Newman v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 182
•6 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Newman | v | Simon | Blackwood | (Workers' |
Compensation Regulator) [2014] QIRC 182
| PARTIES: | Newman, Karen | |||
| (Appellant) | ||||
| v | ||||
| Simon Blackwood (Workers' Compensation Regulator) | ||||
| (Respondent) | ||||
| CASE NO: | WC/2012/334 | |||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | |||
| (Workers' Compensation Regulator) | ||||
| DELIVERED ON: | 6 November 2014 | |||
| HEARING DATES: | 8, 9 and 10 May 2013 | |||
| 14 June 2013 (Appellant's submissions) 20 June 2013 (Respondent's submissions) 5 July 2013 (Appellant's submissions in reply) | ||||
| MEMBER: | Industrial Commissioner Knight | |||
| ORDERS : | 1. The Appeal is dismissed. | |||
| ||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - aggravation of generalised anxiety disorder and an initial adjustment disorder with anxiety and pathological gambling - burden of proof - arising out of or in the course of employment - whether employment a significant contributing factor - altercation with junior co-worker over mail responsibilities - where appellant resigned - where appellant paid herself entitlements and departed workplace - history of depression - unfair dismissal claim - stress in personal and family life - reported | |||
| history of altercation - found employment not a | ||||
| significant contributing factor - management action reasonable - appeal dismissed. | ||||
| CASES: | Workers' Compensation and Rehabilitation Act | |||
| 2003, s 550, s 32, s 31(1), s 32(3), s 32(4), s 32(5) Lackey v WorkCover Queensland (2000) 65 QGIG 22 Davis v Blackwood (2014) ICQ 009 Q-COMP v Hohn (2008) 187 QGIG 139 | ||||
| APPEARANCES: | Mr J. Morris, Counsel instructed by Everingham Lawyers for the Appellant. Mr C. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. | |||
| Decision |
[1] This is an appeal by Ms Karen Newman (the Appellant) pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against the decision of Simon Blackwood (Workers Compensation Regulator), formerly known as Q- COMP (the Respondent / the Regulator). The decision of the Regulator confirmed an earlier decision of WorkCover to reject Ms Newman's claim for compensation, contending the Appellant did not sustain a psychological injury in accordance with s 32 of the Act.
Grounds of Appeal
[2] The grounds of appeal filed by the Appellant are as follows:
"The decision of the Review Unit, Q-Comp dated 20 August 2012 in so far as management's actions are relevant to factors 1 and 2 are wrong in both fact and at law for the following reasons:
Factor 1
(a) The Appellant did report to Mr Hadwen her concerns regarding Ms Ricketts' conduct; (b) Mr Hadwen did, despite actual knowledge of the Appellant's concerns fail to address them with the Appellant and/or Ms Ricketts; (c) Dr Shea does say that the lack of support in the workplace is and was a cause of the Appellant’s psychological injury / disorder;
As such, the decision is wrong as the Appellant's personal injury did arise as a result of the actions by management, namely Hadwen and that management's actions were unreasonable and undertaken in an unreasonable way.
Factor 2
(a) Management, in particular Don and Tydon Hadwen and Tim Iland did, on 24 April 2012 have knowledge of the incident and did have knowledge of the Appellant's distress arising from the incident but failed to take the appropriate management action in a reasonable way to address such issues."
[3] The opening submissions of the Appellant narrowed its position to:
"…it is a simple matter on the appellant's case, and that is that an incident
occurred on 24 April 2012, it was in the course of her employment, it comprised a heated confrontation with a co-worker and that as a consequence of that confrontation the appellant decompensated and suffered an injury. That is the appellant's case in a nutshell."
Burden of Proof and Issues for Determination
[4] Except for those matters conceded by the Regulator, Ms Newman carries the burden of proof in this appeal. To succeed in this matter, the Commission must be satisfied Ms Newman has proven on the balance of probabilities that:
Ms Newman's personal injury, namely an aggravation of a generalised
anxiety disorder and an initial adjustment disorder with anxiety and pathological gambling, is one arising out of, or in the course of employment;
her employment is a significant contributing factor to the injury; and the injury is not removed from the definition of injury by virtue of s 32(5)
of the Act.
[5] Section 32 of the Act relevantly provides as follows:
"32 Meaning of Injury
(1)
An injury is personal injury arising out of, or in the course of, employment if employment is a significant contributing factor to the injury.
…
(3) Injury includes the following -
(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;
(4) For subsection (3)(b), to remove any doubt, it is declared that an
aggravation mentioned in the provision is an injury only to the
extent of the effects of the aggravation.(5) Despite subsections (1) and (3), injury does not include a
psychiatric or psychological disorder arising out of, or in the
course of, any of the following circumstances -
(a)
reasonable management action taken in a reasonable way by the employer in connection with the workers' employment;
(b)
the worker's expectation or perception of reasonable management action being taken against the worker;
(c)
action by the Authority or an insurer in connection with the worker's application for compensation."
Witnesses
[6] The Appellant gave evidence in support of her appeal.
[7] Ms Newman, a fifty year old woman, commenced working for Hadwens Prestige Collision Repairs (Hadwens) as a receptionist/bookkeeper in early 2008.
[8] Ms Newman's hours of work extended from 6.45 am until 3.45 pm. Her responsibilities included payroll, accounts, the preparation and adjustment of quotes, chasing bad debts, answering the phone and liaising with customers and insurance companies.
[9] Dr Karen Chau, a psychiatrist, and Ms Newman's GP, Dr Antony Shea, provided medical evidence for the Appellant.
[10] The three witnesses called by the Respondent were Mr Tydon Hadwen, the owner of Hadwens, Ms Michelle Ricketts, who undertook a reception / administrative role in the same workplace as Ms Newman; and Mr Timothy Iland, an estimator who had been an employed by Hadwens for approximately six years.
[11] Ms Ricketts, who was in her mid-twenties, commenced employment in May 2010. In addition to answering the phone, her responsibilities included liaising with customers about vehicle repairs, assisting with claim forms, banking, accepting deliveries, entering invoices and adjusting quotes.
The Mail Incident
[12] The Appellant's application for workers' compensation, which was lodged on 14 June 2012, refers to "no support and junior verbally abusive and physically threatening" as an explanation for how the alleged injury arose (Exhibit 1).
[13] Ms Newman's evidence in relation to the injury was that on the morning of 24 April 2012 she arrived at work to discover Ms Ricketts had placed the mail from the previous day on her desk. In response, Ms Newman placed the mail back on Ms Ricketts' desk for her to post and went about her ordinary duties.
[14] On returning to the front office some time later Ms Newman noticed the mail had been placed back onto her desk. When she requested Ms Ricketts not leave the mail on her desk anymore, Ms Ricketts advised her she was not going to post the mail anymore.
[15] Ms Newman said that she then suggested to Ms Ricketts she speak to Tydon Hadwen about the issue to which Ms Ricketts responded that "she had talked to effing Tydon and she was not doing it anymore..." (D1, P17).
[16] Ms Newman's evidence is their interaction escalated from this point noting:
"…and then she started carrying on and I said, well, Michelle, I catch the train,
there is no mailboxes along the train route. You drive which means you probably pass a lot of mailboxes and then she started carrying on about how when she lived on the south side, train fares and she hadn't lived on the south side for over 18 months, so I didn't really see what relevance this had...and when I said I don't understand, she just went right off and she basically lunged forward towards me and said, are you calling me an effing liar, are you calling me an effing liar, and I was terrified, absolutely terrified, and felt threatened, and I was back into the corner, I couldn't do anything and I jumped up to her and just said, that's it, I resign. And she was so shocked, the look on her face and she just backed off and got up and walked into the office. And I just didn't know what to do, I just sat there shaking and oh, I was so upset. I just never expected to feel attacked in my workplace, like it was a safe place as far as I knew. Yeah.
Ms Newman, during that incident, did you raise your voice? --- I don't know.
Did Ms Ricketts raise her voice? --- Yes." (D1, P17).
[17] After speaking to Tydon's father, Don, about the incident, Ms Newman went and processed the pays and completed the accounts for the week, sending them to Tydon's computer for sign off. Ms Newman said she clicked a button on the payroll system which effectively terminated her employment (from a payroll perspective) and left the premises by late morning.
[18] Under cross-examination Ms Newman said she paid out all of her outstanding annual leave, further confirming she had paid herself all of her accrued sick leave entitlements as well. Ms Newman's position was she was not thinking clearly at the time and simply pressed a button which "terminated" her employment, and also resulted in her being paid the cash equivalent for untaken sick leave.
[19] Mr Hadwen's evidence was that it was not common practice for his business to pay out an employee's accrued sick leave when they left their employment and that Ms Newman would have been required to explicitly tick a box on the system in order to do this.
[20] Although the Appellant paid out her annual leave and sick leave, and confirmed in her evidence that she told Ms Ricketts she had resigned, Ms Newman later went on to say she had not resigned prior to speaking to Tydon the next day and that she was very upset and confused.
[21] Ms Newman left the workplace and caught the train home to Petrie Station, receiving a phone call from Tydon Hadwen just as she was getting off the train. She recalled telling him she was very upset and that he advised her that it would be a good thing for her to calm down and he would call her the following day. The Appellant then said she went and sat in her car for half an hour to calm down so she could drive.
[22] Whilst she was on the train Ms Newman also booked an appointment to see Dr Shea.
[23] The Appellant recalled speaking to Dr Shea later that afternoon where she described how the argument with Ms Ricketts had left her shaken and upset.
[24] The patient health summary notes for 24 April 2012 recorded by Dr Shea during Ms Newman's visit note the following:
"Conflict and stress at work causing unwell
Frustrated and (sic) treatment and lack of support
Chronic cough - needs CXR
Needs break looking to work elsewhere
Will discuss with Boss ?needs to be under workcover". (Exhibit 8)
[25] Dr Shea prepared a standard non-workcover medical certificate at the conclusion of her appointment stating she would be unfit for work from 24 April until 13 May 2012 inclusive (Exhibit 9).
[26] Ms Newman confirmed Ms Ricketts had previously raised concerns about doing the mail all the time, but her evidence was that she had suggested she raise it with Mr Hadwen given it was part of Ms Ricketts' role.
[27] Ms Newman said between 2010 and 2012 there were times when she became frustrated with Ms Ricketts' work, noting that the email system in place at Hadwens often resulted in challenges discerning when and which emails and other work had been actioned by staff; and that at times she believed Ms Ricketts was not pulling her weight.
[28] In contrast, Ms Ricketts' evidence was that she and Ms Newman generally got along and always talked to one another. She said that for the first two years she handled the majority of the mail responsibilities, posting the mail at a box located at the train station where she disembarked on her way home from work.
[29] In the lead up to the argument on 24 April 2012, Ms Ricketts recalled being handed the mail one afternoon prior to the day of the argument about the mail and advising Ms Newman that she did not want to post the mail anymore as she had been doing it for two years and that they had previously agreed they would share the responsibility.
[30] She recalled Ms Newman told her to speak to Mr Hadwen about the proposed change.
[31] Ms Ricketts told Ms Newman that Mr Hadwen had indicated he was fine with the change and that it was fair. Ms Ricketts' evidence is that she held this particular conversation with Mr Hadwen a few days before the 24 April 2012 argument about the mail, though she was not entirely sure of the date.
[32] Ms Ricketts' evidence is that, notwithstanding this conversation, Ms Newman continued to drop the mail on her desk to the extent that over a period of a few days both ladies continued to place the mail back and forth on one another's desks until the morning of 24 April 2012, when Ms Ricketts told Ms Newman she was not going to do the mail again after which they had a brief argument, voices raised, but not lasting any longer than a minute.
[33] Ms Ricketts' recollection of the interaction was that:
"I've said, I'm not doing the mail anymore; I've done it for two years, when we said we would take it in turns; it's your turn. Karen has then said, well, I've done it for two years before that. I do know that we - we discussed on how it was okay for me to take the mail because of being close to a train station and it was easy for me to post. She's then said, I've never caught the train while I've been working here. I will admit, I did call her a liar, because on numerous occasions we'd spoken about train fares and you know, times and that." (T1, P63)
[34] Ms Ricketts suggested both ladies raised their voices, but in contrast to Ms Newman's evidence indicated that she did not move from where her seat was placed. Though, she was unsure as to whether she was standing or sitting at the time of the argument with Ms Newman.
[35] Ms Ricketts evidence was she raised her voice so that Ms Newman would not talk over the top of her, stating that Ms Newman would often talk over the top of her when she was speaking to a customer or other work colleagues.
[36] Ms Ricketts' described how Ms Newman stayed at her own desk in the front office at the conclusion of the argument between the two ladies, after she (Ms Ricketts) moved to the back office for a few minutes to cool down and get away from Ms Newman. At some point, either during or after the interaction, Ms Newman told Ms Ricketts that she had quit and was "sick of being a slave" to Ms Ricketts.
[37] Under cross-examination Ms Ricketts denied leaning in or moving towards Ms Newman during the argument.
[38] Mr Iland's evidence was that on the morning of 24 April 2012 he was sitting in the back office of the business and observed Ms Newman and Ms Ricketts sitting at their respective computers in the front office, but looking at each other and talking.
[30] Prior to this time and before Ms Ricketts had commenced work he recalled Ms Newman had told him she was unhappy with the "mailing situation" and seemed quite agitated.
[40] Whilst on a call to a parts interpreter to chase up some parts he noticed the conversation between the two ladies getting louder and louder. He heard some "colourful" language exchanged and at this point he terminated the call and took another look through the glass between the front and back offices to see what was happening. He recalled both ladies were still sitting down at this stage.
[41] Mr Iland hopped up out of his chair and went to move towards the front office but was interrupted by another tradesperson at around the same time. He answered the tradesperson's question and then looked into the front office again where he observed Ms Ricketts stand up and push her chair in and move to the back office.
[42] Mr Iland's evidence was that raised voices were coming from both ladies and the argument lasted for a minute or two.
[43] After moving into the back office for a few minutes, Mr Iland observed Ms Ricketts move back into the front office and resume her work approximately five to ten minutes after the argument concluded. He then observed Ms Newman effectively switch places with Ms Ricketts when she moved into the back office, after Ms Ricketts had returned to her desk in the front office.
[44] Mr Illand's recalled that after the argument:
"…Karen was stating that she wasn't going to cop shit from someone younger
than her, and she wouldn't expect me to. And she was telling me that - that I wouldn't cop that sort of behavior from someone younger. And yeah, and she
was stating - yeah, that's it; she was going to leave…"
[45] He said Ms Newman advised him her husband was going to come and pick her up but eventually he thought she had "just got sick of waiting and went and caught the train" home.
[46] Mr Iland said he got along okay with Ms Newman but that a lot of people had problems dealing with her because she would talk over the top of everybody all the time, including himself.
[47] Mr Tyden Hadwen, the Managing Director of Hadwen's said he was aware that some problems existed between Ms Newman and Ms Ricketts prior to the 24 April 2012 incident, recalling that both of them had come to him separately with the view that they both did all the work and that the other did nothing.
[48] He said they had all gotten together to discuss how they could communicate more effectively, but that he did not consider that the problems were overly significant.
[49] Mr Hadwen's evidence was that Ms Newman "was okay" to communicate with, but that whenever he found fault with her work she would become quite loud and aggressive, often talking over the top of him and not listening.
[50] He recalled trying to show her the correct way to undertake a process after which she took off a couple of days as sick leave.
[51] He recalled Ms Ricketts coming and speaking to him a week before 24 April 2012 at which time she had said that she had spoken to Ms Newman and they had decided she was going to do the mail from that moment onwards.
[52] His understanding was that both Ms Newman and Ms Ricketts were responsible for doing the mail and that there was no specific role allocated for posting the mail.
[53] Mr Hadwen's evidence was that he had every intention of coming into work on 24 April 2012, but that he was quite unwell and had to go to the doctor.
[54] The first indication Mr Hadwen received that there was a problem at work was when his father, Don, a previous owner of the business who continued to spend time helping him out at Hadwens, contacted him by phone when he was sitting at the surgery and advised him there had been an incident at work.
[55] Tydon Hadwen recalled later calling Ms Newman from his bed at approximately 12.15 pm to see how she was. He said the Appellant told him she was quite upset, that she was crying intermittently during the phone call and had mentioned she was going to see her doctor.
[56] He told Ms Newman that he would call her on Thursday, as the next day was a Public Holiday, to check how she was.
[57] Mr Hadwen's evidence is that he called Ms Newman on Thursday, 26 April 2012, around lunchtime to see how she was. He said she seemed upset but not as upset as the previous time they had spoken; but that her entire tone had changed and it was clear to him that she had no intention of returning to work.
[58] Mr Hadwen recalled Ms Newman had told him she was regretful about what had happened and that she was sorry and that she wanted to move on with her life.
[59] Mr Hadwen confirmed Ms Newman subsequently lodged an unfair dismissal application. A telephone conference was initially set down around 25 May 2012, but was subsequently changed to 8 June 2012.
The Medical Evidence
[60] Dr Shea gave evidence he issued a standard medical certificate for Ms Newman on 24 April 2012. Although the medical certificate did not include reference to any particular medical condition and although Dr Shea had a very limited, if any, recollection of his appointment with the Appellant, he recorded the following notes:
"Surgery consultation recorded by Dr Antony Shea on 24/4/2012
Conflict and stress at work causing unwell
Frustrated and (sic) treatment and lack of support
Chronic cough - needs CXR
Needs break looking to work elsewhere
Will discuss with Boss ?needs to be under workcoverDiagnosis:
Urti
Reason for visit:
Urti".
[61] Two days later Dr Shea made the following notes for a follow-up appointment:
"Surgery consultation recorded by Dr Antony Shea on 26/4/2012
CXR today
No report yet
? congested hilar
Will wait for report
Due for diabetes bloodsNot working at previous employment now
Reason for Visit:
Cough".
[62] Ms Newman was involved in an additional number of surgery and telephone consultations with various GP's on 27 April, 30 April, 2 May, 8 May and 10 May 2012 in relation to her diet and a dental health issue, however it was not until she attended an appointment with Dr Shea on 25 May 2012 almost a month after she had resigned from her employment at Hadwens that the patient records include any further reference to work matters, with the entry for 24 May 2012 noting the following:
"Surgery consultation recorded by Dr Antony Shea on 24 May 2012
Work related stress
Has applied for unfair dismissal
Med cert for work and centrelink completed
Will trial endep for work".
[63] Ms Newman attended another consultation with Dr Shea on 6 June 2012 but it was not until 14 June 2012, that Dr Shea prepared a formal workers' compensation certificate.
[64] Dr Shea's evidence was he prepared the certificate on 14 June 2012 on the basis that the "issue wasn't being resolved or addressed at work". The identified stressors on the certificate referred to "stress due to lack of support and treatment of junior staff". (T1, P51).
[65] Under cross-examination Dr Shea conceded there was no direct reference to symptoms associated with workplace related stress or depression in his patient notes for Ms Newman after 24 April 2012 until 14 June 2012 where his patient notes recorded:
"Surgery consultation recorded by Dr Anthony Shea on 14 June 2014
Workcover cert completed
Unfair Dismissal
Counselled
Not coping with issues at home associated with the stressReason for visit:
Depression
Actions:
Letter printed
Letter written re. Qld Workers' Compensation Certificate".
[66] Dr Shea, after referring to Ms Newman's patient records, confirmed she had experienced bouts of depression over the years she had visited the Moreton Medical Centre. The patient summary notes included reference to attendance at the surgery for the treatment for depression, including the preparation of anti-depressant prescriptions on 3 February 2005, 10 February 2005, 14 April 2005, 7 July 2005, 4 August, 2005, 24 January 2006, 9 February 2006, 23 March 2006, 11 April 2006 and 13 December 2007. The patient summary indicates Dr Shea ceased writing prescriptions for the anti-depressant Lexapro in February 2008.
Dr Karen Chau - Psychiatrist
[67] Dr Chau examined Ms Newman on 23 April 2013 after which she diagnosed the Appellant with:
Generalised anxiety Disorder
Major Depressive Disorder
Pathological Gambling
Adjustment Disorder with Anxiety
[68] In her report of 23 April 2013 (Exhibit 6), Dr Chau noted Ms Newman had reported:
there had been increasing tension with a junior receptionist, Michelle, who
had been working with for two years; she had found out Ms Ricketts had not been doing her job (taking the mail)
and they had an altercation about whose role it was; Ms Ricketts swore at Ms Newman during the altercation;
recalled how Ms Ricketts leaned over her saying "are you calling me a f--- ing liar?" and that "I really thought she would hit me. She was invading my space";
she felt betrayed by the employer as there were no ramifications for Ms
Ricketts' behaviour;
that worrying had been a problem "all my life" but it was particularly
aggravated since 24 April 2012;
that she felt hopeless about her future; that she was currently appealing a rejected WorkCover claim for these
injuries and felt "it was another sense of betrayal";
she worried about one son who had mental health issues and "was bullied at
school and never got over it"; was concerned about her future employment which was now uncertain; she had financial concerns as she was currently exhausting her inheritance
and had developed a gambling problem;
denied ever being on antidepressant medications prior to Lexapro; her son had depression and substance addictions and "he was a drug addict, now he's an alcoholic" and had reportedly been admitted to a psychiatric unit; felt her employer had taken her for granted; was still grieving, to some extent, for her mother who died two years ago;
and was a perfectionist and was sensitive to others opinions of her.
[69] Dr Chau opined Ms Newman had a pre-existing generalised anxiety disorder which was of milder severity prior to 24 April 2012, but had developed initial adjustment disorder with anxiety, pathological gambling and aggravation of generalised anxiety disorder as a direct result of the altercation with Ms Ricketts.
[70] This opinion was, in part, predicated on the history provided by Ms Newman including her reference to feeling physically threatened and trapped in the room on the day of the mail altercation with Ms Ricketts.
[71] Under cross-examination Dr Chau conceded the psychiatric problems Ms Newman was experiencing with her children would have had an impact on Ms Newman, agreeing these problems had arisen both before and after 24 April 2012.
Considerations and Findings
Is the injury one arising out of, or in the course of employment and is Ms Newman's
employment a significant contributing factor to the injury?[72] Given the evidence of Dr Karen Chau, I have concluded the Appellant sustained a personal psychological injury which was diagnosed as Generalised Anxiety Disorder, Major Depressive Disorder, Pathological Gambling and Adjustment Disorder with Anxiety on 23 April 2013.
[73] In this appeal, Ms Newman is required to prove on the balance of probabilities that
her psychological injury arose out of, or in the course of her employment as a
bookkeeper/receptionist at Hadwens. This denotes a causal or consequential
relationship between the employment and the injury but it does not require a
1
proximate relationship (see Lackey v Workcover Queensland ). [74] More specifically, in this matter, the Commission is also required to consider the question of whether the distress associated with the psychological injury Ms Newman says she was suffering when she made her application for compensation in June 2012 is causally related to the workplace incident which occurred on 24 April 2012. And, if so, was the 24 April 2012 incident a significant contributing factor to the psychological injury.
[75] Mr Clark, Counsel for the Respondent submitted the history as reported by the Appellant and relied upon by the psychiatrist is not made out in the evidence and in particular, Ms Newman's evidence that Ms Ricketts was very intimidating and that she felt "physically threatened" by Ms Ricketts cannot be established.
[76] Further, that the Appellant has not discharged her onus of establishing that she has suffered a work related injury.
[77] Notwithstanding the medical certificate issued by Dr Shea on 24 April 2012 did not include a DSM-IV diagnosis, Mr Morris for the Appellant argued the expert opinion confirms Ms Newman was in fact suffering a recognised psychiatric condition on 24 April 2012 as a result of the altercation.
[78] The Appellant also contends the occurrence of management action after the onset of the injury is irrelevant to assessing whether or not the injury is exempt pursuant to s 32(5).
[79] There is no contest that an altercation occurred between Ms Newman and Ms Ricketts on 24 April 2012 in relation to who was responsible for posting the mail.
[80] After considering the materials before the Commission, including both Ms Newman's and Ms Ricketts evidence, as well as Mr Iland's account of what he observed, I am not convinced however, that the incident was as extreme as that described by the Appellant or that Ms Ricketts' behaviour during the brief argument was as physically aggressive as that depicted by Ms Newman.
[81] Ms Ricketts conceded she did call Ms Newman a liar during the course of the argument and that things became heated between both ladies for a brief period, however I accept Ms Ricketts more than likely moved away from Ms Newman into the back office as soon as the altercation ended and did not physically stand over Ms Newman.
[82] In part, this evidence is supported by a straightforward and believing witness account by Mr Iland who saw Ms Ricketts initially sitting down when speaking with Ms Newman and then later pushing her chair into her desk and moving out towards the back office.
[83] It is clear Ms Newman was angry and frustrated Ms Ricketts had pushed back with respect to who was going to be responsible for posting the mail, but I am not convinced she felt physically threatened or intimidated by Ms Ricketts.
[84] If anything, the evidence supports the view Ms Newman was a relatively confident and at times forceful employee who became quite indignant and frustrated when the younger, less experienced Ms Ricketts asserted herself in the workplace.
[85] Ms Ricketts, Mr Iland and Mr Hadwen all consistently stated that whilst they got along with Ms Newman, it was not uncommon for her to talk over the top of them and others during meetings and interactions with customers.
[86] In my view, Mr Iland's evidence, particularly in relation to the Appellant's subsequent comments to him after the altercation in relation to her not copping "that
sort of behaviour from someone younger", in part, highlights Ms Newman’s
frustration or annoyance rather than distress.
[87] It appears that after the initial argument with Ms Ricketts, Ms Newman has made a hasty and perhaps premature decision to resign from her employment on the same day. This decision extended to paying herself her outstanding statutory entitlements as well as her outstanding sick leave accrual without approval.
[88] I accept Mr Hadwen's evidence that Ms Newman's payment of outstanding sick leave entitlements to herself was not a normal practice within his business. His evidence was clear and consistent in this regard.
[89] Following the decision to resign and the payment of various entitlements to herself, Ms Newman visited her GP where she was provided with a general sick leave certificate which contained no description of the medical condition for which the certificate was issued.
[90] Whilst Ms Newman's medical records reveal a period of depression from February 2005 until mid-2008, the same records indicate her medication ceased in 2008 and there are no further records referencing depression until 14 June 2012, nearly three weeks after her decision to resign and on or around the same time Ms Newman had filed and was dealing with an unfair dismissal application with her previous
employer, Hadwens. [91] The Appellant has submitted Ms Newman decompensated immediately following the incident and sought medical assistance from her GP on the same day who certified her as being distressed and not in any fit state for work.
[92] I have some difficulties accepting this submission, particularly given Ms Newman actually remained in the workplace until around midday - long enough to prepare the weekly accounts and payroll run which included paying out her entitlements and sick leave.
[93] On her way home, Ms Newman received a call from Mr Hadwen checking to see how she was. It was after this call that Ms Newman visited her GP, Dr Anthony Shea.
[94] Whilst Dr Anthony Shea was unable to recall the specific details of his consultation on 24 April 2012, his notes suggest the main purpose of Ms Newman's visit as "Urti" (Upper respiratory tract infection).
[95] It is clear that during the same consultation Ms Newman highlighted her concerns and frustration about work including its associated stress and the lack of support, however there was no direct reference to, or diagnosis of, depression in the medical notes or the certificate.
[96] In his oral evidence, Dr Shea suggested the main reason for the preparation of Ms Newman's medical certificate was for depression; however he had virtually no recall of his actual consultation with Ms Newman on 24 April 2012 and acknowledged as much.
[97] When Mr Hadwen called Ms Newman on Thursday, 26 April 2012, around lunchtime to see how she was, his evidence was she seemed upset but not as upset as the previous time they had spoken; but that her entire tone had changed and it was clear to him that she had no intention of returning to work.
[98] Mr Hadwen recalled Ms Newman had told him she was regretful about what had happened and that she was sorry and that she wanted to move on with her life.
[99] It was not until 14 June 2012, three weeks after Ms Newman had resigned her employment and filed an unfair dismissal application that any formal reference to depression was included in her patient notes by Dr Shea.
[100] In the surgery consultation records for 14 June 2012, Dr Shea has included the note, "not coping with issues at home associated with the stress".
[101] A prior consultation with Dr Shea on 24 May 2012 referred to the filing of an unfair dismissal and "workplace stress".
[102] Significantly, between 24 April 2012 and 14 June 2012, Ms Newman attended four face to face surgery consultations and two telephone consultations on unrelated health matters. The medical records for these consultations do not include any reference to depression or a psychological condition.
[103] Based on the evidence and materials before the Commission, I am unable to find on the balance of probabilities that as a consequence of that confrontation on 24 April 2012, the Appellant decompensated and suffered an injury.
[104] Dr Chau's opinion, approximately one year after the workplace argument, was that Ms Newman developed her psychological injury as a direct result of an altercation with Ms Ricketts.
[105] This opinion was developed based on Ms Newman's account to Dr Chau of her interaction with Ms Ricketts on 24 April 2012 where Ms Newman reported that she thought she would be hit, that she felt trapped and that Ms Ricketts "had invaded her personal space when she was yelling at her and towering over her".
[106] The difficulty I have with this opinion is the evidence before the Commission does not support Ms Newman's account to Dr Chau of how her interaction with Ms Ricketts unfolded on the morning of 24 April 2012, particularly in relation to the alleged intensity of Ms Ricketts' intimidation of Ms Newman.
[107] The other difficulty I have is that certain aspects of Ms Newman's evidence during the course of the hearing contained inconsistencies and at times was not entirely believable. At one point in the proceedings Ms Newman advised that despite being prescribed with anti-depressants in one form or another for more than three years she was not actually aware that this was the type of medication she was taking. The Appellant's evidence was also unclear in other areas such as when and how she resigned and her recall about the payment of entitlements to herself on the same day.
[108] There is no doubt both ladies were involved in an argument, but the evidence supports a finding that Ms Newman's account to Dr Chau of Ms Ricketts' conduct during the argument is inaccurate and exaggerated.
[109] Whilst the altercation may well have preceded Ms Newman's decision to depart early from the workplace on 24 April 2012, there is insufficient evidence before the Commission to indicate it resulted in "the start of an adjustment disorder" on the same day.
[110] Further, whilst it is clear Ms Newman developed a psychological injury after her subsequent decision to resign from the workplace, I am not persuaded on the balance of probabilities that her employment was a significant contributing factor to the injury.
[111] The question of determining to what extent, if any, the altercation of 24 April 2012 is a significant contributing factor to Ms Newman's psychological injury becomes even more challenging when having regard to other factors such as Ms Newman's decision to file an unfair dismissal after her resignation, references to stress at home, the death of her mother, her family psychiatric history and the difficulties she was experiencing with her children at the time.
[112] A review of records and notes retained by Dr Shea and Dr Chau reveal a combination of factors including the subsequent filing of the unfair dismissal, the stress associated with this process and ongoing concerns about the WorkCover claim process have more than likely contributed to her injury.
Is the injury removed from the definition of injury by virtue of section 32(5) of the
Act?[113] Even if my finding that Ms Newman's employment was not a significant contributing factor to the psychological injury is incorrect, I am satisfied the injury is removed from the definition of injury by virtue of the operation of s 32(5)(a) of the Act.
[114] Whilst I agree with the Appellant's submissions that the mere occurrence of
reasonable management action does not necessarily insulate a disorder from
2
characterisation as an "injury", the Commission's role is to embark upon an enquiry as to whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.
3
| [115] As Martin J recently stated | : |
"The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was taken in a reasonable way. Sometimes that may involve considerations of what else might have been done but that will only be relevant to whether what was done, was, in fact reasonable."
[116] The Appellant submitted the incident that occurred is not in any way touched by reasonable management action and agrees that "whatever 'lack of support' there may have been prior to the interchange on 24 April 2012 can have no relevance other
than background…".
[117] The Respondent pointed to Ms Newman's claim form (Exhibit 1) asserting "no support and junior verbally abusive and physically threatening" (D1, P35); and the clinical record of Dr Shea of 24 April noting "frustrated and (sic) treatment and lack of support" (Exhibit 8 and D1, P28) in support of its submission these management issues were a relevant stressor.
[118] Mr Clark, Counsel for the Regulator argued it was the alleged "lack of support" after the interchange which is relevant to consider.
[119] The Respondent further submitted the evidence, in the context of reasonable management action, supports the position that the Appellant had an expectation that Mr Hadwen would take steps or action in regards to Ms Ricketts' employment given her claims that "she could no longer work with Michelle if she was there" and that when this expectation did not eventuate the Appellant perceived this action or lack of action by the employer as a "lack of support".
[120] There is no contest that after being advised about the altercation, Mr Hadwen, having returned from a surgery, took the time to call Ms Newman from his bed to see how she was. Mr Hadwen's evidence was that Ms Newman was upset at the time of the call, and they agreed to speak on the day after the public holiday.
[121] As arranged, Mr Hadwen contacted Ms Newman on the Thursday, however his evidence is that it was clear she had made up her mind to no longer work at Hadwens.
[122] After considering all the evidence and the material before the Commission I am satisfied that Mr Hadwen did make attempts to contact Ms Newman after the argument. In fact, notwithstanding he was unwell he took the time to call her from his sick bed.
[123] He then arranged to contact her again on the next working day, at which time it became clear she no longer wished to work at Hadwens. The patient records retained by Dr Shea for Ms Newman and in particular, the inclusion of his note "needs break looking to work elsewhere" are consistent with the view that Ms Newman had most likely already made a decision to leave her employment at Hadwens by the time Mr Hadwen contacted her on Thursday.
[124] In these circumstances I am satisfied Mr Hadwen's actions and conduct were reasonable and undertaken in a reasonable way.
[125] For all of the foregoing reasons the appeal is dismissed and the decision of the Regulator is confirmed.
[126] The Appellant is to pay the costs of the Regulator. In the event agreement cannot be reached by the parties the Regulator has liberty to apply.
[127] The Commission orders accordingly.
1
(2000) 65 QGIG 22
2
Davis v Blackwood (2014) ICQ 009 at (51) and Q-COMP v Hohn (2008) 187 QGIG 139
3
Davis v Blackwood (2014) ICQ 009 at (47)