State of Queensland (Department of Transport and Main Roads) v Workers' Compensation Regulator
[2017] QIRC 54
•5 June 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | State of Queensland (Department of Transport and Main Roads) v Workers' Compensation Regulator [2017] QIRC 054 |
PARTIES: | State of Queensland (Department of Transport and Main Roads) v Workers' Compensation Regulator |
CASE NO: | WC/2016/162 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 5 June 2017 |
HEARING DATES: | 22 and 23 May 2017 |
HEARD AT: | Brisbane |
MEMBER: | Vice President Linnane |
ORDER: | 1. I set aside the decision of the Workers' Compensation Regulator outlined in correspondence dated 19 August 2016 to confirm the decision of WorkCover to accept Ms Teasdale's application for compensation; 2. I substitute that decision with a decision that Ms Teasdale applications for workers' compensation whether that be orally on 8 March 2016 or in writing on 11 March 2016, not be accepted; 3. The Workers' Compensation Regulator is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – whether the worker suffered an injury within the meaning of the Act – Appeal upheld. |
| CASES: | Workers' Compensation & Rehabilitation Act 2003, s 32. s 108, s 144A. s 144B Rossmuller v Q-COMP (C2009/36) – Decision [2] |
| APPEARANCES: | Dr M. Spry, Counsel, instructed by Crown Law, for the Appellant. |
Decision
The State of Queensland (Department of Transport and Main Roads) (Department) filed a Notice of Appeal in this matter on 13 September 2016. The appeal is against a decision of the Workers' Compensation Regulator (Regulator) dated 19 August 2016 to confirm a decision of WorkCover Queensland (WorkCover) to accept an application for compensation from Ms Jennifer Teasdale (an employee of the Department at the relevant time).
Ms Teasdale had lodged an oral application for compensation with WorkCover on 8 March 2016 claiming a psychological injury allegedly sustained at work on 4 March 2016. Ms Teasdale filed a formal application for compensation on 11 March 2016 in which she claimed she suffered an injury of stress and anxiety on 4 March 2016 at approximately 9.30am when a staff member physically intimidated her in front of staff and a customer. Ms Teasdale was employed as a Principal Customer Service Officer (AO3 Classification) at the Department's Burleigh Waters Customer Service Centre (Centre) at this time.
WorkCover accepted Ms Teasdale's application for compensation in correspondence dated 23 May 2016 relying upon s 32(3), s 32(4) and s 108(2) of the Workers' Compensation and Rehabilitation Act 2003 (Act). In its decision WorkCover noted that it had obtained further medical evidence which suggested that the event was only a temporary aggravation of Ms Teasdale's previous psychological condition and that the symptoms would have ceased shortly thereafter i.e. the following day. Accordingly, WorkCover ceased the claim on 5 March 2016 pursuant to s 144A and s 144B of the Act.
The Department sought review by the Regulator of WorkCover's decision to accept the claim for compensation from Ms Teasdale. In its decision dated 19 August 2016 the Regulator confirmed the decision of WorkCover to accept Ms Teasdale's application for compensation in accordance with s 32 of the Act. It is against this decision that the Department now appeals.
Relevant Legislative Provisions
The evidence in this proceeding must be assessed by the definition of "injury" in the Act. At the time of injury, s 32 of the Act relevantly provided:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if –
(2)
(a)…
(b)For a psychiatric or psychological disorder – the employment is the major significant contributing factor to the injury.
…"
In this appeal neither party relies upon s 32(5) of the Act.
As the injury to Ms Teasdale is said to have occurred on 4 March 2016 and the claim is in relation to a psychiatric or psychological injury, the Commission has to decide whether Ms Teasdale's employment was "the major significant contributing factor" to her injury. There is no suggestion in the evidence that anything other than her employment (the event on 4 March 2016 at approximately 9.30am) was the cause of Ms Teasdale's injury.
The Appellant has conceded that Ms Teasdale was a "worker" for the purposes of the Act.
This proceeding is conducted as a hearing de novo i.e. it is decided afresh by reference to the evidence before the Commission.
The Department bears the onus of proving, on the balance of probabilities, that Ms Teasdale did not suffer an "injury" within the meaning of the Act[1].
[1] See Rossmuller v Q-COMP (C2009/36) – decision type="1">
In this appeal the Appellant (Department) is an employer who is appealing against a decision of the Regulator to accept a claim for compensation from a worker. Thus the appeal will only succeed if the Department satisfies the Commission that:
· Ms Teasdale did not sustain an "injury" within the meaning of the Act at the relevant time; or
· If Ms Teasdale did sustain an injury which is a psychiatric or psychological disorder, the injury did not arise out of, or in the course of, her employment; or
· the injury to Ms Teasdale was one to which employment was not the major significant contributing factor.
Evidence
The Department relied upon the evidence of the following witnesses:
· Mr Leon Michailidis, (currently a Senior Project Officer with the Department) who at the relevant time was employed as a multi-skilled Driving Examiner at the Department's Centre;
· Ms Tanya Ashley, the Department's Senior Advisor (Service Management) at the Centre; and
· Dr John Chalk, Consulting Psychiatrist.
The Department further relied upon CCTV footage of the alleged incident.
The Regulator relied upon the evidence of the following witnesses:
· Ms Jennifer Teasdale, the claimant for workers' compensation who, at the relevant time, was employed by the Department as a Customer Service Officer at the Centre; and
· Dr Michael Choy, Ms Teasdale's General Medical Practitioner.
Incident on 4 March 2017
Ms Teasdale has identified only one stressor as causing her injury i.e. the incident on 4 March 2016 involving Mr Michailidis. The evidence in relation to this incident was given by:
· Ms Teasdale;
· Mr Michailidis; and
· CCTV footage.
Acceptance or otherwise of Ms Teasdale' account of the incident is crucial to the determination of this matter.
Ms Teasdale's Account of the Incident: Ms Teasdale has given a number of differing accounts of the incident on 4 March 2016 and thus has given different accounts of how her injury occurred. In evidence before the Commission the first of those accounts is her handwritten note of the incident provided to WorkCover (Exhibit 5) with her application for workers' compensation. That account is as follows:
"DE Leon walked past all counters asking for someone to do a pass. I didn't respond as I had just started a new rego transaction and was aware that I would be going to morning tea at 9:40 when I had completed this transaction. As no one took the pass paperwork from Leon he was visibly annoyed and slammed the paperwork down on my scanner saying nothing and stormed off to which I replied 'Eh OK then' Leon proceeded to walk away in a huff.
Feeling quite upset and like I was being stood over by Leon I turned to my customer and asked if he thought that was rude and he replied 'its bloody disgusting'. Nikki then turned to me and said that if I wanted to make a complaint that she would be happy to back me up.
I then advised my SASMs Tanya and Leanne and made a verbal complaint.
Leon's behaviour is not acceptable and especially when he should be role modelling acceptable behaviours as he is a relevant SASM and only Wednesday this week presented a tool box take on 'client aggression'.
On my way back to my desk after morning tea I approached the SASM desk where Tanya and Lee were sitting. I asked Tanya 'should I be reporting the incident with Leon to WH & S Connect' to which Tanya replied she would contact Julieanne and let me know.
Tanya later advised me that the Manager of TMR Burleigh (Julieanne) said that it is not necessary to report it [sic] WH & S Connect unless it happens again.
Tanya Leon and I had a meeting later that day and I explained to Leon that it was not acceptable behavior and he apologised. I then advised Tanya that I was too upset to stay at work and needed to go home. She okayed that and I left work."
In her application for compensation, Ms Teasdale said that the injury she sustained was "stress and anxiety" with the stressor being that a "staff member physically intimidated me in front of staff and my customer". The workers' compensation medical certificate relied upon by Ms Teasdale in her workers' compensation application was one issued by Dr Michael Choy, her General Medical Practitioner, dated 11 March 2016 wherein he diagnosed her as suffering from "acute stress disorder from work place bullying".
Ms Teasdale attended for work on Monday 7 March 2016 following the incident on Friday 4 March 2017. Ms Julieanne Cardow, the Manager of the Department's Burleigh Waters and Currumbin Customer Service Centres, requested of Ms Teasdale, when she arrived for work on the Monday, that she obtain a medical certificate giving her a clearance to return to work.
Ms Teasdale attended Dr Choy on 7 March 2016 and obtained a medical certificate that indicated she was unfit for her normal work on both 4 March 2016 and 7 March 2016. That medical certificate also stated that Ms Teasdale was fit for normal duties on 8 March 2016.
The second account of the incident is that apparently given by Ms Teasdale to Dr Choy on 7 March 2016. This account is contained in Ms Teasdale's Patient Health Summary at the Mermaid Junction Medical Centre (Exhibit 8). On 7 March 2016 Dr Choy records the following:
"Subjective:
ON FRI
GOT ABUSED BY SENIOR STAFF, FOR NO REASON
LODGED A COMPLAINT
GOT TOO UPSET, HAD TO LEAVE WORK THAT PM
STILL UPSET, CRYING
NOW NEED CLEARANCE FOR WORK
Objective:
Tearful++
Anxious+
…
Assessment:
ACUTE STRESS DISORDER."
Ms Teasdale also visited Dr Choy on 11 March 2016. The Patient Health Summary of that day relevantly records the following:
"Subjective:
WORK PLACE HARASSMENT
GOT ABUSED BY SENIOR STAFF
STRESS ++
HAD TO LEAVE WORK
UNABLE TO FACE WORK
SHAKY ++
ANXIOUS WHEN THINKING OF WORK
BETTER TODAY
Objective:
CALMER
Assessment:
ACUTE STRESS DISORDER
COUNSELLING
TR D/W P
Letter Printed.
Letter written re. Qld WorkCover.
Review interval:
Review p.r.n."
It is at this visit that Dr Choy issues Ms Teasdale with the Workers' Compensation Medical Certificate dated 11 March 2016 (Exhibit 9) indicating that he had diagnosed Ms Teasdale as suffering "acute stress disorder from work place bullying". In that Medical Certificate Dr Choy indicated that Ms Teasdale was not capable of any type of work during the period 4 March 2016 to 11 March 2016
In the Regulator's Statement of Facts and Contentions filed on 3 January 2017, the Regulator contends that the conduct of Mr Michailidis was "rude, inappropriate, and intimidating" in terms of his words, tone, and conduct on 4 March 2016 in placing papers at Ms Teasdale's work station. Further, that it was Mr Michailidis' behaviour and conduct towards Ms Teasdale on that day that caused her distress and anxiety.
In her evidence-in-chief Ms Teasdale gave the following account of the incident on 4 March 2016. She was undertaking her usual role on the counter dealing with the public. She was completing a new registration transaction for a customer. She had about five to ten minutes before she had to go on morning tea. Morning tea is quite regimented and her time for morning tea was 9.40am. Ms Teasdale said she was midway through the transaction and engrossed in her customer when:
"… all of a sudden someone slammed some paperwork down on my scanner really quite firmly, gave me the shock of my life. I nearly jumped out of my skin. I was – got quite a fright. I turned around to see that it was Leon, the driving examiner. He'd obviously just come back from a driving test with a learner applicant that had been successful and, obviously, no one – none of the other operators had taken his paperwork to – to issue the drivers licence. Unfortunately, I knew that I couldn't. I didn't know that he was even behind me when it happened because I was planning to go to morning tea straight after I finished with my customer. So – yeah, so I go the fright of my life. I turned to see Leon walking off – storming off. And when I said his name he threw his hand in the air as if to say, well, bugger you, didn't acknowledge me and then walked off."
In that account of the incident Ms Teasdale does not indicate that Mr Michailidis said anything during the incident. After leaving the paperwork Mr Michailidis is alleged to have stormed off throwing his hand in the air.
Throughout her evidence-in-chief Ms Teasdale claimed that she had no idea that Mr Michailidis was near her until after the papers had been slammed on her printer/scanner. Her evidence was that:
· the slamming of the paperwork was quite loud;
· she was embarrassed because it was done in front of her customer;
· she got the shock of her life;
· she became very, very anxious because of the way Mr Michailidis slammed the paperwork down, stormed off and threw his arm up in the air;
· the incident was "quite degrading" as it was in front of customers and staff; and
· she did not see Mr Michailidis at all prior to him slamming the paperwork on her printer/scanner.
Shortly thereafter, Ms Teasdale described the incident to Ms Ashley in the following terms:
"I just basically described what he'd done by slamming the paperwork down on my desk – on my scanner really loudly, giving me the fright, embarrassing me in front of the customer".
Under cross-examination Ms Teasdale was asked again to demonstrate the slamming of the documents down on her printer/scanner by Mr Michailidis. She did exactly what she did in giving her evidence-in-chief i.e. there was quite a loud noise and a slamming motion. Ms Teasdale again confirmed that she did not see Mr Michailidis slam the documents on her scanner/printer.
In her account of the incident to WorkCover, Ms Teasdale had said that she "didn't respond" to Mr Michailidis' request for someone to take the pass. Under cross-examination, she denied hearing him ask other customer service officers to take the pass. When further questioned about this inconsistency in her accounts of the incident, Ms Teasdale stated that she would be quite happy for the Commission to accept the version given to WorkCover as that account was given only a couple of days after the incident and "it was probably more accurate than my version and memory is today".
Further, in her statement to WorkCover she said "[a]s no one took the pass paperwork from Leon he was visibly annoyed and slammed the paperwork down". Yet her evidence was that she had not seen Mr Michailidis until after he had slammed the paperwork down on her printer/scanner. She again denied seeing Mr Michailidis prior to the incident and stated "I did see that he was visibly annoyed when he'd slammed the paperwork down and stormed off". Ms Teasdale's account to WorkCover would suggest that she saw Mr Michailidis both being visibly annoyed and also slamming the paperwork down on her printer/scanner. At one point Ms Teasdale did concede that she must have seen both. However, when it was again put to Ms Teasdale that she had seen Mr Michailidis "slamming the paperwork down" she responded "[n]o I didn't see that".
In cross-examination it was suggested to Ms Teasdale that she did not see Mr Michailidis slam the paperwork on her printer/scanner because there was never any slamming of paperwork. Ms Teasdale's response to that question was "[n]o, that's not correct".
Ms Teasdale was then shown the CCTV footage. After seeing this footage Ms Teasdale:
· agreed that there was no staff in the cubicle next to her on her left in the footage;
· admitted that it was Mr Michailidis who placed paperwork on her printer/scanner in the footage;
· in the footage, she could not identify the person at the back of the cubicle to the left of her;
· stated that she had a set of rego plates in her hand in the footage; and
· admitted that there was only one piece of paper put on the scanner by Mr Michailidis in the footage – the yellow licence form.
It was Ms Teasdale's evidence however that the CCTV footage was not the correct footage of the incident. She stated that it was not the correct version because she knows how firmly Mr Michailidis slammed the paperwork down. Ms Teasdale then acknowledged that if the incident was as per the CCTV footage "there's no way that would have given me a fright, because I was looking at him when he put it down".
It was then put to Ms Teasdale that the incident as outlined in the CCTV footage would not have caused her to have any shock and her response was "I don't believe so". Further, Ms Teasdale agreed that following the placing of the paper on her printer/scanner she continued to observe Mr Michailidis leave her cubicle and then she continued to serve her customer.
When it was put to Ms Teasdale that the CCTV footage did not show her being upset after the paper was placed on the printer/scanner and nor did it show her being stood over by Mr Michailidis, her response was that she did not believe the footage.
Ms Teasdale further agreed that it was possible that she told Ms Ashley, shortly after the incident, that Mr Michailidis bullied her in the incident, that she told Dr Choy that Mr Michailidis abused her (the reference to senior staff) in the incident and that she told Dr Choy that she was subject to workplace harassment in the incident.
Mr Michailidis' Account of the Incident: On 4 March 2016 Mr Michailidis said that he had returned to the Centre after conducting a driving examination. He processed the examination as per normal at his desk and then, at about 9.20am, proceeded to give the licence application paperwork to a Customer Service Officer to finalise. The Customer Service Officers sit in a row at the back of the Centre. He walked behind the Customer Service Officers asking if anyone was free to do a pass. He got no response. He then asked once again and still got no response. At that time he was behind Ms Teasdale's cubicle and he placed the paperwork/licence application on Ms Teasdale's printer/scanner saying – thanks.
Mr Michailidis said that he did not slam the paperwork down on the printer/scanner and he did not hear Ms Teasdale say anything.
Mr Michailidis was then shown the CCTV footage. Following the viewing Mr Michailidis:
· identified, in the footage, Ms Teasdale sitting down in her cubicle;
· thought he could identify Jodie Brant standing behind and outside the cubicle to the left of Ms Teasdale's cubicle in the footage;
· believed that the footage indicated that he placed one piece of paper plus the driver's licence on the printer/scanner; and
· in the footage, he left the cubicle not saying anything to Ms Teasdale or any other Customer Service Officer directly.
Essentially Mr Michailidis agreed with the CCTV footage of the incident.
It was put to Mr Michailidis in cross-examination that his "Thanks" was said in an aggressive tone and that the tone of his voice was intimidating. Mr Michailidis denied both.
CCTV Footage: Exhibit 3 in this proceeding is CCTV footage of two cubicles in the Customer Service Area at the Centre. The Regulator did not dispute that the CCTV footage was one of the incident on 4 March 2016 at approximately 9.30am. The CCTV footage indicates that the date is 04-03-2016 and the footage commences at 09:19:24 and ends at 09:19:40. It is footage of a time around when Ms Teasdale alleges, in her Workers' Compensation application, that her injury was sustained. It is further noted that, immediately after this incident and the completion of the paperwork, Mr Michailidis was required to undertake another driving examination outside of the Centre.
[42]Throughout the footage Ms Teasdale is occupying the cubicle second from the left end. There is no person in the cubicle to the left of Ms Teasdale although there is a person outside the cubicle at the back. Ms Teasdale was unable to identify that person. Ms Teasdale has a customer at the counter of her cubicle. There is also a customer at the counter of the vacant cubicle. This would suggest that at some time, prior to the CCTV footage, a Customer Service Officer may have been in the cubicle attending to that customer.
Whilst attending to her customer, Ms Teasdale turns towards the printer/scanner located in her cubicle. As she does, she notices Mr Michailidis. Mr Michailidis comes from her right and is at the back of her cubicle when Ms Teasdale first notices him. Ms Teasdale's gaze is then on Mr Michailidis. Ms Teasdale watches Mr Michailidis enter her cubicle from the back of the cubicle. Mr Michailidis then places either one sheet of paper or two sheets of paper on the printer/scanner in Ms Teasdale's cubicle. Ms Teasdale watches Mr Michailidis place the paperwork on her printer/scanner. Mr Michailidis then leaves her cubicle and Ms Teasdale watches him leave the cubicle. Ms Teasdale then turns around and continues to deal with her customer.
There is no apparent reaction from either the customer in Ms Teasdale's cubicle or the customer at the counter of the vacant cubicle on the CCTV footage.
The CCTV footage reveals the following:
· Ms Teasdale was aware of Mr Michailidis' presence behind her prior to the placement of any paperwork on her printer/scanner;
· Mr Michailidis placed one or perhaps two pieces of paperwork on Ms Teasdale's printer/scanner;
· there was no slamming of paperwork on Ms Teasdale's printer/scanner;
· there was no apparent abuse of Ms Teasdale by Mr Michailidis;
· there was no apparent standing over Ms Teasdale by Mr Michailidis;
· there was no apparent bullying of Ms Teasdale by Mr Michailidis;
· there was no apparent harassment of Ms Teasdale by Mr Michailidis;
· there is no inappropriate conduct on the part of Mr Michailidis either towards Ms Teasdale or any other person;
· there is no apparent rudeness on the part of Mr Michailidis towards Ms Teasdale;
· Ms Teasdale did not appear to be upset; and
· no unacceptable behaviour on the part of Mr Michailidis was able to be identified.
I prefer the evidence of the CCTV footage and that of Mr Michailidis to that of Ms Teasdale when it comes to the incident on 4 March 2016. There is nothing in the incident that would cause injury to a worker. As Ms Teasdale herself stated if the incident was as per the CCTV footage, nothing occurred to give her a fright as she was looking at Mr Michailidis when he placed the paperwork on her printer/scanner.
I am thus unable to accept any of the accounts of the incident on 4 March 2016 given by Ms Teasdale. The incident on 4 March 2016 did not occur in the manner alleged by Ms Teasdale.
Complaint to Ms Ashley: After Ms Teasdale returned from morning tea on 4 March 2016 she spoke with her supervisor, Ms Ashley at approximately 9.45am on that day. In that conversation Ms Teasdale told Ms Ashley that two operators beside her had made comment about the incident. Ms Ashley's evidence is that she spoke with both operators who were seated in the cubicles either side of Ms Teasdale's cubicle. They confirmed to Ms Ashley that Mr Michailidis spoke in "an inappropriate tone and had acted rudely towards Jennifer".
Given the CCTV footage revealed that there was no person in the cubicle to the left of Ms Teasdale during the incident, and, given that neither operator gave evidence in this proceeding, I am unable to conclude that Mr Michailidis spoke in an inappropriate tone or that he acted rudely towards Ms Teasdale. Ms Ashley did include these comments in her file note of the incident on 4 March 2016 (Exhibit 4). It should be noted that Ms Ashley was reliant upon Ms Teasdale informing her that both operators were in their cubicles during the incident.
Other Issues
Having approached Ms Ashley after morning tea on 4 March 2016, Ms Teasdale said that Ms Ashley asked her to "hang around a while" so that she could speak with Mr Michailidis after he returned from a driving examination. At the time of this conversation on 4 March 2016 there had been no suggestion whatsoever that Ms Teasdale was going home. I do not accept Ms Teasdale's account of being asked to "hang around a while".
Ms Ashley had also been asked by Ms Teasdale whether she should complete a Work Health and Safety Connect form in relation to the incident. Ms Ashley had told Ms Teasdale that she would make inquiries from her Manager. She did this and advised Ms Teasdale accordingly.
At approximately 11.45am on 4 March 2016 Ms Ashley organised a meeting with both Ms Teasdale and Mr Michailidis. It was Ms Teasdale's evidence that Mr Michailidis apologised only for the way she was feeling. Nothing more. Ms Teasdale stated that she was "quite upset", "teary" and "crying" at the meeting because Mr Michailidis would not acknowledge what he had done. According to Ms Teasdale, she told Mr Michailidis that he had slammed down the paperwork and frightened the life out of her. Mr Michailidis denied this at the meeting and did not admit to what he had done. He simply apologised for the way she was feeling. This account is different to that contained in Ms Teasdale account to WorkCover where she simply noted that Mr Michailidis apologised.
Ms Ashley asked, towards the end of the meeting she had with both Ms Teasdale and Mr Michailidis, whether the issue had been resolved and both Ms Teasdale and Mr Michailidis responded "Yes". Ms Ashley again asked Ms Teasdale whether the issue had been resolved and Ms Teasdale again responded "Yes". After leaving the Manager's office where the meeting had been held, Ms Teasdale advised Ms Ashley that she was not in a clear frame of mind to continue her duties at work. She indicated that she wished to go home and this was approved by Ms Ashley.
Medical Evidence
Dr John Chalk, Consultant Psychiatrist: Dr Chalk was originally asked by WorkCover to review the CCTV footage of the 4 March 2016 incident together with Ms Teasdale's medical records. After undertaking a review of that material, Dr Chalk provided WorkCover with verbal advice on 4 May 2016 and forwarded an e-mail to WorkCover on 5 May 2016 (Exhibit 6). That e-mail relevantly provided:
"Yes I looked at the video and have reviewed this lady's medical records which indicate a fairly extensive history of anxiety and depression, at least some of which is attributed to workplace issues.
The incident as described does not constitute one that would give rise to an Acute Stress Disorder. Whilst there have apparently been ongoing issues in the workplace from Ms Teasdale's perspective this incident would not appear to be one where bullying is an apt description.
I note that she was keen to return to work soon after though management would appear to have requested further documentation.
The incident is in my view not responsible for the development of Ms Teasdale's apparent psychiatric difficulties."
[55]Dr Chalk did not examine Ms Teasdale at any time. Exhibit 3 is the same CCTV footage that Dr Chalk viewed prior to giving the abovementioned opinion to WorkCover. Dr Chalk's evidence is that his view had not changed since 5 May 2016 when he provided the abovementioned opinion to WorkCover.
[56]Under cross-examination Dr Chalk said that there was no way the CCTV incident could give rise to an acute stress disorder. Further, Dr Chalk said it was "a nonsense" to suggest that the incident he viewed on the CCTV footage had given rise to an acute stress disorder. He further stated that there was no way an incident like that could give rise to an acute stress disorder.
[57]Dr Michael Choy, General Medical Practitioner: Dr Choy has been Ms Teasdale's general medical practitioner for a considerable time. He first saw Ms Teasdale in relation to the incident, the subject of the workers' compensation claim, on 7 March 2016. The notes made by Dr Choy on that occasion are contained in Ms Teasdale's Patient Health Summary of the Mermaid Junction Medical Centre and are recorded in paragraph [19] of this decision.
The Patient Health Summary for 11 March 2016 reveals that Ms Teasdale again saw Dr Choy on that day. Those Clinical Notes are recorded in paragraph [20] of this decision.
[59]Dr Choy in evidence said that he could recall the consultation with Ms Teasdale on 7 March 2016. He said that Ms Teasdale told him she "got abused by a senior staff at work for no reason". He could recall Ms Teasdale being upset during the consultation and that she was crying and anxious. Dr Choy said that he had not asked Ms Teasdale to describe the incident on 4 March 2016 in detail during this consultation. The main thing Ms Teasdale said was that she had been abused for no reason.
Dr Choy said that it was obvious to him that a "major incident happened at work" that led her to the state she was in at the consultation. As a result he diagnosed her as suffering from acute stress disorder. According to Dr Choy, there was no reason for Ms Teasdale to have been in tears, been shaky and very anxious apart from the incident that happened at work on the previous Friday. In arriving at this diagnosis Dr Choy admitted that he had not used the DSM-IV diagnostic criteria. A diagnosis does not however have to be based on the DSM-IV diagnostic criteria to be compensable.
In the Workers' Compensation Medical Certificate issued by Dr Choy on 11 March 2016 he notes his diagnosis as "Acute Stress Disorder from Work Place Bullying. In evidence Dr Choy said the "workplace bullying" that was described by Ms Teasdale to him was the abuse from a senior staff in front of the counter for no particular reason. He further stated that it was his understanding that some person "at work did not like her – and hence the harassment". Dr Choy confirmed that Ms Teasdale had told him that someone at work did not like her. As for the "abuse" Dr Choy understood it to be verbal abuse.
Whilst Dr Choy had been previously provided with the CCTV footage he indicated in evidence that he could not work out what the footage was about. He was somewhat surprised to find out that it was the "incident". Dr Choy's evidence was that the CCTV footage doesn't seem to show anything.
In cross-examination it was suggested to Dr Choy that regardless of how Ms Teasdale presented to him on 7 March 2016, it could not be attributed to the incident on 4 March 2016 and his response was "based on that video clip, sir, I, you know, yes I agree with you".
Conclusion
I have already formed the view that I preferred the evidence of Mr Michailidis and the CCTV footage of the incident on 4 March 2016, to the evidence of Ms Teasdale in so far as the incident is concerned. There is no evidence to suggest that following the incident contained in the CCTV footage, Mr Michailidis returned to Ms Teasdale's cubicle shortly thereafter. The CCTV footage, whilst it does not have any oral communication, does paint a clear picture of the alleged incident.
Mr Michailidis is seen by Ms Teasdale prior to him placing one or two sheets of paper on her printer/scanner. Having placed the paperwork on the printer/scanner Mr Michailidis then turns around and walks off and Ms Teasdale continues to serve her customer. Ms Teasdale does not appear to be upset following the event. She watches Mr Michailidis leave her cubicle. There is no raising of Mr Michailidis' arm in the air as alleged by Ms Teasdale. He just walks away.
Ms Teasdale herself accepts that if the incident occurred in the manner shown on the CCTV footage, she could not have been upset because she saw Mr Michailidis come into her cubicle and she saw him place the paperwork on her printer/scanner. She could not have got the fright as she alleged. There was no slamming of the paperwork. It was placed down on the printer/scanner by Mr Michailidis and watched, at all times, by Ms Teasdale.
On the evidence before me I could only conclude that the incident on 4 March 2016 involved appropriate conduct on the part of Mr Michailidis in his dealing with Ms Teasdale. There was no bullying, no abuse, no workplace harassment, no physical intimidation, no standing over, no apparent rudeness and no inappropriate or unacceptable conduct of the part of Mr Michailidis towards Ms Teasdale in the incident at the Centre on 4 March 2016 at approximately 9.20 am.
I accept that the CCTV footage in Exhibit 3 tendered without objection from the Regulator is footage of the incident to which Ms Teasdale referred in her application for workers compensation dated 11 March 2016.
Having accepted that the CCTV footage indicates the incident that formed the basis of Ms Teasdale's application for workers' compensation, the medical evidence before me confirms that Ms Teasdale could not have suffered an acute stress disorder arising out of, or in the course of, the incident at work on 4 March 2016. Dr Chalk having viewed the CCTV footage said it was a "nonsense" that Ms Teasdale could have suffered an "acute stress disorder" from the incident. Dr Choy agreed that the presentation of Ms Teasdale to him on 7 March 2016 could not be attributed to the incident on 4 March 2016, if the CCTV footage was of the incident. It was thus not the "major incident … at work" that he thought had occurred when he first saw Ms Teasdale on 7 March 2016.
Mr McMillan, Counsel for the Regulator, referred me to the following passage in the decision of Hall P in Leigh Sheridan v Q-COMP[2]:
[2] Leigh Sheridan v Q-COMP [2009] 191 QGIG 13
"In respect to psychological injury, there is an 'egg-shell psyche' principal which is the equivalent of the 'egg-shell skull' principle … So long as the events within the workplace are real rather than imaginary, it matters not that they impact upon the claimant's psyche because of a flawed perception of events attributable to a disordered mind …"
However, as Dr Spry, Counsel for the Department submitted, the event in the workplace must be real rather than imaginary. In this instance the event was not the incident that Ms Teasdale described both in evidence and in her application for workers' compensation. Ms Teasdale herself said that if the event was as per the CCTV footage, she would not have got the fright of her life as she watched Mr Michailidis place the paperwork on her printer/scanner. Following the alleged incident, Ms Teasdale continued to serve her customer without any obvious effect of the interaction with Mr Michailidis.
I am satisfied that Ms Teasdale did not sustain an "injury" within the meaning of the Act in the incident on 4 March 2016 at approximately 9.30am. I am thus satisfied that the Department has discharged its onus of proof in this matter.
The Department has further satisfied the Commission that Ms Teasdale did not suffer an injury that arose out of, or in the course of, her employment with the Department as I have found that no injury was sustained by Ms Teasdale in the incident of 4 March 2016 at approximately 9.30am. Further, the Department has satisfied me that the employment of Ms Teasdale by the Department was not a major significant contributing factor to any injury she may have suffered as I have found that Ms Teasdale did not sustain an "injury" within the meaning of the Act in the incident on 4 March 2016.
For the reasons set out above, I have concluded that the appeal must succeed.
Accordingly:
(a)I set aside the decision of the Workers' Compensation Regulator outlined in correspondence dated 19 August 2016 to confirm the decision of WorkCover to accept Ms Teasdale's application for compensation;
(b)I substitute that decision with a decision that Ms Teasdale's applications for workers' compensation made, either orally on 7 March 2016 or in writing on 11 March 2016, not be accepted;
(c)The Workers' Compensation Regulator is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
Order accordingly.
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