discriminative, provocative or intolerant language and should have accepted responsibility for the second meeting getting out of hand, erred in failing to find that Ms Forster and the respondent had not engaged in reasonable management action;

(f) The Commission erred in finding that the appellant’s injury was excluded by s 32(5) of the Act.

Absence from work

1. The Commissioner noted that there had been an investigation undertaken by management of the allegations that Mr Davis had not been at work on 23 or 24 December 2010.  He said:

“[22]      In the end result, the investigation was never finalised and all the allegations that have subsequently been raised during this appeal were not put to Davis during his period of employment or prior to his resignation on 23 February 2012. Activity after 24 January 2011 was sporadic, but some further information was gathered by the PAH and also by Davis who secured two letters dated 11 March 2011 from persons who said Davis was at work on 23 and 24 December 2010.”

1. The alleged absence was the trigger for the meeting which was held on 17 January. It was open to the Commissioner, in his approach to the determination of these issues, to consider whether or not the alleged absence had been demonstrated by the respondent. In a careful examination of all the evidence which was made available to him, the Commissioner came to the following conclusion:

“[172]     … The evidence supported a finding that Davis was either not at work for all of his rostered working hours or a substantial part of his rostered working hours on 23 and 24 December. If the doubts about his attendance were founded on one source of information which was open to challenge, Davis may have been given the benefit of the doubt; but his claim that he attended for work was undermined by a series of events which questioned the truthfulness of his account. These events included Sorensen's email; mobile telephone records; dubious entries on patient charts; the minimal number of patients apparently visited by Davis on the two days (namely the 2 disputed patient visits); the probability that Davis did not attend for work after lunch on 24 December; and the challenge to Davis's evidence that he was supporting visitors from Toowoomba on the days in question.

[173]     On the balance of probabilities, I find that Davis did not complete at least some of his rostered hours on 23 and 24 December 2010 and that these absences were unauthorised. The evidence supports a finding that he was not in his office after 12:30 pm on 23 December. By his own admission, Davis left the office at 12:30 pm on 24 December 2010 with no suggestion that he returned to work. None of the material advanced by Davis in support of his claim that he was at work as normal on 23 and 24 December was substantial enough to persuade me to prefer his evidence over the management evidence.”

1. The submissions relating to the findings made by the Commission on this point were seriously misconceived. At one point the submissions referred to observations made in the reasons and drew from that the conclusion that:

“These statements give an indication that the Commissioner had already determined that [he] did not accept Mr Davis’ evidence. [He] set out to determine that Mr Davis was not at work on 23 and 24 December at all or at least as he said he was. [He] failed to properly consider the evidence which he provided in support of his attendance.”

1. To argue that a finding in a set of reasons indicates some form of prejudgment discloses a misunderstanding of the principles relating to impermissible prejudgment. To allege that the Commissioner “set out to determine” a particular matter amounted to an allegation of bias which had no foundation at all.

1. A rational reading of the Commissioner’s reasons disclosed that he took care to consider all of the matters which had been placed before him and to weigh them appropriately. I reject the allegation that there was any prejudgment or bias exhibited in the reasons.

1. On this point, as with all the other points in the notice of appeal, the task confronting an appellate court is that which was considered by the High Court in Fox v Percy:[2]

“[22]     The nature of the ‘rehearing’ provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.

[23]       The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

[24]       Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.”

[2](2003) 214 CLR 118.

1. It was open, given the finding that the Commissioner had made with respect to the appellant’s absence from work in December, to take that into account when assessing his credit so far as other matters were concerned. It was not simply a matter of the appellant having been mistaken in his evidence, rather it was an indication that the Commissioner was entitled to take into account that he had been absent from work and had deceived his employer.

The meeting of 17 January

1. In the written submissions for the appellant the following is advanced with respect to this meeting:

“Without explaining why the Commissioner says at paragraph 176 of [his] reasons that the evidence does not support a finding that Forster acted unreasonably in discussing the matters with Davis on 17 January 2011 nor did she act unreasonably in all the circumstances in undertaking the discussion in the administrative support.”

1. The reference to paragraph 176 of the reasons is a reference to a paragraph which appears in that part of the reasons under the subheading “Conclusion”. The detailed reasoning supporting that finding is found at paragraphs [64] to [94] of the reasons themselves. The Commissioner examined the evidence relating to what was discussed and how it was discussed at that meeting and he also gave detailed consideration to the venue.

1. In submissions Ms Anderson conceded that the use of the more public area for the meeting “may well have been correct”. She went on to argue that: “The Commission fell into error when considering whether all of the action taken was reasonable by not considering what happened next.” That was a reference to the meeting on 24 January between Mr Davis and Ms Forster.

The meeting of 24 January

1. This meeting took place after Ms Forster had discovered that Mr Davis had failed to enter statistics for the month of December and perhaps for the two or three months preceding December. The meeting was called to discuss that failure and also to continue discussions about his attendance, or lack of attendance, on 23 and 24 December. This meeting was held in an office. The Commissioner described the meeting in the following terms:

“The meeting began with Forster asking Davis to explain why he had not been entering statistics. Forster was angry with Davis over his failure to enter statistics and this was apparent in her demeanour. At some point she threw her papers on the table and said to Davis, ‘I am so angry with you’. Davis was not passive during the meeting. The meeting became heated and voices were raised. Both said they did not like each other. A number of ‘non-agenda’ matters were raised in confrontational exchanges. The meeting degenerated into a slanging match and ended abruptly.”

1. In his conclusions, the Commissioner made the following findings:

“In general terms, I find that a heated and stressful environment prevailed. Forster did not disguise her displeasure at Davis's failure to enter statistics. She was upset that Davis did not provide any adequate explanation for his failure to complete a very important job function. She was angry and her voice was raised. At some point, she threw her papers on the table. Davis was not without fault. It was provocative for him not to provide any genuine explanation about his failure to enter data. He raised his voice and levelled allegations or accusations at Forster. Both parties were active and agitated. At some point, Forster made her remark about ‘white man's business’ or work. The meeting came to an acrimonious end. Both sides behaved in a less than acceptable manner, but Forster must take responsibility for letting the meeting get out of hand and not ensuring that the meeting progressed in a calm and considered manner. While Davis's attitude, demeanour or speech may have been disrespectful, he was not initiating the debate or setting the scene and his responses were, at least in the first instances, reactionary. Whichever ‘white man's’ phrase Forster used, its use was inappropriate and Forster acknowledged this in her evidence.”

1. The Commissioner then went on to consider what he regarded as mitigating factors attaching to Forster’s conduct.

1. The Commissioner, after considering in detail the evidence relating to what occurred at the meeting and the matters which led up to the meeting, came to this conclusion:

“In summary, while Forster's conduct of the meeting, including her behaviour during the meeting, was not always appropriate, there were mitigating factors. In all the circumstances of this case, I do not consider it fatal to the Respondent's defence for a supervisor to lose her temper with a subordinate in response to what appeared to be a wilful disregard of an important organisational procedure. Forster's frustration at Davis's failure to enter statistics for December and also for the preceding months (where data was entered on his behalf by a co-worker) was understandable. Clearly Forster's performance was blemished but, in the all the circumstances of this case, I decline to find that the events associated with the meeting held on 24 January 2011 gave rise to unreasonable management action unreasonably taken.”

1. The conclusion reached by the Commissioner was one which was open to him on the evidence. It was contended for the appellant that the Commissioner had erred by applying a test for negligence instead of applying the test in s 32 of the Act. It was said that the test was whether the injury occurred, whether it arose out of the course of employment, and whether it arose out of reasonable management action taken reasonably. The Commissioner clearly had the provisions of s 32 in mind when he dealt with this rather complicated matter. No error has been disclosed with respect to the meeting of 24 January.

1. The appellant has not demonstrated that the Commissioner fell into an error of the sort which calls for correction in his consideration of the evidence before him.

Appeal C/2013/36 – claim related to general employment

1. As in the other appeal Q-Comp conceded that the appellant suffered an anxiety disorder as diagnosed by Dr Oelrichs but did not concede that the appellant had suffered an injury as defined in s 32(1) of the Act. The respondent argued that no causal link had been established between employment and the disorder diagnosed by Dr Oelrichs.

1. The Commissioner did not accept that submission. He made the following finding:

“[57]      The medical evidence in the proceedings, including the evidence of Dr Oelrichs and relevant exhibits, establishes that Davis's injury was caused by a mix of work and non work-related stressors. Also, the evidence of Davis and Forster, including Forster's acknowledgement that Davis was subject to stressful situations at work, establish that Davis did experience stress and anxiety as a result of workplace factors including management action or the lack of it, and in the process of supporting patients and their families in particular circumstances. While weight has not been attributed to each of the relevant stressors to enable some ranking of work and non-work stressors, the application of the tests set out in Avis[3] and Blanch[4] to the evidence results in a determination that Davis's injury arose out of, or in the course of, employment in circumstances where employment was a significant contributing factor.”

[3]Avis v WorkCover Queensland (2000) 165 QGIG 788.

[4]QANTAS Airways Limited v Q-Comp and Michelle Blanch (2009) 191 QGIG 115.

1. The Commissioner then went on to consider the impact of management action. He made the following finding:

“[70]      I accept that the evidence supports a conclusion that Davis's injury was caused by a mix of factors. In terms of work-related stressors, the evidence establishes that matters relating to Forster's management and supervision of Davis were significant factors if not the major factors in the development of his injury and that these factors were invariably linked in some way or other with other factors which were claimed to have caused or contributed to the injury.”

1. He concluded:

“[150]     I conclude that while the Appellant claimed that stressors that were causative of Davis’s psychological injury had mainly arisen from aspects of his work which should not be characterised as management action, the stressors have predominantly arisen from management action taken or not taken, in particular by Forster.

[151] I further conclude that on the evidence the relevant management response to work-related stressors does not constitute unreasonable management action taken in an unreasonable way. Accordingly, the Appellant's injury is excluded from s. 32(1) of the Act by the operation of s. 32(5) of the Act.”

1. The appellant’s grounds of appeal are:

(a)        The Commission erred in finding that the appellant’s injury did not arise from unreasonable management action; and

(b) The Commission erred in finding the appellant’s injury was excluded from s 32(1) of the Act by s 32(5) of the Act.

1. I have found it difficult to understand the submissions made on behalf of the appellant and their connection with the grounds of appeal. The appellant accepted the finding by the Commission that the stressors said by the appellant to exist in his work did exist. They were:

(a)        The requirement to sit with indigenous patients to mourn with families after the passing of patients at the hospital; and

(b)        The stress which accompanied the situations of conflict which arose in the execution of the appellant’s role.

1. The first criticism mounted by the appellant relates to the description by the Commission of the events relating to the admission of Mr Davis to the PAH Emergency Department on two days in June 2010. The Commissioner identified that a matter in contention was whether Mr Davis’s admission on those days was solely attributable to non-work related stressors or whether there was a connection with work related stressors. This question arose because there was evidence, accepted by the Commissioner, that Mr Davis had experienced stress arising out of his domestic and family relationships. The Commissioner undertook a detailed examination of the circumstances relevant to Mr Davis’s admission to the Emergency Department. He found that the evidence supported a conclusion that there was a mix of stressors present in the appellant’s life at the time of his admission on both days in June. He went on to say that, notwithstanding this mix, the evidence also supported a finding that the dominant circumstances contributing to his admission were not work related but arose primarily from his domestic and family relationships. The appellant criticises that finding and says that the Commissioner erred in considering that the development of Mr Davis’s illness could be identified solely from the reason for presentation at the emergency room. The Commissioner did not do that. The Commissioner took those matters and other matters into account in order to arrive at his decision concerning the development of Mr Davis’s illness.

1. In the written submissions for the appellant it is then argued that the Commissioner appears to have misled himself into applying a test for negligence. Again, I can find no support for that proposition in the reasons.

1. The Commissioner considered, in some detail, the evidence relating to the two stressors concerning his employment. In particular, he examined the relationship between Mr Davis and Ms Forster and the complaints Mr Davis made about the actions she took or failed to take.

Section 32(5)

1. After analysing the evidence with respect to those matters, the Commissioner turned to s 32(5) and dealt with the issue which that subsection raises by saying:

“[117]     The starting point is to ask what would constitute reasonable management action in circumstances where it is accepted that Davis did find some aspects of his work stressful and did raise his concerns about these aspects with his supervisor.”

1. That question is not, with respect, the question which should be put. The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.

1. In any event, the examination which the Commissioner then embarked upon did result in his analysing the actions which were taken. One of the complaints made by the appellant is that the Commissioner misunderstood some of the evidence and that he relied upon his findings with respect to credibility made in the other appeal. It was appropriate for him to rely upon those findings. The appeals were heard together and the facts in each appeal overlapped the facts in the other.

1. The other complaints made by the appellant about the Commissioner’s reasoning concerned his findings with respect to the requirement for the appellant to sit with indigenous patients and to mourn with families after the passing of patients at the hospital. The Commissioner accepted that over the course of his employment Mr Davis found aspects of his work stressful. He also found that Mr Davis discussed those aspects with Ms Forster from time to time and that she did, on some occasions, offer means by which he might cope with the stress.

1. This case raises the difficulty which exists when a psychiatric disorder is brought about by matters:

(a) covered by s 32(5), and

(b)        other matters which are employment related, and

(c)        other matters which are non-employment related.

1. I agree with the reasoning of Hall P in Q-Comp v Hohn[5] where he said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury”. In cases such as this the Commission will be aided by expert evidence which can assist in the assignment of weight to the various factors which go to the creation of maintenance of a psychiatric disorder. If the evidence supports a finding that the psychiatric disorder results from the employment being a significant contributing factor then, when one turns to consider s 32(5), it is important to determine to what extent, if any, there is an overlap of reasonable management action and other employment factors.

   [5][2008] 187 QGIG 139.

1. As in the other appeal, this is a case in which there was evidence upon which the Commissioner was entitled to act and to draw the conclusions which he drew. The appellant has not demonstrated that the Commissioner fell into an error of the sort which calls for correction.

Orders

1. The appeals were not “plainly hopeless”. In the absence of any claim of prejudice by the respondent, I allow the extension of time that the applicant has sought.  

1. I do not regard the appeals to this Court as having been instituted vexatiously or without reasonable cause and so, pursuant to s 563 of the Act, there should be no order as to costs.

1. In each appeal the orders are:

(a)        Extension of time granted;

(b)        Appeal dismissed.