Fuller v Simon Blackwood (Workers' Compensation Regulator)

[2016] ICQ 12

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Fuller v Simon Blackwood (Workers’ Compensation Regulator) [2016] ICQ 012

PARTIES:

MICHAEL DREW FULLER

(appellant)

v
SIMON BLACKWOOD (WORKERS’ COMENSATION REGULATOR)

(respondent)

FILE NO/S:

C/2015/31

PROCEEDING:

Appeal

DELIVERED ON:

7 April 2016

HEARING DATE:

21 September 2015

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant made a claim for a personal injury said to be an aggravation of a pre-existing psychological injury – where WorkCover Queensland had rejected the appellant’s application for workers’ compensation – where the Regulator confirmed that decision –where, on appeal, the Commission made findings in relation to a number of stressors identified by the appellant – where the Commission ultimately found that the appellant had failed to prove that his injury had arisen out of, or in the course of, unreasonable management action taken in an unreasonable way – where the appellant contends that the
Commission “acted contrary to the weight of the evidence” in reaching its findings – whether the Commission made errors of fact or law in the manner in which it disposed of the appeal

CASES:

Workers’ Compensation and Rehabilitation Act 2003, s 32(1), s 32(5)

APPEARANCES:

The appellant in person

C J Clark instructed by the Regulator for the respondent

1. Mr Fuller was, at all relevant times, a member of the Queensland Police Service (QPS). He says that he suffered a compensable injury as a result of having “hot water poured on him from above whilst using the toilet”. This was alleged to have occurred in August 2012. Mr Fuller claimed that he had suffered both a physical injury and ongoing stress and anxiety as a result of the conduct of certain members of the QPS. 

2. In the appeal before the Commission, the Commissioner correctly identified that the issue for determination was whether Mr Fuller had suffered an injury covered by s 32(1) of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) and, if so, whether that injury was removed from the operation of s 32(1) by virtue of the provisions of s 32(5) of the Act.

3. Section 32 of the Act (as it was then) relevantly provided as follows:

   “32    Meaning of injury

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

   …

   (5)     Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

   (a)reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;

   (b)the worker’s expectation or perception of reasonable management action being taken against the worker;

   (c)action by the Authority or an insurer in connection with the worker’s application for compensation.”

   What was the injury?

4. Mr Fuller alleged that he had suffered a personal injury which was an aggravation of a pre-existing psychological condition. He said that this arose out of his employment and that his employment was a significant contributing factor. He gave evidence that he decompensated toward the end of a meeting held at QPS headquarters on 23 July 2012 and that in so decompensating he aggravated a pre-existing psychological injury.

5. In the case conducted before the Commissioner, the Regulator argued that the appellant had not suffered such an injury, or, in any event, an injury that was causally related to his employment in any significant way. In the alternative, the Regulator argued that the injury arose out of, or in the course of reasonable management action taken reasonably.

   What are the grounds of appeal?

6. The only ground in the notice of appeal was: “that the Commissioner acted contrary to the weight of the evidence in finding that the appellant’s claim was not for acceptance”. It has, therefore, been necessary to attempt to draw out of the appellant’s written submissions the grounds upon which he relies. Those submissions consisted of assertions relating to reasons of the Commissioner, the conduct of the QPS, the conduct of the appeal and other matters.  

   The stressors relied upon by Mr Fuller

7. In accordance with directions issued, Mr Fuller filed a Statement of Stressors. They involve allegations of unreasonable management action taken between the end of May 2013 and the end of July 2013. There were five stressors nominated but in the submissions made by Mr Fuller, only stressors 2 – 5 were relied upon. I will deal with each of them in the light of what I understand Mr Fuller’s argument to be.

   Stressor 2

   “Superintendent Wilkins offering unqualified, unsolicited psychological advice in regards to my criminal complaint (of assault) against Sergeant Callow, and then making the taking of my complaint conditional on my consideration of his advice.”

8. This stressor was said to arise out of a meeting held on 1 July 2013. It had been convened to discuss Mr Fuller’s return to work. The reference to Sergeant Callow was a reference to the allegation that Sergeant Callow had poured hot water over Mr Fuller while Mr Fuller was using the toilet at a police station.

9. The Commissioner discusses in some detail the events at that meeting. He notes that the purpose of the meeting was to discuss a suitable duties plan provided for Mr Fuller’s return to work. Superintendent Wilkins had been assigned the responsibility for that plan. At some point during the discussions – the appellant says at the very end – Mr Fuller raised his grievance against Sergeant Callow. 

10. It should be noted at this point that the QPS had undertaken an internal disciplinary process about Mr Fuller’s complaint and that that process had concluded. Nevertheless Mr Fuller told Superintendent Wilkins that he wanted to make a criminal complaint against Sergeant Callow. It was at this time that Superintendent Wilkins said to him:

    “I’m no psychologist, but to continue to re-live issues that have occurred in the past, to me, is not good for anybody from a psychological perspective. And that’s a matter that you need to consider. If you consider that and you think you’re in a position to go forward, well, we’ll go forward.”

11. Mr Fuller complains that the Commissioner’s reference to Mr Fuller making a decision “to revive his complaint” was inconsistent with the facts and, in some way, constituted a finding of fact that was contrary to the legal rights of the appellant. The Commissioner dealt with Mr Fuller’s argument in this way. He examined, in detail, the circumstances of the conversation and then said:

    “[46]The appellant’s proposition is unsustainable. Firstly, he introduced the subject despite the incident with Sergeant Callow occurring almost a year earlier and despite the fact that he had been informed in March that year that his complaint against Sergeant Callow had been resolved. Secondly, he did not explain the basis upon which Superintendent Wilkins was to conclude that he was “at risk” given that he had been cleared to return to work with limited conditions. Thirdly, the policy is a discretionary policy. It is to be applied when it is considered that an ‘at risk’ person would benefit by receiving additional support. Finally, the appellant did not explain on what basis he thought Superintendent Wilkins should conclude on 1 July 2013 that he would benefit from additional support.”

12. Mr Fuller carries the onus of demonstrating that the events described in stressor 2 did not fall within s 32(5)(a). While Mr Fuller has argued that a different view could be taken of the evidence and has criticised some of the language used by the Commissioner, he has not demonstrated that the Commissioner did err in fact or in law. There was evidence, which the Commissioner was entitled to accept, and upon which he could then decide this point. No error has been demonstrated.

    Stressor 3

    “Superintendent Wilkins’ treatment of me in his conduct of a disciplinary meeting in his office with Detective Acting Inspector Miers in relation to the email I had sent to Professional Practice Manager Inspector Henderson concerning the letter I had received from Assistant Commissioner Condon that regarded my complaint about an assault on me by my supervisor, Sergeant Callow.”

13. The Commissioner set out the circumstances of the meeting held on 5 July 2013. After doing that, he said:

    “[53]I am inclined to the view that the prudent course of action for Superintendent Wilkins to take would have been to do what was suggested by the appellant in his submission. A literal reading of the QPS policy did entitle him to make the request for the reasons and the easiest course of action would have been to tell the appellant he would be provided with them. Despite this, I accept the accuracy of Superintendent Wilkins' advice and the common sense basis for the advice. I accept that the incident was correctly regarded by the QPS as minor, I accept that the QPS was very unlikely to exercise a discretion to launch a criminal prosecution arising from a minor workplace incident, and I accept that the reasons for the decision to resolve the appellant's initial complaint by managerial guidance were self-evident and should not have required any elaboration. Notwithstanding this, the appellant's apparent obsession with the subject suggested that the appropriate course would have been to give him what he was looking for.”

14. It is difficult to determine what the appellant’s complaint is with respect to this part of the decision.  It may be that it is a complaint that the Commissioner failed to provide reasons for rejecting the evidence of the appellant. In his written submissions, Mr Fuller says:

    “If the Commissioner had centered on the actual issue at the heart of stressor 3 he would have found the answers in determining the accurate record of the treatment of the appellant. This was available from the evidence. In his reasons, the Commission has failed to inform of his decision about which version of events he found accurate.”

15. A large part of Mr Fuller’s complaints appear to be based on what he regards as a failure by the Commissioner to decide every disputed question of fact. That is not the role of the Commissioner. There are issues to be determined in accordance with the provisions of the Act and only those which are relevant to the necessary determinations need be the subject of a decision. In any event, the Commissioner did say:

    “[55]In my view the reasons underpinning the decision to resolve the complaint by managerial guidance were largely self-evident, and should have been evident to the appellant. The 7 March 2013 communication appropriately focussed on the corrective action taken against Sergeant Callow rather than explaining that which was obvious. I doubt that, if the QPS exercised a discretion to seek a criminal conviction in respect of every minor workplace altercation, resourcing would be available. Nor would it be in the public interest in terms of the inevitable internal competition for resources, for the QPS to fund such prosecutions at the expense of more meritorious activities.

    [56]I accept that if the decision to proceed by way of management guidance was controversial or not easily understood, any equivocation around the provision of reasons would have required closer attention and may have assisted a claim of unreasonable management action.  However this is not such a case.

    [57]As with the previous stressors, the medical evidence does not support any direct or contemporaneous link between the outcomes of the meeting on 5 July 2013 and the psychological state of the appellant. The issues of concern said to arise from the 5 July 2013 meeting were not raised with Ms Rafferty on 16 July 2013.”

16. The finding with respect to the medical evidence was open to the Commissioner and, even if Mr Fuller was accepted on all aspects of his version of events, the absence of a causal link renders this stressor inutile.

    Stressor 4

    “QPS Injury Management Coordinator Sue Olsen’s false promises, failure to consult and failure to deliver in a timely manner development of my suitable duties program to commence from Monday the 22nd of July 2013.”

17. Mr Fuller contends that the Commissioner has not adequately explained how he made the finding of fact that the statement of Ms Olsen to the appellant that “she would source a host placement in the Toowoomba District for the Appellant” was aspirational.

18. The Commissioner, having considered the evidence, said that he was “inclined to the view that this was an aspirational statement which was made consistent with the goal of the suitable duties plan”. He further says that he doubted that the appellant would have construed Ms Olsen’s remarks at the time that they were made to have meant that she was guaranteeing him a placement in Toowoomba.

19. Mr Fuller’s case appears to be that Ms Olsen promised the provision of a placement in Toowoomba and that, as she was unable to secure such a placement, she had made a false promise.

20. Some of the conversations which were the subject of evidence had been covertly taped by Mr Fuller. On this occasion, the transcript of the conversation is inconsistent with the case advanced by Mr Fuller. On being told that the placement in Toowoomba was unavailable, he responded in a way which was consistent with someone who was not proceeding on the basis that a promise had been made.

21. Mr Fuller has failed to demonstrate any error in the manner in which the Commissioner proceeded with respect to this area of the case and the findings that were made were supported by evidence.

    Stressor 5

    “Superintendent Wilkins and Inspector Miers’ treatment of me in regards to a Host Placement police station in a meeting on Thursday the 18th of July, 2013 and further the meeting with Inspector Miers on Monday the 22nd of July, 2013.”

22. Mr Fuller submitted that he was unreasonably treated by Superintendent Wilkins and Acting Inspector Miers in the meetings referred to.

23. On this appeal, Mr Fuller contends that the Commissioner made incorrect findings of fact which then coloured the rest of his decision concerning this stressor.

24. The grounds covered by the Commissioner in dealing with this matter were extensive. He reached the conclusion that Mr Wilkins and Mr Miers were doing no more than making Mr Fuller aware that because of his intransigence or refusal to accept a placement other than in Toowoomba (or perhaps Ipswich) he was potentially facing the prospect of a less favourable destination. Once again, these were findings available to be made on the evidence. The complaint by the appellant is that findings which were not favourable to him were made. There was evidence to support the findings and so no error has been demonstrated with respect to this matter.

    Other matters

25. At one point in his written submissions, Mr Fuller refers to a pre-existing neck injury of which, he says, the QPS had “special knowledge” and which might make travel to a workplace extremely difficult. This was not developed and, while it may have been in the evidence before the Commissioner, it was not argued in a way that would allow any finding of error in the Commissioner’s reasoning.

26. The appellant also made a reference to the “necessity” for a finding as to the credibility of the witness Miers. As was pointed out by the respondent on appeal, most of the interaction between Mr Fuller and Ms Miers was surreptitiously tape recorded by him. Those records were in evidence and, because of that, there was little or no challenge available to the appellant so far as the evidence of Miers was concerned. The Commission did not have to consider those issues of credibility.

    Conclusion

27. The appellant has not demonstrated that the Commissioner made errors of fact or of law in the manner in which he disposed of the appeal.

28. The appeal is dismissed.