Galjaardt v Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Galjaardt v Workers' Compensation Regulator; [2018] QIRC 070
PARTIES:	Galjaardt, Theodore (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2016/25
PROCEEDING:	Appeal against decision
DELIVERED ON: HEARING DATES:	13 June 2018 26 April 2017; 15 August 2017; 28 September 2017; 17 October 2017; 6 December 2017; 26 February 2018; 26 March 2018, 27 March 2018, 28 March 2018, 31 May 2018.
HEARD AT:	Brisbane Gladstone
MEMBER:	Black IC
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL AGAINST DECISION - Psychiatric or psychological injury -.
CASES:	Workers' Compensation and Rehabilitation Act 2003 s 32
APPEARANCES:	Mr T Galjaardt, Appellant. Dr M Spry of Counsel, for the Workers Compensation Regulator, directly instructed;

Decision

Introduction

Mr Theo Galjaardt (the appellant) appeals a decision of the Workers' Compensation Regulator to reject his application for compensation arising from a psychological injury that he said he sustained while he was employed by Bechtel Construction Australia Pty Ltd on a construction site near Gladstone.
The appellant lodged his application for compensation with WorkCover on 7 October 2014 in respect of a psychological injury allegedly sustained over a period of time from 2012 to 28 May 2014. In a decision dated 3 July 2015, WorkCover rejected the claim for compensation. The appellant asked the regulator to review this decision on 30 September 2015, however on 21 December 2015 the regulator confirmed WorkCover's decision to reject the claim. The appellant appealed the regulator's decision on 3 February 2016.
Appellant's Case

The essence of the appellant's case was that the compounding impact of inappropriate conduct at the workplace contributed to the development, over time, of a psychological injury. His circumstances were exacerbated by a failure by Bechtel Constructions to respond appropriately to complaints made by him.

The effect of the appellant's position was that he had regularly complained to supervisors and management about the offending conduct, but that the conduct did not stop and inadequate sanctions were imposed on the offending workers.

The appellant had been employed by Bechtel Constructions between 2011 and August 2014. He said that he was first subject to inappropriate behaviour around June or July 2012 when a co-worker unfairly complained about him to their supervisor. Over time, the appellant said that he had been subject to bullying and harassment from both supervisors and co-workers. Eventually he stopped work for Bechtel on 27 May 2014 because of health concerns and was subsequently retrenched by Bechtel on 31 July 2014.
Matters in Contention

While the regulator conceded that the appellant has suffered a psychological injury, it rejected the proposition that the injury was causally connected with the appellant's employment. The principal matters in contention are listed below:

(i)The extent and nature of any inappropriate behaviour in the workplace;
(ii) Whether conduct in the workplace contributed to the development of the appellant's injury;
(iii) If conduct in the workplace contributed to the appellant's injury and the conduct involved management action, whether the management action was reasonable and reasonably taken;
(iv)Whether the medical evidence supports the appellant's case.

Evidence

Evidence in the proceedings was given by the following witnesses:

For the appellant:

Theo Galjaardt (appellant)
Patrick King (co-worker)
Sean Hume (co-worker)
Dr Tony Rafter (cardiologist)
Dr Chandra Rayi (general practitioner)
Dr Sarangi Ratnayake (general practitioner)
For the respondent:
David Smith (co-worker)
Russell Morrison (supervisor)
Brian Buttsworth (co-worker)
Duncan Nicholson (supervisor)

Stressors

The appellant identified a number of stressors which he said were causative of his psychological injury. The appellant attributed his injury to bullying and harassment by co-workers as well as the inadequacy of the supervisory response to his complaints. In particular, he alluded to threatening and intimidatory behaviour by David Drinkwater and Brian Buttsworth, a failure by his supervisor (Keith Rau) to maintain a stress-free working environment, and aggressive behaviour by a supervisor (Chris Carter).

The appellant said that the bullying and harassment by co-workers occurred over a long period of time, but principally during his employment at the Fisherman's Landing Northern Extension (FLNE).

The appellant maintained that his stress was exacerbated by inaction on the part of Bechtel supervisors, and their failure to respond to his complaints on a timely basis and to stamp out the offending behaviour.

Incident with David Smith

In June or July 2012, the appellant alleged that David Smith had threatened him in the workplace and subsequently falsely claimed that the appellant had tried to assault him in an off-site location.
On the appellant's version, the incident was sparked when the appellant elected to take David Smith to task for operating a crane without a dogman. David Smith did not appreciate the appellant's intervention and told the appellant that "you're lucky you're inside the yard". The appellant took offence at this apparent physical threat and tried to make contact with a supervisor to report the incident, but was unable to locate or make phone contact with a supervisor.

This could have been the end of the matter, but the next morning the appellant was summoned by his supervisor and informed that David Smith had lodged a complaint about him. David Smith had complained in effect that the workplace disagreement had extended to an off-site location and that when he was collecting a pizza on the way home, the appellant had verbally abused and threatened him in the car park of a pizza shop.

The appellant vigorously denied that such an altercation took place. He considered that David Smith was fabricating an incident to discredit him and to deflect attention from an anticipated complaint by the appellant about David Smith's unsafe work practices. The appellant threatened to resign, however his supervisor placated him and offered to transfer him to a different work location known as "Cell 3".

In his evidence, David Smith confirmed that he had made a complaint about the appellant, but denied that he had threatened the appellant in the work site the day before the pizza incident.

It was Patrick King's evidence that he worked with the appellant at the Alf O'Rourke lay-down area in 2012. He recalled that the appellant told him that he had been accused of threatening David Smith at a pizza shop. Mr King's opinion on the matter was that he doubted that the pizza shop incident occurred. He thought it unlikely that the appellant would have been in that part of town and he thought that David Smith might be capable of making up the story. His understanding was that there had been a "slight investigation" and that "nothing really came of it". Patrick King was not aware of any altercation occurring between the appellant and David Smith the day before the pizza incident.

Whether the appellant's criticisms of the work practices of a co-worker were justified is not able to be decided on the available evidence, but it might be accepted that David Smith resented the intervention, and that some verbal altercation may have ensued. It was however in my view an over-reaction for the appellant to conclude that he was at risk of physical harm when Smith said to him that he was lucky that the exchange took place on the work site.

Whether the appellant tried to continue the disagreement in the car park of a pizza shop cannot be determined given the conflict in the evidence. If there was a disagreement at work it appears to me that the incident should be considered relatively insignificant and it is difficult to accept that this event triggered a series of subsequent incidents, or was connected to a series of subsequent events, and significantly contributed to the development of the appellant's injury.
Aggressive Behaviour of Chris Carter
Chris Carter was not called to give evidence, and there is no rebuttal evidence available. The appellant's complaint against Carter was related to an event which followed the appellant's failure to attend for work on 30 September 2013. The appellant said that he had slept in and was subsequently woken when Carter telephoned him to ascertain his whereabouts.

The appellant took the precaution of securing a medical certificate to cover for his absence. His evidence was that when he attended for work the next day, Carter issued him with a warning in relation to his absence, but then "wanted to punch-on" when the appellant presented him with the medical certificate. The appellant said that Carter grabbed the certificate off him, tore it up, and threw it in the bin (T1-22).

I take Carter's conduct as described by the appellant to amount to an isolated incident. The appellant's evidence overall did not suggest that Carter engaged in repeated or persistent bullying or harassment of the appellant, and in some other respects the appellant was appreciative of Carter's efforts including when he took a photo of the snake poster at the appellant's request. Carter's behaviour is also to be understood in a context where one of his crane drivers has failed to attend for work and failed to provide any notice of his inability to attend for work. Any supervisor could be expected to express severe displeasure at such errant behaviour.

Cell 3 Supervision

The appellant worked in Cell 3 for approximately six months during the second half of 2012. The appellant complained that during this period of employment the standard of supervision was sub-standard and that the actions and expectations of his supervisor caused him stress.

The effect of the appellant's evidence was that towards the end of 2012 he sought a transfer to a night shift position at Fisherman's Landing and that he commenced work at FLNE in January 2013.

It was implicit in the appellant's evidence that he sought a transfer out of Cell 3 because of a stressful work environment. However, apart from a general assertion made by the appellant, very little evidence was adduced about his period of employment in Cell 3. The supervisor in question did not give evidence and the appellant did not provide any particulars that were informative of or illustrative of the factors said to be causative of stress.

There is insufficient evidence to support a conclusion that the appellant was subject to unreasonable management action during the course of his employment at Cell 3, or that his employment at Cell 3 had any significant connection with his psychological injury.

Threatened by Brian Buttsworth

The appellant said that he was arriving at work with other members of the night crew when he noticed Brian Buttsworth violently smashing a large branch over the Franna crane. He said that when Buttsworth saw the van approaching he wielded the broken branch at the van, a gesture the appellant took to be directed at himself, not at any other passenger in the van. The appellant said that he reported the incident to supervisors, including Russell Morrison, by phone in February 2014. The appellant's evidence about the incident is as follows (T1-25):

… upon our work van approaching the work site, 20 metres away, he's gone over and, you know, placed a large branch – which I understand had been washed up, you know, as – you know. But in any case he put it on the other side of the Franna, and as soon as he saw us coming into work, the van's getting closer, he's rushed over. No safety glasses, no hard hat.
He's determined to go and get it and it was all about the timing. He's gone and then grabbed that large stick. I'd probably estimate it to be, you know, as thick as my forearm and seven, eight foot long and then smashed it over a piece of equipment attached to the Franna, being the spreader, and then – you know, bits went flying everywhere and people were a bit gobsmacked. There was drivers waiting around. You know, contractors. Other staff. And then he's – you know, wielding at the van like this and then he's gone and thrown it in towards the tables and stuff, and then we've – I've – I wanted to get out of there, because I knew, you know, it was a – I thought, what the hell. I felt very uncomfortable.

The appellant said that when the incident occurred he was about 15 metres away from Buttsworth and was in the work van with other workers, including a supervisor, Duncan Nicholson. However despite the appellant's evidence that Nicholson was in the van with him during the alleged stick incident, Nicholson said that he did not witness the event described by the appellant. The effect of Buttsworth's evidence was that the event either did not occur or the appellant was alluding to his practice of using a stick to measure the fuel level of the crane.

The appellant said that he reported the incident to Russell Morrison who said he would action the matter. The appellant said that as far as he was aware Buttsworth received a "verbal" in respect to the matter. He said that Morrison told him that Buttsworth "was having a bad day". For his part, Morrison recalled the appellant reporting the incident in an upset and irate state (T3-79):

APPELLANT: Yes. Yes. Thank you?‑‑‑And said Brian's smashed a stick over the shredder bar and he's threatening or he threatened me with it, and I left nearly straight away to go out to have a look. If there's something there, I’ve got to find out. It was John Felton. He was in his work ute parked near the Franna and then over there, under a rotunda, were the other FLNE crew. So I went out and I asked John straight away. I said, Theo's in there and he's just said Brian's picked up this stick and smashed it across the Franna and threatened him with it and John said Brian hasn't picked up a stick. He hasn't done anything. I said, well, what have I got with Theo? What can I tell Theo? He just said, there's been no stick, so. By that time, the other crew went, you know, what's going on? They were overhearing and I said, well, did Brian threaten Theo with a stick? And, you know, that was – mate, I'm sorry, but they all laughed. They said no.

It is difficult to accept the appellant's evidence about this issue given the conflicting evidence of both Nicholson and Morrison. Nicholson was in the bus with the appellant when the event was said to have occurred, yet he said that the event did not happen. Morrison's evidence was to the same effect. He investigated the appellant's complaint immediately after the issue was reported to him, but he could not find anyone to corroborate the appellant's version. Buttsworth's evidence was somewhat equivocal in that while he denied that the incident occurred he also suggested that the appellant may have misconstrued his activity of using a stick broken from a branch as a dip stick for the purpose of checking the fuel level of the crane.

It was also relevant that when the appellant subsequently handed Whitton the itemised list of his complaints only a few weeks after the "stick" incident, the list did not include any reference to the stick incident.

Knife Incident with David Drinkwater

The appellant said that sometime around January or February 2014, at shift change-over time, David Drinkwater invited him into the load co-ordinator's hut where he produced a cache of hunting knives. Drinkwater had taken the knives out of his bag and displayed them on a table inside the hut. Drinkwater's demeanour and language caused the appellant to feel shocked, intimidated, and threatened. The appellant said that a number of people, including Brian Buttsworth, saw him enter the hut with Drinkwater. The appellant said that when Drinkwater had laid the knives out on the table the following exchange occurred (T1-27):

APPELLANT:   Oh, sorry. Oh. Anyway – yeah, so he's had his back facing towards me, him facing towards the table, with his bag in front of him. He's then opened his bag and taken out a large cloth thing like this. Probably about that long. And put it on the table, unfolded it and I didn't know until he turned around. He turned around, stepped back, and then he said, "What do you think of those" – can I swear?
COMMISSIONER:   Yes, go ahead.
APPELLANT:   Yeah. "What do you think of those, you cunt?" You know, like this, or "you fuckhead", something like that. And I said, "What the fuck?" You know, "Dave", I said, you know, "what the hell are you doing?", or "What the fuck are you doing?", I said. Because it realised to me – I thought – you know, I was panicking and I thought, geez, you know – I was in shock. And – because I sort of waited up. And I thought, hang on, he's – he's not only just got hold of those. He's packed them in his bag the night before or in the morning and waited 12 hours and isolated me just to – you know, create that opportunity, and, you know, cause fear and intimidation. And I was absolutely flabbergasted and as it was then, you know, he had the opportunity to quickly bundle those into his bag and get in the – you know, back seat and nick off.

The appellant said that immediately after this incident he went to the supervisors' office and informed the supervisors present that Drinkwater had brought knives on to site and had threatened him with them. The effect of his evidence was that the supervisors were not prepared to take any action in the absence of proof that Drinkwater had brought knives on to the site. The appellant said that he reported the incident to the police the following day and subsequently expressed his concerns to the site Safety Manager, Norm Black, in March 2014.

Brian Buttsworth said that he recalled David Drinkwater inviting the appellant into the load controllers hut at shift changeover some time in February 2014. He agreed that he and a co-worker were waiting in a bus to go home and that they asked Drinkwater not to go into the hut, or not to talk to the appellant, because they wanted to go home. Buttsworth denied however that he had any knowledge of the knives that the appellant alleged had been produced by Drinkwater.

While I accept that the knife incident may have occurred in some form or other, and that the appellant would have interpreted Drinkwater's actions to involve threatening behaviour, the incident was not referenced in Nicholson's contemporaneous notes and did not assume any prominence in Whitton's notes or his investigation. It was also an isolated incident and no other evidence was adduced suggesting that Drinkwater had demonstrated an intention to inflict physical harm on the appellant.

Bullying by Day Shift Crew

The appellant maintained that after starting work at FLNE in January 2013, he observed friction between the day shift and the night shift crews and noted "disruptive behaviours" involving the dayshift crew towards the nightshift crew. These behaviours continued, and became more serious over time, with him becoming the target or victim of the day shift behaviour. The appellant said that the inappropriate behaviour extended from January 2013 to the end of May 2014.

The appellant complained about various acts of mischief and horseplay which he said was directed against him by the day shift in general. The appellant took offence when some one filled his hard hat with liquid coffee and when some one wrote that the appellant was a snake on a "Beware of Snakes" poster fixed to the wall of the main crib hut. He also complained about incidents in which rocks were placed in his work gloves; the work van was parked in such a way as to preclude access to the driver's door; and the van's air-conditioning settings were switched to "hot" and "high".

The appellant described his complaint about the snake poster as follows (T1-14):
… there was a poster that had been put on site on the main crib hut which is accessible to all contractors, trucks that were waiting for the barge to come in. So they had air con facility and, you know, could sit down and make a cuppa, fridge, whatnot, but on that poster, because a snake had been seen on site, they put a large poster on the door – like, on the window part, and everyone could see it and he has written on there, it said, 'Be aware, snake seen on site.' And then he's written in pen or Texta or something, yeah, very visible, it said, 'Yeah, his name is Theo.'

Both Buttsworth and Hume agreed that they had seen the snake poster with the writing alluding to the appellant as a snake. Hume said he saw the poster in the lunchroom (T1-77):
All right. And he used to meddle with – with Theo. He drawed – we – I just remember – remember one time in particular we had snake charts in the lunchroom. And he drawed on that, and he writ, "Theo the snake", or something, up on the wall.

The hard hat incident does not contribute much to the appellant's case. It was a single incident which occurred in early 2013. Nicholson or Whitton said that these events were typical on a construction site and happened to everyone. It may reveal something of the appellant's make-up that the incident was not forgotten and was included in the complaint note given to Whitton in March 2014. The exaggerated sentiment was expressed by the appellant in his evidence when he said that "you wear this thing every day. And, you know, for him to go and turn it upside down, pour coffee in it, is humiliating" (T1-49). Buttsworth however had a different perspective on the issue. He said that the practice of putting liquid into a co-workers hard hat was very common and happened to someone every day of the week.

The appellant also complained about various acts of "sabotage" perpetrated by the day shift crane operators at the end of their shift. He said that when he started work he would find grease placed on the steering wheel or under the door handle of the crane. He also said that the settings on the side view mirrors were changed to render the mirrors ineffective while he would also find the crane seat lowered to such a position where the vision of the operator was severely impaired.

The appellant identified Drinkwater and Buttsworth as the principal offenders. Both operated the appellant's crane during the day shift and were in a position to make the alterations complained about by the appellant.

The effect of the appellant's evidence was that while he was not necessarily concerned by some of the more trivial incidents which he referred to as displays of immaturity, he took a different view when he perceived that he was a personal target of the activities, and when he considered that some of the acts of mischief could compromise the safe operation of the crane (T1-15):

But when it got personal that's when, you know, I was taking offence and I'll say, "Look", you know, "just let me do my job. You come to work, you do your job and leave me alone."

According to the appellant, safe working practices were put at risk when day shift crane operators deliberately altered settings on the crane prior to shutting the machine down at the end of the shift. When he commenced his shift and undertook pre-start checks on his machine he noticed the altered settings. In this regard he particularly alluded to changes to the computer settings which determine the parts of rope which in turn ensures a safe lifting capacity. The appellant said that the settings were changed from four parts of rope to three parts of rope, which resulted in alarms being triggered if the lift he was attempting exceeded safe limits. The appellant made a written complaint about this issue on 18 December 2013. The complaint was investigated by Russell Morrison.

The appellant also asserted that the day shift crane operators were risking safety in not following his advice to lubricate crane ropes with Rocol, and not to use grease (T1-15):
And that came down to me having requested for at least three weeks and having written in my logbook and theirs to please provide some – that the rope needed some lubrication because it's near the salt water and with rust that was forming on the outside it can then penetrate into the inside where the rope has a core – a core rope. And if that is infected with rust then it – you know, it severely affects the machine and the safety of the lifting.

The appellant said in his evidence that he "was far more knowledgeable" in the safe operation of the Franna crane and that his opinion was being undermined by Drinkwater and Buttsworth who declined to follow his advice. Given the difference in views the appellant said that a supervisor referred the issue to Bechtel Equipment Services (BES). When BES confirmed that grease could be used to lubricate the rope, the appellant disputed the correctness of this advice.

Buttsworth's evidence about the matter was to the effect that he recalled the appellant stating that Rocol should be used to lubricate the crane ropes but when he spoke to the Franna technician he was advised that it was not recommended to apply any lubricant on Franna crane ropes.

The appellant reported a number of complaints to Duncan Nicholson including his complaint about grease on the door handle of his crane and the complaint that the seat height had been altered unnecessarily. He agreed that Nicholson did inspect his crane in response to these complaints. Contemporaneous notes (Exhibit 11) made by Nicholson confirm the range of matters that the appellant complained about during February and March 2014. The notes serve as a record of what Nicholson was told by the appellant, and what he did in response the complaints:

February

· Schoolboy type pranks had been made between shift crews.
o Theo told me of an incident that happened in 2013 where tea or water had been put into his helmet when left at the crib hut. This prompted Theo to take his PPE home every day.

· David Drinkwater was identified by Theo to me as the person responsible for the pranks which Theo classed as harassment.
· Theo would complain to me that the crane was not left in the correct position for the night shift after being shut down by the day shift.
o Theo described himself as the subject matter expert (my words) when it came to the crane operations.
o Anything different about the way the crane was operated would cause Theo considerable anguish.
o There were no unsafe practises made in relation to the crane. This was confirmed by Rowan Hunter the PJET Rigging and Lifting Supervisor and Bechtel Equipment Services.

· Theo reported that someone had written something about him in the men's toilets.
o There was something small and illegible written on a dehydration poster that I took down and threw into the bin.

March

· Theo came into the office extremely agitated and vocal saying that the crane had been tampered with.
o That the seat had been lowered and the log book not filled in correctly.
o Theo had reset the seat so I cannot vouch as to its position. I did sit in the seat and noted that operators may have to adjust the seat to suit their size.
o The fuel level in the log book had been entered incorrectly; however there is no fuel gauge so an estimated percentage reading is entered. Not an issue except for attention to detail.

· Theo came into the office angry, shouting and said that grease had been smeared under the crane door handle and that David Drinkwater was responsible and he wanted him sacked.
o I wanted to check the craned door handle but Theo had already cleaned it.
o Theo was still angry and I asked what he wanted to do. He said he wanted David sacked. I told Theo that in my opinion I didn't think that this would merit termination as it could have been done by accident or something else. There was also no proof as he had cleaned it off.
o I recommended that some sort of mediation between the two should happen.
o I said I would raise the issue to Workforce Services and Theo calmed down. I sent an email to Brenton Grantham about the matter.

· Early March 2014 something happened again to cause Theo anguish. I can't remember what this was, but I do know there was nothing serious and I put it down to Theo having a 'tantrum'. Theo had a tendency to overreact in a disproportional way to events that I would not consider extraordinary.
· Theo was subsequently absent from work. I spoke to Theo on the phone and he informed me that he wasn't coming in due to stress. This was the same day that Paul Whitton was visiting Theo for a chat

Following the email to Brenton Grantham, Nicholson's notes disclose that he was asked to provide background information and that a Workforce Services Officer, Paul Whitton, was assigned to investigate the matter. The notes also reveal that Nicholson told the appellant to provide a diary of events leading to his complaint.

The appellant relied on notes taken by Paul Whitton in an interview with Buttsworth to support his claim of mischief at the hands of Drinkwater. The notes indicated that Buttsworth believed that Drinkwater had admitted to Chris Carter (then supervisor) about putting "drink in Theo's helmet". Buttsworth also referred to Drinkwater as a "joker" and said that Drinkwater "winds up Theo". The appellant considered that Drinkwater's behaviour amounted to misconduct, threats, and bullying.

It was Buttsworth's evidence in the proceedings that Drinkwater "wound everybody up" and that he annoyed everyone. Within these parameters, he accepted that some of Drinkwater's horseplay would have been directed at the appellant.

Sean Hume's evidence supported a proposition that Drinkwater was having some fun at the appellant's expense. He had heard the appellant say that he was "sick of this shit" and took it that this was a reference to Drinkwater. He said that Drinkwater used to "meddle with Theo". He said that he saw the words "Theo the snake" written on a poster in the lunch room which included a picture of a snake, but conceded that he did not know who wrote the words.

Sean Hume did not think that the appellant had provoked these incidents, but that "for some reason" Drinkwater did not like Theo "and he just used to do a whole lot of stuff just to upset him" including changing the functions of the crane. The appellant conceded that he did not witness any of the incidents (other than sighting the writing on the poster) and was relying on what the appellant had told him.
Despite his criticism of Buttsworth, the appellant said that when he discerned during pre-start checks that machine settings had been disturbed, he did not believe that Buttsworth had been sabotaging the machine, but he thought that Buttsworth may have been conspiring with Drinkwater to cover things up. The appellant also adopted a more benign view of Buttsworth's behaviour in cross-examination. He said in effect that he wanted Buttsworth to support him in his application for compensation and to assist a conclusion that Drinkwater was the main perpetrator. As the appellant saw it, the incentive for Buttsworth was that in incriminating Drinkwater he would take the focus off himself.

I accept that horseplay was common, that Drinkwater was the principal offender, and that the appellant was a target of horseplay. On Nicholson's evidence, the appellant was very agitated in some instances, and in one instance did not come to work because of stress. It is relevant that Nicholson also thought that the appellant was unduly sensitive to horseplay in a construction workplace and that the appellant's response to some incidents was not proportionate to the action taken.

Some evidence also suggested that the appellant did not fit into a construction workplace and complained unnecessarily about trivial or inconsequential events. Whitton's investigation notes elicited the comment from a co-worker to the effect that the appellant was a "serial pest" and was always complaining about something. Finally, some of the incidents complained about by the appellant were relatively trivial.

Further, the appellant may have invited attention from Drinkwater and Buttsworth by criticising some of their work practices. The appellant thought Drinkwater was incompetent and provided unsolicited advice to Buttsworth. The appellant had initiated a disagreement with Drinkwater and Buttsworth by giving advice via the log book to the effect that grease should not be used to lubricate the crane ropes. In his evidence, the appellant conceded that Buttsworth may have resented the advice in circumstances where Buttsworth was "older and worked bigger cranes and was more knowledgeable". It may not have been a coincidence that the appellant's disagreement with David Smith started because the appellant had lectured David Smith about non-compliance with safety standards.

The appellant regarded the stick incident and the knife incident as the "the two most serious incidents", and he implied that these incidents were provoked by the written complaint that he had made in December 2013. The difficulty for the appellant is that despite elevating these incidents in importance, his version of events associated with the stick incident cannot be sustained on the evidence and there was no witness to the knife event. Additionally the knife incident did not feature prominently in either the notes of Whitton or Nicholson. While the note pad entries made by the appellant (Exhibit 4) included the word "knives", there was no mention of the issue in the investigation notes prepared by Whitton (Exhibits 7 and 8). Further, Nicholson's detailed summary of the issues raised by the appellant (Exhibit 11) did not include any reference to the knife incident.

Management Action

In his notice of appeal, the appellant asserted, inter alia, that "Bechtel failed in reasonably recording and acting upon my complaints relating to long-term bullying, harassment, and threats" made by co-workers.

The appellant's case was that he made regular complaints to supervisors about his treatment in the workplace. He complained to Keith Bell about the David Smith incident, he complained to Chris Carter about the snake poster, he complained to Russell Morrison about the stick incident and about tampering with the crane computer, he complained to Duncan Nicholson about bullying and horseplay by the day shift crew, he complained to Richard Smith about Bechtel's failure to keep a record of his complaints, and he had complained about the knife incident to supervisors and to the Safety Manager in March 2014.

Notwithstanding the range of complaints, I accept the view put forward by witnesses for the respondent that the significant events were confined to the last quarter of 2013 and the first quarter of 2014. The two relevant FLNE supervisors across much of this period were Duncan Nicholson and Russel Morrison. On the evidence, both Morrison and Nicholson took the appellant's complaints seriously and responded appropriately to the complaints

Nicholson presided over an altercation between the appellant and Richard Smith in March 2014 wherein the appellant asserted that he had made complaints about supervisors in 2013, but Richard Smith denied that any such complaints had been made, and if they had, they had not been reported to Workplace Services.

There is only evidence of one written complaint which was dated 18 December 2013 (Exhibit 1). The complaint said that when the appellant commenced his pre-start procedure on his Franna crane on 18 December 2013, he noticed that the LMI computer had been tampered with. The complaint then stated:

This is not the first time this has occurred, and just seems to be part of the ongoing and relentless tomfoolery and sabotage, along with insults that regularly surface from the day shift crew. I would like for the matter to be investigated, and dealt with accordingly.

It was Morrison's evidence that he investigated the written complaint made by the appellant to the effect that day shift crane operators were altering the rope parts setting on the machine with potentially dangerous consequences. The effect of his evidence was that the appellant had accused Buttsworth of changing the settings. Morrison said that Buttsworth was interviewed in respect to the allegation and that after consideration he was satisfied with Buttsworth's explanation that the irrespective of any change to rope parts at the end of the shift, once the machine was shut down it would default to the factory settings.

Nicholson's contemporaneous notes disclose that after the appellant complained about grease on the door handle of his crane, Nicholson asked him what he wanted done. In response, the appellant told him that he wanted Drinkwater sacked. Nicholson said that he did not think this action would be taken, but he undertook to raise the issue with Workforce Services, and he sent an email to the Manager of Workforce Services about the matter.

As a consequence of this referral, the Manager instructed a Workforce Services Officer, Paul Whitton, to investigate the appellant's complaints. Contemporaneous interview notes prepared by Whitton on 12 March 2017 and a typed summary of events dated 19 January 2015 were tendered into the evidence as Exhibit 7 and Exhibit 8 respectively. His evidence about the complaints included the following (T3-11):
And could you just tell the Commission what those complaints were?‑‑‑If I confine myself initially to the first interview I had with Mr Galjaardt, you will see my summary. There are, effectively, five complaints he made in the first meeting I had with him. And I've got the Roman numerals there but – and I'll just explain David refers to David Drinkwater, and Brian refers to Brian Buttsworth. So the complaints were he said that one of them had poured a drink into his construction helmet. He said that David had threatened him with a stick near where he was working, that David or Brian had greased the handle of the Franna crane, David or Brian had adjusted the controls on the crane, and that there'd been a poster in the crib hut near where they were working which some graffiti had been placed on, according to Mr Galjaardt.

Whitton said that he interviewed the appellant twice in relation to his complaint. Whitton said that the appellant made five complaints to him at the 7 March 2013 meeting and that the complaints were about Brian Buttsworth and David Drinkwater (T3-11):

So the complaints were he said that one of them had poured a drink into his construction helmet. He said that David had threatened him with a stick near where he was working, that David or Brian had greased the handle of the Franna crane, David or Brian had adjusted the controls on the crane, and that there'd been a poster in the crib hut near where they were working which some graffiti had been placed …

In the typed summary (Exhibit 8), Whitton said that he met with the appellant to listen to his concerns on 7 March 2013 and 11 March 2013. He said at the first meeting the appellant tabled several allegations and also told him that he had kept extensive diary notes of the harassment. However when given the opportunity by Nicholson to produce the diary extracts the appellant had only produced a single note pad page (Exhibit 4) which included reference to a number of items, but was lacking in particulars.

Whitton said that he interviewed Drinkwater and Buttsworth. He also interviewed Nicholson who the appellant said had witnessed the stick incident. Nicholson denied seeing Buttsworth brandish a branch at the appellant while Drinkwater and Buttsworth denied that they had acted in the manner claimed by the appellant. Whitton said that he could not locate any evidence of the offending poster. Whitton said however that when he interviewed Russell Morrison, Morrison told him that Buttsworth had conceded that Drinkwater had greased the crane handle.

On the basis that the greasing incident had been corroborated, Whitton recommended that Drinkwater be issued with a warning. A copy of this warning is in the evidence as Exhibit 9. The warning, which was described as a "record of informal counselling" was issued on 21 March 2014 by Richard Smith. The subject of the counselling was horseplay related to "grease on door handle, mirrors adjusted, seat adjusted, notes left on board …". In addressing the action to be taken to correct the unsatisfactory behaviour, the form included the following entries:

David has admitted to carrying out some of the items as horseplay and will stop. Some items are just part of the job (adjust seat to my height, & mirrors …).

This has to stop, if it continues, another investigation & further discipline action if proven.

The appellant's evidence about the single note pad page was equivocal. In one instance he agreed that he provided the page to Nicholson, but in another instance he claimed that he scribbled out the items on a note pad when Whitton talked to him on 7 March 2014. The appellant said that when he was interviewed by Mr Whitton in March 2014 about matters of concern, Whitton has asked him to write down on a pad the list of matters of concern to him.

The notepad page which is in the evidence as Exhibit 4 identified issues of coffee in hardhat; knives; snakes poster; and Rocol – Log Book. The notes also identified a number of issues that the appellant had detected during his pre-start procedure on the Franna crane. The effect of the notes was that on each particular day some adjustment had been made to the settings which was not to the appellant's liking. On Monday, the crane had not been isolated, had not been chocked and the amber light had been left on. On Tuesday, the crane seat had been wound down, the crane had not been chocked. On Wednesday, the LMI computer had been adjusted to change rope parts and the side-view mirrors had been pulled in.

The appellant's evidence was that he had commenced making these daily notations because he had been told that Drinkwater would be operating the crane during the day shift and he suspected that Drinkwater was responsible for these or other adjustments on prior occasions. The appellant said that he also explained to Whitton what was meant by the items that had been written down. He said that when the conversation ended Whitton told him that he was going to investigate the matters and that he was going to speak to the day shift crew.

The appellant said that he commenced annual leave on 25 March 2014, but before going on leave he had discussed his concerns with Norm Black. He took five weeks leave before resuming work on 5 May 2014. He said that when he resumed work he was instructed to work in a laydown facility referred to as "Aldoga" which was not far from FLNE. It was while the appellant was at Aldoga that he asked Richard Smith about the outcome of his complaint. In this regard, the appellant's recollection was that he was told that Drinkwater had been "written up", that he had admitted to some horseplay, and that he had undertaken to stop the horseplay.

The effect of the appellant's evidence was that he was dissatisfied with the penalty imposed on Drinkwater and that when the opportunity arose he also took the matter up with Whitton. He said that he told Whitton that the outcome was "absolutely appalling" and that "you haven’t looked into it enough".

Whitton's evidence was that he was asked by the appellant about the result of the investigation in a chance meeting at Aldoga in May 2014. When Whitton told the appellant that Drinkwater had been given a warning, the appellant became agitated and wanted to know why he had not been sacked:

Yes, okay. Fair enough, but do you recall my approach to you would've been somewhat unsettled when I asked you about what the findings were and perhaps you may recall me saying I'm appalled at the findings?‑‑‑What – I can't remember what words you used, right, but you indicate – you said, 'Has David been sacked or given a first and final'?

So fairly unsettled, you'd imagine, like – would you say?‑‑‑Agitated.

While he was at Aldoga, the appellant said that he experienced another incident where he observed the words "beware Theo" written on a toilet wall. He said that it appeared that three small words had been written under the words "beware Theo" but the small words had been scribbled out and were not legible. He surmised that these words said "or you die". The appellant said that he immediately informed supervisors and asked them to take a photo of the writing. However, he said the supervisors did not take a photograph and one of the supervisors, Don Cameron, had scrubbed the writing off the wall. It was the appellant's evidence that these events were causally connected with the development of a medical condition (T1-34):

And it wasn’t long after that that all these symptoms come back up where, you know, my nasal – I could hardly breathe and then I could hardly sleep again and I was just up against a hill, which is, you know, really hard. So ‑ ‑ ‑
COMMISSIONER:   So what happened? What did you do with work?
APPELLANT:   That's when I had to – that's when I had to finish, Commissioner. I had a headache ‑ ‑ ‑
COMMISSIONER:   You finished.
APPELLANT:   ‑ ‑ ‑ that I just could not get rid of.
COMMISSIONER:   You finished work.
APPELLANT:   Yeah. I asked Leigh Ingham. I said: "Look, Leigh, I'm – it's not safe for me to work." I said, "I'm just totally exhausted." I said to him – and it was a manner of speaking, when he dropped me off, I said, "Look, I’ve just got a headache here I cannot get rid of".

The appellant's evidence that the toilet wall incident occurred at Aldoga in May 2014, and was a precursor to his decompensation, may not be consistent with Nicholson's contemporaneous notes (Exhibit 11). This record disclosed that the appellant complained to him in February 2014 that someone had written something about him in the men's toilets. Nicholson said in his notes that when he investigated the matter "there was something small and illegible written on a dehydration poster that I took down and threw into the bin".

It is also relevant that there was no independent support for the appellant's claim about writing on the toilet wall, and even on his own version, it was necessary to speculate about whether additional words existed and, if so, what they conveyed. It required a considerable leap of faith to conclude with confidence that the toilet writing amounted to continuing threatening and harassing behaviour. Further, there was no evidence that either Buttsworth or Drinkwater were working at Aldoga at the time, and the perpetrators of the alleged incident were unknown.

Whitton said that he also had cause to speak to the appellant later that year in August. He said that, at the request of his manager, he had arranged to meet the appellant. Whitton's manager wanted the meeting to take place because it had come to his attention that the appellant was continuing to complain about workplace bullying. Whitton said that he and Richard Smith met with the appellant at the truck marshalling yard in Port Central (T3-14):

At that meeting, he then claimed that the bullying had been going on for a number of years almost continuously. Now, from my notes, apart from the allegation that the drink had been poured into his helmet, my understanding from two meetings with him back in March was that these were very recent events. In the meeting at the truck marshalling yard, he claimed, as I said, that this had been going on continuously for a number of years, right. He also claimed in that meeting that – and this was for the first time, that he had complained to at least six supervisors about the bullying, three of whom he was able to name and told me that he had lodged written complaints with them. I interviewed two of the three. The third person had left the project.

Whitton disputed this evidence and said that both of the supervisors that he had interviewed "flatly denied they had ever received a complaint in writing or otherwise from Mr Galjaardt". The supervisors interviewed were Nicholson and Patterson-Kane. Whitton also said that he could not find, in his investigation, any evidence that multiple supervisors had received complaints and had not acted on them.

There is insufficient evidence to support a conclusion that the appellant's injury was associated with unreasonable management action. While responses could have been more timely and investigations more thorough, in most instances the appellant was given a hearing by the relevant supervisor, and some action was taken to evaluate the validity of the complaint. While Bechtel may not have operated a highly functional and efficient complaints management system, and while it may have been tardy in responding to and acting on complaints, in general terms I accept that management activities and responses were not unreasonable.

Medical Evidence

During the period of employment said to give rise to the most significant stressors, the appellant attended on his general practitioner on four occasions:

(i)The appellant was provided with a medical certificate by Dr Ratnayake on 1 October 2013 (Exhibit 2) to support a single day absence from work;
(ii) The appellant attended on Dr Rayi at the Gladstone Central Medical Centre (Exhibit 6) on 18 October 2013 reporting flu symptoms;
(iii) The appellant attended on Dr Rayi on 28 April 2014 complaining of sore ribs;
(iv) The appellant attended on Dr Amini on 28 May 2014 reporting symptoms of headache, poor sleep, and drowsiness.

1 October 2013

The medical certificate provided on 1 October 2013 stated that the appellant was "receiving medical treatment on Monday 30 September 2013" and that he would be "unfit to continue his usual occupation". The progress notes relating to this consultation (Exhibit 3) stated that the appellant had "been off work yesterday due to fatigue and dehydration". Dr Sarangi Ratnayake's evidence in the proceedings was that the consultation was brief and that the appointment was made for the purpose of obtaining a medical certificate. In my view the progress notes should be read to convey, not a diagnosis, but a record of what the appellant said to the doctor to justify the creation of the certificate.

Although he admitted that he only attended on Dr Ratnayake for the purpose of securing a medical certificate to cover for his failure to get to work the previous day, the appellant relied on this attendance to support a claim that he was suffering from stress caused by events at work. His evidence was that he did "mention to Dr Sarangi that I was having some stress issues at work and that I – you know, currently – you know, subsequently slept in and so I understand that in her notes that she wrote me a medical certificate saying due to fatigue and I think she described dehydration, but I – you know, I just – yeah, I was totally drained".

This appears to me to be a disingenuous attempt by the appellant to establish evidence of the reporting of workplace stress to a medical practitioner in circumstances where no other evidence of such reporting during the relevant period of employment was available. The appellant admitted that he got the medical certificate to cover for his absence from work. The certificate is retrospectively written to fit this purpose. It is difficult to accept the appellant's assertion in the proceedings that he told his doctor, notwithstanding the medical record, that he "slept in because of the stress, pressure, that I was experiencing at work. I may have mentioned bullying".

Neither the attendance on the doctor, nor the medical record in my view, provide any significant support for the proposition that in October 2013 the appellant was suffering from work-related stress, and/or that he had sought medical attention for such a condition on 1 October 2013.

18 October 2013

The notes of the 18 October 2013 consultation record that the reason for contact was "URTI", and that the appellant complained of "throat pain weakness, cold. cough. no fever." On examination, the doctor found that there was no respiratory distress. He found however inflamed mucosa in the right and left nostril and discharge from both nostrils. He also noted a red throat. The appellant did not mention the symptoms that he had brought to Dr Ratnayake's attention on 1 October 2013.

28 April 2014

The appellant attended on Dr Rayi on 28 April 2014 complaining that his ribs were sore to touch. He was advised to continue deep breathing exercises and to follow "exercises as per physio". At this point in time the appellant's holidays would have been drawing to a close. No reference is made to work related conditions.
28 May 2014
On 28 May 2014, the appellant reported a nasal blockage (especially the left nostril) to Dr Amini and symptoms of dry mouth, headache and poor sleep. He said that he experienced drowsiness through the daytime and could not concentrate during the daytime. The medical record did not include any mention of a continuing illness or a pre-existing illness. Despite the content of the medical record, the appellant claimed in his evidence that it was the incidents at work that caused him to stop work (T1-101):

So you say that's why you had to leave work, because of what had happened?‑‑‑Absolutely.
And yet even on the 28th of May you go and see Dr Amini and you make no complaint about any bullying and harassment?‑‑‑All I said – it was – you know, I had this nasal condition. I was totally exhausted. You know, I think I had been back at work for about three weeks and, you know, I was back into the grind and then, you know, the stuff about the toilet – on the toilet wall come in and then it all came back. I was just going, "Oh, no," you know, and then could hardly sleep, stress again. You know [indistinct] call it pressure or stuff like that, work related, but definitely had ‑ ‑ ‑ .

After he left work on 27 May 2014, the appellant continued to attend on his general practitioners for treatment of his nasal condition. He attended on the Gladstone Central Medical Centre on 3 June 2014, 6 June 2014, 11 June 2014 and 17 June 2014. The appellant was referred to Dr Malan on 28 May 2014 and to Dr Coman on 3 June 2014. It is understood that these referrals related to his nasal condition.

The notes of the consultation on 6 June 2014 disclosed that the appellant had seen Dr Coman and that surgery had been recommended for the left side (septal deviation) and that medication had been prescribed to treat inflammation and infection. The appellant also reported a transient sharp pain in his chest while stretching muscles. On 11 June 2014, the appellant reported to Dr Amini that he was feeling tired and that there was some discharge from the nose, while on 17 June 2014 the record seems to indicate that various tests were performed.

Neither the evidence adduced from medical practitioners nor the medical records of the appellant's attendances before August 2014 support his claim that he had suffered a psychological injury on or before 27 May 2014. Despite this, the appellant maintained that he had reported stress or problems at work to general practitioners, but these comments did not find their way into the record; that it was workplace stress that caused him to sleep in on 30 September 2013 and attend on his doctor; and that it was workplace harassment which led him to attend on his doctor on 28 May 2014 and stop work. In all these explanations, it is difficult to avoid a conclusion that the appellant is engaging in a form of reconstruction, or rewriting of history.

On 17 June 2014, the appellant lodged an income protection claim. He described his injury or illness in the following terms:
Blockage to left nasal getting over infection in right nasal. Congestion, headaches, fatigue, dizziness unbalanced.

In the income protection claim, the appellant wrote that his symptoms first occurred on 27 May 2014 and that he first consulted a doctor for this condition on 28 May 2014. He nominated an expected return to work date of 11 August 2014. The appellant answered "no" to a question about whether he was planning to lodge a workers compensation claim. The appellant also answered "no" to the question of "in your opinion do you believe your condition is work related?". The treating doctor's statement completed by Dr Rayi was a little different.

In the "Doctor's Statement" section of the claim, Dr Rayi answered "yes" to a question of whether the condition was work related and opined that work "can aggravate the condition". Dr Rayi included a primary medical diagnosis of "RT Infection, Sinusitis, left nostril blockage". However, these symptoms and this diagnosis do not support a claim related to a psychological injury.

On 31 July 2014, the appellant reported to Dr Rayi that he was suffering palpitations, and that he had blacked-out and lost consciousness for about ten minutes. Actions taken by the doctor included a "Echocardiogram" and a "stress test". On 12 August 2014, the appellant attended on Dr Rayi and reported that he was "feeling anxious, work related issues". While not clear on the notes, Dr Rayi may have placed the appellant on a mental health care plan. In circumstances where the appellant had not attended work since 27 May 2014, and where the medical records provided no explanation, the relationship between anxiety and work related issues is most logically explained by the appellant's retrenchment on 31 July 2014.

On the appellant's next visit to Dr Rayi on 21 August 2014, the appellant indicated that he had an appointment with a cardiologist (Dr Rafter) on 15 September 2014, that he had trouble sleeping, and referred to "work place harassment".

It was appellant's episode on 31 July 2014 which led to his referral to Dr Rafter on 15 September 2015. It was Dr Rafter's opinion that while the appellant's arrhythmia may have been pre-existing, it was likely that "the stressors of his workplace in the last 12 to 18 months are responsible for the reappearance of ongoing episodes of arrhythmia". Dr Rafter's evidence was that (T2-4):
… My records indicate that he said to me, when asking about circumstances as to why they were more prominent around the time that I saw him, and I enquire about background, including things like medications or caffeine intake, but also just the state of their general health. And in my notes I've recorded that he had mentioned, at that time, that one of the changes, in response to my questioning, had been him being under a great deal of stress related to his work. Now, I didn't go into – I don't know the absolute details of that, but, in my professional opinion, it is – it is quite possible that the reason for the palpitations becoming more prominent is some stressor in the background. I can't say with absolutely certainty that they are linked, but the prominent of those symptoms and that arrhythmia at that time it is likely that something about his physiological or emotional state has changed that would predispose the arrhythmia to be more likely to run. You can't – I don't know that that can be the only variable at play here, but it was the variable that he mentioned to me when I enquired as to possible reasons why these palpitations or arrhythmia were more prominent at the time.

While Dr Rafter thought that stress in the workplace may have contributed to the onset or worsening of the appellant's arrhythmia, he relied on a history provided by the appellant in arriving at this conclusion and he was not aware that the appellant had not attended work after 27 May 2014. He also conceded that stress associated with advice of retrenchment and the processing of a workers compensation claim could have been factors causing the onset or worsening of arrhythmia. Notwithstanding this, the relevance of Dr Rafter's diagnosis to a determination about causation in respect to the appellant's psychological injury has not been sufficiently made out.

[100]The alignment between the onset of palpitations and the reported black-out, and receipt of advice on 31 July 2013 that the appellant was to be retrenched from his employment, is a matter for consideration in any determination about causation. The effect of the proposition put to the appellant in cross-examination was that in circumstances where the appellant did not report workplace stress to his doctor until 12 August 2014, his stress was attributable to loss of job not to events occurring in the workplace some months earlier (T1-93):

That's what's upsetting you, isn't it, being made redundant?‑‑‑It's not. It's the callous way that they went through it actually, because ‑ ‑ ‑

Being made redundant ‑ ‑ ‑?‑‑‑No, it wasn't about that. It was that I was a very qualified worker. I'd been overlooked because of this so-called matrix system that Bechtel have got. These two, you know, people that have been, you know, causing all the trouble and had many incidents, they should have gone way before me. But they got to stay there right up until 2017. Had my – because I knew the longevity of that job, and I knew that, you know, I'd be seeing the last ship coming off that, that I had a great chance of, you know, like – that's why I bought the vessel. I had it long in mind to say, okay, I'm going to buy that and transfer – make a transfer into, you know, a different job, because I knew the construction was finishing, and I'd be right.
But you needed time for that – 2017, you've just said, and you bought your vessel in 2014; correct? Early 2014?‑‑‑Yeah.
That's what this is about, isn't it, Mr Galjaardt?‑‑‑Absolutely not.

[101]Dr Rayi provided a referral to Dr Williams on 5 September 2014. At this consultation and the next consultation, no mention appeared to have been made about workplace events or symptoms of stress or anxiety. However the appellant did raise the issue of work related stress and harassment on 2 October 2014 when he informed Dr Rayi that he was consulting a workplace psychologist. Soon after this, on 7 October 2014, the appellant lodged his workers compensation claim. It was only after this milestone that the appellant's reporting of workplace stress involved a much more detailed account of events allegedly related to the workplace.

[102]The record of consultation with Dr Rayi on 15 October 2014 noted that "counselling done" and included an entry stating "work related issues. still harassing him. people are still calling, driving past his house".

[103]The record of consultation with Dr Rayi on 17 October 2014 disclosed that a mental health care plan was created and included the following entry:

Workplace issues. writing on toilet wall/log books stating "Beware of Theo", putting sticky grease things to door handles. putting coffee into his hat, he is having issues with David Drinkwater & Brian Buttsworth. David brought knives (7-8) to work place & warned theo. broke a stick & pointed towards theo & warned him (8-10 people witnessed that).

Feeling anxious, nervous. Counselling done.

[104]The record of consultation with Dr Rayi on 23 October 2014 included the following entry:

Poring[sic] coffee in hardhat, Knive[sic], snake poster about theo, Rocol is a lumbricant[sic] put the door handles, the crane on which theo works they left the amberlightes[sic] on put his job in risk, they are giving troubles like: seat very down, machine not chocked, LMI(computer on crane) tampered, mirrors pulled-in.

Getting palpitation daily, sleep decreased.

[105]The last entry in 2014 dealing with workplace stress was included in the appellant's consultation with Dr Rayi on 4 November 2014 which stated "still having anxiety about work related stress".
Conclusion

[106]While the medical evidence did not support the appellant's case, some of the lay evidence was consistent with his version that he had been singled out by Drinkwater as a victim of practical jokes, horseplay and a level of harassment. Nicholson's notes in Exhibit 11, Hume's evidence, Buttsworth's evidence, Whitton's investigation notes, the record of informal counselling (Exhibit 9), and Morrison's evidence all pointed to a state of affairs in which the appellant was singled out for particular attention when it came to workplace tricks or horseplay. The evidence also established that the appellant was upset and angry in response to some of the incidents complained about.

[107]Nicholson said that in one instance the appellant was shouting and angry, while Whitton described the appellant's state in another instance as agitated. Nicholson's notes also disclose that the appellant did take a day off work either immediately following or soon after lodging a complaint with Nicholson. The notes record that Nicholson rang the appellant at home and was told by the appellant that he wouldn't be coming to work that day "due to stress". This is, however, the only evidence to the effect that the appellant took, or needed to take, time off for work-related stress during the course of his employment with Bechtel

[108]While particular events at work occurred, the association between these events and the appellant's psychological injury has not been made out on the evidence. Symptoms of stress or anxiety experienced while at work do not, as a matter of course, translate into a conclusion that a psychological injury within the terms of s 32(1) of the Act has been sustained. Whether an injury has been sustained, particularly a psychological injury, will usually be confirmed by the report to a medical practitioner of symptoms of psychological distress, or by receipt of some form of treatment. Self-diagnosis of a psychological injury would be considered problematic.

[109]Drinkwater was warned on 21 March 2014 to stop the horseplay or he would face further disciplinary action. It seems to me that this would have been the logical end of the behaviour that was causing the appellant annoyance, frustration, or distress. I am satisfied that the effect of Whitton's investigation and Drinkwater's warning by Smith would most likely have brought the offending conduct to an end. Further, at the end of March 2014 the appellant commenced five weeks leave and on his return to work he was transferred from FLNE to Aldoga. While the appellant claimed that harassment continued in the three weeks that he was at Aldoga, in my view the evidence of this was inconclusive and, on balance, I accept that harassment issues in the workplace had ended by the time he commenced annual leave in late March 2014.

[110]The appellant's case fails because the evidence cannot sustain a conclusion that workplace events described in his evidence were causally connected with his decompensation some four or five months later. Psychological symptoms were not reported to medical practitioners during the relevant period, the appellant had been off work for over two months before he reported workplace stress to his doctor, and his first report of workplace stress coincided with Bechtel's decision to make him redundant. On the objective evidence, the real and motivating reason for stopping work on 27 May 2014 was a nasal condition, not workplace stress.

[111]The development of the appellant's narrative supporting a work-related psychological injury did not gain any significant momentum until in the first instance his employment ended, and then subsequently after he had lodged his application for compensation. It was around this time that the appellant reported symptoms in increasing detail in consultations with his general practitioner between 2 October 2014 and 4 November 2014.

[112]The appellant has prosecuted his appeal with great conviction and passion and saw his cause as a just cause. However in a number of significant respects his case was retrospectively constructed and insufficiently supported by contemporaneous evidence. In the end result, the appellant has been unable to establish, on the balance of probabilities, that his injury was caused by events at work, and that his injury was not excluded by the operation of s 32(5) of the Act.

Orders

[113]Appeal dismissed.

[2018] QIRC 70

13 June 2018 26 April 2017; 15 August 2017; 28 September 2017; 17 October 2017; 6 December 2017; 26 February 2018; 26 March 2018, 27 March 2018, 28 March 2018, 31 May 2018.