Matovu v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 151
•18 August 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Matovu v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 151 |
PARTIES: | Matovu, Joseph Emmanuel v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2015/57 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 18 August 2015 |
HEARING DATES: | 16, 17, 18 and 19 June 2015 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Bloomfield |
ORDERS: | 1. The Appeal is allowed in part. 2. Costs reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Psychological/ Psychiatric condition - Post-Traumatic Stress Disorder - Incidents during employment as a disability support worker - Whether injury arose out of, or in the course of, employment - Oral evidence - Medical evidence - Burden of proof - Requirement to establish employment was a significant contributing factor to injury - One of three incidents found to have occurred - Lack of supporting documentary evidence for other two incidents - Appeal allowed in part - Costs reserved. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Mr S. Cleary of Counsel, instructed by |
Decision
Background
This is an Appeal by Joseph Matovu pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) dated 16 February 2015. That decision confirmed the earlier decision of WorkCover Queensland (WorkCover) dated
12 September 2014 to reject his Notice of Claim for compensation/damages in respect of a psychological/psychiatric injury said to have developed during the course of his employment as a casual Disability Support Worker with an organisation known as Uniting Care Community (UCC).Mr Matovu seems to have commenced employment with UCC on or around
30 January 2012 and was one of a number of employees specifically engaged at around that time to provide support services to a 37 year old male client, known as "BT", in his transition from permanent residence as a patient in the Dual Diagnosis Unit at The Park - Centre for Mental Health Services, Wacol, to his own residence in Inala. The transition was to be a graduated process during which BT would spend more and more time in Inala, eventually reaching the stage where he would reside there, with 24 hour care, on a permanent basis. The evidence established that BT had been in institutional care since relatively early childhood (from about age 8), with an intellectual disability and a psychological condition (described as a dual diagnosis) with demonstrated behavioural problems such as verbal aggression, physically threatening behaviours, destroying property, stealing, absconding and socially inappropriate behaviours such as pinching people.Issue for determination
The issue for determination in this Appeal is whether Mr Matovu sustained and "injury" within the meaning of that term in s 32 of the Act. At the relevant time, s 32 provided:
"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.
…"
Although Mr Matovu's "Statement of Stressors", filed on 7 April 2015, contained three events relevant to the behaviour of BT and eight events said to be relevant to "unreasonable management actions in relation to the Appellant's concerns" it was acknowledged by the parties, after the Commission as presently constituted, raised its concerns (at T3-35 to 42), that none of the eight matters identified under the latter heading were relevant to the issue for determination in this Appeal. As such, I have not touched on any evidence given in relation to those eight matters in this decision including that of Dr Hatzipetrou who gave extensive evidence about BT's history and condition as well as the steps necessary to appropriately moniter and manage his many and varied behaviours.
Nature of Appeal and onus of proof
The nature of the Appeal is by way of a hearing de novo. To succeed on the Appeal
Mr Matovu must satisfy the Queensland Industrial Relations Commission (the Commission), on the balance of probabilities, that his claim is one for acceptance[1].[1] Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision < at [2].
Statement of Stressors
In accordance with the Further Directions Order dated 30 March 2015, Mr Matovu filed a Statement on 7 April 2015 in which he recorded the work events said to have caused his psychological/psychiatric injury - diagnosed as Post-Traumatic Stress Disorder (PTSD).
No. Date Event summary 1 6 February 2012 During the Appellant's orientation with another support worker, Bernard Poliquin (Bernie), they took a client (Bill/BT), from The Park - Centre for Mental Health at Wacol (The Park), to the house that Bill would be moving into in Inala.
At one stage during the visit Bernie went out of the house and the Appellant was left alone with Bill. Bill suddenly came very close to the Appellant and placed his hands around his neck and started strangling him. The Appellant begged Bill to let go of him and eventually he did let go.
2 9 March 2012 On this shift the Appellant was directed by the employer to go to The Park, pick up Bill and take him out into the community. Upon his arrival at The Park and signing in, Davina P (a Nurse Unit Manager at The Park) advised the Appellant that she didn't want him taking Bill out alone as the Appellant didn't have enough experience to do this.
She then advised that she would accompany the Appellant, along with a nurse. They stopped at a shopping centre. Davina decided to go to the bank whilst the nurse, Bill and the Appellant ordered fish and chips for lunch. As the nurse ordered their lunch, Bill wanted to go outside on the veranda. While on the veranda, Bill said hello to a man. Bill and the Appellant then went for a walk to look at a shop and on the way back, Bill again said hello to the same man and then asked him for a cigarette.
The Appellant reminded Bill of the company rules with respect to cigarettes and reminded him that he had his cigarettes and that Bill was only allowed a smoke once per hour. Soon after this, a few friends of the man had arrived and started yelling at Bill and the Appellant. They then followed them into the fish and chip shop and approached Bill. Bill got scared and hid behind the Appellant, leaving the Appellant standing between Bill and the man, who was yelling, with his fists in the air. The Appellant was scared and shaking and was begging the man to stop. Eventually the shop owner threatened to call the police so the man left.
3 8 May 2012 The Appellant was working an overnight shift at Bill's home (commencing on 7/5/2012). At approximately 3am on 8 May 2012, Bill woke up after wetting his bed. Bill told the Appellant that he had wet his bed and the Appellant asked him whether he needed help changing the sheets and Bill said that he did.
Bill then said he wanted a cigarette. The Appellant told him it was company procedure not to give him cigarettes after 10pm. Bill said "you f***ing black idiot. I am going to smash you and kill you and then hide your body if I don't get a cigarette". For about the next half an hour Bill was trying to attack the Appellant. He had his fists in the air and was clenching his jaws and screaming at him. The Appellant felt scared and was begging Bill to leave him alone. The Appellant was constantly requesting him to calm down and take a deep breath. Bill eventually calmed down.
The case on behalf of Mr Matovu
The 6 February 2012 incident
Mr Matovu said that after 3 days of induction training and another day of orientation, where he "shadowed" another UCC employee whilst she provided services to clients of UCC, he first met BT on 4 February 2012 when he also met another UCC employee, Mr Bernard Poliquin, who was to be responsible for his initial orientation to the role of a Disability Support Worker assisting BT and learning UCC's procedures. After meeting Mr Poliquin at The Park he was taken to the administration block and shown an area which was assigned for the use of staff of UCC. This contained a shift report book, a sign in book, some petty cash, a receipt book and a ledger for recording expenditures occurred on behalf of clients. Mr Poliquin also pointed out they were not allowed to use the facilities of The Park, or request staff employed there to assist them, because UCC was regarded as being independent of the facility.
On 6 February 2012 he again met with Mr Poliquin at the Park, for further orientation, and they jointly accompanied BT from Wacol to his new residence in Inala by public transport. Although the house was empty, they remained at that location because the objective was to slowly introduce BT to his new environment and living in the Community. After BT expressed the wish to be allowed to mow his (new) lawn,
Mr Poliquin went to check the lawn mower in the shed, leaving Mr Matovu alone with BT. BT was very excited, going from room to room saying things like he was going to be free now that he had his own house.At one point, when they were in BT's new bedroom, BT suddenly came very close to Mr Matovu, placed his hands around his neck and started strangling him. Mr Matovu said he felt trapped and terrified and didn't know whether to yell or to fight BT. He begged BT to let go of him and to leave him alone. BT gave a dry laugh and Mr Matovu closed his eyes "you know, because I did not want to look at him… he did not listen. He was just laughing at me. So I closed my eyes to prepare… my body for death or something, and then he pushed me…".
Mr Matovu recalled stopping short of the wall and being confused for a period of time. He was wondering whether he was having "an outer body experience" and then realised that he was not dead. However, he felt more vulnerable than when he was in BT's hands, had a sore neck, a headache and felt nauseous. He then started to think about how he was going to leave the room because BT could run and follow him. He left the room very slowly, not wanting to "bug" BT, who stayed very, very quite. As Mr Matovu went out of the room Mr Poliquin came back into the house. He told Mr Poliquin what had happened.
Mr Matovu said that after they returned to The Park he filled in an incident report, made a note of the incident in the shift report book and put the forms he had completed in a dedicated area in the administration block for somebody from UCC to collect, just like other documents they had completed on 4 February 2012.
After returning home he felt very shaky and his hands and legs were sweating. He applied anti-inflammatory gel to his sore neck and took some pain killers for his headache. When his wife came home from work he recalled that he cried when he told her about the incident and being strangled.
On the following day he felt stressed and unwell and went to see his GP, Dr Butcher. He had not felt unwell before the incident but after it happened he recalled being confused about his symptoms because he was highly nauseous, had headaches and felt feverish. He thought he might have contracted malaria because he had just returned from Uganda. When he went in to see the doctor he felt highly stressed, very unwell and embarrassed. He was embarrassed because he did not want to admit how badly affected he was by the event of the previous day. In his country men did not complain about stress and psychiatric issues and did not go to medical doctors.
Mr Matovu said that after the events of 6 February 2012 he felt "sickly" and became confused with a number of things - especially time sheets. By way of example, he said he emailed Sharon McDonald (see below) on 22 February 2012 to report he had missed two days of training on 14 and 15 February 2012 and needed to undertake the training later. However, he had actually attended the training.
Under cross-examination, Mr Matovu said he very clearly explained to Mr Poliquin what had happened and could not have made himself clearer. After he explained how it all happened, Mr Poliquin went to talk to BT and, holding out his hands like he would if he was strangling someone, asked BT how he would feel if someone touched him that way. He then told BT that he needed to keep his hands to himself. Mr Poliquin did not use the word "strangle", instead saying "touch" (to be consistent with other language used with BT), at the same time as was asking BT how he would feel if the same thing was done to him. After Mr Poliquin told BT to keep his hands to himself he also told him to say sorry to Mr Matovu, which BT did, "and that was the way it ended".
Mr Poliquin said that BT presented with many complex behaviours and it was difficult to know how to respond to new behaviours he had not seen from BT before. As such, he asked for advice from people who had worked with BT, especially nurses at The Park, and relied upon his own trial and error experiences. In addition, there was diverse opinion from people he spoke to about how to respond to BT's behaviours.
Although he could not remember particular dates, Mr Poliquin did not remember any specific incident in which Mr Matovu told him that he was strangled by BT. "It is not likely that I would have remembered something like that specifically… it would have been just another - just par for the course; just, you know, another thing of normal behaviour for him (BT)".
In addition, Mr Poliquin said that while he could not remember any specific time where he might have left Mr Matovu and BT alone together, there was ample opportunity for them to be alone together such as if he went to the toilet, if he was cooking or if there was a task he might have had to perform outside the house. One particular task which he performed outside was to tinker around with an old lawn mower that had been given to BT by one of the other employees and to get it ready for BT to take care of. At times BT was outside while he undertook this work. On other occasions he would have been inside.
Mr Poliquin also said that it was his impression that BT liked to test boundaries, and physical contact was one of the ways he tested boundaries with staff members. "He did often make physical contact, and sometimes that could be intimidating or aggressive, and increasingly aggressive until a boundary was firmly put in place. So we - I did expect him to test boundaries and, when he did, we would have to talk him through that incident and make sure that he knew that it was not appropriate." In particular, BT would test boundaries with people he had not met before. Mr Poliquin also said that while one would normally remember a strangling, "the perception of what's acceptable gets distorted, just because you witness these really complex behaviours with him that feel really aggressive and unfamiliar in normal circumstances. So, yes, he would grab people, and touch people, and try new things to provoke - possibly to provoke a reaction, possibly to test boundaries. Yep. It was very familiar behaviour."
Under cross-examination, Mr Poliquin said that he could not say for certain whether he would have reported an incident if he came back into the house, from being outside for a time, and saw that Mr Matovu was visibly shaken and upset and had complained that he had been strangled by BT. This was not just because ones' perception of what was acceptable and appropriate became quite distorted when one worked around BT, but also because Mr Matovu was quite hard to read in terms of his facial expressions. If he though Mr Matovu had been injured he would have definitely filled out a report.
When pressed as to whether he recalled Mr Matovu ever saying anything to him about being strangled, Mr Poliquin responded by saying that he could not recall a specific incident like that.
The 9 March 2012 incident
Mr Matovu said that despite sending emails to his employer, (he thought to
Ms McDonald), in which he said he did not believe he had received enough orientation/training to be able to work alone with clients - especially BT, he received an email on 29 February 2012 from the Roster Clerk to the effect that he was rostered to work with a particular client on 6 March 2012 and with BT on 9 March 2012.On 9 March 2012, after he arrived at The Park and signed in, he was approached by Davina P, a Nurse Unit Manager, who questioned him about whether he was proposing to take BT out into the community by himself. When he said "yes" she responded by saying he would not be able to handle BT on his own because BT was too dangerous. She asked him to wait and went and talked to the administration staff. When she came back she said that a nurse and herself were going to accompany he and BT on an outing. They drove to a shopping centre, he did not remember which one (and had unsuccessfully sought to find it again in the time leading up to the hearing of his Appeal).
Davina decided to go to the bank while he, the nurse and BT ordered fish and chips for lunch. While they were waiting for their order to be prepared BT wanted to go outside. When they went to a veranda, which ran off the fish and chip shop, BT said "hello" to a young man as they walked past. They went into a nearby shop to see if they had any spiders (BT liked spiders) but BT was not interested in staying and wanted to return to the fish and chip shop. As they walked back, BT said "hello" to the same man he had spoken to before and asked him for a cigarette. While Mr Matovu was telling BT that he had his cigarettes, and he was not going to miss out, a few friends of the man came over and they started yelling at he and BT. Mr Matovu apologised and started to lead BT back towards the fish and chip shop.
The men followed them into the shop and they approached BT and he got scared. BT hid behind Mr Matovu, leaving him standing between BT and a large man who was waving his hands, screaming and yelling. He was trying to get to BT to hit him. While this was going on Mr Matovu became increasingly scared and repeatedly asked the man to stop. The shop owner then threatened to call the police after which the men left. When Davina came back Mr Matovu told her about the incident. The nurse, who had accompanied them to the shop, was just sitting in her chair and shaking.
After they returned to The Park, Mr Matovu filled out an incident report and also wrote up the incident in the shift report book. He then put them in the usual place in the administration building. At T2-39 Mr Matovu said he also took the receipt for lunch from the nurse who had accompanied them and wrote the expenditure up in BT's petty cash records. The Nurse Unit Manager, Davina, also told him she was going to raise her concerns with UCC because he had been allocated to work with BT alone, when he was not signed off to do that. In addition, Davina filled in a log book in the motor vehicle to record their trip.
Mr Matovu said that after he left The Park he was shaking because none of it made sense to him. All that had happened was that BT had said "hello" to someone and asked for a cigarette. "Then why - why do they yell, you know. Are they crazy? The guy is sick. I'm thinking this is - it didn't make sense at all, like, the whole thing didn't make sense. But there is one person that never forgot the incident and all the time I was thinking … - the guy is going to kill me, you know, because he's in front of me. And then I'm also thinking this guy in the back had strangled me. I wasn't looking at him. I didn't know what - he could have strangled me again on the day, Bill… and I'm thinking 'my goodness, what's going to happen?' This one is in front, you know… and then I thought that Bill is going to strangle me…".
Mr Matovu also opined that people with mental illnesses never forget. If an incident happens where they have been hit or something happens which they don't like, they look at the person who was there and they associate that person with the incident that happened. "And this is what I was thinking, that he will attack me after - or strangle me again or do something. And let me tell you, Bill never forgot that incident".
In that respect, Mr Matovu gave later evidence [at T1-54] that following the incident at the shopping centre BT was terrified and started asking him whether he remembered "that big guy at the shopping centre? Man, you saved me…Remember that guy? Man, he was big, wasn't he…Man, you save me, but I'm fucking stronger than him, aren't I? ... I'm fucking stronger than you.". "That's how he used to go." BT's frequent questions, in Mr Matovu's view, was clear evidence that the incident happened as he alleged.
Not long after the incident on 6 February 2012, Mr Matovu attended a client specific briefing session about BT, which he believed was on 21 February 2012. During one of the breaks he approached Ms McDonald and reported the strangling incident and also told her that he needed to pull out of his Certificate IV course because he was unwell, had headaches and could not concentrate since the strangling. Ms McDonald told him that BT was not violent and was just testing him to see how much he could get away with. However, she allowed him to pull out of the Certificate IV course.
On 12 March 2012 he told Ms McDonald, during another training session, about the shopping centre incident as well as the strangling incident. Ms McDonald allegedly told him that because he went out with BT "without being signed off" they were all going to get in trouble. She asked him to sign a form "that had the dates", which she signed as well. On the following day, being the day BT moved into his new house on a permanent basis, Ms McDonald accompanied both BT and Mr Matovu to
Mt Ommaney Shipping Centre to purchase goods for the new house.A further professional support session was held on 23 March 2012 which Mr Matovu claimed "was organised because of the incidents that I had been reporting in relation to Bill". On that date, according to Mr Matovu, Ms McDonald pulled him aside and said she wanted to discuss the incidents he had reported in relation to BT. She told him that while she had limited time she wanted to address all his issues with BT and that the professional support session had been organised because of the incidents he had reported. He told her about the strangling incident, the incident at the fish and chip shop and recalled telling her he was not feeling well because of the difficulties and stresses he had with BT and that he was not coping with working with BT since the strangling incident. Ms McDonald allegedly said she understood.
The 8 May 2012 incident
In his oral evidence on this point Mr Matovu said:
"Bill got up after wetting his bed and he told me he wet his bed, and then I asked him whether he needed, you know, changing the sheets. He told me, yes, he did, and then he asked for a cigarette, and this is in the morning. Quiet. And under company procedures he's not allowed a cigarette past 10 pm. And Bill tells me 'you fucking black idiot. I'm going to smash you, kill you, and then hide your body'. This is in [indistinct] like this, you know? And for the next half hour he was trying to attack me, you know, and he's - he had his fists in the air, clenching his jaws ... you know, coming for me and screaming at me, you know, swearing, you know. So - and he's trying to punch; I'm dodging, you know. In the quiet, he's trying to punch me. I reach for the door. You know, I'm constantly telling him, please, calm yourself down. You know, take a deep breath. And he's, you know, trying to - and then I open one door and then I [indistinct] then I've gone to open the second door. You see, there is two doors closed. And I just felt trapped. ….
The incident began in his bedroom… And then it went to the laundry room because I decided to leave the room, you know, because I was helping him with the sheet. Because one of the problems, you've got to understand, he was cold. He wet himself. So he's cold. So I needed to help him to get warm quickly, so I said do you need, you know, help with changing your sheets, and then he tell - he says yes, so I helped him to pick his clothes [indistinct] the trigger must have been maybe he's cold, wet, and, you know, I'm trying to make the bed warm for him as well, you know, like, put the sheet. That's when he asked me for the cigarette, you know? And once I told [indistinct] he said those words as I tried, you know, to get myself out."
Mr Matovu also said that he felt really terrified and was shaking after BT called him a "fucking black idiot". He left BT's bedroom and went to the kitchen. It was there that BT was "clenching his jaws, fists in the air, you know, to fight, to try and, you know, kill me… I was thinking… with these metal chairs, he could use the metal chair, bang the door and he's got me. He's … near the knives, you know, he could come and cut me, saying I'll kill you." After BT had calmed down Mr Matovu completed an incident report (Exhibit 20).
The report recorded that the incident began at 5:35am and ended at 6:05am on the morning of 8 May 2012. The report contained the following description of the event:
"Behaviour incident: At the start Bill couldn't find a towel, then he started yelling and swearing at (me) saying he needed a smoke. I told him that he will only get the smoke when morning staff get here then (he) was throwing his punches to me and swearing and yelling at me.
Describe the effects or impact: Yelling would have woken the neighbours up and if he hit me he could have hurt me.
Location: In the lounge room.
Observations of what happened prior to the incident: 1. In the shower (and) he came to the lounge room. 2. There was no one else around. 3. He wanted a smoke. 4. I had just come from the office to the lounge to pick (up) the remote and he started yelling and asking for a smoke.
What happened immediately after the behaviour: He was walking down to punch (me) and I walked to him telling him he needed to calm himself down. It took a bit of time when he was trying to punch me but he calmed down.
How did you or others respond to the person's behaviour: I just kept walking to him as he waved his fists and I told him to calm himself down."
In the course of his examination-in-chief Mr Matovu said he did not mention the racial abuse aspect in the incident report "because I was the only black man on the team and didn't want to be embarrassed". However, he subsequently mentioned it to
Ms McDonald and another senior employee. He also said that while he did not specifically recall, because there was an incident on that day and BT was trying to kill him, he believed he would have taken BT to the shower after he wet his bed.On the following day Mr Matovu received a call from Ms McDonald who said she wanted to meet him, together with two other senior staff members, to talk to him about his incident report. At that meeting, held on 9 May 2012, he provided more details about the incident and told Ms McDonald and her colleagues that he was not coping with working with BT. He told them he was shaking from the incident, he felt very unwell and that he wanted to leave. Mr Matovu said that when he told them he was unwell "they" said BT was cold and he should have given him a smoke. He responded by telling them he did not want to work with BT or anyone else who was violent. If they wanted him to work with anyone like that again he would quit. They replied by telling him he was a good worker and should not leave and suggested he discuss the issue of working with non-violent clients with another manager. He then left the meeting with Ms McDonald and went to meet the regional manager of UCC.
Mr Matovu said that ever since the strangling incident that he had migraines and had reported that to Dr Butcher. He was also uneasy around crowds and avoided shopping centres. While he told Dr Butcher he had stress at work, he was embarrassed to tell him he was not coping. Further, he reacted to any hand movements from people around him because of BT catching him by surprise and strangling him. He also felt he could not trust people given what had happened with BT.
Mrs Matovu
Mrs Matovu said that very shortly after her husband started work he told her how he had been attacked and strangled by a client and that he had a bad headache, felt nauseous and feverish and was very stressed. He also did not look well. She also remembered the event because he was crying and he was not one to show that sort of emotion. She had never seen him cry before. She wanted him to resign his employment but he refused, saying they needed the money. The next morning she told him to go to the doctor because he was still not feeling well.
She also remembered him telling her about an incident at a shopping centre, maybe a month or so after the above incident, when her husband described being attacked by a member of the public when he had to get between BT and the man. She also remembered an incident on an overnight shift where BT was verbally attacking and threatening to physically attack her husband. He told her about the incident when he came home and said he was scared of working night shifts because BT could wake up and he did not know what BT would be like.
Mrs Matovu also said that her husband changed after the strangling incident. He was nervous all of the time. He used to dread going to work. He was always tired because he was not sleeping as a result of having nightmares. He was angry at her all the time and snappy towards her because he was not coping. She could see the changes in him and he was not the same person he once was. Previously he used to be confident, happy and loving. Now he was angry, cranky and snappy. He would not do any shopping because he was scared of busy places. He did not help around the house and did not help her with the children. She had tried to talk to him about it but he just got angry at her.
Medical evidence
Dr Ross Phillipson, a Consultant Psychiatrist, examined Mr Matovu on 15 April 2015. In his Report (Exhibit 32) Dr Phillipson opined that Mr Matovu fulfilled the diagnostic criteria for a Post-Traumatic Stress Disorder, with possible alcohol abuse.
He also opined it was not unusual for people with PTSD to delay seeking treatment. In the case of male patients, many are embarrassed in having to admit that they have not been able to deal with the impact of trauma and need help. Many also tried to "self-medicate" with alcohol and this further delayed the seeking of help. Another factor in this case was that Mr Matovu came from a culture where going to see a doctor about emotional symptoms was uncommon, if not rare.
Dr Phillipson also opined that while Mr Matovu was pre-disposed to the development of PTSD, as a result of his time (18 years) in Uganda, there was no evidence to suggest any pre-existing mental disorder prior to the incident with BT. It was his further opinion that the reported attempted strangulation by BT was a significant contributing factor to the development of Mr Matovu's PTSD.
Under cross-examination Dr Phillipson said that if the strangulation event did not occur he did not think he could have diagnosed PTSD but would probably have been able to diagnose an adjustment disorder from the remaining two events Mr Matovu outlined. If neither the strangulation incident nor the incident in the shopping center occurred, but the incident in BT's home in the early morning did, then that could give rise to an adjustment disorder.
Under re-examination Dr Phillipson opined that if Mr Matovu felt he was under physical threat of injury for something of the order of 30 minutes, and if his reaction was one of fear or freezing, then he may be able to reach the level of severity required for a diagnosis of PTSD as a result of the combination of events on that overnight shift.
Dr Nicholas Butcher said he had been treating Mr Matovu since May 2010 and had an independent recollection of their consultation on 7 February 2012. This was for two reasons. The first was that he had not seen many patients with Malaria and it was an unusual thing for someone to come in and consult about. Secondly, while Mr Matovu spoke to him about potentially having Malaria, he remembered feeling uncertain about whether that was the whole story and was left wondering what was actually happening with the patient.
Later, on 16 October 2012, Mr Matovu spoke to him about longstanding dizziness, having uneasy feelings around crowds and a lot of stress at work. He ordered a CT scan of Mr Matovu's head, but the report came back as normal.
Dr Butcher also said that he remembered his first meeting with Mr Matovu in 2010 when he presented as a very chatty, jovial, happy man who was sort of fun to be with and easy to get along with. However, that was not how he presented in 2012, when he was much more anxious and worried.
Under cross-examination, Dr Butcher confirmed that his notes of the 7 February 2012 consultation recorded Mr Matovu "looks well" and that apart from raising the question of Malaria he did not report bruising to his neck or any other concerns. Dr Butcher said his note about "looks well" was to record that Mr Matovu did not look unwell.
The case for the Regulator
Ms McDonald said that in early 2012 she was a Case Manger employed by UCC. In that role she was responsible for the supervision of staff and the case management of clients. This involved ensuring that staff were doing what they needed to do as well as providing support for them and for clients whenever that was needed.
Ms McDonald said that one of the reasons she chose Mr Poliquin to provide orientation to Mr Matovu was because he was one of her better workers. He was very forthcoming in telling her what she needed to know. If he felt an employee was at risk or that they did not "fit" with a client for any reason he would let her know. Neither Mr Matovu nor Mr Poliquin told her about any incident where BT strangled Mr Matovu. Had such report been received she would not have sent Mr Matovu out again with BT because it was important for support workers and the client to be able to relate well with each other. Although Mr Matovu never expressed any fear of working with BT, there were times when she actually felt that he might be afraid. When she asked Mr Matovu if everything was alright or whether something was bothering him in connection with BT he told her he was fine.
Ms McDonald also said that she only heard about the fish and chip shop allegation in the lead up to the hearing of Mr Matovu's Appeal but had not received any oral or written report from Mr Matovu, nor any report from any staff member at The Park, about such an incident. If an incident of that type happened it was "absolutely" reportable to her and UCC. To start with, UCC's procedures, which Mr Matovu understood, required him to phone herself, another case worker or a higher level manager to report the incident. Once he did that he would have needed to complete a client incident form. Further, she knew Davina P, the Nurse Unit Manager alleged to have been involved, and she had never mentioned an incident like the one Mr Matovu described.
On 23 March 2012 Ms McDonald met with Mr Matovu in a professional support session which, she said, were held every four to six weeks. Such sessions were a time for staff to be able to talk to her about any workplace issues, client issues or life issues they might have. It also provided her with an opportunity to support them in a positive manner. If they requested additional training or reported workplace incidents with other staff or clients or were unhappy about something, such matters would be raised at this type of session.
In a summary of the session held on 23 March 2012 (Exhibit 19), signed by Mr Matovu, Ms McDonald recorded:
"General Discussion Notes: Joseph is well and in very good spirits. Joseph is enjoying his work with BT and all other clients he is orientated with. Talked to Joseph about strategies for BT around touching and setting boundaries. Joseph understands about boundaries and will try some strategies for BT.
Staff member's observations: No workplace issues to report."
By 9 May 2012, BT had been living in the house in Inala on a full-time basis with
two-on-one support between 5:30am and 10:00pm daily for nearly two months. At that time BT was being given medication to sedate him and send him off to sleep, with one disability support worker remaining in the house overnight on an "awake shift".
Ms McDonald said the "incident report" (actually a "behaviour report") completed by Mr Matovu about the events of the early morning on 8 May 2012 was just one of a number of such reports - up to six - coming to her each day about BT's behaviour. This was because UCC was documenting BT's behaviour to track any changes as a result of him moving to his own accommodation. Such recording was still ongoing at the time of the hearing, over three years after he moved out of the Dual Diagnosis Unit into his own accommodation.Although the behaviour reports were submitted by a number of staff members, there were more such reports concerning Mr Matovu than any other staff member. They demonstrated that BT was working out who he could play up on and who he could not. Mr Matovu was the person who was struggling most with setting boundaries for BT, and this latest behaviour report from Mr Matovu led to the professional support session being held on 9 May 2012.
Ms McDonald said that rather than Mr Matovu expressing any view to the effect that he did not want to work with BT any more (as he alleged) "he was actually, very, very resistant about moving" and asked if he could receive more training. Ms McDonald said that she, and her manager who was also present, had to firmly tell Mr Matovu that he could not go back to work with BT because it was too much of a risk from a workplace health and safety point of view.
Under cross-examination, Ms McDonald disputed the existence of a lawn mower at BT's new house as early as 6 February 2012 but accepted that Mr Poliquin could have gone out of the house for a time for some reason. She also acknowledged that BT had been known to get into altercations with members of the public and, while it was not a regular occurrence, it was not uncommon. However, she did not accept that Mr Matovu would have been rostered to work with BT alone on 9 March 2012. He would not have been allowed to take BT away from the facility alone and would have had to stay where other support staff were available, so that he could be assisted if need be. Nonetheless, it was plausible that Mr Matovu and BT might have accompanied Davina P and a nurse to a shopping centre and that an incident of the type described by Mr Matovu might have happened.
Ms McDonald also said that if an incident had occurred at the shopping centre as alleged it would not have been necessary for Davina, the Nurse Unit Manager, to contact her because BT was in the care of The Park during that outing.
In terms of the event of 8 May 2012, Ms McDonald said the behaviour report completed by Mr Matovu was "very typical" of the behaviour BT displayed each morning. He was a heavy smoker, he had been sedated all night, he had come off that medication and immediately started looking for a smoke. He would threaten staff members twenty times a day because he was schizophrenic. However, if he damaged property, threw something at someone, demonstrated threatening behaviour to the public or neighbours or demonstrated violent behaviours, where he actually connected with somebody, that would be the subject of an incident report rather than a behaviour report.
Findings and conclusions
Mr McLean-Williams, who appeared for the Regulator, submitted that the Commission should accept that the third event (the overnight shift incident) did happen broadly as Mr Matovu alleged and, on Dr Phillipson's evidence, resulted in Mr Matovu developing, at least, an adjustment disorder. However, for reasons which it is not necessary to go into, Mr McLean-Williams urged me to find that neither of the other two events occurred.
Mr S Cleary, Counsel for Mr Matovu, submitted that the Commission could be "comfortably satisfied" that the three incidents described by Mr Matovu occurred. In doing so, he said there were a number of inferences which could be drawn from the evidence, including the following points:
· Mr Matovu's evidence was adamant and it was consistent - it was repeated under cross-examination, when more detail was often supplied;
· various records established that Mr Matovu was working with BT on each of the three dates referred to;
· his evidence about the three incidents was buttressed by the evidence of
Mrs Matovu who gave evidence about her husband's reaction to each event, including the clear change in his behaviour, both generally and towards her, following the strangling incident;· his visit to see Dr Butcher on 7 February 2012 and the doctor's evidence that he doubted whether what Mr Matovu told him about the reason for his visit was the whole story. Indeed, Dr Butcher said he was left wondering what was actually happening;
· his evidence concerning a behaviour report dated 24 March 2012 where he referenced telling BT, in the course of trying to calm him down, how he protected him "from the bad guy". This, it was argued, was a clear reference to the 9 March 2012 incident;
· Mr Poliquin's evidence that the type of behaviour Mr Matovu mentioned as having occurred on 6 February 2012 was "par for the course" for BT and that he would not necessarily have completed an incident report because there was nothing unusual about it;
· Mr Poliquin's further evidence that BT tested boundaries, especially with new people, and that physical contact was one of the ways he tested those boundaries;
· Ms McDonald's evidence to the effect that BT had previously engaged in altercations with members of the public and that it was quite plausible that an event of the type Mr Matovu described had occurred on 9 March 2012 at the fish and chip shop; and
· Dr Phillipson's evidence that Mr Matovu's symptoms were consistent with people with PTSD, especially the failure to seek help in managing symptoms at an early point in time.
Mr Cleary also said that while there was a lack of documentary evidence in relation to the first two incidents, Mr Matovu was very clear that he had completed incident reports in respect of those incidents and that he had also written reports in the shift report book. He had left this material in the appropriate place to be collected by UCC later. However, none of that documentation had been found. Importantly, in Mr Cleary's submission, Mr Matovu did not claim to have faxed these forms to Ms McDonald or anyone else at UCC. He left the forms to be collected but it appears they were not collected or otherwise passed on to UCC.
Notwithstanding Mr Cleary's well presented and well argued submissions, I cannot agree with his comment to the effect that I would be comfortably satisfied that each of the three incidents occurred in the manner described by Mr Matovu.
In the course of his evidence, Mr Matovu alleged he raised his concerns about the strangling incident with Ms McDonald on or around 21 February 2012 during a break in a client specific briefing session about BT. However, Ms McDonald gave evidence, which I accept as truthful, that she received no oral or written report about any strangling-type incident from either Mr Matovu or Mr Poliquin.
Mr Matovu also allegedly told Ms McDonald during another training session, on Tuesday 12 March 2012, about both the strangling incident and the shopping centre incident the previous Friday. Again, this allegation was rejected by Ms McDonald. Further, on 13 March 2012, Ms McDonald accompanied both Mr Matovu and BT when they went to a shopping centre to purchase house products for BT's new residence. Had
Mr Matovu truly raised the issue the day before, it would have raised serious doubts in Ms McDonald's mind about the "compatibility" of BT and Mr Matovu. In my view, it is unlikely that Ms McDonald would not have had more discussion with Mr Matovu about the allegation and sought more information from the Nurse Unit Manager at The Park, given that an UCC employee had not reported for duty and staff from the hospital had accompanied Mr Matovu and BT on the outing.More damaging to Mr Matovu's claims is the content of Exhibit 19 (see paragraph [55] above) which is Ms McDonald's contemporaneous record of her meeting with
him on 23 March 2012. Contrary to Mr Matovu's allegations that he told
Ms McDonald about the strangling incident, the incident at the fish and chip shop and the fact he was not feeling well because of his difficulties in coping with BT,
Ms McDonald's notes paint a very, very, different picture. As noted above, they record Mr Matovu told her he was in good spirits and was enjoying his work with BT.In addition, Mr Matovu's recounting of his discussion with Ms McDonald and her senior manager on 9 May 2012 is vastly different to Ms McDonald's record of the same meeting. Whereas Mr Matovu claimed he told them he was still shaking from the incident, felt unwell and would leave UCC's employment if they tried to place him with anyone else who was violent, Ms McDonald said he was very resistant about moving to a different client than BT. I accept her evidence on this point, and on other matters where there is a difference between her evidence and that of Mr Matovu. She was an impressive witness who told the truth.
Finally, documents Mr Matovu lodged with the Anti-Discrimination Commission of Queensland (ADCQ) on or around 12 December 2012 further undermine his allegations about the incidents on 6 February 2012 and 9 March 2012, respectively.
In his initial Complaint to ADCQ, in which he alleged he had been discriminated against as a result of his gender, race and parenting responsibility, Mr Matovu wrote:
"(a)My boss fails to act when a staff member harasses me at BT meeting. The staff member kept going on that I should submit incident reports, yet I had no incidents."
In another document lodged with ADCQ at around the same time he wrote:
"(a)My case worker failing to act when a staff member harasses me at a client meeting. She continuously told me to submit incident reports in regards to the client, yet I had no incidents. (This happened between 3 February 2012 and 9 May 2012)."
In addition to the above matters, it is also noteworthy that no contemporaneous document which might support Mr Matovu's case has been presented. This includes:
· the incident report prepared by Mr Matovu on 6 February 2012;
· the entry in the shift report book for 6 February 2012;
· the incident report prepared on 9 March 2012;
· the entry in the shift report book for 9 March 2012;
· the petty cash receipt and ledger entry for the fish and chips purchased on
9 March 2012;· the log book entry for the trips undertaken in The Park's motor vehicle on
9 March 2012; and· any entries for 9 March 212 in records kept by The Park for BT.
Further, none of the alleged witnesses to the 9 March 2012 incident (being the Nurse Unit Manager, the nurse or the fish and chip shop owner) were called.
Given the significant differences between the available documentary evidence,
Ms McDonald's evidence and Mr Matovu's oral recounting of the incidents of
6 February 2012 and 9 March 2012, respectively, I am not in a position to find that
Mr Matovu has met the necessary burden of proof test to establish that those two incidents occurred at all or in the manner alleged.Further, while I believe that Mr Matovu has somewhat exaggerated the nature of the incident which occurred in the early morning of 8 May 2012 I am, nonetheless, in a position to acknowledge the concession made by the Regulator to the effect that an incident broadly in line with that described by Mr Matovu occurred on this day and resulted in him developing, at least, an adjustment disorder.
For the foregoing reasons I uphold the Appeal in part. I find that Mr Matovu developed (at least) an adjustment disorder as a consequence of the workplace events which occurred during the course of his employment on 8 May 2012 and that his employment was a significant contributing factor to his injury.
Notwithstanding Dr Phillipson's response under re-examination about the possibility of Mr Matovu having PTSD as a result of the 8 May 2012 incident, I am not prepared to make such a positive finding. It seemed to me, on the whole of Dr Phillipson's evidence, that while he was not ruling out the possibility of such diagnosis he was not confirming it either.
I reserve the question of costs.
I determine and Order accordingly.
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