Simonsen v Simon Blackwood (Workers' Compensation Regulator)
[2015] ICQ 30
•27 October 2015
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Simonsen v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 030
PARTIES:
CLYDE SIMONSEN
(appellant)
vSIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)
(respondent)CASE NO/S:
C/2015/17
PROCEEDING:
Appeal
DELIVERED ON:
27 October 2015
HEARING DATE:
19 June 2015
MEMBER:
Martin J, President
ORDER/S:
Appeal dismissed.
CATCHWORDS:
WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant broke his arm at his workplace – where, on his return to work, he was offered a contract with reduced duties – where the appellant asserted that he had suffered a psychological injury as a result of his broken arm and the way in which his employer had treated him – whether the Commission erred in finding that there had been no submissions about the physical injury being related to the psychological injury – whether the Commission erred in finding that the appellant’s psychological injury arose out of reasonable management actions taken in a reasonable way
Workers’ Compensation and Rehabilitation Act 2003, s 32
CASES:
Lackey v WorkCover Queensland (2000) 165 QGIG 22
APPEARANCES:
S McLennan instructed by Beckey, Knight & Elliott on behalf of the appellant
D Callaghan directly instructed by the respondent
Mr Simonsen, the appellant, commenced work with John Martin & Co in November 2008. He was then 56 years old. He had worked at a sugar mill for the preceding 34 years. In August 2009, while at work, he fell and broke his left humerus and went onto workers’ compensation benefits. He returned to reduced duties in November 2009 and to full duties in January 2010.
In a claim made in April 2012, he asserted that he had suffered a psychological injury as a result of the way in which his employer had treated him, after his arm injury, between October 2009 and February 2012.
His application for workers’ compensation on the basis of the 2012 claim was rejected and he appealed to the Commission. That appeal, in turn, was dismissed. He has now appealed to this court on the following grounds:
(a)“The Deputy President erred in concluding that it was not submitted by the appellant that the psychological/psychiatric injury was a sequaelae (sic) to the appellant’s physical injury;
(b)The Deputy President erred in concluding that the appellant’s psychological/psychiatric injury diagnosed on 21 October 2009 arose out of reasonable management action taken in a reasonable way pursuant to s 32(5) or the appellant’s perception of reasonable management action taken in a reasonable way; and
(c)The Deputy President erred in finding in relation to stressors 5, 9 and 10 that they arose out of reasonable management action taken in a reasonable way pursuant to s 32(5) or the appellant’s perception of reasonable management action taken in a reasonable way.”
The third ground was not pursued.
The legislation
At the relevant time, s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) relevantly provided:
“(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b)the worker’s expectation or perception of reasonable management action being taken against the worker;
(c)action by the Authority or an insurer in connection with the worker’s application for compensation.
…”
Ground 1 - “The Deputy President erred in concluding that it was not submitted by the appellant that the psychological/psychiatric injury was a sequaelae (sic) to the appellant’s physical injury”
The finding complained of is at [103] of the Deputy President’s reasons[1]:
“Although Mr Simonsen's Statement of Stressors includes reference to breaking his arm after a fall at work on 6 August 2009 and remaining off work until January 2010, there is nothing in his submissions (with the possible exception of paragraph 61*) to suggest it is being argued that his psychiatric or psychological condition arose out of this injury. Rather, the submission is to the effect that Mr Simonsen's injury is directly related to his employer's conduct towards him during both his recovery from injury and the subsequent return to work (see paragraphs 1, 58, 100 and 101). (*The submission at paragraph 61 is a response to submissions by the Regulator and appears to have been made as a reason why the Regulator's argument should be rejected rather than in support of any argument to the effect that Mr Simonsen's Appeal should be allowed because his psychological/psychiatric condition developed (wholly or partially) as a sequalae (sic) to his physical injury.)”
[1] [2015] QIRC 060.
The submissions for the appellant (and the Regulator) in the Commission were entirely in writing.
Paragraph 61 of the appellant’s submissions in the Commission was contained in a section headed: “Causation”. Paragraph 61 needs to be read in conjunction with the paragraph which preceded it:
“60.At paragraph 65 [of the Regulator’s submissions], the respondent has attempted to attribute Mr Simonsen’s diagnosis as being caused by the following pre-21 October 2009 stressors:
(i)The diagnosis of Mr Simonsen’s step-son with a kidney condition;
(ii)The death of Mr Simonsen’s sister in law;
(iii)Leaving his previous employment at Pleystowe Mill and the challenge of the transition to new employment at John Martin & Co;
(iv)Frustration and distress because he could not do things at home;
(v)Worry about whether he would be capable of going back to work due to his injury; and
(vi)Pain and difficulty sleeping due to his arm.
61.The stressors at (iv), (v) and (vi) can be readily disposed of as they all arise as a direct consequence of the fracture of the arm - an injury which clearly arose out of Mr Simonsen’s employment. Section 32 (5) has no applicability. Lackey v WorkCover Queensland[2] is authority for the proposition that where an employee’s psychological injury will be within the ambit of s 32 (1) where it arises as a sequelae to physical injury which was also in the ambit of s 32 (1).”
[2] (2000) 165 QGIG 22.
The appellant submits that the statement in [103] of the Deputy President’s reasons (that there was nothing in the submissions to suggest that it was being argued that his psychiatric or psychological condition arose out of the breaking of his arm) overlooks the contents of [64] of the appellant’s submissions in the Commission:
“64.There was general consensus amongst all of the medical experts that it was the meeting regarding the new employment contract in combination with the fractured arm that were the significant contributing factors to Mr Simonsen’s adjustment disorder with depressive and anxiety features as diagnosed on 21 October 2009. Dr Prinsloo’s evidence was:
‘Is it fair to say that at that time your clinical impression was that pain was a major component of Mr Simonsen’s mental state? --- Yes, but what tipped the balance was how he felt his employer dealt with him that week.’
Dr Futter’s evidence was:
‘He had been working from November 2008 to August 2009 and the fractured humerus was the thing that toppled him together with what we have just mentioned regarding the new contract.”
Dr Karunakaran accepted that the new employment contract meeting would ‘very likely’ have been a significant contributing factor. Dr Plumb thought that the meeting ‘would have been very distressing for him and - and possibly could have contributed to that’.”
Thus, the appellant submits that, in the written argument advanced to the Commission, he did attribute the physical injury as being a significant contributing factor. In support of that argument, the appellant also refers to the reliance on the decision in Lackey and asks the rhetorical question: why would that authority be referred to unless reliance was being placed on the physical injury?
The respondent appears to accept that the appellant did make submissions about the causal relationship between physical injury and psychological injury. In [27] of the Regulator’s submissions the following appears:
“27.Although it may not be correct to say that the appellant made no submissions about his physical injury being related to the psychological injury, it is correct to say that at no time before, during or after the hearing was it the appellant’s basis of claim or appeal that his psychological/psychiatric injury was a sequelae (sic) of his physical injury.”
It can be accepted that the Deputy President erred when he stated that there had been no submissions about the physical injury being related to the psychological injury. That may well have occurred because, until the written submissions for the appellant were provided (in which there is but one brief reference), it was by no means clear that the appellant was going to rely upon the physical injury in the way in which he now relies. Before the hearing in the Commission, it had not been part of the appellant’s case that the fracture itself or its after-effects was a stressor. The manner in which the case before the Commission was conducted was entirely consistent with an absence of reliance upon the physical injury. So much can be gleaned from the opening of Mr Simonsen’s case and the evidence which he gave.
While it may be accepted that the Deputy President did overlook the argument contained in [64] of the appellant’s written submissions, the issue to be determined now is the consequence of that oversight. This is not an aspect of the case which need be returned to the Commission for further consideration. The evidence on this point is of relatively small compass and does not rely on questions of credit.
The evidence relied upon by the appellant under this heading, consists of the comment by Dr Prinsloo and the opinion of Dr Futter. Dr Prinsloo was Mr Simonsen’s treating general practitioner. She was asked questions about the extent of the pain he had been suffering as a result of the fracture. Her evidence consisted, in the main, of her history of treatment of Mr Simonsen. She was not called to give expert evidence. The excerpt of her evidence set out in [64] of the appellant’s submissions in the Commission does not give a complete picture of her evidence. In the question subsequent to the one referred to in the appellant’s submissions, she was asked:
“Okay? – – – Previously, we coped without the need for antidepressants. We just treated the pain well, made sure he had a good night’s sleep and he was able to cope with that.”
That evidence, together with answers given earlier, suggests that the pain from the fracture would not have, by itself, resulted in the psychiatric/psychological condition complained of. Indeed, it appears that Mr Simonsen was coping with the pain through the assistance of his doctor. If it was the actions of the employer which “tipped the balance”, then, on that evidence, the appellant would not have established that employment was a “significant contributing factor” if s 32(5) of the Act applied to the actions of the employer. That matter will be considered later in these reasons.
The other evidence relied upon came from Dr Futter. He was called as an expert witness and had provided a report. In cross-examination, he was asked:
“When you saw Mr Simonsen, on the evidence that – on the information that you were provided, not only through other reports but through the history of Mr Simonsen and his wife, a significant factor in his depression was the pain and impairment, if you like, of his left arm, wasn’t it? – – – Yes, I’d agree.”
It might seem unusual that such a question would be asked in cross-examination, but the case conducted in the Commission was one in which the focus was on the actions of the employer and not on the effects of the fracture. Thus, it was reasonable for the respondent to seek to demonstrate that something else caused the psychiatric/psychological problem in the absence of reliance on the pain. It is only now, when the appellant looks for support in the evidence, that he seeks to enlarge upon evidence which was adduced when the focus of the case was different.
Dr Futter’s opinion was based upon the reports of other medical practitioners and his examination of Mr Simonsen. He was asked to complete a psychiatric report and not, it seems, to venture an opinion about the cause of Mr Simonsen’s condition. In the brief discussion of Mr Simonsen’s condition contained in Dr Futter’s report there is no reference to what might have caused Mr Simonsen’s depression. He refers to returning to work while his left arm was still painful and the account by Mr Simonsen that his employer was critical of the quality of his work.
On this point, the most significant aspect of Dr Futter’s opinion is that he was not aware, and therefore could not take account of, the other matters which might have contributed to the appellant’s condition. Dr Futter had not been told anything about the offer of a new contract to the appellant nor was he told about the matters which made up nine of the 10 stressors. He was, during his examination and cross-examination, alerted to the existence of some of the stressors such as the offer of a new contract. He accepted, in an answer to a question from the Deputy President, that he had not known about the contract until the day he was giving evidence. In other words, the opinion which he expressed when giving evidence was one which he arrived at, not as the result of an examination of the appellant, but on the basis of matters put to him by counsel.
There is a clear distinction between the opinion expressed by Dr Futter and that of Dr Karunakaran. Dr Futter’s original opinion was formed on the basis of an incomplete understanding of the circumstances of the appellant’s employment. I do not mean to criticise Dr Futter for that: he was not provided with the relevant information. As a result, the opinion relied upon by the appellant was one which emerged during evidence. On the other hand, Dr Karunakaran does appear to have been provided with all the necessary information in order to form his opinion. In his opinion, he said:
“Mr Simonsen’s diagnosis of ‘adjustment disorder with depression and anxiety’ is indeed work related. Mr Simonsen adapted poorly to the new job and its requirements. He had difficulty in adapting to the new environment, particularly working with computers. It is unclear whether any practical supports or work-related training was provided. Mr Simonsen’s injury happened on this background. Mr Simonsen felt unwelcome following his return to work. He also felt that management was planning to terminate his job and were looking for his ‘mistakes’.…
The mere prospect of going back to work on a Monday morning makes Mr Simonsen extremely anxious. In summary, it can be stated that the workplace has become an extremely anxiety provoking and threatening environment for Mr Simonsen.
It is important to note that his anxiety and depression is not a direct consequence of his fall. Problems were there prior to the fall but became magnified after his return from convalescence.
…
It is quite clear that Mr Simonsen has difficulties in adapting to his work requirements. Therefore he is likely to experience continued stress and anxiety at his workplace as long as he feels inadequate. This has nothing to do with his physical injury. His psychiatric symptoms are likely to resolve quickly if he resigns from his job and seek (sic) alternative vocation. His prognosis is guarded if he is to continue in his present job.” (Emphasis added)
In cross-examination he was asked:
“At page 6 of your report, under the heading “Prognosis” you’ve written that, “Mr Simonsen is likely to experience continued stress and anxiety at his workplace as long as he feels inadequate. This has nothing to do with his physical injury.”? – – – Yes.
Can you just explain why it is your opinion that it had nothing to do with his physical injury? – – – Because at that point when I questioned Mr Simonsen more it was more his apprehension about the management’s intention and in some ways his ability to cope with the altered work arrangements, particularly computers and other kinds of systems. That was dominating in his mind, not his physical inability. I did question him about it and he confirmed that.”
The report from, and the oral evidence of, Dr Karunakaran provides strong support for the conclusion that the physical injury to the appellant did not play a part in his psychiatric problems. In the circumstances referred to above, that evidence is more persuasive than the evidence from the other doctor. Notwithstanding that an error has been demonstrated in the reasoning of the Deputy President, the argument advanced in this court does not establish that the evidence supported the finding which was sought by the appellant.
Ground 2 – “The Deputy President erred in concluding that the appellant’s psychological/psychiatric injury diagnosed on 21 October 2009 arose out of reasonable management action taken in a reasonable way pursuant to s 32(5) or the appellant’s perception of reasonable management action taken in a reasonable way.”
This ground was described by the appellant as relating to meetings held with the appellant while he was “incapacitated”, in which his work performance was criticised and in which he was offered a new employment contract which substantially reduced his salary package.
The Deputy President made the following findings about the appellant and the circumstances of the meeting:
“[120] In any event, the following matters were clearly established by the evidence:
·Mr Simonsen was an unsophisticated gentleman who had difficulty understanding and interpreting information and matters raised with him;
·he was not a particularly good communicator and it was difficult to engage with him or get him to respond to questions (not only was this my observation it was also the evidence of Ms Sharp and Dr Prinsloo);
·he found the transition from the sugar Mill to his new employment, involving use of a computer, difficult and challenging;
·by mid-October 2009 he had been in considerable pain and sleep deprived as a result of that pain since early August 2009;
·he was lying awake at night thinking about work and mistakes he might or might not have made on the computer;
·Ms Sharp had been undertaking a substantial part of his duties during his absence;
·she had noticed many mistakes that he had made prior to breaking his arm;
·she was in discussions with Mr Ellis about a return to work plan for Mr Simonsen, during the course of which she developed a proposal that he work in a less onerous position at Auto Sparks involving hours of work and a salary to be agreed;
·during the course of at least one, possibly two, meetings with Mr Simonsen between 5 October and 16 October 2009 she canvassed a return to work program which would entail him working at Mackay Harbour;
·during the meeting(s) she informed Mr Simonsen that he had been making too many mistakes on the computer and he was lacking in computer skills;
·at this meeting, or another meeting at around that time, she tabled, for discussion, the new Contract of Employment;
·this Contract canvassed a less stressful role, less hours (7:30 am to 3:30 pm instead of 7:30 am until 5:00 pm or as required), a reduced salary (based on the less senior position and less hours), return of his fuel card and a one month probationary period;
·the significance of the inclusion of the one month probationary period was not appreciated by Ms Sharp in that her evidence was to the effect that a probationary period is to allow an employee, and their employer, to decide whether each of them is comfortable with the arrangement; and
·the Contract was not tabled on a "take-it or leave-it basis" - it was to facilitate a discussion with Mr Simonsen about his capacities and future intentions.”
The appellant does not appear to quarrel with those findings. What is said, though, is that the Deputy President erred in ignoring “the interplay between the appellant’s ability to understand the purpose of the meeting and his physical and mental condition at the time of the meeting”. It was submitted that Mr Simonsen did not understand that the new contract of employment was merely being tabled for discussion. The appellant argues that there was a misunderstanding and that the timing of the meeting must have contributed to the misunderstanding.
In [123] of his reasons, the Deputy President said that he had come to the conclusion that “the vast majority of the concerns identified by Mr Simonsen were his interpretation of either the events or issues which might have been conveyed to him, rather than the reality”. This misunderstanding by the Appellant became obvious when consideration was given to his version of events. For example, he regarded Ms Sharp’s comment to the effect that she had a business to run as implying that he was holding her business back. He took the view that Ms Sharp wanted to end his employment with the company. As the Deputy President found, Ms Sharp was concerned about Mr Simonsen’s welfare. She was attempting to obtain some form of counselling and trying to identify a role for him which would not put further stress on him or aggravate his physical condition.
The Deputy President’s conclusion on this point is contained in the following paragraph:
“[125] In the end result I have come to the conclusion that the actions of Ms Sharp in engaging in discussion with Mr Simonsen about an alternate role at Auto Sparks, either on a permanent basis or during the course of a return to work program, as well as the manner in which that discussion was conducted, involved reasonable management action taken in a reasonable way. Such conclusion also applies to the various points contained in the new ‘Contract of Employment’ provided to Mr Simonsen. The proposal was to facilitate a discussion. It was not presented as a fait accompli and no pressure was applied to Mr Simonsen to sign it. Indeed, on his evidence, he made it clear to Ms Sharp during the course of the meeting in which the document was handed to him that he did not intend to sign it. Not surprisingly, Ms Sharp would have understood from his response that she did not need to provide any further comment or clarification about the proposal to Mr Simonsen. He had emphatically rejected it. There was nothing more to discuss.”
The criticism mounted by the appellant against the Deputy President’s conclusion is little more than an argument that there was other evidence which might have supported a different conclusion or that a different conclusion could be drawn from the evidence accepted by the Deputy President. The appellant has not demonstrated that there was insufficient or no evidence to support the finding of the Deputy President; rather, all that has been put is that a different conclusion might have been drawn on the facts as found. No appellable error has been demonstrated.
Conclusion
The appellant has not made out a ground of appeal. The appeal is dismissed.
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