Hobbs v Lindsay Park Racing Pty Ltd
[2023] VMC 13
•13 September 2023
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No. K10975971
| KIMBERLY HOBBS | Plaintiff |
| v | |
| LINDSAY PARK RACING PTY LTD | Defendant |
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MAGISTRATE: | Magistrate M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 07 – 08 August 2023 (final written submissions filed: 17 August 2023 |
DATE OF DECISION: | 13 September 2023 |
CASE MAY BE CITED AS: | Hobbs v Lindsay Park Racing Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VMC 13 |
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WORKERS COMPENSATION – Injured stable-hand resigned whilst on modified duties - Employer had issued ‘warning’ letter on day of resignation - Reduction of weekly payments – Whether worker resigned ‘for reasons unrelated to the worker’s incapacity’ - Workplace Injury Rehabilitation and Compensation Act 2013, s 185(1)(e).
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Ms K Gladman | Hounslow Lawyers |
| For the Defendant | Ms K Karadimas | Lander & Rogers |
HER HONOUR:
Introduction
On 27 February 2018, Ms Hobbs, a full-time stable-hand employed by Lindsay Park, suffered a fracture injury to her coccyx in the course of her employment. The injury circumstances were that a vehicle driven by a co-worker collided with her at Lindsay Park’s Euroa site (the injury). Lindsay Park conducts a major thoroughbred racehorse training facility at both Euroa and Flemington.
Weekly payments and medical and like expenses were paid with respect to the injury in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). Liability was accepted for the coccyx injury and, subsequently, for a consequential psychological injury.
On 9 April 2018, after about eight weeks’ off, Ms Hobbs resumed work on a return to work (RTW) plan. She thereafter performed modified duties in accordance with certificates of capacity until she ceased work on 9 November 2018.
On 9 November 2018, Ms Hobbs resigned her employment with Lindsay Park. She had been issued with a ‘warning’ letter by Lindsay Park earlier that day (the warning letter).
By notice dated 11 December 2018, the Agent determined that the level of current weekly payments would be reduced because Ms Hobbs had either: resigned her employment for reasons unrelated to her incapacity; or had reduced her current weekly earnings for reasons unrelated to her capacity (the 11 December 2018 notice).
By agreement, at hearing, the sole issue for determination was whether Ms Hobbs resigned from her employment ‘for reasons unrelated to the worker’s incapacity’ within the meaning of s 185 (1)(e) of the Act.
Ms Hobbs gave oral evidence. Two lay witnesses were called by Lindsay Park: Ms Susan Mills, former HR manager, and Ms Jasmin Williams, a foreperson and Ms Hobbs’s direct manager.
Agreed Facts or Matters not in Dispute
Counsel for Lindsay Park confirmed at the outset of the hearing that it was accepted Ms Hobbs had an accepted consequential psychological condition relevant to the coccyx injury.[1]
[1]See the Agent’s notice of decision of 7 May 2019.
Additionally, it was accepted Ms Hobbs was incapacitated for pre-injury duties (PID) from the date of injury, throughout the RTW period and ongoing.
Ms Hobbs is aged 37 years. After year 12, she did courses in horse husbandry and equine nursing. Almost all her working life has involved the care of horses.
In 2016, she first worked for Lindsay Park as a full-time stable-hand at Euroa. After about eight months, she left to run her own horse-grooming business through a federal government initiative scheme.
In January 2018, Ms Hobbs re-commenced full-time employment as a stable-hand with Lindsay Park as running a small business was too onerous. Her direct manager was Ms Williams, the afternoon shift foreperson.
Ms Hobbs’s PID as a stable-hand included grooming, feeding, exercising and caring for horses. A stable-hand’s duties at Euroa involved walking long distances every day between stables and the exercise and feed areas. She was on the ‘afternoon crew’ working Monday to Friday and alternating weekends.
Following the injury, she experienced severe coccygeal pain. She saw her GP the same day and was put off work.
On the RTW plan, she began doing nine hours a week in the canteen and office. Over several months, she built up her hours to 27 hours per week. Ms Hobbs interacted day to day with Lindsay Park’s RTW coordinator at Euroa, Ms Clare Dobie, who assisted with treatment expenses claims and so on.
In May 2018, Ms Hobbs was informed by Lindsay Park that her weekly payments benefits had been overpaid in error and so the over-payment amount would need to be repaid (the pay issue). The pay issue was escalated from the Euroa office to Ms Mills and there were email exchanges between Ms Hobbs and Ms Mills about that and other matters.
In July 2018, she asked her GP to certify her to resume working with horses in a modified way. The RTW plan was altered in consultation with Lindsay Park. She then mainly did grooming tasks. Ultimately, Ms Hobbs continued to work 27 hours a week right up until the resignation in November 2018.
In September 2018, concerns were raised over Ms Hobbs’s mobile phone use during work hours (the phone issue). In an email to Ms Hobbs of 27 September 2018, Ms Mills referred to Ms Hobbs’s ‘workplace phone use, which has been reported to me on many occasions from numerous staff and footage, and certainly not just your 19 minutes near the water walker. Therefore I cut you some slack…’.
The annual spring racing carnival is a peak time on the calendar for Lindsay Park’s operations.
At Euroa, on 4 July 2018, a staff meeting was held (the July meeting). According to a typed agenda, one item was ‘Leave ban during Spring Carnival. Memo posted in Canteen and staff notice boards’. The memo itself stated (in part) as follows:
No annual leave or TOIL [time off in lieu] will be approved from 1st October [to] 10th November, due to the peak period of Spring Carnival. The importance and demand affects the business and impacts on all staff, irrespective of the site and position. Only special or extraordinary leave will be granted at this time at the discretion of the company. … (the leave ban memo).
Ms Hobbs worked on Melbourne Cup Day (Tuesday 6 November 2018) and the next day (the Wednesday) as usual. On Cup Day, Ms Hobbs had a discussion with Ms Williams about not attending work on Oaks Day (Thursday 8 November 2018). There was also a discussion about this on the Wednesday between Ms Hobbs and Ms Sue Enke, an office manager at Euroa.
The discussions Ms Hobbs had with both Ms Williams and Ms Enke were a matter of dispute.
Ms Hobbs did not attend work on Oaks Day. She instead attended the races at Flemington to watch a family-owned horse run.
On Friday 9 November 2018, Ms Hobbs was handed the ‘warning’ letter by Ms Williams about her ‘planned non-attendance for work on Oaks Day’. The warning letter authored by Ms Mills stated (in part):
We find this behaviour disappointing and unacceptable and as a result, this letter is given to you as a written warning that your actions have contravened the company Code of Conduct by not following a lawful direction to present for work when rostered and not providing prior approval from your Team Leader or Foreman.
The same day, at 6:18 pm, Ms Hobbs resigned her employment with Lindsay Park via email to Ms Mills stating: ‘I would like to officially give my 2 weeks notice as of today thanks’ (the resignation email).
By email dated 12 November 2018, Ms Mills responded to Ms Hobbs accepting her resignation and stated (in part):
I acknowledge your email on the back of receiving your warning letter, however, the letter was as a result of your breach policy and irrespective of you not agreeing with it or signing it, it still stands.
…
We accept your resignation as I feel that your disregard for the company rules, not acting as [a] team player and your disrespect for myself as a senior manager is very disappointing, [and] has been making your employment relationship with Lindsay Park increasingly untenable. The employment severance is in line with our Discipline and Termination Policy, wherein each party may terminate the employee employer relationship without notice and without cause, if mutually agreed upon.
Ms Hobbs emailed back on 12 November 2018 at 4:32 pm as follows: ‘Your [sic] so full of shit I will be out to get my stuff at out [of] my locker if you wanna talk to me it will be now done in the presence of lawyers your [sic] a fuckin liar and so is jasmine’. A minute later, she again emailed Ms Mills: ‘This I [sic] was the first time I took leave with no reason I would make sure you have proof of all allegations made’.
Ms Hobbs’ last day of work with Lindsay Park was 9 November 2018. She did not work again for about two years until February 2021 when she obtained work as a stable-hand. That was with a different employer although still working 27 hours per week. She has continued in that role and performing those hours to the current time.
Prior to the injury, Ms Hobbs was physically fit and had no difficulty meeting the demands of the role of stable-hand including the extensive walking. She also had no prior mental health issues.
Ms Hobbs’ evidence
In cross-examination, she agreed she enjoyed working for Lindsay Park in 2016 which is why she applied to come back in 2018. She was a good worker and got along with everyone.
Following the injury and her initial RTW in April 2018, she hated working in the office and canteen because she was an outdoors person and that sort of work was ‘not what she signed up for’.
After the RTW plan was altered to include tasks with horses such as grooming, she tried to ‘self-manage’ her work and was able to do the work okay. Her gait had altered because of the injury and she tried to keep walking to a minimum and to take small steps to cover distances. She used her phone to help with this, for example to take photos of horses and send them to veterinary staff, instead of walking.
Whilst on the RTW plan, she attended physiotherapy weekly and other medical and related appointments. At times, appointments clashed with her RTW hours.
As for her interactions with Ms Williams, they saw each other every day and their relationship was ‘civil’ up until Ms Williams reported the phone issue to Ms Mills.
In around July 2018, she found out Ms Dobie had seen her GP ‘behind her back’ in order to have the GP sign off on Ms Hobbs ‘getting back to 38 hours a week by next month’. Ms Dobie showed her a revised RTW plan saying she was ‘going back to normal’ meaning a 38 hour week. However, it was not the fact that Ms Dobie did that which was upsetting, rather she was upset about not being ‘back to normal’ as her back was not healed.
As for her dealings with Ms Mills during the RTW period, there was nothing but conflict. Initially, the conflict was about the pay issue as the over-payment was to be deducted in instalments, however Lindsay Park took the whole amount in a single pay. That caused her financial stress.
As for whether the pay issue was resolved in a timely way, she felt it was not. She felt ‘fobbed off’. The pay issue was part of ‘the spiral that took off’ regarding everything. She felt the WorkCover scheme was confusing and more for the benefit the employer than her.
In cross-examination, Ms Hobbs denied the pay issue resolved quickly, instead it went on for over a month which was apparent from the email exchange with Ms Mills of 22 May 2018.
In cross-examination, Ms Hobbs conceded that Ms Mills, in an email to her of 22 May 2018, acknowledged that Lindsay Park’s ‘communication was poor… about the adjustments’ (meaning the pay issue).
As for the phone issue, she disputed her phone use was inappropriate. She was only using the phone for work-related reasons and to contact the Agent about her WorkCover claim.
The conflict with Ms Mills was an accumulation of issues. Ms Mills was condescending and belittling. She felt she was being micro-managed and no one was supportive of her. Her mental health was going downhill due to the ongoing effects of the injury, the berating and constant pressure.
As for the RTW issues, under cross-examination, she denied she did things outside her restrictions like lifting items heavier than 5 kilograms (such as baskets of towels) or working with ‘off limits’ horses like colts as they were unpredictable.
In cross-examination, Ms Hobbs denied Lindsay Park was supportive regarding her RTW. They wanted her to stay on office and canteen duties rather than get back to working with horses. However, she agreed she had no issues with Ms Williams day to day, for example, if she could not do certain things, she would say so.
Through the months of September and October 2018, she felt anxious and depressed and as though her body was failing her. She was referred to a psychologist whom she saw once. She tried various anti-depressants which she could not tolerate due to side-effects.
Also in September 2018, she applied unsuccessfully for a full-time administration role with Lindsay Park to do with racing bloodstock. Ms Hobbs conceded, under cross-examination, that she lacked the qualifications for that which was why she was unsuccessful rather than because of any conflict between her and Lindsay Park.
In cross-examination, Ms Hobbs denied being aware prior to the warning letter of the spring carnival leave ban policy. She did not recall attending the July meeting nor did she recall seeing the leave ban memo displayed. Later she denied ever having seen it before.
As for taking Oaks Day off, she decided that on Cup Day when she found out her family’s horse was definitely running. She told Ms Williams in person on Cup Day she would take the day off and forfeit a day’s pay. The reason she gave was to attend Flemington to see the horse running. Ms Williams did not say she could not take the leave, just that she needed to raise the matter with the office the next day.
On the morning of Wednesday 7 November 2018, Ms Hobbs spoke with Ms Enke about taking Oaks Day off without pay. Ms Enke had said okay. She did not say ‘no’ nor did she bring up the leave ban memo. Ms Hobbs then went about her work believing that, if taking Oaks Day off was a problem, she would have heard that in the course of the Wednesday. However, she heard nothing more.
In cross-examination, as to why she had not applied for the day off in advance of that week, it was because it was not confirmed until Cup Day that the horse would actually run on Oaks Day.
Under cross-examination, she said she thought it would be okay to take the day off which had nothing to do with the injury. That was the first time she had ever taken a day off.
On Friday 9 November 2018, she attended work and did her tasks but had the sense ‘something was up’. At lunchtime, by the lockers, she was handed an envelope by Ms Williams in front of other co-workers. She opened the envelope and tried to process the warning letter. She then tried unsuccessfully to contact Ms Mills. She decided to resign after receiving the warning letter because she felt ‘let down’. They had been ‘hunting’ her and were trying to give her three warnings to give her the sack because she was never going to be able to resume full-time work as a stable-hand. She felt there was no point trying to continue on. Things were ‘ending in tears’ and the tears were hers.
Under cross-examination, she agreed when it was put to her that, at no stage, nor in her resignation email, did she attribute the resignation to the injury. She agreed, but said ‘the hunting’ was to do with her injury and that she had ‘no choice’ as the warning letter was the ‘final straw’.
In cross-examination, she could not recall applying for leave previously with Lindsay Park. As far as she knew, the process of applying for leave was to speak to the foreperson. She did not think she had breached company policy as the warning letter stated.
Evidence of Susan Mills
Ms Mills worked for Lindsay Park for 13 years as an office manager then as the general manager for human resources. She left in May 2019 to take up a role with another employer. She first had direct dealings with Ms Hobbs in about May 2018 over the pay issue.
In cross-examination, Ms Mills agreed that Ms Hobbs had, in emails at the time, written that she was ‘not happy’ and ‘really not happy’ about the pay issue and at one point said she was being given ‘basically a bullshit answer’. Ms Mills denied it was plain from these emails Ms Hobbs was struggling to understand Lindsay Park’s response to the pay issue, rather the emails from Ms Hobbs were ‘abusive’.
As for Ms Hobbs’s evidence there was ‘nothing but conflict’, Ms Mills denied that saying she was not aware of conflict. The pay issue was not a conflict, rather it was an error by Lindsay Park because of poor communication by the Agent which was then rectified.
The phone issue was reported to her by Ms Williams who had kept diary notes and there was also CCTV footage. She accepted Ms Hobbs had to make calls about her WorkCover claim, but she was expected to do that outside work hours especially as she was part-time.
In cross-examination, she agreed Ms Hobbs had told her the phone use was for legitimate purposes, however using a phone around horses was distracting and an OHS issue.
The leave ban policy had been in place for years and the memo about it was on staff notice boards at Euroa. Even if staff were not at the July meeting, they would have known about the leave ban.
As for the warning letter, that had a proper basis which was due to Ms Hobbs taking an unauthorised day off work. Christine Enke had contacted her about the issue on the Wednesday. Then Ms Williams had confirmed Ms Hobbs did not come to work on Oaks Day. The issuing of the warning letter had nothing to do with Ms Hobbs’s WorkCover issues. That was the first and only formal warning given as the phone issue was dealt with informally.
Under cross-examination, she said Ms Hobbs would have known the consequence of taking unapproved leave and had effectively ‘invited’ Lindsay Park to issue her with a warning.
Also, in cross-examination, Ms Mills said she was not aware an employer could lawfully terminate an injured worker after 12 months if they remained unfit for PID. She denied Ms Hobbs would have been terminated at the 12-month mark as Lindsay Park was always very short-staffed at Euroa. She had no reason to terminate Ms Hobbs.
As for the RTW plan not always running smoothly, under cross-examination, that was something in Ms Hobbs’s ‘own mind’. She had been supported with the offered suitable duties such as brushing manes. She was not aware Ms Hobbs was having trouble with the physical side of things.
As for Ms Hobbs feeling unsupported, under cross-examination, Ms Mills conceded that was ‘seemingly so’, although she had tried to be supportive in spite of Ms Hobbs’ abusive emails.
Evidence of Jasmin Williams
Ms Williams, an employee of Lindsay Park from 2016 to date, was currently a transport and racing administrator. In 2018, she had supervised Ms Hobbs and found her to be a hard worker with good horse knowledge and experience.
As for conflict during the RTW period, there was a time when Ms Hobbs was handling a young and unsuitable horse. There were other times when she had to be reminded about not doing tasks outside her RTW duties like lifting buckets. At one point, Ms Williams asked a security person to forward to HR anything picked up on CCTV cameras.
In cross-examination, Ms Williams agreed Ms Hobbs had a pretty bad injury and appeared frustrated that her injury was getting in the way of her job and for being ‘pulled up’ about tasks. She was aware she had back pain and was still attending medical appointments right up to Melbourne Cup week.
As for the phone issue, that was a massive OHS ‘no no’ and so she had to speak to Ms Hobbs about that.
On Cup Day 2018, staff watched the Cup on TV. After that Ms Hobbs told her she would not be at work on Oaks Day because she was going to see her family’s horse run in a race at Flemington. Ms Williams told her she could not approve that and she would need to speak to HR.
On the Wednesday, Ms Williams had let Sue Enke know she had ‘quite a run in’ with Ms Hobbs on Cup Day about her being away on Oaks Day.
On Oaks Day, Ms Williams contacted Ms Mills about Ms Hobbs not coming to work and the decision was made to issue the warning letter. On the Friday, she handed Ms Hobbs the letter in the canteen which she opened and said: ‘I am not effing signing this’. Under cross-examination she conceded other staff could have been present at the time.
Also in cross-examination, she disagreed that she did not tell Ms Hobbs she could not take the day off.
She did not believe Ms Hobbs taking Oaks Day off had anything to do with her frustration about not being able to do her pre-injury work with the horses.
Medical Evidence
Radiological and medical evidence was tendered into evidence by agreement. I will refer only to the aspects of that evidence relevant to the dispute.
Dr Sheng Chen, treating GP, of Euroa Medical Centre, prepared various letters and reports between 6 April 2018 and 17 September 2019. Post-injury, there were complaints of ongoing pain in the coccyx region. As for mental health, he prepared a Mental Health Treatment Plan & Referral dated 7 August 2018 which recorded a diagnosis of anxiety. He recorded ongoing pain affecting daily function and working capability with stress due to prolonged pain and uncertainty as to the healing period. The purpose of the referral was to reduce stress levels and relieve pain. By 19 September 2018, Dr Chen opined that Ms Hobbs had depression and chronic sacrococcygeal pain.
Mr Yagnesh Vellore, treating neurosurgeon, in a letter of 18 April 2018 confirmed MRI findings of coccygeal pathology involving a fracture that resulted in significant localised pain. He recommended specialist pain management.
Dr Guy Buchanan, treating pain physician, wrote to Mr Vellore on 18 June 2018 proposing injections or nerve blocks. There was a desire to resume normal activity including horse-riding. By 25 September 2018, pain levels averaged 7/10 with reported very significant interference with enjoyment of life and general activity. She was working 27 hours a week and did not feel able to do full-time hours. Medications were panadeine forte, voltaren and nexium. It was opined that full-time work would be daunting and there was a significant probability of incomplete healing of the fracture.
Ms Sharon Des Landes, clinical psychologist, saw Ms Hobbs once on 3 October 2018 and recorded complaints of pain levels previously above 10/10 and ongoing at 7/10. Her life had changed and she felt under pressure that in 12 months she may be out of work and not doing the work she loved. There were complications with WorkCover including the employer being ‘very particular about sticking to the letter’ and thinking that she (Kimberly) was trying to avoid things and be misleading. She did not trust the WorkCover Agent and felt decisions were made behind her back. She described herself as ‘quickly in fight mode’ and always needing to stick up for herself.
Ms Tara O’Callaghan, osteopath, wrote on 13 February 2019 that any positive response to the osteopathic treatment was unclear given the persisting complaints of post-injury coccyx pain after nine months.
Dr Bill Pring, treating psychiatrist, wrote to Dr Chen on 20 March 2019. He found Ms Hobbs (whom he saw twice) to be very distressed with depression and significant anger after the work injury. He recommended an anti-depressant. It was opined the broken coccyx was causing ongoing pain which did not help her mood or anger levels which remained high. The anger was reportedly directed at the workplace where she felt badly treated and which was not helpful in her return to work.
Dr Hogan (Hong-Yiu) Chen wrote letters of 17 September 2019 and 22 May 2020. He considered there was complex regional pain syndrome involving the sacrum and lower back with a chronic adjustment disorder related to the work injury. In May 2020, he opined there was no work capacity due to the physical and psychological injuries.
Dr Joseph Slesenger, occupational physician, prepared IME reports for the Agent dated 7 September 2018 and 12 April 2019. When initially seen, she was working 27 bours a week with restrictions on pushing, pulling, lifting over 5 kgs, prolonged sitting or driving and repetitive bending and twisting. He advised against a return to full PID at that stage and to avoid walking with horses. She reported remaining at work until November 2018 having struggled with ongoing disability. She developed depression and anxiety following workplace harassment and bullying and had ceased her employment. He opined she could not return to unrestricted PID and hours.
A/Prof Shashjit Varma, psychiatrist, prepared a report dated 14 February 2019 for the Agent. As for the RTW period with Lindsay Park, she continued with light duties but the employer became uncooperative, took no action against the driver of the vehicle that collided with her and she was made to feel like she (Ms Hobbs) was the main problem. The employer started bullying and harassing her, talking with her doctor and the Agent behind her back. The employer gave her warnings and took footage of her working with the horses. Also she was never paid right and there were money issues. She became very bitter and resentful. She had a breakdown in November when she did not get her pay. Horses were her life and she could not ride or pursue her passion. She presented as emotional, depressed and anxious with ideas of hopelessness and worthlessness. The diagnosis was an adjustment disorder with mild depression secondary to the injury and alleged bullying and harassment.
Mr Roy Carey, orthopaedic surgeon, prepared a report dated 20 November 2019 for the Agent (for an impairment benefits assessment). She gave a history of having quit work because she was given a written warning after taking an unplanned day off. She tried working for a month as a self-employed horse groomer but stopped ‘because of the insurance company’. On clinical examination, it was opined there was evidence of lumbosacral dysmetria and sacrococcygeal pain with movement. He assessed her as pleasant and genuine with no evidence of embellishment.
Dr Stephen Stern, psychiatrist, prepared an impairment benefits assessment report dated 4 December 2019 for the Agent and a supplementary report dated 25 May 2020. Regarding the RTW period, she was bullied and harassed by managers who tried to force her back to normal duties, then given a warning because she had a day off. She stopped work because of the bullying. She reported being depressed, tearful, short-tempered and worried about the future. He opined the diagnosis was of an adjustment disorder with mixed anxiety and depressed mood relating to the work injury and continuing pain.
Dr Clayton Thomas, rehabilitation and pain specialist, prepared a report dated 4 December 2019 for Ms Hobbs’ lawyers. A history was given of not enjoying the RTW process because of her wish to be working with the horses. She felt there was a ‘power struggle’ with her immediate boss who would stop her from doing duties she was able to do and wanted to do. In the end, there was no alternative but to resign which she did on 11 November 2018. She had a breakdown in December 2018 after leaving Lindsay Park. As a consequence of the fractured coccyx, there was ongoing chronic coccygeal pain and in the lower lumbar spine region.
Dr Justin Lewis, psychiatrist, prepared reports dated 2 December 2019 and 12 August 2022 for Ms Hobbs’s lawyers. The history was that after her RTW she experienced a negative shift in attitude from management towards her. There was unreasonable criticism, micro-management and difficulties with payments. She felt resentment towards the employer and under pressure to increase her duties. She felt people were talking behind her back and Lindsay Park was trying to ‘manage her out’. She felt despondent about doing menial duties. Her attempt at operating her own horse-grooming business in October 2019 was unsuccessful. It was opined there was a diagnosis of chronic adjustment disorder with depressive features.
Dr Gary Davison, occupational physician, prepared a report dated 29 April 2020 for the Agent. The history was of ceasing work in November 2018 after receiving the written warning for taking a day off and of bullying and harassment by the employer. Also she was unhappy about a direct approach to her GP by the employer to increase her hours. She complained of lumbosacral pain at a constant level of 6/10 up to 11/10 if she overdid it. As for capacity, it was opined there was capacity for suitable employment but not PID.
Dr Peter Wilde, orthopaedic surgeon, prepared a report for the TAC dated 3 November 2021. As for the RTW period, she reported feeling bullied and that she lost her job after she took an unscheduled day off work to attend the Oaks to watch a family horse run.
Analysis
Section 185(1)(e)(i) of the Act provides that, if the current weekly earnings of a worker, having a work-related injury causing incapacity, are reduced because the worker resigned for reasons unrelated to the worker’s incapacity, the Authority may determine not to pay compensation in the form of weekly payments or not to alter the amount of compensation.
There was no dispute between Counsel as to the principles that applied. Indeed, the approach to be taken by the Court regarding a decision to terminate or alter weekly payments under s 185(1) is well-settled following the Court of Appeal’s decision in Jarvis v The Salvation Army Southern Territory (Jarvis).[2] The approach is reflected in several decisions of this Court including of His Honour Magistrate Richards in Chamani v Freezer Back Trailer & Van Hire Pty Ltd (No 2) (Chamani)[3] and in Kramkimel v Country Fire Authority[4] and also in earlier cases referred to in Chamani.
[2][2016] VSCA 175.
[3][2021] VMC 16 [205]-[210](‘Chamani’).
[4][2023] VMC 6.
I can do no better than to repeat what was said by Magistrate Richards in Chamani (omitting citations):
The question of the proper construction of [the predecessor provision of s 185 of Act[5]] was considered by the Court of Appeal in Jarvis. The Court of Appeal held that it is the role of the Magistrate hearing a claim in relation to weekly payments to ‘enquire into, hear and determine the question of the applicant’s entitlement to the reinstatement of his weekly payments’.
[5]Section 114(2) of the Accident Compensation Act 1985.
The Court stated that ‘the Magistrate [is] required to determine … whether or not a relevant precondition was established and then whether or not compensation in the form of weekly payments should be paid to the applicant having regard to the object and purpose of the Act’.
The principle as set out in Jarvis has been applied in Tuimaseve v Wesfarmers Limited (supra), a decision of Magistrate Ginnane and Vassallo v Intermotor Sales, a decision of Magistrate Wright.
Both Magistrates noted that the court had the power to determine afresh a worker’s claim for weekly payments in circumstances where a challenge has been made to a decision under section 114(2A) of the ACA to cancel or alter such payments. In making a fresh determination, the court would have to make its decision pursuant to the terms of s 114(2A) of the ACA, which explicitly provided that the decision was a discretionary one, in that the decision maker ‘may’ determine whether or not to alter or cancel the amount of compensation in the form of weekly payments.
This court must ‘remake the decision that had been made’ to reduce the plaintiff’s weekly payments on the basis that he resigned his employment for reasons unrelated to his incapacity.
This requires the court to review the facts of this matter and re-determine whether the plaintiff did resign for reasons unrelated to his incapacity, and, if so, whether it should affect the plaintiff’s entitlement to weekly payments.[6]
[6]Chamani [2021] VMC 16 [205] – [210].
According to Counsel for Ms Hobbs, and Counsel for Lindsay Park did not submit otherwise, the defendant had the onus of proof in establishing that Ms Hobbs had resigned for reasons unrelated to the incapacity.
The starting point is to be satisfied that the pre-conditions of s 185(1)(a) and (b) apply. In this case, it was accepted by Lindsay Park that when she resigned, Ms Hobbs had (a) an ongoing incapacity for work resulting from the accepted injury; and, (b) was in receipt of weekly payments.
The parties then diverged, as I have stated, on the reasons for Ms Hobbs resigning. I turn now to submissions.
Lindsay Park’s case was that Ms Hobbs’s resignation was not in any way linked to her incapacity from her accepted injuries. The weight of evidence supported three main conclusions from which it followed that the plaintiff’s case failed.
First, she resigned because of being given the formal warning for her breach of the employer’s spring carnival leave ban policy after choosing not to attend work on Oaks Day 2018.
Second, the basis of the resignation was ‘her own volition, unilateral decision (and right) to resign and to not pursue any position with the employer…’. That was in accordance with the reasoning of Magistrate Saines in the case of Knowles v Wesfarmers Ltd (Knowles),[7] a decision in which His Honour held that the worker resigned for reasons unrelated to her employment.
[7]Unreported, Magistrates Court of Victoria, 30 June 2015 (‘Knowles’).
Third, the constellation of other issues referred to by the plaintiff’s Counsel in opening (such as the pay issue and the phone issue) formed no part of the reasons behind the resignation. Rather, these issues merely served to ‘muddy the waters’.
In essence, it was submitted by Counsel for Lindsay Park that, but for the warning letter, Ms Hobbs would not have resigned at all and would have continued working for Lindsay Park on restricted duties 27 hours per week.
On the other hand, the case for Ms Hobbs was that the weight of the evidence established, overwhelmingly, that the resignation was related to the ongoing injury consequences of pain and physical limitations compounded by distress and frustration.
Moreover, it was submitted for Ms Hobbs that, given the objects of the Act, in order for the defendant to rely on s 185(1)(e)(i) of the Act, Lindsay Park needed to establish that the reasons for the resignation were not linked in any way to her incapacity. Counsel for Ms Hobbs submitted that was illustrated by Knowles[8] and also by a decision of Magistrate Garnett in Lister v LD & D Foods Pty Ltd,[9] cases where workers had resigned their employment against a background of having a compensable injury.
[8]Ibid.
[9][2016] VMC 19.
It was submitted for the plaintiff that Lindsay Park had failed to discharge the onus of proof of its s 185(1)(e)(i) defence and thus the 11 December 2018 notice should be set aside by the Court.
That was an outline of submissions.
On the plaintiff’s credit, both Counsel also made submissions given Ms Hobbs’s credit came under attack in cross-examination.
The importance of a plaintiff’s credit is well-established.[10] I needed to be persuaded that her evidence was credible and that the histories given to the medical witnesses were reliable. The medical opinions in the case were premised on Ms Hobbs’s account of her situation during the RTW period and the circumstances of and surrounding her resignation.
[10]See Johns v Oaktech Pty Ltd [2020] VSCA 10 [76].
According to Counsel for Lindsay Park, Ms Hobbs ought not be accepted as a credible and reliable witness. It was submitted that much of her evidence was confusing or contradictory and self-serving. For example, she initially inferred that she was not appointed to the bloodstock role because of her injury, then conceded under cross-examination it was because she lacked the qualifications. She also, implausibly, in spite of two periods of employment with Lindsay Park and the evidence of the other lay witnesses, maintained that she was unaware of the spring carnival leave ban policy.
It was submitted that Ms Hobbs was at times an uncooperative witness who gave a manufactured account of events to suit her narrative. An example was when she responded ‘they were hunting me because of my injury’ in response to it being put to her in cross-examination that her resignation was unrelated to her injury. Much of Ms Hobbs’ evidence reflected ‘misperceptions of being “hunted”’ and should not be accepted as being related to the compensable injuries. Instead, her view of things arose from her anger over being verbally warned about her phone use and doing tasks beyond her restrictions.
In contrast, Counsel for Ms Hobbs urged a favourable finding of credit. Counsel relied on a finding by His Honour Judge Pillay (in the hearing of the plaintiff’s serious injury application) that she ‘gave every impression of being an honest and straightforward witness’. [11]
[11]Hobbs v Transport Accident Commission [2022] VCC 2015 (referred to in Plaintiff Submissions paragraph 72).
Of course, my task is to make my own findings regarding the plaintiff’s credit based on the evidence before me in this case.
It is true that Ms Hobbs gave apparently contradictory evidence on some matters in dispute and she was at times somewhat defensive or non-responsive under pressure of cross-examination. I also accept, as Counsel for Lindsay Park observed in submissions, that Ms Hobbs wrote ‘numerous inappropriate emails’ and was frequently churlish in her communications with Ms Mills and others.
However, to my mind, those matters need to be viewed in the context of the whole of the evidence. Prior to the injury, Ms Hobbs was considered to be a good and hard worker. Indeed, Lindsay Park re-employed her in 2018 after she had previously resigned.
I did not form the impression Ms Hobbs was seeking deliberately to mislead the Court. Notwithstanding some reservations as I have observed, in weighing the whole of the evidence including her own evidence, I have concluded that she was a generally credible witness.
I have concluded that for a number of reasons.
First, to the extent she appeared at times to be uncooperative, it was quite apparent she held a sense of deep grievance against her former employer. It seems to me that aspects of her evidence and her perspective on the RTW period were coloured by grievance, anger and sadness with respect to the impact of the injury consequences and frustrations over restrictions on her. She was also aggrieved by the other issues that had arisen (to which I will return).
Second, by nature, she was a person (as she described herself to the treating psychologist Ms Des Landes) who was ‘quickly in fight mode’ and ‘always needing to stick up for herself’. That aligns with the view of Dr Pring, the treating psychiatrist, who commented (in March 2019) on her distress and that the ongoing pain from the broken coccyx did ‘not help her mood or anger levels’ and that she was a ‘difficult case to help’ due to her level of anger.
By contrast, the unchallenged evidence was that prior to the injury her mental health was good and she was able to deal with stress and make decisions effectively. Additionally, as I have said, Ms Hobbs had enjoyed working at Lindsay Park prior to the injury. Both Ms Mills and Ms Williams said she had a reputation for being a good and hard worker.
Third, as Counsel for Lindsay Park acknowledged, she made various concessions against interest under cross-examination, for example: conceding Ms Mills acknowledged in an email that their communication was poor; that she had no issues with Ms Williams day to day; and that she was not upset about Claire Dobie speaking to her GP without her permission.
Weighing the whole of the evidence, including the medical evidence, I conclude that Ms Hobbs did resign for reasons related to incapacity.
There was a unanimity of medical opinion as to the chronicity of Ms Hobbs’ coccygeal pain including of the orthopaedic surgeons relied upon by Lindsay Parke, Dr Wilde and Mr Carey. Mr Carey, who considered the plaintiff to be ‘pleasant and genuine…with no evidence of embellishment’ opined there was evidence of lumbosacral dysmetria as well as sacrococcygeal pain with movement.
Additionally, Ms Hobbs’s evidence regarding her chronic pain, distress and frustration over the RTW period was corroborated by the contemporaneous clinical records of Euroa Medical Family Practice. Over a period of about twelve weeks, between 30 July 2018 and 23 October 2018 (the last attendance prior to the resignation), Ms Hobbs saw her GP on ten occasions as follows:
30 July 2018: ‘Back at work 27 hours per week, work wants 37 hours … Now fighting with everybody … Long chat re distress anxiety and inability to do work’.
31 July 2018: ‘… concerns about the stress caused by the pain and uncertaining [sic] of healing time’.
3 August 2018: ‘…working hour from 3pm to 5pm makes her to do more walking, which increase her pain … worried about prolonged working hours will exacerbate her pain and delay the healing’.
7 August 2018: ‘needs to see a psychologist for … help to improve the pain…’.
31 August 2018: ‘…needs support letter… to see psychologist…’.
19 September 2018: ‘saccoxygeal pain is the same level…’.
4 October 2018: ‘…chronic pain at bottom … pain for 6 months now…’.
11 October 2018: ‘here for work arrangement … happy with current plan’.
19 October 2018: ‘#Coccyx/Bulging disc/Anxiety/Depression [health out of 10] 5/10 – quality of life is affected by accident and limitations… Chronic pain … affected by stress of dealing with workcover and employer…’.
23 October 2018: ‘…discuss osteopath and option of treating chronic pain …’.
It is true, as Counsel for Lindsay Park submitted, that on 11 October 2018 Ms Hobbs expressed being ‘happy’ with the RTW plan. Also, four days after she resigned, she reported to Dr Chen that she had an argument with the employer, had quit and was ‘emotional now’.
However, I do not accept that, based on the histories recorded on those two dates as well as the timing of the warning, I ought to conclude the resignation was for reasons unrelated to her incapacity and instead was because of the warning being issued.
Firstly, as the Court of Appeal has observed before, in cases such as Philippiadis v Transport Accident Commission, courts must exercise care in relying on the record of medical practitioners which are very often highly probative, but cannot be treated as a verbatim transcript of the entire medical attendance.[12]
[12][2016] VSCA 1.
Secondly, and in any event, in all but one of these attendances referred to in the extract above, Ms Hobbs complained of pain or distress or a need for support or help. Moreover, it is telling that, even within the two week period between 11 October 2018 (when she was ‘happy’ with the RTW plan) and the resignation, she is back at the GP twice complaining of ‘chronic pain’ and of the ‘stress of dealing with WorkCover and employer’.
I take into account that Dr Chen, the treating GP, concluded that prolonged and ongoing sacrococcygeal pain as well as ‘uncertainty as to healing period’ was affecting daily function and working capability.
Similarly, the treating pain physician, Dr Buchanan recorded that on 25 September 2019, pain levels averaged 7/10 with very significant interference with enjoyment of life and general activity.
Ms Hobbs’ evidence to the Court regarding her sense of pressure and stress was consistent with contemporaneous history to Ms Des Landes, the psychologist (in early October 2018 just a few weeks before the resignation) that she felt ‘under pressure’ by the prospect of being out of work and not doing the work she loved and also that the employer was being ‘very particular about sticking to the letter’.
I observe that Ms Hobbs told Dr Clayton Thomas quite openly, about three weeks after the resignation, that she had not enjoyed the RTW process because of her wish to be working with horses in the way she had before and there was a constant ‘power struggle’ over what duties she should do or not do.
To my mind, based on the whole the medical evidence, particularly the contemporaneous treating evidence, there is a clear relationship between Ms Hobbs’ distress and frustration and the injury consequences and her resignation (and also in deciding not to attend work on Oaks Day).
I find it likely Ms Hobbs was aware of the leave ban over the spring racing carnival and prior to receiving the warning letter. There was no dispute the spring racing carnival was a major event on the Lindsay Park calendar given the nature of its operations. I accept as probable the evidence of Ms Mills and Ms Williams that the staff memo was displayed on notice boards where staff would have seen it. It is therefore not necessary for me to find whether or not she was at the July meeting which she did not recall attending. I note that on the staff-roll, her name is ticked off but without a signature.
The unchallenged evidence was that she was being heavily curtailed in what she could do with the horses and undoubtedly frustrating by being reduced to, as Ms Mills put it, ‘brushing manes’. I therefore accept as truthful her account that over the months of September and October 2018, she felt anxious and depressed and as though ‘her body was failing her’. That was consistent with the medical evidence (as I have already stated) including the contemporaneous records of the GP and Ms Des Landes.
I conclude that underpinning her frustration during the RTW period was the increasing realisation that she was never going to be able to work with horses again in the way she had before. The unchallenged evidence was that almost her whole working life was concerned with the care of horses. As A/Prof Varma observed in his report of 14 February 2019, horses were ‘her life’ and she now could not ride or pursue her passion and had presented with ‘ideas of hopelessness and worthlessness’.
I also conclude that Ms Hobbs’s vexation and frustration during the RTW period were, unfortunately, inflamed partially by Lindsay Park’s handling of the pay issue and the phone issue. As for the pay issue, Ms Mills herself conceded Lindsay Park’s communication about the pay-issue was ‘poor’ (in her email of 22 May 2018). Ms Hobbs’ prevailing sense of grievance was apparent from her perception that, as she said in evidence in chief, there was ‘nothing but conflict’, that WorkCover was ‘more for the benefit of the employer’ and that ‘the berating and constant pressure’ was part of that.
To my mind, her feeling of being ‘hunted’ arose from feeling hampered or micro-managed by the employer in restricting her to only those duties on her RTW plan. As she said to A/Prof Varma her feeling was the employer became uncooperative, took no action against the driver of the vehicle that collided with her and she was made to feel like she (Ms Hobbs) was the main problem.
Pausing here, Ms Hobbs feeling of being ‘hunted’ by the employer was not unfounded. As an example of the extent to which she was being monitored (I accept for safety reasons) was Ms Williams’ account of asking a security person ‘to forward to HR anything picked up on cameras’. Another example was the rather heavy-handed way in which the phone issue was first raised by Ms Mills. In her email of 27 September 2018, purportedly regarding payments, Ms Mills stated: it was ‘reported to me on many occasions from numerous staff and footage…’. A further example of what I consider to be rather insensitive communication was Ms Mills’ remark in her email of 21 May 2021 that she (Kimberly) had in fact been ‘over-compensated’ by reason of the employer’s erroneous over-payment.
Accordingly, I reject the submission of Counsel for Lindsay Park that Ms Hobbs resigned as a consequence of the warning. Whilst that submission might having compelling simplicity based on the resignation being on the same day of the warning, to my mind, such a conclusion would ignore the substance of the evidence as a whole.
I accept Ms Hobbs’ evidence that the warning was ‘the final straw’ in the sense that, as she put it, the situation with Lindsay Park was ‘ending in tears and the tears were hers’. Indeed, that the warning was the ‘last straw’ after a protracted period of distress and frustration is, to my mind, borne out by a contemporaneous statement by Ms Mills that the ‘employment relationship with Lindsay Park [had become] increasingly untenable’. That was the conclusion of Ms Mills in her email of 12 November 2018 accepting the resignation. There she wrote: ‘your disregard for the company rules, not acting as [a] team player and your disrespect for myself as a senior manager is very disappointing, has been making your employment relationship with Lindsay Park increasingly untenable’.
Pausing here, I found many aspects of Ms Mills’ evidence to be self-serving. There were numerous examples. She said she was not aware Ms Hobbs was ‘having trouble with the physical side of things’. Whilst I accept she was not based at Euroa, it was nevertheless the case that issues were being escalated to her by Ms Dobie and Ms Williams and also Ms Hobbs was still providing modified duties certificates.
Another example of I what found to be self-serving evidence was her assertion she was ‘not aware of conflict’ with Ms Hobbs and that the pay issue was all over after two weeks. That was in spite of the evidence that the email exchanges over the pay issue went on until at least 23 May 2018 and her acceptance that Ms Hobbs had stated how unhappy she was more than once. Additionally, I find it entirely implausible that the general manger of HR in an organisation the size of Lindsay Park would not know (as she asserted) there was a lawful basis for terminating the employment of an injured worker who continues to be unfit for PID after 12 months.
Ms Williams impressed me as a credible witness who, although a current employee of Lindsay Park, made several concessions against interest. She agreed that Ms Hobbs had a ‘pretty bad injury’ and was frustrated because her injury was still ‘getting in the way’ of doing her job. She gave evidence about her being ‘pulled up’ for doing tasks not permitted on her certificates. She agreed Ms Hobbs expressed frustrations about not being able to cope with the walking required.
I accept as likely Ms Williams’ evidence that she and Ms Hobbs did have ‘quite a run in’ on Cup Day over her taking off Oaks Day and that Ms Williams would not have approved that.
Counsel for Lindsay Park also submitted that evidence of Ms Hobbs should not be accepted that Christine Enke on the Wednesday had ‘not said no’ when she asked for the day off on Oaks Day. In that regard, an apparently contemporaneous file note of a discussion between Ms Hobbs and Ms Enke (tendered into evidence) in fact stated that Kim was reminded of the leave ban although it does not specifically state she could not take the day.
After the evidence had closed, in written submissions, Counsel for Lindsay Park urged that I draw a Jones v Dunkel[13] adverse inference regarding the plaintiff’s failure to call Ms Enke to give oral evidence about that conversation. However, I decline to do so. Firstly, it was not raised in the running of the hearing that Ms Enke was actually required for cross-examination and the contemporaneous memo of the discussion was tendered into evidence by consent. Secondly, the plaintiff might well have expected that Lindsay Park would have called Ms Enke, being a current employee, and therefore in the ‘camp’ of the defendant.
[13](1959) 101 CLR 298.
In any event, given the memo tendered and the oral evidence of Ms Williams and Ms Mills on this issue, it seems to me Ms Enke’s oral evidence would not have advanced matters for either party.
Moreover, I also observe that, although Ms Hobbs gave evidence she was not told ‘no’ about taking the day off and did not think she was in breach of the policy, it was not seriously contended nor suggested by Counsel for the plaintiff that taking the day off was in fact authorised.
I find it likely that Ms Hobbs was aware (as I have said) of the leave ban and decided to take the day off anyway perhaps out of a sense of ‘hopelessness’ (as A/Prof Varma termed it) over her future at Lindsay Park. On this issue, therefore, weighing the whole of the evidence, it was the situation that Ms Hobbs effectively ‘invited’ Lindsay Park to issue a warning letter.
It is true, as Counsel for Lindsay Park, submitted that Ms Hobbs did not mention to Dr Slesenger in cross-examination that she had been given a warning on the day she resigned. On the other hand, she did give the history regarding the unplanned day off and the warning to many of the examiners including: Dr Wilde, Mr Carey, Dr Stern and Dr Davison. Ms Hobbs’s evidence that her employment with Lindsay Park effectively ‘ended in tears’ was also consistent with the history to Dr Slesenger that she had stayed at work until November 2018 having ‘struggled with ongoing disability’.
Conclusion
I am satisfied that the weight of evidence supports, overwhelmingly, the conclusion that the resignation was related to her ongoing incapacity for PID and the situation becoming, as Ms Mills herself put it, ‘increasingly untenable’. The situation was untenable because of persisting conflict and Ms Hobbs’ frustration and dissatisfaction with her restricted capacity to work and the realisation that her condition was chronic and would preclude a return to her PID.
I must therefore, for the reasons already stated, reject the submission by Counsel for Lindsay Park that ‘but for the warning letter’ she would have continued to work for the defendant.
Also for the reasons provided, I find that Lindsay Park has failed to establish on the evidence that the reasons for the resignation were not linked in any way to her incapacity.
I reject the submission that Ms Hobbs resigned of ‘her own volition, unilateral decision (and right) to resign’ as the injured worker did in Knowles.[14]
[14]Knowles (Unreported, Magistrates Court of Victoria, Magistrate Saines, 30 June 2015).
Each case, of course, turns on it own facts.
Pausing here, as both Counsel referred to it, the facts in Knowles were quite different to this case. The worker resigned her employment to relocate to South Australia, a decision which was ‘pre-planned’, made with her family and at a time and in a manner removed from the occurrence of the injury.
As I have stated already, on the evidence of this case to which I have already referred, that was not the situation here. I find that Ms Hobbs’ resignation was related to and inextricably bound up with her ongoing incapacity.
Accordingly, I find that s 185(1)(e)(i) does not apply and I order that the notice of 11 December 2018 be set aside.
Even assuming that s 185(1)(e)(i) did have application, after considering the objects and purpose of the Act, I would have determined that Ms Hobbs was entitled to weekly payments up until the conclusion of the 130 week period. There was no evidentiary basis to conclude that the accepted physical or consequential mental injuries no longer resulted in or materially contributed to her incapacity for her PID.
Indeed, to my mind, Ms Hobbs demonstrated stoicism and resilience in, on her own initiative, successfully obtaining ongoing employment as a stable hand with a different employer (at 27 hours per week).
Counsel for Lindsay Park submitted that Ms Hobbs had been in receipt of weekly payments for 130 weeks (ceasing on 17 April 2021) and that she was retrospectively seeking ‘top up’ payments for the period 10 November 2018 to 17 April 2021 up to 80 per cent of the PIAWE[15] rate.
[15]Pre-injury average weekly earnings.
That is her entitlement under the legislative scheme.
Further, it was submitted for Lindsay Park that, should the Court find against the defendant on s 185(1)(e)(i), then in exercising the power referred to in Jarvis to ‘remake the decision that has been made’, the Court was urged to find that the plaintiff was not entitled to ‘top up’ payments for the period February 2021 to 17 April 2021. That was apparently because Ms Hobbs started work with another employer performing 27 hours a week.
I reject that submission. That is simply incorrect as a matter of law. The plaintiff was within the second entitlement period under s 163 of the Act and continued to have an inability to return to her pre-injury employment resulting from the injury, although fit for suitable duties. There was no evidence to the contrary.
In these circumstances, and taking into account that the Act is beneficial legislation, I conclude that Ms Hobbs is entitled to weekly payments for the claimed period of 10 November 2018 to 21 April 2021.
I will hear from the parties in relation to final orders.
MAGISTRATE HOARE
13 September 2023
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