Kevin Vickers v Victorian WorkCover Authority

[2007] VMC 5

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER

Case No. W00573923

Kevin Vickers	Plaintiff
v
Victorian Workcover Authority	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	Morwell
DATE OF HEARING:	9 August 2007
DATE OF DECISION:	21 August 2007
CASE MAY BE CITED AS:	Kevin Vickers v Victorian Workcover Authority
REASONS FOR DECISION

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Catchwords: Accident Compensation Act 1985 - psychological injury involving stress

related conditions

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Carson
For the Defendant	Mr Batten
HIS HONOUR:

1.  The plaintiff and Dr Nicolson gave evidence on behalf of the plaintiff and Carol Bohun and Matthew Borghesi gave evidence for the defendant. A number of documents were tendered by consent.

2.  The plaintiff alleges and the defendant denies that he sustained injury, which arose out of or in the course of his employment with Quality Maintenance Services P/L where he was employed as a platform services operator from March 2003. In particular, the plaintiff alleges that he suffered from a psychological injury involving stress related conditions, which resulted in him being incapacitated for all employment for the period 16 August 2006 to 10 October 2006.

3.  The defendant denies injury and alleges in the alternative that if the plaintiff sustained an injury it did not arise out of or in the course of his employment with this employer or if it did, then pursuant to S 82 (2A) (c) compensation is not payable as the injury consists of an illness or disorder of the mind caused by stress, which arose wholly or predominantly from an expectation of the plaintiff being retrenched or dismissed.

4.  The plaintiff seeks weekly payments for the period referred to together with reasonable medical and like expenses.

5.   After considering the evidence, I make the following findings of fact:

a.	The plaintiff commenced employment with the defendant in March 2003 when it was awarded the contract to provide platform services operators to Esso Australia on the rigs in Bass Strait.
b.	The plaintiff’s duties also involved him being a medic, rigger, helicopter handler, scaffolder, radio operator, health and safety representative and shop steward for the AMWU.
c.	In January 2006, he became aware that Esso was considering employing platform services operators’ directly thereby bypassing labour hire firms such as Quality Maintenance Services P/L. Accordingly, the plaintiff applied for a position with Esso in late January or February 2006.
d.	In the week, leading up to 15 August the plaintiff went on leave and returned to work on 15 August.
e.	On 11 August 2006, the plaintiff booked a holiday in Queensland for his family after applying for leave that day for the period 29 August to 5 September and the airline fare was paid on 14 August. Leave for this period was refused by the employer but subsequently granted for a later period
f.	On 16 August, the plaintiff ceased work due to his alleged psychological condition and he obtained a Workcover certificate of incapacity from Dr Essa certifying incapacity to 18 August. On 17 August, he obtained a certificate from Dr Naidoo certifying incapacity from 17 August to 18 August.
g.	On 29 August 2006, a Workcover Claim Form was completed by the plaintiff and he consulted Dr Nicolson who provided him with a certificate both of which were served on the employer on 4 September.
h.	The workforce took legal protected action (strike action) from 1 September.

i.        The plaintiff and his family went on holidays to Queensland between six and 18 September.

j.	The plaintiff’s claim was rejected by CGU Workers Compensation (Vic) Ltd on 3 October 2006.
k.	The workforce was ordered to return to work by the Industrial Relations Commission on 4 October, which occurred on 5 October.
l.	On 10 October, Dr Nicolson certified the plaintiff as fit to return to normal duties on 11 October.
m.	The plaintiff ceased work in February 2007 because of a work related quadriceps injury.
n.	On 12 April 2007, the employer terminated the plaintiff’s services.

6.  The plaintiff gave evidence that the various roles that he undertook in the performance of his duties were stressful and he carried the additional burden of being the shop steward of the AMWU, which had 60 members. He stated that during 2006 there were a number of industrial issues involving the workforce and employer of which he played a major role as a result of his job as shop steward. This was confirmed by Matthew Borghesi, the Human Resources Manager of the defendant. The plaintiff’s evidence was that he was confident of obtaining employment with Esso because of his experience although over time was becoming increasingly concerned as a result of not receiving a response to his application.

7.  The plaintiff gave evidence that on 16 August 2006 he was accused of making a freight error, which culminated in him leaving the platform at lunchtime because he had “had enough”. He did not return to work until 11 October 2006. The claim form lodged by him alleged “stress” – anxiety and depression – ongoing issues with management – and that his condition was contributed to by a third party, namely Esso.

8.   He then consulted Dr Essa at the Latrobe Regional Hospital who provided him with a certificate of incapacity until 18 August. The plaintiff denied finding out on 16 August that two other employees had secured employment with Esso. The plaintiff also initially denied any involvement in union activity between 16 August and 11 October and then, under cross-examination, conceded he may engaged in some menial tasks but otherwise could not recall. He also conceded under cross-examination that he believed he had been victimised and unfairly treated by Esso in the job application process.

9.   Dr Nicolson gave evidence that he first treated the plaintiff on 29 August 2006, some 13 days after the plaintiff ceased work and that based on the history provided, he diagnosed that the plaintiff suffered from an anxiety condition. Under cross- examination, he confirmed that in his opinion the plaintiff was angry, as he believed he had been “done over” for a position with Esso Australia because he was a shop steward and that his anxiety condition was due to his future employment uncertainty. Dr Nicolson also gave evidence that the plaintiff had not told him that he had previously seen Dr Essa and Dr Naidoo prior to his consultation with him and had not deemed it necessary to prescribe medication. He also gave evidence that the only change in the plaintiff’s condition between the first consultation and when he certified the plaintiff as being fit for work was that he was no longer angry. Dr Essa and Dr Naidoo were not called to give evidence although the certificates provided to the plaintiff were tendered.

10.Carol Bohun who is the Human Resources Officer of the defendant gave evidence concerning the industrial action during the relevant period and the dates the plaintiff applied for and was granted leave. Matthew Borghesi confirmed that two of the defendant’s employees, Peter Bartlett and Roy Gilbert were notified on 16 August that they had obtained employment with Esso as platform services operators and that during the “protected action” period and whilst the plaintiff was off work because of his alleged work injury, he observed the plaintiff present at union activities.

11.The defendant tendered a medical report of Dr Neill who assessed the plaintiff on 8 July 2007. Dr Neill did not believe the plaintiff has or ever had a psychiatric condition. I found her report to be of little assistance because she assessed the plaintiff some 9 months after the plaintiff had returned to work.

Conclusion

12.After considering the evidence I am not persuaded that the plaintiff sustained an “injury” within the meaning of the Act. I found him to be unnecessarily aggressive, argumentative and evasive whilst giving evidence under cross-examination and do not accept his evidence that he was unaware on 16 August that Bartlett and Gilbert had secured employment with Esso. I have no doubt that his normal work duty, when coupled with his union role was stressful to him. However, I find that the event, which culminated in him ceasing work on 16 August, was as a result of him discovering that two other employees of the defendant had obtained PSO positions with Esso Australia and that he had been overlooked. Even if his “anger” and the emotions he experienced on 16 August could be properly characterised as an “injury” I find that this “injury” did not arise out of or in the course of his employment with Quality Maintenance Services P/L. In my opinion, it is not a simple coincidence that on the 16 August all the pressures that, according to the plaintiff, had been building throughout 2006, reached a climax forcing him to experience anxiety symptoms necessitating ceasing work on that date. On the evidence, it is more probable, and I so find, that after learning that Bartlett and Gilbert were successful in their job applications with Esso Australia, the plaintiff experienced as he stated, “a knot in his stomach” due to his concerns about his future employment. This reaction, whilst understandable does not constitute, in my opinion, an injury that arose out of or in the course of his employment with the defendant.

ORDERS:
13. As a result of my finding, it is not necessary to consider the operation of S 82 (2A).