Fuller v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 119
•19 June 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Fuller v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 119 |
PARTIES: | Fuller, Michael v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/43 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 19 June 2015 |
HEARING DATES: | 4, 5, 6, 7 and 8 August 2014 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. Appeal dismissed 2. The decision of the regulator dated 15 January 2014 is confirmed 3. Costs are reserved |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - reasonable management action - aggravation of psychological injury sustained at work - extent and nature of support provided by employer in implementing a return to work program in question - Jones v Dunkel rule. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 32(3), s 32(4), s 32(5), s 550 |
| APPEARANCES: | Mr M. Fuller, the Appellant. |
Decision
Introduction
Michael Fuller ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") dated 15 January 2014 to reject his application for workers' compensation.
The appellant lodged his application for compensation with WorkCover Queensland on 31 July 2013. Dr Ganter had issued the appellant with a Workers' Compensation Medical Certificate on 24 July 2013 in which a diagnosis of "work related stress and skin injury" had been entered. The worker's stated cause of injury was expressed as "had hot water poured on him from above whilst using the toilet", and added that the appellant "tried to return to work 1st July 13, but has had ongoing stress and anxiety symptoms". The certificate stated that the appellant had no capability for any type of work between 23 July 2013 to 31 August 2013. At the time of injury the appellant was undertaking a return to work program with the Queensland Police Service (QPS).
WorkCover rejected the appellant's application for workers' compensation on 2 September 2013. On 3 December 2013, the worker asked the regulator to review the insurer's decision. However on 15 January 2014 the regulator confirmed the decision of the insurer to reject the appellant's application for workers' compensation.
The appellant now appeals this decision to the Commission pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
Issue for Determination
The issue for determination in this appeal is whether the worker suffered an injury pursuant to s 32(1) of the Act, and if so, whether the injury is removed from s 32(1) by virtue of the operation of s 32(5) of the Act.
Section 32 of the Act (as it was then) relevantly provides as follows:
"32 Meaning of Injury
(1)An injury is personal injury arising out of, or in the course of, employment if employment is a significant contributing factor to the injury.
…
(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;
(ii)a disease;
(iii)a medical condition if the condition becomes a personal injury or disease because of the aggravation;
(4)For subsection (3)(b), 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 Authority or an insurer in connection with the worker's application for compensation."
Nature of the Appeal
The appeal to the Commission is by way of a hearing de novo. To succeed with the appeal, the appellant must establish on the balance of probabilities that:
·His psychological injury arose out of, or in the course of, employment;
·His employment was a significant contributing factor to the injury; and
·His injury was not removed from the definition of injury in s 32(1) by virtue of s 32(5) of the Act.
Injury
The appellant maintained that he suffered a personal injury, being an aggravation of a pre-existing psychological condition, that arose out of his employment where his employment was a significant contributing factor. In terms of supporting medical evidence, the appellant relied on a medical certificate issued by Dr Ganter on 24 July 2013 and on the evidence in the proceedings of Dr Ganter and his treating psychologist, Ms Rafferty.
The appellant said that he decompensated toward the end of a meeting held at QPS headquarters on the morning of 23 July 2012. He said that he broke down in tears and left the meeting. In so decompensating, he aggravated a pre-existing psychological injury. The next day he attended on Dr Ganter who issued a workers' compensation medical certificate citing stress and anxiety.
The respondent did not concede that the appellant had suffered a psychiatric or psychological injury that was causally related to his employment in any significant way. In the event of a finding to the contrary, the respondent argued that the injury arose out of, or in the course of, reasonable management action taken reasonably.
Evidence
During the course of the proceedings, evidence was provided by nine witnesses. The witnesses for the appellant were as follows:
·Michael Fuller (Appellant)
·Dr Andrew Ganter (GP)
·Judy Rafferty (Psychologist)
The witnesses for the regulator were as follows:
·Jodie Slater (Human resource officer)
·Susan Olsen (Injury management advisor)
·Superintendent Brian Wilkins (Officer in charge)
·Detective Senior Sergeant Bradley Miers ( Suitable duties plan supervisor)
·Dr Alfred Chung (Psychiatrist)
·Dr Jonathon Mann (Psychiatrist)
9 August 2012
In his reply submission the appellant said that the 9 August 2012 event was:
"… pivotal in the position that I now find myself in. Every lifetime event that has occurred since has been shaped by the mental illness that I acquired as an immediate, direct result of being assaulted at work by my supervisor and aggravated during my return to work in June and July 2013. My displacement from the TSU, my return to work at the Toowoomba RES, my return to work at Police Headquarters and my ultimate forced retirement from the Queensland Police Service on medical grounds."
When the appellant arrived at work on 9 August 2012 at or about 6.30 am he went to use the toilet. As he entered the toilet cubicle he became aware that an adjacent shower was being used by his team leader, Sergeant Callow. Upon becoming aware of the appellant's intentions, the team leader asked the appellant to return later to use the toilet. The appellant however decided that this was not a practicable course of action and proceeded to defecate. This course of action was not appreciated by the team leader and he apparently showed his displeasure by directing the shower rose onto the appellant while he was seated on the toilet bowl. The appellant said that the water was hot and that he used a jumper to protect his head and neck. He then left the toilet, decided not to commence work, and returned to his home in Toowoomba.
The appellant said that after he returned home, and later in the day, he attended on a general practitioner. The appellant said that he was found to be suffering from superficial burns to the scalp and neck, and a neck injury which had apparently occurred when the appellant moved his neck suddenly to avoid the hot water. Following the 9 August 2012 event the appellant commenced a period of sick leave and did not resume work until February 2013.
The appellant lodged a complaint about the incident on 12 September 2012. He received a response to the complaint from Assistant Commissioner Condon on 7 March 2013 (Exhibit 9). The complaint was finalised on the basis that it was deemed suitable for managerial resolution. The response indicated that Sergeant Callow had been counselled about the requirement to treat co-workers in a fair, dignified and professional manner, and that he had been directed to attend conflict coaching training to assist him in maintaining professional behaviour in the workplace.
The appellant saw himself as a victim of crime and considered that Sergeant Callow perpetrated an act of criminal assault on him in directing hot water from a shower rose on to him while he was seated in a toilet cubicle. Strangely he did not consider that he had in any way provoked the response. It can be inferred that he considered his own actions to be appropriate in the circumstances. I doubt that the appellant's characterisation of his predicament would be universally shared.
Return to Work
The appellant resumed work in February 2013 in accordance with a suitable duties plan. However he stopped work on 19 March 2013 and resumed a period of sick leave. By early May 2013 the appellant's condition had improved and he informed his employer that he was ready to return to work under a suitable duties plan. His evidence about his readiness for a return to work is recorded at T1-36:
"And so the feelings that I had at the time were that I’m fit to go to work; my doctor says I’m fit to go to work; my psychologist says I’m fit to go to work; my occupational therapist says I’m fit to go to work; my WorkCover customer advisor say I’m fit to go to work. And options have been given to my employer, but my employer in the meantime has refused those options and has, in fact, required me to attend an IME about my fitness to go back to work. So I was keen to get the matter resolved."
When the QPS was informed that the appellant was fit to return to work it asked the appellant to undertake an independent medical examination. This assessment was conducted on 30 May 2013 by Dr Mann who entered the following prognosis in his report of the same date (Exhibit 26):
"Michael Fuller reported that he is no longer suffering from active symptoms of any psychological condition or mental illness. His presentation on assessment was consistent with this. He reported being motivated to return to the workforce and I believe his prognosis is positive."
In answering particular questions, opinions to the following effect were reported by Dr Mann relating to the status of the appellant as at 30 May 2012:
(i) A prior adjustment disorder assessed on 1 November 2012 had resolved;
(ii) The appellant was not receiving any active treatment for any psychological condition;
(iii) The appellant was not suffering from any psychological condition and no treatment recommendations were made;
(iv) The appellant was not suffering from any impairment related to the 9 August 2012 incident;
(v) There were no barriers impeding the appellant's full recovery;
(vi) While the appellant had the capacity to return to work in his substantive role, the appellant was strongly opposed to returning to this role because of the ongoing bad feeling between him and Sergeant Callow;
(vii) From a psychiatric perspective, the appellant had the capacity to perform the role of an operational general duties police officer;
(viii) The appellant could return to work immediately under a suitable duties program.
Around the same time as the examination by Dr Mann, WorkCover had requested that the appellant undergo an assessment by a consultant psychiatrist, Dr Alfred Chung. Dr Chung had received a letter of instruction from WorkCover on 9 May 2013 and he completed his assessment of the appellant on 13 May 2013. Dr Chung's report is in the evidence as Exhibit 16.
Dr Chung concluded that despite concerns about past issues, the appellant "did not report any symptoms in today's assessment coinciding with a psychiatric condition. He no longer suffers from depressive symptoms. He no longer suffers from anxiety symptoms." Dr Chung stated that the appellant would be able to return to work in full capacity. However he suggested that the appellant continue to receive psychological assistance after he returns to work for two to three months. He also recommended that the appellant return to work in an area where he would not be in contact with Sergeant Callow.
The opinions of Dr Chung and Dr Mann are broadly consistent with advice that the appellant passed on to the QPS in an email dated 28 May 2013 (Exhibit 18) where he said that his GP had assessed him on 2 May 2013 as being fit for a restricted return to work on a suitable duties program and that "I want to return to work and have been involved with WorkCover to that end".
It was Ms Rafferty's evidence that the appellant's attendance on her included sessions on 9 May, 16 May, and 23 May 2013. Ms Rafferty said at T2-6 that her notes of the 23 May 2013 consultation indicated that the appellant was sleeping and that he was doing better from a psychological viewpoint. She also said at T2-7 that her notes in May 2013 disclosed that the appellant was showing "significantly increased interest in being able to go back to work and to manage that situation".
On 17 June 2013 a suitable duties plan facilitating the appellant's return to work was signed by Dr Ganter and subsequently signed by all other parties on 21 June 2013. The plan allowed the appellant to take one week's recreation leave before commencing work on 1 July 2015.
Stressors
The appellant filed a list of stressors in the Commission on 18 March 2014. The list is in the evidence as Exhibit 1. His stressors involve allegations of unreasonable management action taken between 30 May 2013 and 23 July 2013. Exhibit 1 describes the stressors in the following terms:
1. "Failure of QPS Management (Assistant Commissioner Hogan) to inform me of intended action from Independent Medical Examination (by Doctor Mann on 30/05/13) as required.
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.
3. Superintendent Wilkins's 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.
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.
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."
Stressor One
In the first instance the appellant said that the QPS failed to inform him on a timely basis of its response to the 30 May 2013 report arising from his independent medical examination. He said he did not receive a response within the 14 days specified and that he only ultimately received a response on 12 July 2013 after he had emailed the QPS on 28 June 2013 and 9 July 2013 requesting a response.
Despite the appellant's complaints, an email in the evidence as Exhibit 25 establishes that he received an email from Ms Slater on 7 June 2013 in which he was provided with a copy of Dr Mann's report and informed that a copy had also been provided to Dr Ganter. In the email Ms Slater asked the appellant to forward a copy of a workers' compensation medical certificate so that she could "commence completing a suitable duties plan". Ms Slater then asked appellant to contact her "at your earliest convenience some time today to discuss your return to work."
Subsequently, as disclosed by Exhibit 28, Dr Ganter signed a return to work plan on 17 June 2013 with the plan being signed by the appellant and the QPS on 21 June 2013. The return to work plan provided for the appellant to commence work on 1 July 2013. Despite these developments the appellant persisted with his request that he get a response from the QPS arising from his independent medical examination. He emailed Ms Slater on 28 June 2013 requesting a response and followed up with another email on 9 July 2013 (Exhibit 29). In the latter email the appellant said that he had become increasingly anxious about a lack of response and stated that he feared that the avenue of a "QPS forced medical retirement" had not been closed.
I think it reasonably follows that if the QPS, after receipt of Dr Mann's report, had made a decision to return the appellant to work under a suitable duties plan, then the Commissioner had not taken a decision to medically retire the appellant. The email from Ms Slater on 7 June 2013 is evidence that a decision had not been taken by the QPS to medically retire the appellant. The return to work plan signed by the QPS and the appellant on 21 June 2013 is further evidence of this outcome.
The undertaking from the QPS to provide a response within 14 days was contained in correspondence addressed to the appellant and dated 21 May 2012. The correspondence (Exhibit 15) included the following paragraph:
"Following the receipt of the report, the QPS will consider the information provided and inform you in writing of the action the QPS intends to take. This will occur, unless justifiable, within 14 days of the receipt of the report from the doctor."
The discretion available to the QPS to extend the 14 day period meant that the appellant was also required to establish that, if this discretion were exercised, it was exercised unreasonably. In the end result nothing turns on the issue because, in my view, the appellant had been informed of the QPS position within the specified period.
While the appellant said that he was worried that the QPS might medically retire him, the facts do not support this concern. While the QPS asked the appellant to undergo an independent medical examination it had always evinced an intention to return the appellant to work. This is illustrated by the background material provided to Dr Mann prior to the conduct of his examination. In this material the QPS flagged its commitment to return the appellant to work. The background material which is in the evidence as an attachment to the QPS correspondence dated 21 May 2012 (Exhibit 15) included the following concluding paragraph:
"We are committed to returning Constable Fuller to work within the QPS and have suitable duties available to him when he is medically cleared to participate".
Despite this information, the email from Ms Slater on 7 June 2013, the completion of the return to work plan, and the commencement of work on 1 July 2013, the appellant said he became anxious about his status when Superintendent Wilkins asked him in a meeting on 1 July 2012 whether he had resolved his position in respect to medical retirement. The appellant did not treat the statement on face value as a simple enquiry designed to surface his commitment to rejoin the QPS in an active and operational level. He said that these observations made him anxious and concerned about QPS's intentions. I think the point taken by the appellant in this regard was frivolous. The Superintendent was entitled to get confirmation from the appellant that the medical retirement option was removed from consideration.
There was nothing unreasonable about the QPS handling of the matter. When the appellant informed the QPS in early May that he had a clearance from his doctor to return to work, the QPS acted promptly to arrange an independent medical examination which was their prerogative. The medical examination was able to be arranged quickly and a report arising from the examination was available on 30 May 2013. By 7 June 2013 the appellant had been informed by the QPS that he would be returned to work under a suitable duties plan. By 17 June 2013 the appellant's doctor had signed the plan and by 21 June 2013 the plan had been finalised. After this the appellant had sought and was granted a week's recreational leave, following which he commenced work on 1 July 2013.
Notwithstanding the findings of fact, there was an absence of specific medical evidence connecting the development of a psychological injury with the events described by the appellant relating to Stressor 1. When the appellant attended on Ms Rafferty on 2 July 2013 he did not inform her of matters relevant to the stressor. Nor did he raise relevant matters with Dr Ganter in either the 6 June or 21 June 2013 consultations. The notes of the 21 June 2013 consultation stated that the appellant was going well and that he was returning to work as planned.
Stressor Two
The appellant said that during a meeting held on 1 July 2013, Superintendent Wilkins offered him unqualified and unsolicited psychological advice in relation to his complaint against Sergeant Callow. Further, the appellant said that the Superintendent made his acceptance of a complaint of criminal assault against Sergeant Callow, conditional on the appellant's consideration of the unsolicited advice.
The 1 July 2013 meeting was convened to discuss the appellant's return to work. The suitable duties plan finalised on 21 June 2013 provided for the completion of an operational re-orientation program at Police Headquarters in Brisbane. Acting Inspector Miers had been designated as the appellant's suitable duties plan supervisor, while Superintendent Wilkins was his Officer in Charge. An email in the evidence as Exhibit 62 disclosed that Acting Assistant Commissioner Hogan had referred responsibility for the appellant to Superintendent Wilkins and had pointed out that the appellant would need to complete the career transition process and the operational re-orientation process.
It was in this meeting that the appellant elected to raise his longstanding grievance against Sergeant Callow. He did this notwithstanding that the QPS had already resolved his initial complaint made in September the previous year through an internal disciplinary process. In the meeting the appellant told Superintendent Wilkins that he wanted to make a criminal complaint against Sergeant Callow. It was the appellant's evidence that Superintendent Wilkins questioned the wisdom of this course of action and said to him that:
“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.”
While the appellant considered that Superintendent Wilkins may have been trying to talk him out of making the complaint, he said that after some discussion the Superintendent did agree that the complaint should be taken. An email from Acting Inspector Miers dated 5 July 2013 (Exhibit 60) noted that the appellant had said on 1 July 2013 that he wanted to make a criminal complaint of assault and confirmed that the complaint had been processed.
The appellant's decision to revive his complaint against Sergeant Callow was inconsistent with his rationalisation of the matter during the assessments conducted by Dr Chung and Dr Mann. Dr Chung's report of 13 May 2013 (Exhibit ) included the following extract at page 9:
"He has over time worked through his sense of injustice and is willing to accept that given the current situation it would be unwise for him to seek further consequences for his superior officer".
Further in his assessment by Dr Mann on 30 May 2013, the appellant told Dr Mann that the incident of 9 August 2012 was not a "prominent thought and it doesn't take me anywhere when I think it". In his conclusions Dr Mann said that he did not believe that the appellant was suffering from "any current impairment related to the incident of 9/8/12."
Notwithstanding these views the appellant elected to mark his return to work with a demand that his Officer in Charge accept a criminal complaint in respect to an incident that occurred nearly a year ago and an incident which had already been investigated and finalised by the QPS. It was in this context that the appellant contested the reasonableness of Superintendent Wilkins' response in questioning the wisdom and practicality of the appellant taking such a course of action. Further in these proceedings the appellant sought to sustain a claim of unreasonable management action despite Superintendent Wilkins acknowledging the appellant's right to make a complaint and taking the necessary steps to ensure that the complaint was accepted.
Superintendent Wilkins' conduct was not unreasonable having regard to all relevant facts and circumstances. As the appellant's officer in charge he was entitled to make enquiries about the appellant's commitment to resuming his career in the QPS, to confirm his disinterest in medical retirement, and to surface barriers to the successful implementation of the suitable duties plan. The appellant could have made a criminal complaint about Sergeant Callow's conduct at any time over the preceding twelve months, but elected not to do so. The appellant had suffered a psychological injury and the incident involving Sergeant Callow was central to the development of his condition. If he wanted to make acceptance of a criminal complaint a condition of his return to work, he should have raised the matter during discussions over the terms of his suitable duties plan.
The appellant also alleged that Superintendent Wilkins acted unreasonably in ignoring QPS Policy in not following defined procedures when dealing with victims of crime. The appellant's argument was to the effect that Superintendent Wilkins should have referred the appellant to SupportLink in accordance with the QPS policy applicable to victims of crime (Exhibit 63).
Exhibit 63 provides inter alia that where a member of the police service considers that an "at risk" person would benefit by receiving additional support from an external agency, "they are to consider referring the person to supportLink for assistance." In this regard it was the submission of the appellant that Superintendent Wilkins ignored QPS policy in that he did not refer the appellant to SupportLink and he "did not even refer to SupportLink" when speaking to the appellant on 1 July 2013.
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.
It is not a plausible line of argument for the appellant to assert that Superintendent Wilkins should have greeted him on 1 July 2013 as a victim of crime and not as a person returning to work under a predetermined suitable duties plan which had been resolved with the concurrence of the appellant's GP, Dr Ganter and the appellant himself.
It was significant that the appellant's criticism of Superintendent Wilkins conduct of the meeting was not discussed when he met with Ms Rafferty the following day, nor during the subsequent session on 16 July 2013. Ms Rafferty accepted that psychological issues or stressors arising from the workplace were not mentioned in either of these consultations.
Stressor Three
The appellant complained about his treatment by Superintendent Wilkins in a meeting held on 5 July 2013. He said in effect that he was disciplined for sending an email (Exhibit 10) to Inspector Henderson earlier that day in which he reiterated an earlier request that the Inspector provide him with the reasons for concluding his complaint against Sergeant Callow on the basis of managerial guidance.
In relying on his diary notes of the day (Exhibit 35), the appellant said that in the meeting on 5 July 2013 Superintendent Wilkins told him that he should not be pursuing emails of the type that he sent to Inspector Henderson earlier that morning; that he was not to correspond with Inspector Henderson; that Acting Commissioner Condon was not subject to human resource management policies; that the appellant should know that he is not going to get further information about the reasons; and that the "complaint is absolutely finalised and you are to cease and desist from further correspondence on the matter".
The meeting was attended by the appellant, Acting Inspector Miers and Superintendent Wilkins. The evidence about what transpired at the meeting was broadly consistent across all three participants, with some exceptions. Superintendent Wilkins denied that he had told the appellant that the QPS human resource management policies did not apply to Assistant Commissioner Condon or other members of the executives; both Superintendent Wilkins and Acting Inspector Miers said that the appellant was told that he was not to contact Inspector Henderson because she no longer held the practice manager role; and Acting Inspector Miers said that he took some time to explain to the appellant the nature and extent of the managerial action taken against Sergeant Callow.
The appellant's case is that he was entitled to get the further information he sought and that Superintendent Wilkins acted unreasonably in denying him access to the information, and in actively discouraging him or prohibiting him from continuing to request release of the information. The appellant said at page 18 of his written submission that:
"There was only one proper course of action that Wilkins should have taken. That was to look at the facts of the situation, apply the QPS policy and to agree with the view of the appellant that Condon had not given reasons. It was then incumbent on Wilkins to assure the appellant that he would make the appropriate inquiries to satisfy the QPS Policy 2013/53 requirement that ‘reasons’ be given."
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.
In fairness to Superintendent Wilkins, he first met the appellant on 1 July 2013 and he had only recently assumed control of the covert and specialist operations group. While he had received briefings about the appellant's circumstances, he may not been fully apprised of all the relevant detail. As such it was not unreasonable for him to provide some practical or common sense advice based on his experience as a manager within the QPS. Because the appellant resented the advice does not however make it unreasonable and while, in retrospect, the appellant's request might have been handled differently, an evaluation of the management action involved is more likely to produce an outcome that the management action was blemished rather than action that should be characterised in all the circumstances of this case as unreasonable.
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.
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.
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.
Stressor Four
The appellant said that the QPS Injury Management Coordinator, Sue Olsen, falsely promised him a host placement in the Toowoomba district, failed to consult adequately with him about his suitable duties plan, and failed to conclude his suitable duties plan in a timely manner. The complaint was about the version of his suitable duties plan that was to commence from Monday 22 July 2013. The appellant submitted that the management or mismanagement of these issues amounted to unreasonable management action.
In terms of the false promise, it was the appellant's evidence that in a meeting he attended with Ms Olsen and Acting Inspector Miers on 1 July 2013 he was told by Ms Olsen that "she would source me a host placement in Toowoomba" (T2-38). He said he was encouraged by this statement because Toowoomba was where he wanted to be placed. However in the proceedings, instead of treating the statement as aspirational, he elected to articulate a view that in making a promise that she could not keep, Ms Olson was intentionally deceiving him and was, in effect, falsely raising his prospects of a placement in Toowoomba. The deceit was made apparent when the appellant next met Ms Olsen on 15 July 2013 and when Ms Olsen told him that he would not receive a host placement in the Toowoomba district. Ms Olsen agreed that she told the appellant she would source him a host placement in Toowoomba. She said that this was her intention.
While Ms Olsen said in her evidence, including in the prior statement she had prepared (Exhibit 64), that she had told the appellant that she would source a host placement within the Toowoomba District, I am inclined to the view that this was an aspirational statement which was made consistent with the goal of the suitable duties plan which was to "undertake the ORP process, complete the skills audit and then commencement within a general duties police station (host)" (Exhibit 64). I doubt 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. If he had held that expectation, and he was of the belief that he had been misled and deceived by Ms Olsen, it would be expected that such views would have surfaced during the 15 July 2013 meeting. However, as the transcript of this meeting (Exhibit 40) discloses, no such criticism emerged.
The appellant did not accuse Ms Olsen of breaking a promise in the meeting of 15 July 2013 nor did he challenge the veracity of Ms Olsen's opening statement on 15 July 2013 when she said:
" … basically it's my responsibility then to make contact with the district officers or superintendents in the areas to say 'can we place them there'. Toowoomba's come back and said no."
In terms of the suitable duties plan, the appellant said that while Ms Olsen had emailed him a copy of the plan on 18 July 2013, she had prepared the plan without consulting him, his treating GP, his treating psychologist, or his workplace supervisor. The appellant said that his GP, Dr Ganter, was not provided with a copy of the plan until 23 July 2013 notwithstanding that the commencement date for the plan was 22 July 2013.
It was Ms Olsen's evidence that she forwarded the suitable duties plan to the appellant at 8.22 am on 18 July 2013. The appellant did not reply to this email but Acting Inspector Miers did. In his response of the same date he pointed out that he had previewed the plan with the appellant; that there were matters requiring clarification; and that neither the appellant nor himself had yet signed the plan. Ms Olsen responded to this email later on the same day and informed Acting Inspector Miers of her position in respect to the matters raised in his email. All the emails are in the evidence as Exhibit 68.
The appellant did reply to Ms Olsen the following day but this email was restricted to a discussion about the difficulty being experienced in finding the appellant a host placement. However he did send an email to Acting Inspector Miers (Exhibit 45) on 19 July 2013 at 2.48 pm in which he expressed concern that Superintendent Wilkins wanted to terminate his involvement in the Operational Reorientation Process as soon as the appellant secured his OST requalification. The matter in issue went to the timing of the appellant's departure from his current location in Police Headquarters in Brisbane and his commencement of Operational General Duties at a host station. The appellant did not want his current arrangements to change until such time as he had completed all aspects of his training and re-orientation. His email included the following:
"I have participated in the current SDP/ORP with enthusiasm and gusto. I am committed to 'getting up to speed' and making myself as 'marketable' as possible to a Host Placement area. My expectation is that by completing this Suitable Duties Program I will be operational ready on my first shift with a Host Placement station in the Career Transition Phase."
Acting Inspector Miers responded to the email at 4.14 pm on the same day. In the email he confirmed the content of an earlier discussion with the appellant and said that the matters raised in the appellant's email would be discussed with Ms Olsen in a meeting at 2.00 pm on 23 July 2013. The appellant agreed that he and Acting Inspector Miers had met to discuss the suitable duties plan prepared by Ms Olsen. He said that they compared the content of the new plan with the existing plan, and had noted a number of significant changes.
It was Ms Olsen's evidence that the suitable duties plan that she distributed on 18 July 2013 was to be regarded as a draft. The signature section of the plan was introduced by the words "The following parties agree to the above rehabilitation plan". The parties identified were the appellant, Dr Ganter, Acting Inspector Miers, and Ms Olsen. Neither Ms Olsen's signature nor any other signature appeared on the draft. It was accepted that the plan required all four signatures before it could be regarded as finalised.
I do not accept the appellant's claims that there was a failure of consultation amounting to unreasonable management action or that the failure to implement the new suitable duties plan before 22 July 2013 constituted unreasonable management action. Importantly the prospect that the first plan might need to be extended was raised by Ms Olsen with the appellant on 15 July 2013. The transcript of appellant's conversation with Ms Olsen (Exhibit 40) discloses that Ms Olsen told the appellant that she knew the plan was running out on Friday 19 July 2013 and that "we may need to extend the plan another couple of weeks for you to continue on." In his response the appellant acknowledged that he "expected the plan to continue for another period of time". Consequently as of 15 July 2013 the appellant knew that it was likely that the current plan would continue to operate beyond its nominal expiry date. Further I accept the submission of the respondent (paragraph 44) that what "cannot be ignored is that the second plan would be a continuation of the process of reorientation as a prelude to return to general duties as already enshrined in the first" suitable duties plan.
It was in this context that Ms Olsen prepared and distributed a draft new plan on 18 July 2013. In the first instance she sent the new plan to the appellant and Acting Inspector Miers. After receipt of the plan the appellant and Acting Inspector Miers sat down and reviewed the plan and in the process identified a number of concerns which were then relayed back to Ms Olsen. As a result, a meeting was arranged for 2.00 pm on Tuesday 23 July 2013 to discuss any changes proposed by the appellant or Acting Inspector Miers. At this point in time no one had signed the plan, it remained in draft form, consultation was not complete, and none of the four signatories were in place.
While I accept that the plan drafted by Ms Olsen may have included changes not favoured by the appellant, the QPS was not precluded from advocating changes to the plan. The important consideration was that, at this stage only proposals for change were being raised and pending any conclusion around changes, the current plan would continue to operate.
I am not persuaded that the sequence of events associated with the development of the second suitable duties plan can sustain a finding of unreasonable management action. In terms of the relevant medical evidence, the appellant attended on Ms Rafferty on 16 July 2013 and Dr Ganter on 20 July 2013. Despite the disappointment the appellant would have experienced arising from Ms Olsen's false promise and the advice she delivered on 15 July 2013 about her failure to secure the Toowoomba placement, the appellant did not mention the matter to Ms Ganter. The predominant issue in this consultation appeared to relate to fatigue reported by the appellant arising from his commuting from Toowoomba to Roma Street each day.
However the appellant did complain about matters associated with his training and his suitable duties plan in his consultation with Dr Ganter on 20 July 2013. In this consultation, Dr Ganter said that the appellant reported a lack of support and direction in the conduct of the orientation program and that he was experiencing a fairly hostile work environment. The appellant also reported a concern that he would be sent to a host station before he completed his orientation at police headquarters. Significantly, the matters canvassed in this consultation did not preclude Dr Ganter from signing the draft suitable duties plan on 23 July 2013.
Stressor Five
The appellant submitted that he was unreasonably treated by Superintendent Wilkins and Acting Inspector Miers in a meeting on Thursday 18 July 2013 and by Acting Inspector Miers in a separate meeting on Monday 22 July 2013.
In terms of the meeting on 18 July 2013, the appellant complained about exchanges which surfaced the probability that he would not secure a host station in or about Toowoomba and that he needed to recognise that he may be required to accept a host placement in Brisbane or some other location which involved significant travel time from the appellant's home in Toowoomba. The appellant complained in particular about propositions that he may need to consider a host placement at Fortitude Valley or Brisbane City or that he may need to consider renting accommodation in Ipswich to minimise travel.
These conversations took place because following the completion of his orientation and operational training at Police Headquarters, the appellant was to be posted to a police station where he would commence his operational service. The appellant wanted to be posted to Toowoomba which was his place of residence, but no positions were available. Further, positions were not available in other police stations located in the Toowoomba or Darling Downs area. An enduring difficulty for the appellant in these discussions was that his substantive position was a Brisbane based position and, notwithstanding that his place of work was Brisbane, the appellant had taken the decision to move the family home from Brisbane to Toowoomba. It followed that had his injury not occurred he would have, subject to transfer requests, continued to reside in Toowoomba while working in Brisbane.
It was in this context that the appellant said that the QPS had acted unreasonably in its approach to the determination of a host station. It was not clear however whether the appellant was asserting that it was unreasonable for him not to be placed in Toowoomba or whether he was asserting that it was unreasonable to suggest the he might be placed at Brisbane City or Fortitude Valley stations. In presenting his argument the appellant relied in part on s 42(f) of the Act. This section prescribed in effect that suitable duties included the performance of duties at a location other than the location at which the worker was injured, provided that it was reasonable to expect the worker to attend at the other location.
The difficulty for the appellant was that the determination of reasonableness under s 42 would be made on the basis that the location of injury was the Brisbane suburb of West End. While the appellant pointed to a number of benefits associated with the West End place of work, including free parking and temporary accommodation, this factor nevertheless diminished the force of any argument that it would be unreasonable for the host station to be located in Brisbane.
While the appellant focussed his attention on the possibility that he might be placed at Brisbane City or Fortitude Valley, as I understood the associated facts and circumstances, no decision had been made about where the appellant would be placed and the purpose of the discussion was to increase the appellant's awareness of the probability that he would not get a placement in the Toowoomba area and that he needed to turn his mind to other possibilities. As it transpired, the gist of the appellant's evidence appeared to be that the Brisbane City or Fortitude Valley placements were only raised to emphasise the desirability of a placement at Ipswich. The appellant said that at the start of the meeting Superintendent Wilkins said that he had heard comment made that the appellant "wasn't real keen to go to Ipswich". After this introduction the appellant said that Superintendent Wilkins encouraged him to accept a placement at Ipswich and said that "if you don't take Ipswich, if you don't think very seriously about taking Ipswich, you might find yourself in Brisbane City Police Station or Fortitude Valley Police Station" (T2-68).
In the circumstances the appellant's complaints about the prospects of having to work at Brisbane City or Fortitude Valley are largely irrelevant. The main consideration was whether it was unreasonable for Superintendent Wilkins or Acting Inspector Miers to try to steer him in a direction of acceptance of an Ipswich placement. For my part I do not find anything inherently unreasonable in the fact that Superintendent Wilkins or Acting Inspector Miers wanted to raise the appellant's awareness about realistic options for placement. While the appellant may have preferred to continue to hope for a Toowoomba placement, Superintendent Wilkins and Acting Inspector Miers knew this was not going to happen. Consequently the focus for them was on encouraging the appellant to take the most appropriate placement available at the time (Ipswich) in the knowledge that if he declined to accept Ipswich it was possible that he would eventually be required to accept a less favourable destination.
On the evidence, it was Ms Olsen's intention to confirm an offer for placement at Ipswich during the meeting scheduled on 23 July 2013. In the meantime the appellant raised the matter with Dr Ganter on 20 July 2013. The entry in Dr Ganter's medical records read "likely to get host placement in Ipswich which is 1.5 hrs away from home". The evidence around this consultation suggests that the significant anxiety for the appellant arising out of the meetings with Superintendent Wilkins and Acting Inspector Miers was that which stemmed from his failure to secure a host placement in Toowoomba and the requirement to travel to Ipswich.
In terms of the discussion with Acting Inspector Miers on 22 July 2013 I am unable to discern any legitimate basis for the appellant's criticisms. A transcript of this discussion is in the evidence as Exhibit 72. In his written submission (page 24) the appellant took exception to an exchange wherein Acting Inspector Miers expressed certain views about the appellant taking some personal responsibility for his circumstances and the exigencies of police service employment including a requirement that he travel from home to work and that he participate in a shift work roster. Again it appeared to be reasonably clear that the appellant's basic complaint was that he could not secure a host placement in Toowoomba, an outcome in respect of which he had not asserted was attended by unreasonable management action.
Jones v Dunkel
The appellant submitted that a Jones v Dunkel inference should be drawn arising from the decision of the respondent not to call four members of the QPS to give evidence.
The appellant said that Assistant Commissioner Hogan and Assistant Commissioner Crawford should have been called to testify in relation to the appellant's allegation that procedure was breached because he had not been informed within 14 days of the QPS response to the outcome of the 30 May 2012 independent medical examination. Inspector Henderson and Assistant Commissioner Condon should have been called in relation to the appellant's complaint that he was not informed of the reasons for the decision taken in respect to the appellant's complaint against Sergeant Callow.
The approach to the application of the Jones v Dunkel rule was discussed by a Full Bench of the Australian Industrial Relations Commission in Xiu Zhen Huang v Rheem Australia[1]. The rule is breached by an unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. The appellant's proposition was that the evidence in question was relevant and that the witnesses in question were more readily available to be called by the respondent than the appellant. A breach of the rule in Jones v Dunkel would ordinarily lead to the drawing of an adverse inference to the effect that the uncalled evidence would not have helped the party’s case: not an inference that the uncalled evidence would have been positively unfavourable to the party’s case or positively favourable to the opposing party’s case. A breach of the rule may also result in a more ready acceptance of the opposing party’s evidence on the fact in question.
[1] Xiu Zhen Huang v Rheem Australia Pty Ltd C2004/1773, 9 February 2005, PR954993
The impact on the fact finding process of the decision not to call any of the four witnesses mentioned is not significant. The underlying facts are not in dispute. That is, the appellant did not receive a letter from Assistant Commissioner Hogan within 14 days of the independent medical examination, and the appellant had not received prior to 23 July 2012 any written response to his request for the reasons for the QPS decision to finalise the complaint against Sergeant Callow by managerial guidance. The position of the respondent was to decline to develop any evidentiary defence in respect to the appellant's complaint against Sergeant Callow, but to defend its position in relation to the independent medical examination by relying on oral and documentary evidence and pointing out that compliance with the fourteen day period was discretionary.
In terms of the independent medical examination the respondent relied on the evidence of Ms Slater including Exhibit 25 which was an email from Ms Slater to the appellant dated 7 June 2013, and Exhibit 28 which was the suitable duties plan signed by the appellant on 21 June 2013. From the respondent's point of view this evidence was sufficient to establish that the appellant knew within 14 days of the independent medical examination that he was not going to be medically retired and knew that the intention of the QPS was to conclude a suitable duties plan. Further the respondent submitted that the communication undertaking to provide a QPS response within 14 days also stated that this period could be extended if circumstances justified it.
The fact that Assistant Commissioner Condon had not provided reasons or explicit reasons for his decision to resolve the complaint against Sergeant Callow through managerial guidance was not in dispute. Further, given that Assistant Commissioner Condon had designated Inspector Henderson as the point of contact for any further discussion about the matter, it is doubtful that evidence from Assistant Commissioner Condon would have added much more to the proceedings.
Inspector Henderson's circumstances are a little different. The appellant said in effect that, at the invitation of Assistant Commissioner Condon, he raised the matter in issue with Inspector Henderson by email on 19 March 2013. He also discussed the matter with her in a telephone conversation on the same day. In an email dated 5 July 2013 (Exhibit 10) the appellant revived the same matter with Inspector Henderson and made certain allegations about what she said to him in the phone conversation that took place on 19 March 2013. The significant allegation was that Inspector Henderson said that she was not prepared to answer the question specified in the 19 March 2013 email which asked that reasons for the decision on his complaint about Sergeant Callow be provided. The respondent elected not to call Inspector Henderson to rebut these allegations and consequently I have no reason to doubt the veracity of the appellant's evidence.
Conclusion
While I have a reservation about the strength of the alignment between the appellant's stressors and the medical evidence, I accept that the evidence of both Dr Ganter and Ms Rafferty is sufficient to establish the necessary association between the appellant's injury and his employment.
It was the appellant's evidence that he left work on the morning of 23 July 2013 after his decompensation during a meeting with Acting Inspector Miers and others. The appellant said he attended on Dr Ganter the next day. The medical records of this consultation (24 July 2013) which were in the evidence as Exhibit 38 included the following notes:
“Walked out of work yesterday. Meeting suitable duties plan supervisor yesterday. Not feeling like is supported by any of the management at work. Feels deserted and not been treated reasonable at work.”
Dr Ganter said that during the consultation the appellant described panicky symptoms when he contemplated work related issues. He said that the symptoms that were described to him by the appellant pointed to a depressed mood and a high level of anxiety. Dr Ganter opined at T2-34 that based on the history provided to him by the appellant he formed the view that the depressive disorder that the appellant was demonstrating "was a reaction to the work related stress" that the appellant was undergoing at that time.
The appellant attended on Ms Rafferty on 31 July 2013. In her evidence at T2-5 she said that she completed diagnostic testing on the appellant using the DASS scale and said that the scores recorded by the appellant indicated "stress in the severe range, anxiety and depression in the extremely severe range." It was Ms Rafferty's evidence that the anxiety and depression should be regarded as an aggravation of the appellant's previous adjustment disorder. It was also her evidence at T2-7 that she attributed the appellant's illness on 23 July 2013 to his experiences at work following his return to work on 1 July 2013.
The appellant articulated his cause with considerable skill and demonstrated a sound knowledge of the competing legal propositions. However in the end result he has fallen short of establishing that it was more probable than not that his injury has arisen out of or in the course of unreasonable management action taken in an unreasonable way. This determination is made in respect to the stressors nominated by the appellant which he said were causative of the development of his illness or of the aggravation of his previous adjustment disorder, and which he said arose out of unreasonable management action.
It may have been that the appellant's prospects of success were diminished by the exclusion of stressors which may have been significant in the development of his illness. In this regard it appeared to me that some of the stress and anxiety suffered by the appellant was related to events or outcomes at work where he accepted that a connection with unreasonable management action could not be sustained. These stressors included the decision to resolve his initial complaint about Sergeant Callow by managerial guidance; his failure to secure a host placement at Toowoomba; and the consequences of his personal decision to relocate the family home from Brisbane to Toowoomba.
The appeal is dismissed and the decision of the regulator dated 15 January 2014 is confirmed. The matter of costs is reserved.
I order accordingly.
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