Green v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 189
•20 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Green v Simon Blackwood (Workers' Compensation | ||||
| Regulator) [2014] QIRC 189 | |||||
| PARTIES: | Green, Emma | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2014/44 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 20 November 2014 | ||||
| HEARING DATES: | 16, 17, 18 and 19 June 2014 (Hearing) | ||||
| 28 July 2014 (Appellant Submissions) 15 August 2014 (Respondent Submissions) 29 August 2014 (Submissions in Reply) 2 September 2014 (Further Submissions) | |||||
| MEMBER: | Deputy President Swan | ||||
ORDERS : |
| ||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - whether the injury arose out of reasonable management action - unrepresented appellant - remoteness of some nominated stressors - reasonable management action taken in a reasonable way. | ||||
| CASES: | Workers' Compensation and rehabilitation Act 2003 | ||||
| s 32, MacArthur v WorkCover Queensland (2001) 167 QGIG 100 Kavanagh v The Commonwealth (1960) 103 CLR 547 Avis v WorkCover Queensland (2006) 165 QGIG 788 | |||||
| WorkCover Queensland v Curragh Queensland | |||||
| Mining Pty Ltd (2003) 172 QGIG 6 | |||||
| Qantas Airways Limited v Q Comp and Blanch (2009) 191 QGIG 115 | |||||
| APPEARANCES: | Ms E. Green, the Appellant, in person. Mr J. Merrell, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision
[1] Ms Emma Green has appealed against a decision of the Worker's Compensation Regulator.
[2] It is accepted that Ms Green is a worker for the purposes of the Workers' Compensation and Rehabilitation Act 2004.
[3] Ms Green is employed by the State of Queensland in the Department of Communities, Child Safety and Disability Services.
[4] At the time of her injury, she worked as a Service Manager/Team Leader in the Disability Service division of the Department at the Nundah Service Centre providing accommodation, support and respite for persons with intellectual disabilities.
[5] During 2012 and 2013 the organizational structure of the Nundah Centre was as follows:
Manager (classification AO7) to whom Ms Green reported. This position
was temporarily filled by Ms Compton. The position of Senior Manager, AO8 was held by Mr Parker.
Ms Compton reported to him.
Type of Injury suffered by Ms Green
[6] The parties agree that the worker suffered a personal injury which is described as an Anxiety/Stress Disorder which arose out of the course of her employment.
Question to be determined by the Commission
[7] The question is whether or not the injury arose out of reasonable management action taken in a reasonable way.
Witnesses
[8] Witnesses for the Ms Green were:
Ms Emma Green; Ms Tracey Boyd (Team Leader Disability Services, Nundah); Ms Cassandra Braithwaite (Residential Care Officer Disability Services,
Nundah); Mr Martin Smith (Residential Care Officer, Disability Services, Nundah); Mr Fergus Carroll (Residential Care Officer, Disability Services,
Nundah); Ms Linda Jones (Residential Care Officer, Disability Services, Nundah).
[9] Witnesses for the Respondent were:
Mr Brian Parker (Manager, Disability Services, Nundah); Mr Leon Miller (Team Leader, Disability Services, Nundah); Ms Jacquelin Compton (Acting Manager, Disability Services, Nundah); Mr John Wiss (Manager, Disability Services, Nundah); Mr Michael Day (Assistant Regional Director Brisbane Area, Disability
Services).
Application for compensation
[10] In the application made on 18 October 2013, Ms Green said that her injury commenced on 17 October 2013.
[11] The nature of Ms Green's injury was identified as psychological and her injury was caused after she had lodged a formal complaint in July 2013 for being treated unprofessionally and unfairly in the workplace.
[12] In May 2013, Ms Green had undergone counseling and treatment since taking 7 weeks stress leave for the same complaint in May 2013.
Period of time nominated by Ms Green for compensation
[13] This appeal relates to the time Ms Green was off work from 18 October 2013.
[14] Ms Green says that she suffered her injury on 17 October 2013 and her evidence goes to the following matters:
After being off work from 25 May 2013 and 8 July 2013, on the day of her return to work, Ms Green made a formal complaint to the Department concerning a range of matters. Essentially, those matters centered upon being treated unprofessionally and being ignored by management of the Centre.
The Department arranged for Mr Day to investigate her complaints. Mr Day's investigation occurred between July 2013 and 17 October 2013. Mr Day's investigation was provided to Ms Green on 17 October 2013. This report dismissed Ms Green's complaints. Ms Green, upon receipt of the Report, wrote on the report stating that she
had not agreed with the findings made. Ms Green also stated that she was devastated by the findings. Ms Green visited her General Practitioner, Dr Maher on 18 October 2013
and did not return to work until 14 February 2014. Ms Green's application for compensation was made on 18 October 2013.
Stressors nominated by Ms Green
[15] Ms Green nominated 12 stressors.
28/11/12 – 10/04/13
The first stressor relates to the allegation that management had not acknowledged Ms Green's concerns regarding workplace health and safety issues which had been raised by her. The issue involved the introduction of a new positive behaviour support plan that had been provided by Psychologists.
[16] Ms Green did not believe that the plan met the requirements of WPH&S and she arranged to meet a number of people at the Centre, including senior management, about this. However, after one meeting, Ms Green says she was not included in further meetings on the issue.
[17] Ms Green believed that her concerns were ignored over many months and that she had been reprimanded by Ms Compton for advising her support team not to implement the plan.
[18] Some five months later, a plan was introduced which Ms Green said was satisfactory.
December 2012 – October 2013
The second stressor concerned the appointment of Ms Compton to back-fill the position of Service Centre Manager. Ms Green had also applied for the position.
[19] Her complaint was that Ms Compton appeared to have lobbied for the position amongst the management team. Ms Green said that Ms Compton would permit her to back fill this position when Ms Compton took leave but this never happened. Ms Green was particularly upset when she said that Ms Compton always complained that she could not take leave because she had no-one to fill her place.
December 2012 – January 2014
The third stressor relates to Ms Green's concern for another employee, Mr Smith who she says was poorly treated by Ms Compton.
[20] Ms Green was also concerned for another employee, Mr Miller whom she said was overwhelmed and stressed because of work load.
[21] That complaint was broadened to cover the management team being a 'bit stressed'.
December 2012 – May 2013
The fourth stressor relates to Ms Green's understanding of the stress levels being experienced by Mr Miller. It is alleged that Ms Compton told Mr Miller that Ms Green had told her he was stressed and Mr Miller became upset by Ms Green's actions.
27/01/13 – 22/05/13
The fifth stressor related to a 'no contact' order being placed upon the brother of a client. The allegation was that the brother verbally abused staff and made concerning comments regarding his brother.
[22] Ms Green attended a Psychiatrist's clinic with the client and she discovered that the Psychiatrist did not have all the information relevant to the client before him. When Ms Green advised the Psychiatrist that a 'no contact' had been in place, another employee advised the Psychiatrist that the client had spent the previous day with his brother. Ms Green said that the Psychiatrist said he was concerned with conflicting information being given to him.
[23] Ms Compton stated that it was not part of Ms Green's responsibilities to attend that particular meeting with the Psychiatrist [T3-53].
22/05/13
The sixth stressor concerned Ms Green asking for help from Mr Parker as she required some feedback and support.
[24] Ms Green had advised Mr Parker that she was submitting a Work Injury Report Form and that she may also lodge a formal complaint. She asked that Mr Parker and Ms Compton have a discussion with her regarding her problems.
[25] Mr Parker responded one half hour later, however Ms Green had already left work for the day and had visited her Medical Practitioner. There was nothing unreasonable in Mr Parker's actions on that day.
08/07/13
The seventh stressor related to Ms Green's return to work from sick leave. This was on 8 July 2013. Ms Green returned to work for a half a day and then visited her Psychologist.
[26] At the workplace Ms Green spoke to Ms Compton. She says Ms Compton asked how she was going; asked if Ms Green wished to undertake an Intensive Work Management program; that Ms Green might not be ready to return to work; and that Ms Green could consider accessing QSuper payments.
[27] Ms Green said she wanted to return to work and she was upset that Ms Compton did not ask her why she had broken down and gone on sick leave. Ms Green believed that Ms Compton did not wish her to return to the workplace.
15/08/13
The eighth stressor concerned Ms Compton discussing another staff member, Ms Jones' complaint regarding management. Ms Jones was not present for this discussion.
[28] Ms Green thought that this was inappropriate and was concerned that Ms Compton was dismissive of her reaction. When Ms Green complained about this treatment to Mr Parker and Mr Day, no response was received.
27/08/13
The ninth stressor related to whether or not Ms Green wished to undertake mediation with Ms Compton. Ms Green had heard that Ms Compton had asked other employees whether or not they had spoken to Ms Green lately. Ms Green said that since this had occurred, she did not believe that the situation with Ms Compton could improve.
October 2013
The tenth stressor related to a claim by Ms Green that she had heard that some members of the team had been questioned by Ms Compton about whether or not Ms Compton had shown favouritism towards one particular Service Manager. Ms Green believed that, as she was the only person not present at the meeting, everyone knew who had made the complaint.
03/10/13
The eleventh stressor concerned Ms Green's meeting with Mr Day and Mr Hurley on 3 October 2013, which was recorded. Ms Green believed she had been asked to the meeting to discuss her complaints regarding her health and well-being, however, work performance issues were raised with her without prior notification.
[29] Ms Green was told at this meeting that her complaints had not been substantiated. Ms Green left that meeting very distressed.
17 October 2013
The twelfth stressor occurred when Ms Green was formally advised that her complaints were unable to be substantiated. Ms Green requested that Mr Day make contact with Mr Skoreyko as she believed that this employee could support her version of events. She says that Mr Day said there was no point in doing this.
[30] Ms Green advised Mr Day that she needed to go home and seek the support of her Medical Practitioner. Ms Green was placed on sick leave. During that time she lodged her WIRF and her Work Cover claims.
The investigation conducted by Mr Day
[31] Mr Day's evidence was that he had interviewed Ms Green on three occasions
concerning her complaints – 12 August 2013, 3 October 2013 and 17 October 2013.
[32] Mr Day advised Ms Green as to the process he was adopting with regard to investigating her complaints and she had raised no concern with him.
[33] Mr Day interviewed:
Mr Miller; Ms Boyd; Mr Lennon; Mr Southam; Ms Compton; and Mr Smith.
[34] In response to Ms Green's concerns that employees might not speak freely to him if all were in the room together, Mr Day advised that he had raised this with Ms Boyd who had recorded no interest in being interviewed individually [T2-4].
[35] Regarding the number of complaints made by Ms Green concerning Ms Compton, none of the witnesses called by Ms Green supported Ms Green's specific allegations regarding Ms Compton.
[36] Mr Miller's evidence was telling. He said that the allegations purportedly made by him regarding Ms Compton had never occurred. He denied ever seeing Ms Compton bullying Ms Green or treating her unfairly [T3-12, 13, 15, 16].
[37] Further, with regard to Ms Green's concern for Mr Miller's wellbeing, Mr Miller's response to Ms Green's question regarding this is as follows:
"Appellant: Have you ever told Ms Boyd that you were upset with me
about the issues in the complaint?Witness: I don't recollect, but I probably could have said that, yes, because I was upset with the issues of the complaint. The personal issues about me I felt had no right or business being in a complaint being raised by you. I didn't think it was your business to be discussing my health and wellbeing with Ms Compton or anybody else in the office. If you had issues or concerns about a manager talking to you about me, then I felt it should have been your responsibility to come and address those issues directly with me, which you never did." [T3-21]. [38] Mr Smith was also called by Ms Green to give evidence. Mr Smith stated that when interviewed by Mr Day he had recorded no complaints concerning Ms Compton's behaviour or treatment towards him.
[39] Mr Smith's evidence was that while Ms Compton had not always been responsive to some of his issues and that on occasions he felt his professional opinion was not heard, he at no time felt bullied by Ms Compton. In fact, he stated that if that had occurred, then he would not have any problem raising the issue with her. The primary issues Mr Smith had with Ms Compton related to the question of rosters.
[40] With regard to Ms Jones' evidence, Ms Compton said that Ms Jones was the one talking over her at meetings so much so that other team managers believed that Ms Compton should do something about it.
[41] Ms Compton's evidence was that she had been unaware of the complaint made by Ms Jones at the commencement of that meeting. The only information she became aware of was that Ms Jones said Ms Compton had 'kicked her in the stomach' when she was down (i.e. at the time when there had been a death in Ms Jones' family).
[42] Ms Compton stated that she had made some changes to Ms Jones' work structure whilst she was on leave, but that those changes had been in the pipeline before Ms Jones had left the workplace.
[43] Ms Compton became very upset at hearing of Ms Jones' complaint and left the meeting in tears. When she returned the team had arranged for her to be given some flowers.
[44] I have accepted Ms Compton's evidence on this point. Ms Jones' information was information she had been given by Ms Green and I accept that the particular nuances relayed to her by Ms Green of what occurred during the meeting may not have represented what actually occurred at the meeting.
[45] I did not consider that any of the witnesses called by Ms Green were apprehensive as to the evidence they had given. If anything, I felt that some of the witnesses were agitated and concerned that Ms Green had sought to fight their battles for them which was not required by any of them. In fact, many witnesses simply denied much of what Ms Green had attributed to them.
Mr Day's Report
[46] Mr Day found:
There had been no corroborating evidence to support Ms Green's specific
evidence from all of the persons interviewed by him.
This in itself is a telling point. The evidence given by some of Ms Green's
witnesses mostly related in part to being surprised that Ms Green had
adopted the approach she had on their behalf. All employees interviewed provided their own views on their own treatment by Ms Compton. None of these witnesses had raised the type of concerns expressed by Ms Green. Concerning Ms Green's meeting with Ms Compton on 8 October 2013 upon her return from sick leave, Mr Day found it logical that a line manager would seek to meet with a staff member returning to work following a long absence on sick leave and offer her support. I accept Mr Day's assessment and decision on this point as it records appropriate management taken to support an employee who had been absent for some time from the workplace.
[47] Ms Compton's actions should be considered within the context of Ms Green's particular issues. These were:
7 weeks stress related leave; Ms Green's emotional state upon her return to work where Ms Green had
been observed crying in the workplace; The need to confirm which Service Manager's role Ms Green would return
to following her leave.
[48] I have accepted that Mr Day conducted his investigation appropriately, interviewing all persons nominated by Ms Green.
[49] The evidence presented directly to the Commission by the various witnesses called by Ms Green is corroborated in the report written by Mr Day.
The medical evidence
[50] Dr Maher's evidence is contained in Exhibits 1, 2 and 3. Dr Maher first saw Ms Green on 17 October 2013.
[51] In Exhibit 1, Dr Maher advised WorkCover on 3 November 2013 that Ms Green's work related diagnosis was of depression and anxiety.
[52] On 17 October 2013, Ms Green advised Dr Maher of feeling betrayed at/by work.
[53] The most important event which Ms Green advised to him was that her complaints had not been fully investigated and that Ms Green would like to have her issues mediated by someone from outside the Department [Exhibit 1].
[54] The Psychologist's report focused upon Ms Green reporting that she felt unsupported, deceived and ignored at the workplace.
[55] It is clear from the evidence that Ms Green did not decompensate until 17 October 2013 when she received Mr Day's report.
Onus of Proof
[56] Ms Green bears the onus of proof on the balance of probabilities to prove that she sustained an injury within the meaning of the Act.
[57] The Regulator states that the Commission "must feel an actual persuasion before the alleged facts can be found to exist and the mere possibility of a worker suffering an injury on mere conjecture is not enough" [Regulator's submission - point 40].
[58] In MacArthur v WorkCover Queensland (2001)[1] Hall P stated the following :
[1] MacArthur v WorkCover Queensland (2001) 167 QGIG 100 at 101"The process of determining a matter on the balance of probabilities is neither a sterile exercise in mathematics nor a mechanical application of probabilities. "The predominant position in Australian case law is that a balance of probabilities test requires a Court to reach a level of actual persuasion." [Seltsam Pty Ltd v McGuinness (200) 49 NSWLR 262 at para 136 per Spigelman CJ]".
The personal injury must arise out of or in the course of employment
[59] It is clear that the injury which arises out of employment occurs when there is a causal connection between the employment and the injury[2].
[2] Kavanagh v The Commonwealth (1960) 103 CLR 547 per Dixon J and at 558 per Fullager J
[60] The words "arising out of" do not equate to the words "caused by". There must be a causal or consequential relationship between the employment and the history[3].
[3] Avis v WorkCover Queensland (2006) 165 QGIG 788 per Hall P and WorkCover Queensland v Curragh
The employment must be a significant contributing factor to the injury
[61] For employment to be a significant contributing factor to the injury, the employment must be important or of consequence[4].
[4] Qantas Airways Limited v Q Comp and Blanch (2009) 191 QGIG 115 at 119 per Hall P.]
The management action must be taken in a reasonable way
[62] A psychological disorder is removed from the statutory definition of injury where reasonable management action is taken in a reasonable way. [s 32(5)(a) of the Act].
[63] The Regulator has submitted that "The state of the cases now is that if there are multiple events or stressors and only one or some of them arise out of or in the course of reasonable management action taken in a reasonable way, then the claimant may succeed in the claim based on any that do not so arise or occur in the course of reasonable management action taken in a reasonable way." [Regulator's submissions - para 66].
[64] The Regulator submits that the only stressor that caused Ms Green to decompensate occurred on 17 October 2013. This was as a result of Mr Day presenting his report to Ms Green which found that none of her complaints had been substantiated.
[65] The investigatory process undertaken by Mr Day was, in my view, thorough and all relevant persons were interviewed. The difficulty faced by Ms Green was that none of the witnesses called by her (or called by the Regulator) supported any of the primary claims she had made, which included each one of them at different times.
[66] The investigatory process conducted by Mr Day was reasonable and transparent. The audio recording of Mr Day's interviews with Ms Green were played for the Commission. What was apparent was that Mr Day was listening to Ms Green, considering her responses, treating her in a professional manner and not rebuking or treating her disrespectfully.
[67] The Regulator states that all of the stressors nominated by Ms Green which occurred prior to 17 October 2013, are not stressors relevant to her claim for compensation. The only medical evidence linking Ms Green's decompensation to her work environment occurred on 18 October 2013 when she had visited her medical practitioner.
[68] The Regulator asserts that the earlier cited stressors were too remote from the 17 October 2013 decompensation.
[69] I have accepted that submission to this extent. Many of the cited stressors were one-off situations, spanning a lengthy period of time, where Ms Green's memory of the event is not supported by the person for whom she was concerned. While Ms Green was perturbed on various employee' behalf, those persons gave evidence to the Commission which was completely contrary to that given by Ms Green.
[70] I concur that those incidents were remote from the decompensation of October 2013. Examples of those stressors include Stressors 3, 4 and 8.
[71] The remaining stressors are not, in my view, the result of unreasonable management action taken in an unreasonable manner. I have mentioned them for the sake of completeness because Ms Green was unrepresented in this matter.
[72] Notwithstanding the view I have taken regarding the remoteness of those stressors to Ms Green's decompensation in October 2013, it is the case that the other nominated stressors are unable to be categorized as unreasonable management actions taken in an unreasonable manner on the part of the Department.
[73] Stressor 1 primarily relates to a differing of views being expressed by Ms Green and senior management at the Centre. Ultimately, a plan was introduced which met with the satisfaction of Ms Green, but it does not follow that senior management's decision not to accept her concerns regarding the plan represented unreasonable management action taken in an unreasonable manner.
[74] Stressor 2 appears to be based upon the disappointment of Ms Green not obtaining a position for which she thought she would be successful. Even if Ms Compton said she would permit Ms Green to backfill that position if Ms Compton was on leave and this did not occur, it appears that Ms Compton did not take leave and the matter became academic. This also is not an example of unreasonable management action taken in an unreasonable manner.
[75] Stressor 5 relates to a client's Psychiatrist not being aware of the history regarding the client. There is nothing in the evidence to show that the Psychiatrist blamed Ms Green or for that matter that anyone else did. In fact, Ms Compton's evidence was that it was not part of Ms Green's responsibility to be at that meeting.
[76] Stressor 6 requires no further consideration than what has been made under that heading earlier in this decision.
[77] Stressor 7 in my view represents no more than Ms Compton looking out for Ms Green and offering her assistance in dealing with her situation. That Ms Compton did not ask the question required of from Ms Green is unremarkable. Of more significance was that Ms Compton did attempt to look after Ms Green in difficult circumstances.
[78] Stressor 9 concerns the proposition that mediation occur between Ms Compton and Ms Green. This was abandoned by Ms Green when she says others had told her that Ms Compton had spoken to them. This complaint was symptomatic of many of Ms Green's concerns. Ms Green listened to others and did not take the issue to management for the purpose of attempting to resolve this problem.
[79] Stressor 10 is based solely upon supposition by Ms Green.
[80] Stressors 11 and 12 relate to the investigatory process undertaken by Mr Day. I have not found anything in the evidence concerning the allegations made by Ms Green to suggest that there was anything unreasonable in the manner in which Mr Day conducted these meetings and discussions.
[81] In my view, Ms Green's primary disappointment was that Mr Day had not upheld any of her complaints. I accept that this may have been disappointing for Ms Green but it does not follow that the actions taken by management were unreasonable and taken in an unreasonable manner.
[82] Ms Green's injury is withdrawn from the definition of injury for the purposes of the Act pursuant to s 32(5)(a) of the Act.
[83] The application is dismissed.
[84] Ms Green is required to pay the Regulator's costs of and incidental to this application.
[85] Order accordingly.
Queensland Mining Pty Ltd (2003) 172 QGIG 6 at 7 per Hall P
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