Groth v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 132
•27 August 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Groth | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 132
| PARTIES: | Groth, Kenneth | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2012/291 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 27 August 2014 | ||||
| HEARING DATES: | 15 April 2013 | ||||
| 12 June 2013 26 September 2013 22 and 23 April 2014 1 July 2014 (Appellant's submissions) 19 August 2014 (Respondent's submissions) No submissions in reply from Appellant | |||||
| MEMBER: | Industrial Commissioner Thompson | ||||
| ORDERS: |
|
confirmed.
3. The claim is not one for acceptance.
4. The Appellant is to pay the Respondent's costs of and incidental to the Appeal
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant a worker - bears onus of proof - standard of proof - balance of probabilities - medical evidence - personal injury - Appellant failed to establish personal injury arose out of, or in the course of, employment - employment was not a significant contributing factor to the injury - Appeal dismissed - claim not one for acceptance - decision of Regulator confirmed - | ||||
| Appellant to pay Regulator's costs. | |||||
| CASES: | Workers' Compensation and Rehabilitation Act | ||||
| 2003 s 11, s 32, s 550 | |||||
| Jonathon James McMillan Wren AND Simon Blackwood (Workers' Compensation Regulator) | |||||
| (WC/2013/28) - Decision < | |||||
| Q-COMP v Glen Rowe [21009] 191 QGIG 67 | |||||
| |||||
| Compensation Regulator) [2014] QIRC 078 | |||||
| |||||
| Compensation Regulator) [2014] QIRC 081 Davis v Blackwood [2014] ICQ 009 Qantas Airways Limited v Q-COMP [2006] 181 QGIG 301 | |||||
| APPEARANCES: | Mr J. Shepley, Counsel instructed by Carroll, Alexander and Associates for the Appellant. Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Workers' Compensation | ||||
| Regulator), the Respondent. |
Relevant Legislation
[6] The Legislation pertinent to this Appeal is 32 of the Act:
"32 Meaning of injury
(1)
An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5)
Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a)
reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)
the worker's expectation or perception of reasonable management action being taken against the worker;
(c)
action by the Authority or an insurer in connection with the worker's application for compensation."
Nature of Appeal
[7] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[8] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[9] In the course of the proceedings, evidence was provided by five witnesses.
[10] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[11] The witnesses for the Appellant were as follows:
Appellant (Groth); Dr Burnett Kann (Dr Kann); Kathy Grant (Grant); Dr Maura Harvey (Dr Harvey); and Lloyd Smith (Smith). [12] The Regulator called no witness evidence.
Appellant
Groth
[13] Groth had commenced employment with Hyne as a casual employee in or around 2005 later becoming a Production Manager. In 2009 there was a significant change in the operation of the business as a result of the introduction of the Vault System (Vault) which recorded, amongst other things:
all employee information; all incidents; accidents; downtime; risk assessments on machinery; training records; driver's licence; and forklift licence.
[14] At the time of introduction, the Site Co-ordinator at the Melawondi site (Grant) basically dedicated her time to the Vault which Groth described as "a hugely difficult system to operate, to understand and to even work". The Melawondi site was operated 24 hours a day, seven days a week with around 70 employees spread over the various shifts. Hyne also had a number of other sites operating throughout the region. There were no extra staff provided at the time of the Vault's commencement and limited training was provided by the employer which was not accessed by Groth as he was on annual leave at the time. Grant, according to Groth, had participated in two training sessions in Maryborough and when she was removed from Melawondi there was no one left with her knowledge of the Vault operation.
[15] The increased workload as a result of Grant's departure, was said to have placed Groth under a "great deal of stress" and his hours on the job increased to a point where he would commence at 6.00 am and sometimes still be there at 5.00 pm. Groth sought medical treatment for a stress-related condition and was prescribed anti-depressants. He informed Drew Campi (Campi), his Manager at the time, of the work-related condition due to increased work load emanating from Grant's departure, was told to deal with it as Grant would not be coming back and as the Company was going through change there would be no further resources allocated to his Mill.
[16] Groth sought further medical assistance in the form of a Psychiatrist (Dr Kann) but after five visits he ceased treatment as WorkCover had not approved a claim and the visits were becoming expensive.
[17] Groth was subjected to lengthy cross-examination where he confirmed that he sought initial treatment for stress in May 2011 but that was not the first time he had been prescribed anti-depressants as in 2005 or 2008 following the passing of his mother he was prescribed a similar medication, Effexor [Transcript p. 4-17]. Dr Kann had prescribed Temazepan to assist with his sleep however he was unable to take those tablets as they gave him nightmares [Transcript p. 4-19]. Groth gave evidence of telling Dr Angus in March 2009 of work stressors related to the introduction of the Vault and of people being "put off" due to restructuring and change [Transcript p. 4-20]. Groth confirmed that it was part of his job to put people off in 2009, many of whom were casuals but also there were retrenchments he had to enforce due to restructuring. In terms of stress, he gave evidence to the effect "but not over the top. Not - not any worse - it's part of the job that is there that you don't really like to do, but you do it because that's - that's it", later giving further evidence on a "yes or no" answer that it was not stressful. There were family stressors as a consequence of bringing work home [Transcript p. 4-22]. Groth had been prescribed a number of medications, but had not always had those scripts filled [Transcript p. 4-23]. There were also issues regarding alcohol consumption which Groth acknowledged he "was drinking a little more, just hiding it like that" [Transcript p. 4-24].
[18] Groth, at the time, had no stress related to the tenure of his employment even though they were trying to sell the business [Transcript p. 4-25]. In May 2011 following Grant's departure from Melawondi he saw Dr Angus about work-related stress having to do administrative work [Transcript p. 4-26]. Groth was questioned on the Position Description [Exhibit 7] for his role of Production Manager and in particular, the section relation to administration:
"Requisition all necessary consumable goods required for production (consumable stock should be kept at the minimum levels needed to service the production program without delays being incurred). Review and reconcile daily production and run-time reports. Prepare monthly production report identifying various aspects of
production and operational efficiency. Assist with monthly and cyclic stocktakes of WIP and FG's as and when
required. Co-ordinate and authorise timesheets and leave applications. Authorise overtime in accordance with production needs. Monitor employee attendance records and review as appropriate. Review weekly, labour, consumable and material variances, by work
order, and instigate action plans as necessary."
[19] Groth described the way he either undertook those duties or in some cases how other employees performed the tasks and he signed off on or entered their data [Transcript p. 4-30]. Other tasks had been delegated to Grant and when her workload was "up to" other people [Transcript p. 4-31]. Some of the spreadsheet work he undertook was described as "just like monkey see, monkey do" [Transcript p. 4-31]. Data entry was described as a "very simple" task, but there was a need to understand the data being processed [Transcript p. 4-32]. Groth conceded that some of the data entry had been delegated to other employees [Transcript p. 4-32]. Groth accepted the proposition that he undertook the bulk of the administration tasks [Transcript p. 4- 34].
[20] The Vault was introduced in stages commencing in 2009 with Groth accepting that he had "a few months' notice" of the introduction and there had been some dummy runs at the Imbil Mill [Transcript p. 4-35]. He had attended a Power Point presentation some time in 2008 [Transcript p. 4-36]. The Vault was a recording system that was to replace a manual system of data collection [Transcript p. 4-36]. The Vault introduced some new terminology but that did not make the step-by-step process simple [Transcript p. 4-37]. Groth conceded that he was given an introductory session on the Vault as were shift supervisors and team leaders [Transcript p. 4-40] Groth had taken leave just prior to the commencement of the Vault and gave evidence that on his return it was "up and running" which did not surprise him [Transcript p. 4-43]. He was aware of the reasons for changing to the Vault and what was required of him in terms of using it along with the outcomes it would deliver to the business [Transcript p. 4-44]. Groth did not agree with the proposition that the only difference between the old system and the Vault was that entry was made by various individuals [Transcript p. 4-44]. To operate the Vault was described as being a "bit like being in a maze. You know there's an end result; you know there's a door out but once you're in there you're not sure how to get there" [Transcript p. 4-45]. Upon the introduction of the Vault at the Melawondi site, whilst sharing the operation with Grant, it was really her who oversaw the operation [Transcript p. 4-45]. Groth accepted that when Grant was at Melawondi, he would sign off at the end after Grant or others had inputted material into the system [Transcript p. 4-46].
[21] According to Groth, the Vault was very complicated as you were required to go into different pages and if you did not close out exactly as it is, it did not go off the screen which led you to think you had done your work but had not. The system would only take so many characters and if you left for some time it would log off whereby work would be lost [Transcript p. 4-48]. Whist Groth was not on the Vault all the time, he was responsible for all that occurred on his site [Transcript p. 4-48]. He had no access to help sheets and only found out about such sheets in the course of the disclosure phase of the Appeal [Transcript p. 4-48]. There was consistent reporting to Campi about problems with the operation of the Vault but he did concede that whilst Grant was on site she would provide assistance and had carried out some informal training. When she was absent he would phone someone else to come in and provide assistance [Transcript p. 4-49]. Manager's meetings were often an opportunity to seek help [Transcript p. 4-50]. Groth acknowledged when Grant was available he "wasn't on the Vault as much as I probably should have been" [Transcript p. 4-50].
[22] Groth was questioned on a Position Description [Exhibit 9] dated 4 November 2010 for his position at the Melawondi site where, under "Key Accountabilities" it stated:
"Safety - To maintain a safe work place by ensuring all staff have relevant training in all areas required. To ensure all incidents/accidents are investigated fully; findings are implemented where able to reduce possible reoccurrences. To ensure 'The Vault' data is accurate and that all items relevant to his area are closed out correctly and in a timely manner. To complete monthly a Safety Audit as per the schedule. To discipline any employee who fails to follow the company or site policies on safe work practices. (Unable to dismiss but can stand down)."
[23] Whilst the work in terms of data entry had been shared by Grant and others, it was Groth who was responsible for ensuring all the work had been done properly even though the ground work had been done by others [Transcript p. 4-52]. He agreed that it was reasonable to suggest if there was a problem with the Vault then it was a matter for the team to consider including if someone did not understand how to use the Vault [Transcript p. 4-53].
[24] Groth and the team were solely dependent on Grant in dealing with the Vault and it came as a shock to him when she was transferred without a replacement. Groth accepted that because of Grant he had "effectively, showed a disinterest in understanding the Vault and how it worked because any problems could be sorted out by the team" [Transcript p. 4-54]. In 2010 Groth conceded he had only gone into the Vault on four occasions [Transcript p. 4-54]. He could prioritise when he needed to go into the Vault and he was happy with the system in place [Transcript p. 4-55].
[25] Upon Grant's departure, all tasks previously undertaken by her were spread across, where appropriate, the whole workforce at the Melawondi site. Also Grant took some work tasks with her although Groth could not remember which tasks [Transcript p. 4-56]. Grant would at times return to Melawondi to undertake work effectively sharing work across both sites. Groth did not agree if he had a problem with the Vault that Grant was easily contactable [Transcript p. 4-57]. If the problem was critical, he conceded he could have contacted David Murtagh (Murtagh) or Noel Puller (Puller). Despite not having an understanding of the Vault, he managed to work his way through the system for almost a year after Grant had left the site. He acknowledged he was not on the Vault every day in 2011 and did not argue with examples offered regarding his usage in that year [Transcript p. 4-58] being:
February - 12 occasions; March - 11 occasions; and April - 16 occasions.
[26] In effect, most visits to the Vault were in the form of an overseer to check what co-workers had entered. Every Monday Grant would provide all managers with a list of Vault interactions, identifying what corrective actions (if any) were required [Transcript p. 4-59]. Groth reaffirmed his dislike for the Vault which he found hard to use and complicated with the end result being others would do that work for him [Transcript p. 4-61]. Groth maintained he had continued to seek training on the Vault [Transcript p. 4-62].
[27] In 2012 he became aware his job was to become redundant and whilst he previously had been required to put off casual employees, he confirmed his earlier evidence that he did not find this task stressful and that "it was a job function in the role and it was part of the job" [Transcript p. 4-65].
[28] In April and May 2012 as part of the consultations with Dr Kann, he relayed on those occasions the stressors in the workplace that he found were causing him problems, one of which was stress as a result of having to inform co-workers in 2009 they were being made redundant and that in 2009 he had seen a General Practitioner for the same stressor [Transcript p. 4-66]. This position conflicted with his evidence given previously with Groth adopting a position his evidence earlier in the day was wrong [Transcript p. 4-67]. Groth claimed that he had been under a lot of stress with the Vault, downsizing and production, although until now he had never mentioned stressors associated with production [Transcript p. 4-67].
[29] Groth conceded in his application for workers' compensation he had relied upon various workplace stressors which included:
the Vault; Grant being removed from the site; and putting people off.
[30] The loss of his own employment was emotional and stressful which also formed part of his application for workers' compensation [Transcript p. 4-69]. Whilst he now relied upon only one stressor, when he made his claim he was "not clear" and did not have any legal knowledge regarding WorkCover and provided information on the other stressors at the request of WorkCover to provide more information [Transcript p. 4-72]. Groth confirmed he was upset at the way his redundancy was dealt with by the employer and that it was a stressor [Transcript p. 4-73].
[31] Groth did not accept the proposition that he lodged his application for workers' compensation as a result of being made redundant. In respect of being suicidal following his redundancy, Groth put that down to having "too much to drink" [Transcript p. 4-79] and also anti-depressants [Transcript p. 4-80]. In terms of advice given to Dr Angus on 31 January 2012 by his wife that he had suicidal thoughts because of the redundancy, it was Groth's evidence that was his wife's statement, not his [Transcript p. 4-80].
[32] Groth gave evidence that despite the business "having a hard time" in 2011 and rumours circulating about the likelihood of people, in particular managers keeping their positions because of changes associated with a company restructure, he was not feeling vulnerable [Transcript p. 5-2]. He was questioned regarding a statement given to WorkCover on 9 February 2012 where he had stated:
"There has been uncertainty in the workplace over the company's future for approximately 12-15 months. The company has not been performing well and there were a number of rumours circulating about what the likelihood and/or outcome of these changes might mean to us as managers. Essentially there was an air of uncertainty and I was feeling particularly vulnerable."
[33] Groth acknowledged that he had made the statement giving further evidence that a performance review was due at the time and that he "had some managerial issues". There was an acceptance regarding concerns around the vulnerability of his position [Transcript p. 5-5]. A further passage from the same statement was raised with Groth where he had stated:
"I've noticed that in the last 12 months or so that I was beginning to feel anxious continuously while I was at work because I believed that almost everything I did was under scrutiny".
[34] Groth's evidence was this was true and that everyone was under scrutiny [Transcript p. 5-7].
[35] In terms of his redundancy, Groth confirmed that in early January 2012 he was informed he may be made redundant yet despite being pre-warned he was still shocked when on 25 January 2012 his employment was ceased and he was given five minutes to tidy up and leave the premises [Transcript p. 5-8]. He arrived at his home around lunchtime and accepted he was "pretty distraught" at that time [Transcript p. 5-10].
[36] Groth was unable to recall what he had told his wife on the day of his retrenchment including that he wanted to make a WorkCover stress claim [Transcript p. 5-27]. He did recall telling his wife he needed to go to a doctor but was unable to remember when he visited the doctor [Transcript p. 5-28]. On whether we was annoyed in relation to the manner in which his redundancy was handled, Groth's evidence was "I don't know what we'd call it annoyed. It's - It's pretty common practice for it to happen that way. Is there a good amount of shock value there? Yes. But being really annoyed - it's - it's a - it's a very standard practice, of retrenching people that way" [Transcript p. 5-29]. Groth denied dwelling on his retrenchment on the day it occurred [Transcript p. 5-29]. Groth accepted he was disgusted in how his redundancy was handled [Transcript p. 5-30].
[37] Groth accepted that in the case of an industrial accident the same procedures would occur as was the case prior to the introduction of the Vault, albeit there would be data entry required as opposed to filling in forms [Transcript p. 5-34].
[38] In re-examination Groth gave evidence on the day of his termination he was handed some paperwork which included information about counselling and outplacement services. Groth gave evidence of his attendance at the Imbil Clinic and of being issued scripts for medication which he did not always fill. With regards to his usage of the Vault, it was the case if someone had logged into the system it was possible for someone to access the system under the name of the person whom had logged in. Groth confirmed previous evidence that he had no clear recollection of what he did on return to his home on the day of his retrenchment. In terms of being under stress, it was Groth's evidence that he often used words such as "angry, mad or pissed off" to describe how he was feeling rather than using the term "stressed".
Dr Kann
[39] Dr Kann, a Consultant Psychiatrist, saw Groth on two occasions (19 April and 8 May 2012) after which a medico-legal report was released by Dr Kann on 17 May 2012 [Exhibit 10]. Following the release of the report, he saw Groth on a further five occasions, the last being 1 August 2012. The history relied upon by Dr Kann in the preparation of his report had been provided by Groth and supported by statements from work colleagues.
[40] Dr Kann, in his report under the heading "Treatment" stated:
"Mr Groth completed a Depression, Anxiety and Stress Scale with all three
symptom clusters scoring in the extremely severe range".
[41] Dr Kann was questioned, in his evidence-in-chief, with regards to his report where he had responded to a question put by the Insurer in terms of what he considered the work-related stressors causative of Groth's personal injury. The response (at page seven of the report) was:
"I refer you to the 'History of Incident' section and my response to question 1 for my response. Factors reported which contribute to the diagnosed condition include reduced staff members, increasing work load including additional roles such as administrative responsibility in relation to a software reporting package without training. Attempts to address these issues with his employer failed. I'm not aware of factors other than those relating to the workplace that made significant contribution to the diagnosed Adjustment Disorder."
[42] Under cross-examination Dr Kann agreed that the "History of Incident" section of his report identified the following stressors:
Groth experienced stress in 2009 as a result of having to put off casual
workers; in 2011 following a company restructure a female work colleague was transferred to another site which meant that her workload had to be spread over a number of other workers which coupled with a lack of training in regards to the Vault he suffered stress; and Groth's redundancy and the manner in which the redundancy was
effected [Transcript p. 5-16].
[43] It was Dr Kann's evidence that "there was a cumulative effect of the workplace stressors. The one, sort of, added to the other and culminated in him being abruptly offered a redundancy". Dr Kann was unable to comment on whether Groth being made redundant had come as a shock to him but accepted that the manner in which the redundancy was effected had lead Groth to inform him that was a significant stressor [Transcript p. 5-17].
[44] Dr Kann was provided with extracts (previously unseen) from General Practitioner notes of 31 January 2012 and 6 February 2012:
"Serious potential suicidal risk last night. Has been screaming down the phone at his allotted counsellor. Mrs Groth is very concerned in relation to his irrational behaviour, pacing, staring at the lake, standing in the rain, paranoid behaviour, wants all the lights off, wouldn't allow use of the phone yesterday."
"There's a build of stress over months, had to lay his casuals, six to 12 months ago, off, then was given the job of handing out the redundancy notices and then told to clear his desk, was given a pre-warning in case of it happening, and it would appear that his mental state feels he's got past all the thoughts of self-harm and wants to look forward to the future."
[45] Dr Kann conceded that having to tell people they were redundant and Groth becoming redundant was a fairly significant stressor" [Transcript p. 5-19]. Dr Kann opined there was a cumulative effect from all the stressors and had experienced symptoms of distress for some time [Transcript p. 5-20].
[46] In the course of his attendances, Groth had, for the majority of the time, spoke of the most burdensome stressor being the lack of support in the workplace and having to manage the Vault [Transcript p. 5-20]. Dr Kann indicated that he had been left with the impression if he had continued in the workplace (without redundancy) the ongoing stressors in managing the Vault could have left him suffering an adjustment disorder although he could not say he would have diagnosed such a disorder [Transcript p. 5-21]. On the proposition that following Grant's departure from the Melawondi site the burden of the Vault had been shared by a number of other workers, Dr Kann opined that Groth felt the burden was substantially on him [Transcript p. 5-23].
[47] In re-examination, Dr Kann confirmed Groth felt the added workload and not being adequately trained with the Vault had compromised his other work roles.
Grant
[48] Grant worked for Hyne for 15 years prior to the sale of the business in October 2013 and was the site co-ordinator at Melawondi from 2008 until 2011 at which time she was transferred to the Imbil site. Grant described the system of work before the introduction of the Vault. Prior to the commencement of the Vault she recalled attending (along with two risk management representatives [RMRs]) a presentation on how to enter incidents into the Vault with that session lasting about an hour. She also attended monthly health and safety meetings and there was one training session at Imbil. She was not aware of any particular training program being established for staff to assist with the introduction of the Vault.
[49] In the absence of a training program, Grant found it hard to cope with the Vault requiring her to sometimes stay back late to learn, seeing it as a challenge. Her workload increased as a result of the Vault being implemented with her having to perform most of the functions associated with the Vault.
[50] On taking up her position at Imbil, she was able to access material that had been entered at the Melawondi site and at times, corrected errors she found as well as contacting the RMRs to give feedback about better ways of using the system.
[51] As the primary user of the Vault at the Melawondi site, she acknowledged not receiving significant training during the implementation, but did receive support through emails and phone calls. The software was described as complex and she continued to be a continuing resource for Melawondi despite being located at Imbil.
[52] In respect of assistance to Melawondi, nine times out of ten she would respond fairly quickly, however there could be times when it would not be until the next day. Upon taking up her role at Imbil, she continued to perform some tasks that had been undertaken at Melawondi, however there were other tasks she discontinued. If she encountered problems either whilst at Melawondi or later at Imbil, she would contact head office (usually Puller). In the course of her performance reviews whilst at Melawondi, she recalled she may have mentioned how time consuming the Vault was but she could not recall raising additional training.
[53] Under cross-examination, Grant's evidence was whilst at Melawondi she had ownership of most aspects of the Vault, with other people including Groth also utilising the Vault. Any problems that arose generally went to her as first port of call [Transcript p. 5-74]. Grant described the process undertaken if there was an injury on site which included:
an investigation being undertaken; witnesses (if any) interviewed; corrective action generated; and recommendation.
[54] Grant was responsible for overseeing all of those entries and monitoring whether the next step was taken [Transcript p. 5-75]. Any risk assessment completed would also be entered into the Vault. Reviews of the Vault would be undertaken by the Production Manager (Groth) at which time she would provide assistance [Transcript p. 5-76]. Over time the Vault did not experience any decrease in difficulties in respect of usage [Transcript p. 5-77].
[55] Grant would generally sit down either weekly or fortnightly with Groth to review the Vault, however after her transfer to Imbil it became monthly. Common problems for Groth included getting into the program with some days better in respect of his understanding of the Vault. Grant was of the view Groth generally had a problem understanding and remembering how to get into the Vault. Whilst she was at Melawondi, Groth and "everyone" would come to her with such problems [Transcript p. 5-77].
[56] For the first couple of months after leaving Melawondi she concentrated on the Imbil site, but then went back to dealing with Melawondi because Campi had wanted that to happen. She was wearing the "Vault Champion" hat for both sites and if Groth had any difficulties, she provided assistance usually through emails. Grant gave evidence regarding the input of data into the Vault, stating it was done by "mainly the risk management reps" [Transcript p. 5-79]. There were updates regarding the Vault placed on the Company intranet site when such changes were made [Transcript p. 5-81].
[57] In re-examination, Grant stated that the updates to the Vault were sent to the Health and Safety Managers and sometimes picked up by the RMRs. Grant was not in a position to give evidence whether the Vault got better or worse over time, although "the more you used it, probably the easier it got". In what was described as a critical time (around March 2011) Grant was unable to recall how many times she visited Melawondi following her transfer to Imbil.
Dr Harvey
[58] Dr Harvey, a General Practitioner at the Imbil Clinic since 2001, recalled that in 2012 she had concerns regarding Groth's mental health, particularly when she saw him on 25 January 2012 when he was extremely agitated, upset and unable to cope in his own mind. He was in an extreme state of distress and had drank excessively the night before to settle himself down. On 25 January 2012 she gave Groth a shortlist of psychiatrists and psychologists for him to see who he could get into first. Dr Harvey gave evidence of Groth's medical conditions for the period 2008 to 2012 which included some chest pain and a stress ECG which did not identify any cardiac symptoms.
Smith
[59] Smith, a former employee of Hyne of some 24 years standing, ceased that employment in September 2011 by way of accepting an offer of redundancy. At the time of exiting the Company, he held the position of Shift Supervisor and reported to Groth as the Production Manager. Smith was employed at the time the Vault was introduced and gave evidence that it was "a hell of a system" for which he received a "half hour" of training. Smith had limited knowledge in the use of computers and raised with Groth "many a time" that he was spending too much time trying to input data into the Vault. At one stage, in a management meeting, he had a heated argument with Campi about the time he was spending on the Vault at the expense of his supervisory duties.
[60] Under cross-examination, Smith gave evidence in terms of difficulties he experienced with the Vault making the comment "Like I can type, one finger typist, you know, 'cause as I said I've had nothing to do with computers" [Transcript p. 5- 88]. In the case of a workplace accident, it was his responsibility to enter the data into the Vault, undertake the investigation and if necessary obtain statements from persons with some knowledge of the incident [Transcript p. 5-88]. If he had difficulties with the Vault, he would raise concerns with either Grant or Groth with Grant usually fixing the problem [Transcript p. 5-89]. In the case of issues raised with Groth, they would all get together and try and work out the problem [Transcript p. 5-89]. Problems were solved at times through working as a team [Transcript p. 5- 90]. Sometimes it took a couple of days to sort out the problem although there were times when you would not get an outcome [Transcript p. 5-90].
Submissions
Appellant
[61] In the course of opening their case, Counsel for the Appellant, in submissions, identified the claim to be considered by the Commission in the following terms:
"The claim is that it was not reasonable management action in putting the applicant in the position of having to perform the work that Ms Grant had performed in respect of the Vault System, and in particular without training or other assistance from other staff. And that gave rise to his do [sic] compensating. That's generally the aspect of the claim". [Transcript p. 4-3]
[62] Written submissions were forwarded to the Commission on behalf of Groth a month beyond the date agreed at the conclusion of the evidence in the proceedings.
[63] In those submissions, it was said that it was not of dispute that:
Groth was a "worker" within the meaning of s 11 of the Act; and Groth had sustained a personal injury within the meaning of s 32 of the
Act.
[64] There was no evidence led that the personal injury did not arise out of and during the course of his employment and that the employment was not a significant contributing factor.
[65] The action in these proceedings is grounded on the fact that stress was caused to Groth by directing him to oversee and take responsibility for the Vault without giving him training in its operation, particularly in circumstances where the key employee operator (Grant) was transferred to another site without a replacement, leaving Groth without immediate support or guidance to operate the system. The issue that arises "was whether the management action taken reasonable and taken in a reasonable way".
[66] It was submitted that on the evidence to be considered, the Commission is required only to take cognisance of evidence admitted either by evidence-in-chief or exhibits that had been provided. Any other affidavits or other material previously provided in the proceedings must not be considered nor any of the alleged statements by employers and others to WorkCover or the Regulator.
[67] The Regulator had declined to call any evidence.
[68] The non-controversial aspects of the case were identified as:
Groth had been employed by Hyne for over 14 years and at the date of
termination held the position of Production Manager; there was a role description for his role as Production Manager; in 2004 Grant was employed at Melawondi in an administrative
capacity; in 2007 the Vault was introduced as a new reporting system with Grant being the primary person trained on the system. Grant provided "informally" information to a variety of staff on how to operate the system, on a daily basis; in 2011 Grant was transferred from Melawondi to the Imbil site which required Groth to perform work previously undertaken by her in addition to his own tasks. That gave rise to him having to perform an extraordinary number of hours leading him to be stressed. Groth had not been trained nor did he have a full understanding of how to operate the system; as a consequence of those stressors he sought medical support on 6 May 2011 from the Imbil Clinic being prescribed the prescription medication of Effexor; doctors notes stated "had a key co-ordinator moved by management at work and now communication at work is difficult and causing stress"; and consequent to Groth's termination he sought psychiatric treatment from
Dr Kann.
[69] It was unreasonable management action to have put Groth in the position of having to perform work previously undertaken by Grant in respect of the Vault without any training or support processes from management. Further, the failure of management to respond to repeated requests from Groth for assistance was also unreasonable management action.
[70] Dr Kann provided a medical report [Exhibit 10] in which he diagnosed Groth with depression, anxiety and stress scale with all three system clusters scoring in the extremely severe range. The "History of the Incident" relied upon by Dr Kann related to:
increased workload; diminished support and reduced staff; increased administrative demands; need to utilise computer software without training; and attempts to address issues reportedly failed.
[71] All of the above were considered to be work-related stressors causative of the personal injury with Dr Kann not being aware of any factors beyond work that may have been causative of the injury.
[72] Dr Kann was required to undergo a significant period of cross-examination with the submission addressing points of significance around:
stressor most burdensome being lack of support in managing the Vault
[Transcript p. 5-20]; 2009 stressor and stressor involving redundancy for other employees and
himself [Transcript p. 5-21]; shared arrangement in managing the Vault [Transcript p. 5-22]; and different sets of burdens [Transcript p. 5-23].
[73] In re-examination, Dr Kann responded to the issue of workload and inadequate training [Transcript p. 5-24].
[74] It was submitted that the introduction of the Vault was a major stressor for Groth with evidence given by Groth, Grant and Smith which provided a first-hand account of the operation of the system. Significant portions of Grant's evidence appeared as "extracts from transcript" in the submission in respect of:
training; her role at the Melawondi site; increased workload; functionality of the Vault; and her role following transfer to the Imbil site.
[75] Smith's evidence was addressed in a similar way where he identified issues including:
role of Grant; lack of training; increased workload/effect on his supervisory role; and complexity of the system.
[76] The evidence of Groth in the proceedings around the introduction of the Vault and the operations beyond was featured in the submission, with reliance on "extracts from transcript" where he had identified issues that led to his stress related illness. These included:
lack of training for the Vault; and Grant's departure and failure to allocate further resources.
[77] Groth, in the course of cross-examination, was said to have made contradictory statements to Dr Kann regarding the stressors relied upon and again there were "extracts from transcript" said to answer those allegations. The other stressors were said to relate to the previous stress of 2009 (staff redundancies) and the major stressor being his own redundancy which Groth did not accept was the case and refused to concede the proposition of the Regulator that his own redundancy was the sole stressor.
[78] The submission was critical of the Regulator waiting until the conclusion of the Appellant's evidentiary case to advise they were not calling witness evidence, despite having previously provided a list of witnesses they had intended to call in the proceedings. The Appellant had intended to have documents (that were not the Appellant's documents) identified by witnesses for the Regulator and their non-appearance hindered the case for the Appellant.
[79] In the absence of employer evidence, it was argued that the only evidence relating to reasonable management action was the evidence of witnesses called in the Appellant's case.
[80] The onus of proof is for the Appellant on the balance of probabilities to make a case and where a respondent produces no evidence to support that any of the management action was reasonable it was submitted that with the medical evidence supporting Groth's position, all the requirements to support the Appeal application had been met.
[81] The significant legal issues arising in this case were said to have been assessed in previous matters before the Industrial Court, which included:
Wren v Simon Blackwood (Workers' Compensation Regulator)[1]; Q-COMP v Rowe[2]; Martinz v Simon Blackwood (Workers' Compensation Regulator)[3]; Craig v Simon Blackwood (Workers' Compensation Regulator)[4]; and Davis v Blackwood[5]. [1]
[2] Q-COMP v Glen Rowe [21009] 191 QGIG 67[3] Martinz v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 078
[4][5]
[82] In summary, it was argued the previously mentioned authorities had demonstrated that the mere occurrence of a reasonable management action in relation to some employer action will not insulate the disorder from being characterised as an injury. It then becomes a matter for the Commission, relying on any expert evidence, to look at the management action and employment factors to assess the disorders and reach a conclusion as to what stressors caused Groth's decompensation.
[83] The evidence of Groth and the other witnesses, most significantly Dr Kann, demonstrated it was not reasonable action taken in a reasonable way. The failure of any person in management to be called should be seen to demonstrate the lack of management to endorse their own decision/lack of process.
Respondent
[84] The Regulator conceded Groth was a worker for the purposes of s 11 of the Act however contrary to his submissions contends that Groth had not sustained an injury (on the expert medical evidence) within the meaning of the Act and in fact has failed to discharge his onus. Should it be determined that Groth sustained an injury within s 32(1) of the Act the Regulator contends the injury is excluded because of the application of s 32(5) of the Act.
[85] The case for Groth was identified at the commencement of the hearing as not reasonable management action in putting him in the position of having to perform work that Grant had undertaken in respect of the Vault without training and support from other staff which gave rise to his decompensation.
[86] The evidence from Groth covered the entirety of his employment at Hyne Timber from commencement as a casual in 2005 although in cross-examination it emerged the employment started in 1998/1999 eventually becoming a Production Manager in 2007. The Vault was introduced in 2009 and used to record employee information including:
all incidents; accidents; risk assessment on machinery; and training records.
[87] Grant was the Site Co-ordinator at the Melawondi Mill at the time of the Vault's introduction and in addition to a multitude of duties was the "go to" person for the Vault. The Vault replaced a manual system of forms and paperwork. Groth's evidence included examples of the Vault operating and the follow up by the RMRs on site. Most of the work in question was undertaken by Grant. It was said by Groth he attended a training demonstration but was given no "hands-on training at all".
[88] At a point in time Grant was relocated to the Imbil Mill and with her position not being replaced Groth claimed to have been placed under a great deal of stress due to an increase in workload. He increased his work hours due to going from "crisis to crisis" and was having difficulty sleeping because the Vault had stressed him out. There was no evidence in the proceedings to support the claim of working an extraordinary number of hours as a result of Grant's departure.
[89] Whilst Groth had sought medical treatment for stress (after Grant left) he had
advised his manager (Drew Campi) of his situation stating "it's okay. It's stress…he
prescribed me some tablets - anti-depressant". Campi advised that as the company was going through a change there would be no allocation of resources, which was a position entirely open for the company with nothing unreasonable about it.
[90] Groth conceded in cross-examination that Grant was the "epicentre" for doing the administrative tasks at Melawondi claiming that he "wasn't there to administrate".
[91] The Vault became operational in March 2008 and was introduced gradually, "step by step" with the process of inputting into the Vault being simply a data entry process although according to Groth he did not like the system, finding it complicated. In reality his involvement with the Vault was minimal when Grant was on site with him mainly signing off with Grant doing most of the work. The evidence was that Grant gave assistance to Groth with the Vault in a range of areas and was always there to provide support.
[92] On the frequency of Vault usage Groth's evidence was that he did not go into the Vault every day of the month and when Grant left to go to Imbil her work tasks where appropriate were shared across the workforce. More importantly Groth stated that Grant would "come down and helped with the Vault and would help with some of the RMR's and have an RMR meeting." Groth gave further evidence if he had a problem with the Vault he could still go to the Grant after she left and if she was uncontactable there were others within the organisation he could contact for assistance. There was also evidence of Groth having asked numerous times for training and not turning up to training.
[93] In early 2012 Groth became aware he was to be made redundant and one of his tasks at the time was to advise other employees they had been made redundant, a task according to his evidence was not found to be stressful as it was part of his job function/role. Groth expressly agreed this task did not lead to him seeing a doctor. Groth's evidence on this was inconsistent on the basis of the report of Dr Kann (17 May 2012) which in a history provided by Groth record him having "emotional symptoms necessitating him consulting his general practitioner" when he had to "put casuals (workers) off". He stated he had been prescribed anti-depressant medication at the time (2009). Groth accepted that he had provided Dr Kann with an accurate history. Groth conceded his earlier evidence was wrong and this matter was a relevant stressor when he saw Dr Kann in 2012. Significantly, Groth agreed he made the claim for compensation "because I'd been made redundant". These stressors were relied upon by him as part of his application for compensation and conveyed to Dr Kann in the consultations.
[94] The medico-legal report from Dr Kann (17 May 2012) identified four stressors said to have made a significant contribution to the diagnosed adjustment disorder. Those being:
2009 - "put casuals off"; company restructure - transfer of Grant - increased administrative
workload; Vault - lack of training; and manner in which Groth was made redundant.
[95] For the purposes of the Appeal the only stressor relied upon was the lack of training for the Vault and Grant's transfer. Dr Kann agreed each of the stressors were cumulative and that the 2009 stressor and Groth's redundancy were significant stressors although stating that the majority of his discussions with Groth centred around the lack of support in the workplace. The management of the Vault was of critical importance due to the fact Dr Kann's report is premised on there being more than one stressor with Groth's case dependent on only one stressor. Dr Kann admitted in cross-examination that the reliance on only one stressor would require a different evaluation of his claim. Accordingly in the absence of such an evaluation Dr Kann's report can no longer support the contention that Groth had sustained a psychiatric/psychological injury as a result of his employment and that stressor was significant.
[96] The onus of proof is on Groth to prove injury and with the concessions made by Dr Kann in cross-examination, has failed to do so. The body of evidence relied upon by Dr Kann is at odds with the case advanced by Groth which it was argued reflected solely on the credit of Groth who was not a truthful witness and who had sought to embellish his evidence when it suited his case.
[97] Dr Harvey on 25 January 2012 treated Groth recalling he was extremely agitated, upset and unable to cope being in an extreme state of distress. The consultation notes of Drs Harvey and Angus and the Registered Nurse (6 January 2012 to 25 February 2012) revealed Groth's attendances were associated with the stress of retrenching other employees and how his own redundancy was implemented.
[98] The submission in addressing the evidence of Grant indicated that whilst she was at Melawondi, on the introduction of the Vault she was the primary user and looked after the system and in fact conducted training on site on how to utilise the Vault. She acknowledged the system was difficult finding it a challenge. On being transferred to Imbil she was still able to access material entered into the Vault from Melawondi and would correct errors found and provide feedback. She remained readily available to give advice either by phone or email.
[99] According to Grant there were a number of difficulties for Groth in understanding the Vault review process and she would assist him with those difficulties. Prior to her transfer they would sit down once a week and she formed the view that Groth was "slowly cottoning on how to go and click on the tabs" but had problems understanding and remembering how to get into the Vault. Despite her transfer she retained responsibility for the Vault at Melawondi (for a time) and continued to assist Groth if he had any difficulties.
[100] The evidence of Smith was consistent with that of Groth in that Grant would assist in overcoming problems and provide explanations. In addition he gave evidence of Groth and the team working together to resolve any problem.
[101] In conclusion it was put that Groth had failed on the expert medical evidence to prove that he had sustained an injury on the basis that his employment was a significant contributing factor to the injury.
[102] The Appeal was grounded on the issue of the Vault with management not giving him training particularly in the circumstances where Grant had been transferred, leaving him without primary support or guidance. The claim was that putting Groth in that position was unreasonable management action.
[103] If there was a perception held by Groth around the lack of training in respect of the
Vault it should be characterised as a mere blemish by management (see Qantas
6
Airways Limited v Q-COMP ). Groth's evidence was to the effect that he had managed to cope with the system by effectively relying on others, especially Grant to run and maintain the system. There was no evidence from Groth that he was incapable of carrying out his function with the Vault. Any stress Groth may have experienced with the transfer of Grant was because his own workload, had been up to that time, performed by her and not him. The evidence was upon Grant's departure her job tasks were distributed amongst other employees and if any difficulties arose with the Vault she was contactable. Grant continued to maintain the Vault for some months after her departure from Melawondi.
[104] The company was going through a restructure at the time of Grant's transfer and were entitled not to replace her and have her tasks carried out by other employees. Such actions cannot be described as unreasonable management action.
[105] On the question of Groth's case being hindered by the Regulator electing not to call evidence, particularly in respect to the potential tendering of documents, there was no adjournment sought at that time and such a complaint was without substance.
[106] Furthermore the cause of the evidence of Dr Kann referred to earlier in the submission did not place any onus on the Regulator to cause any witness evidence.
[107] Finally it was submitted the Appeal should be dismissed.
Conclusion
[108] There was no question to be determined with regards to Groth's status as a worker pursuant to s 11 of the Act with the Regulator conceding that point, leaving the following matters to be the subject of the Commission's considerations:
whether Groth had sustained a personal injury within the meaning of
s 32(1) of the Act; if an injury was sustained by Groth did such injury arise out of, or in the course of, employment and was the employment a significant contributing factor to the injury; and whether such an injury (if sustained) is excluded from s 32(1) of the Act
as a consequence of the operation of s 32(5) of the Act.
[109] In the course of the proceedings witness evidence was called on behalf of Groth and at the conclusion of his case the Regulator informed the Commission of their intention not to rely upon witness evidence as previously advised to both the Appellant and the Commission.
[110] The Regulator in submissions provided an explanation of reasoning behind their decision and in any event in the conduct of a case a party may exercise a right to withdraw a witness or witnesses.
[111] In this case Counsel for Groth in submissions properly addressed the issue of affidavits and material not to be considered where such material would have been expected to have been tendered in the course of witness evidence and was not.
[112] The onus of proof in this Appeal falls upon the Appellant who must on the balance of probabilities establish their case for the Appeal to succeed, in any event.
Personal Injury
[113] In early January 2012 Groth was given pre-warning that his position could be made redundant, prior to being advised formally in late January 2012 his employment was to cease on that day. He was given an inordinate period of time (five minutes) to collect his belongings and leave the site. Groth in evidence accepted he was "pretty distraught" at the time of his redundancy and the loss of employment was emotional and stressful.
[114] Dr Harvey saw Groth on 25 January 2012 with her evidence being that he was extremely agitated, upset and unable to cope in his own mind, noting the reason for the visit was an adjustment disorder. He was in an extreme state of distress and had drank excessively the night before to settle himself down. Groth was given a "shortlist" containing the names of psychiatrists and psychologists for him to seek some form of specialist medical treatment.
[115] It is a matter of record Groth attended Dr Kann a treating consultant psychiatrist in April and May 2012 who later released a medico-legal report (dated 17 May 2012) where he diagnosed Groth as suffering from adjustment disorder with mixed anxiety and depressed mood. Dr Kann formed an opinion, based upon a history provided by Groth that the condition was work-related.
[116] In considering whether Groth sustained a personal injury the only medical (witness) evidence before the proceeding was that of Drs Harvey and Kann who gave evidence, having been called by Groth in the prosecution of his Appeal. Dr Harvey his treating General Practitioner in her evidence observed him at or around the time Groth lodged his application for compensation expressing concerns regarding his mental health at the time, to the extent he was encouraged to seek specialist medical treatment from either a psychiatrist or psychologist.
[117] Dr Kann's first consultation was on 19 April 2012 and whilst acknowledging a significant period of time had elapsed since the initial visit to Dr Harvey on 25 January 2012 there was a diagnosis of Groth suffering a psychiatric/psychological injury.
[118] I am satisfied on the medical evidence available that Groth sustained a personal injury in the form of an adjustment disorder with mixed anxiety and depressed mood.
Did the injury arise out of or in the course of Groth's employment
[119] On deciding whether the personal injury suffered by Groth arose out of, or in the course of, employment, the Commission was taken to a history which had seen Groth prescribed with anti-depressants following a bereavement in the family in the early 2000s. In 2009 he had sought treatment for work-related stress as a result of having to deliver redundancies to other employees although he conceded in cross-examination the level of stress was "not over the top". In 2009 there were other factors said to be relevant to his stress in respect of the introduction of the Vault, family stressors (from bringing work home) and issues with his intake of alcohol.
[120] Dr Kann in his medical report of 17 May 2012 identified a number of stressors said to have cumulatively contributed to Groth's condition which included the 2009 events as well as issues around increased workload, diminished support, reduced staff and the failure to be provided with training in relation to the Vault. In his diagnosis (on page 5 of Exhibit 10) he identified under Axis IV the following:
alleged forced redundancy; financial concerns; martial tension; and social isolation.
The above points would appear to be matters directly associated with his diagnosis of adjustment disorder with mixed anxiety and depressed mood.
[121] Further in the report he was asked to consider the work-related stressors being causative of Groth's personal injury and whether he considered employment had been a significant contributing factor to the worker's personal injury. Dr Kann provided the following response:
"I refer you to the history of the incident section and my response to question one for my response. Factors reported which contribute to the diagnosed condition include reduced staff members, increasing workload including additional roles such as administrative responsibility in relation to a software reporting package without training. Attempts to address these issues with his employer failed. I am not aware of factors other than those relating to the workplace that made significant contribution to the diagnosed adjustment disorder."
[122] Dr Kann's position in some respects must be considered conflicting in that he identifies in his diagnosis matters such as the forced redundancy, marital tension and financial concerns as issues contributing to the diagnosis of Groth's psychological condition, then in addressing the causation of the injury in the very same report relates his opinion solely to the factor of workplace issues in particular the Vault as causative of the injury.
[123] The case for Groth was clearly set out at the commencement of evidence-in-chief when it was disclosed the stressor upon which he would rely was being "put in the position of having to perform work that Ms Grant had performed in respect of the Vault system and in particular without training or other assistance from other staff".
[124] In focusing on the stressor relied upon by Groth it is necessary to examine the medical circumstances that relate to that particular stressor although it may emerge that there were other issues at play at the relevant time beyond those relied upon in the prosecution of this Appeal.
[125] The 6 May 2011 medical records [Exhibit 12] from the Imbil Clinic recorded a consultation with Groth and Dr Angus with the reason for the visit being noted as workplace issues. Clinical records went on to note that there had been a key co-ordinator moved by management at work and now communication at work was difficult and causing stress. Perusal of the records would indicate Groth visited the medical practice on a number of occasions between May and December 2011 without further reference being made in the clinical notes of the stress related condition identified on 6 May 2011. On 25 January 2012 the records indicate that Groth attended Dr Harvey at the clinic with the following notation being made as a consequence of that visit:
"all mill mngrs sacked yest after 15 yrs nearly there. 15 workers redundancies
too.
stress trm by rob since changes the last yr while he was away
wants the stress fixed. Wants wcq stresclaim".
[126] The clinical notes recorded by Dr Angus on 31 January 2012 made the following notation:
"phone call to wife serious situation following retrenching
was apparently given 5 mins to vacate his office after being given the job of
retrenching some of his junioursserious potential suicide risk last night".
[127] Dr Angus recorded further clinical notes on 6 February 2012 which included:
"build up of stress over months
had to lay his casuals 6/12 ago
then was given the job of handing out the redundancy notices and then told to
clear his desk was given 4/7
prewarning in case of it happening".
[128] Whilst Dr Angus was not a witness in the proceedings, his clinical notes were recorded in [Exhibit 12] and in the absence of direct argument why they should not be considered I have concluded they are of some assistance to the Commission in my deliberations.
[129] The medical evidence as limited as it may be should be considered in the context of contemporaneous evidence and then the evidence relating to the time beyond decompensation. Groth in May 2011 in a visit to Dr Angus unambiguously identified suffering some stress as a consequence of Grant's departure from the Melawondi site but it was not sufficient to warrant an absence from work or for that matter there was no evidence from Groth that it had been entered into the Vault (as an incident or injury) in line with company policy for which he had direct responsibility to administer at the site.
[130] Dr Harvey on 25 January 2012 and Dr Angus (phone conversation with Groth's wife) on 31 January 2012 and 6 February 2012 had both primarily focussed (in their clinical notes) on the effect of his redundancy and retrenching others as the reasoning advanced by Groth as being causative of his injury without any direct reference to the Vault.
[131] Dr Kann who first saw Groth more than two months after his decompensation relied upon a history given by Groth of the events causative of his injury which were said to include his own redundancy and the events of 2009. Dr Kann considered these events to be cumulative stressors in his decompensation.
[132] The medical evidence available to the Commission does not in my view establish that in terms of the operation of the Vault (following Grant's transfer in April 2011) it was causative of Groth's psychological disorder with the evidence pointing to Groth's condition primarily arising from his own redundancy. There was no medical evidence of Groth's inability to cope with the Vault between his visit to Dr Angus in May 2011 and his termination in late January 2012 with decompensation occurring only after his separation from the company.
[133] The evidence of Groth regarding the pressure he was under from the time of the introduction of the Vault prior to Grant's departure was in my view an exaggeration of the facts. Whilst he had the overall responsibility for the system there is an absence of evidence to support his active involvement in the operation of the scheme was at the high end of the scale. In the months of February, March and April 2011 he conceded his usage was at 12, 11 and 16 occasions (respectively) and when broken down into weekly numbers his usage was between two and a-half and four occasions per week.
[134] Grant had assumed the major responsibilities for the Vault on its introduction into the workplace which included work-related activities clearly part of Groth's position description. I accept her departure more likely than not had the effect of increasing the workload of Groth through the return of duties he should have been undertaking in the first place. Grant continued to perform work associated with the Vault in respect of the Melawondi site on her transfer to Imbil with her own evidence confirming she had corrected errors found in the system and provided feedback to the Melawondi site about better ways to operate the system. In terms of assistance to the Melawondi site she would respond fairly quickly nine times out of ten after her departure and remained a continuing resource for her former work site. Grant gave evidence that most of the input data was entered by the RMRs at the Melawondi site, whilst Groth continued to have problems understanding and remembering how to get into the Vault.
[135] The lay witness evidence combined with the medical evidence in my view fails to establish that Groth's work activities in relation to the operation of the Vault had been causative of the psychological injury that led to his decompensation, concluding that whilst he suffered a personal injury it did not arise out of or in the course of his employment.
Was Groth's employment a significant contributing factor to the injury
[136] As a consequence of Groth's injury not arising out of or in the course of his employment the employment was not found to be a significant contributing factor to his injury.
Was Groth's personal injury excluded from s 32(1) of the Act as a consequence of s 32 (5) of the Act
[137] The failure of Groth to establish that his personal injury was compensatable on the basis of having arisen out of or in the course of employment and that his employment was a significant contributing factor to his injury it is not therefore necessary to address the exclusion provisions of s 32(5) of the Act.
Finding
[138] On consideration of the evidence, material and submissions before the proceedings the following findings are made:
Groth was pursuant to s 11 of the Act a "worker" at all relevant times; Groth sustained a personal injury in the form of an adjustment disorder
with mixed anxiety and depressed mood;
the personal injury sustained by Groth did not arise out of, or in the course of his employment, consequently the employment was not a significant contributing factor to the injury;
the Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 22 June 2012 is confirmed. The claim is not one for acceptance; and
the Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
[139] I order accordingly.
Decision (No. 2)
[1] On 20 July 2012 Kenneth Groth (the Appellant) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 22 June 2012. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
[2] The decision of the Regulator was to confirm the decision of WorkCover to reject Groth's application for compensation in accordance with s 32 of the Act.
[3] The Appeal was set down for hearing in Maryborough on 15 and 16 April 2013 at which time Counsel for Groth raised issue with the decision of Q-COMP to the effect there had not been a valid application for compensation therefore questioning the validity of the Review Decision subject of the Appeal.
[4] The Commission subsequently heard the jurisdictional matter in Brisbane on 12 June 2013 and in a Decision (Decision No. 1) released on 26 September 2013 found that Groth had a valid claim for compensation that had commenced on 27 January 2012 and that WorkCover and Q-COMP had disposed of the claim pursuant to the Act.
[5] In a Further Directions Order issued on 22 October 2013, the Appeal was set down for hearing at the Hervey Bay District Court on 22, 23 and 24 April 2014.
Jonathon James McMillan Wren AND Simon Blackwood (Workers' Compensation Regulator)
(WC/2013/28) - Decision <
Craig v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 081
Davis v Blackwood [2014] ICQ 009
6 Qantas Airways Limited v Q-COMP [2006] 181 QGIG 301
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